Rogde v. United Van Bus Delivery

330 N.W.2d 715, 1983 Minn. LEXIS 1070

• Court: Supreme Court of Minnesota
• Decided: March 11, 1983
• Docket: C7-82-730
• Status: Published

Opinions

OTIS, Justice.

*

This appeal raises only the issue of an employee’s right to temporary total disability compensation for a period of approximately 50 weeks. The facts, which are not in dispute, were found by the Workers’ Compensation Court of Appeals to support the employee’s claim. We reverse.

On August 21, 1979, respondent George Rogde was employed as a truck driver by relator United Van Bus Delivery. He suffered a work related injury to his back, leaving him with what is conceded to be a 10% permanent partial disability.

The relator’s insurer discontinued payments for temporary total disability on November 26,1979, on the grounds that thereafter Rogde was capable of, and did in fact, perform limited services for a period of time as a truck driver, but refused rehabilitation, and declined to diligently seek gainful employment.

In granting benefits up to October 1, 1980, the compensation judge noted that the record shows a clear and long pattern of alcoholism. Rogde declines to recognize the need for treatment. The judge also stated that respondent made no effort to find work other than perfunctory attempts required by a form provided for welfare benefit applicants. He did not seek re-employment from his employer after being terminated for failing to report the revocation of his driver’s license resulting from a drunken driving conviction in December 1978.

In August 1980, respondent was sentenced to .60 days in the workhouse for alcohol related problems. The compensation judge found that respondent was able to work and did work eight hours a day at various times between February and May 1980. Benefits for these periods were deducted.

Although respondent was 60 years old and had only a limited education, the judge found he was “not helpless. He has really sought no work. His drinking is a cloud over his ability to return to the employment of the employer.”

Nevertheless, because the injury was found to significantly contribute to respondent’s disability, and his employer terminated him, temporary total benefits were granted, notwithstanding medical testimony that he was capable of doing lifting up to 25 pounds.

With one judge dissenting, the court of appeals affirmed as to the relevant issues. In so doing, the majority opinion stated that respondent’s drinking was a problem but did not interfere with his work performance. In view of the fact that his license had been revoked in December 1978 for driving under the influence, and that in August 1980 he was incarcerated for the same offense, this finding is clearly erroneous.

The appeals court majority held that respondent made no attempt to regain his driver’s license, nor any diligent effort to find employment. The granting of benefits from November 26, 1979 to February 15, 1981, however, was sustained.

The dissenting judge was of the view that respondent’s failure to diligently seek employment, although he had demonstrated an ability to do light work, together with his failure to secure the reinstatement of his driver’s license disqualified him from benefits under Minn.Stat. § 176.101, subd. 2 (1982). That statute confers benefits only if an injury “totally incapacitates the employee from working at an occupation which brings him an income.” Minn.Stat. § 176.101, subd. 5 (1982).

We hold that respondent has not sustained his burden of proving he was totally incapacitated from gainful employment from and after November 26, 1979. The undisputed evidence discloses that he was an alcoholic who has refused to undergo treatment; that his chemical dependency has resulted in his losing his license as a truck driver; that he concealed that fact from his employer; that he has neither sought reinstatement of his license nor has he sought any employment he is capable of performing; and that he has been fully compensated for the 10% permanent partial work related injury to his back.

Accordingly, we hold that the record does not support a continuance of benefits after November 26, 1979, and we reverse.

Reversed.

YETKA, J., took no part in the consideration or decision of this case.

Retired Justice acting pursuant to Minn.Stat. § 2.724, subd. 2 (1982).