Wendt v. North Dakota Workers Compensation Bureau

• Decision Date: 02 April 1991
• Docket Number: No. 900308,900308
• Citation: 467 N.W.2d 720
• Parties: Ronald L. WENDT, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee. Civ.
• Court: North Dakota Supreme Court

Page 720

467 N.W.2d 720

Ronald L. WENDT, Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.

Civ. No. 900308.

Supreme Court of North Dakota.

April 2, 1991.

David A. Garaas (argued), Garaas Law Firm, Fargo, for appellant.

Hugh Patrick Seaworth (argued), Asst. Atty. Gen., Bismarck, for appellee.

ERICKSTAD, Chief Justice.

Ronald L. Wendt appeals from a district court judgment affirming an order of the North Dakota Workers Compensation Bureau [Bureau] which denied him disability benefits. We affirm the judgment of the district court.

At the time of the formal hearing before the Bureau, Wendt was a 44-year-old high school graduate with a work history in construction and general labor. He is functionally illiterate, unable to read or write beyond a second grade level. According to a neuropsychologist, Wendt's reading and writing problems stem from an "[o]rganic mental disorder ... of uncertain etiology." Wendt nevertheless has "scored very high percentiles" in mechanical aptitude tests, "[d]emonstrating excellent mechanical and problem solving comprehension." Wendt received training for welding and in 1974, Steiger Tractor, Inc. [Steiger] in Fargo hired him as a small parts welder.

On July 30, 1984, while employed at Steiger, Wendt suffered a work-related injury to his lower back lifting a piece of angle iron. Wendt was treated by Dr. Lee Christoferson, who diagnosed his condition as "marked Grade II spondylolisthesis of L4 and 5 with bilateral spondylolysis." Dr. Christoferson recommended surgery and gave Steiger a return to work evaluation indicating that Wendt be restricted to lifting no more than 10 pounds and that he "stand/walk" no more than four to six hours in an eight hour work day. These restrictions were to remain in effect until six months after Wendt's surgery. However, Wendt refused the surgery and opted to return to work.

Upon being informed that Steiger would be unable to accommodate employment for Wendt under the restrictions set forth in the return to work evaluation, Dr. Christoferson responded by letter:

"Essentially the only restrictions I placed on Ronald Wendt were no lifting greater than about 30 pounds and repetitive pulling and pushing could aggravate his back. Essentially they are not hard fast restrictions, and I have no record of them in my chart either, although, I may have filled out a form for Steiger stating some of these.

"Again I think he can return to Steiger and perform his activity, but it may aggravate his back condition. It should not cause any serious problems, however."

Wendt returned to work on September 7, 1984. The Bureau paid medical and disability benefits from July 30, 1984, through September 6, 1984.

Because of the work restrictions, Steiger switched Wendt from welding to test driving tractors. Wendt was eventually reassigned to his job as a small parts welder. According to Wendt, Steiger accommodated his work restrictions by providing an overhead crane or air hoist for moving the heavier parts and providing co-workers to assist him in moving heavier parts that could not be moved with the crane.

Between September 1984 and September 1988, Wendt periodically saw doctors regarding his lower back problems. In April 1986 Wendt was evaluated at Mayo Clinic. The doctor noted that Wendt's back problem was not "severe enough to justify surgical treatment. He is working virtually every day with very little compromise in his work or recreational activities, and he does not feel the problem is bad enough to justify surgery." In March 1987 Dr. Christoferson noted that Wendt's spondylolisthesis "is progressing" and that Wendt "at times" feels "a numbness in his legs." Following a routine check-up in May 1988, Dr. Christoferson noted that Wendt "has been getting along fairly well with his spondylolisthesis. Basically no marked problems."

On September 30, 1988, Steiger terminated Wendt's employment for excessive absenteeism. Under a union contract, employees could be dismissed if they had accumulated a certain number of demerit points for being tardy or absent. Wendt had exceeded the limit.

Since then, Wendt has been unsuccessful in his attempts to find employment as a welder. Wendt has been able to find temporary employment through Kelly Services and has been employed as a fertilizer truck driver for a period of several months in the fall of 1988 and again in the spring and summer of 1989, but the most he has been able to earn is $4.50 per hour compared to the $10.94 per hour he had been earning at Steiger. Wendt has, however, worked as much as 16 hours per day, seven days per week, driving fertilizer trucks. Wendt also continued to serve his regular duty schedule with the Naval Reserve, where he is classified as a heavy equipment operator.

After he was discharged from Steiger, Wendt saw Dr. Christoferson, who referred him to Dr. Jeff Stavenger. Dr. Stavenger noted that Wendt's spondylolisthesis was "stable" and that surgery was not warranted because of his lack of symptoms. At Wendt's request, Dr. Stavenger wrote a letter in December 1988 setting forth Wendt's work restrictions:

"He does have a diagnosis of a Grade II spondylolisthesis in the low back. This is a partial slippage of one bone on the other. His back condition does appear to be stable. He should not be lifting more than 40 pounds on a one time basis or 30 pounds on a repetitive basis. He should also avoid repetitive bending, twisting or stooping with the back."

In January 1989 Wendt informed the Bureau that he was having trouble finding employment as a welder because of his work limitations and that he was "permanently and partially disabled" because of his work-related back injury. The Bureau assigned a rehabilitation specialist to assist him. The rehabilitation specialist noted from her interview that Wendt "does not have pain except for an occasional short-term sharp pain in his back. Sitting does not bother him, he can stand up to 10 hours per day at work, and does not have a problem with stairs." The rehabilitation specialist also noted that, after speaking with a Steiger official, "[t]here is no chance that [Wendt] will be reconsidered for rehire," and that Wendt's "previous vocational experience has been mainly in general labor and it will be difficult to find work in that area based on his current restrictions, but not impossible." Based in part on the rehabilitation specialist's report, the Bureau denied Wendt additional disability benefits on April 13, 1989. Wendt requested a rehearing, which was granted.

At the hearing, Wendt presented Dr. Stavenger's letter opinion stating that Wendt had "Grade II spondylolisthesis of L4 on L5" which resulted in an eight percent "impairment to the whole person." At one point, Dr. Stavenger testified that he agreed with Dr. Christoferson's limitation set forth in the original return to work evaluation that Wendt not "stand/walk" more than four to six hours during an eight hour work day and stated that Wendt would not be able to tolerate standing more than six hours per day. Dr. Stavenger, however, testified on cross-examination that Wendt, on an intermittent basis, could tolerate standing for six and one-half to seven hours per day with short breaks during the day and that the time limit was a "reasonably flexible approximation."

Steiger's former personnel manager testified that Wendt's discharge was not related to his physical condition and that Wendt could still work at one of the 25 welding positions at Steiger had he not been fired for cause. The personnel manager also testified that Wendt and other welders in the same classification were not required to lift more than 30 pounds, and that Wendt was able to perform his welding job in the four years following his back injury without any job modifications. Wendt admitted that small parts welders at Steiger were not required to consistently lift more than 30 pounds.

The Bureau allowed Wendt an eight percent permanent impairment award under Sec. 65-05-12, N.D.C.C., but did not award him any disability benefits. The Bureau found that, after Wendt's 1984 back injury, he "eventually returned to his former job as a welder in the small parts department, without modification of any of the duties of that job." The Bureau also found that:

"VI.

"Claimant was terminated from his position at Steiger Tractor due to excessive tardiness and absenteeism, on September 30, 1988. Claimant was not terminated as a result of the work injury.

"VII.

"Following his return to work in September of 1984, and in the years between 1984 and September of 1988, claimant was able to perform his regular duties and work a regular shift without significant symptoms. Claimant was able to work a regular shift of nine to ten hours per day, most of which time was spent standing, in 1988 in the months before he was fired, without apparent problems.

"VIII.

"The weight of the evidence indicates that claimant has certain medical restrictions resulting from the work injury, which are that he can lift no more than 40 pounds, or 30 pounds on a repetitive basis, and that he must avoid repetitive bending, twisting or stooping with the back.

"IX.

"The greater weight of the evidence indicates claimant is able to work a regular eight hour shift, including work that may require standing of up to seven to eight hours in the regular work shift....

"X.

"The greater weight of the evidence indicates that the claimant's work injury does not prevent him from returning to his former position as a welder at Steiger Tractor and performing all the duties required of that position. The sole reason the claimant is unable to return to work at Steiger Tractor is because he was fired for cause.

"XI.

"The weight of the evidence does not indicate that claimant is unable to perform his former work as a result of the work injury."

In addition to the permanent partial impairment award, the Bureau concluded that Wendt is entitled "to reasonable medical...