HENRY BOONE, Employee/Appellant, v. HAUENSTEIN & BURMEISTER, INC., and CNA/ TRANSPORTATION INS. CO., Employer-Insurer/Cross-Appellants, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 3, 2002

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - 225 WEEK LIMIT.  The compensation judge properly concluded the employee, who sustained admitted work injuries on May 17, 1990 and September 21, 1994, was not entitled to ongoing temporary partial disability benefits after 225 weeks of benefits had been paid  following the second injury under Minn. Stat. ' 176.101, subd. 2(b) (1992), and Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987).

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the employee=s significant work restrictions, multiple job searches and his voca­tional history and earnings following the second work injury, supports the compensation judge=s determination that the employee has been permanently and totally disabled since September 21, 1994.

 

PERMANENT TOTAL DISABILITY.  The fact that the employee received temporary  partial disability benefits during part of the time during which the compensation judge found he had been permanently and totally disabled is not a relevant or determining factor in assessing whether the employee has been able to obtain something more than sporadic employment resulting in insubstantial earnings.

 

Affirmed.

 

Determined by Johnson, C.J., Rykken, J. and Pederson, J.

Compensation Judge: James R. Otto.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s denial of ongoing temporary partial disability benefits.  The employer and insurer cross-appeal the judge=s finding of permanent and total disability, and the employee appeals the determination that permanent and total disability commenced effective September 21, 1994.  We affirm the com­pensation judge=s Findings and Order in all respects. 

 

BACKGROUND

 

Henry Boone, the employee, began working for Hauenstein & Burmeister, Inc., the employer, in 1966.  For twenty years, the employee worked as a finisher in the painting department.  On May 17, 1990, the employee sustained a personal injury in the nature of occupationally-induced asthma.  The employer and its insurer admitted liability for the employee=s injury.  The employee=s weekly wage on that date was $608.00.

 

The employee returned to work for the employer in a different department.  On September 21, 1994, the employee sustained a personal injury to his low back.  The employer and insurer also admitted liability for this injury.  The employee=s weekly wage on that date was $722.59. 

 

Following the 1994 low back injury, the employee was provided with the services of a disability case manager, Gerry Dielantheis.  Initially, the employee was off work following his injury but returned to a modified position with the employer on March 7, 1995, working three hours per day.  On April 20, 1995, the employee fell at work and did not, thereafter, return to work for the employer. 

 

A rehabilitation plan was prepared in July 1995, with the goal of returning the employee to work with a different employer.  In September 1995, Mr. Dielantheis administered the General Aptitude Test Battery from which he concluded the employee was not a retraining candidate be­cause his general learning ability was low.  In October 1995, Mr. Dielantheis instituted statutory vocational rehabilitation services and job placement activity for the employee.  On March 26, 1996, the employee obtained a job at Senior Services as a medical products assembler.  The employee worked four hours a day, five days a week and was paid $4.45 an hour.  Shortly thereafter, the employee=s symptoms flared up.  He did not return to this job.  The employee and Mr. Dielantheis re-instituted a job search.  In November 1996, the employee obtained a job at Goodwill Industries working three to four hours a day, five days a week at $4.75 per hour.

 

In January 1997, Steven Hollander became the employee=s qualified rehabilitation consultant and a new job search was commenced.    In March 1997, the employee obtained a job at the Cinema Draft House working seven to eight hours a week at $5.45 an hour as a ticket taker.  The employee quit this job because he was not getting enough hours.  He then obtained a job at Bally=s Health Club working sixteen to twenty hours a week at $6.00 an hour.  Mr. Hollander opined this job was appropriate for the employee given his restrictions.  On September 10, 1997, Mr. Hollander closed the rehabilitation file and stated the employee was working in the best job possible.  In 1998, the employee became eligible for Social Security Disability benefits.  In 2000, the employee transferred to a Bally=s in St. Paul and his hours were reduced to approximately eight per week.  The employee continued to work at Bally=s through the date of the hearing.

 

In March 2001, the employer and insurer filed a Notice of Intention to Discontinue Workers= Compensation Benefits (N.O.I.D.) contending the employee=s eligibility for temporary partial dis­ability benefits would end, by operation of law, on April 24, 2001.^[1]  The employee objected to the proposed discontinuance and filed a claim petition seeking permanent total disability benefits from and after April 24, 2001.  The two cases were consolidated for hearing.

 

The employee began treating with Dr. Ralph E. Steele, an internal and pulmonary medicine specialist, in August 1990.  His diagnoses were occupational asthma and a fixed,  non-reversible obstructive deficit lung disorder.  At some point, Dr. Steele recommended the employee stop working as a finisher to avoid exposure to chemicals.  The doctor reexamined the employee in January 1992, and his diagnosis was unchanged.  Dr. Steele recommended the employee avoid exposure to paint, fumes, dust, smoke and combustion products and rated a 25 percent permanent disability.^[2]  By report dated October 10, 2001, Dr. Steele stated the employee had chronic asthma maintained by medication and a chronic air flow obstruction.  The doctor stated the employee should avoid exertion, environmental triggers such as dust, fumes, odors, chemicals, exhaust fumes, changes in environmental conditions, heat, humidity, and dry and cold air.  Dr. Steele observed the employee=s condition might vary day to day without any apparent clear cause.

 

On August 3, 1995, the employee was examined by Dr. Steven Lebow, a neurologist.  The doctor reviewed an MRI scan of May 23, 1995, which showed a herniated L5-S1 disc mildly displacing the right S1 nerve root.  A second MRI scan in May 1996 showed a disc herniation at L4-5 with L5 nerve root impingement.  An EMG on the same date showed evidence of irritation and damage to the right S1 nerve root.  The doctor diagnosed disc injuries at L4-5 and L5-S1 with irritation of the right S1 nerve root.  By report dated March 6, 1997, Dr. Lebow restricted the employee to working four hours a day with no repeti­tive bending, no lifting over 30 pounds, and the ability to change positions at least once an hour.  Dr. Lebow reexamined the employee in October 2001, and testified his diagnosis and restrictions were unchanged. 

 

On July 17, 2001, the employee was examined by Dr. Joseph Tambornino, an ortho­pedic surgeon, at the request of the employer and insurer.  Following his review of the employee=s medical records and a physical examination, he diagnosed a lumbar strain.  The doctor opined the employee was capable of working on a full-time basis , subject to restrictions, and concluded the employee was not permanently and totally disabled. 

 

In November 2001, Dr. Paul Johnson, a pulmonary disease specialist, examined the employee also at the request of the employer and insurer.  The doctor diagnosed occu­pational asthma with an obstructive ventilatory defect.  Dr. Johnson concluded the employee was capable of working in a clean air environment without extremes of temperature or humidity. 

 

In September 2001, L. David Russell performed a vocational evaluation of the employee at the request of the employer and insurer.  Mr. Russell interviewed the employee, obtained an employment history and reviewed the employee=s medical and rehabilitation records.  He noted the employee was then age 61, had an 8^th grade education but had obtained a GED.  He administered a timed assessment of vocational abilities on which the employee scored above average in manual speed and dexterity but very low in mechanical reasoning.  Mr. Russell noted the employee=s work history was limited to unskilled to lower level semi-skilled  jobs providing limited transferrable skills, which included the use of hand and power tools, machine operation and cashiering.  Mr. Russell opined the employee could work as an assembler, light driver, hand packager, security guard or cashier and earn an average wage of $8.82 an hour.  Jobs in these areas were available, Mr. Russell opined, on a part-time basis, consistent with the restrictions of Dr. Lebow.  Mr. Russell concluded the employee was not permanently or totally disabled as a result of his work injuries but had been substantially under-employed since 1994.

 

The employee=s objection to discontinuance and claim petition were heard on January  31, 2001, before a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed February 21, 2002, the compensation judge found the employee was permanently and totally disabled, concluding the employee had been unable, since September 21, 1994, to secure anything other than sporadic employment resulting in an insubstantial income.  The judge denied the employee=s claim for continuing temporary partial disability benefits after April 25, 2001.  Both the employee and the employer and insurer appeal the judge=s decision.

 

DECISION

 

1. Temporary Partial Disability Benefits

 

The employee argues the compensation judge=s denial of more than 225 weeks of temporary partial disability benefits is legally erroneous.  He contends the 1990 injury continues to be a substantial contributing cause of his ongoing wage loss.  Under the law in effect in 1990, there was no time limit on the employer=s liability for temporary partial disability benefits.  Accordingly, the employee contends the compensation judge improperly allowed the employer and insurer to discontinue benefits.  We disagree.

 

In Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the employee sustained five work-related injuries between August 1981 and October 1983.  He sustained a sixth separate work-related injury on June 15, 1984.  The employee was temporarily and totally disabled from June 15, 1984, and thereafter, as a substantial result of all of his injuries and reached maximum medical improvement on January 31, 1985.  At issue was the employee=s right to continuing temporary total disability benefits for the pre-1984 injuries.^[3]  The Minnesota Supreme Court stated:

 

[I]t is the most recent occurrence of a compensable personal injury which is the controlling event,  and the law then in effect governs the employee=s rights with respect to the claim arising out of that injury.  If a period of disability is precipitated by a Aconsequential@ injury, a reoccurrence, or a mere temporary aggravation, which is simply a continuance of an earlier injury, as opposed to a new, separate injury, the original injury continues to be the controlling event, and the employee=s rights are governed by the Workers= Compensation Act in effect on the date of the original injury.  If, on the other hand, the employee suffers a new, separate injury, that new injury supercedes the earlier injury as the controlling event, and the law in effect on the date of the new injury supercedes the law in effect at the time of the earlier injury.  Id. at 307-08, 40 W.C.D. at 213-14 (citations omitted).

 

The employee here suffered two personal injuries, the first on May 17, 1990 and the second on September 21, 1994.  Effective October 1, 1992, the legislature enacted Minn. Stat. ' 176.101, subd. 2(b), which provides that temporary partial compensation may not be paid for more than 225 weeks.  Under Joyce, the 1994 injury is the controlling event and the law in effect on the date of that injury governs the employee=s rights to benefits.  The employee received 225 weeks of temporary partial compensation following his second injury.  The compensation judge correctly concluded Minn. Stat. ' 176.101, subd. 2(b), controls the employee=s right to temporary partial compensation.  The decision of the compensation judge is, therefore, affirmed.

 

2. Permanent Total Disability

 

The employer and insurer appeal the compensation judge=s finding that the employee is permanently and totally disabled.  Citing the testimony of Mr. Russell, the cross-appellants contend that since 1994, the employee has been underemployed with an earning capacity of at least $170.00 per week.  They argue $170.00 a week is not an insubstantial income, and the compensation judge erred in awarding permanent total disability benefits. 

 

In 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), the Supreme Court held an employee Ais totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in the community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.@  The compensation judge concluded the employee was unable to secure anything more than sporadic employment resulting in an insubstantial income.  On appeal, the issue for this court is whether that finding is Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, sub.1 (1992).  Substantial evidence supports a factual finding if, in the context of the entire record, it is Asupported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). 

 

The employee has significant restrictions resulting from his two personal injuries.  The compensation judge accepted Dr. Lebow=s opinion that the employee could work only 20 hours a week.  The employee has engaged in a job search on several occasions.  Despite the assistance of Mr. Dielantheis and Mr. Hollander, the employee has been unable to obtain any job which pays $170.00 a week.  In September 1997, the employee was working approximately 16 hours a week at Bally=s for $6.00 an hour.  In his report of September 10, 1997, Mr. Hollander opined the employee was then working up to his capabilities and discontinued rehabilitation.  In 2001, Mr. Hollander testified that given the employee=s age, restrictions, education and skills, he likely would be unable to obtain a job paying any more than what he was currently earning.  At that time, the employee was working approximately eight hours a week.  The compensation judge adopted Mr. Hollander=s opinions.  There is, therefore, substantial evidence to support the compensation judge=s finding of permanent total disability, and that finding is affirmed.

 

3. Date of Permanent Total Disability

 

The employee appeals the compensation judge=s finding that the employee=s perma­nent total disability commenced on September 21, 1994.  He argues his temporary partial disability benefits should be combined with his earnings to determine whether his income has been sporadic or insubstantial.  Since he received wage loss benefits through April 25, 2001, the employee contends his income was not insubstantial and argues he was not permanently and totally disabled until those benefits ceased.  Accordingly, the employee asks this court to amend the date of per­manent total disability to April 26, 2001. 

 

Permanent total disability is primarily dependent on an employee=s vocational poten­tial rather than his physical condition.  Thompson v. Layne of Minnesota, 50 W.C.D. 84 (W.C.C.A. 1993).  In Minnesota, a marginal income or a limited capacity to earn does not preclude a determination of permanent total disability.  See Green v. Schmahl, 278 N.W.2d 157, 10 W.C.D. 209 (Minn. 1938); Bertsch v. Varnum Lumber & Fuel Co., 228 N.W.2d 229, 27 W.C.D. 650 (Minn. 1975).  Thus, resolution of the question of total disability depends upon the employee=s ability to earn income in his community.  Whether the employee is receiving temporary partial disability benefits is not relevant to this analysis.  The compensation judge, therefore, properly analyzed this issue.

 

In March 1997, Dr. Lebow limited the employee to working four hours a day.  Prior thereto, the employee contends he was capable of working full-time.  The employee argues he then possessed an earning capacity which would have enabled him to obtain regular and substantial income.  Accordingly, the employee argues he was not permanently and totally disabled until at least March 1997. 

 

We acknowledge the employee was not explicitly limited to part-time work until March 1997.  However, in 1995, Dr. Lebow diagnosed disc injuries at L4-5 and L5-S1.  In October 2001, the doctor testified his diagnosis was unchanged.  Similarly, Dr. Steele=s diagnosis has remained unchanged since August 1990.  Thus, contrary to the employee=s assertions, the medical evidence does not compel a conclusion that the employee=s condition materially changed between 1994 and 1997.  Other than the four hour a day work limitation, the employee=s physical restrictions have been substantially unchanged since 1994.  Based upon the evidence, the compensation judge could reasonably conclude the employee=s permanent total disability began on September 21, 1994.  The decision of the compensation judge is affirmed.