Beckler v. Workforce Safety & Insurance

MARING, Justice,

dissenting.

[¶ 21] I respectfully dissent and adhere to my dissents in Bachmeier v. North Dakota Workers Comp. Bureau, 2003 ND 63, ¶¶ 19-23, 660 N.W.2d 217 and Gronfur v. North Dakota Workers Comp. Fund, 2003 ND 42, ¶¶ 17-20, 658 N.W.2d 337.

[¶ 22] In the instant case, there is a preponderance of evidence that establishes Beckler has suffered a significant change in his compensable medical condition. The medical records and reports show that Beckler has increased pain, is using increased pain medication, has the early stages of ulnar neuropathy of his left upper extremity, and has carpal tunnel syndrome. These conditions are all documented since he left work at Contact America on January 29, 2002.

[¶ 23] The second prong of the inquiry into whether Beckler is entitled to disability benefits upon reapplication, is whether he has proven actual wage loss due to his significant change in his compensable medical condition. The majority of our Court has concluded that to satisfy this test, the claimant must establish that the significant change in medical condition must result in an inability to continue working at a currently held job. See Bachmeier, 2003 ND 63, ¶ 13, 660 N.W.2d 217; Gronfur, 2003 ND 42, ¶ 14, 658 N.W.2d 337. Therefore, because it was not until July 31, 2002, that Dr. Martire concluded Beckler was unable to work due to the worsening of his com-pensable medical condition and there was no opinion Beckler was unable to work on January 29, 2002, when he quit at Contact America, he failed to establish his significant change in his medical condition caused actual wage loss. I continue to be of the opinion that “actual wage loss” can be established by showing an inability to obtain employment, which can be proven by medical evidence that the employee is totally disabled from any work as a result of his work injury. See Gronfur, at ¶ 17 (Maring, J., dissenting). In the present case, Dr. Martire prepared a report dated July 31, 2002, in which he concluded Beck-ler was “disabled from gainful employment due to ulnar neuropathy of his left upper extremity, carpal tunnel syndrome, bilateral wrist tendinitis, and bilateral elbow pain status post multiple upper extremity surgeries.” He noted that Beckler is unable to use his arms on any repetitive basis or in a functional manner for any type of job. In a letter dated April 3, 2003, Dr. Martire indicated that his review of the job as a hotel/motel manager indicated it involves repetitive use of the hands and that Beck-ler would not be able to do it. Even the IME doctor, Dr. Starzinski, agreed that Beckler has various “sensory symptoms that suggest several peripheral nerve syndromes, which could relate to some degree of scarring from the several procedures that he has had in the upper extremities, particularly on the right side.” Although Dr. Starzinski concludes Beckler could work in a sedentary position as a hotel/motel manager, he could only do so “if he does not have any demands to use his hands repetitively and is allowed to vary his posture and activities.”

[¶ 24] I, therefore, ^dissent and would reverse the denial of disability benefits.

[¶ 25] Mary Muehlen Maring