ROBERT SEPPO, Employee,
v.
KOLAR BUICK, INC., Employer,
and
WESTERN NAT'L INS. GROUP, Insurer/Appellant.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 7, 1999
HEADNOTES
PRACTICE
& PROCEDURE - CONTINUANCE. Where the employee's
testimony at the hearing was inconsistent with earlier
representations regarding the work the employee was engaged
in at the time of injury raising questions with respect to
primary liability for previously admitted injuries, the scope
of employment with the employer, and insurance coverage
issues, the compensation judge erred in denying a
continuance, and the matter is vacated and remanded for
redetermination.
Vacated
and remanded.
Determined by Pederson, J., Wilson, J. and Wheeler, C.J.
Compensation Judge: Gregory A. Bonovetz
OPINION
WILLIAM R. PEDERSON, Judge
The
insurer, Western National Insurance Group, appeals from the
compensation judge's denial of a continuance for the
purpose of permitting the employer and the insurer to each
obtain separate counsel and to litigate the issues of scope
of employment and insurance coverage for three of the
employee's four alleged work injuries.[1] We
vacate the compensation judge's findings and order and
remand the matter for redetermination in accordance with this
decision.
BACKGROUND
The
employee, Robert Seppo, began working for the employer, Kolar
Buick, Inc., in 1969. On September 5, 1990, the employee
sustained an injury to his low back. Accepting liability
for the injury, the employer and insurer paid 4.8 weeks of
temporary total disability benefits as well as medical and
chiropractic expenses. The employee returned to work
with the employer in October 1990.
The
employee testified that sometime in 1991, he suffered an
injury to his mid-back.2 He lost no time from
work following this incident, and continued to work for the
employer. On May 19, 1993, the employee sustained a
second injury to his mid-back. Accepting liability for
this injury, the employer and insurer paid temporary total
disability benefits from May 19 through June 7, 1993, along
with medical expenses. The employer and insurer
subsequently paid a 2.5% permanent partial disability for the
thoracic spine pursuant to Minn. R. 5223.0380, subp.
3.B.(1993).
On
March 8, 1994, the employee injured his left shoulder while
removing a wheel from a four-wheel drive vehicle. The
employer and insurer admitted liability for the left shoulder
injury and paid temporary total disability benefits from
March 8, 1994 through November 10, 1996, along with medical
expenses. The employee was treated concurrently for both
right and left shoulder problems, eventually undergoing
surgery for the right shoulder in July 1995 and the left
shoulder in January 1996.
The
employee was released to return to work in the summer of 1996
with restrictions. He was unable to return to work
with the employer, and began a job search with the assistance
of a series of qualified rehabilitation consultants
(QRCs). The employee obtained employment as a clerk at
Ace Hardware, beginning November 11, 1996. He initially
worked full time, eight hours a day, but after three to four
weeks on the job, reduced his hours of work to four hours a
day, gradually increasing to six hours per day. The
employer and insurer paid temporary partial disability
benefits following the employee's return to work.
On
February 14, 1997, the employee filed a claim petition,
alleging an injury to the lumbar spine on September 5, 1990
and an injury to the shoulders on March 8, 1994. The
employee sought permanent partial disability of 10.5% for the
lumbar spine and 6% for each shoulder. The employer and
insurer admitted the alleged shoulder injuries, admitted a
temporary low back injury on September 5, 1990, and admitted
a back injury on May...
