CHESTER W. HOCKMAN, Employee, v. METAL-MATIC and AETNA CASUALTY/ TRAVELERS INS. CO., Employer-Insurer/Appellants, and ACSS and CNA/RSKCO, Employer-Insurer/Cross-Appellants, and HANNON SEC. SERVS. and WESTERN NAT=L MUT. INS. GROUP, Employer-Insurer, and CBM/RISCOMP, SELF-INSURED, adm=d by BERKLEY RISK ADM=S CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2004

 

No. WC04-137

 

HEADNOTES

 

APPORTIONMENT - PERMANENT PARTIAL DISABILITY.  Where the employee=s single, post-1984 permanency rating arose from the cumulative effect of multiple injuries and surgeries to the low back between 1971 and 1996 and the rating applied only to new, not previously rated disc levels in the lumbar spine, the compensation judge did not err in applying principles of equitable apportionment to determine liability for payment between multiple employers and insurers.

 

APPORTIONMENT - COMPENSATION RATE; APPORTIONMENT - SPECIAL COMPENSATION FUND.  The liability of an employer and insurer for permanent partial disability must be computed based upon the compensation rate in effect at the time of injury.  Where the Special Compensation Fund accepted second fund liability for the 1973 injury, no apportionment may be made against the employer and insurer for that injury pursuant to Koski v. Erie Mining Co., 223 N.W.2d 470, 27 W.C.D. 121 (Minn. 1973).  The case is, accordingly, remanded for redetermination of the amount of contribution owed by the appellant and the Special Compensation Fund.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the expert opinions of Dr. Cederberg and Dr. Gedan, supports the compensation judge=s determination that the employee did not sustain a work-related injury on October 8, 2001.

 

CAUSATION  - TEMPORARY AGGRAVATION.  Substantial evidence supports the compensation judge=s finding the employee=s May 31, 1992 personal injury was a temporary aggravation of a pre-existing condition that did not contribute to the employee=s disability or need for medical treatment after August 9, 1996.

 

Affirmed in part, reversed in part and remanded.

 

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

Compensation Judge: Paul D. Vallant

 

Attorneys:  Richard C. Pranke, John G. Ness & Assocs., St. Louis Park, MN, for the Appellants.  Thomas F. Coleman and Ted A. Johnson, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Cross-Appellants.  James Michael Gallagher, James Michael Gallagher & Assocs., Bloomington, MN, for the Respondent Employee.  Dianne Walsh and Alison K. Marwitz, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondent Hannon/Western Nat=l.  Richard Riemer, Erstad & Riemer, Minneapolis, MN, for the Self-Insured Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

Metal-Matic/Travelers appeal the compensation judge=s order that they pay two-thirds of the 24 percent whole body disability benefits awarded by the compensation judge.  ACSS/CNA cross-appeal the finding that the May 31, 1992, injury was a temporary aggravation of the employee=s pre-existing condition and the finding that the employee did not sustain a personal injury on October 8, 2001.  We affirm, in part, reverse, in part, and remand.

 

BACKGROUND

 

Chester W. Hockman, the employee, sustained personal injuries to his lumbar spine on September 29, 1971, and May 24, 1973, while working for Metal-Matic, then insured by Aetna Casualty, now Travelers Insurance Company.  Metal-Matic/Travelers paid 61.7 weeks of temporary total disability benefits to the employee as a result of the 1971 injury, and paid the then statutory maximum of 350 weeks of temporary total disability consequent to the 1973 injury.  They further paid the employee for a 38 percent permanent partial disability of the spine.

 

The employee was hospitalized in 1971 for complaints of low back and right leg pain.  A lumbar myelogram revealed a herniated disc at L4-5 on the right, and the employee underwent an L4-5 laminectomy in January 1972.  The employee was again hospitalized for low back pain in May and September 1972, prior to undergoing a second laminectomy at L4-5 on September 29, 1972.  Following the 1973 personal injury, the employee ultimately underwent a 2-level fusion surgery from L4 through S1.  Thereafter, the employee was rated for a 55 percent permanent partial disability of the spine, and did not return to work until approximately 1982.

 

In 1984, the employee, Metal-Matic/Travelers and the Special Compensation Fund entered into a stipulation for settlement.  Among other things, the employee closed out permanency claims to the extent of 55 percent permanent partial disability of the spine, and the Special Compensation Fund accepted second-injury fund liability for the May 24, 1973 injury.  An Award on Stipulation was filed on April 12, 1984.

 

On May 31, 1992, the employee sustained a personal injury while working for CBM/Riscomp Industries, then self-insured with claims administered by Berkley Risk Administrators Company.  The employee saw Dr. Paul J. Crowe who obtained x-rays, diagnosed a fracture of the lamina of L4, and took the employee off work.  Dr. Crowe rated a 3.5 percent whole body disability secondary to the 1992 injury.  See Minn. R. 5223.0070, subp. 1.A.(2).  The employee saw Dr. Richard Salib in 1993, who concluded the employee had not sustained an L4 fracture.  The doctor diagnosed degenerative disc and facet disease at L3-4, and prescribed physical therapy.  A CT scan in September 1993, showed a solid fusion at L4-5 and L5-S1 with moderate to marked degenerative changes at L3-4 with a spondylolisthesis of L3 on L4 and mild spinal canal narrowing.

 

In February 1996, the employee and CBM/Berkley. entered into a stipulation for settlement regarding the May 31, 1992, injury.  The employee claimed entitlement to the 3.5 percent permanent disability rated by Dr. Crowe and payment of medical expenses.  The employer contended the injury was a temporary aggravation of the employee=s pre-existing condition which fully resolved.  In the settlement, the employer made certain payments to, and on behalf of, the employee but maintained its defense that the 1992 injury was a temporary aggravation of a pre-existing condition.

 

On August 9, 1996, the employee sustained another personal injury to his low back while employed by ACSS, insured by CNA/RSKCo.  The employee saw Dr. Gfrerer complaining of an onset of low back pain while pushing a cart loaded with computer monitors at work.  The doctor diagnosed a flare-up of lumbar pain with a history of fusion and recommended an occupational medicine consultation.  The employee saw Dr. James Lee in September 1996, complaining of low back pain radiating into both thighs and legs with intermittent numbness of the left great toe.  The doctor diagnosed chronic low back pain with radicular pain, but opined the employee was not a candidate for repeat surgery despite his severe pain.  The doctor prescribed physical therapy.  An MRI scan in September 1998, demonstrated degenerative disc disease at L2-3 and L3-4 with moderate pinching of the nerves at the same levels.  Following a discogram, which indicated abnormal morphology at L2-3 and L3-4, Dr. Manuel R. Pinto recommended surgery.  On March 9, 1999, Dr. Pinto performed an anterior-posterior fusion at L2-3 and L3-4 with bone grafts and the insertion of hardware.  In June 1999 and February 2000, Dr. Pinto again operated on the employee to remove the hardware.

 

By report dated July 5, 2000, Dr. Pinto opined the employee had reached maximum medical improvement.  The doctor rated the employee with a 24 percent whole body disability.  This permanency rating was calculated as seven percent permanent disability for spondylolisthesis at the L3-4 level,^[1] seven percent permanency for an additional level of disc degeneration with an annular tear,^[2] and ten percent permanency for the two-level fusion at L2-3 and L3-4.^[3]  ACSS/CNA paid the employee for the 24 percent permanent disability rating.

 

On October 8, 2001, the employee was working for Hannon Security Services, insured by Western National Mutual Insurance Group.  The employee testified that on that date he was lifting a heavy metal bar when he felt a pop in his low back and developed severe low back and leg pain.  The employee saw Dr. Pinto on October 11, 2002, complaining of progressively increased low back pain radiating into his legs, but made no mention of any work injury.  The employee, however, testified he told Dr. Pinto about his October 8, 2001 work injury.  The doctor ordered another MRI scan which showed no change as compared to the scan on May 29, 2001.  A discogram caused 10/10 nonconcordant back pain at L1-2 with abnormal disc morphology.  The employee also filed a First Report of Injury with his employer.  On February 7, 2002, Dr. Pinto recorded the employee=s contention that his current back pain was related to a work injury when he lifted a steel bar in July, 2001.  A discogram in September 2002, at L1-2 showed progressive disc degeneration since the discogram of December 31, 2001.  A lumbar MRI scan in November 2003, was unchanged compared to the previous study of October 23, 2001.  Dr. Pinto recommended another fusion surgery at L1-2.

 

On January 30, 2003, Dr. Gary Wyard examined the employee at the request of CBM/Berkely.  The doctor obtained a history from the employee, reviewed his medical records, and performed a physical examination.  Dr. Wyard=s diagnosis was multiple back surgeries with lumbar

fusions from L2 to the sacrum, disc degeneration, and transitional pain at L1-2.  The doctor opined the L1-2 diagnosis was new since October 8, 2001.  For the period August 9, 1996, through October 7, 2001, the doctor apportioned liability for the employee=s disability and medical treatment equally among the injuries of 1971, 1973, 1992 and 1996.  Dr. Wyard opined the October 8, 2001 injury was significant because there were significant changes on the discogram showing abnormal morphology at L1-2 after that injury.  From and after October 8, 2001, Dr. Wyard apportioned liability for the employee=s disability, and medical expenses, 50 percent to the 2001 injury, and 122 percent to the 1996, 1992, 1973 and 1971 injuries.

 

Dr. Joel Gedan examined the employee on May 16, 2003, at the request of Hannon/Western.  Dr. Gedan obtained a history from the employee, reviewed his medical records, and performed a physical examination.  The doctor concluded the employee did not sustain a personal injury on October 8, 2001, because the medical records did not indicate any acute change after October 8, 2001.  Dr. Gedan apportioned responsibility for the employee=s disability, 20 percent to the 1971 injury, 25 percent to the 1973 injury, five percent to the 1992 injury, and 50 percent to the 1996 injury. 

 

Dr. Paul A. Cederberg examined the employee on November 10, 2003, at the request of Metal-Matic/Travelers.  Dr. Cederberg also obtained a history from the employee, reviewed his medical records, and performed a physical examination.  The doctor diagnosed recurrent lumbar disc strains, with multi-level degenerative disc disease.  Dr. Cederberg opined the employee=s 1971 and 1973 injuries involved the L4-5 disc and did not affect the L1-2 disc.  Accordingly, the doctor concluded, neither the 1971 nor the 1973 injury was a substantial contributing factor to the employee=s disability and need for medical treatment after October 8, 2001.  The doctor opined the 1992 injury was not a substantial contributing cause to the employee=s need for medical treatment after October 8, 2001.  Dr. Cederberg opined the 1996 injury was a substantial contributing cause of the employee=s need for medical treatment, but opined the October 2001 injury was not a substantial contributing cause to the current disability.  Accordingly, Dr. Cederberg apportioned 100 percent of the liability for the employee=s disability and need for medical care to the August 13, 1996, injury.

 

The employee filed a Medical Request in December 2002, seeking approval for a lumbar spine fusion surgery.  ACSS/CNA filed a motion for joinder and a petition for contribution against the other three employers and insurers seeking reimbursement of the medical and  rehabilitation expenses paid and the 24 percent  whole body disability benefits paid to the employee.  At the hearing before the compensation judge, the issues included: (1) the nature and extent of the employee=s work injuries of September 29, 1971, May 24, 1973, May 31,1992, and August 9, 1996; (2) whether the employee sustained a work injury on October 8, 2001, and the nature and effect of that alleged injury; (3) whether the proposed lumbar fusion surgery was reasonable and necessary; (4) whether the work injuries of September 29, 1971, May 24, 1973, May 31, 1992, and August 9, 1996, and the alleged injury of October 8, 2001, were substantial contributing causes to the need for surgery; and (5) whether ACSS/CNA was entitled to contribution or reimbursement, and to what extent. 

 

In a Findings and Order filed September 3, 2004, the compensation judge found the employee sustained permanent injuries to his low back on September 29, 1971, May 24, 1973, and August 9, 1996.  The judge found the employee sustained a temporary aggravation of his pre-existing low back condition on May 31, 1992.  The judge found the employee did not sustain a personal injury on October 8, 2001.  The judge found the lumbar fusion surgery proposed by Dr. Pinto was not reasonable or necessary.  Finally, the compensation judge found the injuries of September 29, 1971, May 24, 1973, and August 19, 1996, were each equally liable for the benefits paid by ACSS/CNA.  Metal-Matic/Travelers appeal the compensation judge=s order that they pay two-thirds of the 24 percent whole body disability benefits awarded by the compensation judge.^[4]  ACSS/CNA cross-appeal the finding that the May 31, 1992, injury was a temporary aggravation of the employee=s pre-existing condition and the finding that the employee did not sustain a personal injury on October 8, 2001.

 

DECISION

 

1.  Apportionment of Permanent Partial Disability.

 

Dr. Pinto rated a 24 percent permanent partial disability of the whole body.  ACSS/CNA paid the employee for this permanent disability.^[5]  The compensation judge ordered Metal-Matic/Travelers to reimburse ACSS/CNA for two-thirds of the permanency payment made to the employee.  Metal-Matic/Travelers contend this order is legally erroneous because the compensation judge improperly used equitable apportionment rather than statutory apportionment under Minn. Stat. ' 176.101, subd. 4a.  Metal-Matic/Travelers further argue that in the 1984 settlement, the employee closed out permanency claims to the extent of a 55 percent permanent partial disability of the spine which, under the rules, equates to a 39.05 percent whole body disability.  The employee was rated for a 24 percent whole body disability which is less than the amount Metal-Matic/Travelers has already paid.  Accordingly, they contend that in the absence of a rating which exceeds the prior closeout of 55 percent of the back, Metal-Matic/Travelers can have no obligation to pay any additional permanency.  While we acknowledge the merit in these arguments, we cannot disagree.  In Stone v. Lakeland Constr., 533 N.W.2d 36, 52 W.C.D. 637 (Minn. 1995) the Supreme Court held that despite the enactment of Minn. Stat. ' 176.101, subd. 4a, equitable apportionment remained appropriate in certain cases.  In Stone, the employee was assigned a single permanent partial disability rating as a result of a series of injuries over a period of approximately 19 months.  The Supreme Court reversed this court=s reversal of the compensation judge=s equitable apportionment of permanent partial disability benefits, stating,

 

[W]here benefits are appropriately awarded on the basis of a single permanency rating of the disability resulting from more than one compensable injury, the situation seems to us better served by the application of the principles of equitable apportionment.

 

Id. at 40, 52 W.C.D. at 641 (citing DeNardo v. Divine Redeemer Mem. Hosp., 450 N.W.2d 290, 42 W.C.D. 626 (Minn. 1990)).  In Rauschendorfer v. Q. Carriers, Inc., 56 W.C.D. 241 (W.C.C.A. 1996), the employee sustained personal injuries in 1980, 1985 and 1992.  The claimed permanency rating of 27.5 percent in Rauschendorfer was a rating resulting from a surgical procedure, a three level fusion, which the compensation judge reasonably concluded resulted from the combined effects of all three injuries.  Under such circumstances, this court concluded that where multiple injuries to the same body part resulted in a single permanency rating that was the cumulative and indivisible result of all three injuries, the compensation judge reasonably applied the principles of equitable apportionment.

 

This case again highlights the difficulty and inherent inconsistency in attempting to reconcile and apportion permanent partial disability benefits under pre- and post- 1984 law.  Under the law in effect prior to October 1, 1984, permanent partial disability ratings could be based on subjective complaints of pain.  Under the current rules, permanency ratings are to be based on objective medical evidence.  Minn. Stat. ' 176.021, subd. 3.  The 1984 ratings did not require any specificity as to diagnosis, condition or the surgical procedures performed.  In contrast, the rules governing the 1996 injury generally rate permanent disability based on specific conditions and procedures.  In Fleener v. CBM Indus., 564 N.W.2d 215, 56 W.C.D. 495 (Minn. 1997), the Supreme Court noted:

 

[W]e think it some what presumptuous in this case to meld apparently incompatible methods of measuring disability, without further guidance, particularly where the pre-existing disability was closed out to a stipulated rating years before the adoption of the new schedules.

 

Following the 1971 and 1973 injuries, the employee underwent two laminectomies at L4-5 and a two level fusion from L4 through S1.  The 1984 payment of permanent partial disability benefits was based on injuries at these spinal levels.  In 1999, Dr. Pinto performed a fusion at L2-3 and L3-4 and his permanency rating was limited to the L2-3 and L3-4 disc levels.  Although the employee in 1984 closed out permanency claims to the extent of 55 percent of the spine or 39.05 whole body disability, the medical records in existence prior to 1984 offer no clear evidence of any preexisting disability at L2-3 and L3-4 as required for statutory apportionment under Minn. Stat. ' 176.101, subd. 4a.  See Beck v. Dick & Johns Price Rebel, 40 W.C.D. 254 (W.C.C.A. 1987).  For these reasons, the compensation judge=s application of equitable apportionment is affirmed.

 

Metal-Matic/Travelers next argue the compensation judge=s order that they pay two- thirds of the permanent partial disability benefits paid by ASCC/CNA is legally erroneous because the order, in effect, requires them to pay $12,000 which amount fails to give effect to the compensation rate in effect on the date of the 1971 and 1973 injuries.  Further, they argue the compensation judge=s order fails to give effect to the contribution prohibition of Koski v. Erie Mining Co., 223 N.W.2d 470, 27 W.C.D. 121 (Minn. 1973).  We agree.

 

In Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the Supreme Court held that the most recent occurrence of a compensable personal injury is the controlling event and the law then in effect governs the employee=s rights to benefits.  Thus, ACSS/CNA is liable to the employee for all benefits for which the August 9, 1996 injury was a substantial contributing cause based upon the law then in effect.  The Joyce decision does not, however, control as to issues of contribution among employer and insurers.  It is a fundamental principle of workers= compensation law that an employer and insurer=s liability for benefits may be based only on the law in effect at the time of the personal injury.  Rohr v. Knutson Const. Co., 212 N.W.2d 233, 28 W.C.D. 23 (1975).  Thus, the liability of Metal-Matic/Travelers for permanent partial disability benefits must be computed based upon the compensation rate in effect in 1971.  The Special Compensation Fund accepted second fund liability for the May 24, 1973 injury.  Under the Koski decision no apportionment may be made against the employer for the 1973 injury.  The case, is, therefore, remanded to the compensation judge to determine the amount of contribution owed by Metal-Matic/Travelers and the Special Compensation Fund.

 

2. October 8, 2001 Personal Injury.

 

ACSS/CNA cross-appeal the compensation judge=s finding the employee did not sustain a personal injury on October 8, 2001.  This finding, the cross-appellants contend, is based on an erroneous conclusion that the medical evidence before and after October 8, 2001 demonstrates no changes at the L1-2 level of the employee=s spine.  This conclusion, the cross-appellants argue, is inconsistent with the December 31, 2001 discogram that showed abnormal morphology at L1-2.   Dr. Wyard diagnosed L1-2 disc degeneration which he concluded was a new condition after October 8, 2001.  The employee testified his pain level increased after October 8, 2001.  Based upon this evidence, ACSS/CNA contend the compensation judge=s finding is unsupported by substantial evidence and must be reversed.  We are not persuaded.

 

Dr. Wyard opined the employee sustained a permanent injury on October 8, 2001 based upon his conclusion that there were significant changes shown on the December 2001 discogram that demonstrated abnormal morphology at L1-2 following the injury.  Dr. Cederberg, however, opined the October 8, 2001 incident was not a substantial contributing factor in the employee=s current disability because the employee had similar complaints both before and after the alleged work injury.  Dr. Gedan stated that Dr. Pinto=s office notes from October 11, 2001 did not document any recent physical changes which might be due to the claimed injury of October 8, 2001.  Dr. Gedan concluded none of the clinical examinations after October 8, 2001 objectively substantiated the employee=s claim that he sustained an injury on that date.  Rather, Dr. Gedan stated, both Dr. Pinto=s and his neurologic examination remained normal after October 8, 2001.  Dr. Gedan further opined the medical records demonstrated no acute change that would reasonably relate the employee=s condition in May 2003 to an injury on October 8, 2001.  Accordingly, the doctor concluded the employee did not sustain a personal injury on October 8, 2001. 

 

The competence of a witness to render expert medical testimony depends both upon the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue.  Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983).  Both Dr. Cederberg and Dr. Gedan obtained histories from the employee, reviewed the medical records and performed a physical examination.  This level of practical knowledge, together with their training and experience, provide adequate foundation for the doctors= opinions.  The compensation judge accepted the opinions of Dr. Cederberg and Dr. Gedan.  Since both doctor=s opinions were adequately founded, this court must affirm the compensation judge=s choice of medical experts.   See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Accordingly, the compensation judge=s finding the employee did not sustain a personal injury on October 8, 2001 is affirmed. 

 

3. May 31, 1992 Temporary Aggravation.

 

ACSS/CNA also cross-appeal the compensation judge=s finding the employee=s May 31, 1992 personal injury was a temporary aggravation of a pre-existing condition that did not contribute to the employee=s disability or need for medical treatment after August 9, 1996.  The cross-appellants point out Dr. Crowe rated a 3.5 percent whole body disability secondary to the 1992 injury and ultimately CBM/RSKCo settled with the employee for that claimed disability.  They further assert the employee received medical treatment for this injury and missed a significant amount of time from work thereafter.  Finally, the cross-appellants contend the compensation judge=s finding is contrary to the expert opinions of Dr. Wyard and Dr. Gedan, both of whom attributed some level of liability to the 1992 injury.  Accordingly, the appellants contend the compensation judge=s finding is unsupported by substantial evidence and must be reversed.  We disagree. 

 

Dr. Paul Crowe opined the employee sustained a fracture of the laminar of L4 on May 31, 1992.  Dr. Salib, however, concluded the employee did not sustain an L4 fracture.  Dr. Wicklund also stated the employee did not sustain a laminar fracture as a result of the 1992 injury and noted that the employee had facet joint problems at the L3-4 level as early as 1986, as documented on a CAT scan.  Dr. Wicklund opined the personal injury of October 1992 was a temporary aggravation of a pre-existing condition from which the employee recovered within three months.  Dr. Wicklund=s opinions were adequately founded and the compensation judge could reasonably rely upon them.   See Nord, Id.  Accordingly, the compensation judge=s decision must be affirmed.