GARY LATOUR, Employee, v. COOPER TOOLS/DIAMOND PLANT and EMPLOYERS INS. OF WAUSAU, Employer-Insurer/Appellants, and COOPER TOOLS/DIAMOND PLANT and LIBERTY MUTUAL INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 28, 2003
TEMPORARY PARTIAL DISABILITY. The 225 week limit set out in Minn. Stat. ' 176.101, subd. 2(b), does not apply to the obligation of an insurer to pay benefits for a 1985 injury despite the occurrence of a 1994 injury where the 1994 injury was not a substantial contributing factor in the loss of earning capacity caused by the 1985 injury.
Determined by Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Donald C. Erickson
DAVID A. STOFFERAHN, Judge
Employers Insurance of Wausau appeals from the compensation judge=s denial of its request to discontinue temporary partial disability benefits for the employee=s 1985 injury. We affirm.
The facts in this matter are undisputed. Gary LaTour began working for the employer in 1966. On March 14, 1985, the employee sustained an injury to his low back. His average weekly wage on that date was $396.80. After a brief period when he was unable to work and after a brief period when he attempted to work on a full-time basis, the employee returned to work for the employer with severe restrictions and limited to five hours per day. The employer=s insurer, Employers Insurance of Wausau (Wausau), commenced payment of benefits, including payment of temporary partial disability based upon the employee=s ongoing reduced wages. The employee continued to work at reduced hours and with restrictions due to his March 14, 1985 work injury until the plant closed on June 24, 1994.
The employee alleged he had sustained a Gillette injury to his upper extremities, and, in a Findings and Order, served and filed April 25, 1997, the compensation judge found the employee had an injury to his upper extremities on June 24, 1994, when the employer=s insurer was Liberty Mutual Insurance Company (Liberty). The employee=s average weekly wage on the date of his 1994 injury was $245.00. Two days after the plant closed, the employee found another job within the restrictions imposed by his low back and upper extremity conditions. While specific earnings from the employee=s new job as a parking lot attendant are not in the record, the employee has continued to earn less than he was making in June 1994.
The employee received temporary partial disability benefits from Wausau for the loss of earning capacity occasioned by the March 14, 1985 injury, measured by the difference between the $396.80 per week he was earning at that time and the $245.00 per week he was earning in June 1994. He also received temporary partial disability from Liberty for the loss of earning capacity occasioned by the June 1994 injury, measured by the difference between the $245.00 per week he was earning at that time and the wages he earned in his part-time job at the parking lot. On or about October 15, 1998, Liberty discontinued payment of temporary partial disability benefits pursuant to Minn. Stat. ' 176.101, subd. 2(b), having paid 225 weeks of benefits to the employee. The employee continued to work in his parking lot job with restrictions and limited hours due to in part his March 14, 1985 work injury. Wausau continued to pay temporary partial disability benefits based on the difference between the 1985 wage and the 1994 wage.
On August 20, 2001, Wausau filed a notice of intention to discontinue benefits, alleging that, Ain accordance with Joyce v. Lewis Bolt & Nut Co., 40 W.C.D. 209, 412 N.W.2d 304 (1987), temporary partial ends when the maximum number of 225 weeks is paid.@ Wausau=s request to discontinue benefits was denied at conference and its petition to discontinue was heard by Compensation Judge Donald Erickson on January 15, 2002.
The employee testified at hearing that he continued to experience symptoms from his back injury and that his ongoing restrictions due to the back injury precluded him from finding other employment. The employee continued to work in his part-time job as a parking lot attendant at the time of the hearing.
In his Findings and Order, served and filed February 21, 2002, the compensation judge denied Wausau=s petition, holding that it was not entitled to the 225-week limitation of temporary partial disability benefits. Wausau appeals.
Wausau argues that the employee=s June 24, 1994 injury is the Acontrolling event@ in his case pursuant to the decision in Joyce v. Lewis Nut and Bolt Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), and that, accordingly, the law in effect on that date controls the employee=s entitlement to temporary partial disability benefits from all injuries. Since the law in effect on June 24, 1994 limits the employee=s receipt of temporary partial disability benefits to 225 weeks and since that amount of benefits had been paid by October 15, 1998, the employee is no longer entitled to benefits from Wausau. We disagree.
In Joyce, the employee had sustained a number of injuries to his back, the last occurring in June 1984. When the employee reached maximum medical improvement from that injury and the employer sought to discontinue temporary total disability benefits 90 days thereafter in accordance with Minn. Stat. ' 176.101, subd. 3e, the employee argued that he had a vested right to ongoing temporary total disability benefits by reason of his previous work injuries.
The Joyce court agreed that the employee had rights from the earlier injuries but, since the employee had returned to work after each injury and temporary total disability had ceased, any rights were contingent until the employee became disabled and established temporary total disability entitlement from those injuries. If the employee was able to do so, the earlier injury would then be the controlling event for purposes of determining the applicable statute. Instead, the employee in Joyce sustained a new injury in June 1984. Although the earlier injuries may have contributed to the employee=s disability, it was the occurrence of the new injury which triggered the payment of benefits for temporary total disability and the 1984 injury was a substantial contributing factor in the employee=s disability. The June 1984 injury thus became the controlling event in the employee=s claim for temporary total disability benefits. The court held that the law in effect on the date of the controlling event determined the employee=s entitlement to benefits and allowed the discontinuance of temporary total disability based on the statute in effect in June 1984.
In Judd v. Doege Precision Machining, Inc., 62 W.C.D. 177 (W.C.C.A. 2002), the employee had sustained an injury to her hands and wrists in September 1995 and again in September 1998. She began receiving temporary total disability benefits from the 1998 insurer who later sought to discontinue those benefits pursuant to Minn. Stat. ' 176.101, subd. 1(k), after 104 weeks of benefits had been paid. The employee argued that she had not reached maximum medical improvement (MMI) from either injury and needed to be at MMI from both injuries before benefits could be discontinued. This court disagreed, citing Joyce. Temporary total disability from the 1995 injury had ceased, and the employee had sustained a new separate injury in 1998 which triggered the payment of temporary total disability and which was a substantial contributing factor in the employee=s ongoing disability. The 1998 injury was thus the controlling event for the employee=s temporary total disability claim, and the law in effect in 1998 determined the duration of those benefits.
In accord also is Busch v Advanced Maintenance, slip op. (W.C.C.A. July 30, 2002), where the compensation judge found a 1990 injury to be 75 percent responsible for an employee=s disability and a 1999 injury to be 25 percent responsible. This court reversed the judge=s finding that the 1990 injury was the controlling event based upon this allocation of responsibility. This court held that where the 1999 injury was found to be a new separate injury which was a substantial contributing factor in the employee=s disability and which had triggered the payment of benefits, the 1999 injury was the controlling event.
In Boone v. Hauenstein & Burmeister, Inc., slip op. (W.C.C.A. Oct. 3, 2002), the employee sustained a work injury in 1990 but returned to work for the employer. In 1994, the employee sustained a new separate injury after which he became entitled to temporary partial disability benefits. Benefits were stopped by the 1994 insurer after 225 weeks were paid. The employee claimed the 1990 injury continued to be a substantial contributing cause of his disability but did not claim a separate wage loss due to that injury alone. This court held that Joyce applied and allowed the discontinuance of benefits.
The above cited cases do not stand for the proposition that the last injury is always the controlling event for all benefits when the employee has had multiple injuries. In all of the cited cases, the employee=s receipt of benefits from the earlier injuries had ended before the last injury, transforming the employee=s rights from those injuries into contingent rights. The employee=s subsequent entitlement to benefits was not occasioned by those earlier injuries but, in each case, by a new separate injury which triggered the payment of benefits at issue and which was a substantial contributing factor in the employee=s disability. When those factors exist, the last injury becomes the controlling event for the claim at issue.
Those facts do not exist in the present case. Mr. LeTour=s temporary partial disability benefits had not ended before the 1994 injury and, as a result, his rights from the 1985 injury had not become contingent. Although the 1994 injury was a new separate injury, it did not trigger the payment of benefits at issue here. Those benefits for temporary partial disability were still being paid by Wausau based upon the wage loss from the 1985 injury. While the 1994 injury may be a significant factor in the employee=s overall diminution in employability, the employee had already established a loss of earning capacity due to the 1985 injury alone.
The employee is not seeking payment for the loss of earnings from all injuries but only for the loss of earning capacity caused by the 1985 injury. Wausau=s obligation to pay temporary partial disability benefits to the employee was not increased by the happening of the 1994 injury. It continued to pay benefits based upon the loss in wages between $396.80 in 1985 and $245.00 in 1994. Had the 1994 injury never happened, Wausau=s payment would have continued unchanged. Given these factors, the statute in effect on June 24, 1994, does not supersede the employee=s right to temporary partial disability benefits vested under the 1985 statute.
Under the facts of this case, the workers= compensation law in effect on the date of the employee=s first injury, March 14, 1985, determines the entitlement of Mr. LaTour to temporary partial disability benefits from Wausau. Since the only basis for discontinuance of those benefits raised by Wausau is the 225-week limit in Minn. Stat. ' 176.101, subd. 2(b), and since that limit did not exist in 1985, the compensation judge properly denied Wausau=s request for discontinuance.
 Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).