JOHN C. DILLEMUTH, Employee/Appellant, v. OWATONNA TOOL CO. and RELIANCE GROUP/CRAWFORD & CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 7, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY.  Where the employee sustained a permanent injury in the nature of severe contact dermatitis to both hands, resulting in continuing restrictions which permanently precluded him from returning to his pre-injury job or any other job in the employer=s plant, the compensation judge=s determination that the July 19, 1993 work injury was not a substantial contributing cause of the employee=s admitted permanent and total disability is contrary to the record as a whole and is reversed.

 

Reversed.

 

Determined by: Johnson, J., Wilson, J. and Rykken, J.

Compensation Judge: Kathleen Nicol Behounek

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s finding that the employee=s per­sonal injury of July 19, 1993 was not a substantial contributing factor to the employee=s permanent and total disability from April 15, 1999 through November 4, 2000.   We reverse.

 

BACKGROUND

 

The employee, John C. Dillemuth, graduated from high school and began working as a laborer for the employer, Owatonna Tool Company, in June 1955.  He held various jobs within the company, and in 1973, transferred into the position of manufacturing or process engineer.  He re­mained in that position for the bal­ance of his employment with the employer.

 

In July 1993, the employee was diagnosed with severe contact dermatitis in both hands related to his exposure to oils, coolants and solvents at work.  The employer and insurer accepted liability for a personal injury occurring on July 19, 1993, and paid workers= compensation benefits.  The employee=s wage was $743.53 per week.  After a number of unsuccessful attempts to return to work in 1993 and 1994, the employee was given restrictions permanently precluding him from returning to work at the employer=s plant.

 

In June 1995, the employee returned to work for the employer working from his home in a modified job per­forming special projects and some of his previous job duties as a manu­facturing engineer, using a computer and modem and telephone connections.  In a previous decision, the com­pensation judge found the modified job was phy­sically and economically suitable.  (2/19/99 F&O: finding 6.)  In mid-December 1995, the employer offered a voluntary early retirement package to certain employees.  The employee accepted the early retirement offer, but continued to work for the employer until December 31, 1996, the latest possible date set by the company.  The employee received no rehabilitation assistance after his retirement.

 

On January 6, 1997, the employee began working as a full-time bus driver for the Owa­tonna Bus Company, earning $8.50 per hour.  The employee resigned from the bus company effective December 20, 1997, testifying the job was physically Aawkward and hard.@  He then obtained work as a part-time sales and stock person for Coast to Coast Hardware commencing on December 26, 1997.  The employee earned $6.50 per hour in this job.  Be­ginning in late 1998, the employee experienced significant orthopedic problems, even­tually leading to termination of ­his employment at Coast to Coast on April 14, 1999.  Thereafter, the employee worked only very sporadically driving a hearse for a local funeral home and working as a bailiff at the courthouse.

 

The employee filed for and ultimately received Social Security Disability benefits, retroactive to April 15, 1999.  The employee also filed a claim petition seeking permanent and total disability benefits as a result of the July 19, 1993 work injury, for a closed period from April 15, 1999 through November 4, 2000, when he turned 65 years old.   The employer and insurer denied liability asserting the employee had voluntarily re­tired from employment and there was no medical or vocational support for the claim that the employee=s per­manent and total disability was due to his work injury.

 

John W. Richardson, a qualified rehabilitation consultant, met with the employee on December 7, 1998, at the request of the employer and insurer.  At this time, the employee was working for Coast to Coast.  Mr. Richardson obtained a history from the employee, reviewed his medical history and vocational history and prepared a report.  Mr. Richardson opined the employee=s current wage loss resulted from six factors: the employee left a suitable job with his original employer; the employee lacked an educational degree in engineering; he had 41 years experience with a single company; the employee was 63 years of age; the employee had not actively sought suitable alternative employment; the employee=s most recent job under-represented his earning capacity in the job market.  Mr. Richardson, however, stated any Achange in employment would necessarily involve another training period with the new employer in order to attempt to achieve his status as an engineer.@  Further, he stated that Awage loss for an individual who has been with a single company for 41 years is almost uniformly anticipated upon termination of employment.@  Mr. Richardson, however, opined the employee=s present wage loss was unrelated to his work injury.  He stated that without an Aactive and consistent attempt on the part of Mr. Dillemuth to attempt to locate suitable employment with appropriate vocational tools such as a resume I cannot conclude the wage loss is related to his dermatitis.@

 

Richard McCluhan, a vocational expert, met with the employee on January 2, 2001, at the request of the employee=s attorney.  He interviewed the employee, obtained a vocational history and reviewed the employee=s medical records.  Mr. McCluhan noted the employee=s educational and vocational background in the manufacturing/engineering field applied solely to the work he performed for the employer and opined the employee would not be a candidate for that type of job with any other company.  Based on his vocational evaluation, Mr. McCluhan concluded AMr. Dillemuth has virtually no chance of ever attaining his previous earning capacity at Owatonna Tool Company.@  Mr. McCluhan opined the employee, after leaving the employer, self-rehabilitated himself consistent with his status in the labor market, his physical ability, age, education and work history.  He stated the employee=s jobs at Owatonna Bus Company and Coast to Coast were consistent with his physical capabilities, his age, interests, vocational abilities and the local labor market.  Finally, Mr. McCluhan concluded AI really don=t know that any other significant efforts would have brought about a different end result to where he now finds himself.@

 

Mr. Richardson again met with the employee on March 20, 2001, to conduct a second vocational evaluation.  He reported the employee discontinued most work activities in the spring of 1999 because of his orthopedic difficulties and only worked sporadically thereafter.  He opined the employee was permanently and totally disabled, but concluded the employee=s contact dermatitis was not a substantial contributing cause of that disability.  Rather, Mr. Richardson testified that but for the employee=s orthopedic difficulties he would be able to work with the bus company, Coast to Coast or similar employers in the area.

 

The case was heard by a compensation judge at the Office of Administrative Hearings on May 1, 2001.  In a Findings and Order served and filed June 11, 2001, the compensation judge found the employee was permanently and totally disabled from gainful employment from April 15, 1999 to November 4, 2000, and had not retired from the labor market during the period in question.  The judge further found, however, that the employee=s July 19, 1993 injury was not a substantial contributing factor to his permanent and total disability and denied workers= compensation bene­fits.  The employee appeals.

 

DECISION

 

Permanent and total disability Ameans that the employee=s physical disability, in com­bination with the employee=s age, education, training and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Minn. Stat. ' 176.101, subd. 5(b).  It is well established that the concept of Atotal disability@ depends primarily upon the employee=s ability to obtain or maintain gainful employment rather than his physical condition.  McClish v. Pan‑O‑Gold Baking Co., 336N.W.2d 538, 36 W.C.D. l33 (Minn. l983).  To recover compensation benefits, the employee must establish the work injury is a substantial contributing cause of the disability.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 42 W.C.D. 91 (Minn. 1989).

 

There is no dispute in this case that the employee was permanently and totally disabled between April 15, 1999 and November 4, 2000.  The sole issue is whether the July 19, 1993 work injury was a substantial contributing factor in the employee=s total disability.  The compensation judge found the employee=s July 1993 work injury was not a substantial contributing factor in his permanent and total disability from April 15, 1999 through November 4, 2000.  We recognize this court must give great deference to a compensation judge=s factual findings­.  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  In this case, however, we conclude the record establishes a causal connection be­tween the employee=s work injury and his eventual total disability.

 

The compensation judge, in a prior decision, found the employee has a two percent permanent partial disability.  The employee has continuing restric­tions on his ability to work due to his contact dermatitis, requiring him to avoid any contact with oils, solvents and other irritants that can cause a flare-up of his condition.  Due to the contact dermatitis, the em­ployee was permanently precluded from returning to his pre-injury job, or any other work, in the employer=s plant.  (2/19/99 F&O: finding 3; 6/11/01 F&O: finding 6; Mem at 5.)  The employee=s restrictions significantly limit his employability.  Mr. McCluhan opined the employee=s contact dermatitis, in combination with his age, education, training and experience, would preclude the employee from any type of similar manufacturing  environment similar to that of the employer.  The employee earned $743.50 a week with the employer.  Thereafter, the only employment the employee could find paid $8.50 an hour at Owatonna Bus Company and $6.50 an hour at Coast to Coast Hardware.  Mr. McCluhan stated the employee had Avirtually no chance of ever attaining his previous earning capacity at Owatonna Tool Company.@

 

Mr. Richardson evaluated the employee on two occasions and testified that due to the employee=s contact dermatitis, he was precluded from working in certain manufacturing segments.  In addition, Mr. Richardson felt the employee=s age, lack of education and training and his lack of experience in any other employment areas contributed to his inability to find employment.  However, Mr. Richardson opined the employee=s contact dermatitis was not preventing him from sustained gainful employment as of July 26, 2001.  Rather, he opined the reason for the employee=s inability to obtain gainful employment was his orthopedic disabilities.  Mr. Richardson, however, offered no evidence of any job available to the employee which would return him to his pre-injury wage even absent the employee=s orthopedic disabilities.  Further, he conceded a wage loss was Auniformly anticipated@ upon the employee=s termination of employment with the employer.

 

The compensation judge=s denial of permanent and total benefits was, in part,^[1] based on the judge=s conclusion that the employee would be Aemployable in some capacity but for the severe orthopedic difficulties he suffered between April 1999 and November 2000.@  (Memo at p. 5, emphasis added.) The fact that the employee=s orthopedic disabilities may have been the Aprecipitating@ or ultimate set of events leading to the employee=s resignation from Coast to Coast, however, is not determinative on the issue of causation.  The proper test to determine whether a subsequent incident or condition is a superseding, intervening cause is the substantial contributing cause test, not the but for test.  Buford v. Ford Motor Co., 52 W.C.D. 723 (W.C.C.A. 1995).  The intervention of a non-work-related disability as the Aterminal cause@ does not relieve an employer and insurer from liability.  See Roman v. Minneapolis Street Ry Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964).  Where an injury or condition is found to have arisen out of and in the course of employment, an employer and insurer are liable for every natural consequence that flows from the injury or condition unless it can be shown that later disability is the result of an independent intervening cause.  Nelson v. American Lutheran Church, 420 N.W.2d 588, 590, 40 W.C.D. 849, 851 (Minn. 1988); Rohr v. Knutson Constr. Co., 305 Minn. 26, 29, 232 N.W.2d 233, 235, 28 W.C.D. 23, 26 (1975).

 

Granted, the employee was able to find em­ployment and continue working for another five or six years after his work injury.  Mr. Richardson opined the employee would still be working but for his orthopedic problems.  The compensation judge accepted Mr. Richardson=s opinion and denied the employee=s claim.  This conclusion is not, however, dispositive.  The question is not whether the employee=s contact dermatitis was the cause of his inability to continue in his Coast to Coast job or another similar position, but whether the contact dermatitis was an ap­preciable factor, in com­bination with his orthopedic problems, his age, education and work ex­perience, in producing the employee=s inability to secure or maintain gainful employment after April 14, 1999. 

 

The employee=s injury precludes him from the only employment in which the employee had any training or experience.  The employee=s work experience was highly specific to this particular em­ployer, and both experts agreed that the employee=s age and lack of an engineering degree would have a negative impact on his employ­ability with other employers.  His limited education further limited his employment possibilities.  The employee sustained a significant wage loss upon leaving his job with the employer.  There is no evidence that the employee could thereafter obtain any job paying $743.53 a week.  There is no evidence the employee=s earning capacity after leaving the employer was anything other than the $8.50 per hour he earned at the bus company or the $6.50 per hour employment at Coast to Coast.  Thus, while the employee was able to work subject to restrictions caused by his work injury, he could do so only at a large wage loss.  The employee=s work injury caused a significant impairment of his earning capacity.  In such circumstances, the em­ployee=s work injury and resulting restrictions can only be viewed as having an Aappreciable or substantial@ impact on the employee=s residual employability.^[2]  Considering the record as a whole, we can only conclude the work injury is a substantial contributing cause of the employee=s total disability.  Accordingly, we reverse.