Can an employee working a desk job, who sustains an injury that does not totally disable them, receive permanent total disability benefits based in part on their need to wear dentures? The resolution to this hypothetical is expected to come after the Minnesota Supreme Court hears oral argument on the case of Allan v. RD Offutt Co., No. WC14-5667 (W.C.C.A. Aug. 12, 2014). The primary issue on appeal is whether nonwork-related injuries can be considered when establishing whether a person is sufficiently disabled to qualify for permanent total disability benefits. Did the legislature really intend for any ratable disability to support a claim for permanent total disability when it has a minimal bearing on their ability to work?
In 1995, the Minnesota Legislature amended the workers’ compensation statute to include new requirements to establish permanent total disability. In a nutshell, the statute, Minn. Stat. § 176.101 subd. 5, provides that a person can be considered permanently and totally disabled if they are permanently and totally incapacitated. In establishing that a person is “incapacitated” there are two steps: first, the employee must meet a threshold amount of permanent partial disability, set out in three tiers depending upon age and education; second, once the threshold for permanent partial disability is met, it must be determined whether the “employee’s physical disability in combination with [the source of the PPD rating] causes the employee to be unable to secure anything more than a sporadic employment resulting in an insubstantial income.” The source of the current dispute is over whether the source of the PPD rating (as set forth in the three tiers) needs to be work-related or if any source will do.
Shortly after the 1995 amendment, the WCCA heard the case of Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997). In that case an employee took a fall that caused an admitted injury to his heels and right ankle. The compensation judge also found that the fall caused or aggravated the employee’s preexisting low back problems. Among other issues on appeal in that case, the employer and insurer appealed the compensation judge’s inclusion of nonwork-related permanent partial disability for purposes of meeting the PPD threshold, namely the rating given for the employee’s back. The WCCA held that “[n]o particular source for that permanent partial disability is specified in any way” by the statute for purposes of meeting the threshold. The court went on to state that, even though a “ratable permanent partial disability from any cause” can be sufficient to meet the threshold, they still need to meet step two of the analysis mentioned above. The court did specify, however, that permanent total disability can be achieved “as long as the employee’s work-related injury is a substantial contributing cause of that disability.” Despite the fact that the WCCA was so quick to say that “any” source could be used for establishing the threshold requirements for PPD, the employee’s back was clearly a cause of his inability to work.
The next major WCCA opinion to deal with the issue was Metzger v. Turck, Inc., 59 W.C.D. 229 (W.C.C.A. 1999). There the WCCA addressed a challenge to the sources of PPD sufficient to meet the threshold, including a premenopausal hysterectomy procedure, which had no bearing on the employee’s ability to work. The employer and insurer conceded that while nonwork-related PPD was includable in meeting the threshold, it should only be includable if it contributed to the employee’s incapacity. In other words, the employer and insurer argued that the PPD could only be counted if it affected the ability of the employee to work.
The WCCA concluded that “permanent partial disability has no necessary connection to an injured employee’s restrictions or wage loss.” Further, it concluded that “any substantial ratable permanent partial disability” would satisfy the goal of finding “some objective evidence of some substantial physical impairment” regardless of “whether or not that permanent partial disability is a factor in the employee’s wage loss of inability to work.” The WCCA supported its conclusion by asserting “a condition that meets the requirements for a permanent partial disability rating under the current rating schedules by definition constitutes a functional impairment.” In other words, by simply having a ratable PPD, a person by definition has a disability impacting their ability to work.
The current case on appeal challenges the notion that a person can be considered permanently and totally disabled when their underlying disability has no bearing on their ability to work. The employee in Allan suffered a back injury but not one that met the initial PPD threshold. The compensation judge chose not to include an additional PPD rating, due to the employee’s lost teeth and use of dentures and wholly unrelated to his employment or ability to work. The WCCA reversed on the grounds that any source will do for meeting the threshold.
At this point, the Supreme Court has asked both the Minnesota Defense Lawyers’ Association and the Minnesota Association for Justice to weigh in on the matter in the form of amicus briefs to the Court. While no clear forecast can be made, suffice it to say that the Minnesota Supreme Court has taken an interest in putting to rest a 20 year controversy on the nature of permanent total disability.
Please look out for our summary after the Supreme Court issues its opinion. In the meantime, if you have any questions about permanent partial or permanent total disability, or any other workers’ compensation matter, please feel free to call or e-mail any one of our many experienced attorneys – www.hansendordell.com / 651-482-8900.