MICHAEL E. SORVICK, Employee/Appellant, v. CITY OF CRYSTAL, SELF-INSURED/LEAGUE OF MINN. CITIES/BERKLEY RISK ADM=RS, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 13, 2002
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee had actively demonstrated that he was capable of steady, regular post-injury employment, where he had obtained his post-injury job through a competitive application and interview process, where his hours were not sporadic, and where the judge=s conclusion was supported by the testimony of a vocational expert, the compensation judge=s conclusion that the employee=s post-injury earnings were not Ainsubstantial@ for purposes of entitlement to permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee=s post-injury wages were less than half his pre-injury wages and were not supplemented by any benefits package as had been his pre-injury wages.
PERMANENT TOTAL DISABILITY - INSUBSTANTIAL INCOME. The comparison-based analysis in Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992), applicable to determining the suitability of post-injury employment with regard to a claim for economic recovery compensation, is not applicable to determining whether or not an employee=s post-injury earnings are insubstantial with regard to a claim for permanent total disability compensation.
Determined by Pederson, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of permanent total disability benefits. We affirm.
Michael Sorvick was born in 1947 and graduated from Hopkins High School in 1966. He served in the U.S. Army from 1967 to 1969, after which he attended technical school training in landscape technology. In about 1983, Mr. Sorvick [the employee] was hired by the City of Crystal [the employer] as head of maintenance for its community center. After about seven years in that position, he became a parks keeper, a job he held on January 3, 1996, when he sustained an injury to his low back at work. On that date, the employee was forty-eight years old and was earning a weekly wage of $598.12, plus fringe benefits that included medical and dental coverage, vacation and sick leave, and a retirement program.
On January 4, 1996, the employee sought treatment with Dr. James Larrabee, who diagnosed low back strain with radicular symptoms, prescribed medication, and restricted the employee from working for a few days. Subsequent x-rays revealed spondylolysis at L5, thirty percent spondylolisthesis of L5 on S1, considerable bony sclerosis and marked disc narrowing at that level, and mild disc narrowing also at the other lumbar levels. The employee apparently returned to work, but on May 1, 1996, he returned to Dr. Larrabee=s office reporting that his back pain had persisted since his injury. Dr. Larrabee noted that the employee=s neurologic exam of the lower extremities was unremarkable, but a lumbar CT scan performed on May 6, 1996, revealed significant foraminal stenosis, secondary to the employee=s spondylolisthesis, and Dr. Larrabee sought an orthopedic consultation with Dr. Jeffrey Dick.
Dr. Dick examined the employee on June 6, 1996, and diagnosed Grade II spondylolisthesis at L5-S1, aggravated by the work injury of January 3, 1996. At Dr. Dick=s recommendation, the employee undertook a program of physical therapy and a trial of lumbar traction, and by late July he reported improvement in his symptoms. On September 6, 1996, however, the employee returned to Dr. Dick with complaints of increasing low back and leg pain and significant difficulty sleeping. He indicated that he had missed a significant amount of work and was taking twelve aspirin a day. Dr. Dick advised the employee that he had nothing further of a conservative nature to offer him but thought the employee would be a good candidate for decompression and fusion surgery.
At about this same time, the employee resigned from his job with the employer because his Aback couldn=t handle the job.@ Between September of 1996 and April of 1998, the employee conducted a job search on his own and worked briefly at several different jobs, leaving each because of his back disability. On April 2, 1998, the employee received a rehabilitation consultation with QRC Frank J. Lamp, Ph.D. Dr. Lamp concluded that the employee was eligible for rehabilitation services and began providing return-to-work assistance.
On February 23, 1999, the employee underwent lumbar decompression and a posterior fusion with instrumentation, L4 to the sacrum, as recommended by Dr. Dick on September 6, 1996. Four months later, on June 23, 1999, the employee reported to Dr. Dick that he was doing quite well and that his symptoms were ninety-five percent improved over his pre-operative status. Dr. Dick released the employee to return to full-time work, with permanent restrictions against lifting over twenty-five pounds more than ten times a day.
On March 8, 2000, the employee returned to Dr. Dick for follow-up. The employee continued to report 95% improvement over his pre-operative status, but he also advised the doctor that he was having trouble working full time. He told Dr. Dick that he did well at work for six hours and then became fairly uncomfortable until he went home. The employee indicated that he obtained relief by lying down at home and would be fine the next day. Dr. Dick continued the employee=s lifting restrictions and also recommended that the employee frequently change positions and work no more than eight-hour days. About four months later, the employee found a full-time job as a utility locator, at which he earned $11.00 an hour. His duties at this job included traveling to various job sites to locate underground cable and utility lines. He held this position until he was laid off in late October of 2000.
On November 30, 2000, the employee filed a claim petition, alleging entitlement to permanent total disability benefits continuing from October 31, 2000. The employer denied that the employee was permanently and totally disabled. About a week after filing his petition, the employee found a part-time job as a sales/repair person at St. Cloud Vacuum and Sewing Center. The job paid the employee $6.50 an hour, plus 5% commissions on his sales. On January 17, 2001, the employee returned to see Dr. Dick, complaining that he had been having difficulty working within the restrictions provided on March 8, 2000. The employee reported that he was unable to work more than a five-hour work day because of increased low back pain. On physical examination, the doctor noted that the employee had a normal gait and was able to heel and toe walk without difficulty. Lumbar range of motion was mildly decreased but not painful, and the employee was not tender with palpation. Dr. Dick reported no abnormal findings on neurologic exam of the lower extremities, and he concluded that the employee was doing well. Based on this visit, however, Dr. Dick increased the employee=s work restrictions to no more than fifteen pounds occasional lifting, with frequent change of position, and to a five-hour work day. Between December 2000 and January 2002, when the employee=s petition was heard by a compensation judge, the employee worked essentially five hours a day, five days a week. Throughout this period, the employee=s hourly pay remained constant but his commission income increased as he became more experienced. By the time of the hearing, the employee estimated his hourly wage, including commissions, to be between $8.00 and $8.50. His job, however, did not provide fringe benefits, as had his date-of-injury job, and it also required a thirty-five-mile commute to and from work.
Orthopedist Dr. Paul Cederberg examined the employee at the request of the employer on March 1, 2001. Dr. Cederberg obtained a history from the employee, reviewed his medical records, and conducted a physical examination. In a report dated March 1, 2001, Dr. Cederberg expressed his opinion that the employee was not permanently and totally disabled from a medical standpoint. The doctor indicated that the employee=s examination findings were inconsistent and that, objectively, he had no neurologic deficit and an excellent fusion. Dr. Cederberg concluded that the employee was capable of working eight hours a day if restricted to thirty pounds lifting and allowed to sit or stand as tolerated.
On July 30, 2001, the employee was seen for an employability evaluation on behalf of the employer by vocational expert Jan Lowe. Ms. Lowe=s firm also conducted a survey of the employee=s labor market in September 2001. In a report dated September 26, 2001, later reiterated at hearing, Ms. Lowe opined that the employee was not permanently and totally disabled from competitive employment. Ms. Lowe concluded that, from a vocational perspective, the employee had an earning capacity at or exceeding $206.00 a week, the minimum wage for a forty-hour work week.
The employee=s claim for permanent total disability benefits came on for hearing before a compensation judge on January 18, 2002. The employee argued at hearing that his earning capacity is so substantially impaired by his work injury that he is able to earn only a fraction of what he was earning at the time of his injury. He contended that his employment results in an insubstantial income, such as renders him permanently and totally disabled. The employer contended, on the other hand, that the employee is not permanently and totally disabled, Afor the simple reason that he is employed, that he=s working steady employment, . . . . and that the wage that he is earning from his current employment is not insubstantial.@ Evidence presented at hearing included testimony from the employee=s QRC, Dr. Lamp. In his testimony, Dr. Lamp indicated in part that his office had contacted over 3000 employers on the employee=s behalf and that, as a result of those contacts, 247 job leads were identified, only 60 of which were considered appropriate for the employee. Dr. Lamp testified also that, in light of the employee=s extensive job search and the limitations placed on the employee by Dr. Dick, the employee=s sales/repair job with St. Cloud Vacuum and Sewing Center was the best job that the employee was able to obtain. Dr. Lamp also concluded that, although the employee had engaged in steady employment within limitations, this job did not constitute substantial gainful employment from an economic standpoint. Consequently, he opined, that the employee is permanently and totally disabled. Dr. Lamp based his opinion on a comparison of the employee=s pre-injury wage and benefit package with the employee=s current earnings, which included no fringe benefits.
In a Findings and Order issued March 15, 2002, the compensation judge determined that the employee had failed to prove by a preponderance of the evidence that he has been permanently and totally disabled since October 31, 2000, expressly concluding that, although Athe employee=s earnings from St. Cloud Vacuum and Sewing Center [are] low, [they] are not so insubstantial as to support a finding of permanent total disability.@ The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, 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.@ Id.
In general, an employee is permanently and totally disabled Aif his physical condition, in combination with his age, training, experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.@ Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). APermanent total disability is primarily dependent on an employee=s vocational potential rather than his physical condition.@ Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1993). In Minnesota, a marginal income or a limited capacity to earn does not preclude a determination of permanent total disability. See Green v. Schmahl, 202 Minn. 254, 278 N.W.2d 157, 10 W.C.D. 209 (1938); Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W.2d 228, 27 W.C.D. 786 (1975). The essential issue raised on appeal is whether the compensation judge=s factual determination that the employee=s job at St. Cloud Vacuum and Sewing Center does not constitute sporadic employment resulting in insubstantial income is supported by substantial evidence in view of the entire record as submitted. The employee argues that there was substantial evidence to support a contrary conclusion, contending also that the judge erred in construing the applicable legal standard. We are not persuaded.
First of all, we acknowledge that there is evidence in the record to support the employee=s position that he is permanently and totally disabled under Minnesota law. Pursuant to this court=s standard of review, however, the issue is not whether the evidence will support such alternative findings but whether substantial evidence supports the findings of the judge. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the judge=s findings are to be affirmed. See Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.
In the present case, the judge concluded that the employee=s earnings did not accurately reflect his earning capacity. He found that the employee=s permanent restriction against working more than five hours a day was Anot well supported.@ The judge noted in particular the following evidence: Dr. Cederberg had expressed the opinion that the employee was capable of working full time; the employee had not attempted to increase his hours since December 23, 2000; Dr. Dick had not examined the employee since January 17, 2001; Dr. Dick=s modification of the employee=s restrictions on January 17, 2001, was based only on the employee=s subjective complaints; and the employee did not identify any specific activities at his present job that aggravated his symptoms. Based on this evidence, the judge concluded that the employee had failed to establish that he was permanently incapable of performing light-duty work for more than five hours a day. In his Memorandum, the judge went on to explain that, even assuming that the employee might be restricted to twenty-five hours of work each week, he still did not find him to be permanently and totally disabled. The judge acknowledged that the employee=s present earnings are significantly less than his pre-injury wage, particularly in light of their lack of a benefits package. Nevertheless, he concluded that those current earnings are not so insubstantial as to support a finding of permanent total disability, in light of the fact that the employee has actively demonstrated capacity for steady, regular employment with St. Cloud Vacuum. This conclusion was not unreasonable, particularly given that the employee obtained his current job through a competitive application and interview process, that his hours are not sporadic, and that the judge=s conclusion is supported by the testimony of Ms. Lowe. We will not, therefore, reverse the judge=s conclusion on a factual basis. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The employee also contests the compensation judge=s decision on a legal basis. In his memorandum, the compensation judge stated that comparison of present earnings to pre-injury earnings is not the appropriate standard in evaluating permanent total disability. The employee argues that it is appropriate to compare pre-injury and post-injury wages and benefits, especially in cases where, as here, the employee is grossly underemployed. Citing Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992), the employee contends that a significant gap between pre-injury earning capacity and post-injury earning capacity is a factor to consider when determining whether an employee is earning insubstantial income. Dr. Lamp testified that the employee=s current job does not constitute economically suitable employment, in that the employee is earning significantly less than half of what he was earning at the time of his injury. The employee contends that his current income is clearly insubstantial, in that his post-injury annual earnings are less than $10,000.00, with no fringe benefits, whereas his pre-injury income was $31,102.00 plus benefits. We conclude the that judge applied the correct legal standard.
In Detmar v. Kasco Corp., slip op. (W.C.C.A. Apr. 28, 2000), this court stated, AAs a general rule, a compensation judge=s use of comparison and relativity with respect to the employee=s post-injury earnings or earning capacity when considering the question of whether the employee is permanently and totally disabled is inappropriate@ (emphasis in original). As argued in Detmar, application of a comparison standard would result in disparate treatment under the statute, depending on whether the employee had a high or low pre-injury wage. Moreover, the Jerde case is inapplicable to the issue before us. In Jerde, the supreme court examined the employee=s pre-injury and post-injury wages in determining whether the employee=s post-injury employment was economically suitable with regard to a claim for economic recovery compensation benefits [ERC] under Minn. Stat. ' 176.101, subd. 3p (1994). The issue of economic suitability discussed in Jerde, however, is completely different from the issue of what constitutes insubstantial income for purposes of permanent total disability. With regard to entitlement to ERC, Minn. Stat. ' 176.101, subd. 3e(b), expressly called for a comparison analysis, in order to determine whether the post-injury job produced an economic status Aas close as possible to that the employee would have enjoyed without disability.@ Minn. Stat. ' 176.101, subd. 5, calls for no such comparison. The Jerde analysis is not applicable to a claim for permanent total disability benefits.
Concluding that substantial evidence supports the compensation judge=s determination that the employee=s current earnings are not Ainsubstantial,@ and concluding also that the judge applied the appropriate legal standard for determining permanent total disability, we affirm the decision of the compensation judge.
 Repealed by Laws 1995, c. 231, art. 1 ' 36, & (b), eff. Oct. 1, 1995.