Henry v. Sears, Roebuck and Co.

286 N.W.2d 720, 1979 Minn. LEXIS 1749
CourtSupreme Court of Minnesota
DecidedNovember 30, 1979
Docket49422
StatusPublished
Cited by15 cases

This text of 286 N.W.2d 720 (Henry v. Sears, Roebuck and Co.) 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
Henry v. Sears, Roebuck and Co., 286 N.W.2d 720, 1979 Minn. LEXIS 1749 (Mich. 1979).

Opinion

OTIS, Justice.

Harold Henry filed a workers’ compensation claim for thirty-five percent permanent partial back disability as a result of a May 4, 1971, injury and for temporary total or permanent total disability from December 7,1976, to the present and continuing. The compensation judge awarded the requested temporary total disability and granted an award for thirty percent permanent partial back disability. Sears appealed and Henry cross-appealed to the Workers’ Compensation Court of Appeals. The court of appeals modified the thirty percent permar nent partial to thirty-five percent permanent partial and terminated the temporary total disability effective April 12, 1977. The termination of the temporary total disability was apparently based on the grounds that Henry had removed himself from the labor market on that date. Henry’s petition for certiorari was granted. Sears filed a notice of review on several issues.

We affirm in part, reverse in part, and remand for further findings and for further proceedings if deemed necessary by the court of appeals.

*722 On May 4, 1971, Harold Henry injured his back while working at Sears’ television sales department. Henry was removing a seventy-two pound portable television from a display shelf when it slipped from his grasp. He injured his lower back when he caught the television just before it hit the floor.

Following this incident, Henry’s back got progressively worse despite various measures taken to alleviate the problem including the wearing of a sacroiliac girdle or brace for support for his lower back, heat treatments, hot baths, and twelve to fourteen aspirin per day. Henry was hospitalized on December 5, 1972. On December 20, 1972, surgery was performed on his lower back by Dr. Hamel, an orthopedic specialist. The operation alleviated the pain temporarily, but within a few months the pain returned to the pre-operation level.

After his recovery from this operation Henry returned to work. Henry continued to work regular hours despite a progressively deteriorating back problem until December 6, 1976, the last day he worked. On December 7, 1976, Henry was admitted to the hospital for a full examination of his back problem under the supervision of Dr. Hamel. Dr. Hamel determined that additional surgery would not be helpful. Henry saw Dr. Hamel again in April 1977 at which time he decided to try an epidural block. The epidural block was not successful in relieving the pain.'

On September 8, 1977, Henry met with William Hunter, a clinical psychologist in private practice, to have vocational and psychological examinations done. Hunter met with Henry for three hours and had Henry take a number of tests. Based on the interview, the test results, and the facts presented at the hearing before the compensation judge, Hunter testified that in his expert opinion Henry lacked the work tolerance to do a competitive eight-hour-day/forty-hour-week job. Hunter testified that even if Henry could do some jobs part-time or for a limited time, he certainly could no longer do competitive sales as he had been doing. In addition, Hunter testified that he was not aware of any particular jobs for which Hen-ry was qualified and which would have the conditions appropriate to meet Henry’s needs to sit, stand, and lie down intermittently and which would be within Henry’s work tolerance.

Dr. Hamel, the treating orthopedic physician, described the medical and physical limitations on any employment as follows:

I would restrict his lifting totally in the sense I wouldn’t want him to do any lifting or bending down and picking anything up, even small items, any repetitious bending of any kind or stooping, and as I say, it would be more of a sedentary desk type job and I couldn’t be sure that he wouldn’t have some discomfort from sitting all day but if he could get up and move around and change positions, good possibility that he could handle something like that.

He also said that any prolonged standing, especially on a hard floor, would not be possible. Even though he was not a vocational expert, Dr. Hamel testified that Hen-ry could do some “very light sedentary type work.”

1. We affirm as being supported by the evidence the finding of the compensation judge and the court of appeals that the May 4, 1971, incident was a substantial cause of Henry’s back disability. The evidence indicates that dating from the May 4, 1971, incident Henry suffered continuous back pain that got progressively more severe. Both plaintiff’s and defendant’s medical experts testified that catching a television under the circumstances of this case could have caused Henry’s type of back injuries. Finally, Dr. Hamel, the treating orthopedic physician, specifically testified that in his expert opinion the May 4, 1971, injury was a substantial cause of the later severe problems.

2. We affirm the assessment of thirty-five percent permanent partial disability of the back. Dr. Hamel assessed Henry’s disability as thirty-five percent permanent partial disability of the back. Dr. Strand, the adverse examining physician, assessed the disability at fifteen percent. *723 The compensation judge’s award of thirty percent was modified to thirty-five percent by the court of appeals to conform to the treating physician’s estimate. The court of appeals decision is supported by the evidence.

3. We affirm as substantially supported by the evidence the finding by the court of appeals that Henry was totally disabled for a period of time beginning December 7, 1976, and continuing for at least as long as he was hospitalized for examination. However, we reverse and remand for further findings and, if necessary, further proceedings to clarify the reason or reasons for the termination of Henry’s benefits as of April 12, 1977.

The termination of temporary total disability benefits must be based either on a finding that the employee is no longer temporarily totally disabled, Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130 (1967), or on a finding that the employee intended to retire on a specific date regardless of his or her disability. Joens v. Campbell Soup Co., 281 N.W.2d 695 (Minn.1979).

Minn.Stat. § 176.101, subd. 5 (1978) defines total disability to include any “injury which totally incapacitates the employee from working at an occupation which brings him an income * * This statute has been interpreted to mean that an employee is totally disabled when the employee’s physical condition, in combination with the employee’s training and experience, and the type of work available in the employee’s community cause the employee to be unable to secure anything but sporadic employment resulting in an insubstantial income. Smith v. Civic Center Chrysler, 270 N.W.2d 276 (Minn.1978); Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130 (1967).

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Bluebook (online)
286 N.W.2d 720, 1979 Minn. LEXIS 1749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-sears-roebuck-and-co-minn-1979.