Marose v. Maislin Transport

413 N.W.2d 507, 1987 Minn. LEXIS 828
CourtSupreme Court of Minnesota
DecidedOctober 9, 1987
DocketC1-86-1476, C9-86-1483
StatusPublished
Cited by17 cases

This text of 413 N.W.2d 507 (Marose v. Maislin Transport) 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.

Bluebook
Marose v. Maislin Transport, 413 N.W.2d 507, 1987 Minn. LEXIS 828 (Mich. 1987).

Opinions

[509]*509OPINION

COYNE, Justice.

The employer and its insurer and the employee all seek review of the Workers’ Compensation Court of Appeals’ amended decision modifying the findings and order of the compensation judge. The WCCA remanded this matter to the Office of Administrative Hearings to obtain medical evidence with respect to apportionment of permanent partial disability resulting from each of several injuries and to determine whether or not the work activity of the employee from February 12, 1981, through July 26, 1982, resulted in a personal injury. The WCCA directed the lower court to enter findings and an order in conformity with the evidence “on all issues” before the previous compensation judge. We affirm in part and reverse in part.

The employee, Roger P. Marose, is almost 52 years old. He started working as a dockman for the employer in March 1962 and continued in that capacity until July 27, 1982, when he was laid off because the employer was going out of business. As a dockman, the employee loaded and unloaded various types of freight from semi-trailer trucks. The weights he lifted ranged from little or nothing to 200 to 300 pounds. Sometimes he had to tip 55-gallon barrels that weighed close to 500 pounds. Employee used dollies, two-wheelers, carts, and forklifts to move heavy or bulky freight.

Prior to going to work for the employer, the employee had no problems with his back or neck. He testified that a year or two after starting this job, however, he started seeing a chiropractor, Dr. Russell Stauff, for low back pain. Medical records indicate that these visits began in November 1962. The employee testified that although he had hurt his back at work, he did not file a workers’ compensation claim because, at that time, the insurance company did not pay for chiropractic treatment.1 The employee is a very poor historian and did not remember when his various injuries occurred. The dates used here are from his medical records.

In the fall of 1969, the employee had a sudden onset of low back pain and left leg pain while dragging a water heater out of the basement of his home. This incident resulted in a herniated disc, and, on October 20, 1969, Dr. Donald Lannin performed a laminectomy. The employee’s recovery was uneventful.

On September 25, 1970, the employee was struck in the back by a forklift driven by another employee. He received initial treatment at the Northwest Industrial Clinic and was referred to Dr. Lannin when his problems persisted. The doctor concluded “that he has only sustained a soft tissue injury which is superimposed on his old back problem” and instructed him to go back to work. Dr. John Minder of the Northwest Industrial Clinic noted that no permanent disability was anticipated from this injury. After this forklift incident, Mrs. Marose had to help her husband put on his shoes and socks. His right leg pain began with this incident and has continued since that time.

On March 23,1971, the employee twisted his back while unloading freight and missed approximately two weeks of work. On October 28, 1972, the employee again twisted his back while lifting freight. He testified that after this incident his back pain persisted.

While pulling an overloaded cart, on April 2, 1973, the employee again injured his back. In addition to the back pain, the employee also experienced radiating pain in the left leg. The employee missed over two weeks’ work after this injury. Dr. Lannin treated him and advised him that he should lose weight if he wanted to remain employable.

The employee was again injured on November 4,1974, when he attempted to lift a semi-trailer door against which freight had fallen. The employee missed approximately one week of work because of this injury. [510]*510Physical therapy enabled him to return to work, but he still had back pain.

On February 23,1976, a storage deck fell from the roof of a trailer, hitting the employee on the head. He had pain above his right ear, down into his shoulders, and along his right arm. He received medical treatment and physical therapy on an intermittent basis for about one year after this injury.

The employee again injured his back on February 6, 1981. The First Report of Injury states that “[ejmployee claims this is aggravation of old back injury and that just recently his back has become progressively worse.” The Physician’s Report, however, indicates that before this injury the affected member was normal and that no permanent disability had resulted or might result from the injury. In fact, the only suggestion in the medical records that there would be any permanent disability from any of these injuries was Dr. Lannin’s April 28, 1971, comment that he felt “that [employee] will have little or no disability which can be associated with the episode of March 23, 1971,” and the only suggestion that employee’s back was not normal before each injury was Dr. Minder’s Physician’s Report regarding the September 25, 1970, injury, which noted the 1969 surgery and that the employee had no symptoms after the surgery.

These proceedings were initiated by the employee’s claim that on February 6, 1981; February 23, 1976; November 4, 1974; April 2,1973; October 28,1972; and March 23,1971, he sustained injuries which aggravated his previously injured back, resulting in temporary total disability from July 27, 1982. At the hearing, the employee amended his claim to allege injury to the back on September 25, 1970. He also amended his claim to allege a Gillette injury resulting from his work activity from February 6, 1981, to July 27, 1982—i.e., a personal injury arising out of and in the course of employment as a result of the cumulative effect of repetitive minute trauma over a period of time, see Gillette v. Harold, Inc., 257 Minn. 313, 321-23, 101 N.W.2d 200, 206-07 (1960). Employee testified that his back pain became worse in February 1981 and that he told his foreman about this, but was told to go back to work. The employee sought medical treatment for his back in March 1981 and missed some work. Dr. Keith Bakke noted that the employee “needs to be off from work for at least the next four or five days because of the type of work he does.” Several coemployees testified that the employee complained of pain in his back and neck and that it got worse as time went on. They also testified that he had trouble performing his job duties, that his production was down, that he frequently left early, and that they helped him when they could.

The medical experts, Drs. Lowell Lutter, Robert Wengler, and David Boxall, agree that the employee is permanently partially disabled, although they disagree about the extent and the cause of that disability. All three attribute some of the disability to the 1969 laminectomy (7.5%, 15%, and 10% respectively); all attribute some to the forklift injury (7.5%, 10%, and 2.5%); all attribute some to the neck injury (5%, 10%, and 5%); and Dr. Boxall also attributes 2.5% to the other incidents. One of the problems with these varying apportion-ments is that the employee gave the doctors inconsistent accounts of his injuries. That the examinations took place over a period of 15 months may have done little to improve the employee’s ability to give an accurate medical history. Dr. Lutter examined the employee on November 8, 1983, and on January 9, 1984; Dr. Wengler’s examination was made on August 2, 1984; and Dr. Boxall saw him on February 7, 1985. Drs.

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Bluebook (online)
413 N.W.2d 507, 1987 Minn. LEXIS 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marose-v-maislin-transport-minn-1987.