Settlemire v. Innsbruck Health Care Ctr., 051809 MNWC, WC08-244

Docket Nº:WC08-244
Case Date:May 18, 2009
Court:Minnesota
 
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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...

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