Lockner v. Eich Motor Co.

Otis, Justice. This matter is before the court to review a decision of the Industrial Commission awarding the estate of a deceased employee compensation for permanent partial disability between the time of his injury and the date he discontinued employment.1 Decedent sustained a personal injury arising out of this employment on August 26, 1963. Following the accident, he continued to work without loss of wages until February 27, 1965. Thereafter, and until April 3, 1966, decedent was awarded temporary total disability benefits. On [172] April 4 he began to receive compensation for permanent partial disability and died of unrelated causes on June 3, 1966. He left no surviving dependents, and these proceedings are brought to recover only such compensation as he himself was entitled to receive prior to his death. At oral argument the issues in the case were reduced to the single question of whether or not decedent was entitled to compensation for permanent partial disability between the date of the accident and the time he was obliged to give up his job, in the absence of evidence of when the disability began. The referee found that decedent sustained a 40-percent permanent partial disability to his right lower extremity and allowed benefits for such disability from the date of the injury without a specific finding of the percentage of disability which occurred at the date of injury. On appeal the commission affirmed, holding that its policy was to award compensation for permanent partial disability subsequent to the injury regardless of whether the employee sustained temporary disability and without reference to whether he lost time from work. In justifying this policy, the commission pointed out the difficulty of establishing the precise time when permanent disability begins. The commission cited as authority Durant v. Butler Brothers, 275 Minn. 487, 148 N. W. (2d) 152, 24 Minn. W. C. D. 91. There, however, the court simply held that the employee should not be denied permanent partial benefits merely because he continued to work. We find nothing in Minn. St. 176.101, subd. 3, which authorizes benefits for permanent partial disability without evidence which establishes the time when the disability began. Neither the referee nor the commission fixed the date when decedent’s 40-percent permanent partial disability actually commenced. They merely applied their own rule that once permanent partial disability is established, the benefits based on such disability accrue on the date of injury. The record before us indicates that following the accident decedent continued to work with the use of a cane and crutches but not without apparent distress and difficulty. The X rays taken at the time of the accident disclosed no recent fractures. A later examination in September 1964 revealed healed fractures of the right pelvic bones and a degenera [173] tive change in the right hip and indicated that a fracture of decedent’s hip at the time of the accident had been undetected in the initial examination. In answer to counsel’s questioning as to whether the decedent had a permanent disability from the date of the original accident, one doctor stated: “My answer is that the injury that he had in ’63 undoubtedly lead up to permanent disability.” Thereafter, the doctor was asked the following: “Doctor, so we have the record straight, so it’s your opinion that he did not sustain — there’s no permanent disability between August of ’63 and February of ’65, is that true?” The witness answered: “I think that’s my reasonable answer.” The force of the doctor’s opinion was diluted by his subsequent testimony that he believed the employee could not have been disabled before February 1965 because he continued to work during that period. An orthopedist who first saw decedent in April 1965, performed two operations. He testified as follows: “Q. What was his essential problem with the hip? “A. The pátient had fallen and fractured the neck of the femur which damaged the circulation to the head of the femur, the ball of the ball and socket joint, and this then went on to avascular necrosis and the head disintegrated and became rough, painful joint. “Q. What did you do in the first surgery? “A. In the first surgery the — this damaged head of the femur was removed and a femoral head prosthesis, a metal ball, was put in its place. “Q. And what did you do in the second operation? “A. In the second operation it was a similar procedure excepting that it was found that he had such large bones that it was necessary to use a different type of prosthesis, a newer type that had come out for this specific purpose. So the old one was removed and new one put in.” [174] In giving his opinion of the date when the healing period terminated, the witness stated: “Well, to me, as a medical doctor, this is all one continuous condition. I mean, it’s obvious now — it wasn’t obvious to the original doctor — but it’s obvious that his man had an injury when he fell and it wasn’t recognized. I’m sure I couldn’t have recognized it, either, because I’ve seen those original X-rays and they didn’t show it. But, looking at the over-all picture now, it’s obvious that this trouble started when he fell and finally terminated following some — some time following surgery.” He concluded by stating that when he examined decedent in March 1966 decedent was suffering a 40-percent permanent partial disability of the lower right extremity. When asked whether the injury resulted in some permanent disability between the date of the accident and February 27, 1965, the doctor replied: “Well, I don’t think that — that I can say. I mean, this is a progressive thing. ij: ‡ “He certainly had — he was disabled from walking, from working, from lifting and so forth, but to — to pick out any certain time in a disease which is progressing steadily and say that at this point he had permanent — just be a wild guess.” The doctor later was unable to say whether decedent was suffering from a 40-percent disability before surgery was performed in May 1965 or to give an opinion it was permanent during the period the employee continued to work. We conclude that there is no support in law or in fact for awarding permanent partial disability retroactively to the date of the accident where there is no testimony to support such an award. To hold otherwise would be to confer benefits based on pure speculation and conjecture. The decision of the commission is therefore reversed. Reversed. Footnotes [1] This case was first heard by this court sitting in division. Because less than four justices in the divison concurred in the majority opinion, the case was further considered in conference by the full bench as provided by Rules of Civil Appellate Procedure, Rule 135(3). Thereafter it was submitted to the non division justices on the record, briefs, and a tape recording of the oral arguments — as provided by Rule 134.07(4) — without a rehearing.