McClish v. Pan-O-Gold Baking Co.
| Decision Date | 05 August 1983 |
| Docket Number | No. C3-82-1146.,C3-82-1146. |
| Citation | 336 NW 2d 538 |
| Parties | Lyle H. McCLISH, Respondent, v. PAN-O-GOLD BAKING COMPANY and Liberty Mutual Insurance Co., Relators, Pan-O-Gold Baking Company and Vigilant Insurance Co., Employer and Insurer, Pan-O-Gold Baking Company and City Insurance Co. (Home Ins. Co.), Employer and Insurer. |
| Court | Minnesota Supreme Court |
Donald W. Anderson, Gilmore, de Lambert, Aafedt, Eustis & Forde, Minneapolis, for relator Pan-O-Gold Baking Co. and Liberty Mut. Ins. Co.
Curtis H. Foster, St. Paul, for respondent McClish.
Michael C. Jackman, Minneapolis, for Vigilant Ins. Co.
Louis R. Tilton, Minneapolis, for City Ins. Co.
Heard, considered and decided by the court en banc.
By writ of certiorari, employer-relator Pan-O-Gold Baking Company and insurer-relator Liberty Mutual Insurance Company (hereinafter Pan-O-Gold) seek review of a decision of the Workers' Compensation Court of Appeals affirming an award of temporary total and permanent partial disability to Lyle H. McClish, employee-respondent. Pan-O-Gold challenges findings that McClish sustained back injuries and that he was totally disabled therefrom. It also claims that temporary total disability payments are subject to reduction under Minn.Stat. § 176.101, subd. 4 (1982) when the employee receives federal social security disability payments for the same injury. We affirm.
Employee was born on April 24, 1916. He was employed by Pan-O-Gold from 1950 until 1979 as a "route salesman" who sold and delivered bakery products to grocery stores, schools and restaurants. In 1973, Pan-O-Gold altered the system by which merchandise was stored and removed from the delivery trucks. McClish contends the change required him to lift more weight, causing him to strain his back. In 1974, McClish slipped and fell while removing racks of baked goods from his truck. He landed on his spine and subsequently experienced pain in his back and legs. He was hospitalized for 10 days and received a variety of treatments for his problems.1
McClish claimed that between 1974 and 1979 his back problems increased, causing him to experience sharp back pains, pains and numbness in his left leg, and soreness in his neck and shoulders. In January 1979, employee sought medical attention from an orthopedic surgeon, Dr. Robert Soiseth. He received medication and was fitted with a back brace. Eventually, in February 1979 he was hospitalized. During January and February 1979, his symptoms remained the same. Dr. Soiseth observed no specific changes in history or examination during the time from McClish's first visit to him in January 1979 and the hospitalization in February 1979, nor was he aware of any specific work incident that aggravated the employee's condition.
McClish claims that during the first week in February 1979, he sustained two falls resulting in injuries to his back. He lost no time from work immediately thereafter, but he claims he began to experience considerable pain in his back and legs as well as numbness in his legs. Following his hospitalization in February 1979, McClish returned to work in late March. Because of the pain and numbness he was experiencing, he terminated his employment in August 1979. Shortly afterwards, he applied for and received social security retirement benefits and later social security disability benefits. Since retirement he also has received pension benefits.
During the late summer and fall of 1979, employee received three job offers from former customers generally involving stocking merchandise and produce. He did not accept any of the job offers because he felt the positions involved too much lifting, bending and stooping. McClish made no attempt to locate work since leaving Pan-O-Gold in August 1979.
Joseph Steen, an experienced consulting rehabilitation psychologist, after examining employee's medical reports, giving him an intelligence test, and conducting a general psychological personality inventory (the Minnesota Multiphasic Personality Inventory) testified that due to his physical limitations, McClish lacked "the tolerance necessary to perform sustained, gainful activity within the occupations for which he has the experience, skills and training." Steen's conclusion was that McClish was unemployable in the competitive labor market.
Dr. David Boxall, a board-certified orthopedist, concluded employee has 15% permanent partial disability of the spine. Initially, he attributed two-thirds of that disability to the 1974 incident with the remainder to the 1979 falls, but later, opined all that disability was the result of the 1974 injury. Dr. Soiseth assessed permanent partial disability at 20%, attributable in equal parts to the 1974 incident and continued work trauma coupled with the two 1979 falls. He was further of the opinion the 1979 falls substantially aggravated any pre-existing problems McClish had had with his back. He did state that, within certain limitations, McClish could do some type of work.
Dr. David Johnson, a neurosurgeon, felt that employee's problems were simply temporary flare-ups of the 1974 injury, and that McClish could perform an 8-hour day of light work. Michael Graham, a job placement specialist employed by the Minnesota Department of Economic Services, said McClish could work at light work such as being a watchman or parking lot attendant, although McClish's age would be a factor working against him.
1. The compensation judge found that the employee had sustained work-related personal injuries to his low back in 1974 and February 1979, and, further, that he had sustained a Gillette-type injury from 1973 through August 1979.2 He further found that as a result the employee was temporarily totally disabled from August 1979 through November 12, 1981, and continuing. These findings were affirmed by the Workers' Compensation Court of Appeals. Pan-O-Gold contends that McClish suffered no new injury and that all his back problems relate to the 1974 fall for which workers' compensation has already been paid.
It is well established that, on review, we view the facts in the light most favorable to the findings of the court of appeals. See, e.g., Talmage v. Medtronic, Inc., 315 N.W.2d 433, 437 (Minn.1982). Where the court of appeals affirms the compensation judge, the court of appeals' decision must not be disturbed unless it is manifestly contrary to the evidence, see, e.g., Busse v. Quality Insulation Co., 322 N.W.2d 206, 210 (Minn.1982), or unless the evidence clearly requires reasonable minds to adopt a contrary conclusion. Halverson v. Larrivy Plumbing & Heating Co., 322 N.W.2d 203, 205 (Minn.1982). Where expert testimony is in conflict, resolution of the conflict is the function of the compensation judge as trier of fact. Nibbe v. City of St. Paul, 320 N.W.2d 92, 93 (Minn.1982); Fredenburg v. Control Data Corp., 311 N.W.2d 860, 863 (Minn.1981).
Although the evidence in this case is not overwhelming, the compensation judge's findings are certainly not manifestly contrary to the evidence. The judge could have, for example, accepted Dr. Soiseth's testimony that the 1979 events significantly enhanced McClish's disability. See Carlson v. Flour City Brush Co., 305 N.W.2d 347 (Minn.1981); Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200 (1960).
2. Pan-O-Gold next argues that McClish was not "totally disabled" because he failed to make an extensive search for post-injury employment. It bases this argument on Minn.Stat. § 176.101, subd. 5 (1982), which defines total disability as including any injury "which totally incapacitates the employee from working at an occupation which brings him an income." The employer relies on the testimony of Michael Graham and Dr. Johnson to the effect that McClish could perform light work on a full-time basis. It further relies on the fact employee rejected job offers from three of his former customers. Finally, it points out that the employee testified he has no plans to look for work. As a result of the foregoing, Pan-O-Gold contends that McClish has opted to withdraw from the labor market and that, pursuant to Minn.Stat. § 176.101, subd. 2 (1982), the decision of the Workers' Compensation Court of Appeals finding McClish temporarily totally disabled should be reversed.
We have held that whether the employee has met the burden of proving total disability is a fact question. Holliday v. Rush Products Division, 284 N.W.2d 538, 539 (Minn.1979). Such factfinding of the Workers' Compensation Court of Appeals must be upheld by this court unless it is manifestly contrary to the evidence. See, e.g., Busse v. Quality Insulation Co., 322 N.W.2d 206, 210 (Minn.1982).
One who has voluntarily retired and withdrawn from the labor market is not eligible for total disability benefits. See, e.g., Saenger v. Liberty Carton Co., 281 N.W.2d 693, 695 (Minn.1979). Voluntary withdrawal, however, requires a finding that the employee intended to retire on a specific date regardless of disability. Henry v. Sears, Roebuck and Co., 286 N.W.2d 720, 723 (Minn.1979). Without doubt there are facts which would have supported the decision by the Workers' Compensation Court of Appeals that McClish had withdrawn from the labor market. Although McClish had made no attempt to find work since leaving Pan-O-Gold in August 1979, he did state he was willing to work if he could find something within his present ability. We conclude there were facts to support the decision of the Workers' Compensation Court of Appeals that McClish was totally disabled, and that its decision was not manifestly against the evidence.
We have noted the concept of "total disability" depends upon the employee's ability to find and hold a job, and not on his physical condition. Findorff v. Pinkertons, Inc., 295 N.W.2d 373, 376 (Minn.1980). The reality of the job market and not the medical testimony is the most significant. Failure to seek post-injury employment...
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