DONALD W. SORBY, Employee/Cross-Appellant, v. SOIL TESTING SERVS. OF MINN., and CNA INS. CO., Employer-Insurer, and DCI, INC., and STATE FUND INS. CO., Employer-Insurer/Appellants, and MN DEP=T OF EMPLOYMENT & ECON. DEV., MEDICA/HEALTHCARE RECOVERIES, INSTITUTE OF LOW BACK AND NECK CARE, HAPETH PRESCRIPTION SHOP, CENTER FOR DIAGNOSTIC IMAGING, ABBOTT-NORTHWESTERN HOSP., NORTH STAR THERAPY, LTD., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 2, 2006

 

No. WC06-118

 

HEADNOTES

 

APPORTIONMENT - EQUITABLE; JURISDICTION - OUT-OF-STATE INJURY.  Because the compensation judge erred by including a Texas work injury in her equitable apportionment of responsibility for wage loss and medical expense benefits, remand was required to allow apportionment between the two liable Minnesota employers.

 

APPORTIONMENT - EQUITABLE; APPORTIONMENT - PERMANENT PARTIAL DISABILITY.  The compensation judge erred in equitably apportioning responsibility for the employee=s permanent partial disability to a Texas employer; the issue was whether the employee=s Minnesota work injury was a substantial contributing cause of the claimed additional permanent impairment.

 

Reversed and remanded.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Cross-Appellant.  Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondents.  Mark A. Kleinschmidt, Cousineau McGuire, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

DCI, Inc., and State Fund Mutual Insurance Company appeal from the compensation judge=s equitable apportionment of liability for benefits payable to the employee after October 4, 2000.  The employee cross-appeals from the judge=s denial of benefits for permanent partial disability beyond those already paid.  We reverse and remand for further proceedings consistent with this opinion.

 

BACKGROUND

 

On February 5, 1981, the employee sustained a work-related injury to his low back while employed by Soil Testing Service of America, which was insured for workers= compensation purposes by CNA Insurance Company.  Conservative care failed to alleviate his low back and left leg pain, and on November 13, 1981, the employee underwent surgery in the nature of a laminectomy and partial foraminotomy at L4-5.  Following his recovery from surgery, the employee had little or no additional low back treatment over the next nine years.  Soil Testing Service and CNA apparently admitted liability for the February 1981 injury and paid the employee various benefits, including benefits for a 15% permanent partial disability of the back.

 

In 1990, the employee moved to Texas and obtained employment in a warehouse, where he sustained a lifting injury in June of 1991.  In October of 1991, after diagnostic tests and conservative treatment for low back and left leg pain, the employee underwent another low back surgery, consisting of left-sided laminectomies and discectomies at L4-5 and L5-S1.  The employee was subsequently advised to limit his lifting and was eventually rated by Texas doctors as having a 14% whole body impairment under AMA guidelines.

 

The employee experienced a substantial increase in low back and leg symptoms after walking extensively at a Dallas Cowboys football game in the fall of 1992.  In January of 1993, after more diagnostic tests, he underwent a third low back surgery, this time a discectomy at L4-5 and a fusion with instrumentation at L4-5 and L5-S1.  At some point, the employee=s Texas employer paid the employee various benefits under Texas workers= compensation law, including benefits for a 14% impairment.

 

The employee returned to live in Minnesota in June of 1993 and began receiving treatment for low back and leg symptoms from Dr. William Akins at the Institute for Low Back Care.  In the fall of 1993, the employee underwent another surgery, to remove the fusion hardware.  Tests eventually revealed that the fusion had failed, and Dr. Akins performed the employee=s fifth low back surgery in the spring of 1994 - - an anterior-posterior fusion from L4 to S1, using femoral ring allographs.  Scans later indicated that this fusion was not solid at L4-5.

 

After recovering from the second fusion procedure, the employee was self-employed in the bar business for some period and then became a kitchen manager at a Ground Round Restaurant, where he aggravated his low back condition, temporarily, in the spring of 1997.  The employee recovered from this flare up and went on to work at two other jobs, one of which required lifting of 40 to 50 pounds.

 

In January of 2000, the employee underwent a pre-employment physical in connection with his application for a stockroom job at DCI, Inc.  This job required frequent lifting of up to 75 pounds and occasional lifting of 100 pounds.  The employee passed the physical and performed the stockroom job without additional low back treatment until the fall of 2000.

 

On October 4, 2000, the employee sustained a work-related low back injury in his job with DCI while attempting to lift a 140-pound box.  He experienced immediate, severe low back and left leg pain and began treating for his back condition again.  About a year and a half later, in April of 2002, he underwent a sixth lumbar surgery, an L4-5 fusion with instrumentation and a left laminectomy with neurolysis at L4-5.  In an effort to treat the employee=s ongoing back pain, surgeons later removed the fusion hardware.  This time, the fusion at L4-5 apparently remained solid.

 

The employee returned to DCI with a ten-pound lifting limit in the fall of 2002, following his sixth surgery.  About a year later, he obtained a relatively sedentary job with a different employer.

 

The matter initially came before a compensation judge in December of 2003 for resolution of various issues, including the nature and extent of the employee=s 1981 injury, if any, at Soil Testing, the nature and extent of the employee=s 2000 injury at DCI, whether claims for the 1981 injury were barred by the statute of limitations, the extent of the employee=s permanent partial disability, and apportionment.  In a decision issued on February 6, 2004, the judge concluded, among other things, that the employee=s claim with respect to the 1981 injury was barred by the statute of limitations, in that there was no evidence of record that Soil Testing and CNA had paid benefits after that injury, and the claim was not filed until more than six years had passed.  The judge also concluded that the 2000 injury at DCI was permanent and was a substantial contributing cause of the employee=s disability after October 4, 2000.  The judge apportioned responsibility for the employee=s wage loss and need for treatment after October 4, 2000, as follows: 10% to the 1981 injury at Soil Testing; 65% to the 1991 Texas work injury and the Texas non-work flare up; and 25% to the 2000 injury at DCI.  However, because of her finding that claims for the 1981 injury were barred by the statute of limitations, and because she had no jurisdiction over the Texas employer, the judge found DCI liable for 100% of the benefits payable after October 4, 2000.  Finally, concluding that all of the employee=s ratable permanent partial disability preexisted the 2000 work injury, the compensation judge denied the employee=s claim for additional permanent partial disability benefits.

 

No party appealed from the judge=s decision.  However, after that decision was issued, Soil Testing=s insurer, CNA, discovered records pertaining to the 1981 work injury, and DCI petitioned to vacate the judge=s decision on grounds of newly discovered evidence.  In a decision issued on October 1, 2004, a panel of the Workers= Compensation Court of Appeals granted the petition and vacated the judge=s decision, remanding the matter to the judge for new findings and order.  The new evidence submitted in connection with the petition to vacate established that benefits had been paid following the 1981 injury so as to toll the statute of limitations.  Sorby v. DCI, Inc., No. WC04-167 (W.C.C.A. Oct. 1, 2004).

 

The matter came on for hearing before the judge on remand on November 2, 2005.  Issues at that time included the employee=s claim for additional benefits for permanent partial disability related to the 1981 injury and equitable apportionment of liability between Soil Testing for the 1981 injury and DCI for the 2000 injury.  Evidence included medical records related to the employee=s extensive low back treatment as well as apportionment and/or causation opinions from several physicians, including Drs. John Dowdle, Robert Wengler, and Nolan Segal.  The parties agreed that the compensation judge could incorporate by reference all findings from the previous decision, except those findings dealing with the statute of limitations.

 

In a decision issued on January 24, 2006, the compensation judge concluded that, while the employee currently had a total permanent partial disability rating of 70% of the back under the law in effect at the time of the 1981 injury, Soil Testing was liable for only 10% of that permanent disability, or 7% of the back, based on equitable apportionment principles.  Therefore, because Soil Testing had already paid the employee benefits for a 15% permanent partial disability of the back, no additional permanent partial disability benefits were awarded.  The judge also concluded that DCI was liable for the portion of disability previously apportioned to the employee=s Texas injuries - - 65% - - thereby making DCI responsible for 90% of the wage loss and medical expenses payable to the employee after the October 4, 2000, work injury (65% apportioned to Texas injuries + 25% apportioned to 2000 DCI injury).  Soil Testing was found liable for the remaining 10%.  DCI appeals from the judge=s apportionment decision; the employee cross-appeals from the judge=s denial of permanent partial disability benefits.

 

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 (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] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

1.  Equitable Apportionment

 

In her initial findings and order, the compensation judge determined that responsibility for the employee=s disability and need for treatment following the October 4, 2000, work injury should be apportioned 10% to the employee=s 1981 injury at Soil Testing, 65% to the 1991 Texas work injury and the subsequent Texas Anon-work flareup,@ and 25% to the 2000 work injury at DCI.

 

At the hearing on remand, the parties focused on how to deal with the responsibility apportioned by the judge to the Texas injuries.  Soil Testing contended, in part, that it could not be held responsible for disability resulting from the after-occurring injuries in Texas, whereas DCI contended that Soil Testing should be liable for the employee=s subsequent disability, in that the subsequent disability was causally related to the 1981 injury.  In the alternative, DCI argued that each Minnesota employer should bear responsibility for a pro rata share of the disability assigned by the compensation judge to the Texas injuries, pursuant to the Workers= Compensation Court of Appeal=s reasoning in the case of Groth v. Dotson Co., 61 W.C.D. 52 (W.C.C.A. 2000).  In that case, a panel of this court determined that the portion of disability attributed to an insolvent insurer, and thereby MIGA - - which could not be held liable for contribution - - should be proportionately divided between the remaining solvent insurers.  The compensation judge found Groth inapplicable and held that DCI, liable for the last Minnesota work injury, was responsible for all the disability attributable to the Texas injuries, on the theory that DCI Atook the employee as it found him.@

 

The parties have cited no cases clearly establishing exactly how equitable apportionment should be accomplished in cases such as this one, where an employee sustains an injury governed by another state=s workers= compensation laws during a period between two work injuries compensable in Minnesota.  However, both Soil Testing and DCI again frame the issue as one involving a determination as to which employer should bear responsibility for the disability equitably apportioned to the Texas injury or injuries.  We conclude, however, that the employers and the compensation judge have misconstrued the nature and purpose of equitable apportionment.

 

As a general rule, equitable apportionment is available to allow contribution, on an equitable basis, from two or more employers or insurers that may be held liable for an employee=s disability.  Except in rare circumstances, see, e.g., Pearson v. Foot Transfer Co., 301 Minn. 489, 221 N.W.2d 710, 27 W.C.D. 535 (1974), the doctrine has no application to injuries that are not compensable under the Minnesota workers= compensation act.  It is clear that Minnesota workers= compensation courts have no jurisdiction over work injuries or employers in other states.  As such, those injuries are simply irrelevant to equitable apportionment disputes between Minnesota employers.  In the present case, as all parties acknowledge, the compensation judge had no jurisdiction over the employee=s Texas employer.  Consequently, no purpose was served by including the Texas injury in the equitable apportionment determination.  In this respect, the Texas injury is no different from a nonwork-related accident or injury.^[1]

 

The compensation judge erred in attributing 65% of the employee=s disability to the Texas injuries, and we find no sound basis to conclude that one employer or the other should, as a matter of law, be held solely responsible for the effects of the Texas injuries.^[2]  Rather, we see this as a straightforward issue of equitable apportionment between Soil Testing for the 1981 injury and DCI for the 2000 injury.  We therefore reverse the judge=s decision and remand for reconsideration of the issue, considering the usual factors relevant to equitable apportionment, including, but not limited to, Athe nature and severity of the initial injury, the employee=s physical symptoms following the initial injury and up to the occurrence of the second injury, and the nature and severity of the second injury.@  Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 200, 226 N.W.2d 888, 891, 27 W.C.D. 797, 800 (1975).

 

2.  Permanent Partial Disability

 

The compensation judge determined that the employee had a 70% permanent partial disability of the back following the employee=s 2000 work injury at DCI and that all of that permanent partial disability preexisted the 2000 injury, meaning that DCI was not liable for payment of any permanent partial disability benefits.  See Minn. Stat. ' 176.101, subd. 4a.  These conclusions are undisputed on appeal.  The compensation judge also concluded, however, that Soil Testing, the employee=s employer at the time of the 1981 injury, was not liable for permanent partial disability benefits beyond the benefits for 15% of the back that Soil Testing had paid to the employee after the 1981 injury.  The judge arrived at this conclusion by equitably apportioning the employee=s 70% permanent partial disability using the same percentages she had applied to other benefits:  10% to Soil Testing; 65% to the Texas injuries; and 25% to DCI.  Using this analysis, the judge determined that Soil Testing was in reality liable only for a 7% permanent partial disability of the back, and she suggested that the employee should look to his Texas employer for any additional benefits, on the theory that, pursuant to Pearson v. Foot Transfer Co., 301 Minn. 489, 221 N.W.2d 710, 27 W.C.D. 535 (1974), Soil Testing could not be held Aliable for the 65% permanent partial disability apportioned to the employee=s Texas work injuries.@  We reverse.

 

Initially, we note that the judge apportioned permanent partial disability using the same percentages that she applied to wage loss benefits and medical expenses, and we have reversed her decision on that issue.  More importantly, we are unaware of any cases allowing equitable apportionment of permanent partial disability to an injury sustained in another state.  It seems to us that the determinative question is whether the employee=s 1981 injury was a substantial contributing cause of the permanent partial disability for which benefits have been sought.  Cf. Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 497-98, 40 W.C.D. 117, 122 (Minn. 1987) (it is not necessary for an employee to show that a work injury is the sole cause of disability; A[i]t is only necessary to show that the injury was a legal cause, that is, an appreciable or substantial contributing cause@).  If so, Soil Testing is liable for the additional benefits, with credit for the permanent partial disability benefits paid by the employee=s Texas employer.  See Pierce v. Robert D. Pierce, Ltd., 363 N.W.2d 76, 37 W.C.D. 514 (Minn. 1985).  If, on the other hand, the 1981 injury was not a substantial contributing cause - - that is, the Texas work injury was the sole legal cause of the additional claimed permanent impairment - - Soil Testing would not be responsible for payment.  See also Fleener v. CBM Indus., 564 N.W.2d 215, 56 W.C.D. 495 (Minn. 1997) (attributing specific permanency ratings to discrete work injuries Ahas nothing to do with equitable apportionment@); DeNardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 42 W.C.D. 626 (Minn. 1990).  Resolution of the issue here is not dependent on principles of apportionment but rather on medical and legal causation, and, as with all benefit determinations, the employee bears the burden of proof.  However, we know of nothing in the law that would require the employee to seek benefits in Texas for permanent partial disability substantially attributable to a Minnesota work injury.  We therefore remand the matter to the judge for reconsideration and further findings on this issue as well.