Sershen v. Metro. Council, et. al., No. WC22-6488 (May 11, 2023)
The employee in this case is claiming occupational hearing loss. During his career, he was regularly exposed to occupational noise, which at times was extremely loud. Eventually, the employee developed hearing loss and was prescribed hearing aids. After he retired from working for reasons unrelated to his hearing loss, the employee brought a claim against his former employers and their respective workers’ compensation insurers, seeking medical benefits including payment for hearing aids, and permanent partial disability (PPD) benefits.
Prior to the hearing on the employee’s claims, the employee and the intervenor entered into a Pierringer settlement with SPX and ATEK and their respective insurers. Consistent with Pierringer settlements, the employee maintained his right to seek workers’ compensation benefits from the remaining non-settling employers and insurers, but agreed to hold harmless the settling employers and insurers from claims for contribution and/or reimbursements brought by the non-settling employers and insurers.
The employee’s claim for medical and PPD benefits against the remaining employers and insurers was heard by a compensation judge, who issued her Findings and Order on November 20, 2020. The compensation judge found that the employee’s exposure to workplace noise was a substantial contributing factor to his hearing loss, and that the last workplace noise exposure that significantly contributed to the employee’s hearing loss occurred during his employment with SPX. She found the employee had further occupational exposures to noise in his subsequent employment with ATEK and Metropolitan Council, but that those exposures were not significant. Despite this finding, the judge held that Metropolitan Council, as the last employer where the employee was exposed to noise, was required to pay medical benefits, including payment to the intervenor, pursuant to the provisions of Minn. Stat. § 176.135, subd. 5. Because the employee had settled his case with SPX, the compensation judge concluded that the issue of PPD was moot and made no findings as to any PPD rating.
Metropolitan Council appealed to this court, and we affirmed. Sershen v. Metro. Council, No. WC21-6395 (W.C.C.A. June 24, 2021). Metropolitan Council appealed our decision to the supreme court, which affirmed the compensation judge’s conclusion that Metropolitan Council was liable for the employee’s medical benefits under Minn. Stat. § 176.135, subd. 5. However, the supreme court further held that because there was a Pierringer settlement, the compensation judge should have made a determination as to whether Metropolitan Council had a right of reimbursement, rather than leave that question open for subsequent resolution through a petition for reimbursement. The supreme court accordingly remanded the case to the compensation judge to determine whether the employee had a “disablement,” thereby triggering a right of reimbursement under Minn. Stat. § 176.135, subd. 5. If so, the compensation judge was to determine the effect of the Pierringer settlement on the mechanics of that reimbursement.
At the hearing on remand, the parties stipulated that the employee had at least a two percent PPD rating. Based on that stipulation, Metropolitan Council argued that the employee had suffered disablement sufficient to create a right to reimbursement for the medical benefits it was ordered to pay under Minn. Stat. § 176.135, subd. 5. The employee asserted that there was no disablement because he was never unable, as a result of his hearing loss, to earn full wages at the work in which he was last employed. The compensation judge found that no disablement had occurred within the meaning of the reimbursement provision. She further concluded that, in the absence of a right to reimbursement, potential questions over the effect of the Pierringer agreement on such a reimbursement were moot. Metropolitan Council appealed.
In interpreting whether PPD constitutes disablement under § 176.135, subd. 5 so as to trigger the right to reimbursement, the WCCA looked to the historical definition of disablement contained in § 176.66, which until repeal in 1973 had provided, in part, “When used in this section, “disability” means the state of being disabled from earning full wages at the work at which the employee was last employed and “disablement” means the act of becoming so disabled.” Amendments to the Workers’ Compensation Act in 1973 removed this specific language defining “disability” and “disablement” from Minn. Stat. § 176.66, subd. 1. Similarly, in 1974, PPD benefits were made separate stand-alone benefits regardless of whether there was any wage loss.
The WCCA went on to explain that the primary holding of the Moes case, which was cited by both parties in briefing, was that PPD is awardable absent wage loss. The WCCA therefore found the compensation judge’s interpretation of disablement is internally consistent with other language in that section, but with the long-established definition of that term in occupational disease statutes. They went on to state that despite repealing the official definition of “disablement” in §176.66, subd. 1, they retained similar language in the statute at issue (§176.135, subd. 5).
In doing so they rejected Met Council’s arguments that the supreme court, in its own decision in Sershen, held that PPD constitutes disablement when they said, “The Workers’ Compensation Act does not define “disablement,” but we have said that a claim based on “disablement” from an occupational disease accrues when “the employee’s illness has led to a wage loss, job transfer, or permanent impairment.” They noted the quoted language was part of a general introduction to the legal concepts regarding compensability of occupational disease cases. The WCCA further found that “permanent impairment” could reasonably be interpreted as permanent functional impairment that limits the employee’s ability to continue working at the last job, which would fit within the court’s longstanding interpretation of “disablement,” unlike the suggested interpretation of the term as any ratable PPD.
The compensation judge’s decision was affirmed. The key takeaway to this case is that PPD does not constitute disablement within the definition of §176.135, subd. 5.