CARLA J. OLSON, Employee, v. BOISE CASCADE CORP., SELF-INSURED, adm=d by SEDGWICK CLAIMS, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 2, 2002
PERMANENT TOTAL DISABILITY; JOB OFFER - REFUSAL. Substantial evidence, including the employee=s testimony and the expert medical opinions of Drs. Hardwig and Ramquist, supports the compensation judge=s conclusion that the employee could not return to work with the employer.
PERMANENT TOTAL DISABILITY; JOB SEARCH. Under the circumstances of this case, including evidence of a poor job market and medical opinion testimony that the employee was incapable of working due to her work-related physical and psychological conditions, the compensation judge could reasonably conclude that the employee need not present evidence of a job search and that the employee was permanently and totally disabled.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Gregory Bonovetz
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s determination that the employee is permanently and totally disabled as a result of a personal injury on November 11, 1996. We affirm.
Carla J. Olson, the employee, was born on October 2, 1958, and was 42 years old on the date of the hearing before the compensation judge. Ms. Olson graduated from high school in International Falls, Minnesota, in 1976, and then obtained a two-year degree in secretarial/accounting at Rainy River Community College. Following college, the employee performed various jobs including a cashier at Piggly Wiggly, office work for Rainy Lake Wild Rice & Fish and clerical work at St. Thomas Church. In 1980, the employee moved to Minneapolis, Minnesota, where she obtained a job at First Bank doing data entry work. In 1981, the employee obtained a job at Norwest Information Services where she worked for approximately nine years. The employee moved back to International Falls, Minnesota in 1990 and obtained a job at Boise Cascade as a laborer in the finishing department. In this job, the employee worked on a paper wrapping machine, loaded the paper onto trucks with a forklift and did cleanup work.
On November 11, 1996, the employee sustained a personal injury to her left leg. While working on the paper wrapping machine, a 7,000 pound roll of paper suddenly released and pinned the employee=s left leg against a roller. The self-insured employer admitted liability for the employee=s injury. The employee=s wage was $828.84 per week.
Following her injury, the employee was immediately transported to the Falls Memorial Hospital and then was flown by helicopter to St. Mary=s Hospital in Duluth, Minnesota, where she was hospitalized. The intake diagnosis was a compression injury to the left leg. On examination, the employee=s lower left leg and foot were slightly cyanotic, with absent dorsal pedal and posterior tibial pulses. The employee was taken to the emergency room where Dr. James J. Monge performed an arteriogram and then placed a reversed saphenous vein graft in the femoral/popliteal site to re-establish blood flow to the leg. Dr. Monge also did anterior and posterior fasciotomies with debridement. The employee had additional surgeries on November 13, November 18, and November 21, 1996, for further debridement and irrigation due to infection. The employee was then transferred to the Miller-Dwan Medical Center. Dr. Frank Wolf examined the employee and reported that approximately three percent of the employee=s skin and muscle on the posterior calf was necrotic as was the distal portion of the medial gastroc to the Achilles tendon. On November 22, 1996, Dr. Wolf performed another debridement and a split thickness skin graft. The employee was discharged from the hospital on December 4, 1996.
After discharge from the hospital, the employee returned to her home in International Falls. Nurses came to her home to change her bandages and do physical therapy on her leg. On February 7, 1997, the employee saw her family physician, Dr. James A. Berlin, complaining of constant pain. The doctor reported the employee had massive damage to the skin and muscle in the calf of her left leg. On examination, the doctor noted marked edema with muscle mass loss causing an abnormal gait. The doctor prescribed medication to control pain so that the employee could continue with physical therapy. On April 13, 1999, Dr. Berlin diagnosed cellulitis which he treated with Keflex. On June 19, 1997, the employee saw Dr. Skip C. Silvestrini, a specialist in physical medicine and rehabilitation, who noted considerable dependent edema of the left leg. He prescribed a Jobst stocking for the left leg to control the edema. In July 1997, Dr. Silvestrini believed the employee might be able to return to a sedentary position working four hours a day. On September 1, 1997, Dr. Berlin noted the employee=s swelling was almost normal. On April 23, 1998, Dr. Silvestrini noted the employee had been offered a position with the employer working in a security shack, and released the employee to return to work in this position.
The employee did return to work for the employer in April 1998, as a security guard, working four hours a day. The job was primarily sedentary and the employee was allowed to park in the handicapped parking space close to her guard shack. Her job was to answer phones, pagers and check people coming in and out of the plant. The employee testified she had difficulty performing the job because her leg became swollen and painful. She also developed a rash on her leg due to the leg brace that she wore. The employee performed the job until September 4, 1998. While working, the employee continued to receive treatment from various physicians in an attempt to alleviate the skin breakdown along the graft site.
In August 1998, Dr. Wolf recommended the employee undergo additional surgery to expand the tissue in her leg. Surgery was performed in the fall of 1998, and an additional surgery was done in April 1999 to attempt to reshape the employee=s leg. Abscesses developed following the tissue expansion surgeries requiring aggressive treatment with antibiotics. The employee was off work from September 1998 through the fall of 1999. In August 1999, the employee returned to work at Boise Cascade doing invoicing in the coordinator=s office in the warehouse. The employee was allowed to drive her vehicle inside the plant so she did not have to walk a great distance to her work place. She worked two to three hours a day at this job, which she continued until April 2000, when the position was terminated. The employee was then told the employer did not have another position for her. Wende Morrell, the employee=s QRC, recommended classes to improve the employee=s computer skills. The employee has not looked for work since her job with the employer was terminated.
The employee returned to see Dr. Silvestrini on May 18, 2000. He released the employee to return to work, eight hours a day, with restrictions of no prolonged standing and the ability to frequently change positions. On July 6, 2000, the employee saw Dr. Jeffrey T. Hardwig, a psychiatrist. The doctor recorded a history of a crush injury to the employee=s left leg complicated by pain and infection and job loss. Dr. Hardwig diagnosed a major depressive episode, prescribed medication and commenced psychotherapy. In October 2000, the doctor diagnosed major depression with features of post-traumatic stress disorder and generalized anxiety.
On January 19, 2001, the employer offered the employee a full-time, eight hour a day job as a security guard, the same job the employee had previously performed on a part-time basis. That same day, the employee saw Dr. Hardwig and told him of the job offer. Dr. Hardwig diagnosed major depression secondary to the employee=s personal injury together with a chronic post-traumatic stress disorder as a prominent element of avoidance. Dr. Hardwig urged the employee to try to go back to work to desensitize herself. On January 29, 2001, the employee signed the January 19, 2001 job offer stating she would accept the full-time position as a security guard beginning on February 5, 2001.
On January 31, 2001, Dr. Berlin stated he did not believe the employee could work an eight-hour day and recommended a graduated schedule. By report dated February 1, 2001, Dr. Hardwig opined the employee=s post traumatic stress disorder was chronic and caused a pattern of avoidance in an attempt to not re-experience the original trauma. The doctor opined the employee was unable to return to any job with the employer. The employee did not report for work on February 5, 2001.
In March 2001, the employee saw Dr. Daniel T. Ramquist. The doctor diagnosed chronic venous insufficiency of the left leg with chronic edema. The doctor stated the employee must take frequent breaks during the day to elevate her leg to reduce the swelling and stated prolonged sitting or standing presented a threat of further skin breakdown and more disability. Dr. Ramquist stated even light-duty for four hours a day was contraindicated for the employee because of her need to elevate and mobilize her leg. The doctor opined the employee was totally disabled under Social Security guidelines and not able to participate in even light-duty or sedentary work activity. The doctor further opined the employee suffered a major depression as a result of the injury together with a severe cosmetic disfigurement to the left lower leg which affected the employee psychologically. He stated the employee would required psychotropic medication which would influence her mood and alertness and stated the employee=s ability to experience stress was greatly reduced.
On April 3, 2001, the employee was examined by Dr. John Rauenhorst, a psychiatrist, at the request of the employer. The doctor obtained a history from the employee, reviewed her medical records and conducted an examination. Dr. Rauenhorst diagnosed a depressive disorder and alcohol abuse. He opined the depressive disorder was not caused by the work injury, but was a function of the employee=s abusive alcohol use, her concerns about her financial situation and the pending litigation. Dr. Rauenhorst felt the employee was capable of full-time employment at Boise Cascade from a psychiatric standpoint.
The employee returned to see Dr. Silvestrini on April 10, 2001. She told the doctor she felt she was unable to work in the guard shack job because she was unable to change positions frequently. The doctor did not conduct an examination but noted the employee was clearly depressed and demonstrated post-traumatic stress issues. He stated the employee could work if she was able to change positions frequently and avoided prolonged sitting or standing. Dr. Silvestrini thought a functional capacity evaluation would be beneficial to more objectively measure the employee=s capabilities.
By report dated May 8, 2001, Dr. Berlin opined the employee was unable to work a 40-hour a week job in the guard shack. Given her additional problems of depression and post-traumatic stress syndrome, Dr. Berlin opined the employee was not employable.
The employee filed a claim petition seeking permanent total disability benefits. The case was heard by a compensation judge at the Office of Administrative Hearings on May 10, 2001. In a Findings and Order filed August 16, 2001, the compensation judge found the employee suffers from major depression and chronic post traumatic stress disorder as defined in D.S.M.-IV. The judge further found the job offer made by the self-insured employer on January 19, 2001, was beyond the employee=s physical and psychological restrictions. Finally, the compensation judge found the employee has been permanently and totally disabled since November 11, 1996, and ordered the self-insured employer to pay benefits. The employer appeals.
The self-insured employer first argues the employee is capable of working within restrictions. The employee refused the employer=s job offer as a security guard, a job the appellant contends was within both her physical and psychiatric restrictions. Appellant contends the employee must first be required to try the security guard position before a finding of permanent total disability can be made. Accordingly, the appellant contends the compensation judge=s finding of permanent total disability is unsupported by substantial evidence and must be reversed. We disagree.
There is evidence which would support a conclusion that the employee was physically capable of performing the security guard job. On January 19, 2001, Dr. Hardwig urged the employee to go back to work in order to desensitize herself. By report dated January 31, 2001, Dr. Berlin stated it was reasonable to put the employee back in a work hardening program. Dr. Silvestrini stated the employee was able to work at a sedentary job which allowed her to frequently change positions. Dr. Rauenhorst stated, from a psychiatric standpoint, the employee was capable of performing the security guard job and opined it would be therapeutic for the employee to return to work within her physical restrictions. While this evidence would support a denial of permanent total disability benefits, the question on appeal is not whether the evidence would support a contrary result, but whether the findings of fact are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. ' 176.421, subd. 1 (1992). This court may not disturb findings of fact Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., 304 Minn. 196, 229 N.W.2d 521 (1975).
The employee performed the security guard job from April through September 4, 1998. She worked at most four hours a day, but missed some time from work due to her injury. The employee testified that at the end of her four hour shift her leg was swollen and painful. She stated that standing on the concrete floor in the guard shack aggravated her leg condition and she was unable to elevate her leg to relieve the pain and swelling. While working, the employee wore a silicone brace on her leg which caused a rash on her leg requiring further medical care. In August 1999, the employee again returned to work with the employer doing invoicing in the coordinator=s office in the warehouse. The employee worked only two to three hours a day until the position was terminated in April 2000. The employee continued to have abscesses on her leg which Dr. Berlin treated with antibiotics. During this time, the employee testified she was very depressed, experienced fears about injury from paper rolls and trucks in the warehouse and became aware that she was very afraid of losing her leg. In July 2000, the employee sought psychiatric treatment with Dr. Hardwig. At the hearing, the employee testified she was still afraid of returning to work at Boise Cascade. Based on her previous experience with the security guard job, the employee felt she was unable to do the job eight hours a day.
Dr. Ramquist opined the employee is Aone hundred percent disabled according to Social Security Guidelines and is not able to participate in even light duty activity or sedentary work activity.@ (Pet. Ex. C.) Dr. Hardwig diagnosed major depression, post-traumatic stress disorder and alcohol dependence in early full remission. The doctor noted the employee=s avoidance of Boise Cascade was best explained by her post-traumatic stress disorder and was understandable as an attempt by the employee to control her symptoms by controlling the amount of exposure to the stimuli which trigger the symptoms. The doctor stated that were the condition of recent onset, he would recommend the employee face her fears and try to overcome them. The doctor then went on to state:
Unfortunately, her condition is chronic and at this point it is not my recommendation that she make another attempt to return to Boise Cascade under any circumstances. Chronic PTSD as a condition tends to be just that, chronic. Treatment attempts are meant to lessen symptoms, cure is less likely the outcome. In other words, her treatment goals will be management and gradual improvement. Some day she may work in a part time job away from Boise Cascade. I do not expect a cure. I would also anticipate that a forced return to Boise Cascade will be counterproductive. She either will not be able to succeed or it will cause an acute worsening of her symptoms.
(Pet. Ex. B.) The employee=s testimony, together with medical opinions of Drs. Hardwig and Ramquist, support the judge=s conclusion that the employee cannot return to work with the employer. That determination is affirmed.
The appellant next argues the employee has failed to perform any job search since April 2000. The employee=s failure to perform a job search, the appellant argues, precludes a finding of permanent total disability benefits. In support of this position, the appellant cites Olding v. Americalf, Inc., slip op. (W.C.C.A. Oct. 24,1994). We are not persuaded.
Total disability exists if an employee=s physical condition in combination with the employee=s age, training and experience and the type of work available in the community, cause the employee to be unable to secure anything more that sporadic employment resulting in an insubstantial wage. Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967). As a general rule, an employee proves total disability by showing that work the employee is capable of doing is unavailable and unavailability is shown by a diligent job search. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). The injured employee is not, however, required to affirmatively seek and be denied employment as a prerequisite to total disability benefits. Rather, the fact that an employee has not sought post-injury employment goes to the evidentiary weight of the assertion the employee is totally disabled. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Where the evidence establishes that because of the employee=s age, poor health and lack of training, the employee is completely unemployable, the employee need not present evidence of a job search. Redgate, at 732-33, 40 W.C.D. at 954.
Ms. Morrell testified the job market in International Falls, Minnesota, was very poor and it was very difficult to find employment for injured people. Dr. Hardwig and Dr. Ramquist opined the employee was totally disabled due to her physical and psychological injuries. Dr. Berlin opined the employee was unable to work a 40-hour week job in the guard shack. Given the additional problems of depression and post-traumatic stress syndrome, the doctor opined the employee could not work. Based on this testimony, the compensation judge could reasonably conclude the employee need not present evidence of a job search. The judge=s award of permanent total disability benefits is, therefore, affirmed.