CAUSATION – PERMANENT AGGRAVATION. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a work-related permanent aggravation of a preexisting condition.
APPORTIONMENT – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge’s determination of apportionment.
INTERVENORS – DIRECT CLAIMS. Where potential intervenors’ interests had been extinguished by prior order and the employee’s attorney did not unequivocally establish representation of parties which had not intervened in the matter, the attorney could not make direct claims for their interests.
Compensation Judge: Adam S. Wolkoff
Attorneys: James A. Batchelor, Mottaz & Sisk Injury Law, Coon Rapids, Minnesota, for the Employee/Respondent. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants. M. Elizabeth Giebel, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for the Employer-Insurer/Respondents.
Affirmed in part and reversed in part.
THOMAS J. CHRISTENSON, Judge
The employer, Concrete Treatments, Inc., and its insurer, Technology Insurance Company, appeal the compensation judge’s findings that the employee sustained a work injury on October 1, 2018, which was a substantial contributing factor to his low back disability and need for surgery. They also appeal from an apportionment determination and from an order for reimbursement to the intervenors. We affirm in part and reverse in part.
Daniel Johnson, the employee, began working for Furniture & Things, Inc., in October 2003 as a warehouse/delivery worker. He unloaded trucks and received, assembled, and delivered furniture. On March 4, 2005, the employee sustained an admitted low back injury while delivering an entertainment center. MRI imaging performed on September 2, 2005, revealed that the employee had sustained a L5-S1 disc herniation caused by the work injury. The employee underwent a neurological evaluation on September 23, 2005, and was given a lumbar epidural steroid injection on October 3, 2005. By October 19, 2005, the employee reported improvement to his low back and leg symptoms.
Furniture & Things and its insurer, SFM Mutual Insurance Company, accepted primary liability and paid workers’ compensation benefits including compensation for seven percent permanent partial disability (PPD) and medical expenses. On September 29, 2006, the employee was given notice that he had reached maximum medical improvement on September 16, 2006. He continued working for Furniture & Things until 2011, at which time his employment was terminated for reasons unrelated to the work injury.
The employee started working as a self-employed concrete polisher. By 2014, the employee was working for a different concrete polishing company. In 2016, the employee began working for Concrete Treatments, the employer, as a lead worker. He managed a crew and performed some physical work, including running a grinder, polishing concrete, and loading trucks. He worked full time and did not miss any significant amount of time from work between 2016 and October 1, 2018. Between November 28, 2005, the date of the employee’s last epidural injection, and October 1, 2018, he had some low back symptoms. Other than chiropractic treatment, he did not seek further medical treatment.
On October 1, 2018, while working for Concrete Treatments, the employee was bent over removing a door hinge in order to maneuver equipment through the doorway when he felt shooting pain and stiffness in his low back and radiating pain into his legs. He did not seek immediate medical treatment. Approximately one month later, on November 2, 2018, the employee was seen by Dr. Garry Banks at Twin Cities Orthopedics. He reported chronic low back pain since his 2005 work injury, but that his pain became unmanageable on October 1, 2018, when he experienced a marked increase of his low back pain radiating down both of his legs. Dr. Banks diagnosed lumbar strain, although he also suggested the employee might have a new disc herniation. Dr. Banks recommended an MRI scan if the employee’s pain did not improve over the next two months.
On December 27, 2018, the employee was involved in a motor vehicle accident and complained of neck pain. Following chiropractic care he received from Dr. Howard Johnson at Power Within Chiropractic in early 2019, the employee’s neck symptoms resolved, but his low back pain symptoms remained. Throughout the remainder of 2019 and all of 2020, the employee did not seek further medical treatment and continued working for Concrete Treatments without formal work restrictions. However, he testified that he obtained assistance in performing certain activities, such as repetitive heavy lifting.
The employee returned to Dr. Johnson on April 12, 2021, with complaints of symptom progression and intensification. An MRI scan revealed a moderate-sized central disc extrusion at L5-S1 contributing to severe spinal canal stenosis with compression of the cauda equine nerve roots, moderate spinal canal stenosis at L4-5, and moderate neural foraminal stenosis at L4-S1. Based upon the scan, Dr. Johnson recommended that the employee not work and consult a spine specialist.
On April 22, 2021, the employee returned to Dr. Banks, who recommended surgery. A bilateral decompression/discectomy at L5-S1 was performed at Maple Grove Hospital on May 4, 2021. Following surgery, the employee remained off work and underwent physical therapy. He eventually returned to work at Concrete Treatments as a project manager.
Dr. Johnson issued a report dated May 16, 2021, opining that the employee’s work injury in 2005 caused a disc lesion that never fully resolved, which led to degenerative changes in the disc-supporting ligaments. He apportioned liability for the employee’s condition at 40 percent to the 2005 work injury and 60 percent to the motor vehicle accident on December 27, 2018, making no reference to the October 1, 2018, work injury at Concrete Treatments. (Ex. C.)
The employee was examined by Dr. Mark Engasser on behalf of Furniture & Things and its insurer. In his report dated August 24, 2021, Dr. Engasser opined that the 2005 and the October 1, 2018, work injuries were permanent, substantial contributing causes of the employee’s low back condition and need for medical care and that the surgery performed by Dr. Banks was reasonable and necessary. He also stated that any injury the employee sustained on December 27, 2018, was minor, temporary, and did not contribute to the permanent low back injury. Dr. Engasser rated the employee’s PPD at 15 percent and apportioned liability at 40 percent to the 2005 injury and 60 percent to the October 2018 injury. (Ex. 4.)
On November 12, 2021, Dr. Eric Deal prepared an independent medical examination (IME) report on behalf of Concrete Treatments and its insurer. Dr. Deal was not provided the actual radiology images for review but was able to review the reports. He opined that the employee did not suffer a permanent injury on October 1, 2018, or December 27, 2018, and that any injuries sustained on these dates were self-limited exacerbations of a preexisting condition. He further opined that the 2005 work injury was permanent and a substantial contributing factor in the employee’s need for surgery. Regardless of causation, he considered the employee’s medical treatment reasonable and necessary. (Ex. 2A.)
Dr. Banks provided a written report dated April 15, 2022, in which he opined that the 2005 and October 2018 injuries were substantial contributing factors to the employee’s low back condition and need for surgery, but that the December 27, 2018, injury did not significantly contribute to the employee’s need for surgery. He also opined that the employee’s condition required him to be off work from April 3 to July 18, 2021, and apportioned liability at 50 percent to the 2005 injury and 50 percent to the October 2018 injury. He recommended permanent restrictions and rated the employee’s PPD at 23 percent as a result of the L4-S1 stenosis, the L5-S1 herniation, and the two-level decompression surgery. (Ex. A and Ex. B.)
The employee filed a claim petition on May 13, 2021, seeking temporary total disability (TTD) benefits, rehabilitation assistance, and payment of outstanding medical expenses, including those for Dr. Johnson’s treatment, for the lumbar MRI scan at Twin Cities Orthopedics, and for the surgery performed by Dr. Banks. The claim petition listed the March 2005 and October 2018, work injury dates and a December 27, 2018, date of injury. Furniture & Things and its insurer filed an answer admitting liability but alleged their date of injury was not a substantial contributing factor to the employee’s condition entitling him to workers’ compensation benefits. Concrete Treatments and its insurer filed an answer denying primary liability.
In a September 23, 2021, order on a motion by Furniture & Things, the compensation judge extinguished the potential intervention interests of Twin Cities Orthopedics and Power Within Chiropractic. There is no indication in the record that the order was appealed.
The matter came before a compensation judge on April 29, 2022. At the hearing, the employee withdrew his claim for the December 27, 2018, date of injury and asserted direct claims for the medical expenses incurred at Twin Cities Orthopedics and Power Within Chiropractic.
In his Findings and Order issued on July 13, 2022, the compensation judge found that the employee sustained an aggravation to his preexisting low back condition arising out of and in the course and scope of his employment on October 1, 2018; that the March 4, 2005, and the October 1, 2018, work injuries were substantial contributing factors to the employee’s need for medical care and surgery to treat his low back condition; that the medical treatment provided by the intervenors was reasonable, necessary, and causally related to the employee’s work injuries; that the employee is entitled to TTD benefits and reimbursement of his claimed medical expenses; that the employee could make direct claims for medical expenses; and apportioned liability for the employee’s low back condition at 40 percent to the May 4, 2005, injury and 60 percent to the October 1, 2018, injury.
Concrete Treatments and its insurer appeal.
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 appellants first argue that the compensation judge applied an incorrect legal standard in finding that the employee sustained a work-related low back injury on October 1, 2018, while working for Concrete Treatments, asserting that the judge applied the standard for a Gillette injury instead of a specific injury. We are not persuaded. There is no contention in this case that the employee sustained a Gillette injury.[1] In determining that Gillette injuries were compensable under Minnesota’s workers’ compensation law, the Minnesota Supreme Court noted the well-recognized principle that when the usual tasks of an employee’s work substantially aggravate, accelerate, or combine with a preexisting disease to produce a disability, the entire disability is compensable. Gillette v. Harold, Inc., 257 Minn. 313, 317, 101 N.W.2d 200, 206, 21 W.C.D. 105, 115 (1960); see also Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975); Vanda v. Minn. Mining & Mfg. Co., 300 Minn. 515, 218 N.W.2d 458, 27 W.C.D. 379 (1974). This principle, however, is not limited to Gillette-type injuries and applies to specific injuries as well. See Parker v. Foley Locker, Inc., 77 W.C.D. 367 (W.C.C.A. 2017) (a work-related injury from a slip and fall which aggravated a preexisting back condition was compensable); Jarveis v. Carroll Distrib., 76 W.C.D. 999 (W.C.C.A. 2016) (an injury from a work-related motor vehicle accident which aggravated a preexisting back condition was compensable).
While the employee in this case had a preexisting low back condition in the form of a herniated disc as a result of the 2005 work injury, it is not necessary that the work injury be the only cause of the condition for which benefits are sought. A work injury is compensable where the injury is a substantial contributing factor of the employee’s condition. See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 498, 40 W.C.D. 117, 122 (Minn. 1987); Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 380, 129 N.W.2d 550, 558, 23 W.C.D. 573, 592 (1964). In this case, the compensation judge reasonably concluded that the employee’s work activities while working for the appellants on October 1, 2018, combined with his preexisting condition, produced a disabling, compensable injury. The compensation judge did not use an incorrect legal standard in making this finding.
The appellants also argue that substantial evidence does not support the compensation judge’s finding that the employee sustained a work injury on October 1, 2018. The judge adopted the expert medical opinions of Dr. Engasser and Dr. Banks that the work injury on October 1, 2018, was a substantial contributing factor of his current condition in that it aggravated the employee’s preexisting low back condition, which had previously not been disabling. This court must defer to the fact finder’s choice of expert opinion unless the facts assumed by the expert in rendering an opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Moreover, we note the opinion of Dr. Deal, that the October 1, 2018, incident caused an exacerbation of the employee’s preexisting low back condition, also supports the judge’s finding. The compensation judge’s determination, that the employee sustained a compensable injury to his low back on October 1, 2018, as the result of his employment with Concrete Treatments, is supported by substantial evidence when reviewing the entire record as a whole and is affirmed.[2]
The appellants also argue that the employee’s October 1, 2018, work injury was neither a permanent aggravation of his low back condition nor a substantial contributing cause of his disability and need for treatment. In determining whether a work-related incident is a temporary or permanent aggravation of a preexisting condition, factors to be considered include: 1) the nature and severity of the preexisting condition and the extent of any restrictions and disability; 2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; 3) the nature and severity of the aggravating incident and the extent of subsequent restrictions and disability; 4) the nature of the symptoms and extent of medical treatment following the aggravating incident; 5) the nature and extent of the employee’s work duties and nonwork activities during the relevant period; and 6) medical opinions on the issue. Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. Aug. 29, 1994); see also Weigand v. Indep. Sch. Dist. No. 2342, 74 W.C.D. 503, 512 (W.C.C.A. 2014). The application of these factors in a particular case is a question of fact for the compensation judge. Wold, slip op. at 5.
The appellants note that the employee continued to work as a concrete polisher following the October 2018 incident without formal restrictions and contend that substantial evidence thus does not support the judge’s finding of a permanent injury. We disagree. After the October 1, 2018, work injury, the employee’s low back and leg symptoms worsened, and he sought treatment from Dr. Johnson and later with Dr. Banks. Dr. Johnson and Dr. Banks each took the employee’s history, examined the employee, reviewed imaging, provided treatment, and recommended additional care, including the surgery later performed by Dr. Banks. Dr. Engasser also obtained a history from the employee, reviewed his medical records, and conducted a physical examination of the employee. Explicitly relying on the adequately founded opinions of Dr. Banks and Dr. Engasser, the judge concluded that the 2005 and 2018 work injuries were both substantial contributing factors to the employee’s low back condition and need for medical treatment, including surgery. Further, the compensation judge considered the employee’s credible testimony of self-treatment and lack of significant ongoing low back symptoms following the 2005 injury.
The record provides substantial evidence to support the compensation judge’s finding that the employee permanently aggravated his low back condition resulting in increased symptoms following the October 1, 2018, work injury. We affirm the compensation judge’s finding that the employee’s October 1, 2018, work injury was a substantial contributing factor to his permanent low back condition, need for medical care, surgery, and missed time from work.
The appellants also appeal the compensation judge’s determination of apportionment. Equitable apportionment determines the contribution between two or more employers or insurers liable for an employee’s disability. Equitable apportionment is not merely a medical determination and is ultimately a question of fact for the compensation judge based on the facts of each case. See Ringena v. Ramsey Action Programs, 40 W.C.D. 880 (W.C.C.A. 1987), summarily aff’d (Minn. Mar. 28, 1988). Factors to be considered in reaching an apportionment decision include, but are not limited to, the nature and severity of the initial injury, the employee’s symptoms following the initial injury up to the occurrence of the subsequent injury, and the nature and severity of the subsequent injury. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 226 N.W.2d 888, 27 W.C.D. 797 (1975).
Here, the medical evidence is extensive and the medical opinions on apportionment varied. As noted above, the compensation judge found that the employee permanently aggravated his low back condition, which resulted in increased symptoms following the October 1, 2018, work injury. The compensation judge apportioned liability for the employee’s low back condition at 40 percent to the March 4, 2005, injury and 60 percent to the October 1, 2018, injury, citing Dr. Engasser’s opinion.[3] While the record in this case would support other apportionment determinations, this court will not substitute our judgement for that of the compensation judge. Giem v. Robert Giem Trucking, 46 W.C.D. 409 (W.C.C.A. 1992); compare Sundquist v. Kaiser Eng’rs, Inc., 456 N.W.2d 86, 42 W.C.D. 1101 (Minn. 1990). The compensation judge’s apportionment determination is affirmed.
The appellants also argue that the compensation judge erred by failing to address the intervention interests of intervenor North Memorial Ambulatory Surgery Center, by allowing the employee to bring direct claims for medical expenses incurred at Twin Cities Orthopedics and Power Within Chiropractic, and by granting all of the intervenors’ claims for reimbursement.
North Memorial Ambulatory Surgery Center served and filed its motion to intervene on August 4, 2021, without objection, and is listed as an intervenor on the findings and order. The judge did not specifically list this intervenor’s claim to be paid in the findings and order, but Order 3 on its face granted all intervenors’ claims for reimbursement. There are no specific findings as to the reasonableness, necessity, or causation of the medical treatment provided by North Memorial Ambulatory Surgery Center and the medical bills submitted for this treatment are solely related to carpal tunnel treatment and a July 15, 2020, surgery for that condition. The employee has never made a claim for carpal tunnel syndrome as a result of the March 4, 2005, or October 1, 2018, dates of injury, and treatment for carpal tunnel was not a matter at issue before the compensation judge at the hearing. There are no medical records connecting the carpal tunnel treatment and subsequent surgery to either date of injury. After reviewing the record before this court, we reverse Order 3 to the extent it reimburses expenses for carpal tunnel treatment and the July 15, 2020, surgery at North Memorial Ambulatory Surgery Center, because it is clearly erroneous and unsupported by the record.
Finally, the employee asserted direct claims for the expenses incurred at Twin Cities Orthopedics and Power Within Chiropractic. These potential intervenors’ interests were extinguished by the compensation judge’s September 23, 2021, order. In addition, there is no evidence in the hearing transcript, the July 13, 2022, Findings and Order, or in the record on appeal before this court indicating that the employee’s attorney was also representing the intervention interests of these entities at the time of the hearing. While an employee may assert a direct claim for medical treatment related to the work injury, Adams v. DSR Sales, Inc., 64 W.C.D. 396, 397 (W.C.C.A. 2004), this court has also stated that, “[i]f the employee’s attorney . . . wishes to represent the claims of the intervenor, it must be unequivocally established at the hearing that the attorney represents not only the employee, but also represents a separate party - the intervenor.” Fischer v. Indep. Sch. Dist. No. 625, 76 W.C.D. 889, 892 (W.C.C.A. 2016); see also Xayamongkhon v. Indep. Sch. Dist. No. 625, 77 W.C.D. 81 (W.C.C.A. 2016), summarily aff’d (Minn. Jan. 30, 2017); Duehn v. Connell Car Care, Inc., 77 W.C.D. 201, 212 (W.C.C.A. 2017) (where a provider had not timely intervened, the employee’s attorney could not make a direct claim where the attorney did not also represent the provider).
Because these potential intervenors’ interests had been extinguished and the employee’s attorney did not unequivocally establish that he was representing the employee, Twins Cities Orthopedics, and Power Within Chiropractic at the time of the hearing, he cannot bring direct claims on their behalf. Accordingly, we reverse Finding 52, Finding 53, and Order 2, as they pertain to payment of the intervention claims of Twin Cities Orthopedics and Power Within Chiropractic.
PATRICIA J. MILUN, Chief Judge
This case presents six issues on appeal for determination: first, whether the employee sustained a work injury on October 1, 2018; second, whether the compensation judge applied the correct legal standard for the work injury on October 1, 2018; third, whether the injury is a substantial contributing factor to the employee’s disability and need for medical treatment; fourth, whether substantial evidence supports the compensation judge’s apportionment of liability; fifth, whether the compensation judge failed to address the interests of intervenor North Memorial Ambulatory Surgery Center; and sixth, whether the employee was entitled to bring direct claims for the medical treatment expenses incurred at Twin Cities Orthopedics and Power Within Chiropractic. I concur with the majority’s opinion on the first five issues set forth above.
However, as to the majority’s determination to reverse the compensation judge’s conclusions and Order 2 permitting direct claims against the employers and insurers for medical treatment expenses, I disagree. Therefore, I respectfully dissent.
On September 20, 2021, the employer sought an order extinguishing the interests of several potential intervenors, including Twin Cities Orthopedics and Power Within Chiropractic, based on a failure to intervene. The compensation judge issued the order on September 23, 2021. The order was not appealed. I concur with the majority’s view that this order foreclosed any further proceedings by those potential intervenors seeking to collect payment of their medical expenses on their own behalf.
Regardless of an intervention by a medical provider, every injured employee has the right, under the Workers’ Compensation Act, to seek payment by the employer for the costs of the employee’s reasonable, necessary medical treatment causally related to the work injury.[4] Historically, the court has concluded that the language of Minn. Stat. § 176.361, subds. 1 and 7, allows, but does not require, intervention by a health care provider in order that the provider’s bills for the costs of such treatment can be paid. Nothing in the intervention statutes or rules prohibits the employee from making direct claims for the costs of such treatment.[5]
Prior cases identify certain procedural limitations on the right of an employee to bring direct claims. In several cases, this court has concluded that an employee’s attorney may not represent the interests of an intervening party by asserting a claim for the same bills and costs, unless the attorney makes it clear on the record that the intervenor has agreed that the employee’s attorney may also represent the intervenor’s interests.[6] The majority reverses because the employee’s attorney did not “unequivocally establish” at the hearing that he was also representing these two providers. I disagree. All of the cases requiring dual representation have involved providers who sought to intervene. In fact, one of the cases relied on by the majority expressly distinguishes cases involving non-intervening providers where a direct claim by the employee was permitted.[7] Here, the two potential intervenors took no steps to intervene in Mr. Johnson’s case. I cannot disregard this distinction.
While a basis to reverse has not clearly been shown, the findings and order are insufficient to support an affirmance. I note that the judge’s order regarding the direct claims does not specify whether payment is to be made to the employee or to the providers. It is also unclear whether the compensation judge treated the September 23, 2021, order as interlocutory[8] and intended to partially rescind the order extinguishing the providers’ intervention interests.
Finally, in Adams,[9] we explicitly conditioned the right to bring direct claims in the absence of undue prejudice to the employer. Here, the compensation judge made no findings regarding the extent of any prejudice to the employer, or whether such prejudice was sufficient to deny the employee’s direct claims for these medical bills.
I would therefore vacate Finding 52, Finding 53, and Order 2, directing payment of the expenses incurred by the employee at Twins Cities Orthopedics and Power Within Chiropractic, and remand for clarification of the status of the order extinguishing these providers’ intervention interests, for a determination of whether there is prejudice to the employers that would preclude the direct claims, and for clarification as to whether any expenses of Twin Cities Orthopedics and Power Within Chiropractic have been paid by the employee and to whom payments would be made. For the reasons stated above, I would remand to the compensation judge for further findings of fact.
[1] A Gillette injury occurs where repeated trauma or aggravation of a preexisting condition results in a compensable injury when the cumulative effect is sufficiently serious to disable the employee from further work.
[2] The appellants further assert that the employee’s low back injury is not compensable because the injury occurred while he was bending or squatting to remove a pin from a door hinge, which they argue did not constitute an increased risk associated with his employment. In McCarney v. Malt-O-Meal Co., 73 W.C.D. 171, 177 n.5 (W.C.C.A. 2013), we held that when considering whether a work injury aggravated an employee’s preexisting condition, the “increased risk test” did not apply, noting that where an employee’s work activities substantially aggravate or accelerate a preexisting condition, the resulting disability is compensable. We continue to hold the same opinion.
[3] The appellants assert that Dr. Engasser’s opinion is inconsistent, pointing out that he states that he agrees with Dr. Johnson’s apportionment of 40 percent to the 2005 injury and 60 percent to a 2018 injury, but that Dr. Johnson’s opinion refers to the December 2018 injury, which was later withdrawn from the employee’s claims, as having 60 percent liability instead of the October 2018 injury. We acknowledge that Dr. Johnson’s report states that he assigns 60 percent liability to the December 2018 accident, however, the actual statement in the report just mentions “2018” and the reference to December is a few lines above it. In reviewing Dr. Engasser’s report, we note that he specifically found that any injury the employee sustained on December 27, 2018, was minor and temporary and did not contribute to the permanent low back injury. The compensation judge could reasonably infer from this language in Dr. Engasser’s report that the doctor misread Dr. Johnson’s report as referring to the October 2018 injury when he stated that he agreed with Dr. Johnson’s determination of apportionment as supporting his own determination of apportionment at 40 percent to the 2005 injury and 60 percent to the October 2018 injury.
[5] See, e.g., Adams v. DSR Sales, Inc., 64 W.C.D. 396 (W.C.C.A. 2004); Hughes v. Edwards Mfg. Co., 61 W.C.D. 481 (W.C.C.A. 2001); Reich v. F&S Constr., No. WC04-133 (W.C.C.A. Oct. 21, 2004).
[6] See, e.g., Varela Leal v. Knife River Corp., 77 W.C.D. 267 (W.C.C.A. 2017), summarily aff’d (Minn. Apr. 10, 2018); Duehn v. Connell Car Care, Inc., 77 W.C.D. 201 (W.C.C.A. 2017); Sumner v. Jim Lupient Infiniti, 77 W.C.D. 357 (W.C.C.A. 2017), summarily aff’d (Minn. May 10, 2017).
[7] Xayamongkhon v. Indep. Sch. Dist. No. 625, 77 W.C.D. 81 (W.C.C.A. 2017) (intervenor’s failure to attend conference requires denial of its claim, and a direct claim by employee is barred, which distinguishes this situation from cases where a provider has not sought to intervene and relies on the employee’s direct claim for payment), summarily aff’d (Minn. Jan. 30, 2017).
[8] I cannot discern whether the compensation judge intended his award of expenses under the employee’s direct claim as a rescission. In his memorandum, the compensation judge stated that the employee’s “direct claim for payment of medical expenses incurred at Twin Cities Orthopedics and Power Within Chiropractic . . . serves as an objection to extinguishment of its potential intervention interest.” (Memo. at 17.)
[9] Adams, 64 W.C.D. at 399.