SHEILA A. JUDD, Employee/Appellant, v. DOEGE PRECISION MACHINING, INC., and STATE FUND MUT. INS. CO., Employer-Insurer, and JUNO TOOL, INC., and EMPLOYERS INS. OF WAUSAU, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 4, 2002
HEADNOTES
APPLICABLE LAW - CONTROLLING EVENT; TEMPORARY TOTAL DISABILITY. Where the employee sustained two separate, admitted work-related injuries on September 22, 1995 and September 23, 1998, the 1998 injury is the controlling event under Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), and the compensation judge properly held the employee=s right to temporary total disability benefits ceased after 104 weeks of benefits had been paid, and neither employer and insurer were liable for additional temporary total disability under Minn. Stat. ' 176.101, subd. 1(k), effective October 1, 1995.
ATTORNEY FEES - .191 FEES. The compensation judge properly denied the employee=s request for attorney fees pursuant to Minn. Stat. ' 176.191, subd. 1, where the issues before the compensation judge were the employers and insurers= request to discontinue benefits pursuant to Minn. Stat. ' 176.101, subd. 1(k), and the employee=s claim for temporary partial disability benefits and penalties.
Affirmed.
Determined by: Johnson, J., Wilson, J. and Pederson, J.
Compensation Judge: Bradley J. Behr
OPINION
THOMAS L. JOHNSON, Judge
On September 22, 1995, Sheila A. Judd, the employee, sustained injuries to her left and right hands and wrists while employed by Doege Precision Machining, Inc., insured by State Fund Mutual Insurance Company. The employer and State Fund admitted liability for bilateral hand/wrist injuries and paid medical and wage loss benefits.
On September 23, 1998, the employee sustained a second personal injury to her hands and wrists as a result of her employment at Juno Tool, Inc., insured by Employers Insurance of Wausau. In a decision filed December 3, 1999, a compensation judge at the Office of Administrative Hearings apportioned liability for benefits equally between the two employers and insurers. This decision was not appealed.
On October 31, 2000, Juno/Wausau filed a Notice of Intention to Discontinue Benefits [NOID] contending the employee was limited to 104 weeks of temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(k). Doege/State Fund also filed a NOID on or about November 16, 2000. The employee objected to the proposed discontinuance and the case was heard by Compensation Judge Behr by submission of stipulated facts on April 16, 2001. In a Findings and Order filed June 29, 2001, the compensation judge determined Minn. Stat. ' 176.101, subd. 1(k), is the controlling law with respect to the employee=s entitlement to temporary total disability benefits from both employers and insurers. The judge found the employee had been paid 104 weeks of temporary total disability benefits following her September 23, 1998 injury, and allowed both employers and insurers to discontinue payment of temporary total disability benefits. The compensation judge awarded temporary partial disability benefits and penalties and ordered attorney fees withheld from the award under Minn. Stat. ' 176.081, subd. 1. The employee appeals.
DECISION
1. Temporary Total Disability Benefits
Minn. Stat. ' 176.101, subd. 1(k),[1] provides that temporary total disability benefits Ashall cease entirely when 104 weeks of temporary total disability compensation has been paid . . . .@ There is no dispute the employee has received 104 weeks of temporary total disability [TTD] since her September 23, 1998 injury. In reliance on Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the compensation judge concluded neither employer or insurer had any further liability for TTD benefits. The employee agrees Juno/Wausau has no further liability for TTD pursuant to Minn. Stat. ' 176.101, subd. 1(k). She contends, however, the Joyce case is not controlling here, and asserts she remains eligible for TTD benefits from Doege/State Fund.
In the Joyce case, the employee sustained five work-related injuries between August 1981 and October 1983. He sustained a sixth separate work-related injury on June 15, 1984. The employee was temporarily and totally disabled from June 15, 1984 and thereafter as a substantial result of all of his injuries and reached maximum medical improvement [MMI] on January 31, 1985. At issue was the employee=s right to continuing temporary total disability benefits for the pre-1984 injuries.[2] The Minnesota Supreme Court stated:
[I]t 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. If a period of disability is precipitated by a Aconsequential@ injury, a recurrence, or a mere temporary aggravation, which is simply a continuance of an earlier injury, as opposed to a new, separate injury, the original injury continues to be the controlling event, and the employee=s rights are governed by the Workers= Compensation Act in effect on the date of the original injury. If, on the other hand, the employee suffers a new, separate injury, that new injury supersedes the earlier injury as the controlling event, and the law in effect on the date of the new injury supersedes the law in effect at the time of the earlier injury.
Id. at 307-08, 40 W.C.D. at 213-14 (citations omitted).
The employee here sustained two personal injuries, the first on September 22, 1995, and a second personal injury on September 23, 1998. Under Joyce, the 1998 injury is the controlling event and the law in effect on the date of that injury governs the employee=s rights to benefits from both employers and insurers. The employee has been paid 104 weeks of temporary total disability compensation following her second injury. If Minn. Stat. ' 176.101, subd. 1(k), is controlling, the employee has no further entitlement to temporary total disability compensation from either employer or insurer.
The employee argues that under Joyce, her temporary total disability compensation may be discontinued under Minn. Stat. ' 176.101, subd. 1(k), only if she has reached maximum medical improvement from both injuries. The employee contends she has not reached MMI from either injury. Accordingly, the employee argues the compensation judge improperly discontinued temporary total disability benefits. In support of this argument, the employee cites Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), and Heimermann v. Old Dutch Foods, 55 W.C.D. 603 (W.C.C.A. 1996). We find these cases inapplicable.
In the Hammer case, the employee sustained an injury in 1976 and a second injury in 1986. In 1987, the employee was served with an MMI report stating he had reached maximum medical improvement from the effects of the 1986 injury. The second employer and insurer then sought to discontinue temporary total disability benefits. The supreme court held the employee must reach MMI on all compensable injuries before benefits may be discontinued under Minn. Stat. ' 176.101, subd. 3(e) (1984). In the Heimermann case, this court, relying on Hammer, reached the same decision. We conclude neither Hammer nor Heimermann are controlling in the present case. In the case at bar, the discontinuance is sought because the employee has reached the statutory 104-week limitation on temporary total disability benefits. Under Minn. Stat. ' 176.101, subd. 1(k) (1995), Juno Tool/Wausau are liable for a maximum of 104 weeks of temporary total disability compensation. This limitation applies whether or not the employee has reached maximum medical improvement. The Joyce case holds the 1998 injury is the controlling event and the law in effect on that date governs the employee=s rights to benefits. Accordingly, Doege/State Fund also have no further liability for temporary total disability benefits.
The employee further argues that in certain situations, one employer and insurer may have continuing liability for benefits even though another employer and insurer=s liability has ceased by operation of law. Thus, in this case, the employee contends Doege/State Fund continue to be liable for TTD benefits even though the liability of Juno/Wausau has ceased by operation of law. In support of this argument, the employee cites Johnson v. Tech Group, Inc., 491 N.W.2d 287, 47 W.C.D. 367 (Minn. 1992); Warnecke v. Hoerner Waldorf Champion, 33 W.C.D. 654 (W.C.C.A. 1991); and Webeck v. Mochinski General Contractor, 41 W.C.D. 1063 (W.C.C.A. 1989). We conclude these cases are also inapplicable here.
In both the Johnson and Webeck cases, the employee settled all claims with the employer and insurer responsible for the first work-related injury on a full, final and complete basis. Following the settlement, each employee then sustained a second compensable work injury. In the Webeck case, this court held an earlier settlement does not bar a proceeding arising out of a separate and distinct injury occurring after the settlement. In the Johnson case, the court held a settlement covers only those claims or rights specifically mentioned in the agreement. Thus, claims for subsequent injuries are normally not barred by a settlement agreement and the second employer and insurer remain liable for full benefits. In Warnecke, the employee sustained two work injuries. The compensation judge found the statute of limitations had run on the first work-related injury before the claim petition was filed. Accordingly, the second employer and insurer were held liable for payment of the full amount of the employee=s temporary total disability benefits.
In all of these cases, the second employer and insurer were legally liable for payment of benefits to the employee. The issue was whether the second employer and insurer were entitled to some apportionment or offset against its liability by reason of the first injury. In each case, the court held it was not and the second employer and insurer remained liable for all benefits to which the employee was entitled based on the second injury. Thus, an employer and insurer liable for benefits by reason of a second personal injury may not reduce their benefit payments by the percentage of disability attributable to a settled first injury. See Marsolek v. Miller Waste Mills, 244 Minn. 55, 69 N.W.2d 617, 18 W.C.D. 244 (1955). That is not the issue before us now.
Under the Joyce case, the September 23, 1998, personal injury is the controlling event and the law then in effect governs the employee=s rights to benefits. Minn. Stat. ' 176.101, subd. 1(k) (1995), limits an employer and insurer=s liability for temporary total disability benefits to 104 weeks. The compensation judge correctly concluded this statute controls the employee=s rights to temporary total disability benefits. The decision of the compensation judge is affirmed.
2. Attorney Fees
The compensation judge awarded temporary partial disability benefits and penalties and ordered attorney fees withheld under Minn. Stat. ' 176.081, subd. 1. The employee appeals this award contending her attorney should be paid by the employers and insurers under Minn. Stat. ' 176.191, subd. 1. We disagree.
Minn. Stat. ' 176.191, subd. 1, provides that in certain cases involving disputes between two or more employers or insurers regarding liability, a claimant may be awarded a reasonable attorney fee to be paid by the party held liable for the benefits. The issues in this case were whether the employers and insurers could discontinue temporary total disability benefits and the employee=s claims for temporary partial disability and penalties. In a December 3, 1999 unappealed decision, a compensation judge apportioned liability for benefits equally between the two employers and insurers. Accordingly, there was not, in this case, a dispute between the employers and insurers with respect to which was liable to the employee for benefits. The compensation judge properly denied the request for attorney fees under Minn. Stat. ' 176.191, subd. 1.