MARK S. LABAW, Employee/Appellant, v. PEARSON AUTO BODY and FEDERATED MUT. GROUP, Employer-Insurer.

JANUARY 29, 2015

No. WC14-5752


TEMPORARY TOTAL DISABILITY; APPLICABLE LAW - CONTROLLING EVENT.  The compensation judge did not err by allowing discontinuance of the employee’s temporary total disability benefits based on attainment of maximum medical improvement where the employee had sustained work-related injuries causally related to his disability before and after 1984.


Determined by:  Cervantes, J., Milun, C.J., and Hall, J.
Compensation Judge:  Stacy P. Bouman

Attorneys:  Kenneth N. Potts, Attorney at Law, Minnetonka, MN, for the Appellant.  David N. Larson and Patricia M. Koth, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents.




The employee appeals a compensation judge’s determination to discontinue temporary total disability (TTD) benefits based on the employee reaching 90 days post-maximum medical improvement (MMI).  This appeal presents the issue as to what law governs the payment of temporary total disability benefits where the employee sustained admitted work-related injuries causally related to his disability before and after 1984.  We affirm.


On March 29, 1983, the employee, Mark Labaw, sustained work-related bilateral knee injuries while working for Pearson Auto Body, which was insured for workers’ compensation liability by Federated Insurance Company.  The employee attempted to stabilize a vehicle that was not centered on an air jack lift.  The weight of the vehicle forced the employee down onto a cement floor with both knees when the vehicle shifted.  The employee underwent left knee arthroscopic surgery in 1983 and right knee arthroscopic surgery in 1984; both surgeries performed by his treating orthopedic physician, Dr. Gary E. Wyard.  The surgeries were successful and the employee returned to auto body repair work without restrictions.

On February 22, 2006, the employee sustained a work-related right knee injury while working for self-insured Autoworks Collision.  The employee’s left foot slipped off a frame rack and the right leg became hung-up on the rack, resulting in excruciating pain of the right knee.  The employee was assessed with internal derangement due to the recent strain/sprain of the right knee, and arthritis of the right knee due to previous arthroscopic surgery.  Dr. Wyard indicated that at some point the employee would need total knee replacements.

The employee saw Dr. Wyard again on April 19, 2011.  He reported that his right knee had gotten progressively worse to the point that he had problems with walking, step-climbing, bending, and stooping.  X-rays indicated severe arthritis in both knees, bone-on-bone medial compartment wear with subluxation (dislocation).  Dr. Wyard was of the opinion that these conditions related back to the initial injury at Pearson in 1983.  Dr. Wyard and the employee were in agreement that the employee was ready for bilateral knee replacements.  The employee also claimed a bilateral knee Gillette[1] injury while working for his then-current employer Bergin Auto Body.  Dr. Wyard further opined that the work performed by the employee for Autoworks Collision was a substantial contributing condition to the Gillette injury.  Since his recovery from the arthroscopic surgeries in 1984, the employee continued to work without restrictions in the auto body industry and sought no temporary total benefits between injuries.

On June 21, 2011, the employee filed a claim petition against all three employers for the recommended bilateral knee replacement surgeries.  Dr. Wyard was of the opinion that the work performed for all three employers substantially contributed to the employee’s condition in 2011.  The first two injuries were admitted.  Bergin and its insurer Auto-Owners Insurance denied primary liability for the claimed 2011 Gillette injury.

Pearson and Federated paid temporary total disability benefits, medical expenses, and rehabilitation benefits under a temporary order issued on November 23, 2011, by a compensation judge.  Benefits were paid based on the 1983 date of injury.  All three employers, and their respective insurers, were listed on the temporary order.  No objections to the temporary order were received by the judge.

The parties stipulated that the employee reached MMI on November 20, 2013, and that Dr. Wyard’s MMI report was served on the employee by Pearson and Federated on January 31, 2014.  Pearson and Federated filed a notice of intention to discontinue temporary total disability benefits as of May 1, 2014, which was 90 days post-service of MMI.  The employee objected to the discontinuance on the ground that since the disability benefit payments were being paid under the 1983 injury, it was inappropriate to discontinue benefits based on the attainment of MMI since the law pertaining to MMI did not go into effect until January 1, 1984.

A hearing ensued on July 28, 2014.  The employee argued that he was entitled to ongoing temporary total disability benefits based on pre-1984 law.  The compensation judge determined that the law in effect at the time of the latest injury, either 2006 or 2011, was controlling and allowed the discontinuance of benefits.  The employee appealed.


A decision which rests upon 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.  Krovchuck v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The appeal of the employee presents the issue as to what law governs the payment of temporary total disability benefits where the employee sustained admitted work-related injuries before and after 1984.  The law in this area is well established.  We affirm.

On January 1, 1984, the Minnesota legislature put into effect a comprehensive overhaul of the Minnesota Workers’ Compensation statute.  Relevant to the matter before us, it enacted Minn. Stat. § 176.101, subd. 3e(a), which provided for the cessation of temporary total disability benefits 90 days after the attainment of maximum medical improvement.[2]  In the seminal case, Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the Minnesota Supreme Court considered the effect of this law change regarding an employee’s right to continuing temporary total disability benefits where the employee had sustained pre- and post-1984 work injuries.  In Joyce, the employee argued that since he was injured before 1984, he became vested under the “old” law to receive temporary total disability benefits for the rest of his life.

The Joyce court concluded it is “a basic tenant of workers’ compensation law that the substantive rights of employer and employee are fixed . . . by the law in effect on the date of the controlling event. . . .  [I]t is the most recent occurrence of a compensable personal injury which is the controlling event, and the law then in effect governs the employee’s rights with respect to the claim arising out of that injury.”  Id. at 307, 40 W.C.D. at 213 (citations omitted).  The court continued:

If a period of disability is precipitated by a “consequential” injury, a recurrence, or a mere temporary aggravation, which is simply a continuance of an earlier injury, as opposed to a new, separate injury, the original injury continues to be the controlling event, and the employee’s rights are governed by the Workers’ Compensation Act in effect on the date of the original injury.  If, on the other hand, the employee suffers a new, separate injury, that new injury supersedes the earlier injury as the controlling event, and the law in effect on the date of the new injury supersedes the law in effect at the time of the earlier injury.

Id. at 307-08, 40 W.C.D. at 213-14 (citations omitted).

In effect, the employee herein makes an argument similar to that in Joyce.  The employee relies on the compensation judge’s temporary order that Pearson and Federated, the “old” law employer and insurer, provide the temporary wage loss and other benefits.  The employee’s reliance on the judge’s order of temporary benefits is not determinative and misplaced.  The judge could have alternatively ordered Autoworks Collision, who had accepted liability to the 2006 injury, to pay benefits under the temporary order.  The judge noted:

While liability for the 2011 injury has not yet been adjudicated, the 2011 injury was asserted as a basis for the Temporary Order, along with both the 1983 and 2006 injuries.  Additionally, liability for both the 1983 and 2006 injuries has been admitted.  Only the apportionment of liability has yet to be determined.[3]

Relying on Joyce, the compensation judge concluded that the pre-1984 law did not control and that Pearson and Federated were entitled to discontinue temporary total disability benefits 90 days after service of MMI.  We agree and affirm.

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

[2] In 1995, the statute was recodified as Minn. Stat. § 176.101, subd. 1(j).

[3] Compensation Judge’s Memorandum at 4.  The parties settled the apportionment issue, after the hearing but before the compensation judge issued her Findings and Order, by filing of a Stipulation for Settlement with the Office of Administrative Hearings on August 4, 2014, with all three employers and insurers bearing some liability.