WILLIAM GIESBRECHT, Employee, v. INTERPLASTIC CORP., and CNA COMMERCIAL INS., Employer-Insurer/Appellants, and INTERPLASTIC CORP., and MIGA/GAB ROBINS, INC., Employer-Insurer, and GREAT WEST INS. CO., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 6, 2003

 

HEADNOTES

 

GILLETTE INJURYBDATE OF INJURY.  Substantial evidence, including the employee=s testimony and expert medical opinion, supports the compensation judge=s determination of the culmination date for the employee=s Gillette injury.

 

CAUSATIONBGILLETTE INJURY.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s work activities from October 1, 2000, through October 13, 2000, represented a substantial contributing cause of the employee=s Gillette injury.

 

ATTORNEY FEES.  Where there is a pending claim for .191 fees, the primary dispute in the matter was apparently which insurer was liable for the employee=s work injury, and it is not clear whether there was a dispute over entitlement to benefits, the award of contingency fees is vacated and the matter referred for further proceedings on the employee=s attorney=s petition for fees pursuant to Minn. Stat. ' 176.191.

 

Affirmed in part and vacated in part.

 

Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Joan G. Hallock

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and CNA Commercial Insurance appeal the compensation judge=s finding that the employee=s work-related Gillette[1] injury culminated on October 13, 2000, and that the employee=s work activities from October 1, 2000, through October 13, 2000, were a substantial contributing cause of the employee=s Gillette injury.  We affirm in part and vacate in part.

 

 

BACKGROUND

 

William Giesbrecht, the employee, began working as a dispersion operator for Interplastic Corporation, the employer, in 1987.  The employee=s job required him to operate a large cowl, or mixer, by moving 55 gallons drums of resin to the cowl with a dolly, using a chain hoist to raise the drum, and emptying it into the cowl.  The drums weighed 550 to 600 pounds, and he  moved 36 to 40 drums per day.  The employee also added bags of powder to the cowl, which required lifting 25 to 50 pound bags of powder onto a pallet then loading them into the mixer.  Each batch required about 80 bags of powder, and the employee made three to four batches a day.  The employee testified that this was a very physical job that required a great deal of bending, lifting carrying and repeated stair climbing.  He also testified that although he performed his job with the assistance of a partner until 1995,  that co-worker resigned in 1995 and was not replaced, so the employee since has performed most of his job tasks alone.

 

Reliance Insurance Company insured the employer for workers= compensation liability through September 30, 2000.  From October 1, 2000, through January 15, 2001, CNA Commercial Insurance (CNA), was the employer=s workers= compensation insurer.

 

In late September 2000, the employee experienced soreness in his left knee, which subsided without any treatment or any loss of time from work.  The employee continued to work his regular job and did not alter his work duties in any way, and between October 1 and 13, 2000, he worked overtime hours, as he had done in the past.  In October, 2000, the employee subsequently developed left hip and buttock pain, which he described as a burning pain just below his belt line on the left side.  The employee first experienced these symptoms on approximately October 3, 2000.  On October 13, 2000, the employee sought treatment from Dr. Craig Svendsen for his left hip and buttock pain, reporting an onset of left knee pain approximately three weeks ago and that over the past ten days his left knee pain had subsided but his pain now had focused in his left hip.  The employee continued working at his regular job.  On October 18, 2002, Dr. Svendsen reexamined the employee, who reported no relief in his symptoms, and referred the employee to Dr. David Palmer for an orthopedic evaluation.  Dr. Palmer diagnosed an L5-S1 degenerative facet joint.  On the basis of the employee=s ongoing symptoms, Dr. Svendsen referred the employee to Summit Orthopedics for evaluation. 

 

Dr. Jack Bert examined the employee on October 30, 2000; the employee reported an onset of left-sided leg and hip pain approximately two to three weeks earlier.  Dr. Bert recommended an MRI scan of the low back to evaluate the employee=s symptoms.  The MRI, taken on November 10, 2000,  indicated a disc protrusion at the L4-5 vertebral level effacing the L4 nerve root, a right-sided protrusion at L5-S1 abutting the right S1 nerve root, bulging and spurring at L3-4, and facet arthritis at L5-S1 with mild right lateral recess stenosis.  At Dr. Bert=s recommendation, the employee consulted Dr. Paul Hartleben, orthopedic surgeon, who recommended transforaminal epidural steroid injections at the L4-5 vertebral level.  The employee underwent two injections, but reported that these injections did not alleviate his symptoms.

 

On January 9, 2001, the employee gave notice of his injury to his employer.  The employer sent a first report of injury to CNA on February 1, 2001, and another first report of injury to Reliance Insurance Company on February 16, 2001.  Both insurers denied liability, alleging that the injury did not occur during their period of coverage.  CNA filed a petition for a temporary order, which was granted on March 5, 2001, and commenced paying benefits to and on behalf of the employee.

 

In the meantime, the employee consulted further with Dr. Hartleben, who recommended an L4-5 microdiscectomy procedure.  On March 8, 2001, the employee underwent surgery in the nature of a left L4-5 laminotomy, with lateral disc excision microscopy technique, and was restricted from work following the surgery.

 

Dr. Robert Barnett reviewed the employee=s medical records at CNA=s request on April 30, 2001.  Dr. Barnett opined that the employee=s Gillette injury culminated in September 2000 with the onset of leg symptoms and that the employee=s work activities from October 1, 2000, through October 13, 2000, during CNA=s period of coverage, did not represent a substantial contributing cause of the employee=s condition.  Dr. Barnett also evaluated the employee on November 8, 2002, and did not change his opinions concerning the onset of the employee=s symptoms being in September 2000.

 

On June 16, 2001, the employer and CNA filed a petition for contribution and/or reimbursement and joinder, seeking reimbursement from Reliance Insurance for wage loss benefits paid to the employee and medical expenses paid on his behalf, and also seeking joinder of Reliance Insurance to the claim.  The petition for joinder was granted.

 

The employee was evaluated by Dr. Richard Strand at Reliance Insurance Company=s  request on October 2, 2001.  Dr. Strand determined that the employee had developed two different conditions, his left knee and his left buttock/hip pain, and found no correlation between the employee=s left knee symptoms and his low back condition.  Dr. Strand concluded that the employee=s buttock and hip pain, which the employee first noticed on approximately October 3, 2000, was related to foraminal stenosis at the L4-5 and L5-S1 vertebral levels.  He further noted that the first time the employee Awas symptomatic enough to receive treatment was October 13^th.@  Dr. Strand opined that  the employee=s work activities from October 3, 2000, through October 13, 2000, significantly contributed to his radicular symptoms

 

On December 3, 2001, apparently upon recommendation from his qualified rehabilitation consultant, the employee consulted Dr. Timothy Garvey to obtain a second opinion concerning surgery.  The employee reported that his surgery in March 2001 had not provided any significant relief, and that he continued to experience left leg and buttock pain.  By March 2002, the employee reported worsened low back and leg pain; Dr. Garvey recommended revision decompression and stabilization at the L4-5 level to treat the foraminal narrowing and to treat the collapsed disc space.  Dr. Garvey performed surgery on March 8, 2002, in the nature of revision decompression with complete L4 hemilaminectomy, wide foraminectomy at L4-5, L4-5 TLIP interbody fusion, L4-5 posterolateral arthrodesis on the right, and L4-L5 segmental fixation with TSRH pedicle screw fixation.  The employee remained off work until October 21, 2002, and then returned to work for the employer on a part-time, light-duty basis.  At the time of the hearing held on December 11, 2002, Dr. Garvey had restricted the employee from work between December 9, 2002, and January 9, 2003, due to worsening symptoms, and anticipated that the employee could return to work on a light-duty basis thereafter.

 

In late 2001, following Reliance Insurance Company=s declaration of insolvency, the  Minnesota Insurance Guaranty Association (MIGA) took over handling of claims for Reliance.  In May 2002, the employer and MIGA filed a motion to dismiss the petition for contribution and/or reimbursement, claiming that the Office of Administrative Hearings lacked subject matter jurisdiction for a reimbursement claim against MIGA under Minn. Stat. ' 60C.  The employee and the employer and CNA objected to the motion for dismissal.  MIGA=s motion to dismiss the petition for contribution and/or reimbursement was later denied.

 

In the meantime, on June 21, 2002, the employee filed a claim petition directly against the employer and both insurers, CNA and Reliance/MIGA, claiming temporary total disability benefits and permanent partial disability benefits.  On November 14, 2002, the claim petition was consolidated with the petition for contribution. MIGA appealed from the denial of its motion to dismiss the petition for contribution and/or reimbursement; CNA later withdrew its petition for contribution against MIGA.  The only remaining claim at the Office of Administrative Hearings, therefore, was the employee=s claim petition; that petition was addressed at a hearing on December 11, 2002. 

 

In Findings and Order served and filed on February 13, 2003, the compensation judge found that the date of the employee=s Gillette injury was October 13, 2000, and that the employee=s work activities from October 1, 2000, through October 13, 2000, during CNA=s coverage, represented a substantial contributing cause of the employee=s Gillette injury.  The employer and CNA appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (1998).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id.

 

DECISION

 

The compensation judge found that the employee sustained a Gillette injury which  culminated on October 13, 2000.  She also found that the employee=s two weeks of work for the employer between October 1-13, 2000, while CNA was on the risk for workers= compensation liability, was a substantial contributing cause of the employee=s Gillette injury.  The employer and CNA appeal, arguing that the compensation judge=s findings are not supported by substantial evidence.

 

A Gillette injury is a result of repeated trauma or aggravation of a preexisting condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 111-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  A finding as to a Gillette injury is primarily dependent on the medical evidence.  See Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 465 (Minn. 1994), citing Marose v. Maislin Transp., 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).  A Gillette injury does not necessarily culminate on the day the employee is disabled from work; other Aascertainable events@ can be used to reasonably infer an earlier culmination date.  Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984).  In certain circumstances, the date of disability may be determined by the date an employee can no longer do the work or when the work is altered because of symptoms.  See Johnson v. Brown and Bigelow, slip op. (W.C.C.A. July 22, 1994).  Selection of a date of injury of a Gillette injury is not a medical decision, however, but a question of fact to be determined by the compensation judge.  Ellingson v. Western Insurance Co., 42 W.C.D. 565, 574 (W.C.C.A. 1989). 

 

Generally, the last employer and insurer on the risk are deemed liable for Gillette injuries, but Athis rule is subject to the finding that during the last period of employment the work duties performed by the employee must have been a substantial contributing factor to the employee=s disability.@  Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726, 728 (W.C.C.A. 1987). A[I]mposition of liability on the last insurer is not automatic but must rest on proof connecting the employee=s disability to the employee=s job duties during that insurer=s period of coverage.@  Crimmins v. NACM No. Central Corp., 45 W.C.D. 435, 439 (W.C.C.A. 1991), summarily aff=d, (Minn. Nov. 26, 1991).

 

The employer and CNA argue that the employee=s injury culminated in September 2000 when the employee first noted left leg symptoms, that the employee=s work activities leading up to September 2000 represented a substantial contributing cause of the employee=s low back condition, and that the compensation judge=s finding of a Gillette injury culminating on October 13, 2000, is not supported by substantial evidence of record.  The employer and CNA assert that the employee=s first onset of symptoms in his left knee in September 2000 is the crucial ascertainable event, that the employee=s Gillette injury culminated at that time, and that the insurer at that time is liable for payment of benefits to which the employee is entitled as a result of that injury.  

 

In this case, the employee=s left knee pain began in September 2000, but subsided without treatment.  The employee lost no time from work, and he continued working his regular job, which required strenuous physical activity, with no alteration of his job duties.  The employee testified that he first noted left hip, buttock and low back pain on approximately October 3, 2000.  He described this pain as a Aterrible burning sensation in [his] back,@ on the left side and in his left hip area.  The employee=s job duties at that time were very strenuous and continued without alteration after he first noted those symptoms; no changes were made in the employee=s job duties from October 1, 2000, through October 13, 2000.  After his symptoms began in early October, the employee noticed a progression of symptoms during his work day and work week, and testified that by the end of a work day he could hardly walk.  For example, he testified that the burning and aching symptoms were so great that he no longer dared to walk to the garbage can outside the employer=s building for fear he would be unable to walk back.  Dr. Strand concluded that the employee=s knee condition that became symptomatic in September 2000, and which he diagnosed as chrondromalacia of the patella and early degenerative arthritis, represented a separate condition from his lumbar spine condition.  Dr. Strand concluded, therefore, that the employee=s leg symptoms in September 2000 were unrelated to his later-diagnosed low back condition.

  

The employer and CNA argue that Dr. Strand erroneously concluded that the October 3, 2000, left hip pain was the first manifestation of the employee=s L-4 nerve root condition.  They rely on the opinions of other treating and consulting physicians who determined that the employee=s L-4 nerve root condition first manifested itself in September 2000, with the onset of left leg pain.

 

While there was conflicting medical testimony regarding whether the employee=s Gillette injury culminated on October 13, 2002, and whether his work activities from October 1, 2000, through October 13, 2000, substantially contributed to his injury, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Dr. Strand had sufficient foundation for his opinion, and the compensation judge could reasonably rely on that opinion as opposed to the conflicting medical opinions in the record.  Dr. Strand=s opinion, in addition to the employee=s testimony, provides adequate support for the compensation judge=s conclusion that the employee=s work activities between October 1 and 13, 2000, substantially contributed to the employee=s Gillette injury and that the employee=s Gillette injury to his lumbar spine culminated on October 13, 2000, not in September 2000, and we therefore affirm.

 

Award of Attorney Fees

 

Because CNA had paid ongoing benefits and expenses under a temporary order, there were no outstanding benefits claimed by the employee at the hearing.  Therefore, the compensation judge=s orders for payment were limited to an order that the employer and CNA pay the employee=s taxable costs and disbursements, contingent attorney fees pursuant to Minn. Stat. ' 176.081, subd. 1, and partial reimbursement of attorney fees pursuant to Minn. Stat. ' 176.081, subd. 7.  As to the attorney fees awarded, the compensation judge stated, at Order No. 3,

 

3.  IT IS FURTHER ORDERED that from the benefits awarded to the employee, the employer and insurer shall withhold and pay to Attorney Ludwigson statutory attorney=s fees pursuant to Minn. Stat. ' 176.081, Subd. 1.  Reimbursement of attorney=s fees shall also be paid by the employer and CNA pursuant to Minn. Stat. ' 176.081, Subd. 7, if attorney=s fees exceed $250.00.

 

However, it is unclear from the record whether CNA has withheld any attorney fees from benefits already paid to the employee, and it is unclear from what benefits the compensation judge intended to have fees withheld. 

 

Upon review of this matter, therefore, this court notes that an issue exists of whether the attorney fees awarded by the compensation judge were correctly ordered payable as contingency fees, to be deducted from benefits paid to the employee pursuant to Minn. Stat. ' 176.081, subd. 1, or whether those fees instead are payable by CNA, pursuant to Minn. Stat. ' 176.191, subd. 1, based upon a dispute between insurers concerning liability.  Although none of the parties have raised this issue on appeal, this court has continuing jurisdiction over the issue of attorney fees and we therefore address this issue.  See Minn. Stat. ' 176.081, subd. 3.[2] 

 

Minn. Stat. ' 176.191, subd. 1, provides for payment of benefits under a temporary order when an employee is entitled to payment of benefits but there remains a dispute over which employer and/or insurer is liable for such payment.[3]  In this case, CNA petitioned for a temporary order, agreeing to pay benefits to the employee.  Under the temporary order that was issued in March 2001, CNA paid ongoing wage loss benefits, medical expenses and rehabilitation expenses to and on behalf of the employee.  Minn. Stat. ' 176.191, subd. 1, also provides for payment of attorney fees to an employee when the primary dispute is which employer and/or insurer is liable for payment of benefits.  Such fees are to be paid by the party held liable for the benefits.  See Patnode v. Lyon's Food Prods., Inc., 251 N.W.2d 692, 693, 29 W.C.D. 392, 394 (Minn. 1977).  Minn. Stat. ' 176.081, subd. 1, provides for payment of contingent attorney fees in cases where there is a dispute over the employee=s entitlement to benefits.[4]

 

The issues identified by the compensation judge were whether the employee was injured on September 30, 2000, when Reliance Insurance Company/MIGA was on the risk, or on October 13, 2000, when CNA was on the risk, and whether the work activities from October 1, 2000, to October 13, 2000, were a substantial contributing case of the employee=s injury and subsequent disability.  It appears, therefore, and the employee contends, that the primary dispute was over which insurer was liable for the employee=s injury.[5]

 

However, it is unclear from the record whether a dispute existed as to the employee=s entitlement to benefits.  As a result, it is unclear whether attorney fees are to be paid on a contingent fee basis, pursuant to Minn. Stat. ' 176.081, subd. 1.  We therefore vacate the compensation judge=s order No. 3, and refer the issue of payment of attorney fees to the Office of Administrative Hearings for review in conjunction with the outstanding attorney fee petition.