PAUL C. POHLKAMP, Employee/Cross-Appellant,
v.
WESTERN STEEL ERECTION, INC., and RELIANCE/MIGA/GAB ROBINS, Employer-Insurer,
and
M&P UTIL., INC., and VIRGINIA SURETY/BERKLEY RISK ADM'RS CO., Employer-Insurer,
and
M&P UTIL., and ILLINOIS NAT'L INS./AIG CLAIM SERVS., Employer-Insurer/Appellants,
and
MINNEAPOLIS RADIOLOGY & ASSOC., NEUROLOGICAL ASSOCS., CENTER FOR DIAGNOSTIC IMAGING, ST. PAUL ELEC. CONSTR. MEDICAL REIMBURSEMENT PLAN, ADVANCED SPINE ASSOCS., and MEDICUS REHABILITATION, Intervenors.
No. WC04-135
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
August 27, 2004
HEADNOTES
GILLETTE
INJURY - DATE OF INJURY. Substantial evidence, including
the employee's testimony as to his job duties, minimally
supported the compensation judge's decision to impose
liability for the employee's Gillette injury on
the insurer on the risk during the employee's last five
weeks of work, despite the fact that the employee's work
had been modified for most of that period.
NOTICE
OF INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence
supported the compensation judge's decision that the
employee had no reason to know that he had sustained a
Gillette injury until it was suggested by a doctor,
where the employee's symptoms after the Gillette
injury were essentially the same as the symptoms he had
experienced following a work injury ten years earlier, and he
thought his most recent symptoms were merely a recurrence of
that earlier injury.
JURISDICTION
- SUBJECT MATTER. The compensation judge properly
concluded that he lacks subject matter jurisdiction over
claims against MIGA where MIGA asserted that the claims were
not "covered" pursuant to Minn. Stat. Chap. 60C.
CALCULATION
OF BENEFITS - COMPENSATION RATE. The compensation judge
erred in ordering the liable employer and insurer to pay
benefits based on a wage higher than the wage the employee
was earning on the date of their injury.
Affirmed
in part and reversed in part.
Timothy M. O'Keefe, Erstad & Riemer, Minneapolis, MN,
for the Appellants.
Howard
S. Carp., Borkon, Ramstead, Mariani, Fishman & Carp,
Minneapolis, MN, for the Cross-Appellant. John T. Thul,
Cousineau, McGuire & Anderson, Minneapolis, MN, for the
Respondents. Jason Schmickle, Hansen, Dordell, Bradt,
Odlaug & Bradt, St. Paul, MN, for the Respondents.
Determined by: Wilson, J., Johnson, C.J., and Pederson, J.
Compensation Judge: James F. Cannon
OPINION
DEBRA
A. WILSON, Judge
M&P
Utilities, Inc., and Illinois National Insurance appeal from
the compensation judge's dismissal of the Minnesota
Insurance Guaranty Association from the proceedings, from the
judge's findings concerning liability for the
employee's 2002 Gillette-type
injury,1 from the judge's decision that the
employee gave timely notice of injury, and from the
judge's findings and orders concerning the rate at which
wage loss benefits are payable. The employee
cross-appeals from the judge's dismissal of the Minnesota
Insurance Guaranty Association. We reverse the
judge's decision as to benefit rate but affirm on all
other issues.
BACKGROUND
On June
7, 1991, the employee sustained a work-related low back
injury while employed as an iron worker by Western Steel
Erection, Inc. [Western Steel], which was then insured for
workers' compensation liability by Reliance Insurance
Company [Reliance]. Following the injury, the employee
experienced low back and radiating left leg pain, and, on
December 9, 1991, after diagnostic tests disclosed a disc
herniation at L4-5, the employee underwent a left L4-5
microdiscectomy, performed by Dr. Edward
Hames. Following the surgery, the employee's low
back and leg symptoms slowly improved over time, and he
eventually went on to work for a number of other
employers. The employee testified that he was generally
able to perform these other jobs without time loss or
significant treatment but that he continued to experience at
least some low back pain, on a daily basis, following the
1991 injury. At some point, Reliance became insolvent,
and the Minnesota Insurance Guaranty Association [MIGA] began
administering claims.
The
employee began working as a cable installer for M&P
Utilities [M&P] in about 2000. This job required a
substantial amount of twisting, bending, and kneeling as well
as some digging, work on ladders, and occasional lifting of
cable rolls estimated to weigh between 40 and 75 pounds.
On
August 21, 2002, the employee sought treatment from Dan
Truax, a physician's assistant at the Monticello Clinic,
complaining of left hip and leg pain that had been occurring
intermittently over the previous two months. The
treatment note from this consultation indicates that the
employee's symptoms were very painful on some days,
especially if he was working on ladders in his job, but that
he had not sustained any specific injury. The note also
references the fact that the employee had a history of low
back injury ten years before but that his current symptoms
were "definitely different." Mr. Truax
assessed "trochanter bursitis," referred the
employee for physical therapy, and provided the employee with
a note asking the employer to have the employee do "a
little less ladder work."
The
employee returned to see Mr. Truax on September 4,
2002. According to the treatment note, physical therapy
had been helpful to the employee, as had "[l]imiting his
work." Mr. Truax gave the employee another note for
work "to limit some of the things that seem[ed] to cause
him pain, particularly wearing his tool
belt."...
