Souden v. Hopkins Motor Sales, Inc.

• Citation: 289 Minn. 138,182 N.W.2d 668
• Decision Date: 08 January 1971
• Docket Number: No. 42422,42422
• Parties: Donald M. SOUDEN, Relator, v. HOPKINS MOTOR SALES, INC., et al., Respondents.
• Court: Supreme Court of Minnesota (US)

Page 668

182 N.W.2d 668

289 Minn. 138

Donald M. SOUDEN, Relator, v. HOPKINS MOTOR SALES, INC., et al., Respondents.

No. 42422.

Supreme Court of Minnesota.

Jan. 8, 1971.

Syllabus by the Court

Where an injured employee has received total disability benefits initially under Minn.St.1961, § 176.101, subd. 1, for 'temporary total disability' and subsequently under § 176.101, subd. 4, for 'permanent total disability,' for purposes of determining the eligibility of the workmen's compensation insurer to claim as a setoff benefits being received by employee under old age and survivors insurance, the insurer is entitled to consider all payments made for total disability, whether nominally made under subd. 1 or under subd. 4.

Miller & Neary, Minneapolis, for relator.

Jardine, Logan & O'Brien, and Michael J. Healey, St. Paul, for respondents.

Heard before KNUTSON, C.J., and OTIS, ROGOSHESKE, PETERSON, and ROSENGREN, JJ.; reconsidered and decided by the court en banc.

OPINION

CHESTER G. ROSENGREN, Justice. ^*

This action is before this court on certiorari to the Workmen's Compensation Commission. Relator seeks review of a decision of the commission holding that the compensation insurer which has been paying total disability benefits to relator is now entitled to a setoff for payments currently being received by relator under old age and survivors insurance (O.A.S.I.). We affirm.

The essential facts of the case are as follows: On August 31, 1960, relator, Donald M. Souden, sustained a back injury in an automobile accident which occurred in the course of his employment as a car salesman for respondent Hopkins Motor Sales, Inc. On January 14, 1963, Souden filed with the commission a claim petition seeking payment of certain disputed medical expenses and benefits for permanent total disability. Following a hearing, the commission's referee on August 2, 1963, filed his determination that the employee had sustained temporary total disability and 50-percent permanent partial loss of use of his back. On Appeal by both the employee and the employer-insurer, the commission on March 4, 1965, modified the referee's determination and found that the employee had sustained a continuing temporary total disability and ordered payment of 'compensation at the rate of $45.00 per week covering temporary total disability from September 8, 1960 to the date of hearing before the Referee, June 25, 1963, a period of 143 1/6 weeks, in an amount of $6,444.00, and continuing thereafter as such disability may warrant.' The commission, while stating that it had 'no argument * * * with the finding that the employee sustained 50 percent permanent partial disability to the back, based on the last examination of May, 1963,' also stated that the employee continued to be 'temporarily totally disabled * * * (and entitled to compensation benefits under) M.S.A. 176.101, subd. 1.' Said subdivision provided for a maximum compensation of $45 per week to be paid during the period of disability, 'but not exceeding 350 weeks.'

On September 1, 1967, the employee and the employer-insurer executed a stipulation later filed with the commission, in which the parties in part agreed as follows:

'3. * * * Employe (had been awarded) temporary total disability from September 8, 1960 onward.

'4. That the 350 week maximum duration of temporary total disability allowed by statute expired on May 24, 1967.

'5. That the Employe is still totally disabled and incapable of pursuing any gainful employment, and it appears that this condition is permanent and irreversible.

'6. NOW THEREFORE, IT IS MUTUALLY STIPULATED AND AGREED, By and between the parties hereto, that the Minnesota Industrial Commission make and enter an Order awarding to the Employe Donald M. Souden permanent total disability in lieu of and in modification of the Order heretofore entered.'

On October 31, 1967, the commission entered and filed an order for award in which it stated:

'NOW, THEREFORE, In addition to compensation heretofore paid, for 350 weeks of temporary total disability and 17 1/6 weeks of permanent total disability, all computed at the weekly compensation rate of $45.00 for the period from September 8, 1960 to September 21, 1967, in the sum of $16,522.50, and an unspecified sum of medical expenses, it is hereby considered and determined that the employee is entitled to and he hereby is awarded, compensation for permanent total disability.

'IT IS FURTHER ORDERED that the employer and insurer herein shall make direct payment to the employee of compensation at the rate of $45.00 per week for permanent total disability from September 21, 1967, pursuant to Sec. 176.101, Subd. 4 of the Minnesota Workmen's Compensation Law.'

On May 9, 1968, the date at which the sum of disability benefits received by employee from September 9, 1960, aggregated $18,000, the insurer reduced the payments to $11.22 per week, an amount which reflected a setoff for the $146.40 per month which the employee was receiving as O.A.S.I. benefits.

Thereafter, the employee filed with the commission a petition in which he asserted his continuing eligibility to receive $45 per week in compensation payments until $18,000 was paid pursuant to Minn.St. 1961, § 176.101, subd. 4. Pursuant to that petition and after the filing of a stipulation in which the parties agreed that the employee had been totally disabled since August 31, 1960, and that a 'total of $18,000 has been paid' pursuant to awards and determinations of the commission, a referee entered an order directing the insurer to continue to pay employee permanent total disability benefits at the rate of $45 per week until $18,000 shall have been paid specifically under § 176.101, subd. 4--that is, until February 4, 1975. Upon the insurer's appeal to the commission, the decision of the referee was set aside, the commission determining that since it appeared 'in retrospect' that employee had in fact been permanently and totally disabled since August 31, 1960, insurer was therefore entitled to a setoff for O.A.S.I. benefits from the time that a total of $18,000 in disability benefits had been paid after that date.

The question presented is whether an employer-insurer who has paid benefits pursuant to an award of temporary total disability under Minn.St. 1961, § 176.101, subd. 1, and who, following expiration of that award, was ordered by the commission to pay benefits under § 176.101, subd. 4, for permanent total disability, may include the amounts paid under the initial award in determining whether he has paid the $18,000 in benefits within the meaning of § 176.101, subd. 4, so as to be able to claim as a credit the O.A.S.I. benefits being received by the employee.

The provisions of Minn.St. 1961, § 176.101, relevant to this question are as follows:

'Subdivision 1. For injury producing temporary total disability, 66 2/3 percent of the daily wage at the time of injury subject to a maximum compensation of $45 per week and a minimum compensation of $17.50 per week. This compensation shall be paid during the period of disability, but not exceeding 350 weeks, payment to be made at the intervals when the wage was payable, as nearly as may be.'

'Subd. 4. For permanent total disability, as defined in subdivision 5, the compensation shall be 66 2/3 percent of the daily wage at the time of the injury, subject to a maximum compensation of $45 per week and a minimum compensation of $17.50 per week. If the wages of the employee at the time of the injury are $17.50 or less per week, he shall receive the full amount of his wages per week. This compensation shall be paid during the permanent total disability of the injured person but if the employee is eligible for old age and survivors insurance benefits, such benefits shall be credited on the compensation benefits payable under this subdivision after a total of $18,000 has been paid. * * *'

'Subd. 5. The total and permanent loss of the sight of both eyes, the loss of both arms at the shoulder, the loss of both legs so close to the hips that no effective artificial members can be used, complete and permanent paralysis, total and permanent loss of mental faculties, or any other injury which totally incapacitates the employee from working at an occupation which brings him an income constitutes total disability.'

It is not disputed that employee has been totally disabled since the accident.

Respondents argue that because it now appears that employee's disability actually has been permanent from the outset, the disability benefits paid during the entire period shall be included in determining whether the $18,000 required under § 176.101, subd. 4, for claiming of the O.A.S.I. credit has been paid.

After careful consideration of the matter, we agree with respondents. To reach the opposite conclusion would produce an overly technical result by placing excessive reliance upon a preliminary administrative characterization of employee's injury made by the commission some years ago. Relator-employee argues that because the initial award of temporary total disability was made under § 176.101, subd. 1, benefits received prior to the second award must not be considered as payments for total disability within the meaning of subd. 4 in determining eligibility for a setoff after payment of $18,000. It is true that there is some tenuous support for the interpretation for which employee argues. In Durant v. Butler Brothers, 275 Minn. 487, 148 N.W.2d 152, we held that an insurer could not credit against his obligation to make payments for permanent total disability under subd. 4 payments which he had previously made for permanent partial disability under subd. 3. From that decision it might be possible to infer that the credit for which provision is made in subd. 4 relates solely to payments made pursuant to awards under that subdivision and that...