RONALD MOE, Employee, v. DIDD, INC., and WESTERN NAT=L MUTUAL INS. CO., Employer-Insurer/Petitioners.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 10, 2000
PERMANENT TOTAL DISABILITY - DISCONTINUANCE. The employer and insurer failed to produce evidence sufficient to establish the employee was no longer permanently and totally disabled, and the petition to discontinue benefits paid pursuant to the Award on Stipulation of August 26, 1994, is denied.
Petition to discontinue benefits denied.
Determined by: Johnson, J., Wilson, J., and Rykken, J.
THOMAS L. JOHNSON, Judge
The employer and insurer petition to discontinue payment of permanent total disability benefits to the employee pursuant to an Award on Stipulation, served and filed August 26, 1994. Concluding the employer and insurer have failed to establish a sufficient basis for discontinuance of permanent total disability benefits, we deny the petition.
Ronald Moe, the employee, sustained a personal injury on May 1, 1991, while employed as a truck mechanic by DIDD, Inc., then insured by Western National Mutual Insurance Company. The employee suffered admitted injuries to his right hip and left knee. The employee also experienced low back problems for which the employer and insurer denied primary liability. Following the injury, the employee underwent a total right hip replacement (arthroplasty) on June 26, 1991, and a revision of the arthroplasty on November 18, 1991, as well as extended medical treatment for the knee and low back. In December 1992, the employee was determined eligible for Social Security disability benefits effective November 1991.
On January 11, 1994, the employee filed a claim petition seeking workers= compensation benefits. The parties resolved their differences, entering into a Stipulation for Settlement in August 1994. The employee claimed he had been permanently and totally disabled since May 1, 1991, and sought a 49.48 percent permanent partial disability as a result of the personal injury. The employer and insurer contended the employee was not permanently totally disabled and had sustained no more than an 18.37 percent permanent partial disability as a result of the work injury. The employer and insurer further alleged that if permanent total disability benefits were payable, they had overpaid benefits to the employee as a result of the Social Security offset. As part of the settlement, the parties agreed the employee had been permanently and totally disabled since May 1, 1991. The employer and insurer agreed to make a lump sum payment of $7,500.00 to the employee in full, final and complete settlement of all claims for permanent partial disability to the extent of the dispute, and all claims for under or overpayment of benefits to date. The parties further stated it was their intent to provide for payment of continuing permanent total disability benefits, Afor as long as the employee is entitled thereto under the Workers= Compensation Act.@ (Stip.VIII, IX.) An Award on Stipulation was served and filed on August 26, 1994.
In February 1998, the employer and insurer, through Don Halford, a private investigator, conducted an Aactivity check@ on the employee in Weslaco, Texas, where the employee was residing during the winter months. As part of the surveillance, the employee=s daily activities were observed and certain activities recorded on videotape over a period of ten days. On January 12, 1999, the employee was seen by Dr. Raul Marquez, an orthopedist, at the request of the employer and insurer. Based on his review of the employee=s medical records, and his examination of the employee, Dr. Marquez concluded the employee could perform sedentary work on a full-time basis, with restrictions of no lifting over 20 pounds, and no squatting, kneeling, crawling or climbing,
On May 12, 2000, the employer and insurer filed a petition with this court seeking to discontinue permanent total disability benefits to the employee. The employer and insurer allege the employee is no longer totally disabled and is not entitled to continuing permanent total disability benefits, relying on the investigation report of Don Halford, the independent medical examination (IME report) of Dr. Marquez, and two pre-stipulation IME reports of Dr. Ken Covey dated October 19, 1992 and May 17, 1993. The petitioners seek a referral to the Office of Administrative Hearings for a hearing on the issue of whether the employee is totally disabled, or for an order allowing discontinuance of permanent total disability benefits. The employee opposes the petition.
In accordance with Haberle v. Erickson Mills, Inc, 58 W.C.D. 478 (W.C.C.A. 1998) and Ramsey v. Frigidaire Co. Freezer Prods., slip op. (W.C.C.A. Apr. 20, 1998), this court may consider petitions to discontinue permanent total disability benefits if the stipulation for settlement contains language demonstrating the parties intended that benefits would continue only so long as the employee remained permanently and totally disabled. In such cases, this court may grant or deny the petition, or may refer the petition to the Office of Administrative Hearings for a factual hearing, if sufficient evidence of the employee=s ability to work is presented by the employer and insurer, and not rebutted by the employee, raising substantial questions about the employee=s ability or inability to work at the present time. Haberle, id.
In asserting the employee is no longer permanently and totally disabled, the employer and insurer rely on the February 23, 1998 investigation report of Don Halford. Mr. Halford conducted a surveillance of the employee over a period of ten days in Weslaco, Texas, where the employee and his wife resided in their recreational vehicle (RV) at a trailer park. The employee played golf on three of the ten days. There is nothing in the report describing, in any way, the employee=s physical activities or abilities while playing golf. The employee submitted an affidavit stating he uses a motorized cart with a handicapped sticker when he plays golf.
Mr. Halford also observed the employee riding a bicycle on two occasions. One of them involved riding the bicycle to the recreation center which, according to Mr. Halford, was located directly across from the lot rented by the Moes at the trailer park. The rest of the activities noted in the report involved time spent at the Weslaco public library, sitting in the kitchen area or at the kitchen table in the RV, or other comments indicating relative inactivity. On one occasion, Mr. Halford observed the employee working at a computer station in the library. He speculated the employee was Adoing research@ and Aappears to be very computer literate.@
The employee is currently 61 years old. He stated, in his affidavit, that he has not worked since the Award on Stipulation was issued on August 26, 1994, and continues to receive Social Security disability benefits. At the time the stipulation was entered into, the employee suffered from right hip weakness and pain as a result of an injury to the superior gluteal nerve, resulting in a limp and use of a cane. He had continuing left knee pain, and although his low back pain had decreased with reduced activities, he continued to have occasional activity-related flareups. The employee was limited to sedentary work, with restrictions of no walking or standing over one hour in an eight hour day, alternating positions over the course of the day, occasional bending, stooping, crawling, kneeling and balancing, no squatting, climbing a ladder or crouching, no lifting or carrying over 50 pounds, and no frequent lifting over 10-12 pounds.
The employer and insurer relied upon the IME reports of Dr. Covey, dated October 19, 1992 and May 17, 1993, at the time of the stipulation for settlement, and specifically rely upon them again in their petition to discontinue permanent total benefits. In 1992 and 1993, Dr. Covey reported similar findings on examination, with restricted low back range of motion, weakness in the right hip and left knee pain. He agreed that the employee was limited to sedentary work, and suggested restrictions of no walking more than a block or two at a time, no lifting over 30 to 40 pounds, and to avoid activities that would jar the right hip. The January 12, 1999 report of Dr. Raul Marquez is not significantly different, noting a limp, decreased lumbar lordosis and loss of range of motion, continuing left knee pain, and weakness in the right hip (a positive Trendelenburg gait). His restrictions are, in fact, more restrictive than the limitations imposed by the employee=s physicians or suggested by Dr. Covey at the time of the stipulation, including sedentary work, with no lifting over 20 pounds, and no squatting, kneeling, crawling or climbing.
In response, the employee submitted a vocational evaluation report dated June 1, 2000. Jack Casper, the employee=s vocational expert, reviewed the surveillance video and the report of Dr. Marquez, as well as the employee=s previous medical and vocational records. He did not believe the employee=s residual functional capacity had changed since the stipulation, and, in his opinion, the employee remained totally disabled from a vocational standpoint.
A[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 be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). In evaluating permanent total disability, the primary consideration is the employee=s vocational potential, rather than his physical condition. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983); Boileau v. A-Plus Indus., 58 W.C.D. 549, 558-59 (W.C.C.A.1998). The employee is currently 61 years old, with a GED, a 22-year work history with a single employer, and has not been competitively employed for over nine years. Prior to the stipulation, the employee had been unable to obtain employment, despite an extended job search with the assistance of a qualified rehabilitation consultant (QRC) and a placement vendor. The evidence submitted by the employer and insurer falls far short of establishing that the employee is currently any more capable of obtaining sustained, gainful employment than he was at the time of the stipulation for settlement. We, accordingly, deny the petition to discontinue permanent total disability benefits.