Nelson v. Smurfit Stone Container Corp., et. al

Nelson v. Smurfit Stone Container Corp., et. al., No. WC17-6053 (W.C.C.A. October 9, 2017).

The Employee was working for a plant when he sustained a work related injury to his right shoulder, which required surgery and time off work. Once returned to work, he began experiencing symptoms in his left shoulder as well. The Employee reported both of his shoulder problems to the Employer. The plant subsequently closed and the Employee was laid off. At the time of closing, the Employee signed a document stating he did not have a work-related injury at that time. Further, the Employee also stated that he planned to work only until age 66. After being laid off, he looked for work for a few months and then applied for social security retirement benefits.

Three years after being laid off, the Employee began treating for his left shoulder, was diagnosed with a complete tear of the left rotator cuff, and eventually underwent left shoulder surgery. The Employee received an opinion from Dr. Gregerson that he sustained a left shoulder Gillette injury from his work at the plant. In return, the Employer and Insurer received an opinion from Dr. Barron, who opined the work at the plant was not a substantial contributing factor. Lastly, the Employee obtained a narrative report from Dr. Meletiou, who supported the opinions of Dr. Gregerson.

The Employee claimed permanent total disability from the date the plant closed, or in the alternative, temporary total disability benefits from the date of his left shoulder surgery. The compensation judge found the Employee sustained a left shoulder Gillette injury, but denied permanent total disability benefits for lack of a diligent job search. Nonetheless, he was awarded temporary total disability benefits for a period after his left shoulder surgery.

The Employer and Insurer appealed, arguing the Employee did not treat for three years after the plant closed, and even signed a document stating he had no work related injury when he was laid off. The WCCA did not accept these arguments, noting that the date an employee is laid off for economic reasons may be an ascertainable event for a Gillette injury when an employee did not seek medical attention until after being laid off. This issue is dependent upon medical experts, which the compensation judge had substantial evidence to adopt the opinions of the Employee’s experts. Regarding the document signed by the Employee, the WCCA notes that the Employee believed the document did not refer to his shoulder conditions. Along with the testimony, the judge found the Employee to be credible on this issue.

Lastly, the Employer and Insurer argued that the judge erred by awarding temporary total disability benefits because the judge had found that the Employee had not conducted a diligent job search. The WCCA also did not accept this argument, reasoning the Employee was actually taken off work completely following the left shoulder surgery, which is separate from the issue of a job search. Of note, the WCCA also found that the plan to retire at age 66 does not preclude temporary total benefits, as this statement was made with the assumption the Employee would continue working up until age 66. The Employee’s plans changed after being laid off.