Fredenburg v. Control Data Corp.

• Decision Date: 06 November 1981
• Docket Number: No. 51409.,51409.
• Citation: 311 NW 2d 860
• Parties: Richard FREDENBURG, Relator, v. CONTROL DATA CORPORATION (Self-Insured), Respondent, and State Treasurer, Custodian of the Special Compensation Fund, Respondent.
• Court: Minnesota Supreme Court

311 N.W.2d 860 (1981)

Richard FREDENBURG, Relator, v. CONTROL DATA CORPORATION (Self-Insured), Respondent, and State Treasurer, Custodian of the Special Compensation Fund, Respondent.

No. 51409.

Supreme Court of Minnesota.

November 6, 1981.

Buckley & Mazorol, James W. Buckley, Minneapolis, for relator.

Oppenheimer, Wolff, Foster, Shepard & Donnelly and Rita Burns, Warren Spannaus, Atty. Gen., St. Paul, for respondents.

Considered and decided by the court en banc without oral argument.

YETKA, Justice.

In January 1979, Richard Fredenburg filed a claim petition against his employer, Control Data Corporation, seeking compensation for temporary total and permanent partial disability allegedly caused by a work-related injury sustained on June 27, 1978. A compensation judge determined that the employee had sustained a work-related injury in the nature of an aggravation of a pre-existing back condition, was temporarily totally disabled, and had sustained a 5% permanent partial disability because of this injury. Control Data appealed to the Workers' Compensation Court of Appeals. The court of appeals modified the 5% permanent partial disability finding to 2½%. The court of appeals also reversed the compensation judge's finding that the employee had been temporarily totally disabled.¹ This reversal was apparently based on the ground that the employee had failed to make a "reasonably diligent effort" to find substitute work because he had not sought employment in the Twin Cities metropolitan area. This court granted certiorari.

The evidence established that the employee has congenital spondylolisthesis at the base of his spine and has also suffered prior work-related back injuries. His first serious injury was sustained in 1967 when, while employed as a truckdriver, he felt sharp pains in his low back and numbness in his legs. Because of his 1976 injury, the employee left truckdriving and became a maintenance worker. Several later work-related accidents resulted in less severe recurrences of back pain.

By 1973, he was a maintenance supervisor at Control Data's Northside plant. His position was terminated, however, when the company decided to hire an outside janitorial service. The employee then performed manual labor tasks. In July 1973, he developed severe pain in his low back after two weeks of moving dirt with a wheelbarrow. He did not work again until June 1978. Control Data voluntarily paid him temporary total disability compensation during this period.

In adjudicating an earlier claim for benefits, a compensation judge determined that the employee had a 25% permanent partial disability of the back, 80% of which was attributable to his July 1973 work activities.

Following this decision, the employer's rehabilitation counselor offered the employee a job that required him to check automobiles in parking lots at the employer's main plant, occasionally to chauffeur company executives, and to assist the operator of a telephone service that received reports of maintenance problems and referred them to the appropriate maintenance staff. The employee returned to work on June 24, 1978. On June 26, 1978, the employer's rehabilitation supervisor told the employee to report to the mailroom to sort mail. The mailroom supervisor was not present, and the director of the incoming mail section told the employee to help another man lift a mailbag weighing approximately 100 pounds and to sort boxes of mail weighing 45 pounds. Within an hour, the employee had an intense backache. He started for home but had to call his wife to meet him because of his pain.

The employee sought treatment from Dr. Joseph Sweere, a chiropractor who has treated him since 1967. He received a number of treatments in the next several weeks, and also consulted Dr. Gilbert Westreich, a neurologist who had treated him previously. Both diagnosed the employee's difficulty as lumbosacral strain aggravating his pre-existing condition. Dr. Westreich examined the employee on July 24, 1978, and told him that he would be able to return to work in a month. Dr. Sweere also thought that by July 17, 1978, the employee's back had returned to its condition prior to the aggravation in June. Dr. Sweere testified that, when working, the employee should be restricted totally from prolonged repetitive hyperflexion and hyperextension activities, all prolonged standing, lifting of more than 25 pounds, and riding in a vehicle more than 30 minutes. Dr. Westreich agreed that the employee should not lift objects weighing more than 20 pounds and that he should be restricted from jobs requiring him either to stand or to sit for long periods. Dr. Sweere also indicated that the employee has a 50% permanent partial disability of the back, 15% of which he attributed to the June 1978 incident. Dr. Westreich did not express an opinion on permanent partial disability, saying only that the June 1978 incident was a "significant side factor" in the employee's present condition.

Dr. John T. Anderson, a specialist in orthopedics, testified on behalf of the employer. He agreed that the employee could not return to his former occupations, should not lift, and should have work not requiring prolonged sitting or standing. He assessed the employee's permanent partial disability at 20%, 15% of which he attributed to the 1967 injury and 2½% each to the 1973 and 1978 injuries. Dr. David W. Florence, an orthopedic surgeon, diagnosed the employee as suffering from a first-degree spondylolisthesis at the lumbosacral level, an essentially hysterical personality pattern, and a severe functional overlay. He thought that the employee had a 15% permanent partial disability secondary to the congenital condition, but not to the injury. He further testified that the employee should not lift over 60 pounds and should not repeatedly lift more than 25 pounds, but stated that this recommendation was "precautionary" to avoid future difficulties. Subject to those restrictions, he thought that the employee could do maintenance work.

The employee testified that he telephoned the employer's rehabilitation supervisor about a month after seeing Dr. Westreich and informed the supervisor that he could return to work if Control Data had anything for him. He testified that the supervisor said that they did not have work for him. In August 1978, the employee talked with a CETA representative to obtain information about that program. He also went to the Division of Vocational Rehabilitation (DVR) and took some tests for a job requiring manual dexterity. He was unable to demonstrate the necessary skill and had not been informed of any other work at the time of the hearing. He also registered at the Faribault State Employment Services Office in August 1978 and also applied unsuccessfully for a factory job and for three janitorial jobs in March or April 1979, all in towns near his home in Waterville. In the spring of 1979, he unsuccessfully tried to drive a truck and to do some janitorial work on his own. Since July or August 1978, the employee has worked from 1½ to 4 hours twice a week as a cashier at a self-service gas station. This job is actually the employee's wife's occupation, but because of her ill health, he fills in for her at times. The employee testified at trial that he was "always looking" for light general work but that he did not recall any specific places he had gone.

The employee also testified that he cannot be active all day every day because of his condition and that he has frequent back pain that is more severe than it was before the 1978 incident, has leg pains, numbness in his left fingers, and has been losing his balance during the past year. He further testified that he has had difficulty with hearing since 1973 and some difficulty with his vision beginning after the 1978 aggravation. He helps his wife with housework, but does not mow the lawn and does not engage in any recreational activities.

The following issues are raised on appeal to this court:

I. Whether the evidence supports the finding of 2½% permanent partial disability attributable to the June 1978 injury; and

II. Whether the finding that the employee is not temporarily totally disabled is manifestly contrary to the evidence.

I. The first issue requires little discussion. The court of appeals' finding of a 2½% permanent partial disability represents its acceptance of Dr. Anderson's opinion. Because it is the province of that court to resolve conflicting medical opinions on the issue of disability, its determination is accepted by this court. See Saenger v. Liberty Carton Co., 281 N.W.2d 693, 695 (Minn.1979); Robertson v. Park Brick Finishers, 300 Minn. 561, 562, 220 N.W.2d 489, 490 (1974).

II. The second issue concerns the requirement that an employee make a reasonable effort to obtain substitute employment as a condition to temporary total disability benefits. The source of this requirement can be found in Minn.Stat. § 176.101, subd. 2 (1980). That section relates primarily to temporary partial disability benefits, but concludes with the following statement:

If the employer does not furnish the worker with work which he can do in his temporary partially disabled condition and he is unable to procure such work with another employer, after reasonably diligent effort, the employee shall be paid at the full compensation rate for his or her temporary total disability.

Id. (emphasis added).

This court has also elaborated on the definition of temporary total disability. It...