WAYNE WILMES, Employee/Appellant,
v.
MYRON MILLER CONSTR.., INC., and EMPLOYERS INS. OF WAUSAU, Employer-Insurer,
and
BEHAVIORAL MEDICINE ASSOCS., INC./JOHN K. NASH, Ph.D., and DAVID C. FISHER, Ph.D., Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
February 25, 1999
HEADNOTES
PERMANENT
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; PERMANENT PARTIAL
DISABILITY - WEBER RATING. Substantial evidence
supports the compensation judge's conclusion that the
employee does not have any work-related "organic
dysfunction" as is required for a permanent partial
disability rating pursuant to Minn. R. 5223.0060, subp. 8D
(1987)(brain injury), and the judge did not err in failing to
award the employee benefits pursuant to Weber v. City of
Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471
(Minn. 1990) for a psychological condition, where the
employee made no such claim to the judge.
Affirmed.
Determined by Wilson, J., Wheeler, C.J., and Pederson, J.
Compensation Judge: John E. Jansen.
OPINION
DEBRA
A. WILSON, Judge
The
employee appeals from the compensation judge's denial of
his claim for permanent partial disability benefits related
to his consequential psychological condition. We affirm.
BACKGROUND
On July
26, 1988, the employee sustained a work-related crush injury
to his right shoulder while employed as a bridge construction
laborer by Myron Miller Construction [the employer]. The
employer and its insurer admitted liability for the injury
and paid the employee various benefits, including benefits
for a 10% whole body impairment. The employee was
ultimately unable to return to work in bridge construction
and had difficulty obtaining and keeping other
employment. At some point he began receiving treatment
for depression and other psychological symptoms.
In
addition to his 1988 work-related injury, the employee
sustained nonwork-related injuries on November 30, 1990, when
he was involved in a head-on collision in a parking
lot. There is conflicting evidence as to the nature and
extent of the employee's injuries from this accident, but
some physicians have concluded that he sustained a traumatic
brain injury.
The
matter first came on for hearing before a compensation judge
on June 30, 1994, at which time the employee was claiming
that he had developed a consequential psychological condition
as a result of his 1988 work injury. At issue was the
compensability of psychotherapy the employee had been
receiving from psychologist Mark Orth. The employer and
insurer denied liability for the expenses, claiming that the
employee's psychological condition was due to a
preexisting personality disorder or, in the alternative, to
the 1990 motor vehicle accident. The current record
contains little testimony as to the circumstances of either
the 1988 work incident or the 1990 nonwork-related automobile
accident. However, in his August 23, 1994, decision, the
compensation judge described the employee's 1988
industrial accident as follows:
The July 26, 1988 industrial accident was a terrifying
experience for the employee. Over his objection, he was
asked to change a flat tire on a crane being used to
construct a bridge. While attempting to carry out this
task, his body was pinned between the flatbed and the
counterweight. He was able to get free, but only after
his left shoulder was crushed. This left him in shock,
bleeding, and hurt. His co-workers, including his
supervisor, did not come promptly to his assistance, and then
when they finally drove him to a nearby town for medical
treatment, they left him alone at the facility in Pine River,
over 150 miles from home.
With
regard to the 1990...
