Paine v. Beek's Pizza

323 N.W.2d 812, 1982 Minn. LEXIS 1739
CourtSupreme Court of Minnesota
DecidedAugust 31, 1982
Docket82-172
StatusPublished
Cited by6 cases

This text of 323 N.W.2d 812 (Paine v. Beek's Pizza) 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
Paine v. Beek's Pizza, 323 N.W.2d 812, 1982 Minn. LEXIS 1739 (Mich. 1982).

Opinions

KELLEY, Justice.

The employer of respondent Jay C. Paine and its insurer appeal from a decision of the Workers’ Compensation Court of Appeals holding that respondent was entitled to temporary total disability payments for 350 weeks terminating on March 6, 1979 and was totally disabled after that date. In so doing, the court of appeals rejected relators’ contention that Paine had voluntarily left gainful employment and moved to an area in which, practically speaking, there were nonexistent employment opportunities for one with Paine’s disabilities. We, therefore, are confronted with the issue of whether an employee is entitled to continuing total disability compensation pursuant to Minn.Stat. § 176.101, subd. 2 (1980) when he leaves the metropolitan area of Minneapolis-St. Paul where employment within his physical restrictions is allegedly available to move to an area where there are few, if any, employment opportunities for him. We reverse the court of appeals and hold that respondent voluntarily withdrew from the labor market, thus not making a “reasonably diligent effort” to procure employment.

In 1972, Jay C. Paine was employed as a delivery man for Beek’s Pizza. On May 4 of that year, his vehicle was struck from the rear, causing him injuries to his lower back and neck. He was subsequently determined to be temporarily totally disabled as a result of injuries received in that accident combined with a prior impairment, which he had sustained as a result of a nonwork-related automobile accident in 1962. In 1976, the employer-insurer filed notice of intention to discontinue payment of compensation to employee on the grounds that he had terminated his retraining course and had moved from the Minneapolis-St. Paul metropolitan area to an area of little or no employment opportunities and, therefore, had essentially retired from the labor market.

At the age of 17, the respondent sustained head injuries and resultant brain damage in a nonwork-related automobile accident. By 1966, he had recovered sufficiently to work in a sheltered workshop operated by Good Will and thereafter had various jobs until 1972 when he became a delivery man for Beek’s Pizza.

Following the determination in 1973 that, at that time, employee was temporarily totally disabled as a combined result of both his prior impairment and the injuries he sustained in the May 1972 accident, the employee, pursuant to the compensation judge’s order, reported to the Division of Vocational Rehabilitation for retraining. There, he was certified for a course in accounting but discontinued before completing the course in 1973 because of his inability to comprehend the material. Thereafter, he worked for two weeks as a janitor for Control Data and quit because he wanted to find another job. In 1975, [814]*814Paine settled an action brought by him against the driver who had collided with his delivery truck in May of 1972. Meanwhile, sometime after 1972, Paine began receiving social security disability payments and continues to receive the same. In 1975, he married a woman with two teenage children who also receive social security benefits. The family moved to a farm near Glencoe, Minnesota and subsequently to a farm near Badger in northern Minnesota, where the employee and his family lived for several years. Generally, the family lived off produce raised in a large garden and from raising chickens. During these years the employee had a few odd jobs lasting for a day or so. In 1979, the employee and his wife bought a 40-acre farm in Roseau County on which his wife gardens and he raises chickens and a few pigs. The cropland is not suitable for farming because it is too swampy. The employee completed a locksmith course by correspondence in 1978 but has not been very successful in that business since he had only made 13 keys — for 75<t each — between the completion of the course and the hearing before the compensation judge in 1979.

After moving to the northern part of the state in 1976, the employee sought work at two stores in Grygla and at several places in Wannaska, a town of 25 some 10 miles from his farm.

The employee’s physical condition remained much the same as it had been at the time of the prior compensation hearing in 1972 and 1973. He had pain and disability in his back, shoulders and neck which was aggravated by bending, walking, prolonged sitting and also by physical activity. Physicians who testified at the hearing diagnosed “chronic brain syndrome” due to the 1962 injury and “chronic cervical and lumbar strain” due to the 1972 accident. A representative from the Division of Vocational Rehabilitation indicated that it would be extremely difficult to place the employee in gainful employment not only because of his back problem and his brain damage, but also because of the extremely limited job opportunities in the area where the employee had chosen to live. He further testified that the employee’s employment community reasonably should be at most within a 40-mile radius of his home. Roseau is 31 miles from his home and did, at the time, have a snowmobile industry which was in a slowdown. The only other city in the area with any significant industry was at Thief River Falls, some 60 miles away from the employee’s home. Moreover, generally in the area where the employee chose to live unemployment was extremely high.

In this proceeding, the employer-insurer contends that the employee should not receive total disability benefits because he had voluntarily left gainful employment and moved to an area in which there were very few employment opportunities. The Workers’ Compensation Court of Appeals rejected this contention, relying upon our case of Fredenburg v. Control Data Corp., 311 N.W.2d 860 (Minn.1981). In bringing certiorari, the employer-insurer contends that Fredenburg does not apply to the facts of this case.

This court has consistently interpreted Minn.Stat. § 176.101, subd. 5 (1980), defining total disability to include “injury which totally incapacitates the employee from working at an occupation which brings him an income,” to mean that an employee is totally disabled when his physical condition, in combination with his training and experience in the type of work available in his community cause him to be unable to secure anything but sporadic employment resulting in insubstantial income. See Henry v. Sears, Roebuck and Co., 286 N.W.2d 720, 723 (Minn.1979). From the record, it is clear that where he chose to live the employee could obtain nothing other than sporadic, short-term employment resulting in grossly insubstantial income. Moreover, his self-employment attempt at locksmithing was essentially income nonproductive.

In our view, the court of appeals did not ■ adequately meet the issue presented by the employer-insurer. That court relied upon Fredenburg for the proposition that an employee in his disabled condition was not required to seek employment in an area 60 [815]*815miles from his home. There exist considerable factual differences between Freden-burg and this case. Fredenburg was an employee who had never lived in the metropolitan area and had, over the years, commuted 60 miles to and from his home in Waterville to work in St. Paul.

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Bluebook (online)
323 N.W.2d 812, 1982 Minn. LEXIS 1739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paine-v-beeks-pizza-minn-1982.