DEAN LAMPPA, Employee/Appellant, v. UTILITY SYS. OF AM., SELF-INSURED/E.C. FACKLER, Employer, and ST. PAUL UTILITIES CO. and STATE FARM INS. CO., Employer-Insurer, and OPERATING ENG=RS LOCAL 49 HEALTH & WELFARE FUND and MN DEP=T OF ECONOMIC SEC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 15, 2003

 

HEADNOTES

 

PRACTICE & PROCEDURE - REMAND.  Where the compensation judge failed to address a disputed factual issue in his decision on remand, remand was again required for resolution of that issue.  It is not the Workers= Compensation Court of Appeals= function to make factual determinations in the first instance.

 

Reversed and remanded.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  Donald C. Erickson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision on remand denying his claim for benefits allegedly due as a result of a January 23, 1995, cervical injury.  Because the judge failed to make the necessary findings on this issue, we must again reverse and remand the matter for reconsideration.

 

BACKGROUND

 

The facts relevant to the current appeal may be briefly stated.^[1]  In February of 1991, the employee sustained a neck injury in a motor vehicle accident in Florida.^[2]  Later that year, in August of 1991, he underwent a discectomy at C6-7 to treat left-sided symptomology that resulted from a herniated disc at that level.  Subsequently, on January 23, 1995, the employee sustained another injury to his cervical spine, this time producing right arm symptoms, in the course and scope of his employment with Utility Systems of America [Utility Systems].  Within a few weeks of this injury, in early February of 1995, the employee underwent a discectomy and fusion at C5-6, the level above his earlier surgical procedure.  While still off work following the second surgery, the employee fell ten feet from a ladder to a concrete floor, after which he experienced low back and leg symptoms as well as mainly left-sided neck symptoms.  The employee was later awarded benefits for an 11.5% whole body impairment as a result of the 1995 work injury.

 

The employee eventually obtained a job with St. Paul Utilities Company [St. Paul Utilities], where he worked for more than a year before he was essentially terminated, for apparent narcotic abuse, in June of 1998.  About six weeks later, on July 31, 1998, the employee underwent a discectomy with fusion at C6-7, the cervical level originally treated following the 1991 Florida accident.  Following this procedure, the employee obtained part-time work as a security guard and was declared eligible for social security disability benefits.

 

The hearing most relevant to the current appeal took place on March 27, 2001, to determine the employee=s entitlement to various benefits allegedly due as a result of the employee=s 1995 cervical injury with Utility Systems and/or a Gillette-type injury^[3] of June 17, 1998, allegedly sustained in the course and scope of the employee=s employment with St. Paul Utilities.  Numerous sub-issues were also raised, including notice of injury, maximum medical improvement, permanent partial disability, and apportionment.  The record from this hearing is extensive and includes the employee=s voluminous treatment records, from his low back condition as well as his neck condition, together with reports from Drs. John Dowdle, Kassamali Jamel, Richard Golden, and Paul Wicklund.

 

In a decision issued on May 29, 2001, the compensation judge determined that the employee had not sustained a Gillette injury in the course and scope of his employment with St. Paul Utilities, and the judge also denied the employee=s claim for benefits from Utility Systems.  The employee appealed, and this court reversed the judge=s decision and remanded the matter for reconsideration as to whether the employee had sustained a Gillette injury and as to whether the employee=s 1995 injury was a substantial contributing cause of the employee=s need for the 1998 fusion surgery and his subsequent disability.  We also noted that it might be necessary for the judge to address some of the numerous sub-issues raised at the prior hearing, depending on the judge=s basic liability decisions.

 

On August 29, 2002, after submission of memoranda and proposed findings by the parties,^[4] the compensation judge issued his decision on remand, again denying the employee=s claims in their entirety.  The employee again appeals.

 

DECISION

 

In remanding the matter following the employee=s last appeal, we directed the compensation judge to reconsider the employee=s Gillette injury claim in light of the medical evidence and to explain the basis of his decision.  The judge fully complied with our request as to this issue and, after substantial explanation of his evaluation of the competing medical opinions, he again denied the employee=s Gillette injury claim against St. Paul Utilities.  The employee has not appealed from the judge=s decision on this issue.  He contends, however, that the judge again failed to make findings necessary to resolve the employee=s claim that his 1995 cervical injury with Utility Systems substantially contributed to his need for fusion surgery in 1998 and his subsequent disability.  After careful review of the judge=s decision on remand, we agree.

 

In our previous decision, we wrote as follows with regard to the judge=s decision as to the employee=s claim against Utility Systems for benefits allegedly due as a result of his 1995 injury:

 

As far as we can ascertain from [his] brief conclusions, the compensation judge misunderstood the employee=s claim.  As indicated above, the employee=s probable abuse of pain medication as of June 1998 has no particular relevance to liability for the employee=s neck surgery the following month.  Furthermore, the fact that the 1995 work injury may have produced primarily right-sided symptoms in the past simply has nothing to do with the question of [Utility Systems=^[[5]]] liability for the 1998 fusion surgery and the employee=s subsequent disability.  It was the employee=s contention that the 1995 fusion surgery at C5-6, necessitated by the 1995 work injury, caused additional deterioration at C6-7, substantially contributing to the employee=s need for the 1998 fusion procedure.  At least two experts found the 1995 injury substantially responsible, and Dr. Wicklund explained the causation theory in some detail in his deposition.  Not only did the compensation judge fail to discuss the medical opinions on this issue, but his decision fails to address the employee=s theory of the case.  We therefore reverse and remand for reconsideration of this issue as well.

 

(Emphasis in original.)  Unfortunately, as even Utility Systems essentially concedes, the compensation judge simply failed to determine this issue on remand, other than, in his order, by

dismissing the employee=s claim petitions.^[6]

 

Both the employee and Utility Systems suggest that a decision as to Utility Systems= liability may be made by this court on appeal, without the need for another remand, and we understand their desire to avoid further delay.  However, the parties argue, predictably, for opposite results.  The issue is purely factual, and it is not this court=s function to make factual determinations in the first instance.  Therefore, we reluctantly conclude that the matter must be remanded once again for the findings contemplated by our prior decision.  The primary question remaining for determination is whether the employee=s 1995 injury and resulting fusion surgery at C5-6 substantially contributed to the employee=s need for surgery at C6-7 in 1998, and we reiterate that the location of the employee=s symptoms leading to the 1998 surgery, whether right-sided or left, is completely irrelevant to this medical causation question.  Furthermore, we emphasize that evidence establishing a causal connection between the employee=s 1991 Florida injury and the 1998 surgery does not preclude a finding that the employee=s 1995 work injury with Utility Systems also substantially contributed to the employee=s need for the 1998 procedure and his subsequent disability.  An employee need not prove that a work injury is the sole cause of his disability, see, e.g., Swanson v. Medtronics, 443 N.W.2d 534, 42 W.C.D. 91 (W.C.C.A. 1989), and the fact that the 1991 injury may have predisposed the employee to further problems at C6-7 does not mean that the C5-6 fusion performed to treat the 1995 injury did not cause, aggravate, or accelerate the employee=s need for the 1998 fusion.  Finally, again, if the judge finds in the employee=s favor on the medical causation question, there may be additional issues that must be resolved in connection with specific benefit claims.