Pohlkamp v. Western Steel Erection, Inc.

PAUL C. POHLKAMP, Employee/Cross-Appellant, v. WESTERN STEEL ERECTION, INC., and RELIANCE/MIGA/GAB ROBINS, Employer-Insurer, and M&P UTIL., INC., and VIRGINIA SURETY/BERKLEY RISK ADM'RS CO., Employer-Insurer, and M&P UTIL., and ILLINOIS NAT=L INS./AIG CLAIM SERVS., Employer-Insurer/Appellants, and MINNEAPOLIS RADIOLOGY & ASSOC., NEUROLOGICAL ASSOCS., CENTER FOR DIAGNOSTIC IMAGING, ST. PAUL ELEC. CONSTR. MEDICAL REIMBURSEMENT PLAN, ADVANCED SPINE ASSOCS., and MEDICUS REHABILITATION, Intervenors.

GILLETTE INJURY - DATE OF INJURY. Substantial evidence, including the employee=s testimony as to his job duties, minimally supported the compensation judge=s decision to impose liability for the employee=s Gillette injury on the insurer on the risk during the employee=s last five weeks of work, despite the fact that the employee=s work had been modified for most of that period.

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence supported the compensation judge=s decision that the employee had no reason to know that he had sustained a Gillette injury until it was suggested by a doctor, where the employee=s symptoms after the Gillette injury were essentially the same as the symptoms he had experienced following a work injury ten years earlier, and he thought his most recent symptoms were merely a recurrence of that earlier injury.

JURISDICTION - SUBJECT MATTER. The compensation judge properly concluded that he lacks subject matter jurisdiction over claims against MIGA where MIGA asserted that the claims were not Acovered@ pursuant to Minn. Stat. Chap. 60C.

CALCULATION OF BENEFITS - COMPENSATION RATE. The compensation judge erred in ordering the liable employer and insurer to pay benefits based on a wage higher than the wage the employee was earning on the date of their injury.

Attorneys: Timothy M. O=Keefe, Erstad & Riemer, Minneapolis, MN, for the Appellants. Howard S. Carp., Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Cross-Appellant. John T. Thul, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents. Jason Schmickle, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

M&P Utilities, Inc., and Illinois National Insurance appeal from the compensation judge=s dismissal of the Minnesota Insurance Guaranty Association from the proceedings, from the judge=s findings concerning liability for the employee=s 2002 Gillette-type injury,^[1] from the judge=s decision that the employee gave timely notice of injury, and from the judge=s findings and orders concerning the rate at which wage loss benefits are payable. The employee cross-appeals from the judge=s dismissal of the Minnesota Insurance Guaranty Association. We reverse the judge=s decision as to benefit rate but affirm on all other issues.

On June 7, 1991, the employee sustained a work-related low back injury while employed as an iron worker by Western Steel Erection, Inc. [Western Steel], which was then insured for workers= compensation liability by Reliance Insurance Company [Reliance]. Following the injury, the employee experienced low back and radiating left leg pain, and, on December 9, 1991, after diagnostic tests disclosed a disc herniation at L4-5, the employee underwent a left L4-5 microdiscectomy, performed by Dr. Edward Hames. Following the surgery, the employee=s low back and leg symptoms slowly improved over time, and he eventually went on to work for a number of other employers. The employee testified that he was generally able to perform these other jobs without time loss or significant treatment but that he continued to experience at least some low back pain, on a daily basis, following the 1991 injury. At some point, Reliance became insolvent, and the Minnesota Insurance Guaranty Association [MIGA] began administering claims.

The employee began working as a cable installer for M&P Utilities [M&P] in about 2000. This job required a substantial amount of twisting, bending, and kneeling as well as some digging, work on ladders, and occasional lifting of cable rolls estimated to weigh between 40 and 75 pounds.

On August 21, 2002, the employee sought treatment from Dan Truax, a physician=s assistant at the Monticello Clinic, complaining of left hip and leg pain that had been occurring intermittently over the previous two months. The treatment note from this consultation indicates that the employee=s symptoms were very painful on some days, especially if he was working on ladders in his job, but that he had not sustained any specific injury. The note also references the fact that the employee had a history of low back injury ten years before but that his current symptoms were Adefinitely different.@ Mr. Truax assessed Atrochanter bursitis,@ referred the employee for physical therapy, and provided the employee with a note asking the employer to have the employee do Aa little less ladder work.@

The employee returned to see Mr. Truax on September 4, 2002. According to the treatment note, physical therapy had been helpful to the employee, as had A[l]imiting his work.@ Mr. Truax gave the employee another note for work Ato limit some of the things that seem[ed] to cause him pain, particularly wearing his tool belt.@ During a September 25, 2002, visit, the employee reported continued hip pain, which was slowly getting better, and Mr. Truax provided another note, advising the employer to keep the employee on light duty until he was feeling a little better.

On October 7, 2002, the employee saw Mr. Truax again, indicating that his hip had not been giving him much trouble but that he was now having problems with his low back. The office note indicates that the pain that the employee was complaining of Areminds him of his pain that he had ten years ago with his herniated disks.@ Mr. Truax suspected a radiculopathy, gave the employee a Medrol Dosepak and Tylenol 3, recommended a follow up with a physician, and took the employee off work.

The employee was subsequently seen by a number of physicians for treatment recommendations and independent medical examinations. It is essentially undisputed that he has a recurrent herniated disc at L4-5, and it is also essentially undisputed, for purposes of this appeal, that both his 1991 work injury at Western Steel and his work activities for M&P were substantial contributing causes of his disability and need for treatment, at least after October 7, 2002.

As a result of his low back condition, the employee was unable to return to his job with M&P, and he remained off work until early September 2003, when he began part-time employment, at a wage loss, as a school bus driver.

The matter came on for hearing before a compensation judge on October 24, 2003, for a determination as to the employee=s entitlement to various benefits from Western Steel and MIGA, relative to the 1991 work injury; from M&P and Virginia Surety Company, the employer and insurer on the risk for an alleged Gillette injury culminating on August 21, 2002; and/or from M&P and Illinois National Insurance, the employer and insurer on the risk for an alleged Gillette injury culminating on October 7, 2002. The parties stipulated that the employee=s weekly wage was $722.00 on the date of the admitted 1991 work injury and $584.26 on the dates of the alleged 2002 Gillette injuries. Issues included liability for the employee=s alleged 2002 Gillette injury with M&P; whether the employee had given timely notice of that injury to the employer; and whether MIGA was entitled to be dismissed from the proceedings. Evidence included the employee=s medical and rehabilitation records and the causation and/or apportionment opinions of Drs. Michael Davis, Thomas Nelson, Garry Banks, and David Boxall.

In findings relevant to this appeal, the compensation judge concluded that the employee had not sustained a Gillette injury on August 21, 2002, when M&P was insured by Virginia Surety; that the employee had sustained a Gillette injury on October 7, 2002, when M&P was insured by Illinois National; that the employee had given the employer timely notice of the October 7, 2002, Gillette injury; and that the October 7, 2002, Gillette injury and the employee=s 1991 injury were substantial contributing causes of the employee=s low back condition and resulting wage loss and need for medical and rehabilitation services after October 7, 2002. The compensation judge further concluded that, because the case involved apportionment issues, MIGA was entitled to be dismissed from the proceedings for lack of subject matter jurisdiction. M&P and Illinois National were ordered to pay all wage loss, medical, and rehabilitation benefits after October 7, 2002, with temporary total and temporary partial disability benefits to be paid Abased on the full amount of compensation that would have been due the employee had Reliance Insurance Company/MIGA not insured the June 7, 1991 date of injury.@ M&P and Illinois National appeal; the employee cross-appeals.

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 (2004). 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, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A[I]njuries from repeated trauma or aggravations of a pre-existing condition [i.e., Gillette injuries] result in a compensable personal injury when their cumulative effect is sufficiently serious to disable the employee from further work.@ Carlson v. Flour City Brush Co., 305 N.W.2d 374, 350, 33 W.C.D. 594, 598 (Minn. 1981). However, ACarlson does not require an automatic determination that the employee sustained Gillette-type injuries on the day he quit work@; rather, Athe time by which he sustained those injuries should be determined on all the evidence bearing on the issue,@ including Aascertainable events@ evidencing disability. Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 509 (Minn. 1984). Moreover, imposition of liability on the insurer providing workers= compensation coverage on the date of a Gillette is Anot 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); see also Tannahill v. Mid-American Lines, Inc., 40 W.C.D. 726, 728 (W.C.C.A. 1987).

In the present case, Virginia Surety was M&P=s workers= compensation insurer through August 30, 2002, while Illinois National was on the risk from August 31, 2002, through October 7, 2002. The compensation judge concluded that the employee=s Gillette injury culminated effective October 7, 2002, and Illinois National does not directly dispute the judge=s conclusion as to date of injury per se. Rather, Illinois National asserts primarily that substantial evidence in the record does not support the conclusion that the employee=s work activities during Illinois National=s period of coverage substantially contributed to the employee=s low back condition and resulting disability.^[2] As such, Illinois National argues, the judge erred in ordering Illinois National to pay the benefits awarded beginning October 7, 2002.

We concede that the evidence as to causation is thin with respect to the employee=s work activities from August 31, 2002, through October 7, 2002. While Drs. Davis and Nelson indicated that the employee had sustained a Gillette injury as of October 7, 2002, no specific analysis was offered by either doctor as to whether the employee=s work activities for the approximately five week period prior to October 7, 2002, substantially contributed to the employee=s disability. In contrast, Drs. Banks and Boxall, who did address the issue, expressly indicated that the employee=s work after August of 2002 was not likely to have caused further microtrauma or contributed to the employee=s low back condition because the employee had been on light duty during that period. However, the lack of detailed medical opinion notwithstanding, we find the evidence minimally adequate to support the judge=s decision to impose liability on Illinois National.

As the compensation judge noted, it appears that the employee did not modify his job duties to any great extent until at least his September 4, 2002, medical appointment, when Mr. Truax noted that certain work, including wearing a tool belt, seemed to cause the employee pain. As such, it would not be unreasonable to conclude that the employee continued to perform regular work activities that increased his symptoms for at least a day or so when Illinois National was on the risk. Moreover, while the employee testified that the employer accommodated his condition Aas best they could@ after August 21, 2002, the employee also indicated that he still had physical activities to perform at work, that he had to continue to bend to pick up his tools, and that his symptoms progressed from hip and leg pain to severe low back and leg pain during Illinois National=s period of coverage. The employee=s supervisor acknowledged that the employee had to carry a tool pouch weighing 25 pounds and that the employee would have had to climb in and out the van he drove to the job sites to get tools and other things out and put them back into the van.

The compensation judge=s memorandum explains his reasoning on this issue as follows:

The evidence also revealed that even after the employee commenced light-duty, which was probably on or about September 4, 2002, the employee still worked full time at various job sites, assembling parts, driving a company truck, working out of a bucket lift, and other work activities required for the installation of cable. Further, the employee testified that even though doing so at a decreased rate, he continued to kneel and bend, and still carried his own tools, after commencing light-duty work. Thus, even during the period the employee presumably engaged in light-duty work, from September 4, 2002 to October 7, 2002, the employee was still doing significant repetitive work activities involved in the installation of cable.

We might have reached a different conclusion had we been in the factfinder=s place. However, under all the circumstances, we cannot conclude that the judge=s decision on this factual issue is so unsupported by the record as to justify reversal. We therefore affirm the judge=s decision to impose liability on Illinois National for the employee=s October 7, 2002, Gillette injury.

As a general rule, pursuant to Minn. Stat. ' 176.141, no compensation is payable unless notice of injury is given within 180 days of the injury. However, the notice period does not begin to run until the employee, as a reasonable person, recognizes that the injury has resulted in, or is likely to result in, a compensable disability. Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987). In the present case, it is apparently undisputed that the employer was not given notice of the employee=s October 7, 2002, Gillette injury until an April 16, 2003, letter from the employee=s attorney to the employer, just beyond the end of the 180 day period. The compensation judge, however, concluded that the employee did not know that his work activities at M&P had contributed to his back problem until Dr. Davis suggested as much in April of 2003. Accordingly, the judge concluded that the employee=s notice was timely.

As M&P and Illinois National point out, the notice period does not ordinarily begin to run from the time an employee receives a medical opinion on causation but rather from the time the employee has adequate knowledge as to the work-related nature of his condition from any source. See Jones v. Thermo King, 461 N.W.2d 915, 917, 43 W.C.D. 458, 461 (Minn. 1990). However, in the matter now before us, medical records and the employee=s testimony indicate that the employee=s low back and leg symptoms after October 7, 2002, were essentially identical to the symptoms he had experienced following his 1991 work injury at Western Steel. Under these circumstances, it was not unreasonable for the compensation judge to conclude that, prior to Dr. Davis=s April 2003 exam, the employee, as a reasonable person, simply thought he was experiencing a recurrence of his original, 1991 injury, rather than a new injury due to his work at M&P. We therefore affirm the judge=s decision that the employee=s notice to M&P in April of 2003 was timely.

Western Steel and MIGA apparently paid the employee temporary partial disability benefits for at least some period during the employee=s employment with M&P, based on the difference between the employee=s $772.00 weekly wage on the date of his 1991 injury and the employee=s lower wage at M&P, which was stipulated to be $584.26 on the date of the October 7, 2002, Gillette. The employee initiated the proceedings in this matter by filing a claim petition against Western Steel and MIGA for temporary total disability benefits from and after October 7, 2002, as well as certain medical and rehabilitation benefits, relative to the 1991 injury. MIGA subsequently petitioned for and obtained an order joining M&P and Illinois National, and Virginia Surety was later added to the action by amended order for joinder. Just prior to the hearing on the employee=s claim, Western Steel and MIGA filed a motion, seeking dismissal of claims against them based on a lack of subject matter jurisdiction. In his Findings and Order, the judge concluded that, because the 1991 (MIGA) injury and the 2002 (Illinois National) injury were both substantial contributing causes of the employee=s disability after October 7, 2002, Western Steel and MIGA were entitled to dismissal for lack of subject matter jurisdiction.

The employee argued to the compensation judge, and maintains on appeal, that MIGA=s dismissal motion should have been denied, as untimely, pursuant to various workers= compensation and rules of civil procedure concerning the assertion of affirmative defenses.^[3] However, it is well settled that subject matter jurisdiction may be raised at any time. See, e.g., Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.C.D. 541 (Minn. 1983); Davidner v. Davidner, 304 Minn. 491, 493, 232 N.W.2d 5, 7 (1975). As such, the only question for this court, relative to MIGA=s dismissal, is whether the compensation judge was correct in concluding that subject matter jurisdiction was lacking.

The Minnesota Supreme Court has consistently held that the workers= compensation courts lack authority to interpret or apply the provisions for claims under the Minnesota Insurance Guaranty Act, Minn. Stat. Chap. 60C. See, e.g., Taft v. Advance United Expressway, 464 N.W.2d 725, 727, 44 W.C.D. 35, 37 (Minn. 1991); Ast v. Har Ned Lumber, 483 N.W.2d 66, 46 W.C.D. 495 (Minn. 1992); Wiss v. Advance United Expressway, 488 N.W.2d 802, 47 W.C.D. 260 (Minn. 1992); Gerads v. Bernick=s Pepsi Cola, 486 N.W.2d 433, 46 W.C.D. 704 (Minn. 1992). In the present case, MIGA asserted that the claims in the matter were not Acovered claims,@ within the meaning of Chapter 60C, because the case involved issues of equitable apportionment, or, essentially claims of contribution or reimbursement by M&P and Illinois National, which Chapter 60C does not allow. See id.

We question whether the employee=s wage loss claims^[4] after October 7, 2002, raise any issues as to either apportionment, per se, or contribution or reimbursement. If MIGA were an ordinary insurer, its liability for wage loss benefits would be governed by Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983); Kirchner v. County of Anoka, 410 N.W.2d 825, 40 W.C.D. 197 (Minn. 1987); and LaFleur v. Interplastic Corp., slip op. (W.C.C.A. Apr. 4, 1991). Pursuant to these cases, MIGA would owe no more in wage loss benefits than would have been payable by them had the employee not sustained the second injury, and the insurer on the risk for the second injury would not gain anything, relative to liability for wage loss, by virtue of MIGA=s presence in the case. Furthermore, there were apparently some medical expense claims for low back treatment rendered prior to October 7, 2002, for which the other insurers in this matter cannot possibly be liable. As such, we are not convinced that MIGA=s rationale for requesting dismissal is valid.

However, our concerns about MIGA=s position notwithstanding, it is clear that the compensation judge was correct in granting MIGA=s motion to dismiss. It was MIGA=s formal position, throughout the proceedings below and through oral argument before this court, that dismissal was required because the claims at issue were not Acovered claims@ within the meaning of Chapter 60C, and it is precisely this issue that cannot be determined in the workers= compensation forum. See Taft, 464 N.W.2d 725, 44 W.C.D. 35. This is equally true whether the claimant is an insurance company or an injured worker. See Hook v. Hook Spray Serv., 50 W.C.D. 542 (W.C.C.A. 1994). We therefore affirm the judge=s decision granting MIGA=s motion to dismiss.

The compensation judge=s order for wage loss benefits reads in relevant part as follows:

IT IS FURTHER ORDERED that the employer, M&P Utilities, Inc., and its insurer, Illinois National/AIG Claims Services, Inc., shall pay the employee temporary total disability benefits from October 7, 2002, to September 1, 2003. . . [and] temporary partial disability benefits from September 2, 2003, to the present and continuing through the date of hearing, due to the work-related Gillette-type back injury of October 7, 2002, based on the full amount of compensation that would have been due the employee had Reliance Insurance Company/MIGA not insured the June 7, 1991 date of injury. . . .

The judge=s order to this effect is clearly erroneous. As the employee acknowledged at oral argument, M&P and Illinois National=s liability for wage loss benefits can be based only on the employee=s weekly wage on the date of his 2002 injury, $584.26. See, e.g. Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987). Clearly the employee will not be fully compensated for his wage loss, given that he was earning $722.00 on the date of his 1991 injury, but this byproduct of MIGA=s dismissal cannot be rectified by imposing additional liability on Illinois National. We therefore reverse the judge=s decision on this issue.

^[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[2] Illinois National also argues that the compensation judge erred in relying on the opinions of Drs. Nelson and Davis, in that those doctors were not aware that the employee had altered his work activities beginning in August of 2002. However, it is apparent from his memorandum that the judge based his conclusions, both as to date of injury and causation, primarily on the employee=s testimony and on entries in the employee=s medical records.

^[3] The employee cites, specifically, Minn. R. 1415.1400 and Minn. R. Civ. P 12.03 and 56.03.

^[4] As opposed to claims for medical expenses and rehabilitation services.