GERALD C. LANIGAN, Employee,
v.
SUPERWOOD CORP./GEORGIA-PACIFIC CORP., SELF-INSURED, Employer-Appellant.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
May 6, 1999
HEADNOTES
JURISDICTION
- SUBJECT MATTER. The compensation judge erred in
finding that he lacked jurisdiction to determine the
employee's current work restrictions in the absence of a
claim for wage loss benefits or a request to modify a
rehabilitation plan on the facts in this case.
JOB
OFFER - PHYSICAL SUITABILITY; REHABILITATION - WORK
RESTRICTIONS. Substantial evidence, including the
opinion of the employee's treating doctor, supports the
compensation judge's finding that the employee's
restrictions had not changed since the previous determination
by a compensation judge, and the employee remained restricted
to 8 hours per day, five days a week.
ATTORNEY
FEES - HEATON FEES. The compensation judge
properly awarded hourly attorney fees to the employee's
attorney pursuant to Minn. Stat. § 176.081, subd. 1(a)(1991),
where the employee prevailed on the disputed rehabilitation
issue.
Affirmed
in part and reversed in part.
Determined by Johnson, J., Wheeler, C.J., and Pederson, J.
Compensation Judge: Donald C. Erickson
OPINION
THOMAS
L. JOHNSON, Judge
The
self-insured employer appeals from the compensation
judge's finding that the judge lacked jurisdiction to
determine the employee's current work restrictions in the
absence of a dispute over wage loss benefits or a
rehabilitation plan. The self-insured employer also
appeals from the compensation judge's decision, in the
alternative, that the evidence does not support changing the
employee's work restrictions from eight hours a day, five
days a week, to twelve hours a day, four days a week, and
from the compensation judge's award of hourly
attorney's fees. We reverse in part and affirm in
part.
BACKGROUND
This
case has a long and litigious history. Briefly, the
employee, Gerald C. Lanigan, sustained an admitted injury to
his mid- and low back on January 23, 1991, while working as a
laborer for the self-insured employer,
Superwood/Georgia-Pacific Corporation. At the time of
the injury, the employee was working in humids and finishing
on a rotating shift, twelve hours a day, four days on and
four days off.
Following
the injury, the employee was treated primarily by Dr. John E.
(Jed) Downs at St. Luke's Occupational Health Service
(OHS). Dr. Downs released the employee to return to work
with restrictions between January 28 and March 25, 1991,
including limitations on the number of hours the employee
could work. On March 10, 1991, the employee was laid off
as part of a general plant-wide lay-off. He was called
back to work on May 18, 1991, but was suspended by the
employer on May 28, 1991 and terminated on June 18,
1991. Following a union grievance and decision by an
arbitrator, the employee was reinstated in April
1992. The employee bid for and obtained a less
physically demanding job in the pallet shop. The employee
remained in this job until about October 1992.
On
January 27, 1993, the employee returned to St. Luke's OHS
and was seen by Dr. Katherine L. Kostamo. The employee
reported a gradual increase in low back pain following a
change in job duties, and work restrictions were again
imposed. On August 26, 1993, the employee returned to
Dr. Downs, who was now at the Duluth Clinic. The
employee reported an exacerbation of his low back pain while
pushing a loaded cart that abruptly stopped. Dr. Downs
issued various work restrictions following this
aggravation. In September or October 1993, the
self-insured employer assigned the employee light-duty
banding and wrapping duties. The employee has remained
in banding and wrapping since that time.
On
February 16, 1994, the employee was examined by Dr. Richard
F. Galbraith, a neurologist, at the request of the employer
and insurer. Dr. Galbraith concluded the employee had
reached maximum medical improvement (MMI) and could return to
his usual employment without restrictions. On May 2,
1994, the self-insured employer filed a notice of intent to
discontinue wage loss benefits (NOID), asserting that the
employee had no permanency and was medically able to return
to work without restrictions. The employee filed an
objection to discontinuance on May 16, 1994, alleging
entitlement to wage loss benefits from March 20, 1994 and
continuing.
The
matter was heard by Compensation Judge Gregory A. Bonovetz on
February 22 and April 4, 1995.
1 In a Findings and
Order, served and filed June 6, 1995, Judge Bonovetz found
that since at least August 1993, a "myriad of varying
work restrictions" had been issued by Dr. Downs and
other physicians, "resulting in bedlam with regard to
attempting to schedule the employee for
work." (6/6/95 F&O, finding 28.) The judge
further found that certain restrictions issued by Dr. Downs
were provided in an effort "to manage the case more
politically than medically." He concluded that Dr.
Downs was not a credible witness and little if any weight
could be given to his opinions. (6/6/95 F&O,
findings 29, 30). Judge Bonovetz, nonetheless, found
that,
[T]he preponderance of the evidence clearly establishes that
from January of 1993 forward the employee has in fact
suffered low back pain and discomfort as a result of the work
injury. . . . [T]he court has reviewed all of the lay
and medical evidence presented and finds that . . . since
January 27, 1993, the employee's reasonable medical
restrictions limit the employee to 40 hours of work per week
with no work in excess of eight hours per day. The
reasonable medical restrictions applying to this period of
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