KEVIN FLETCHER, Employee/Cross-Appellant, v. TODD COUNTY, and MINNESOTA COUNTIES INS. TRUST, Employer-Insurer/Appellants, and MINNESOTA POWER & LIGHT, SELF-INSURED/ALEXSIS RSKCo., Employer-Insurer, and PREFERRED ONE COMMUNITY HEALTH PLAN, NORTHERN ORTHOPEDICS LTD., LAKEWOOD HEALTH, and ST. CLOUD ORTHOPEDIC, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 23, 2004
HEADNOTES
PERMANENT TOTAL DISABILITY - EFFECTIVE DATE. Where the QRC testified that the job market in the employee=s area had worsened and where the QRC no longer recommended job placement services, substantial evidence supported the compensation judge=s determination of the effective date of permanent total disability.
CREDITS AND OFFSETS - SOCIAL SECURITY OFFSET. Where the work injury was a substantial contributing factor in the employee=s receipt of Social Security and PERA disability benefits, the employer was entitled to an offset.
Affirmed.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Thomas J. Christenson, Quinlivan & Hughes, St. Cloud, MN, for the Appellants. Stephen R. Daly, Kampmeyer, Kronschnabel, Bader & Daly, St. Paul, MN, for the Cross-Appellant.
OPINION
DAVID A. STOFFERAHN, Judge
The employer, Todd County, appeals from the compensation judge=s determination of the effective date of the employee=s permanent total disability. The employee cross-appeals from the compensation judge=s decision that the employer was entitled to offset permanent total disability compensation benefits by the disability benefits paid under Social Security and PERA. We affirm.
BACKGROUND
Kevin Fletcher, the employee, was born on August 22, 1941. The employee worked for Minnesota Power & Light from 1969 until August 31, 1995. During his employment he sustained a number of work-related injuries to his knees. He began treating at Lakewood Clinic in Browerville, Minnesota for right knee pain following an incident at work in June 1993. The impression of the treating doctor was of suspected ligamentous injury to the left knee, long standing osteoarthritis of the right knee, and suspected osteoarthritis of the low back. The employee continued to treat for his bilateral knee complaints at Lakewood Clinic until he was referred to Dr. John Schmitz at Northern Orthopedics in February 1995. On June 5, 1995, Dr. Schmitz performed arthroscopic surgery on the employee=s right knee. The employee continued to work his regular duties, although with difficulty, until his 1995 surgery. After the surgery, he was placed on light duty with Minnesota Power & Light, generally working in the shop. The employee accepted a retirement package offer by his employer and left his employment with Minnesota Power & Light on August 31, 1995.
In June 1996, the employee went to work for Todd County as a driver. He sustained an admitted work injury to his low back on January 29, 2001. The employee was treated initially at Lakewood Clinic, receiving physical therapy, before being referred to Dr. David Kaus at St. Cloud Orthopedic Associates.
The employee stopped working for Todd County after his work injury and has not returned to work since then. Todd County placed the employee on temporary total disability benefits as of January 30, 2001. On June 6, 2001, the employee met with QRC Stan Sizen for rehabilitation consultation. After the consultation, Mr. Sizen recommended that the employee receive rehabilitation services and indicated a plan to attend the employee=s appointment with Dr. Kaus to obtain restrictions and a return to work date.
Dr. Kaus saw the employee for the first time on July 3, 2001. Dr. Kaus diagnosed degenerative lumbar disc disease with subsequent lumbar strain. He continued pain medication for the employee, recommended a structured work hardening or strengthening program, and provided work restrictions of no lifting more than 10 pounds, alternate sitting and standing every hour and no bending or twisting at the waist. The employee was unable to return to his work at Todd County with these restrictions.
The employee had also continued to consult with Dr. Schmitz for his knee problems after the June 1995 surgery. His last visit with Dr. Schmitz before his 2001 back injury was on December 15, 1999. The employee had pain in both knees, right greater than left. Dr. Schmitz advised continued use of anti-inflammatories and told the employee that when the pain became too bad, total knee replacement on the right would be performed. In a chart note of February 28, 2001, Dr. Schmitz noted that the employee would need total knee replacement on the left in a year or so. Dr. Schmitz concluded that the employee was totally disabled from any type of manual work. As of June 13, 2003, the employee had not had any additional surgery to his knees.
Mr. Sizen arranged for the employee=s work hardening program at the Staples Care Center and after the program was completed, he accompanied the employee to his return visit with Dr. Kaus on August 29, 2001. The employee reported to Dr. Kaus only slight improvement in his condition after the work hardening program and the examination on August 29 demonstrated little change. Dr. Kaus provided work restrictions of limited stair climbing, alternate sitting and standing at least every 30 minutes, avoid bending and twisting at the waist, and occasional lifting of no more than 10 to 15 pounds. The QRC contacted the employer to determine if work was available within those restrictions. The QRC indicated that if no work was available he would recommend outside job placement. No employment with Todd County was available but job placement was not authorized by the employer.
The employer filed a request to end rehabilitation services and also filed a Notice of Intention to Discontinue compensation benefits. A hearing was held on January 30, 2002 before Compensation Judge Carol Eckersen. In her Findings and Order, served and filed April 1, 2002, the compensation judge denied the requests of the employer. An appeal to this court followed and in a decision filed October 10, 2002, this court affirmed the decision of the compensation judge.[1]
During the litigation, rehabilitation services were placed on hold by Mr. Sizen. After he was advised by the employee=s attorney of the results of the litigation, Mr. Sizen advised the parties that he intended to initiate job placement for the employee. Mr. Sizen met with the employee on March 14, 2003 to discuss the direction of rehabilitation services.
At that meeting, the QRC reviewed the work restrictions placed on the employee because of his back as well as because of his knees. The QRC identified potential barriers to employment for the employee as being his advanced age (61), severe physical limitations, limited education, lack of transferrable work skills, and poor labor market conditions.
The employee had previously filed an application for Social Security Disability Insurance (SSDI) in May 2001, alleging that his disability began January 30, 2001 and identifying his disabling conditions as being his back and knees. SSDI was awarded without a hearing and the employee=s disability was found to have begun January 30, 2001. In the determination, Social Security identified the primary diagnosis as being ADJD bilateral knees@ and the secondary diagnosis was Amulti-level degenerative disc disease.@ The employee also applied for and was awarded PERA disability benefits. The medical consultant for PERA based his disability recommendation on the employee=s knee and back conditions.
The employee had filed a claim petition alleging that he was permanently totally disabled as of January 30, 2001, as the combined result of his back injury with Todd County and as the result of admitted and claimed injuries to his knees at Minnesota Power & Light including an alleged Gillette injury of August 31, 1995. The employee=s claim was heard by Compensation Judge Eckersen on June 13, 2003 and the record remained open until July 14, 2003. In her Findings and Order, served and filed September 12, 2003, the compensation judge found that the employee was permanently totally disabled as of March 3, 2003. The compensation judge determined that the employee had not sustained a Gillette injury to his knees at Minnesota Power & Light and that the employee=s current knee condition was the result of a congenital condition. The employee=s injuries at Minnesota Power & Light were not found to be contributing factors in his permanent total disability. Todd County was ordered to pay permanent total disability compensation to the employee. The compensation judge allowed Todd County to offset its payments to the employee by the SSDI and PERA benefits received by the employee pursuant to Minn. Stat. ' 176.101, subd. 4.
Todd County appealed the compensation judge=s determination that the employee=s permanent total disability began on March 3, 2003 rather than January 30, 2001. The employee cross-appeals the compensation judge=s award of an offset against his permanent total disability compensation benefits.
DECISION
Permanent Total Disability - Effective Date
The employer[2] argues on appeal that the compensation judge erred in deciding that the effective date of the employee=s permanent total disability was March 3, 2003 instead of January 30, 2001, the date when the employee stopped working. According to her memorandum, the compensation judge found an effective date of permanent total disability of March 3, 2003 because it was when the QRC recommended discontinuing rehabilitation. The employer contends that there was no change in the employee=s medical or vocational condition after January 30, 2001 which would justify a later date of onset.
The question of the effective date of permanent total disability is one of fact and, as with other questions of fact, the issue for this court is whether substantial evidence supports the compensation judge=s determination. AThe issue of when permanent total disability begins is a question of fact. There is rarely a clear demarcation line for determining exactly when an employee becomes permanently disabled. Rather, the compensation judge must take into consideration all of the facts and circumstances relating to both the medical and vocational aspects of the case.@ Lidtke v. Howard Lidtke Construction, slip op. (W.C.C.A. June 29, 1990); Boone v. Hauenstein & Burmeister, Inc., 63 W.C.D. 92 (W.C.C.A. 2002); Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
The QRC testified at hearing that there had been a 30 to 50 percent decrease in job vacancies in the employee=s geographic area between January 2001 and March 2003. Most importantly, where the QRC had sought permission to institute job placement in 2001, it was his opinion in 2003 that job placement would be unsuccessful.
We find substantial evidence in the record to support the compensation judge=s decision on this issue.
Disability Offset
On this issue, the question for the compensation judge at the hearing was whether the disability benefits paid by SSDI and PERA Awere occasioned by the same injury or injuries@ as the employee=s workers= compensation benefits. If so, the employer is entitled to an offset in the amount of permanent total disability benefits pursuant to Minn. Stat. ' 176.101, subd. 4. The compensation judge allowed the offset and the employee contends she erred in doing so. It is the employee=s position that the offset is allowable only if the employee=s work injury is sole reason for the receipt of other benefits.
As authority for its position, the employee cites Foley v. Tyler Limited Partnership, 61 W.C.D. 304 (W.C.C.A. 2001). The facts in that case were substantially different than in the present case. In Foley the employer and insurer sought an offset by reason of the employee=s receipt of a VA disability. The evidence in that case was clear however that the VA disability was awarded solely because of the employee=s service connected injury a number of years before his work injury. His work injury was not a factor in the receipt of VA benefits.
Here the employee=s work injury was an integral part of the disability upon which the employee received PERA and SSDI. In his application for both SSDI and PERA, the employee based his claims on his work injury to his back as well as his knee condition. He claimed an onset date of January 30, 2001 the day he stopped working because of his back injury. In this case the employer is responsible for permanent total disability compensation benefits where the work injury is not the sole factor in producing that disability but is instead a substantial contributing factor. When the work injury is also a substantial contributing factor in the award of PERA and SSDI benefits the employer is entitled to an offset for those benefits.
The compensation judge=s award of an offset is affirmed.