ELEANOR SZUBA, Employee/Appellant, v. WENDY=S INT=L and ACE USA, Employer-Insurer, and NORIDIAN/MEDICARE PART B, Intervenor.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 3, 2005

 

No. WC04-213

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence of record does not support the compensation judge's finding that the employee was not permanently and totally disabled and the decision denying benefits must be reversed.

 

Reversed.

 

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

Compensation Judge: Gary P. Mesna

 

Attorneys: William M. Fishman, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant.  Devin J. Murphy, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s denial of her claim for permanent total disability benefits.  We reverse.

 

BACKGROUND

 

Eleanor Szuba, the employee, was born November 27, 1927.  She grew up in Binghamton, New York, and, after leaving school, worked factory jobs in the area until she was 62.  After the plant where she was working closed, she began receiving Social Security retirement benefits.  In 1997, the employee moved to Minnesota to be closer to her son and lived in an apartment in Hopkins.  In June 1998, the employee began working for Wendy=s, at a restaurant which was near enough to her home for her to walk to it.  The employee worked part-time and was employed as a hostess.  In that position, the employee vacuumed the floor, cleaned the windows, doors, and tables, and stocked napkins and condiment packets.  She also brought in trays from the dining area, made sure they were clean, placed paper liners on them, and stacked them under the counter for the cashiers to use.

 

The employee left Wendy=s in November 2000 after a dispute with a manager about her duties.  She went to work for Walgreens as a cashier but only worked there for a couple of months.  The employee testified that she left her job at Walgreens because there were too many complaints from customers about her coughing.  The employee has asthma.  Thereafter, the  employee then returned to Wendy=s in January 2001, but stated that her work hours were reduced because of a lack of business.  The employee worked approximately 3 to 4 hours per week.

 

On March 6, 2001, the employee was injured while working at Wendy=s.  She was in the kitchen, slipped on the floor, and fell, landing on her left side and left arm.  The employee was taken by ambulance to Methodist Hospital where she was diagnosed as having sustained a dislocation fracture of the left elbow.  The employee was hospitalized and on March 7, 2001, Dr. Thomas Walsh performed an open reduction and internal fixation of the left elbow.  The employee was discharged on March 10, 2001, and continued treating thereafter with Dr. Walsh.

 

When the employee saw Dr. Walsh on April 4, 2001, it was noted that her arm was in a long-arm cast fixed at 95 degrees of flexion.  On May 14, 2001, Dr. Walsh continued to restrict the employee from work and sent her to hand therapy for a hinged elbow brace and elbow range of motion exercises.

 

A rehabilitation consultation was done by Leslie Hall, a QRC selected by the employer and insurer, and rehabilitation services were provided.  The QRC accompanied the employee to her appointment with Dr. Walsh on June 11, 2001.  Dr. Walsh wanted the employee to continue therapy but released her to work four hours a day at activities that did not require use of her left arm.  The employee returned to her regular job with Wendy=s, performing her usual duties with one arm.  No other modifications were made to the employee=s job duties.  The employee testified that the work caused her right arm to become tired and to ache.  The employee had a pre-existing diagnosis of polymyalgia rheumatica and several other health conditions.

 

On July 11, 2001, the employee returned to Dr. Walsh.  X-rays showed loosening of the screws used in the internal fixation and also indicated a nonunion or fibrous union of the capitellum.  Dr. Walsh discussed these findings with the employee and recommended further surgery which would include hardware removal.  The employee stopped working at Wendy=s on July 31 and on August 1, 2001, Dr. Walsh performed surgery in the form of hardware removal and capitellar debridement.  The employee was discharged with her left arm in a cast and with pain medication prescriptions.

 

The employee returned for follow up with Dr. Walsh on September 6, 2001.  Dr. Walsh noted that ligament reconstruction surgery or total elbow arthroplasty might become necessary in the future.  He changed her cast and continued to keep her off work.  When she returned on October 15, Dr. Walsh noted that the employee=s medial stability was improving.  He continued casting for an additional four weeks and kept her off work.  On November 12, Dr. Walsh placed the employee in a hinged elbow cast and did not release her to work.  The QRC was present at the visit.

 

When the employee returned on January 7, 2002, Dr. Walsh assessed nonunion, based on x-rays which showed medial opening with mild ulnar subluxation and valgus deformity at the ulnohumeral joint.  A strengthening program was recommended but Dr. Walsh stated that if this was not successful, surgery would be necessary.  After a follow-up exam on February 28, Dr. Walsh recommended surgery.

 

The employer requested a second opinion on the surgery and the employee was seen by Dr. Michael Forseth on March 6, 2002.  Dr. Forseth assessed left elbow fracture dislocation with continued pain and instability.  Dr. Forseth recommended a total elbow arthroplasty to give the employee a functional arc of motion and pain relief.

 

The employee had a total elbow arthroplasty done by Dr. Walsh on March 27, 2002, and continued her treatment with Dr. Walsh.  On April 10, her long-arm splint was replaced with another splint and plans were made for therapy.  The employee was seen in May and July and at both occasions, the therapy was continued and the employee was not released to work.  The QRC was present at these appointments.

 

The last record of an appointment with Dr. Walsh for the employee is from October 31, 2002.  At that time it was noted by Dr. Walsh that AShe is doing reasonably well but does have a fair amount of soreness in the elbow when she tries to do anything heavy.  She notices restriction of motion and discomfort at the extremes of flexion and extension.@  Dr. Walsh determined the employee was at  maximum medical improvement and rated her as having a 17% permanent partial disability.  Dr. Walsh also permanently restricted the employee from all employment.

 

The rehabilitation records indicate that the QRC and the employee discussed the employee=s status with Dr. Walsh on November 18, 2002.  The employee had completed the physical therapy program recommended by Dr. Walsh and Dr. Walsh also recommended continued home exercises.  Dr. Walsh provided a list of non-narcotic medications and advised the employee to follow with her family doctor for prescriptions.  The QRC subsequently filed an R-8, Notice of Rehabilitation Plan Closure, indicating that rehabilitation services were being closed by agreement of the parties and that further rehabilitation services would not be of benefit to the employee.  No rehabilitation services were ever again provided to the employee.

 

The employee filed a claim petition on April 1, 2003, alleging entitlement to permanent total disability as the result of her March 6, 2001, work injury.  The employee=s claims were heard by Compensation Judge Gary Mesna on April 27, 2004.

 

At the hearing, David Mickelson testified as a vocational expert for the employee.  It was his opinion that the employee was not capable of Apart-time employment of any kind@ considering the functionality of her left arm, along with her other diagnoses, her skill level, and her age.  Mr. Mickelson was asked specifically about the employee=s ability to return to her hostess duties at Wendy=s.  He testified that she would not be able to do that job because she could not use her left arm.  Mr. Mickelson testified that this was not a job which could be done with one arm and referred to the employee=s symptoms in the summer of 2001.  The employee was also evaluated by a vocational expert at the request of the employer, but that person did not testify or generate a report.  No IME report was introduced into evidence at the hearing.

 

At the hearing and in its trial memorandum, the employer argued that the employee was sporadically employed and earning an insubstantial income before her injury so that the employee actually was not working for an income at the time of her injury.  The employer also argued that the employee had voluntarily withdrawn from the labor market through retirement by the time of her injury and finally that public policy barred the payment of permanent total disability benefits.

 

In his Findings and Order served and filed June 17, 2004, the compensation judge denied the employee=s claim for permanent total disability.  The compensation judge determined the employee was capable of very light work with her injured left arm and was able to perform her past employment with Wendy=s.  The employee appeals.

 

DECISION

 

Our function as a reviewing court is to determine if substantial evidence exists to support the decision of the compensation judge.  Substantial evidence is defined as being evidence which a reasonable person might accept as adequate.  In considering the meaning of substantial evidence, the court stated: AThe phrase, by its very nature, eludes any definitive explanation.  It is enough to add here that the standard is an admonition to the reviewing court not to treat the findings of the fact finder lightly, while at the same time the reviewing court remains cognizant of its own responsibility to exercise good judgement in reviewing what the evidence will reasonably sustain.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  In the present case, after carefully considering the entire record, we conclude we must reverse the compensation judge=s decision that the employee is not permanently totally disabled.

 

The compensation judge found that the employee was capable of very light work with her left arm.  We find no evidence in the record to support that finding.  At no time after her injury was the employee ever allowed by her treating doctor, Dr. Walsh, to use her left arm.  Even when the employee was released to work for a brief time in the summer of 2001, she was not allowed to use her left arm.  The employer cites to no evidence in the record which would indicate that the employee had any use of her left arm.

 

In his memorandum, the compensation judge refers to the employee=s lack of treatment with Dr. Walsh since October 2002 as leading to the Areasonable implication@ that the employee was not Ahaving a great deal of difficulty with the left elbow.@  We do not believe this conclusion can be made from the evidence. The nature of the employee=s treatment demonstrated a severe injury. Dr. Walsh=s indication to the employee and QRC that the employee should follow with her family doctor for pain control indicated that the treating doctor anticipated the employee=s pain to continue. The parties^[1] agreement that  the employee was at maximum medical improvement in October 2002, established that there would be no further significant improvement in her condition.  Minn. Stat. ' 176.011, subd. 25.  The compensation judge=s conclusion is simply not based on the evidence.

 

The compensation judge also concluded that the employee was capable of returning  to her pre-injury job with Wendy=s.  There is no evidence that the employee could perform her pre-injury work.  We note the employee=s job, as described by the employee in uncontroverted testimony,  involved substantial physical activity.  The employee testified she would not be able to do this work.  The vocational expert testified the employee would not be able to do this work.  We also find it significant that the QRC, who was selected by the employer, closed rehabilitation services in November 2002 and never explored the possibility of returning the employee to work at Wendy=s.  We find the compensation judge=s decision on this point to be unsupported by the evidence.

 

An employee is permanently totally disabled if her physical condition, in combination with her age, education, and work experience causes her to be unable to secure anything other than sporadic employment with insubstantial income.  Minn. Stat. ' 176.101, subd. 5.  The burden of establishing such a claim is on the employee and we conclude the employee has done so in this case.  Minn. Stat. ' 176.021, subd. 1.

 

The employer argued at hearing that the employee before her injury had only worked sporadic hours at an insubstantial income at Wendy=s so that her injury was not a factor in her vocational status.  We disagree.  The purpose of the cited language is to establish that total absence from employment is not necessary for permanent total disability benefits.  An employee may be permanently totally disabled even if employed in an inconsequential manner.  Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W. 2d 228, 27 W.C.D. 786 (1975), Sorvick v. City of Crystal, slip. op. (W.C.C.A. November 13, 2002).  The question of sporadic employment does not apply here where the employee is not capable of any employment and has not returned to employment since the time of her injury.

 

The employer also argued that the employee was retired and not entitled to permanent total compensation.  The employer contends that, since the employee was receiving Social Security retirement benefits at the time of her injury she was retired and not entitled to benefits.  Retirement is a permanent voluntary withdrawal from the labor market.  Pfeifle v. Peterson-Biddick Co., 56 W.C.D. 459 (W.C.C.A. 1997), Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004).  An employee=s receipt of Social Security may be evidence of the employee=s voluntary withdrawal from the labor market.  Minn. Stat. ' 176.101, subd. 8.  Where, as here, an employee who was receiving Social Security benefits was injured on the job, we do not believe she could be considered to have withdrawn from the labor market at the time of her injury.

 

The employer also argues that the employee retired after her injury and this was the reason she did not return to work.  We find no evidence that the employee voluntarily withdrew from the labor market.  The medical records, the QRC records, the vocational expert testimony and the employee=s testimony are all consistent with the conclusion that it was the employee=s injury which caused her to leave the labor market.  The employer quotes a statement made by the employee to her family doctor that she was retired.  We do not believe that the employee could be said to have made a legal conclusion but instead was simply acknowledging that she would not work again.  This statement does not constitute substantial evidence in support of the employer=s position.

 

Finally, the employer argues that an award of permanent total disability would be contrary to public policy and would be what the employer calls a record financial windfall because the employee=s wage on the date of injury was significantly less than the benefits she would receive.  The employer=s position is essentially that the employee was not really working or that the employee did not have a real job at the time of her injury.

 

It is true that the employee worked only a few hours a week at the time of her injury but the evidence was that these were the only hours offered by the employer to the employee.  There is no indication that this arrangement was anything other than the result of an arms-length agreement between the employer and the employee and we must assume that there was a financial benefit to the employer in this arrangement.  The employee=s job was not make-work but constituted real employment and we find nothing in the statute which excludes from coverage those employees who are working part-time jobs, even when the hours worked are rather minimal.

 

Any disparity between the employee=s age and her benefit entitlement can not be said to violative of public policy.  Public policy, with regards to workers= compensation, is set by the legislature in its enactment of the statute.  Minn. Stat. ' 176.101, subd. 4, sets the compensation rate for employees who are permanently totally disabled and we find nothing in that section which limits its application to those employees who earn more than a certain amount or who work more than a certain number of hours.  We also believe that it is inappropriate to refer to this result as a Awindfall.@ Instead, the employee was engaged in her employer=s business when she sustained a severe injury which has precluded her from all employment.  As a result, she is entitled to the benefits established by statute.

 

The decision of the compensation judge is reversed.