BRENDA SETTLEMIRE, Employee/Appellant,
v.
INNSBRUCK HEALTH CARE CTR. and RAMPART INS. CO./GAB ROBINS NORTH AM., INC., Employer-Insurer,
and
INNSBRUCK HEALTH CARE CTR. and ROYAL & SUN ALLIANCE/CAMBRIDGE INTEGRATED SERVS., Employer-Insurer,
and
INNSBRUCK HEALTH CARE CTR. and BENEDICTINE GROUP/BERKLEY RISK ADM’RS, Employer-Insurer,
and
MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., MERCY HOSP., EMERGENCY PHYSICIANS, COMPREHENSIVE CARE SERVS., INC., ADVANCED SPINE ASSOCS., SUBURBAN IMAGING, and MINNESOTA DEP’T OF LABOR & INDUS./VRU, Intervenors.
No. WC08-244
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
May 18, 2009
HEADNOTES
APPORTIONMENT
- PERMANENT PARTIAL DISABILTY; APPORTIONMENT - EQUITABLE.
Where multiple injuries to the same body part resulted in the
employee’s need for fusion surgery, and therefore
resulted in an assignment of a permanency rating based on
that surgical procedure, and where the employee’s
condition is therefore the cumulative and essentially
indivisible result of the multiple injuries, the principles
of equitable apportionment determine liability for the
related permanent partial disability.
APPORTIONMENT
- PERMANENT PARTIAL DISABILITY; STATUTES CONSTRUED - MINN.
STAT. § 176.101, SUBD. 4a. Where the compensation judge
determined the level of permanent partial disability
attributable to the employee’s first two work injuries
and related surgeries, and where the employee was assigned an
additional rating following her third work-related injury and
third surgery, the payment owed for that additional permanent
partial disability is to be calculated based on the
difference between her current disability rating and the
ratings attributable to her first two injuries.
Affirmed
in part and modified in part.
Steven
P. Christensen, Roseville, MN, for the Appellant.
James
S. Pikala and Susan K.H. Conley, Arthur, Chapman, Ketterling,
Smetak & Pikala, Minneapolis, MN, for Respondent
Innsbruck/Rampart/GAB.
Vincent A. Petersen and James R. Waldhauser, Cousineau,
McGuire & Anderson, Minneapolis, MN, for Respondent
Innsbruck/Royal/CIS.
Edward
Q. Cassidy and Lori-Ann C. Jones, Fredrikson & Byron,
Minneapolis, MN, for Respondent Innsbruck/Benedictine
Group/Berkley.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek
OPINION
MIRIAM
P. RYKKEN, Judge
The
employee appeals the compensation judge’s findings that
the employee sustained a 23% permanent partial disability to
the whole body as a result of three work-related injuries
that she sustained on August 12, 1997, October 31, 2001, and
June 8, 2007, and that 22% of that disability rating should
be apportioned pursuant to Minn. Stat. § 176.101, subd.
4a, so that the employee remains entitled to payment based on
1% permanent partial disability of the whole body, to be
apportioned equitably between the insurers for her three work
injuries. We affirm in part and modify in part.
BACKGROUND
For
twenty years, between June 1987 and June 2007, Ms. Brenda
Settlemire worked as a licensed practical nurse for Innsbruck
Health Care Center. The dispute addressed on appeal arises
from three low back injuries that Ms. Settlemire [the
employee] sustained in 1997, 2001 and 2007, while employed by
Innsbruck [the employer]. At issue is the employee’s
claim for payment of benefits based on a rating of 10%
permanent partial disability of the whole body - - a rating
she claims is due based on the fusion surgery she underwent
following her 2007 injury.1
On
August 12, 1997, the employee sustained a
Gillette2 injury to her low back while working
for the employer. The employee had experienced tingling and
pain extending from her right buttock area into her right leg
since June 1997, and she finally sought medical attention on
August 12 to address her pain. Based on an MRI scan of the
employee’s lumbar spine that showed disc herniations at
the L4-5 level and L5-S1 levels, Dr. Daniel Ahlberg
recommended surgery. In September 1997, Dr. Ahlberg performed
a right L5-S1 lumbar foraminotomy/facetectomy and a right
L5-S1 lumbar laminectomy/discectomy, with lumbar spine micro
dissection. By October 25, he released the employee to return
to work within restrictions, but because the employer had no
available light-duty work, the employee remained off work
until late January 1998, when she returned to her full-duty
work. By then, the employee reported that she felt no muscle
spasm or tenderness in her low back, that she experienced no
radicular symptoms, and that she had an excellent surgical
result.
The
employer and its insurer, Rampart Insurance Company [Rampart
Insurance], denied primary liability for the employee’s
injury, asserting that the employee’s condition was not
related to her work, and, in November 1998, the employee
filed a claim petition, seeking wage loss benefits and
payment of medical expenses.
In
March 1999, at the request of the employer and Rampart
Insurance, Dr. Paul Wicklund examined the employee. He
diagnosed a right L5-S1 disc herniation treated surgically
with an excellent result, and concluded that the
employee’s work for the employer was a substantial
contributing cause to her low back condition and need for
surgery. He concluded that the employee required no further
medical care or treatment, and rated her with 11% permanent
partial disability of the body as a whole, based on her
herniation and surgery at L5-S1. See Minn. R.
5223.0390, subp. 4.D. and 4.D.(2).3
In
November 1999, the parties entered into a stipulation for
settlement on a to-date basis, whereby the employer and
Rampart Insurance admitted liability for the employee’s
1997 low back injury and surgery and paid various benefits,
including medical expenses. Under the terms of the
stipulation, the employer and Rampart issued payment which
they stipulated was comprised of approximately twelve weeks
of temporary total disability benefits and payment for
permanent partial disability benefits based on a rating of
11% whole body impairment. Following that settlement, the
employee continued to work as an LPN for the employer.
On
October 31, 2001, the employee sustained another low back
injury while working for the employer. After pulling a
patient to apply dressings, the employee noticed a tingling
sensation in her right buttock, which was the first time she
had noted such symptoms since her 1997 surgery. She sought
medical treatment and underwent an MRI scan that showed a
right sided L4-5 disc hernation impinging on her right L5
nerve root. The employee consulted an orthopedist, Dr. Garry
Banks, who diagnosed a right L4-5 disc herniation and lateral
recess stenosis. He concluded that the employee’s work
activities were likely a substantial contributing factor to
the development of the herniation and need for surgery, and
that her condition appeared “to be a separate problem
from her prior disc problem which was at the L5-S1
level.” In December 2001, Dr. Banks performed surgery
that included partial laminectomies at the L3-4 and L4-5
levels and microscopic dissection on the right, from L3 to 5.
The employee eventually was able to return to work without
restrictions, and reported an excellent recovery from
surgery.
The
employer and its insurer at that time, Royal and Sun Alliance...
