LOIS O'MEARA, Employee,
v.
MOLENAAR PLASTICS and FEDERATED MUT. INS. CO., Employer-Insurer,
and
MOLENAAR PLASTICS and CNA INS. CO., Employer-Insurer/Appellants,
and
MOLENAAR PLASTICS and WAUSAU INS. CO., Employer-Insurer/Cross-Appellants,
and
MN DEP'T OF LABOR & INDUS., MN DEP'T OF HUMAN SERVS., MN DEP'T OF ECONOMIC SEC. and ACUPUNCTURE CHIROPRACTIC CLINIC, Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
January 14, 1999
HEADNOTES
CAUSATION
- TEMPORARY AGGRAVATION; PERMANENT PARTIAL DISABILITY -
SUBSTANTIAL EVIDENCE. Substantial evidence supports the
finding that the employee's 1987 work-related back injury
was temporary in nature and did not result in any permanent
partial disability; and that the employee's 9 percent
permanent partial disability was a result of the
employee's 1992 back injury.
TEMPORARY
BENEFITS - SUBSTANTIAL EVIDENCE. The employee
established by substantial evidence that following her work
injury, she had work-related disability, was able to work
subject to the disability, earning a wage reduced from her
pre-injury wage; and the employer and insurer did not
adequately rebut the employee's evidence of her earning
capacity, therefore the employee was entitled to temporary
partial disability benefits. Where the evidence
substantially supported that the employee's work-related
back injury, as well as her work-related problem with her
hands, were contributing factors to the employee's
medical inability to work, the employee was entitled to
temporary total benefits.
MEDICAL
TREATMENT & EXPENSE. Finding awarding medical
expense modified where the order thereafter, as to the same
medical expense, placed a time limitation on the continuing
medical expense.
CREDITS
& OFFSETS - CREDIT FOR OVERPAYMENT; STATUTES CONSTRUED -
MINN. Stat. § 176.179. Where the employee sustained a
work-related low back sprain in 1987 and then sustained an
injury to her low back in 1992 consisting of a L5-S1
herniated disc with compression on a nerve root; the 1987
injury was found by the compensation judge to be temporary in
nature and without any permanent partial disability; the 1992
injury was found to have resulted in a 9 percent permanent
partial disability; the compensation judge also found that
the insurer, Wausau, for the 1987 injury, mistakenly paid 3.5
percent disability benefits to the employee; and the
compensation judge ordered that under Minn. Stat. § 176.179
Wausau was entitled to a 3.5 percent credit from further
compensation payments for the same injury, Wausau is not
entitled to a credit and reimbursement of the mistakenly paid
3.5 percent PPD benefits from the 9 percent PPD disability
payments made as a result of the employee's 1992 injury
as substantial evidence supports the fact that the
employee's 1992 injury is not the same injury as the 1987
injury, and the 1987 injury was not shown to be a
contributing factor to the employee's 9 percent PPD.
COSTS
& DISBURSEMENTS. The compensation judge's denial
of costs for a doctor's charge incurred by the insurer
for the employee having missed a scheduled independent
medical examination is clearly erroneous as the evidence
clearly indicates that the employee's attorneys were
notified of the scheduled IME appointment which was missed by
their client, the employee.
Affirmed
in part, modified in part, and reversed in part.
Determined by Hefte, J., Johnson, J., and Wheeler, C.J.
Compensation Judge: Joan G. Hallock
OPINION
RICHARD C. HEFTE, Judge
The
employer and insurer, CNA/American Casualty Company, appeal
the compensation judge's findings that the employee is
entitled to certain temporary partial, temporary total and
permanent partial disability benefits. The employer and
CNA also request that Orders 8 and 11, ordering the
reimbursement of certain medical expenses, be modified by the
time limitation in unappealed finding 53. The employer
and insurer, Employers Mutual of Wausau, appeal the
compensation judge's order that Wausau is entitled to a
credit for the 3.5 percent permanent partial disability
benefits paid under a mistake of fact. Wausau also
appeals the denial of its motion for assessment of costs
against the employee's attorney due to the failure of the
employee to attend a September 6, 1997 independent medical
examination. We affirm in part, modify in part, and
reverse in part.
BACKGROUND
Lois
O'Meara, the employee, began working for Molenaar
Plastics, the employer, as a press operator in August of
1985. The press machine operated by the employee
processed plastic to make various plastic parts for the
employer's business. This job required that the
employee transport plastic granules (called a carba mix) by
using her hands with a container to dip the granules from a
barrel and then pour the granules into a hopper of the press
machine.
This
matter concerns claims for three work-related injuries of the
employee all which occurred while the employee was working
for Molenaar; however, Molenaar was insured for workers'
compensation liability by a different insurer for each
injury. On March 5, 1987, the employee sustained an
admitted work-related back injury. At this time, the
employer was insured for workers' compensation liability
by Employers Insurance of Wausau (Wausau). Following
this injury, the employee's treating medical provider,
Dr. R.E. Hodapp, on May 7, 1987, gave the employee a 10
percent impairment rating to the body as a whole for her
disability for her 1987 back injury which he had diagnosed as
a muscular low back sprain. The doctor gave the 10
percent rating without referencing any provision in the
workers' compensation disability schedule. Wausau,
in 1987, and based on the disability schedules, paid the
employee 3.5 percent permanent partial disability benefits.
Following
her 1987 back injury, the employee lost no time from work and
continued to work for the employer full-time until she
sustained another back injury on September 25,
1992. CNA/American Casualty Company (CNA) was the
employer's workers' compensation insurer when this
1992 injury occurred. Dr. Hodapp again treated the
employee and diagnosed a lumbar contusion. The employee
treated with Bruce Peterson, D.C., in June of 1995 for a
short period of time. The employee also began treatment
with Paul Hjort, D.C., in 1995 and this treatment continued
until the time of the hearing in 1998. Because of her
increased low back symptoms, Dr. Hjort ordered an MRI
examination of the employee's lumbar spine on February 8,
1996. The MRI revealed that the employee had multi-level
degenerative disc disease; a L5-S1 disc herniation with
subarticular displacement and compression on the left S1
nerve root; a left far-lateral protrusion to contact and
flatten the ganglion and post-ganglionic portion of the right
L5 nerve; and annular bulging...
