DENNIS SERSHEN, Employee/Respondent, v. METRO. COUNCIL, SELF-INSURED, Employer/Appellant, and STREATER, INC., and MN INS. GUAR. ASS’N, Employer-Insurer/Respondents, and TRUTH HARDWARE CORP. and AGI, Employer-Insurer/Respondents, and HEAR NOW, INC., Intervenor.

The self-insured employer, the Metropolitan Council, appeals the compensation judge’s order that it pay medical expenses arising from the employee’s occupational disease.  We affirm.

From 1986 through 2017, the employee, Dennis Sershen, worked in a variety of different capacities for several different employers, including Streater, Truth Hardware, SPX, ATEK, and the Metropolitan Council.  During these employments, he was exposed to occupational noise, and sometimes to very loud workplace environments.  Over time, the employee developed hearing loss and was prescribed hearing aids.

The employee was examined by Dr. Gordana Mumovic for hearing loss.  Dr. Mumovic concluded that the employee’s exposure to noise at all five of his employments was a substantial contributing factor to his hearing loss.  Dr. Mumovic also rated the employee with two percent permanent partial disability (PPD) due to his hearing loss and agreed that he needed hearing aids.

The employee was examined by Dr. Michael Hopfenspirger at the request of the self-insured employer.  Dr. Hopfenspirger agreed with Dr. Mumovic's assessment that the employee had hearing loss and with the recommendation for hearing aids.  He rated the employee with seven percent PPD.  Dr. Hopfenspirger, however, found that multiple factors contributed to the employee’s hearing loss in addition to occupational noise exposure, including the employee’s age and his medical history of smoking, diabetes, and high blood pressure.  Dr. Hopfenspirger opined that it was impossible to determine the relative contributions of these many factors and he could not say whether any one of them, including occupational exposure, was a substantial contributing factor.

The employee brought a claim against all of his former employers and their respective workers’ compensation insurers, seeking medical expenses, including the cost of hearing aids, and PPD benefits.  The employers and insurers all denied liability.  The intervenor, Hear Now, Inc., provided some of the medical care to the employee.

Prior to the hearing on the employee’s claims, the employee and intervenor entered into a Pierringer^[1] settlement with SPX and ATEK, and their respective insurers.  The settlement called for the settling employers and insurers to make a total payment of $4,500.00 to the employee ($3,600.00 after attorney fees), an additional payment of $2,000.00 in Roraff fees to the employee’s attorney, and a payment to the intervenor of $2,500.00 in partial payment of its intervention claim.  Consistent with Pierringer settlements, the employee maintained his right to seek workers’ compensation benefits from the remaining non-settling employers and insurers, but agreed to “hold harmless” the settling employers and insurers from “any claims for contribution and/or reimbursements” that might be brought by the non-settling employers and insurers.  The intervenor also retained its right to seek to collect the remaining balance of its intervention claim from the non-settling employers and insurers.

The employee’s claims for medical and PPD benefits against the remaining employers and insurers came on for hearing before a compensation judge on October 20 and 23, 2020.  On November 20, 2020, the compensation judge issued her Findings and Order.  The compensation judge found that the preponderance of the evidence established that the employee’s exposure to workplace noise was a substantial contributing factor to his hearing loss.  She also found that the last significant workplace noise exposure suffered by the employee was during his employment with SPX and that while the employee had occupational exposures to noise at his subsequent employers, ATEK and the Metropolitan Council, those exposures were not significant.  The compensation judge did not make any findings regarding the extent of the employee's entitlement to PPD benefits, determining the issue to be moot.  She ordered the Metropolitan Council, the last employer where any occupational exposure took place, to pay for the employee’s medical expenses, including payment to the intervenor.

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(3).  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 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), summarily aff’d (Minn. June 3, 1993).

The appellant makes two arguments on appeal.^[2]  First, the appellant argues that substantial evidence does not support the compensation judge’s finding that the employee suffered an occupational disease, specifically hearing loss.  Second, the appellant argues that even if there is a work-related hearing loss, it should not be liable for the employee’s hearing-loss-related medical expenses because the compensation judge found any noise exposure the employee had while working for the Metropolitan Council to be insignificant, and because of the Pierringer settlement.  We are not persuaded by these arguments.

The compensation judge discussed the opinions of Dr. Mumovic and Dr. Hopfenspirger, noting that both doctors opined that occupational exposure was one factor in the employee’s hearing loss.  Specifically, Dr. Mumovic opined that occupational exposure was a substantial contributing cause to the employee’s hearing loss.  On the other hand, Dr. Hopfenspirger opined that occupational exposure was an obvious factor but there were many other factors and that it was impossible to determine which factor or factors might be substantial.  After summarizing the opinions of these two doctors in Findings 23 and 24, the compensation judge found that the preponderance of the evidence showed the employee sustained an occupational disease of hearing loss arising out of his employments.  (Finding 25.)  It is thus clear that the compensation judge accepted the opinion of Dr. Mumovic over that of Dr. Hopfenspirger on the issue of whether the employee’s occupational exposure to noise was a substantial contributing factor to his hearing loss.

The Metropolitan Council argues that because Dr. Mumovic’s opinion that the employee’s noise exposure at the Metropolitan Council was significant was not accepted by the compensation judge, she necessarily must have rejected all of Dr. Mumovic’s opinion that any occupational noise exposure was significant.  We are not persuaded.  While the compensation judge did not adopt Dr. Mumovic’s opinion that the occupational exposure to noise at the Metropolitan Council was significant, she likewise did not adopt Dr. Hopfenspirger’s opinion that it was impossible to tell whether any of the occupational exposure at any of the employments was significant.  Instead, she found the employee’s occupational exposure to noise at SPX to be a significant factor, while the employee’s occupational noise exposure at the Metropolitan Council to be a factor, but not a significant one.  More importantly, she found the employee suffered occupational noise exposure that caused his hearing loss.^[3]

It is for the compensation judge to resolve conflicts between well-founded medical causation opinions.  See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017); see also Armstrong v. RJ Sport & Cycle, 73 W.C.D. 457, 470 (W.C.C.A. 2013) (a compensation judge may accept all or parts of any one expert opinion and may accept all or parts of the expert opinions from different experts).  Substantial evidence supports the compensation judge’s findings regarding medical causation.

When an employee suffers an occupational disease due to work exposures with multiple employers, “the insurer who was on the risk during the employee's last significant exposure to the hazard of the occupational disease is the liable party.”  Minn. Stat. § 176.66, subd. 10 (emphasis added).  The statute goes on to state that when a determination has not yet been made as to which insurer was on the risk during the employee's last significant exposure, then the insurer on the risk during the last exposure, significant or otherwise, shall make payments of compensation.  If it is later determined that this last insurer was not the insurer during the last significant exposure, then that last insurer can seek reimbursement, via a petition for contribution, from the insurer that was on the risk during the last significant exposure.  Under this statute, an injured employee receives compensation in a timely fashion, paid by the last insurer.  After that, the various insurers can sort out, through litigation, which employment had the last significant exposure.  The insurer during that last significant exposure will make payments of future compensation and, if it was not the last insurer, be liable to reimburse that last insurer which made payments of past compensation.

Minn. Stat. § 176.135, subd. 5, however, modifies the occupational disease statute.  It states that regardless of Minn. Stat. § 176.66, payments for medical expenses for an occupational disease “shall be made by the employer and insurer on the date of the employee’s last exposure to the hazard of the occupational disease.”  Minn. Stat. § 176.135, subd. 5 (emphasis added).  In other words, for medical expenses related to an occupational disease, it does not matter whether the employee’s last exposure was significant, and the employer and insurer on the risk during the time of the last exposure must make payment of the medical expenses.  This last insurer has a right to seek reimbursement under Minn. Stat. § 176.66, subd. 10, from the insurer on the risk during the last significant exposure, but “only in the case of disablement.”  The legislature, therefore, appears to have contemplated that there might be some circumstances, specifically cases where there is not disablement, when the insurer during the last exposure would pay medical expenses but not receive reimbursement from the insurer during the last significant exposure.

The appellant argues that there is a finding that the employee’s occupational noise exposure while employed with the Metropolitan Council was not significant and thus the order that it be liable for the employee’s medical expenses arising from his occupational noise exposure is contrary to the spirit of the Workers’ Compensation Act.  The appellant asserts that the result is absurd, in that an employer and insurer could be liable to pay for an employee’s medical expenses due to a work injury when there was no significant occupational exposure with that employer.  A plain reading of the statute fails to support this argument.  Minn. Stat. § 176.135, subd. 5, calls for the insurer during the last exposure, even if not significant, to make medical payments for the occupational disease.  As noted above, when the payer is not the insurer during the last significant exposure and has made medical payments pursuant to this statute, that insurer may be reimbursed, but only in cases of disablement. 

The appellant argues that the compensation judge’s failure to rule on the extent of the employee’s PPD rating combined with the Pierringer settlement effectively bars it from being able to make a petition for contribution again SPX.  This argument proceeds in several steps.  First, it asserts that an employee’s PPD constitutes a “disablement” as discussed in Minn. Stat. § 176.135, subd. 5.  Second, it asserts that a disablement would provide it a right of reimbursement from SPX under the same statute for medical payments it was ordered to make.  Third, it asserts that the compensation judge therefore erred in failing to determine PPD, thereby precluding it from being able to assert there is a disablement which would allow it to seek reimbursement from SPX.  Fourth, it argues that even if there is a disablement, it is still wrongfully precluded from seeking reimbursement from SPX due to the Pierringer settlement, to which it was not a party, thereby making it such that the employee and SPX effectively conspired to limit the Metropolitan Council’s right to reimbursement.  We are not persuaded by this argument.

The employee sought PPD and medical benefits, but before the hearing, he settled his claims with SPX on a Pierringer basis which provided, among other things, that the employee would hold SPX harmless from any claims of reimbursement brought by another employer and insurer.  The compensation judge determined that the employee suffered from workplace noise exposure at all five of his employers, including the Metropolitan Council, but that the exposure at SPX was the last significant exposure.  Due to the Pierringer settlement, the employee had no further claims for any benefits from SPX and thus the compensation judge could not award PPD benefits to the employee to be paid by SPX.  Because of the compensation judge’s finding that the noise exposure at the Metropolitan Council was not significant, the employee could not receive PPD benefits from the Metropolitan Council pursuant to Minn. Stat. § 176.66, subd. 10.  Consequently, because the employee could not be awarded any PPD benefits in this proceeding, the compensation judge found that the issue of the exact nature and extent of the employee’s PPD was moot.  The compensation judge then awarded medical benefits, payable by the Metropolitan Council, to the employee, including payment to the intervenor, pursuant to Minn. Stat. § 176.135, subd. 5.  There was no error by the compensation judge in failing to address the nature and extent of the employee’s PPD, if any.  It was, as she found, a moot issue for this particular proceeding because only the employee’s claims for workers’ compensation benefits were at issue during the hearing.

The Metropolitan Council’s arguments relate more to a potential future claim for reimbursement against SPX on a petition for contribution.  The issues raised, whether the employee has a PPD rating, and if so, whether that rises to establish “disablement” as called for under Minn. Stat. § 176.135, subd. 5, are all still preserved for such future litigation, as the compensation judge did not find that there was no PPD rating for the employee, simply that she did not need to address it given her other findings.  Likewise, the issue of whether the Metropolitan Council is bound by the Pierringer settlement, an agreement to which it was not a party, and how that settlement affects the rights and responsibilities of SPX and the employee, are also preserved for that potential petition for contribution.  Again, these issues were not part of the employee’s claims against the remaining employers and insurers at the hearing before the compensation judge.  The compensation judge simply ordered the Metropolitan Council to make payment of medical benefits, consistent with her findings and the statutory language.^[4]