DAVID A. HANEGMON, Employee, v. U.S. STEEL CORP., SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 10, 2006
PERMANENT TOTAL DISABILITY; WITHDRAWAL FROM LABOR MARKET - RETIREMENT. While differing inferences could be drawn, substantial evidence supports the compensation judge's finding that the employee's retirement and withdrawal from the labor market was involuntary. The critical factor in determining entitlement to permanent total disability benefits is not the employee's disability status at retirement, but whether the retirement or withdrawal from the labor market was voluntary or involuntary, and the compensation judge properly awarded permanent total benefits on these facts.
Determined by: Johnson, C.J., Stofferahn, J., and Pederson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent. James P. Paciotti, Law Offices of James P. Paciotti, Duluth, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s finding that the employee did not retire or voluntarily withdraw from the labor market and from the judge=s award of permanent total disability benefits. We affirm.
David A. Hanegmon, the employee, began working for U.S. Steel Corporation, the employer, on August 21, 1972, and remained employed as a heavy equipment operator until his retirement on January 31, 2003. During the course of his employment, the employee sustained a number of personal injuries: an injury to the left shin in February 1988, a temporary injury to both knees in May 1991, a temporary injury to the ribs, mid and low back in September 1998, and a Gillette-type injury on December 28, 2002, to the lumbar spine and thoracic spine.
Under the terms of his employment contract with the employer, the employee qualified for a retirement pension upon reaching 30 years of service. On August 20, 2002, the employee met with Rhonda Plotnik, the employer=s retirement benefit administrator, and requested an estimate for a 30-year retirement pension effective January 31, 2003. Ms. Plotnik stated the employer also provided a disability retirement pension, but this option was not discussed during her meeting with the employee. She testified that had the employee stated he had a medical reason for his retirement, she would have obtained estimates for both a retirement and a disability pension. The employee testified that "at that time I didn't know U.S. Steel even gave a disability pension. I never heard of anybody getting one." (T. at 65.) In September, Ms. Plotnik sent the employee a written estimate stating his pension payout would be $2,119.00 per month. The employee continued to work through December 27, 2002, then took accumulated vacation leave up to his retirement date of January 31, 2003.
On December 27, 2002, the employee saw Dr. Jeffrey A. Copeman complaining of neck pain, right hip pain, back pain radiating down both legs and intermittent left knee pain. The doctor diagnosed a cervical strain and lumbosacral strain with right radiculopathy, and prescribed Bextra and stretching exercises. The employee returned on January 10, 2003, with continued complaints of back, neck and left knee pain with numbness in both feet. A January 14, 2003, MRI scan of the spine showed degeneration and dehydration of the L1-2, L2-3, L4-5 and L5-S1 discs with ventral effacement of the dural sac at those levels. An MRI scan of the left knee showed a complex tear through the posterior horn and body of the medial meniscus. Dr. Copeman reexamined the employee in February 2003, prior to arthroscopic surgery to repair the meniscal tear. Dr. Copeman diagnosed a left knee meniscal tear, controlled hypertension, obesity, gout, osteoarthritis, right lateral epicondylitis, neck and back pain and bilateral foot numbness. In May 2003, Dr. Copeman diagnosed Type II diabetes. A cervical MRI scan showed mild annular bulging of C3-4, C4-5 and C5-6 with slight ventral effacement of the dural sac at all three levels. The conclusion was degenerative disc disease.
Dr. Richard Strand examined the employee on January 5, 2004, at the request of the employer. The doctor diagnosed a cervical strain, degenerative disc disease of the thoracolumbar spine, degenerative arthrosis of the left knee, degenerative arthrosis of both hips and mild epicondylitis of the left elbow. Dr. Strand opined none of the employee=s injuries at work were the cause of the present diagnosis and opined the employee did not sustain a Gillette-type injury to his spine due to his work activities. Dr. Strand opined the employee was currently able to drive heavy equipment and was not permanently and totally disabled.
Dr. Duane Person examined the employee in March 2004, on referral from his attorney. The doctor made multiple diagnoses including chronic musculoligamentous strain with multilevel degenerative disc disease of the cervical, thoracic and lumbar spine, bilateral epicondylitis of the elbows, degenerative arthritis of both hips, internal derangement of the left and right knees, repaired inguinal hernia, diabetes, obesity, gout and hypertension. Dr. Person opined the employee sustained permanent disability of the cervical spine, thoracic spine, lumbar spine, left knee and both hips. Dr. Person concluded the employee was permanently and totally disabled and opined the employee=s work injuries were substantial contributing causes of that disability.
Dr. Strand reexamined the employee in June 2004, and reviewed the medical report of Dr. Person. The doctor again concluded the employee demonstrated no evidence of any permanent disability of the cervical, thoracic or lumbar spine, hips, elbow or left knee due to the employee=s injuries or work activities at the employer.
In August 2004, the employee=s claim for permanent partial disability benefits was heard before a compensation judge. In a Findings and Order served and filed August 10, 2004, the compensation judge found the employee sustained a temporary injury to both knees in May 1991, and a temporary injury to his ribs in September 1998. The compensation judge also found the employee sustained a Gillette-type personal injury on December 28, 2002, to the lumbar and thoracic spine resulting in a 10 percent and 2.5 percent whole body disability, respectively. No appeal was taken from this decision.
In September 2004, the employee filed a claim for permanent total disability benefits which was heard before a compensation judge in October 2005. In the Findings and Order, the compensation judge found the employee=s acceptance of a pension effective January 31, 2003, was not a voluntary withdrawal from the labor market. The compensation judge apparently concluded, however, the employee was capable of working from the date of his retirement through February 13, 2004, and denied total disability benefits because the employee failed to perform a job search. Effective February 14, 2004, the compensation judge determined a job search would have been futile and awarded permanent total disability benefits. The employer appeals.
The self-insured employer contends the judge=s award of permanent total disability benefits is legally erroneous. Although the compensation judge found the employee=s withdrawal from the labor market was involuntary, the judge denied the employee=s claim for permanent total disability benefits until February 14, 2004. Thus, the appellant asserts, the judge had to have determined that whatever the employee=s intention by retiring, the employee withdrew from the labor market while still employable. Such a withdrawal from the labor market, the appellant argues, severs the causal connection between the employee=s injury and his wage loss. The employee did not attempt to reenter the labor market before becoming permanently and totally disabled. Accordingly, the appellant contends the employee=s claim for permanent total disability benefits is legally barred.
In support of its argument, the employer relies on Saenger v. Liberty Carton Co., 281 N.W.2d 693, 31 W.C.D. 667 (Minn. 1979), (Saenger I), Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982), (Saenger II) and Asperheim v. Glendenning Motorways, slip op. (W.C.C.A. 1989). In Saenger I, the Workers= Compensation Court of Appeals found the employee had voluntarily retired and withdrawn from the labor market on August 16, 1977, and denied his claim for temporary total disability benefits. On appeal, the Supreme Court affirmed the decision, "on the ground that this critical finding had substantial support in the evidence." Saenger II at 738, 34 W.C.D. 500. The employee later petitioned to vacate this decision contending a substantial worsening of his condition had rendered him permanently and totally disabled. The Workers= Compensation Court of Appeals granted the petition concluding the issue of permanent total disability had never been litigated. On appeal, the employer argued the petition to vacate should not have been granted absent evidence that the employee terminated his retirement or attempted to return to gainful employment before becoming totally disabled. The supreme court agreed holding,
If his retirement status did not change after August 16, 1977, however, employee has sustained no reduction in earning capacity even if his physical disability has increased. Thus, he would not be entitled to compensation for total disability, whether temporary or permanent in character.
Saenger II at 739, 34 W.C.D. at 503. Noting the record contained no evidence as to the employee=s retirement status after August 16, 1977, the court remanded the case to this court stating,
However, we remand with directions that employee be permitted to furnish information concerning whether he obtained or attempted to obtain employment after August 16, 1977, and also information concerning the time at which he claims to have become permanently totally disabled. The Court of Appeals may then reconsider the petition in light of that additional information. Id.
The appellant=s argument, based on the Saenger decisions, is essentially this: If, on the day after his retirement, the employee was capable of working, there is no causal connection between the personal injury and any subsequent wage loss. If an employee, after retirement, does not return or attempt to return to the labor market, the causal connection between the injury and the wage loss remains severed and the employee=s claim for permanent total disability benefits is barred. The critical factor, in the appellant=s analysis, is the employee=s disability status at the time of his retirement. If the employee was then able to work, the employee cannot thereafter assert a claim for permanent total disability benefits without attempting to re-enter the labor market. While in certain circumstances this may be a plausible argument, we are not persuaded it is applicable in this case.
Retirement is Aa voluntary withdrawal from the labor market which the employee intends to be permanent.@ Pfeifle v. Peterson-Biddick, 56 W.C.D. 459 (W.C.C.A. 1977); see also Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991). The basis for the Supreme Court=s decisions in Saenger I and Saenger II was that the employee had voluntarily retired and withdrawn from the labor market. See also, Findorff v. Pinkerton=s, Inc., 295 N.W.2d 373, 33 W.C.D. 48 (1980). A voluntary withdrawal or retirement from the labor market which is not the involuntary result of a compensable disability may preclude a finding of permanent total disability. Behrens v. City of Fairmont, 533 N.W.2d 854, 53 W.C.D. 41 (Minn. 1995). In analyzing retirement/withdrawal cases, this court has similarly focused on the intent of the employee in retiring or withdrawing from the labor market. See, e.g., Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004). We conclude the critical factor is not the employee=s disability status at retirement, but the employee=s intent in withdrawing from the labor market, that is, whether the retirement or withdrawal was voluntary or involuntary. See, e.g., Miller v. Northwest Airlines Corp., slip op. (W.C.C.A. August 19, 2005).
The fact that an employee retired from employment with his date-of-injury employer is not dispositive of the question of whether the employee voluntarily withdrew from the labor market. Dillemuth v. The Owatonna Tool Co., 59 W.C.D. 349 (W.C.C.A. 1999). A determination of whether the employee voluntarily or involuntarily withdrew from the labor market is dependent upon the facts peculiar to each case. In resolving the issue, various factors may be considered including: the employee=s expressed intent to retire or continue working (see Minn. Stat. ' 176.101, subds. 4, 8; Grunst v. Immanuel-St. Joseph Hospital, 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1998); Nibbe v. City of St. Paul, 320 N.W.2d 92, 34 W.C.D. 690 (Minn. 1992)); an application for social security retirement or disability benefits (see Minn. Stat. ' 176.101, subd. 8; Grunst, id; Nibbe, id; Pfeifle, id,); evidence of a financial need for employment income, including the adequacy of a pension or other retirement income (see Grunst, id); whether the employee or the employer initiated the discussion of retirement (see Bright v. Duininck Bros., 51 W.C.D. 227 (W.C.C.A. 1994)); whether the employee sought rehabilitation assistance (see Eisenzimmer v. Knutson Cos., slip op. (W.C.C.A. Aug. 25, 1986)); and whether the employee actively sought alternative employment or was in fact, working (see Hansford, id., Woelfle, id.).
The employer asserts the compensation judge=s finding that the employee=s retirement from the employer and receipt of a pension was not a voluntary withdrawal from the labor market is clearly erroneous and unsupported by substantial evidence. The following facts, the appellant contends, support its position and are undisputed: The employee voluntarily met with the employer=s pension administrator in August 2002 to discuss retirement. At that time, the employee was performing his regular job without restrictions and was not receiving any medical treatment. The employee worked until December 27, 2002, and then took planned vacation time. Prior to retiring, the employee did not ask for any job accommodation or seek alternative work. He did not tell his supervisors he was physically unable to work or that he was going to retire because of physical problems. No doctor advised the employee to quit working. The employee formally retired from his job with the employer effective January 31, 2003, and did not thereafter return to or search for work.
Certainly, as the appellant argues, there is evidence which would support a conclusion that the employee voluntarily withdrew from the labor market. The issue before this court, however, is not whether the evidence would support a different result but whether the factual findings are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subp. 1. "The point is not whether we . . . might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate." Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
In this case, the employee testified his job operating heavy equipment aggravated his physical condition, A[e]verything was bothering me. That=s why I retired. I couldn=t do it on heavy equipment anymore.@ (Pet. Ex. A, 12/3/03 at 15.) The employee stated he had not intended to retire after 30 years,"[b]ecause I like[d] my job and everything and I wanted to go quite a bit longer if I could. But I didn't - like I say, I just - running heavy equipment and that, it pretty much did me in. I was pretty battered up, so I couldn't really go any longer." (Pet. Ex. A, 12/3/03 at 6.) AI would like to have went actually another ten years if I could of made it even.@ (Pet. Ex. A, 12/3/03 at 8). On cross-examination, the employee was asked whether it was true that he decided on his own to retire. The employee responded, AI decided to retire with all the problems, the back and everything. At the end of the day, like I say, I had a hard time. I had to stand on and grab the railing of the rubber bull after being on that all day and just get down off the ladders, so it was - I knew I couldn=t take it any longer. I didn=t tell many people what I felt like. My doctor, that=s about it.@ (T. 49). When asked whether he felt he was able to work after his retirement, the employee testified, AI=m sure my body ain=t going to take any kind of work. Pretty worn out.@ (T. 52). The compensation judge accepted the employee's testimony finding him a "most credible witness." (Finding 8.)
In December 2002 and January 2003, the employee complained to Dr. Copeman of constant neck and low back pain radiating down both legs with numbness in both feet. The employee rated his back pain at eight out of ten and his neck pain at three out of ten. When seen for physical therapy on January 14, 2003, on referral from Dr. Copeman, the employee reported he had not worked since December 27, 2002, secondary to pain, and that he was going to officially retire on January 31, 2003, due to his back pain. The employee applied for Social Security Disability benefits on December 31, 2002, three days after his last day of work and prior to his formal retirement on January 31, 2003. Disability benefits were awarded effective February 14, 2004. These facts are minimally adequate to support the compensation judge=s finding that the employee=s retirement and withdrawal from the labor market was involuntary. The compensation judge=s finding must, therefore, be affirmed.
The compensation judge found the employee=s withdrawal from the labor market was involuntary and we have affirmed this finding. The compensation judge further concluded that by February 14, 2004, the employee was permanently and totally disabled. Based upon these findings, the compensation judge properly awarded permanent total disability benefits. The judge=s award of benefits is, therefore, affirmed.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).