Court upheld Industrial Commission's finding that railroad worker was totally and permanently disabled from injuries and post-traumatic neurosis sustained when caught between streetcars.
Outcome: Affirmed for respondent.
Lee v. Minneapolis Street Railway Co.
What happened
The facts of the case, in plain language.
On May 30, 1942, Lee was caught and rolled between two streetcars while flagging a crossing, resulting in permanent loss of sight in his left eye, seventy-five percent disability of his left arm, and ten percent disability of his right ankle and foot.
Lee developed post-traumatic neurosis as a psychological consequence of his injuries, evidenced by his severe distress upon learning of his eye loss and his continuing complaints of pain and neurotic symptoms.
Lee attempted to return to work as a streetcar conductor in July 1943 but experienced great difficulty due to his disabilities; after being discharged in July 1944 for mishandling of fares, he sought other work without sustained success, including work on income tax statements, house-to-house canvassing, and intermittent detective work.
The supervisor of placements for the Minnesota state employment service testified that gainful jobs with reasonable continuity were not available for a person with disabilities comparable to Lee's.
What the court decided
Lee, a Minneapolis streetcar employee, was caught and rolled between two streetcars during a 1942 Memorial Day parade, suffering a lost eye, significant arm and foot injuries, and subsequent post-traumatic neurosis. Though he attempted to return to work as a conductor and in other roles, his disabilities prevented him from maintaining stable employment. The Industrial Commission found him totally and permanently disabled based on the combination of his physical injuries and neurological condition. On certiorari review, the Minnesota Supreme Court upheld this finding, holding that expert testimony regarding the unavailability of jobs for someone with Lee's disabilities was admissible and material to the total disability determination, and that evidence of his failed work attempts sufficiently demonstrated he could not pursue any occupation with reasonable continuity.
- A physician's expert opinion on a patient's condition is admissible when elicited by a hypothetical question that substantially embodies all relevant symptomatic facts—including the patient's subjective complaints—even if the physician also personally examined the patient for the purpose of qualifying as an expert witness; the exclusionary rule applies only where the opinion rests wholly or partially on the patient's own history given during such a qualifying examination rather than on a comprehensive hypothetical question. (*318)
- Testimony by an experienced employment placement supervisor that gainful jobs with reasonable continuity are unavailable for a person with specified disabilities is admissible and material evidence relevant to the total disability determination under workers' compensation law, and geographic objections to such testimony go to weight rather than admissibility. (*319)
- Under workers' compensation law, total disability requires that an injured employee be unable to perform the substantial and material parts of any gainful work or occupation with reasonable continuity, which means prospective employers must normally and reasonably be willing to hire the employee despite the employee's handicaps; an employee for whom no reasonably stable market for services exists has no material earning capacity and is totally disabled. (*320)
- Sporadic, occasional, or intermittent capacity to earn something does not reduce an otherwise total disability to a partial disability; the workers' compensation standard of pursuing an occupation with reasonable continuity requires at least a reasonable degree of continuity of occupational capacity. (*320)
- Combined physical injuries and post-traumatic neurosis may sustain a finding of total and permanent disability where the record shows repeated failed work attempts across multiple occupations and expert medical testimony establishes inability to pursue any occupation with reasonable continuity. (*321)
How the court reached its decision
The court's reasoning, step by step.
Whether a physician's expert opinion on total disability is admissible when elicited by a comprehensive hypothetical question even though the physician also personally examined the patient for qualifying purposes. Dr. Berkwitz's opinion was elicited by and based upon a hypothetical question that methodically incorporated all relevant symptomatic factors, both objective and subjective, including Lee's subjective complaints. Even if Dr. Berkwitz momentarily based one answer on his personal examination findings, any error was harmless because he separately and explicitly expressed the same opinion grounded in the hypothetical question's assumed facts. Dr. Berkwitz's testimony was admissible; the exclusionary rule did not apply because his opinion rested on a comprehensive hypothetical question rather than solely on the patient's history obtained during a qualifying examination.
Whether testimony by a state employment service supervisor that no jobs with reasonable continuity are available for a person with the claimant's disabilities is admissible and material to the total disability determination. The supervisor of placements for the Minnesota state employment service testified that gainful jobs with reasonable continuity were unavailable for a person with disabilities like Lee's. The employer's objections—that the testimony was immaterial to the extent of disability, that Lee had moved to California, and that Lee had not sought Minnesota work—were rejected: the testimony bore directly on whether a market existed for Lee's services, and any geographic objection went only to weight. The supervisor's testimony was admissible and material to determine whether Lee had any reasonable likelihood of obtaining and pursuing an income-yielding occupation with reasonable continuity.
Whether the evidence reasonably sustains the Industrial Commission's finding that Lee became totally and permanently disabled on July 17, 1944, by reason of post-traumatic neurosis coupled with physical injuries. Lee's return to work as a streetcar conductor was marked by repeated failures caused by his physical and neurological disabilities; attempts at other occupations—tax preparation, canvassing, detective work, construction—were sporadic and unsuccessful due to nervousness, swelling, sleeplessness, and physical limitations. Dr. Berkwitz opined that Lee was totally disabled from his physical injuries and post-traumatic neurosis; the commission as trier of fact was entitled to credit that opinion over the contrary expert testimony and to find that the hypothetical question's assumed facts were true. The record clearly sustained the commission's findings of total disability, and the commission's order was affirmed.
Key quotes from the opinion
Notable passages from the opinion, in the court's own words.
Cases the court relied on
Earlier decisions the court cited as authority for its ruling.
Full opinion
The complete text of the court's opinion as published.
Opinion of the Court
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.
Continue your research
- Minnesota cases applying the employer-willingness-to-hire standard for total disability after Lee v. Minneapolis Street Railway Co.
- Admissibility and weight of vocational expert or employment supervisor testimony on job availability in workers' compensation total disability proceedings
- Post-traumatic neurosis or psychological sequelae of physical injury as a basis for total and permanent disability in workers' compensation
Case-law data current through December 31, 2025. Source: CourtListener bulk data.