230 Minn. 315 | Minn. | 1950
Certiorari to review an order of the industrial commission awarding respondent, Byron R. Lee, compensation for total disability.
The issues for determination involve:
(2) The admissibility of the testimony of the supervisor of placements for the state employment service, to the effect that jobs with a reasonable continuity are not available for a person handicapped with Lee’s disabilities; and
(3) Whether the evidence sustains the commission’s findings.
Lee, in the course of his employment in 1942, while flagging streetcars through a Memorial Day parade in Minneapolis, was injured by being caught and rolled between two streetcars traveling in opposite directions. He was hospitalized from May 30 to September 19, 1942, a period of more than three and one-half months. The report of the attending physician, admitted by stipulation, stated that Lee was suffering from shock upon admission to the hospital. Upon being told of the loss of sight of his left eye, Lee broke down and cried and was very depressed for a long period thereafter. On September- 19, 1942, the attending physician stated, “Patient is obviously neurotic.” Lee continually complained, as he does now, of pain in his left shoulder. Hypodermics were administered, but, as Lee still complained, a harmless solution of water and soda was administered, with practically equal success. The commission found, and there is little dispute, that Lee is 100 percent disabled in the left eye, 75 percent in the left arm, and 10 percent in the right ankle and foot. Relator has paid all medical bills and compensation for the above permanent partial disability. Relator, however, contends that there is insufficient competent evidence to sustain the commission’s finding that Lee, by reason of the above disabilities, coupled with post-traumatic neurosis, is permanently and totally disabled.
Relator, in seeking to establish that the commission’s findings are not sustained by the evidence, contends that they are largely based upon a consideration of erroneously admitted evidence. Particular objection is made to the testimony of Dr. N. J. Berkwitz, an expert neurologist and psychiatrist, who, in behalf of Lee, expressed the opinion that Lee, by reason of his physical injuries plus the mental changes — constituting a traumatic neurosis — which had de
Eelator asserts it was error to permit the supervisor of placements of the Minnesota state employment service to testify that gainful jobs with reasonable continuity were not available for a person handicapped with the disabilities similar to those with which Lee is afflicted. Eelator contends that such testimony was immaterial because (1) it had no bearing upon the question before the commission, namely, the extent of Lee’s disability; (2) Lee had moved to California, and therefore it was immaterial whether a job was available in Minnesota; and (3) because the record does not indicate that Lee had ever looked for a job in Minnesota. With this contention we do not agree. In prior decisions, we have held that, although an injured person may be able to perform some parts of his occupation, he may be held to be totally disabled if he is unable to perform the substantial and material parts of some gainful work or occupation with reasonable- continuity. Wilson v. Metropolitan L. Ins. Co. 187 Minn. 462, 245 N. W. 826; Green v. Schmahl, 202 Minn. 254, 278 N. W. 157. This rule can only mean that the injured employe must be in such condition that prospective employers will normally and reasonably be willing to hire him despite his handicaps. If reasonably stable employment is not available for an employe by reason of certain injuries which have crippled him physically or neurologically, evidence of that fact — through the testimony of an experienced employment supervisor — is both material and relevant in determining whether the employe’s disability is of such a character that he has no reasonable likelihood, while such disability continues, of being able to obtain and pursue an income-yielding occupation with reasonable continuity as contemplated by M. S. A. 176.11, subd. 5. See, Baker v. MacGillis Gibbs Co. 222 Minn. 460, 25 N. W. (2d) 219. The purpose of the testimony is not to establish the nature of the disability or its duration, but to de
“* * * sporadic competence, occasional, intermittent, and much limited capacity to earn something somehow, does not reduce what is otherwise total to a partial disability. The statutory phrase 'working at an occupation which brings him an income,’ like that of insurance 'following any occupation,’ implies at least a reasonable degree of continuity of occupational capacity. * * * 'Occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability.’ ”
The fact that Lee had moved to California, or that he had not looked for employment within Minnesota, is of little significance. The testimony as to the availability of jobs for a person of Lee’s disabilities was pertinent not only to Minnesota but to other areas, and any objection to such testimony from a territorial standpoint is pertinent only as to its weight and not as to its admissibility.
Taking, as we must, the view of the evidence most favorable to the findings,
The record clearly sustains the commission’s findings of total disability. The order of the commission is affirmed, and respondent is allowed $250 attorney’s fees over and above his costs and disbursements.
Affirmed.
Preveden v. Metropolitan L. Ins. Co. 200 Minn. 523, 274 N. W. 685; Williams v. G. N. Ry. Co. 68 Minn. 55, 70 N. W. 860, 37 L. R. A. 199; Tillman v. Stanley Iron Works, 222 Minn. 421, 24 N. W. (2d) 903; Sund v. C. R. I. & P. Ry. Co. 164 Minn. 24, 204 N. W. 628; Faltico v. Minneapolis St. Ry. Co. 198 Minn. 88, 268 N. W. 857; Annotation, 65 A. L. R. 1217.
Kiley v. Sward-Kemp Drug Co. 214 Minn. 548, 9 N. W. (2d) 237; Eischen v. Fairmont Canning Co. 225 Minn. 295, 30 N. W. (2d) 586.