BERTHIAUME v. THOMPSON, 300 Minn. 537 (1974)

219 N.W.2d 442

No. 44355.Supreme Court of Minnesota.
June 21, 1974.

Workmen’s compensation — compensation award — denial of reimbursement from Special Compensation Fund — propriety.

Certiorari upon the relation of Vernon Thompson, d.b.a. Berthiaume Thompson Painting, employer, and AID Insurance Company, its insurer, to review a decision of the Workmen’s Compensation Commission denying their claim for reimbursement from the state treasurer,

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custodian of the special compensation fund, for benefits paid to Warren Berthiaume, employee, because of a second injury. At the time of a prior injury employer was insured by Employers Mutual Casualty Company. Affirmed.

Sahr, Kunert, Tambornino Soshnik and John L. Tambornino, for relators.

Collins Buckley and Eugene D. Buckley, for respondent Employers Mutual.

Warren Spannaus, Attorney General, Jonathan H. Morgan, Solicitor General, and Kenneth McCoy, Special Assistant Attorney General, for respondent state treasurer.

Considered and decided by the court without oral argument.

PER CURIAM.

Certiorari to review a Workmen’s Compensation Commission decision denying reimbursement from the Special Compensation Fund pursuant to Minn. St. 1967, § 176.131, subd. 1. We affirm.

The only issue for our consideration is whether the evidence sustains the commission’s findings. The commission found that as a result of the first injury in 1964, the employee had not suffered a physical impairment within the meaning of Minn. St. 1967, § 176.131, subds. 4 and 8.[1] The commission also found that the medical report filed with the commission after the first injury did not show a physical impairment. Finally, the commission determined that the disability resulting from the injury sustained in 1968 was not substantially greater because of the first injury. Minn. St. 1967, § 176.131, subd. 1.

The first injury was sustained December 31, 1964, when employee fell down an embankment. The resulting injury was diagnosed as a low back strain and no permanent disability was expected. Employee returned to work on March 1, 1965. The record indicates that employee

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had no further problems with his back; that he returned to the same work which included erecting scaffolds and moving ladders and which was characterized by employee as “heavy work”; that after his return from the first injury he did not lose any time from work; and that he did not take medication or seek medical attention prior to the second injury. Expert medical testimony indicated that a low back strain could heal completely and without further complication between December 31, 1964, and March 1, 1965. These facts support the commission’s finding that the employee did not suffer a physical condition “which is or is likely to be a hindrance or obstacle to obtaining employment.” Minn. St. 1967, § 176.131, subd. 8.

The second injury occurred on June 27, 1968. The employee fell off a 6-foot ladder and sustained a back injury initially diagnosed as a herniated intervertebral disc. The commission, based on conflicting expert medical testimony, found that the subsequent injury was not made substantially greater because of the first injury.

The scope of this court’s review is limited. If the findings are based upon credible evidence, they may not be disturbed on appeal. Villebrun v. Fryrear, 288 Minn. 478, 183 N.W.2d 279
(1970); Anderson v. Jensen, 289 Minn. 432, 184 N.W.2d 774
(1971); MacNamara v. Jennie H. Boyd Trust, 287 Minn. 163, 177 N.W.2d 398 (1970). While there is some conflicting and inconsistent evidence, the record adequately supports the commission’s findings.

Affirmed.