Employers and their insurers appeal from compensation judge’s findings, in part, that (1) maximum medical improvement (MMI) was reached on November 27, 2013, for the 2013 injury; and (2) apportioning liability 50/50 between the employers and their insurers. *There were four other issues on appeal; however, they involve “substantial evidence” and are not discussed in this update.
The employee worked as a truck driver and a dock worker. He sustained a work-related injury in 1992 to hi s lower back. The employee treated for this condition until approximately June, 1993. He testified that he still had significant back pain in 1993 and 1994 after returning to work, but he eventually improved and had no pain by 2003. He did not receive any medical treatment for his back for approximately 20 years, until February 1, 2013.
The employee testified that in December 2012, he began to feel a slight pain in his lower back and buttocks that felt like his 1992 pain. The employee reported his pain to his employer in Late January 2013. On February 1, 2013, the employee was diagnosed with degenerative disk disease and mechanical low back pain. A MRI scan revealed multiple issues and the employee underwent various forms of treatment. On march 12, 2014, an IME report concluded that the employee sustained a Gillette-type injury, culminating in December 2012, that was a permanent aggravation of underlying degenerative disc disease.
The compensation judge held that the employee reached MMI from the February 2013 injury as of November 27, 2013 and he apportioned the employee’s need for medical treatment and restrictions 50/50 between the two injuries.
MMI – The judge found the employee reached MMI from the February 1, 2013 injury as of November 27, 2013, the date he last attended physical therapy.
MMI means the date after which no further significant recovery from or significant lasting improvement from an injury can reasonably be anticipated, regardless of subjective complaints of pain. Minn. Stat. § 176.011, subd. 25. It is the compensation judge’s responsibility to evaluate the employee’s condition as documented by medical records, medical opinions, and other data and circumstances. Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525 (Minn. 1989).
The medical records evidence some decrease in low back pain and improvement of motion through October 31, 2013. However, on November 7, 2013, the employee reported worsening pain over the past week and there is no evidence of any improvement in the employee’s condition in the therapy records after that date. Therefore, the WCCA modified the compensation judge’s determination, concluding the employee reached MMI on October 31, 2013, from the February 1, 2013 injury.
Apportionment – The judge acknowledged that Dr. Rieser and Dr. Raih attributed the major portion of responsibility to the 2013 injury, but found it equitable to assign more responsibility to the initial injury than suggested. He concluded that the 1992 injury set in motion the process that predisposed the employee to degeneration in the lumbar spine and that the associated degeneration has been the employee’s primary pain generator since February 2013. The employee’s work duties rendered the pre-existing condition symptomatic again and the judge concluded that each was a necessary and equally contributing factor to the 2013 disability.
Equitable apportionment is available to prescribe contribution between two or more employers or insurers that may be liable for an employee’s disability. Equitable apportionment is not merely a medical determination, and can, of necessity, be based on no predetermined and precise formulas, but must be determined on the facts of each case. Goetz v. Bulk Commodity Carriers, 226 N.W.2d 888 (Minn. 1975). “Where the record would support any number of apportionment determinations, this court will not substitute our judgment for that of the compensation judge.” Giem v. Robert Giem Trucking, 46 W.C.D. 409 (W.C.C.A. 1992); compare Sundquist v. Kaiser Eng’rs, Inc., 456 N.W.2d 86 (Minn. 1990).