Giese v. Green Giant Co.
This text of 426 N.W.2d 879 (Giese v. Green Giant Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
[880]*880OPINION
We review on certiorari a decision of the Workers’ Compensation Court of Appeals which affirmed, by majority decision, an award of temporary partial compensation and attorney fees and denied statutory apportionment for a preexisting condition. With the exception of the award of temporary partial compensation, we affirm.
William F. Giese was employed by Green Giant Company on March 9, 1978, when he fell from a loading dock at work and injured his low back. On August 31, 1984, while employed by the City of Blue Earth, the employee again injured his low back while attempting to lift a heavy scaffolding plank. On September 27, 1984 he began to miss time from work because of this injury; and on October 22, 1984, he underwent a lumbar laminectomy. The employee thereafter sought workers’ compensation benefits from both employers claiming temporary total compensation from September 27, 1984, as well as permanent partial compensation for a stipulated 10% whole body impairment.
The compensation judge found that the employee was temporarily totally disabled from September 27, 1984 to December 7, 1984, when he was authorized to return to work with restrictions. The employee was served with notice of maximum medical improvement on November 20, 1985. He has permanent restrictions as a result of the 1978 and 1984 work injuries; however, he has not been classified as permanently totally disabled, and he does not claim such status.
The compensation judge awarded temporary total benefits from September 27, 1984, to 90 days after notice of maximum medical improvement on November 20, 1985, and thereafter temporary partial benefits, continuing as long as the wage loss warranted, at the temporary total rate. He allocated responsibility for the temporary benefits 50% to the 1984 injury and 50% to the 1978 injury. He also found that any preexisting condition which the employee may have had prior to the 1984 injury was not clearly evidenced in medical records prepared before the 1984 injury pursuant to Minn.Stat. § 176.101, subd. 4a (1984) and ordered the City to pay 100% of the economic recovery compensation that was payable for the stipulated 10% permanent whole body impairment. Finally, the compensation judge found the dispute to be primarily between the employers as to liability and awarded attorney fees pursuant to Minn.Stat. § 176.081, subd. 8 (1984).
Green Giant along with its workers’ compensation liability insurer, Travelers Insurance Company, and the City of Blue Earth, self-insured, appealed. The Workers’ Compensation Court of Appeals, in a decision filed November 20, 1987, affirmed the compensation judge’s decision in all respects. Green Giant/Travelers and the City have sought further review by this court.
The initial issue raised by this appeal concerns the award of temporary partial compensation. In Parson v. Holman Erection Company, 428 N.W.2d 72 (Minn.1988), we held that on cessation of an employee’s entitlement to temporary total compensation 90 days after service of the maximum medical improvement report or after the end of an approved retraining plan, an employee who is unemployed is not entitled to temporary partial compensation at the temporary total rate. Accordingly, the award of temporary partial compensation in this case must be reversed.
The self-insured City also challenges the determination that the employee’s disability is not subject to apportionment pursuant to legislative mandate. For injuries which occurred before January 1, 1984, apportionment was not allowed when a work-related injury aggravated, accelerated or combined with a non-work-related pre-existing condition to produce a disability. Wallace v. Hanson Silo Company, 305 Minn. 395, 235 N.W.2d 363 (1975); Byrd v. State, Department of Administration, 305 Minn. 398, 234 N.W.2d 589 (1975); Vanda v. Minnesota Mining and Mfg. Co., 300 Minn. 515, 218 N.W.2d 458 (1974). This result was altered by Minn.Stat. § 176.101, subd. 4a [881]*881(1984)1 which allows the compensation payable for a permanent partial disability to be reduced by the proportion of the disability attributable to a preexisting disability arising from a congenital or traumatic incident. The preexisting disability may be work-related or non-work-related. An employer/insurer cannot take advantage of this provision, however, unless the preexisting disability is clearly evidenced in a medical report or record made prior to the current personal injury.
The compensation judge in this case determined that the employee’s disability was not subject to statutory apportionment because his pre-1984 disability was not clearly evidenced in medical records made prior to the 1984 injury. The Workers’ Compensation Court of Appeals agreed, and so do we. See Minn. R. 5223.0250.
Green Giant/Travelers and the self-insured City have also challenged certain findings of the compensation judge. We have scrutinized this record and are completely satisfied that the findings, as affirmed, are not manifestly contrary to the evidence. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54 (Minn.1984); Egeland v. City of Minneapolis, 344 N.W.2d 597 (Minn.1984).
Affirmed in part, reversed in part.
Employee is awarded $400 in attorney fees.
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426 N.W.2d 879, 1988 Minn. LEXIS 178, 1988 WL 80790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giese-v-green-giant-co-minn-1988.