Harrison v. Cleaning Concepts, Inc.

526 N.W.2d 46, 1994 Minn. LEXIS 977, 1994 WL 712915
CourtSupreme Court of Minnesota
DecidedDecember 23, 1994
DocketNo. C1-94-910
StatusPublished

This text of 526 N.W.2d 46 (Harrison v. Cleaning Concepts, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. Cleaning Concepts, Inc., 526 N.W.2d 46, 1994 Minn. LEXIS 977, 1994 WL 712915 (Mich. 1994).

Opinion

OPINION

TOMLJANOYICH, Justice.

The Workers’ Compensation Court of Appeals reversed, by panel majority, the compensation judge’s findings as to the date of permanent total disability and extent of permanency. We reverse and reinstate the findings of the compensation judge.

In June 1984, Bobby Harrison sustained a low back injury in Texas while working as a heavy equipment operator for Phillips Construction Company. As a result of the injury, on May 24, 1985, employee underwent lumbar decompression and two-level inter-transverse fusion surgery. After a period of recovery and an authorization to return to work with restrictions, employee found work in a variety of jobs. In June 1990, employee began working as a janitor for Cleaning Concepts, Inc., a job involving vacuuming floors, cleaning bathrooms, emptying garbage, and replacing jugs of bottled water in water coolers in office buildings. On August 16, 1990, he reinjured his low back when he tripped and fell at work while carrying a vacuum cleaner down a flight of stairs. Following a brief period of total disability, employee continued working until October 10, 1990, when [47]*47his right leg buckled at work, causing him to fall.

Employee was eventually referred to Dr. James W. Ogilvie who diagnosed a failed fusion and right foot drop. On May 14, 1991, employee underwent decompression and fusion surgery to alleviate the foot drop and repair the pseudoarthrosis. Although there was some improvement in the employee’s level of back pain following surgery, his foot drop did not improve. At the July 10, 1991, followup examination, Dr. Ogilvie noted, “For the past 2-3 weeks [employee] has had increasing symptoms in his L5 dermatome. There has been no change in his weakness, but he is having considerable esthesias along that distribution.” Dr. Ogilvie’s plan was to “fit [employee] with an AFO [leg brace], which he has never used in the past.”

Meanwhile, employee was assigned a qualified rehabilitation consultant (QRC) who monitored his progress following surgery for purposes of developing a rehabilitation plan that would return him to work for Cleaning Concepts or some other form of employment. In early fall 1991, although Dr. Ogilvie thought it was “too early” for a job search, employee and his QRC explored alternative forms of employment such as musical instrument repair or light woodworking.

On November 6, 1991, employee, accompanied by his QRC, returned to Dr. Ogilvie for his 6-month post-operative examination. Dr. Ogilvie noted that employee’s fusion appeared to be healing well, that his foot drop was unchanged, and that he had developed a tremor in his hands. Apparently at that point the doctor and QRC felt it unlikely employee would be able to return to the competitive job market and discussed the possibility of social security disability benefits. Dr. Ogilvie also referred employee to Dr. Steven Noran for evaluation of the hand tremors. Dr. Noran felt employee had an “intention tremor” which improved with medication. Dr. Noran’s records reflect that in March 1992, although reemployment was still under discussion, he did not think it likely employee would be able to “get back into the competitive job market.” In April 1992, employee applied for social security disability benefits.1

Employee sought permanent total and permanent partial disability benefits. The dispute in this case was not whether employee was entitled to the benefits, but rather, the date on which employee would be declared permanently totally disabled and the method of rating the disability attributable to the August 1990 injury. Relevant evidence pertaining to permanent total disability included the deposition testimony of Dr. Ogilvie and Dr. Noran who believed it appropriate in this case to place the time of permanent total disability status at 6 months after surgery, when no further improvement was anticipated. On cross-examination, Dr. Ogilvie agreed that “using 20/20 hindsight” it was “probably true” that employee was permanently totally disabled from the time of his injury; and Dr. Noran agreed that employee had not been capable of gainful employment since then. Employee’s QRC said she did not consider employee disabled, on a permanent basis, until March 1992.

With respect to the impairment rating, Dr. Ogilvie assigned a 22.5% rating for the two-level fusion surgery caused by the 1984 injury. Minn.Rule 5223.0070, subp. l.D. Dr. Ogilvie said the disability schedules did not provide ratings for surgical repair of a failed fusion. The doctor also assigned a 13% rating relating to the foot drop that resulted from the L-5 nerve root dysfunction resulting from the 1990 injury. Minn.R. 5223.0160, subp. l.P.

The compensation judge found employee permanently totally disabled as of November 6, 1991, and rated the impairment resulting from the 1990 injury at 13%. On appeal, the WCCA reversed by panel majority, concluding employee was permanently totally dis[48]*48abled as of October 10, 1990. The WCCA also reduced the permanent partial disability rating from 13% to 10.075% by use of the multiple injury formula.

Employee argues the compensation judge’s finding as to permanent total disability had substantial evidentiary support.. A “person is totally disabled if his physical condition, in combination with his age, training, and experience and the type of work available in his community, causes him to secure anything more than sporadic employment resulting in an insubstantial income.” Cavanaugh v. Frederick Willys, Inc., 361 N.W.2d 49, 50 (Minn.1985) (quoting Schulte v. C.H. Peterson Const. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34 (1967)). Such disability is permanent if it is likely to exist for an indefinite period of time. Id. In this case, as the WCCA dissenting panel member concluded, where evidence that continued medical and rehabilitation efforts throughout most of 1991 were directed at returning employee to work, the compensation judge’s determination that employee was not permanently totally disabled before November 6, 1991 is not unreasonable. See, e.g., Brandl v. Smith Transfer Corp., 42 Workers’ Comp. Dec. 193 (WCCA 1989), aff'd without opinion, 445 N.W.2d 562 (Minn.1989); Thomas v. Oscar J. Boldt Constr., 41 Workers’ Comp. Dec. 441 (WCCA 1988), aff'd without opinion, 430 N.W.2d 840 (Minn.1988).

The employee also challenges the use of the multiple injury formula to reduce his award of permanent partial disability compensation. Minn.Stat. § 176.105, subd. 4(c) (1990) provides, in part:

If an employee suffers a permanent functional disability of more than one body part due to a personal injury incurred in a single occurrence, the percent of the whole body which is permanently partially disabled shall be determined by the following formula so as to ensure that the percentage for all functional disability combined does not exceed the total for the whole body:
A + B (1-A)
where: A is the greater percentage whole body loss of the first body part; and B is the lesser percentage whole body loss otherwise payable for the second body part. A + B (1-A) is equivalent to A + B - AB.

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Related

Schulte v. CH PETERSON CONSTRUCTION COMPANY
153 N.W.2d 130 (Supreme Court of Minnesota, 1967)
Cavanaugh v. Frederick Willys, Inc.
361 N.W.2d 49 (Supreme Court of Minnesota, 1985)
Deschampe v. Arrowhead Tree Service
428 N.W.2d 795 (Supreme Court of Minnesota, 1988)

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Bluebook (online)
526 N.W.2d 46, 1994 Minn. LEXIS 977, 1994 WL 712915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-cleaning-concepts-inc-minn-1994.