Stevens v. Computer Metal Products, Inc.

312 N.W.2d 450, 1981 Minn. LEXIS 1504
CourtSupreme Court of Minnesota
DecidedNovember 25, 1981
Docket81-251
StatusPublished
Cited by3 cases

This text of 312 N.W.2d 450 (Stevens v. Computer Metal Products, 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
Stevens v. Computer Metal Products, Inc., 312 N.W.2d 450, 1981 Minn. LEXIS 1504 (Mich. 1981).

Opinion

*451 WAHL, Justice.

Certiorari on the relation of the employer and its compensation insurer to review a decision of the Workers’ Compensation Court of Appeals awarding employee compensation for permanent total disability. At issue is the sufficiency of the evidence to support the underlying finding that employee’s condition is one of permanent total disability and the further crucial finding that a work-related neck injury she sustained on December 11, 1969, is a substantial contributing factor in her disability. After review of the record we affirm the first finding but reverse the second and remand to afford the parties opportunity to furnish medical opinions addressed directly to it.

The background of the present proceeding is rather involved. Employee sustained an employment related injury on December 11, 1969, in the course of her work as a painter’s assistant, when she lifted an 80-pound metal frame. She was paid compensation for 22⅝ weeks of total disability. She did not return to work, and in June 1972 she filed a claim petition seeking compensation for additional temporary total disability and alleging injury to “shoulder area, neck, back, arms and hand.” Based on her own testimony that this injury caused muscle spasms in her neck, headaches and pain radiating into her ear and shoulder, and on the diagnosis of Dr. Leonard Titrud, a neurologist whom she consulted, the compensation judge determined that employee had sustained a “right side neck strain or sprain with cervical radiculitis” and had been temporarily totally disabled until May 11, 1970, the date on which the orthopedic surgeon she consulted, Dr. Bruce Sundberg, told her she could return to work. On appeal the Workmen’s Compensation Commission decided on May 7, 1973, that she had been temporarily totally disabled until September 29, 1970, the date on which Dr. Titrud had recommended that she attempt to do light work, and temporarily partially disabled thereafter. No appeal was taken from this decision.

In July 1974 employee filed a petition claiming temporary total disability from November 9, 1972. The case was stricken after the employer-insurer raised the defense that the claim was barred by the May 1973 decision. Employee did not then petition to vacate the prior decision. She commenced the present proceeding in January 1979, again claiming injury to “shoulder area, neck, back, arms and hand” and seeking compensation for permanent total disability from December 5, 1976.

At a hearing in November 1979 employee sought to establish that her disability was the consequence of the 1969 injury. She testified that she had first noticed twinges of pain in her low back a few weeks after the 1969 injury, a condition which had worsened steadily and ultimately had caused severe pain radiating into both legs. In the fall of 1975 Dr. Titrud performed a laminec-tomy and removed a herniated lumbar disc, but the procedure relieved the severity of employee’s pain only slightly. She continued to have considerable difficulty and said that her back has “locked” many times. She testified also that by June 1973 her neck pain and headaches were “minor problems,” although she still had weakness and pain in her right arm. She conceded at the 1979 hearing that her neck and arm condition generally had improved and that her pain was less frequent and less intense, although “I still have a lot of it.” She said also that she does only light housework and rests several times a day. Aside from applying for 7 or 8 light assembly jobs without success in 1978 and the winter of 1979, employee has not attempted to return to work. In September 1979 the insurer arranged for her to take work evaluation tests during which she said she experienced increasing spasms in her back and legs. In performing tests requiring use of her arms and hands, she also had difficulty with her right arm and hand and “got terrible sharp pains in all four of my fingers up to the muscles.”

Dr. Titrud testified that employee has a 40% permanent partial disability of the back attributable equally to her neck injury and her low back condition. He expressed *452 the opinion that both disabilities are causally related to the 1969 injury on the assumption that employee had complained of her low back pain as well as neck pain to her family doctor, Dr. Freeman Kovack, following the 1969 injury. The first entry in Dr. Kovack’s records concerning low back pain, however, was made in March 1972. Dr. Kovack expressed a similar opinion concerning causal relationship on the assumption— not supported by the record — that employee had complained about low back trouble to Dr. Sundberg and Dr. Titrud. The compensation judge, with whom the Court of Appeals agreed, found that employee had not sustained her burden of proving that the low back condition was caused by her 1969 injury. In spite of employee’s claim to the contrary, the record as a whole clearly supports that determination.

We have concluded also that the record supports the finding that employee is permanently totally disabled. Dr. Titrud and Dr. Kovack expressed the opinion that she is disabled from competitive employment and that her condition will not improve. Dr. Kovack also testified that she could not lift more than 5 to 10 pounds, could not bend, and could not use her arms or stand for prolonged periods. Dr. Paul Yellin, an orthopedic surgeon who examined employee for relators on October 9, 1979, imposed the same restrictions and added that employee preferably should have a desk job at which she could alternately sit and stand, but “should not * * * keep her head flexed for long periods of time due to recurrent pain in her neck.”

Two vocational counselors expressed conflicting opinions on whether employee is now employable. Phillip Haber, a vocational psychologist, expressed the opinion that employee is employable and listed several jobs he thought she could do — coupon sorter, cashier, ticket taker, cutting machine operator, hand packager, and microwave emission tester. He recommended that she participate in a pain rehabilitation program, although he admitted that the program would not insure her return to employment, and suggested also that she should be furnished job placement assistance.

Robert Flanary, an older-worker employment specialist for the Department of Employment Security, knew of no work a person with employee’s physical limitations could do. He did not know what was involved in testing microwave emissions, but thought that employee could not satisfactorily work on a sustained basis at any other positions suggested by Haber because they required prolonged sitting or standing and in some instances required her to lean forward with her head down and to use her arms.

As stated, relators challenge the sufficiency of this evidence to establish either that employee has sustained permanent total disability or that her 1969 injury is now a substantial contributing factor in her disability. We have consistently interpreted Minn.Stat. § 176.101, subd. 5 (1980), defining total disability to include any “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, and the type of work available in his community, causes him to be unable to secure anything but sporadic employment resulting in an insignificant income. Henry v. Sears, Roebuck & Co.,

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312 N.W.2d 450, 1981 Minn. LEXIS 1504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-computer-metal-products-inc-minn-1981.