TERRANCE M. KUEHN, Employee, v. VICKERMAN CONSTR., INC., and HOME/MIGA, Employer-Insurer, and KMH ERECTORS, INC., and MINNESOTA ARP/WAUSAU INS. CLAIMS, Employer-Insurer, and AMERECT, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Cross-Appellants, and INDUSTRIAL CONTRACTORS, INC./API, and ZURICH NO. AM., Employer-Insurer/Appellants, and TWIN CITIES IRON WORKERS HEALTH & WELFARE FUND and MN DEP=T OF EMPLOYMENT & ECON. DEV., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 16, 2005

 

No. WC05-103

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert medical opinion and the employee=s testimony, supports the compensation judge=s finding that the employee sustained a Gillette injury in February 2003.

 

NOTICE OF INJURY.  The compensation judge did not err by finding the employee had given adequate notice of a Gillette injury where the employee gave notice after his initial consultation with his attorney, within 180 days of stopping work, before a medical opinion had been obtained identifying the employee=s injury as a Gillette injury, and the employer does not allege any prejudice due to delay in notice.

 

APPORTIONMENT - EQUITABLE.  Substantial evidence, including expert medical opinion and the employee=s testimony, supports the compensation judge=s finding apportioning liability among his various work injuries.

 

WAGES - OVERTIME.  The compensation judge did not err by calculating the employee=s weekly wage to include overtime where the employee was working 12 hour shifts seven days a week for the entire time he worked for the employer.

 

Affirmed.

 

Determined by: Rykken, J., Wilson, J., and Stofferahn, J.

Compensation Judge: William R. Johnson

 

Attorneys: Stephen R. Daly, Kampmeyer, Kronschnabel, Bader & Daly, St. Paul, MN, for the Respondent Employee.  Michael Miller, Minneapolis, MN, for the Respondents Vickerman Construction and Home/MIGA.  Steven C. Gilmore, Law Offices of Powell and Robinson, St. Paul, MN, for the Respondents KMH Erectors, Inc. and MN ARP/Wausau Ins. Claims.  John M. Hollick, Lynn Scharfenberg & Associates, Minneapolis, MN, for the Cross-Appellants Amerect, Inc., and State Fund Mutual Ins. Co.  Lee J. Keller, Drawe & Heisick, Minneapolis, MN, for the Appellants Industrial Contractors, Inc./API and Zurich North American.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

Employer Industrial Contractors, Inc./API and its insurer, Zurich North American, appeal the compensation judge=s finding that the employee sustained a Gillette^[1] injury in February 2003, the finding that the employee had given proper notice of the 2003 injury, the compensation judge=s determination apportioning liability, and the finding establishing the employee=s weekly wage in 2003.  Amerect and its insurer, State Fund Mutual Insurance Company, cross-appeal the compensation judge=s determination of apportionment.  We affirm.

 

BACKGROUND

 

Terrance M. Kuehn, the employee, began working in iron work out of a local union hall in 1970.  This work involved erection of structural steel and installation of ironwork on commercial sites, and was classified as heavy with lifting up to 100 pounds frequently and frequent climbing, bending, stooping, and reaching.  On September 15, 1979, the employee injured his low back when separating pieces of iron weighing 200-300 pounds while working for Vickerman Construction, which was insured by Home Insurance Company.^[2]  The employee was treated for his low back, and was advised to find a different line of work.  The employee acknowledged that he discussed with his doctor that he might not be able to find work as an iron worker with permanent restrictions, and was released to work without restrictions.  The employee tried to be careful of his back while working.

 

On July 8, 1986, the employee sustained another specific low back injury when moving a 200 pound bar joist while working for KMH Erectors, which was insured by Minnesota Assigned Risk Plan/ARP.  The employee experienced back pain and radicular symptoms in his legs, and later was assigned a permanency rating of 14 percent permanent partial disability of the whole body, based upon his low back condition.

 

The employee returned to work, but tried to avoid heavy lifting and worked as a foreman.  The employee experienced non-work-related temporary aggravations to his low back in 1987 and 1993.  In late 1993, the employee noted radicular symptoms, and he was diagnosed with an L4-5 disc herniation in February 1994 as it was resolving.  The employee reported that his leg pain was nearly gone but that his back pain remained.

 

The employee continued to work full-time as an ironworker without restrictions.  On July 16, 1997, the employee sustained a back injury when balancing steel that was being moved with a forklift.  At that time he was working for Amerect Inc., which was insured by State Fund Mutual Insurance Company.  The employee experienced increased leg pain, was off work for a few days and on light duty for few weeks, then returned to work on a full-duty basis. The employee was treated with physical therapy.  The employee continued to experience back pain and tingling in his buttocks.

 

The employee had difficulty finding iron work after 1997.  He was off work for 10 months in 2002 through 2003 until he was hired by Industrial Contractors for a maintenance turnaround job on February 12, 2003.  The project involved two weeks of working 12-hour shifts, seven days per week.  The employee earned an hourly wage rate of $29.50 per hour plus $2.65 for vacation pay, for a total hourly wage of $32.15.  The employee testified that his position with Industrial Contractors required a lot of out-of-position lifting and long hours, and that he experienced increasing pain in his low back and tingling in his legs.  On February 20, 2003, the employee assisted with moving 100 pound steel plates and experienced increased pain in his back and legs.  He did not return to iron work after that day.  A June 12, 2003, MRI showed degenerative changes from L3-4 through L5-S1, disc protrusion at L4-5 possibly impinging on the traversing left L5 nerve, and right paracentral hypertrophic changes that result in slight posterior displacement of the traversing right S1 nerve.

 

On July 30, 2003, the employee filed a claim petition, naming Vickerman Construction, KMH Erectors, Amerect, and Industrial Contractors, and seeking temporary total disability, temporary partial disability, rehabilitation benefits, permanent partial disability benefits, and medical expenses.  Since Vickerman Construction=s insurance company, Home Insurance, had become insolvent, MIGA assumed responsibility for the obligations of Vickerman Construction and MIGA.  Vickerman Construction and MIGA were dismissed from the proceedings by order served and filed April 25, 2004.

 

A hearing to address the employee=s claim petition was held on September 2, 2004; the hearing record remained open for submission of trial briefs and a post-hearing deposition.  In his findings and order served and filed on December 6, 2004, the compensation judge found that the employee had sustained a Gillette injury on February 20, 2003, and awarded temporary total disability, temporary partial disability, and permanent partial disability benefits, as well as rehabilitation and medical expenses.  The compensation judge apportioned liability for the employee=s benefits among the employee=s injuries as 40 percent due to the employee=s injury at Vickerman Construction in 1979, 15 percent due to his injury at KMH Erectors in 1986, 15 percent due to his injury at Amerect in 1997, and 30 percent due to his injury at Industrial Contractors in 2003.  Since Vickerman Construction had been dismissed from the proceedings, the compensation judge allocated its liability among the other insurers, resulting in an apportionment to KMH Erectors of 25 percent, to Amerect of 25 percent, and to Industrial Contractors of 50 percent.  The compensation judge calculated the employee=s weekly wage in February 2003 to be $1,607.50.

 

Industrial Contractors and its insurer, Zurich North American appeal the compensation judge=s finding that the employee sustained a Gillette injury culminating on February 20, 2003, while working for Industrial Contractors, the finding that the employee had given proper notice of the 2003 injury, the apportionment of liability, and the determination of the employee=s weekly wage in 2003.  Amerect and its insurer cross-appeal the apportionment determination.

 

STANDARD OF REVIEW

 

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.  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).

 

DECISION

 

Gillette injury

 

Industrial Contractors and its insurer appeal the compensation judge=s finding that the employee sustained a Gillette injury while working for Industrial Contractors in February 2003.  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 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  The question of a Gillette injury primarily depends on medical evidence.  Marose v. Maislin Transport, 413 N.W.2d 507, 512, 40 W.C.D. 175 (Minn. 1987).  The employee "must prove a causal connection between [his] ordinary work and ensuing disability. . . . Whether given by testimony or written report, an opinion by a medical expert as to the causal link between the claimant's disability and the job must be based on adequate foundation."  Steffen v. Target Stores, 517 N.W.2d 579, 582, 50 W.C.D. 464, 467 (Minn. 1994).

 

The compensation judge relied upon the opinions of Dr. Paul Crowe, the employee=s treating physician, and Dr. Mark Engasser, who examined the employee on behalf of KMH Erectors and its insurer.  Dr. Crowe concluded that the employee=s work activities for Industrial Contractors were a substantial contributing factor to the employee=s low back condition, culminating in a Gillette injury.  Dr. Engasser, as well, concluded that the employee had sustained a Gillette injury.  The compensation judge also noted that the employee=s condition worsened over the days he worked for Industrial Contractors.

 

Industrial Contractors and its insurer argue that Dr. Crowe and Dr. Engasser did not have proper foundation for their medical opinions supporting the employee=s Gillette injury.  Foundation goes to the competency of a witness to provide expert opinion.  Competency of a medical expert depends both on the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Sufficient knowledge of the subject matter can be obtained through personal knowledge, a hypothetical question, or testimony at the hearing.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).

 

Industrial Contractors and its insurer argue that Dr. Crowe=s and Dr. Engasser=s opinions lacked foundation, claiming that the hypothetical background information posed to them contained misrepresentations.  The background information indicated that while the employee was working at Industrial Contractors, he was lifting 20 to 100 pounds frequently, lifting, climbing, reaching, bending, and stooping, working seven days a week, over eight hours a day.  The doctors based their opinions on the intense heavy work the employee was performing at Industrial Contractors.  Industrial Contractors and its insurer argue that the hypothetical information misrepresented the employee=s actual work activities, claiming the employee avoided heavy lifting while working and was not lifting 100 pounds frequently.

 

The employee, however, testified that he was still required to lift and that he was lifting up to 100 pounds while working at Industrial Contractors.  Assessment of the credibility of a witness is the unique function of the trier of fact.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  Further, the alleged lack of information of work activity goes to the weight to be accorded to the medical opinion rather than its foundation.  Karakash v. Superior Rock Bit Co., slip op. (W.C.C.A. May 3, 2001); see also Heitz v. Par 30 Restaurant & Lounge, Inc. 60 W.C.D. 98 (W.C.C.A. 2000); Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996); Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997).  Dr. Crowe and Dr. Engasser had adequate foundation for their opinions, and the compensation judge could reasonably rely upon those opinions in finding that the employee had sustained a Gillette injury on February 20, 2003.  Substantial evidence supports the compensation judge=s finding, and accordingly, we affirm.

 

Notice

 

Industrial Contractors and its insurer also argue that the employee had not given timely notice of his Gillette injury.  The employee stopped working on February 20, 2003, and notice was sent to Industrial Contractors and its insurer by the employee=s attorney on April 17, 2003.  Where notice is provided to the employer more than 30 days but less than 180 days from the occurrence of the injury, compensation is still payable if the employee Ashows that failure to give prior notice was due to the employee=s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent . . . unless the employer shows prejudice . . . .@  Minn. Stat. ' 176.141.  In cases involving a Gillette injury, the period during which notice must be given does not begin to run until the employee, as a reasonable person, should have recognized the probable compensability of the injury.  See Swenson v. Cal-Mech, 50 W.C.D. 1, 11 (W.C.C.A. 1993) (employee not aware of compensable nature of injury until medical report received).  The compensation judge noted that the employee gave notice after his initial consultation with his attorney, within 180 days of the time he stopped working, even before a medical opinion had been obtained identifying the employee=s injury as a Gillette injury.  In addition, Industrial Contractors does not allege any prejudice due to delay in notice.  Substantial evidence supports the compensation judge=s finding that the employee had given adequate notice of his 2003 injury, and we affirm.

 

Apportionment

 

Industrial Contractors and its insurer appeal the compensation judge=s  determination of apportionment of liability.  Amerect and its insurer cross-appeal the same determination.  Equitable apportionment is not a finding based on a precise formula but instead is based on all the facts and circumstances of a case.  Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 200, 226 N.W.2d 888, 891, 27 W.C.D. 797, 800 (1975); Harvala v. Noeske Lumber, 44 W.C.D. 118, 126 (W.C.C.A. 1990).  The compensation judge's determination of equitable apportionment should be affirmed where it is supported by substantial evidence in view of the entire record as submitted.  Sundquist v. Kaiser Eng'rs, Inc., 456 N.W.2d 86, 88, 42 W.C.D. 1101, 1103 (Minn. 1990); DeNardo v. Divine Redeemer Mem. Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 629 (Minn. 1990).  "Apportionment is a question of fact for the finder of fact, and the compensation judge is not bound by medical opinions with regard to apportionment."  Petersen v. Bethany Samaritan Heights, slip op. at 5 (W.C.C.A. July 16, 1992).  Factors considered in determining apportionment include the nature and severity of the initial injury, the employee=s physical symptoms following the initial injury and before the second injury, the nature and severity of the second injury, and the period of time between the injuries.  Goetz, 303 Minn. at 200, 226 N.W.2d at 891, 27 W.C.D. at 800.

 

The compensation judge adopted the March 2004 apportionment opinion of Dr. Engasser, who apportioned liability for the employee=s benefits among the employee=s injuries as 40 percent to the injury at Vickerman Construction in 1979, 15 percent to the injury at KMH Erectors in 1986, 15 percent to the injury at Amerect in 1997, and 30 percent to the injury at Industrial Contractors in 2003.  Since Vickerman Construction had been dismissed from the proceedings, the compensation judge allocated its liability among the other insurers, resulting in KMH Erectors with 25 percent, Amerect with 25 percent, and Industrial Contractors with 50 percent.^[3]

 

Industrial Contractors and its insurer argue that the February 2003 injury should be considered a temporary aggravation and should not be apportioned any liability for the employee=s continuing disability after July 2004.  The compensation judge was not persuaded by this argument at hearing, noting that the employee was able to return to full-duty work after the 1986 and 1997 injuries, but was not able to do so after the 2003 injury.  Further, the employee testified that he did not work as much in the late 90s through 2002 because iron work was difficult to find at that time.  Amerect and its insurer argue that the employee had made a full recovery after his 1997 injury since the employee had testified that his symptoms had returned to the baseline he had before that injury.  Also, Dr. Crowe and Dr. Nolan Segal, who examined the employee at Amerect and its insurer=s request, opined that the 1997 injury was temporary.  The employee testified that his condition Akind of returned to that constant pain baseline where it got to a point where it was tolerable.@  The employee also testified, however, that he continued to suffer pain down both legs after the 1997 injury.  A factfinder generally may accept all or only a part of any witness's testimony.  Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)), summarily aff'd (Minn. Mar. 3, 1993).  The compensation judge found that the employee had not made a full recovery after the 1997 injury.  Substantial evidence supports the compensation judge=s finding regarding apportionment, and we affirm.

 

Weekly wage

 

Industrial Contractors and its insurer also argue that the compensation judge erred in calculating the employee=s weekly wage at the time of the 2003 injury.  The employee=s weekly wage is calculated "by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved."  Minn. Stat. ' 176.011, subd. 18.  A full time wage is imputed for certain workers, such as construction or seasonal workers.  Berry v. Walker Roofing Co., 473 N.W.2d 312, 314, 45 W.C.D. 125, 127 (Minn. 1991).  For these workers, "the weekly wage shall not be less than five times the daily wage."  Minn. Stat. ' 176.011, subd. 3.

 

Minn. Stat. ' 176.011, subd. 18 defines weekly wage:

 

Weekly wage is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.  If the employee normally works less than five days per week or works an irregular number of days per week, the number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties, provided that the weekly wage for part time employment during a period of seasonal or temporary layoff shall be computed on the number of days and fractional days normally worked in the business of the employer for the employment involved.

 

Before the weekly wage calculation may be made for seasonal workers under the statute, the employee's daily wage must be determined.  The daily wage is calculated by:

 

dividing the total amount of wages, vacation pay and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned, provided further, that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage.

 

Minn. Stat. ' 176.011, subd. 3.

 

The statutory calculation for the employee=s weekly wage results in a higher weekly wage than the wage calculated by the compensation judge.  The employee earned a total of $3,127.00 for nine days of work.  The employee=s daily wage was therefore $347.45.  Multiplying the employee=s daily wage by five, since the employee is in the construction industry, results in a weekly wage of $1,737.25.  At the time of his injury, the employee was working long hours since he had been hired for a Aturnaround@ project.  The compensation judge determined that the employee=s weekly wage was $1,607.50, calculating the daily wage as $321.15, based upon 10 hour days since the employee was working regular overtime, but also reflecting that the employer did not regularly offer 12 hour shifts as it did for the turnaround project.

 

Industrial Contractors and its insurer argue that the compensation judge=s determination overstates the employee=s future earning power and that Athere are various circumstances which make the claimant=s actual earnings during a particular period an unreliable measure of his earning power . . . [and] >sometimes it is as important to reject as it is to accept a brief recent-wage experience, if a realistic approximation of future wage loss is to be obtained.=@  Bradley v. Vic=s Welding, 405 N.W.2d 243, 246, 39 W.C.D. 921, 924 (Minn. 1987), citing 2 A. Larson, The Law of Workers= Compensation ' 60.21(c) (1987); see also Laroue v. Waste Control, slip op. (W.C.C.A. Mar. 9, 1998).  Industrial Contractors argues that the employee=s wage should be based upon 8 hour days rather than 10 hour days, resulting in a weekly wage of $1,286.  The compensation judge, however, has already reduced the employee=s weekly wage to reflect that he was working an unusual number of hours in a brief period of time.  Using an 8 hour day to determine the employee=s wage would not reflect the substantial amount of overtime the employee was earning while working for the employer.  "The object of wage determination is to 'arrive at a fair approximation of [the employee's] probable future earning power which has been impaired or destroyed because of the injury.'"  Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (quoting Sawczuk v. Special Sch. Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981)). The compensation judge arrived at a reasonable weekly wage under the circumstances of this case, and we affirm.