EDWARD L. MEWHORTER, Employee/Appellant, v. MORRELL SERVS. and FEDERATED MUT. GROUP, Employer-Insurer, and MORRELL SERVS. and MID-CENTURY INS. CO., Employer-Insurer, and COMMERCIAL CONSTR. SERVS., INC., and SFM MUT. INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 1, 2010
TEMPORARY TOTAL DISABILITY - 104 WEEKS; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(k). Where the employee’s temporary total disability was due to the combined effect of three injuries and where the employee was paid 104 weeks of temporary total disability compensation following the last of the injuries, the employee is not entitled to additional temporary total disability compensation from the earlier injuries.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: James A. Batchelor, Batchelor Law Firm, Minneapolis, MN, for the Appellant. Kelly P. Falsani, Fitch, Johnson, Larson & Held, Minneapolis, MN, for Respondents Morrell Services/Federated. Craig B. Nichols and Nicholas J. Micheletti, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for Respondents Morrell Services/Mid-Century. John M. Hollick, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for Respondents Commercial Construction/SFM.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that his claim for additional temporary total disability compensation was barred by Minn. Stat. § 176.101, subd. 1(k), and from the resulting dismissal of his claim petition. We affirm.
Edward Mewhorter, the employee, sustained three admitted work injuries to his cervical spine. The temporary total disability benefits to which the employee is entitled as the result of these injuries is the issue in this appeal. The employee has been paid 104 weeks of temporary total disability compensation as the result of the last injury, the maximum number of weeks of benefits allowed by Minn. Stat. § 176.101, subd. 1(k). The employee claims he is entitled to additional temporary total disability compensation because his disability was occasioned, in part, by the first two injuries.
The first injury occurred on July 17, 1997, while he was employed by Morrell Services [Morrell]. Morrell and its insurer at that time, Federated Mutual Group [Federated], admitted primary liability and paid various workers’ compensation benefits, including temporary total disability compensation. The employee had been paid less than 104 weeks of temporary total disability benefits when he returned to his regular job with Morrell.
The second work injury was on February 10, 2000. The employee was still working at Morrell at that time. Morrell and its insurer, Mid-Century Insurance Company [Mid-Century], paid workers’ compensation benefits related to the injury, including temporary total disability compensation of less than 104 weeks. The employee then returned to his usual employment.
At the time of the last injury, on March 14, 2007, the employee was working for Commercial Construction Services [Commercial]. The injury was admitted by the employer and its insurer, State Fund Mutual Insurance Company [SFM]. Ultimately, Commercial and SFM paid temporary total disability compensation through May 15, 2009, a period of 104 weeks. Benefits were then discontinued at that point pursuant to the limits set out in the statute. The employee filed no objection to the discontinuance.
The employers and insurers entered into an agreement which was incorporated into a findings and order issued on June 23, 2009. Federated and Mid-Century paid various amounts to SFM as a compromise of SFM’s claim for contribution and reimbursement through March 18, 2009. Medical expenses, wage loss benefits, and other future benefits would be paid as follows: Federated 30%, Mid-Century 20%, and SFM 50%. SFM agreed to be the paying agent for future benefits.
In August 2009, the employee filed a claim petition in which he alleged entitlement to temporary total disability compensation after May 15, 2009, as the result of all three injuries. Mid-Century subsequently filed a motion to dismiss the claim petition. At the hearing on the motion, the parties stipulated:
The employee was paid 104 weeks of temporary total disability from May 21, 2007 through May 15, 2009.
Work injuries on July 17, 1997, February 10, 2000, and March 14, 2007, were all substantial contributing factors in the employee’s disability from May 27, 2007 through May 15, 2009. And, to the extent the employee continues to be temporarily totally disabled from May 15, 2009, forward, that disability is the combined result of the July 17, 1997, February 10, 2000, and March 14, 2007, work injuries.
There is no evidence that specific periods of disability set out in the Claim Petition are the result of specific dates of injury.
The compensation judge granted the motion and dismissed the employee’s claim petition.
The compensation judge concluded that the 2007 work injury was the controlling event for the employee’s disability, citing to Joyce v. Lewis Bolt and Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987). The compensation judge also noted that “this is a case where the disability for which compensation is sought has a blended cause. The employee’s disability is the result of the combined effect of three injuries.” The compensation judge determined the employee was not entitled to more than 104 weeks of temporary total disability compensation.
The employee has appealed.
The limit on temporary total disability compensation is found in Minn. Stat. § 176.101, subd. 1(k), which provides, “temporary total disability compensation shall cease entirely when 104 weeks of temporary total disability compensation have been paid.” The employee was paid 104 weeks of temporary total disability benefits following the 2007 work injury, a period ending on May 15, 2009. The employee claims that he has continued to be temporarily totally disabled and that the 1997 and 2000 work injuries are substantial contributing factors in this continuing disability. As a result, he alleges that he should receive additional temporary total disability compensation for the disability from the 1997 and 2000 insurers, up to a total of 104 weeks for each injury. Under the employee’s reading of the statute, if his temporary total disability continues, he could receive a total of 312 weeks of temporary total disability benefits from all three injuries, including the payments made immediately after the 1997 and 2000 injuries.
The compensation judge dismissed the employee’s claim petition, concluding there was no legal basis for a claim for more than 104 weeks of temporary total disability compensation. The compensation judge relied on Joyce v. Lewis Bolt and Nut Co., id. The compensation judge concluded that the 2007 injury was the controlling event for the employee’s claim and that the employee’s claims were limited to the benefits payable for 2007 injury.
In Joyce, the employee had sustained five work injuries to his low back between 1981 and 1983. The employee had an additional low back injury in 1984 and was paid temporary total disability compensation for disability resulting from all injuries. The employer sought to discontinue those benefits because the employee had reached maximum medical improvement. The employee argued that maximum medical improvement did not apply to his case, as his pre-1984 injuries were substantial contributing factors in his disability and he had a vested right to benefits as established by the law before 1984.
The court identified the “critical issue” as being “the effect of amendment of the workers’ compensation act when a worker injured prior to the amendment sustains another injury after the amendment. . . . It is, then, a basic tenant of workers’ compensation law that the substantive rights of employer and employee are fixed, not by their agreement, but rather by the law in effect on the date of the controlling event. . . . It is the most recent occurrence of a compensable personal injury which is the controlling event, and the law then in effect governs the employee’s rights with respect to the claim arising out of that injury.” Id. 412 N.W.2d at 307, 40 W.C.D. at 213. The court found the 1984 statute to cover the employee’s claim for temporary total disability compensation and benefits were properly discontinued based on a finding of maximum medical improvement.
Subsequently, the court followed and relied on Joyce in deciding Busch v. Advanced Maint., 659 N.W.2d 772, 63 W.C.D. 277 (Minn. 2003). The employee had back injuries in 1990 and 1999 which combined to result in permanent total disability. The issue before the court was whether supplementary benefits under Minn. Stat. § 176.132 were payable under the law in 1990 or were not payable since that provision had been repealed by the time of the 1999 injury. The court remanded the case for determination of whether the 1999 injury was a new separate injury or a temporary aggravation. If the 1999 was a new separate injury, then it became the controlling event and the law in effect in 1999 determined the employee’s entitlement to benefits.
We conclude that neither Joyce nor Busch controls the present case since in both cases there was a change in the law between earlier and later injuries. Joyce and Busch hold that where there has been an amendment to the workers’ compensation statute that changes the rights and obligations of the parties and there are two or more injuries on either side of that amendment, the last injury is the controlling event and the law on the date of that injury is the law which is to be applied. In the present case, however, there has been no change in the law and the law as to the maximum period of temporary total disability compensation is the same for the 1997, 2000, and 2007 injuries.
The employers and insurers cite to this court’s decision in Judd v. Doege Precision Machining, Inc., 62 W.C.D. 177 (W.C.C.A. 2002). The employee had work injuries on September 22, 1995, and September 23, 1998, which resulted in temporary total disability. This court held that the 1998 injury was the controlling event and the employee’s temporary total disability compensation was properly discontinued pursuant to Minn. Stat. § 176.101, subd. 1(k). This section of the statute, added as part of the 1995 amendments, did not take effect until October 1, 1995, and the issue presented in Judd is not the issue before us now, and instead, is the Joyce issue revisited.
Reference is also made to our decision in Carroll v. University of Minn., 63 W.C.D. 46 (W.C.C.A. 2002). In Carroll, the employee had sustained a shoulder injury in 1997 and a foot injury in 1998. The employee was paid 104 weeks of temporary total disability compensation for the foot injury and during that period was also disabled for his shoulder injury for about 6 months. When the employee’s temporary total disability compensation was discontinued because of the 104-week limitation, the employee sought to extend the benefits for the time he was disabled due to the 1997 shoulder injury. This court denied the employee’s claim for extending his benefits from the 1998 injury. There was no evidence that the disability from the 1998 injury was affected by the 1997 injury in any way or that there was any disability from the 1997 injury at the time the 104-week period ended. Further, the employee in Carroll was making no claim against the employer for the 1997 injury. We do not see Carroll as controlling authority in the present case.
Although we have concluded that Joyce and related cases do not provide a rationale for the compensation judge’s decision, we find the decision to be supported by the law and it is affirmed.
The evidence, as stipulated by all parties, does not support the employee’s position. The employee’s disability is due to the combined effects of all three work injuries. There is no evidence that either the 1997 or 2000 injury alone could be considered the sole cause of temporary total disability after May 15, 2009. The employee is disabled from the cumulative effect of three injuries but seeks to impose consecutive liability on each of the injuries. We find such an award to be contrary to the statute. The employee did not become temporarily totally disabled from all three injuries until after the 2007 injury. The statute provides for temporary total disability compensation of up to 104 weeks for an injury. The employee here was paid 104 weeks of temporary total disability compensation for the 2007 injury. The fact that earlier injuries were substantial contributing factors in that disability is a question of contribution and not an issue of additional compensation owed to the employee.
The compensation judge’s decision is affirmed.
 The findings and order followed a hearing in which the employee’s request for surgery was the disputed issue.