CARMEN MOSER, Employee/Appellant, v. DAIRY FARMERS OF AM. f/k/a MID-AMERICA DAIRYMEN, INC., SELF-INSURED/RISK ENTERS. MGMT., Employer/Cross-Appellant, and HOME INS. CO., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 17, 2005

 

No. WC04-331

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 3(40) (1980).  In keeping with the court=s holding in Hart v. United Buckingham Freight Lines, 30 W.C.D. 342 (W.C.C.A. 1978), an award of permanent partial disability benefits for injury to internal organs under Minn. Stat. ' 176.101, subd. 3(40) (1980), cannot exceed a total of 500 weeks.

 

PERMANENT PARTIAL DISABILITY - INTERNAL ORGANS. Total destruction of an internal organ as a result of a work injury is entitled to a permanent partial disability rating under Minn. Stat. ' 176.101, subd. 3(40) (1980), and the compensation judge=s assignment of a 0% rating to the employee=s lung condition after a successful bilateral lung transplant is clearly erroneous and unsupported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. ' 176. 101, SUBD. 3(49) (1980).  Where there was no dispute over the employee=s entitlement to permanent partial disability benefits for her skin disorder as a Anot enumerated@ disability under Minn. Stat. ' 176.101, subd. 3(49) (1980), where awards under that subdivision are to be made for a period Anot to exceed 350 weeks@ based on an employee=s proof of a reduction in earning capacity rather than on the employee=s level of impairment, and where the employee was permanently and totally disabled, the compensation judge erred in awarding only a portion of 350 weeks based on a conclusion that the employee was subject to a 50% impairment of the skin, instead of the full 350 weeks provided for in the statute..

 

PERMANENT PARTIAL DISABILITY - SIMULTANEOUS INJURY; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 3(46) (1980).  As held in Tracy v. Streater/Litton Industries, 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979), the provision in Minn. Stat. ' 176.101, subd. 3(46) (1980), for a 15% bonus to be added to the employee=s permanent partial disability benefits in cases of simultaneous injury does not apply to internal organs, and the compensation judge=s conclusion to that effect was affirmed.

 

JURISDICTION - SUBJECT MATTER.  Although the judge incorrectly indicated that the employee had a claim against the employer by operation of Minn. Stat. ' 60C, the statute pertaining to MIGA, the compensation judge properly assumed jurisdiction to determine the employee=s claim, in that Minn. Stat. ' 176.021, subd. 1, clearly indicates that it is an employer=s obligation to pay compensation to an injured worker for a work injury, and Minn. Stat. ' 176.185, subd. 7, does not, as argued by the employer, absolve an employer of that responsibility when its insurer becomes insolvent.

 

JURISDICTION - SUBJECT MATTER; JURISDICTION - CONSTITUTIONAL ISSUES.  The WCCA has no subject matter jurisdiction over an employer=s claim against MIGA or over an employer=s contention that the MIGA statute, Minn. Stat. ' 60C, is unconstitutional for violating an employer=s right to due process and equal protection under the law when applied to the employer=s rights retroactively and without regard for the employee=s date of injury.

 

Affirmed in part and reversed in part.

 

Determined en banc.

Compensation Judge: Gary M. Hall

 

Attorneys: Jeffrey R. Hannig, Hannig & Associates, Fargo, ND, for the Appellant.  Kristin M. Cajacob, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Cross-Appellant.  Ted. E. Sullivan, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Intervenor.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s award of permanent partial disability benefits for injury to her internal organs under Minnesota Statutes ' 176.101, subdivision 3 (40) (1980), from his determination that an award under that section cannot exceed 500 weeks of permanent partial disability, from his determination that the 15 percent simultaneous injury factor does not apply to internal organs, and from his determination that the employee=s permanent partial disability award for injury to her skin should be based on only a proportion of 350 weeks equal to her permanent partial disability rating.  The employer, now self-insured, cross appeals from the judge=s finding that the court had jurisdiction to find liability on the part of the employer and award benefits payable by the employer under Minnesota Statutes ' 60C.09, subdivision 2(3).  The employer also challenges the constitutionality of Minnesota Statutes ' 60C.09, subdivision 2(3).^[1]  We affirm in part and reverse in part the judge=s permanent partial disability rating under the internal organs section of the schedule, we affirm the judge=s determinations regarding the 500-week permanency maximum and simultaneous injury factor, and we reverse the judge=s finding limiting the employee=s permanent partial disability for her skin to only a portion of 350 weeks.  On the employer=s cross-appeal, we affirm the judge=s jurisdiction to award benefits payable by the employer, and we deny jurisdiction over the constitutional issue.

 

BACKGROUND

 

On August 26, 1982, Carmen Moser [the employee] sustained an injury to her lungs as a result of chlorine gas inhalation while working for Mid-America Dairymen, Inc. [the employer].  On that date, the employee was twenty-six years old and earning a weekly wage of $210.00, and the employer was insured by Home Insurance Company [Home].  The employer and Home admitted liability for the employee=s injury, and the employee was paid intermittent temporary total disability benefits through March 27, 1985, as well as compensation for a 5% percent permanent partial disability of the whole body related to impairment of her lungs as an internal organ.  In April 1985, the parties entered into a full, final, and complete settlement of the employee=s claims for workers= compensation benefits, exclusive of claims for related medical treatment.  The parties= settlement, which allocated a portion of the settlement proceeds to payment of compensation for an additional 35% permanent partial disability, was approved on May 21, 1985.

 

By 1988, the employee=s lungs were failing.  She was often sick and hospitalized, required increasing amounts of medication, and eventually required the assistance of a respirator.  In 1993, the employee filed a motion with this court to set aside her 1985 settlement pursuant to Minnesota Statutes ' 176.461.  Following a hearing before a compensation judge on issues of causation, this court, on June 13, 1994, vacated the 1985 settlement.

 

Three months later, on September 16, 1994, the employee underwent bilateral lung transplant surgery.  The surgery was remarkably successful, and the employee has thereafter had good pulmonary function.  The surgery, however, necessitated a permanent regimen of immunosuppressive drugs to prevent the employee=s body from rejecting the transplanted lungs.  These drugs, together with the employee=s chronic steroid use prior to the transplant, caused the employee=s kidneys to fail starting in the fall of 1996, and on March 26, 1998, she underwent kidney transplant surgery.  The employee=s chronic medication use has led also to impairment of her intestinal system, pancreas, spine, lower extremities, and skin.

 

After the 1985 settlement was vacated, the employee filed claims for permanent total disability, supplementary benefits, interest, and penalties.  Subsequent settlements were approved on August 6, 1999, and August 8, 2000, resolving those claims of the employee through March 2, 2000.  In the 2000 settlement, the parties agreed that the employee had been permanently and totally disabled since June 24, 1984.  Based on the extensive medical expenses paid and the employee=s permanent total disability status, the claim eventually met the thresholds for reimbursement from the Workers= Compensation Reinsurance Association [WCRA].

 

At some later point, Home went into receivership and then liquidation.  As a result  of Home=s insolvency, the claim was submitted to the Minnesota Insurance Guaranty Association [MIGA] for administration.  MIGA evidently determined that the claim was not a Acovered claim@ under Minn Stat. ch. 60C and forwarded the claim to the employer for direct payment.^[2]  The employer, now self-insured against its workers= compensation liability, evidently did not challenge MIGA=s denial of coverage under chapter 60C and began paying the employee=s claim on August 1, 2003.  In the course of administering the claim, the employer requested reimbursement from WCRA for benefits that it had paid directly to the employee.  The reimbursement was denied by WCRA, based on its statutory and contractual obligations to Home.  It was willing to reimburse the employer directly only with Home=s consent.  Home would not consent to direct reimbursement to the employer.

 

On August 27, 2003, the employee filed a claim petition for additional permanent partial disability benefits, based on a report from physiatrist Dr. Seth Rosenbaum.  The employee claimed injury to multiple internal organs and to other body parts as a result of her 1982 injury.  The only party named on the petition was Dairy Farmers of America, f/k/a Mid-America Dairymen, Inc., self-insured, administered by Risk Enterprise Management.  The employer denied that the employee was disabled to the extent claimed and arranged for a medical examination with internist Dr. Ronald Vessey.  On July 12, 2004, the employer filed a motion for joinder of Home and WCRA as parties to the case and moved for a continuance of the hearing, which had been scheduled for August 20, 2004.  The motion for continuance was opposed by the employee, and Home and WCRA opposed the motion for joinder.  The motions were heard by Compensation Judge Gary M. Hall on August 17, 2004, and denied.

 

The matter came on for a hearing before Judge Hall on August 20, 2004.  The employee appeared and testified at trial, and Drs. Rosenbaum and Vessey testified by deposition.  Issues at trial included the extent of permanent partial disability resulting from the work injury and whether the court had jurisdiction to award benefits against the employer under circumstances where its insurer had become insolvent and MIGA had denied coverage.  In a findings and order issued November 22, 2004, the compensation judge awarded 659 weeks of permanent partial disability benefits and an additional 15% simultaneous injury bonus on the part of that award unrelated to internal organs, for a total of 697.10 weeks.^[3]  The judge concluded that permanent partial disability awards under the internal organs statute are subject to a 500-week maximum and are not eligible for the simultaneous injury bonus.  The judge also determined that he did have jurisdiction to award benefits against the employer even though its insurer was insolvent and MIGA had denied coverage for the claim.  The employee appeals, and the employer cross-appeals.

 

DECISION

 

I.  Internal Organs

 

The case before us presents a threshold issue of whether more than 500 weeks of permanent partial disability benefits can be awarded under Minnesota Statutes ' 176.101, subdivision 3(40).  That statute provides as follows:

 

For permanent partial disability resulting from injury to any internal organ until such time as the commissioner of labor and industry shall promulgate a schedule of internal organs and thereafter for internal organs covered by the schedule of internal organs established by the commissioner of labor and industry, 66 2/3 percent of the daily wage at time of injury for that proportion of 500 weeks, not to exceed 500 weeks, as determined by the commissioner of labor and industry, which is the proportionate amount of permanent partial disability caused to the entire body by the injury as is determined from competent testimony at a hearing before a compensation judge, the commissioner, or the workers= compensation court of appeals.

 

Minn. Stat. ' 176.101, subd. 3(40) (1980).  The compensation judge determined that the total disability from all affected internal organs is subject to a 500-week maximum and that the employee had sustained whole-body impairments of 45% related to intestinal disorder, 4% related to impaired pancreatic function, 32% related to abnormal function of her remaining kidney, and 0% related to the function of her lungs - - for a total of 81% whole-body impairment.  The judge then awarded 405 weeks of permanent partial disability benefits under the statute - - 81% of 500 weeks.

 

The ratings for the employee=s intestinal disorder and impaired pancreatic function are not in dispute.  With regard to the employee=s organ transplants, however, the employee contends that the judge erred when he based the employee=s permanent partial disability ratings on the function of her replacement organs rather than on the function of her original, work-injured organs.  The employee argues that there is a presumed loss of function when an organ has been destroyed and that, in this case, the employee should be awarded 500 weeks of benefits for the destruction of her lungs and 500 weeks for the destruction of her kidneys.  Thus, the employee claims 1,245 weeks of permanent partial disability benefits under the internal organs statute.

 

The internal organs section of the permanency schedule has always been difficult to interpret, and that difficulty is reflected in the limited case law precedent available for review.^[4]  The statutory history is limited in that internal organs were not covered at all by the statute until 1973, and the entire permanency schedule was repealed effective January 1, 1984.  Unlike the schedule for bodily Amembers,@ in which the legislature specified a fixed number of weeks for injury to any given member, no specificity existed in the 1982 statute for any given injury to an internal organ.  Compensation for the loss of an arm could easily be awarded pursuant to the number of weeks that the legislature had assigned for that member, but there was no comparable specific guidance for the loss of a lung.

 

The supreme court first addressed the internal organs section of the statute in Getter v. Travel Lodge, 260 N.W.2d 177, 30 W.C.D. 163 (Minn. 1977).  In that case, Mr. Getter sustained an abdominal gunshot wound that caused various internal injuries requiring a surgical removal of his right kidney.  A compensation judge awarded Getter permanent partial disability based on 500 weeks= wages, the maximum award for injury to an internal organ under Minnesota Statutes ' 176.101, subdivision 3(40).^[5]  A majority of the Workers= Compensation Court of Appeals reduced the award to 250 weeks= wages.  In affirming this court, the supreme court noted that, unlike the paragraphs of the permanency schedule pertaining to Amembers,@ which specify fixed numbers of weeks for calculation of an award, the internal organs section of the statute allows great latitude in determining the extent of an award.  The court noted that an award for injury to an internal organ may vary from 0 to 500 weeks= wages but that the loss of an internal organ does not necessarily result in 100 percent permanent partial disability.  The court stated,

 

Under the statute as it presently stands, compensation judges can do no more than look to the nature and extent of the injury and the relative importance of the internal organ or organs injured and from these factors estimate the percentage of permanent partial disability which the employee has sustained.

 

Getter v. Travel Lodge, 260 N.W.2d 177, 180, 30 W.C.D. 163, 166-67 (Minn. 1977).  Although the court found that a 50% rating, which translates under the statute to 250 weeks of compensation, for the loss of one kidney may be generous when compared to 270 weeks for loss of an arm, 220 weeks for loss of an entire leg, 170 weeks for complete loss of hearing in both ears, and 160 weeks for loss of an eye, it was within the bounds of the discretion delegated by the legislature.

 

In Hart v. United Buckingham Freight Lines, 30 W.C.D. 342 (W.C.C.A. 1978), the case most factually similar to the instant case, the employee was injured on July 1, 1975, when a fire started in his truck and an explosion occurred, causing severe lung damage that later caused serious heart problems.  A compensation judge awarded compensation for 90% permanent partial disability of the lungs (450 weeks) and for 50% permanent partial disability of the heart (250 weeks) as a result of the injury.  On appeal by both parties, the employee claimed even higher percentages of permanent partial disability, but this court concluded that, under Getter, an award under Minnesota Statutes  ' 176.101, subdivision 3(40), cannot exceed 500 weeks of permanent partial disability, compensation therefore being limited to a 100% rating under the statute.

 

In the Schuft v. Farmers Union Coop. Oil Assoc. portion of Tracy v. Streater/Litton Industries, the supreme court again referred to Getter and its interpretation of the internal organs provision of the statute.  Although Schuft was not claiming more than 100% permanent partial disability, he was claiming disability due to injury to more than one internal organ (50% of the respiratory system and 30% of the circulatory system), and the court concluded that Getter required a single, nonaggregated rating of disability to body function as a whole.  Tracy v. Streater/Litton Industries, 283 N.W.2d 909, 918, 32 W.C.D. 142, 155-56 (Minn. 1979).  The court explained that A[a]ggregation of separate ratings is inappropriate because the degree of disability to an organ does not necessarily equal the degree of disability to the body as a whole, and aggregation could easily result in the impossible situation where whole disability would be more than 100 percent.@  Id.

 

In the instant case, the employee argues that the correct application of Minnesota Statutes ' 176.101, subdivision 3(40), requires a rating for each internal organ as it represents a separate disability of the whole body, without limit on the total of the ratings.  She argues that, if the legislature had meant that all internal organs must be rated as a single group and be subject to a single 500-week maximum, the legislature could easily have so stated in the statute.  She contends further, quoting comments by the supreme court in Lerich v. Thermo Systems, Inc., that Athe legislature in all probability did not anticipate that a less seriously disabled worker would receive more compensation than one who is more severely disabled.@  Lerich v. Thermo Systems, Inc., 292 N.W.2d 741, 743, 32 W.C.D. 476, 480 (Minn. 1980).  She argues that to interpret the statute to limit the employee=s claim to a maximum of 500 weeks would result in this employee being paid less for her overall disability than another employee with far less severe disability.  See also Bergeson v. United States Fidelity and Guaranty Company, 414 N.W.2d 724, 40 W.C.D. 409 (Minn. 1987) (an employee rendered quadriplegic by virtue of injury to the brain was not precluded from an additional award for injury to members of the body disabled as a result of the brain injury).  We are not persuaded.

 

We note that, following the supreme court=s decision in Getter and this court=s decision in Hart, the legislature amended subdivision 3(40) to call for the promulgation of a schedule of internal organs, and it also added the clarification that an award under this section is Anot to exceed 500 weeks.@^[6]  We agree with the statement in the employee=s brief that A[i]t is probably fair to state that the legislature, when drafting ' 176.101, subd. 3, did not anticipate the advance of medical technology to the point where internal organs vital to life could be totally destroyed and then replaced.@  That being said, however, it is not this court=s prerogative to rewrite legislation enacted at an earlier time to reflect advances in medical science.  In light of the fact that internal organs were not covered prior to that date, the legislature=s judgment in 1973 that 500 weeks= wages represented an appropriate value for injuries to the internal organs is not a subject for our review.  Nor can we say that assignment of the value of 500 weeks for injury to internal organs is any less fair than the assignment of 220 weeks for loss of a leg or 270 weeks for loss of an arm or that someone who has undergone organ transplant surgery is necessarily more severely disabled than someone who has suffered injuries to other body parts.  Notwithstanding the employee=s equitable arguments, the benefits allowed by statute are defined by the legislature, and we believe that the legislature clearly intended that the maximum permanent partial disability compensation for internal organs not exceed 500 weeks.  Accordingly, and in keeping with our holding in Hart, we affirm the compensation judge=s determination that an award under Minn. Stat. ' 176.101, subd. 3(40) (1980), cannot exceed 500 weeks.

 

This brings us to the judge=s overall assessment of the employee=s permanent partial disability under the internal organs provision of the statute.  We agree with the employee=s assertion in this case, supported by the testimony of Dr. Rosenbaum, that the employee=s lung transplant surgery by itself, carries with it a presumed Afunctional loss of use or impairment of function@ as contemplated by Minn. Stat. ' 176.021, subd. 3 (1980).  The judge=s conclusion that the employee has no permanent partial disability to her internal organs as a result of bilateral lung transplant surgery is not supported by substantial evidence.  Dr. Vessey=s rating opinion reflected solely his interpretation of the employee=s pulmonary function under the current permanent partial disability rules, not the schedule in effect in 1982.  The employee=s original organs have been destroyed by the work injury.  She requires a permanent regimen of immunosuppressive drugs to prevent organ failure.  At the time of hearing, she was taking seventeen different medications on a daily basis.  Given the importance of the organs injured, the necessity of transplant surgery to two vital organs, and the employee=s need for ongoing immunosuppressive drugs, we believe that the injuries in this case to the employee=s lungs, kidneys, pancreas, and intestines warrant a 100% rating of the entire body under the statute and an award of 500 weeks of permanent partial disability benefits.

 

II.  General Bodily Disability

 

By the early 1990's, the employee=s heavy use of steroids had caused her to develop a significant skin disorder.  Her skin has become thin and fragile, it is easily bruised and often tears, and the resulting wounds are slow to heal and cause scarring.  Consequently she must modify all activities to avoid bumps, most physical contacts, and any activity that might put her at risk for trauma.  At Finding 21, the compensation judge determined that the evidence supports a permanent partial disability rating of 50% under the Aunenumerated@ section of the permanency schedule, Minnesota Statutes ' 176.101, subdivision 3(49), for the serious limitations caused by the employee=s skin condition.^[7]  He indicated, however, that he did not read the statute to allow 350 weeks of benefits regardless of the level of impairment, nor to require payment on a weekly basis.  On appeal, the employee contends that, as a matter of law, she should have received the full 350 weeks of benefits as provided by statute.  As there is apparently no dispute over the employee=s entitlement to benefits under this section,^[8] and as the employee is permanently and totally disabled, we agree with the employee that she is entitled to the full 350 weeks of benefits.

 

Permanent partial disability awards for unenumerated body parts under subdivision 3(49) are unique in the schedule because they are based on an employee=s proof of a reduction in earning capacity, as contrasted with scheduled permanent partial disability awards, where loss of earning capacity is conclusively presumed, regardless of the employee=s ability to work at the same or greater earnings.  See Mitchell v. White Castle Systems, Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980), citing Boquist v. Dayton-Hudson Corp., 297 Minn. 14, 209 N.W.2d 783, 27 W.C.D. 16 (1973).  Here the employee is permanently and totally disabled, and the statute provides for an award of benefits during her disability for a period not to exceed 350 weeks.  The statute does not call for a payment based on a proportion of 350 weeks corresponding to the employee=s permanent partial disability rating.  We therefore reverse the compensation judge=s award of only a proportion of 350 weeks, and we award the full 350 weeks of benefits.

 

III.  Simultaneous Injury Factor

 

Minnesota Statutes ' 176.101, subdivision 3(46), expressly provides that, except where the injuries are compensated under certain specified paragraphs addressing injury to ears, eyes, arms, hands, feet, and legs, paragraphs not here applicable, A[i]n cases of permanent partial disability caused by simultaneous injury to two or more members, the applicable schedules in this subdivision shall be increased by 15 percent.@  Minn. Stat. ' 176.101, subd. 3(46) (1980).  The compensation judge, without explanation, awarded the 15% Aloading factor@ to the employee=s permanency for her skin, spine, and both lower extremities, but not for permanency to her internal organs.  The employee contends the judge erred in failing to award the 15% multiple to all permanency awarded.

 

In Tracy the supreme court stated as follows:

 

The claim for simultaneous injury benefits applies to injuries to two or more Amembers@ when the injuries are not compensated under the provisions relating to ears, eyes, legs, arms, hands, and feet.  Since those provisions do not include internal organs or the emotional system, the 15 percent multiple would not apply in this case even if the injuries were shown to be simultaneous.

 

Tracy, 283 N.W.2d at 918, 32 W.C.D. at 156 (Minn. 1979).  In emphasizing with quotation marks the statutory use of the term Amembers,@ the court apparently sought to distinguish between injuries compensated under the Asingle member schedule@ and injuries to internal organs.  The court did not specifically reference the statutory definition of Amember,@ but we note that Minnesota Statutes ' 176.011, subdivision 14, defines the term as follows:  A>Member= includes leg, foot, toe, hand, finger, thumb, arm, back, eye, and ear when used with reference to the anatomy.@  The employee argues that not to apply the simultaneous injury factor to internal organs is inconsistent with the rule of liberal construction in effect at the time of the employee=s injury and essentially penalizes her simply because her injuries were to internal organs.  Further, the employee contends, the statutory definition of the term Amember@ uses the word Aincludes,@ which by common parlance means that the list is not exclusive.  We are not persuaded.

 

The employee has argued that the above-quoted language from Tracy has not been applied very rigorously by the courts, but we find that case law addressing this issue has followed it.  In Colborn v. Villa Maria Convent/Academy, this court held as follows:

 

We interpret Tracy to hold that the simultaneous injury factor does not apply to that portion of an award for permanency that is for impairment to internal organs, as these ratings are to be made based on permanency to the body as a whole, rather than to a body member.

 

Colborn v. Villa Maria Convent/Academy, 48 W.C.D. 239, 246-47 (W.C.C.A. 1993); see also, Crowson v. Valley Park, Inc., 33 W.C.D. 127 (W.C.C.A. 1980); Mack v. City of Minneapolis, 33 W.C.D. 289 (W.C.C.A. 1980); Guck v. The McDonald Co. Inc., 37 W.C.D. 10 (W.C.C.A. 1984).  Given our case law precedent on the issue, the judge=s determination that the simultaneous injury factor does not apply to internal organs is affirmed.

 

IV.  Jurisdiction

 

At Finding 13, the compensation judge found that the employee had a claim against the employer by operation of Minnesota Statutes ' 60C.09, subdivision 2(3).  On cross-appeal, the employer contends that the compensation judge had no jurisdiction to make determinations of liability or to order payment by the employer, in that any requirement to pay would necessarily derive from interpretation of chapter 60C, which, the employer argues, is not within the jurisdiction of the Office of Administrative Hearings.  In order to hold the employer liable for direct payment of benefits, it argues, the compensation judge in effect was required to construe the MIGA statute.  We do not agree.

 

First of all, we disagree with the judge=s statement that somehow the employee=s claim is derivative of any action taken by MIGA.  We do agree, however, with the judge=s additional statement in Finding 13 that the court Adoes have jurisdiction to award benefits against the employer as an insured entity with an underlying liability for its workers= compensation claims.@  That liability of the employer is pursuant to chapter 176, not chapter 60C.  Minnesota Statutes ' 176.021, subdivision 1, clearly states that it is the employer=s responsibility to pay compensation.  The fact that MIGA may have denied coverage for the employer=s claim against it does not serve as a defense to the employee=s claim against the employer.  Nor do we accept the employer=s further contention that Minnesota Statutes ' 176.185, subdivision 7, somehow releases the employer from liability under Chapter 176 once it has procured workers= compensation insurance.^[9]  Minnesota Statutes ' 176.185, subdivision 7, does not absolve an employer from its responsibility to pay workers= compensation benefits when its insurer becomes insolvent.  We agree with the employee that there is no conflict between ' 176.021 and ' 176.185.  While the employer was properly insured at the time of the employee=s injury and, evidently, does not have recourse to MIGA, we find nothing in chapter 176 to suggest that under such circumstances the loss be shifted to the employee.  Accordingly, we affirm the judge=s determination that the court has jurisdiction to award benefits against the employer.

 

V.  Constitutional Issues

 

The employer also argues that Minnesota Statutes ' 60C.09, subdivision 2(3), is unconstitutional, Aas it violates the employer=s right to due process and equal protection under the law and it is being applied to the employer retroactively and without regard to the employee=s date of injury.@  Whatever merit there may be to the employer=s arguments, MIGA is not a party to this case, and this court has neither subject matter jurisdiction over the employer=s claim against MIGA nor jurisdiction to determine constitutional issues.  As stated by the supreme court in Taft v. Advance United Expressway,

 

the legislature has provided a specific mechanism for dealing with claims against insolvent insurers in this state.  Claims are filed with the Guaranty Association, which determines if the claim is a covered claim and what payment is to be made.  If a claimant is dissatisfied, there is a prescribed procedure for further administrative and judicial review.

 

Taft v. Advance United Expressway, 464 N.W.2d 725, 727, 44 W.C.D. 35, 37-38 (Minn. 1991).  As in Taft, if the employer in the instant case wished to obtain a judicial construction of what constitutes a covered claim under chapter 60C or to challenge MIGA=s Aretroactive@ application of the statute, it should either have pursued an appeal from the association=s denial of its claim, as outlined in that chapter, or have brought a declaratory judgement action in district court.

 

In summary, we conclude that awards of permanent partial disability under Minnesota Statutes ' 176.101, subdivision 3(40) (1980), cannot exceed 500 weeks of benefits and that the simultaneous injury factor does not apply to awards under the internal organs provision of the statute.  We modify the compensation judge=s award as follows:

 

Internal Organs                                                 500 weeks

Skin                                                                  350 weeks

Right Leg                                                            22 weeks

Left Leg                                                             22 weeks

Spine                                                                  35 weeks

429 weeks

Simultaneous Injury Bonus (15% of 429)            64.35 weeks

493.35 weeks

 

Total Award                                                     993.35 weeks