Icy Slip Leads to PTD Benefits for Minn. Worker

Morris, MN (WorkersCompensation.com) -- Taking some extra time to prep for wintery conditions may help keep employees safe and keep employers away from workers' compensation claims.

As a nursing facility learned in Trebil v. Legacy Assisted Living, No. WC23-6518 (W.C.C. App. Minn. 12/19/23), a little black ice can eventually lead to permanent total disability benefits.

In the case, a worker was injured while taking a resident's garbage to a trash bin in the facility's parking lot. Along the way, she slipped on ice and landed on her outstretched hands.

At the emergency room, imaging revealed two fractured bones near the left wrist and one fractured bone near the right wrist. Two days later, the employee underwent surgery, which was followed by a stay of "several" weeks at a nursing home because she was unable to perform self-care.

Close to five months after the slip, the worker came back to work, with restrictions. Despite additional restrictions and continued physical therapy, the employee's condition did not improve, and she underwent additional surgeries.

Following the surgeries, the worker was released to return to work with restrictions. At the time, her job duties involved COVID screening of residents, which required her to push a cart from room to room, take manual temperatures and oxygen saturation levels of residents, and record results on a clipboard. She was working four hours per day for four days per week.

The worker continued to experience pain and underwent a three-day functional capacities evaluation, the results of which showed that she was completely restricted from performing patient care and had restrictions on other activities. The FCE evaluator concluded that the worker was able to do sedentary work.

Eventually, the worker received a 13.5 percent permanent partial disability rating and, after the facility determined that there was no permanent position for her within her restrictions, was terminated.

The employe was involved in a formal job search during which she logged 83 job contacts, 32 job applications, 20 in-person contacts, eight interviews, and zero offers.

An independent medical evaluation concluded that the employee had reached maximum medical improvement by the date of the FCE, that she required no further treatment, and that she could work an eight-hour day.

The worker filed a claim for permanent total disability benefits and payment of outstanding rehabilitation bills. The compensation judge found the employee to be permanently and totally disabled and awarded payment of outstanding invoices for vocational rehabilitation services.

The employer and its insurer appealed, arguing that the compensation judge erred in finding that the worker was permanently and totally disabled.

Under Minnesota case law, an employee is considered totally disabled if her physical condition, in combination with her age, training, and experience and the type of work available in her community causes her to be unable to secure anything more than sporadic employment resulting in an unsubstantial income.

Workers' Comp 101: In Minnesota, the concept of total disability depends on the employee’s ability to find and hold a job, not on the employee’s physical condition. See McClish v. Pan-O-Gold Baking Co., 336 N.W. 2d 538 (Minn. 1983).

The Workers' Compensation Court of Appeals upheld the judge's findings, concluding that evidence supported the determination that the worker was permanently disabled.

In particular, the WCC pointed to:

+ The restrictions noted in the FCE.
+ The worker's age.
+ The worker's education.
+ The work available in the worker's community.

The court pointed out that the worker's town had a population of 5,000 people with employers consisting predominantly of manufacturers, medical providers, and restaurants. The only other town within the employee's driving radius had a population of 300 people.

Additionally, the court agreed with the judge's determination that the worker put in a "very diligent" job search that included networking within her community, applying for jobs that were outside of her restrictions, and volunteering at positions to determine if she could perform tasks.

"There is substantial evidence in the record that the employee could not secure anything more than sporadic employment resulting in an unsubstantial income," the court wrote. "There is ample evidence in the record to support the compensation judge’s finding that the employee is permanently and totally disabled and, therefore, we affirm that determination."

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