EDWARD F. STEBLAY, Employee, v. ERIE MINING, SELF-INSURED, Employer, and LTV STEEL MINING CO. and AIG/SEDGWICK CLAIMS SERVS., INC., Employer-Insurer, and MN DEP=T OF ECONOMIC SEC. and MN DEP=T OF LABOR & INDUS./VRU, Intervenors, and LAKEWOOD SURGERY CTR., Intervenor/Medical Provider, and SPECIAL COMPENSATION FUND, Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 4, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the finding that the employee sustained injury to his right knee and back as a result of a his June 23, 1983 work injury.
APPORTIONMENT - EQUITABLE. The compensation judge's findings on liability and equitable apportionment are supported by substantial evidence.
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence supported the finding that the employee=s wage loss during the periods in question were causally attributable to his 1983 work injury
Determined by Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: John R. Baumgarth, Minnesota Department of Labor and Industry, Duluth, MN, for the Appellant. Russell G. Sundquist, Sundquist & Associates, St. Paul, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The Special Compensation Fund appeals from the compensation judge=s findings that the employee sustained injuries to his right knee and back as a result of his June 23, 1983, work injury, and that his wage loss during the periods in dispute were causally attributable to that injury.
On December 1, 1971, Edward F. Steblay, the employee, was working for Erie Mining Co. as a truck driver when he slipped and fell while climbing the ladder into the truck=s cab. He developed low back pain and was put on light duty work by the employer. When seen by Dr. Duane F. Person on April 17, 1972, the employee still had low back pain toward the right side but no radicular symptoms and he was diagnosed with chronic lumbosacral strain. On August 4, 1972, the employee reported to Dr. Person that he had continuing problems with his back. On exam, he had limited range of motion and diminished sensation in a right L5 distribution. The employee was hospitalized for chronic lumbosacral strain in late September 1972 and was off work for most of the remainder of 1972.
On October 24, 1973, the employee had an L4‑5 laminotomy and discectomy performed by Dr. Person. A herniated disc was noted during the surgery. By the following spring he was Adoing fairly well@ and was released to return to work on May 6, 1974, by Dr. Person with restrictions of a 50-pound lifting limit, avoidance of awkward positions and of heavy pushing or pulling. He returned to work for the employer as a welder and was able to tolerate the work, although he had some residual back pain. On December 16, 1974, Dr. Person rated the employee as having 15 percent disability of the spine. The employee returned to Dr. Person several times between 1975 and 1983, reporting episodes of returned or increased symptoms. Further surgery was not recommended and the employee continued to work his regular job for the employer.
On June 23, 1983 the employee was working in a tunnel beneath a cooling water tank when a flange he was repairing broke. Water immediately rushed out under high pressure, and the employee was struck both by the force of the water and by a large pipe assembly, knocking him back against other piping and the tunnel wall. The employee was pinned to the floor beneath piping in the rising water until he was rescued by a co-worker. Initial treatment for this incident focused on the employee=s left knee, although he was noted to have multiple bruises all over his body and he reported that his back was beginning to hurt more than it had previously. Surgery was performed on July 5, 1983, to repair a tear of the deep portion of the medial collateral ligament in the employee=s left knee.
In early September 1983, the employee had full range of motion in the left knee and his repair remained tight. However, Dr. Person=s September 6, 1983, chart note mentioned that his other knee had also been giving him trouble since the June 1983 injury. The employee went on to have arthroscopic surgery for the right knee on November 21, 1983. The operative report noted minimal chondromalacia of the patella and the medial femoral condyle.
The employee returned to work for the employer in his regular job as a welder in mid-January 1984. He was seen by his physicians in follow up for his injuries on January 31, 1984, at which time he began to report neck pain. He stated that his knee problems were not too bad, but that he still had some low back pain. In March 1984 the employee told his doctor that his back had been bad for three weeks but that he then had felt better and continued to work. He reported some left leg swelling and some additional pain in his right leg. He was taking aspirin and pain medications. He did not have too much neck pain. During the summer of 1984 the employee continued to complain to his physicians of trouble with his back.
In his October 23, 1984, report to the employer, Dr. Person rated the employee with 10 percent disability to his left lower extremity from the June 1983 injury. In an addendum to his letter, Dr. Person inquired whether a rating needed to be made for the employee=s right knee, noting that it had also been injured at the time of the 1983 accident but that Ait was not as symptomatic as the left so we concentrated on the left side rather than the right, but he continues to have difficulty with it.@ On January 20, 1986, Dr. Person did see the employee for a right knee impairment evaluation. He noted that the arthroscopic examination of the employee=s right knee had not shown any cartilage or ligament tears but had revealed chondromalacia of the articular surfaces. Since the 1983 injury, the right knee had continued to give the employee difficulty with occasional locking up, intermittent aching pain, and crepitus. Dr. Person rated the employee with a five percent disability to his right lower extremity.
During 1985 the employee continued to treat for occasional episodes of back problems. X‑rays of the lumbosacral spine showed moderate to severe degenerative disease at the L4‑5 level, which was noted to be somewhat increased over previous films. On July 29, 1985, Dr. Person wrote a letter to the employer=s medical supervisor outlining the employee=s current restrictions resulting from both his back and leg injuries. The employee was not to kneel, lift more than 20 pounds, lift repetitively, work on ladders or in the air, or work in awkward or cramped positions. He was to change positions as needed for discomfort.
From 1986 through 1991 the employee continued to work for the employer as a submerged arc welder. During this period the employee treated sporadically for various episodes of increased symptoms with his left knee, low back, and neck, but without lost time from work. At some time during this period LTV Steel Mining Company, Inc. took over the operations of Erie Mining Co., which had become bankrupt. The employee continued in his same employment with the successor employer. As a result of the bankruptcy of Erie Mining Co., liability for the 1971 and 1983 work injuries became the responsibility of the Special Compensation Fund.
In August 1992 the employee sustained an admitted Gillette injury in the nature of bilateral carpal tunnel syndrome while working for the employer, then insured by AIG. The employee underwent right carpal tunnel release surgery on January 4, 1993, and shortly afterwards, on March 9, 1993, underwent carpal tunnel release surgery on the left side as well. On April 22, 1993, his treating physician, Dr. Joseph Henry, released the employee to return to work with no specific restrictions from his carpal tunnel problems, being advised only to work as tolerated. Dr. Henry stated that the employee had reached maximum medical improvement for his right wrist by February 16, 1993, and for the left wrist on April 22, 1993.
The employee had recurrent problems with his wrists later that year but then had very little treatment for his upper extremity symptoms until early 1995, when he had hand numbness and increased pain in the fourth and fifth digits and pain from the wrist to the elbow. It was felt that he had evidence of carpal tunnel syndrome and ulnar neuropathy, left side more so than right, but no evidence of a radiculopathy or brachial plexopathy. On August 17, 1995, he had an MRI scan of his left wrist which showed postoperative changes. The median nerve on the left was less flat than on the right and some edema and scar tissue were noted. On the right, the median nerve was said to be flat with evidence of fibrosis.
On January 23, 1997, the employee underwent re‑exploration of the right carpal tunnel. By March 11, 1997, he reported good pain relief and was pleased with the results of the surgery. His splint was discontinued and he was released to return to work March 12, 1997. On June 25, 1997, he reported that he was fifty percent improved following his surgery, and he had no numbness or tingling on the right, with just rare symptoms on the left. It was recommended that he hold off on any additional surgery on his left arm at that time. On February 10, 1998, he was rated with a three percent whole body permanent partial disability for each wrist condition and released to return to work as tolerated.
In a letter dated November 4, 1999, Dr. Person rated the employee with a ten percent permanent partial disability of his spine for a chronic cervical strain superimposed on degenerative disk disease at C4-5 and C5-6. He opined that the employee=s 1983 work injury had been the cause of this condition. He explained the lack of treatment for the cervical condition during the first several months following that injury by noting that Abecause of the multiplicity of injuries that he had, after prioritizing the injuries, it was necessary to put his low back and his knees ahead of his neck.@
From late 1999 through 2001 the employee treated periodically for his low back, and on a few occasions for his neck and knees. In a report dated April 3, 2000, Dr. John Dowdle concluded that the employee had a total 25 percent disability to the spine as a result of the June 23, 1983, injury, with fifteen percent from the lumbar spine and ten percent from the cervical spine. X‑rays of the lumbosacral spine on April 11, 2001, showed marked degenerative disc disease at the L4‑5 level, with some degenerative changes at L2‑3 and L3‑4. X‑rays of the cervical spine showed some degenerative disc disease and spurring at the C4‑5 and C5‑6 levels.
The employee continued to work for the employer as a submerged arc welder until he was laid off, due to the closing of the employer=s business, on October 26, 2001. He began a job search thereafter with the assistance of a QRC.
Dr. Lorelee Stock, M.D., who treated the employee for low back problems, wrote a letter dated February 27, 2002, in which she noted that the employee=s symptoms were well controlled with medications. She stated that he remained under the same restrictions he had had for years, which included a 20‑pound lifting limit, no repetitive bending or stooping, the ability to alternate positions every hour, and limited stair climbing.
On May 27, 2002, the employee began working for Entronix International, Inc., repairing mobile telephones. He was terminated from this job on August 9, 2002, due to a downturn in the employer=s business. During the time the employee worked for Entronix, he began having upper extremity pain, right more than left, which he associated with repetitive use of his hands at work. He was seen by Dr. Henry on July 25, 2002, for the upper extremity symptoms. On that date, he had full range of motion but a positive Tinel's test. X‑rays of his hands showed some mild arthritis in the MP joints and slight cystic changes in the lunate. Dr. Henry made no treatment recommendations other than to refer the employee to a hand surgeon.
At Dr. Henry=s referral, the employee was seen by Dr. Kydee Sheetz, an orthopedist at the Duluth Clinic on September 3, 2002. The employee reported that his upper extremity symptoms were different than they had been with his previous carpal tunnel problems and release surgery. X‑rays of the right hand and wrist showed moderate arthritis of the DIP joints and arthritis of the thumb MP joint and middle finger MP joint. An EMG and MRI were recommended. The employee=s EMG, done on October 1, 2002, showed mild right carpal tunnel syndrome, but it was noted that this was improved over previous studies. An MRI scan of the right wrist showed minor postoperative fibrosis in the carpal tunnel with slight flattening of the median nerve and generalized arthritis of the wrist. In a follow up appointment on October 11, 2002, Dr. Sheetz concluded that surgery would not be helpful and instead recommended home exercise and scar management.
In February and March 2003, Dr. Henry offered the opinion that the employee's upper extremity symptoms were related to his pre‑existing carpal tunnel syndrome. He further stated that the employee's work doing cell phone repair, his lawn mowing activities and use of vibrating tools, as well as operating a motorboat, were all contributing factors to his carpal tunnel symptoms, and that his symptoms were aggravated by repetitive use activities. The employee was evaluated by Dr. Wolcott S. Holt, a neurologist at the Duluth Clinic, for his wrist pain on April 10, 2003. Dr. Holt felt that the employee might have a vasculopathy or complex regional pain syndrome, and possible recurrent carpal tunnel syndrome. The doctor recommended a trial of stellate blocks. The employee had a stellate block on April 30, 2003 on the right. A right axillary block was done on May 22, 2003.
On May 22, 2003, the employee was seen by William Call for an independent medical evaluation regarding his upper extremities. It was Dr. Call=s opinion that the employee's original carpal tunnel syndrome was not related to his work at LTV, but was developmental and idiopathic. Dr. Call did not believe that the employee required any work restrictions regarding his upper extremities. It was also his opinion that the employee did not sustain any injury while employed at Entronix.
The employee was examined by Dr. Nolan R. Segal on behalf of the Fund on October 9, 2003. Dr. Segal concluded that the employee=s upper extremity problems were unrelated to work activities. He considered the 1971 work injury to be a significant contributory cause of the employee=s low back problems and opined that the employee=s 1983 work injury had caused only a left knee condition, specifically, a partial tear of the collateral ligament. Given the absence of other complaints from the initial treatment records for this injury, he stated that the 1983 injury had not caused injury to the employee=s right knee, low back or neck. He considered the employee=s right knee condition to have resulted from a nonwork-related degenerative condition. Finally, he offered the opinion that the employee had no work-related permanent partial disability other than a 10 percent disability to the spine from the 1971 work injury, and was not temporarily totally disabled at any time following his layoff from the employer in 2001.
The employee filed a claim petition on January 28, 2002, alleging entitlement to temporary partial and temporary total disability compensation for various periods subsequent to his layoff in October 2001. The claim was heard by Compensation Judge James Cannon on October 28, 2003. In his Findings and Order, served and filed on January 21, 2004, the compensation judge found that the 1983 work injury had resulted in injury to the employee=s low back as well as to both knees. The compensation judge awarded temporary total and temporary partial disability benefits for some, but not all, of the periods claimed. The compensation judge further found that the employee=s disability and wage loss following his layoff by the employer were not substantially caused by the 1992 Gillette injury, but were instead attributable solely to the effects of the 1983 work injury. The Fund appeals from the award of temporary benefits and from the denial of apportionment against the 1992 work injury.
1. Nature of 1983 Work Injury
Appellant, the Special Compensation Fund, conceded only a left knee injury associated with the employee=s June 23, 1983 work injury. The compensation judge denied the employee=s claim to have sustained injury to his neck on that date, but found that the June 1983 incident resulted not only in injury to the employee=s left knee, but also in injury to the employee=s right knee and low back.
On appeal, the Fund again argues in its brief that the compensation judge should have adopted the view of Dr. Segal, who opined that the June 23, 1983, work accident had resulted only in a left knee injury, as that was the only complaint mentioned or treated in the initial records following the work injury. The compensation judge noted, however, that the employee had complained of recurrent low back pain as early as June 28, 1983, that medical records began to discuss the employee=s right knee problems within a few months of the work injury, and that Dr. Person, who treated the employee for the 1983 injury, wrote to the employer in 1984 explaining that although there were right knee problems from the date of the 1983 injury, treatment of right knee problems had been postponed during treatment of the employee=s more significant left knee and low back problems. The compensation judge reasonably considered the serious nature of the 1983 incident, which, as described by the employee, was consistent with a likelihood of injury to multiple body parts. In addition, with respect to the question whether the 1983 accident permanently aggravated the employee=s low back, the judge took into consideration the nature of the employee=s restrictions for his low back problems both before and after the 1983 work injury. Finally, the compensation judge noted that the employee=s physicians rated him with permanent disability to both knees and with a greater rating to the low back than that ascribed to his back condition prior to the 1983 injury.
The Fund argues that the compensation judge was improperly influenced by the dramatic nature of the 1983 work accident, and further argues that the permanency ratings provided to the employee=s conditions do not constitute a proper basis for the judge=s findings. We note, however, that these factors, and the other factors considered by the compensation judge, are among those which this court and our supreme court have long considered appropriate to consider in issues such as causation and apportionment. See, e.g., Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W. 2d 888, 27 W.C.D. 797 (Minn. 1975)(factors to be considered in equitable apportionment include the nature and severity of the various injuries and the extent and nature of symptoms in relationship to the dates of the employee=s injuries.)
Based on these considerations, the compensation judge accepted as credible the employee=s testimony that he had sustained injury to the low back and right knee as well as to the left knee, and accepted the opinions expressed by Dr. Person over those of Dr. Segal. We conclude that the compensation judge=s findings as to the nature of the 1983 work injury should be affirmed. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
2. Equitable Apportionment.
Equitable apportionment is applicable when two or more successive injuries combine to produce the final disability. Silva v. Maplewood Care Center, 582 N.W.2d 566, 58 W.C.D. 386 (Minn. 1998). Equitable apportionment reflects the principle that each liable employer or insurer should bear responsibility for its proportional share of the employee's disability. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975). However, the liability of an employer or insurer for contribution is dependent on a determination not only that the employee sustained a compensable injury with that employer or insurer, but also that the injury is a substantial contributing cause of the employee's current disability. Haverland v. Twin City Milk Producers Ass'n., 273 Minn. 481, 142 N.W.2d 274, 23 W.C.D. 764 (1966). See also, Peterson v. O.R. Anderberg Constr., 586 N.W.2d 69, 58 W.C.D. 595 (Minn. 1998).
The case before the compensation judge below involved three injuries the employee sustained while working for the employer: a specific injury to the low back in 1971, a specific injury in 1983 to both knees and the low back, and an upper extremity Gillette injury in 1992 in the nature of bilateral carpal tunnel syndrome. Appellant is on the risk for the 1971 and 1983 injuries and respondent insurer AIG was on the risk for the 1992 work injury. The compensation judge found that the employee=s disability and loss of earning capacity subsequent to his layoff by the employer in 2001 was substantially the result of the 1983 injury and that the 1971 and 1992 work injuries did not play an ongoing role in that disability. Accordingly, the compensation judge declined to apportion any part of the wage loss benefits awarded against AIG. The Fund appeals from the compensation judge=s determination that none of the temporary benefits awarded to the employee are apportionable in whole or in part to the 1992 Gillette injury.
Equitable apportionment determinations are based not on any precise formula but on an assessment of all of the facts and circumstances of the case. Further, equitable apportionment is not purely a medical question but ultimately a question of fact for the compensation judge which does not necessarily require acceptance of any particular medical apportionment opinion. Ringena v. Ramsey Action Programs, 40 W.C.D. 880, 883 (W.C.C.A. 1987); see also Goetz v. Bulk Commodity Carriers, 226 N.W.2d 888, 27 W.C.D. 797 (Minn. 1975).
The two central findings on this issue are the findings that the 1983 work injury was, and the 1992 Gillette injury was not, a substantial contributing cause of the employee's disability and loss of earning capacity following his layoff by the employer in 2001. The compensation judge based his findings on several factors, but gave significant weight to the nature of the employee's restrictions from each condition and injury.
In particular, the compensation judge noted that the 1971 work injury to the employee=s low back had resulted in relatively minimal restrictions principally of no lifting greater than 50 pounds. After the 1983 work injury in which the employee reinjured his low back and sustained bilateral knee injuries, these restrictions were superseded by much more rigorous restrictions, including a 20 pound lifting limit, no kneeling, no repetitive lifting or overhead or ladder work, no repetitive bending or stooping, and limited stair climbing. These latter restrictions remained in effect throughout the periods for which benefits were claimed. With respect to the 1992 work injury, the only restriction the employee was given was to work as tolerated and he had no loss of time from work due to this injury after 1997. We cannot say that it was unreasonable for the compensation judge to find that the 1983 work injury thus remained the substantial cause of the employee=s disability and loss of earning capacity during those periods.
The appellant points to the evidence of the employee=s extensive treatment for upper extremity problems beginning in the summer of 2002 and to the fact that these problems emerged during his brief period of employment repairing mobile phones for employer Entronix, to argue that the employee sustained a bilateral wrist injury at Entronix which disabled the employee. The Fund contends that the compensation judge should have found a Gillette injury at Entronix and imposed liability on that injury. However, Entronix was not a party to this action and there was no medical opinion that the employee had sustained a work injury to his wrists at that employer. The doctors who considered the question of causation for the employee=s 2002 wrist symptoms either attributed the complaints to the 1992 injury or opined that there had been no work injury to the wrists. The medical records and the employee=s testimony, as well as the medical opinions of Dr. Segal and the Fund=s own examiner, Dr. Call, adequately supported the compensation judge=s conclusion on this issue.
We conclude that the compensation judge=s findings on liability and apportionment are supported by substantial evidence, and affirm.
3. Causation for Wage Loss
To establish entitlement to temporary total or temporary partial disability benefits, the employee must prove the injury caused disability resulting in a loss of an ability to earn. Dorn v. A.J. Chromy Constr. Co., 310 Minn.42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). In its brief, the Fund contends that the employee=s inability to find work within his restrictions is due to Aa desolate employment market in which only a few displaced LTV workers have successfully been re-employed,@ and that the employee has not Asought training to help him compete in the customer service positions which form many of the substantial new employment opportunities on the Iron Range.@ The Fund argues, in essence, that in light of these and other similar factors the compensation judge erred in finding a causal connection between the employee=s work injury and related disability and his loss of earning capacity.
The fact that the employee=s job market is limited does not end his entitlement to temporary benefits. An injured worker is not precluded from benefits because he lacks skills in demand in his labor market. Rather, an injured employee is totally disabled, and thus entitled to temporary total disability benefits, if the employee=s physical condition, in combination with his or her age, training and experience, and the type work available in the community, causes the employee to be unable to secure employment. Schulte v. C.H. Peterson Construction Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). The concept of total disability depends primarily on the employee=s ability to find and hold a job, and not on the employee=s physical condition; and the reality of the job market is the most significant factor. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). After his separation from the employer, the employee participated in job search at the direction of a QRC. Other than to comment on the labor market in the community, the Fund makes no argument that the scope of the employee=s activities were inadequate. The record supports the compensation judge=s conclusion that the employee engaged in a diligent job search during the periods for which benefits were awarded. We affirm the compensation judge=s determination that the employee established entitlement to temporary total and temporary partial disability benefits.
 Gillette v. Harold, Inc., 257 Minn. 313, 321‑22, 101 N.W.2d 200, 205‑06, 21 W.C.D. 105 (1960).