The employee was an audio technician and stage manager who set up and tore down equipment for touring shows, performances, and sporting events at Target Center. He was also a member of a union, since 1975, through which he obtained (according to his own testimony) 20% of his overall work (away from Target Center). His claim of wage loss relates only to a loss of union work, and not from work missed at Target Center.
There are five claimed dates of injury:
- November 28, 1990, Right Shoulder Injury (Target Center and Broadspire) – Admitted dislocation and rotator cuff tear of right shoulder, leading to surgery, recovery, and return to work. Broadspire paid 23 weeks of temporary partial disability (TPD), medical, and 9% permanent partial disability (PPD) benefits. The employee testified that his problems were resolved. In 2000, he dislocated his right shoulder while skiing and he claimed full recovery within six months.
- April 7, 2004, Right Shoulder Injury (Target Center and Gallagher Bassett) – Admitted rotator cuff tear and surgical repair after employee fell. Insurer paid 3 weeks of temporary total disability (TTD) after surgery, medical benefits, and 6% PPD. Employee testified that he relied more on his left arm for a period of time. Maximum Medical Improvement reached by February 2005 for this injury.
- August 1, 2009, Right Shoulder Injury (Target Center and Sedgwick) – Admitted dislocation, full thickness rotator cuff tear, and acute on chronic massive rotator cuff tears. The treating doctor said it was irreparable and surgery was not recommended. Sedgwick paid medical benefits. The employee testified that following this injury, he could not perform full duty work and as a result he turned down union jobs.
- October 2, 2009, Left Shoulder Gillette Injury (Target Center and Sedgwick) – The employee claimed a Gillette type injury to the left shoulder consequential to the prior right shoulder injuries, after an MRI showed a full-thickness rotator cuff tear.
- January 23, 2010, Left Shoulder Injury (Target Center and Sedgwick) – Admitted dislocation of left shoulder resulting from a fall. The employee suffered a number of left shoulder dislocations while skiing, diving and in other activities. He underwent a left shoulder reduction with an external fixator application in July 2010. He then underwent a procedure to have the hardware removed in August 2010. Sedgwick paid TTD benefits on two short periods. In September, the employee was placed on permanent work restrictions related to the left shoulder. Sedgwick paid TTD benefits, medical benefits, and 18% PPD.
The employee was unable to say whether and to what extent his right shoulder limited his work activities as compared to the left shoulder.
The employee filed a Claim Petition and Sedgwick filed a Petition to Discontinue (pleadings were consolidated). Sedgwick then filed a Petition for Joinder seeking reimbursement for wage loss and medical benefits paid under a temporary order. All pleadings were then consolidated. Judge Marshall presided over the hearing, in which 11 issues were to be considered.
There were 4 issues on appeal:
- Did the employee sustain a repetitive minute trauma to the left shoulder leading to a consequential Gillette injury in 2009?;
- Did the employee sustain a superseding, intervening compensable injury to his left shoulder in 2010?;
- Is the employee entitled to TPD benefits as a result of one or more injuries at Target Center; if so, which insurer is legally responsible for payment, and at what rate?; and
- Apportionment between insurers for TTD, and at what rate for each insurer.
The WCCA held as follows:
- Consequential Gillette left shoulder injury
Proof of a Gillette injury is established by a “causal connection between the employee’s ordinary work and ensuing disability.” The compensation judge concluded that there was “no medical proof of any work related causation to the employee’s symptoms.” Substantial evidence in the record (mainly the insurers’ several expert opinions as compared to the employee’s Dr. Wengler narrative report) supported the judge’s conclusion. The WCCA affirmed on this issue.
- Superseding, Intervening left shoulder injury
On a complicated set of facts involving a work injury, personal skiing injury, and self-treated dislocations, the compensation judge accepted the opinions of medical experts who incorporated a broader analysis of events and classified the diagnosis as multifactorial, involving massive irreparable rotator cuff tears with a history of dislocations for both shoulders, a left shoulder diagnosis of a rotator cuff and bicep tendon tears, and an acute left shoulder injury in 2010 that resulted in subsequent dislocations and need for medical treatment. Substantial evidence in the record supports the judge’s conclusion and the WCCA affirmed.
- Temporary Partial Disability Benefits
Sedgwick and Broadspire contend that the employee did not prove entitlement to TPD benefits and that Judge Marshall’s findings fail to support a factual and legal basis for equitably apportioning liability among four work injuries. The WCCA affirmed, as modified.
The insurers argue that the employee failed to make a good faith effort to return to his pre-injury earnings and that he should have performed a job search beyond his regular checking with the union job postings. The rule says that so long as the reduced earnings result from the effects of the work injury, the employee is entitled to wage loss benefits. The employee was able to work at Target Center, but was unable to accept union jobs. The WCCA affirmed, based on substantial evidence, the conclusion that the employee has restrictions as a result of the work injuries and that as a result of those restrictions the employee has experienced reduced earnings attributable to the work injuries. The WCCA also affirmed the decision that TPD benefits may be paid for a period during which vacation pay was received.
The Court reviews apportioning liability among insurers as a question of fact, reviewed under a substantial evidence standard. The judge apportioned equally for TPD between all four dates of injury. The WCCA acknowledged that the judge could have apportioned in a number of ways, but there was sufficient evidence to support his findings. The WCCA affirmed the factual basis.
However, the findings for payment rest upon the application of the statute in effect on the date of each injury, is a question of law reviewed de novo. The WCCA modified the calculation based on the law in effect on each date of injury. The WCCA held that Gallagher Bassett was correct in arguing that it should not be liable for TPD benefits beyond 450 weeks from the 2004 date of injury pursuant to Minn. Stat. § 176.101, subd. 2(b).
The WCCA also affirmed the judge’s apportionment part of the employee’s TPD benefits against the November 28, 1990 injury, when the employee’s reduced earnings during the periods awarded exceeded the average weekly wage on the date of the November 28, 1990 injury. The court explained that in Brink v. Metro. Waste Control Comm’n, it held that an employer is responsible to pay its apportioned share of TPD benefits even though the employee’s current wage was greater than the wage earned while working for that employer.
The WCCA also instructed the parties to recalculate the compensation rates using Kaisershot formula based on the stipulated average weekly wages, the application of compensation rates under Minn. Stat. § 176.645, and according to the apportionment as modified ion this WCCA opinion.
- Temporary Total Disability Benefits
The WCCA held that apportionment of a compensable claim among work injuries is a question of fact for the compensation judge. It affirmed under the substantial evidence standard.