CLARA WENSMAN, Employee, v. ORDER OF ST. BENEDICT/ST. JOHN=S UNIV., SELF-INSURED, adm=d by BRAC, Employer-Insurer/Appellants, and CENTER FOR DIAGNOSTIC IMAGING, ST. CLOUD ORTHOPEDICS, and MEDICARE, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 14, 2004
PERMANENT TOTAL DISABILITY - THRESHOLD; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 5(2). In determining whether an employee has met the statutory threshold of permanent partial disability necessary to qualify for permanent total disability, all ratable permanent impairment included in the total rating need not be related to the work injury and it need not be a factor affecting the employee=s wage loss or ability to work.
PERMANENT TOTAL DISABILITY - JOB SEARCH. A diligent job search is not a necessary prerequisite to a finding of permanent total disability, and a search is not required where medical and vocational evidence in the record sufficiently demonstrates that a job search would be futile, although an employee=s job search may go to the evidentiary weight of her claim that she is totally disabled. Further, the employee=s restrictions on her work search, primarily to accommodate her volunteer work schedule, were not unreasonable, as an employee is not required to dramatically alter a Areasonable and responsible pattern of living@ to remain eligible for workers= compensation benefits.
PERMANENT TOTAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 4. The language of Minn. Stat. ' 176.101, subd. 4, setting the permanent total disability rate as a minimum weekly compensation equal to 65 percent of the statewide average weekly wage, is unambiguous; and there is no provision in the statute for a different minimum rate to be applied to a part-time worker or to a low wage earner.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Respondent. Edward Q. Cassidy, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals from the compensation judge=s award of permanent total disability benefits and from the finding that the employee is entitled to payment of benefits at a compensation rate based upon 65 percent of the statewide average weekly wage. We affirm.
Ms. Clara Wensman, the employee, sustained an admitted work-related injury to her left hip and left shoulder on February 26, 2001. Following that injury, the employee paid medical benefits on behalf of the employee, temporary total disability benefits from February 26, 2001, through December 20, 2002, and permanent partial disability benefits. The subject of this appeal is the employee=s claim for permanent total disability benefits.
In 1976, at the age of 55, the employee began working full-time for the employer in its bakery, and worked there until 1998, when she reduced her hours from full-time to part-time. She continued to work two days per week, eight hours per day, Mondays and Fridays, at an hourly pay rate of $10. On February 26, 2001, at age 79, the employee slipped on the ice as she entered her work site, breaking her left hip and injuring her left rotator cuff. She obtained emergency medical treatment after her fall, including an immediate surgery in the nature of a reduction and fixation surgery on her left hip. On June 18, 2001, the employee underwent a second hip surgery to remove a loose locking screw from her left hip device.
The employee=s work injury resulted in a full thickness tear of the rotator cuff in her left shoulder. On June 18, 2001, at the same time as her second left hip surgery, the employee underwent a subacromial decompression of the left shoulder, but her orthopedic surgeon, Dr. John Geiser, found that the rotator cuff tear was too large and too chronic to be repairable. In July 2003, the employee underwent a second left shoulder surgery to remove a ganglion which had developed and she also underwent a Mumford procedure and a resection of her shoulder joint.
The employee testified that she continues to have some problems with her left hip post-surgery. For example, she is bothered by either sitting or standing for extended periods of time. The employee also continues to note difficulty working with her left arm extended away from her body and has limited lifting capabilities with her left arm. Dr. Geiser eventually imposed a lifting restriction on her left arm of 10 to 20 pounds, with no overhead reaching or repetitive lifting with the left arm.
The employee=s medical history includes a work-related injury at age 60, when she fell while carrying a tray of knives, hitting her head, lacerating her left elbow and bruising her left knee. At age 66, the employee fractured her right hip after falling, and underwent reparative surgery. At age 69, the employee was diagnosed with subacromial bursitis of her right shoulder, for which she received a steroid injection. At age 78, the employee was injured in an automobile accident, and noted neck, upper and low back pain and pain in both knees, for which she received physical therapy and chiropractic treatment. At age 79, prior to her work injury at issue here, the employee underwent bilateral carpal tunnel release surgery. In December 2002, the employee was involved in another automobile accident, and received additional physical therapy and chiropractic treatment for low back pain resulting from that injury.
The employee worked as a homemaker and did not formally enter the job market until age 55. The employee has not returned to work since her work injury in 2001; St. John=s University, the sole employer she has worked for, has been unable to accommodate the employee=s physical work restrictions and, therefore, has not offered her re-employment since her work injury. The employer provided the employee with rehabilitation assistance commencing in March 2001. That assistance initially was comprised of medical management performed by Julie Horak, a qualified rehabilitation consultant (QRC), and began when the employee was rehabilitating at a care center post-surgery. She later was provided with job search assistance by Gary Novitsky, placement vendor, with a goal of obtaining a job in the food service industry. Although the employee contacted potential employers and applied for various positions, she has not received any job offers since her injury.
According to the rehabilitation records and the QRC=s testimony, the employee was selective in the types of employment she was willing to consider. For example, she desired a job paying at least $10 per hour, although she advised her placement vendor that she was flexible on this point and would consider working at a job that paid less. The employee also did not wish to work more than 16 hours per week, the amount of time she worked at the time of her injury. She expressed a preference for working the same two-day work week that she performed at the time of her injury, in order to continue her volunteer work schedule, although she also testified she would discontinue her volunteer activities if she found another job. In the past, the employee has performed numerous volunteer activities, and continues to do so. For example, she assists in catechism classes every other Monday evening, serves lunch to children at her local parish school for approximately two hours on Tuesdays and Wednesdays, provides communion to hospital patients on Thursdays, and works in the Red Cross canteen for approximately four hours on Fridays.
At the referral of her QRC or placement vendor, the employee contacted Experience Works, a social service agency that provides job search assistance and subsidized employment for elderly and disabled individuals in competitive settings; the employee initially chose not to obtain assistance from Experience Works, for two reasons: (1) that agency is set up to work with people looking for 20 or more hours per week, and the employee did not believe she was physically able at that time to work 20 hours per week, and (2) the employee was reluctant to work through this agency as it would require her to disclose personal financial information. The employee later acquiesced to working with this agency, in the hopes of obtaining employment.
On August 1, 2002, the employee filed a claim petition, claiming entitlement to permanent partial and permanent total disability benefits as well as medical expenses. On August 29, 2002, the employer filed a request to terminate rehabilitation assistance, contending that the employee was not cooperating with her rehabilitation assistance, and both matters were consolidated for a later hearing.
In September 2002, Michael Gurda, M.S., QRC, performed an independent employability analysis of the employee. Results from vocational testing showed that the employee, who has an educational background limited to less than eight grades, had the aptitude necessary to perform selective entry level employment. In his report of September 18, 2002, Mr. Gurda concluded that because unskilled jobs were typically strenuous or of a highly repetitive manual nature, the employee=s physical restrictions would Arule her out as a candidate for the types of employment she possess the innate aptitudes to perform.@ Mr. Gurda also concluded that the employee was not competitively employable, and that even if she could locate a job, he questioned whether she could succeed in such a job. After he updated his evaluation in October 2003, Mr. Gurda stated that it remained his opinion that the employee was Apermanently and totally disabled from gainful employment due to a combination of her shoulder and other physical restrictions, limited transferrable skill levels, and absence of jobs matching her vocational profile.@ He also concluded that the employee, at age 82, had the challenge of competing with younger, able-bodied job applicants.
On October 25, 2002, and again on November 11, 2003, Dr. Paul Dworak conducted independent medical examinations of the employee. He concluded that the employee had no restrictions relative to her hip, but that she should restrict her lifting of her left arm to 10-20 pounds, below a horizontal level. He assigned a combined permanency rating of 12% whole body impairment for both her left hip and left shoulder conditions, and concurred with Dr. Geiser that the employee had reached maximum medical improvement from her injuries by December 31, 2001.
On December 6, 2002, Jan Lowe, M.S., C.R.C., conducted an employability evaluation of the employee at the employer=s request. She concluded that the employee was not permanently totally disabled, concluding that there are jobs in the St. Cloud labor market which matched the employee=s vocational and physical functioning. Ms. Lowe identified jobs she believed the employee would be able to perform if she was willing to adjust the hours she would work, for example, by working part-time during more days per week. Ms. Lowe performed a labor market survey in the St. Cloud labor market, and provided a list of potential employers who might be able to provide the employee jobs within her physical work restrictions. The employee testified that she followed up with those employers but received no response from them.
The parties reached a tentative settlement in December 2002, but the employee later rescinded her agreement to that settlement, and requested that her claim be reinstated for an evidentiary hearing. The employee=s claim petition was addressed at a hearing before a compensation judge on December 3, 2003. In her findings and order, the compensation judge awarded the employee=s claim, concluding that she had been permanently totally disabled since February 26, 2001, as a substantial result of her work injury. The compensation judge found that the employee conducted a reasonable and diligent job search, based upon her age, education, work experience, transferrable skills and physical limitations; the judge relied upon the expert vocational opinion of Mr. Gurda in order to reach that conclusion. In conjunction with that finding, the compensation judge also found that the statutory presumption of retirement at age 67 does not apply in this case, as it had been rebutted by the employee=s testimony, her work search efforts and the fact that she was gainfully employed when almost 80 years old, when her work injury occurred. Because the employer already had paid temporary total disability benefits for a period of time, the judge awarded the employer a credit for those payments.
In addition, the judge found that the employee satisfied the permanent partial disability threshold set out in Minn. Stat. ' 176.101, subd. 5(2), which is necessary for a finding of permanent total disability, through a combination of the permanent partial disability she sustained as a result of her work injury: 3% whole body impairment based on her left hip injury and 9% whole body impairment based upon her left shoulder injury, in addition to a non-work-related, 20% whole body impairment rating assessed for her hysterectomy performed in 1967.
The employer has not appealed from the findings of permanent partial disability related to the employee=s left hip and left shoulder condition, but has appealed from the finding that the employee has a 20% permanent partial disability rating due to a non-work-related condition, contending that the employee has not satisfied the statutory permanency threshold. The employer also appeals the overall finding of permanent total disability, and appeals from the order for payment of permanent total disability benefits to be paid at the rate of 65% of the statewide average weekly wage.
The compensation judge found that the employee is permanently totally disabled as a substantial result of her work injury of February 26, 2001. An employee is permanently totally disabled when A[her] physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] to be unable to secure anything more than sporadic employment resulting in an 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). Thus, a determination of permanent total disability has both a vocational and a medical component. McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). In addition, a determination of permanent total disability also requires a certain level of permanent partial disability, as outlined in Minn. Stat. ' 176.101, subd. 5.
The employer appeals from the compensation judge=s finding that the employee is permanently totally disabled, and specifically argues that the employee has not satisfied the statutory threshold necessary for a finding of permanent total disability status, that the employee conducted an inflexible job search with self-imposed restrictions and that she is physically capable of working.
1. Permanent Partial Disability Threshold
In order to reach her determination of permanent total disability status, the compensation judge first analyzed whether the employee had satisfied the statutory threshold of permanent partial disability necessary to qualify for permanent total disability benefits. In determining whether an employee has met the statutory threshold, all ratable permanent impairment need not be related to the work injury and it need not be a factor affecting the employee=s wage loss or ability to work. Frankhauser v. Fabcon Inc., 57 W.C.D. 239, 250-252 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997); see also Makowsky v. St. Mary=s Medical Center, 62 W.C.D. 409, 415-419 (W.C.C.A. 2002); Shelton v. National Painting & Sandblasting, 61 W.C.D. 230, 244-245 (W.C.C.A. 2000). Because Clara Wensman is over the age of 55, and does not have a high school diploma or GED, she meets the statutory threshold for permanent total disability benefits if she has a 13% total permanent partial disability. See Minn. Stat. ' 176.101, subd. 5(2)8). The compensation judge found that the employee sustained a total of 11.7% permanent partial disability of the whole body as a result of her work injury, a finding which has not been appealed. Thus, she only needed another 1.3% permanent partial disability in order to meet the statutory threshold, and the compensation judge found that her non-work-related permanency provided the additional rating necessary to meet the statutory threshold.
The compensation judge accepted Dr. Wengler=s rating as to the level of the employee=s non-work-related permanency, and found that the employee had sustained a 20% permanent partial disability rating as a result of a hysterectomy she underwent at age 46.
The employer argues that the 20% rating applies only to a pre-menopausal hysterectomy, and that based on the employee=s age of 46 at the time of her hysterectomy surgery, that surgery was post-menopausal. The employer=s argument about the employee=s status, which apparently is based solely on her age, is without merit, as it is speculative and factually unsupported in the record. In any event, even if the employee=s hysterectomy was considered to be post-menopausal, and we see no evidence of that conclusion in the record, a post-menopausal hysterectomy would qualify the employee for a 5% rating under Rule 5223.0600, subp. 10A(3), which still would provide the employee with a cumulative permanency rating in excess of the 13% statutory threshold. It is not necessary to a permanency rating determination that there be a medical opinion assigning the employee the specific rating in question, Jensen v. Best Temporaries, 46 W.C.D. 498, 500-501 (W.C.C.A. 1992), and, in this case, the record clearly supports a rating of 5% whole body impairment under Minn. R. 5223.0600, subp. 10A(3).
The employer also argues that the 20% rating should not be included in the employee=s cumulative permanency rating, since that rating was ascertainable before the employee began work for the employer, and therefore the employee would have already reached the requisite permanency threshold by the time of her work injury. Again, this argument has no basis in the law. As this court decided in Metzger v. Turck, Inc., 59 W.C.D. 229 (W.C.C.A. 1999), a functional impairment rating arising out of a prior condition can be included in determining whether an employee has met the permanent partial disability threshold even when that rated condition is not associated with any work restrictions or limitations. That holding is applicable to the present case. We affirm the compensation judge=s finding that the employee has satisfied the statutory threshold requirement of 13% permanent partial disability, through a combination of her work-related permanency rating of 11.7% and her additional permanent partial disability sustained due to a non-work-related condition.
2. Job Search
The employer appeals from the compensation judge=s finding that the employee conducted a reasonable and diligent job search. Although the compensation judge considered that factor when reaching her conclusion that the employee is permanently totally disabled, a diligent job search is not a necessary prerequisite to a finding of permanent total disability, and a search is not even required where other evidence in the record establishes the disability, for example, when the medical and vocational evidence sufficiently demonstrates that a job search would be futile. See Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879, 47 W.C.D. 136, 142 (Minn. 1992); Scott v. Southview Chevrolet Company, 267 N.W.2d 185, 188-189, 30 W.C.D. 426, 432 (Minn. 1978) (citations omitted). See also Atkinson v. Goodhue County Co-op Electric Ass=n, 55 W.C.D. 150, 160, summarily aff=d (Minn. Sept. 23, 1996) (AThere is no requirement that an injured employee affirmatively seek and be denied employment where such a search would be futile. The fact that the employee did not seek post-injury employment goes only to the evidentiary weight of his claim that he is totally disabled.@) (citations omitted). Where the evidence establishes that, because of the employee=s age, disability, and lack of training, the employee is unemployable, no evidence of a job search need be presented. Olson v. Boise Cascade Corp., slip op. (W.C.C.A. Apr. 2, 2002).
In addition, where, as here, the employee has worked with a QRC and placement vendor and had a rehabilitation plan in effect, the focus is less on the actual job search by the employee than on whether the employee made a good faith effort to cooperate with the rehabilitation plan. Boeder v. Minnesota DNR, slip op. (W.C.C.A. Aug. 7, 2003); Johnson v. Inver Grove Ford, slip op. (W.C.C.A. Aug. 20, 2002); Dzuik v. University of Minnesota, slip op. (W.C.C.A. Mar. 15, 1999). In this case, the employee conducted a job search, initially with the assistance of a QRC and placement specialist, and on her own thereafter once rehabilitation services were discontinued. It is undisputed that the employee was selective about the types of jobs she would consider, and the employee=s QRC also acknowledged that there would have been more jobs available to the employee had she been more flexible about her hours and days of work. For example, the placement specialist=s report of March 4, 2002, states that he and the QRC discussed with the employee the potential difficulty in finding an 8-hour per day job where she would only work 2 days per week, and also presented to her the possibility of working in light food preparation as in a sandwich shop, but the employee responded that she thought that would be a big step down from her previous position for the employer, and that she wanted to try to maintain a job with some degree of management responsibility. However, the QRC also testified that the employee initially lacked an understanding of job log and application requirements, and that after discussions were held at an administrative conference to clarify those issues, the employee cooperated with rehabilitation.
The employer contests this assertion, arguing that the employee conducted an inflexible job search with self-imposed requirements, including a refusal to work more than two days per week and a limitation to working only in food handling and preparation jobs. The employer argues that all the vocational experts who have worked with or evaluated the employee have determined that the employee imposed several barriers on her job search, none of which were related to age, physical restriction or education. The employer argues that the employee has limited her job search in order to perform her chosen volunteer work, and, while that volunteer work is commendable, it also demonstrates the employee=s physical capability to perform productive work. The employer argues that the employee is active and able to perform work, and therefore Ashould not be awarded permanent total disability benefits because she chooses not to pursue and secure a paid position.@ (Er. Brief, p. 11.) We are not persuaded.
The compensation judge addressed the employee=s selectivity in her job search. The judge acknowledged that the employee was only willing to work two days per week, in food handling and preparation. The judge found that the employee=s restrictions on her work search, primarily to accommodate her volunteer work schedule, were not unreasonable, as she was Anot required to dramatically alter a reasonable and responsible pattern of living to remain eligible for benefits.@ (Memo, p. 5.) See Weiss v. State, Bemidji State University, slip op (W.C.C.A. Sept. 17, 1996). In her memorandum, the compensation judge also advised that she had not ignored the employee=s ability to do volunteer work in reaching her conclusion on the employee=s permanent total disability status, but concluded that the volunteer activities did not provide a useful measure of the employee=s ability to find and hold a job in the competitive labor market. The testimony presented by vocational expert Gurda supports this finding.
The compensation judge also found the employee credible when she testified that she would change or discontinue her volunteer work if she found an appropriate job. The employer contends that this testimony is not supported by information in the rehabilitation records. However, assessment of the credibility of a witness is the unique function of the trier of fact, Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), and it is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). We will therefore defer to the compensation judge=s assessment of the employee=s credibility on the issue of her willingness to discontinue her volunteer work if needed.
The record available for the compensation judge=s review included the employee=s medical records, rehabilitation records documenting the rehabilitation assistance she received from her QRC and placement vendor, the independent vocational opinions prepared by Michael Gurda and Jan Lowe, and testimony by the employee, her QRC, Ms. Lowe, Mr. Gurda, Dr. Dworak and Dr. Wengler. Based on that evidence, the compensation judge concluded that the employer had no position for the employee within her restrictions, that the employee has been motivated to return to work since her injury, and that the employee=s job search was reasonable and diligent in view of the employee=s age, education, work experience, transferrable skills and physical limitations. The compensation judge concluded that,
Standing alone, the restrictions imposed by Dr. Geiser may not seem terribly severeB10 to 20 pounds lifting and avoid lifting above the horizontal with the left arm. Those restrictions, however, must be placed in their vocational context. The restrictions apply to a woman who is 82 years old, with an 8th grade education, few transferable skills and a reasonably established work routine at the time of injury of two days per week. The fact that her date of injury employer could not find work for her due to restrictions associated with the February 26, 2001 work injury does not bode well for her prospects of finding work in the outside labor market. This fact alone, given the employee=s overall vocational situation, strongly suggests the employee=s re-employment elsewhere is highly unlikely. The fact that her personal job search efforts failed to yield even one actual job offer is also telling. These facts coupled with Mr. Gurda=s opinion form the basis for my conclusion the employee is permanently totally disabled.
Substantial evidence of record supports the compensation judge=s findings that the employee is permanently totally disabled as a substantial result of her work-related injury. We therefore affirm. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
3. Determination of Compensation Rate
On the date of the employee=s injury, she earned a weekly wage of $140.74. The compensation judge ordered payment of permanent total benefits at the rate of 65% of the statewide average weekly wage, subject to a reduction for the social security benefits the employee is paid. That level of compensation is provided for in Minn. Stat. ' 176.101, subd. 4, which states:
Subd. 4. Permanent total disability. For permanent total disability, as defined in subdivision 5, the compensation shall be 66-2/3 percent of the daily wage at the time of the injury, subject to a maximum weekly compensation equal to the maximum weekly compensation for a temporary total disability and a minimum weekly compensation equal to 65 percent of the statewide average weekly wage.
If the employee=s compensation rate were to be calculated on the basis of 66-2/3 of her wage at the time of her injury, her compensation rate would calculate to $93.82. Because that rate is lower than the specified minimum weekly compensation rate, the compensation judge ordered benefits to be paid at the rate of 65% of the statewide average weekly wage.
The employer appeals, arguing that based upon the employee=s part-time employment, and her weekly wage of $140.74, the employee is not entitled to payment of permanent total disability benefits at a statutorily-provided minimum weekly compensation equal to 65% of the statewide average weekly wage. The employer argues that A[a]llowing such a ruling to stand would result in an inflated compensation rate and in effect a >bonus= for the Employee rejecting positions in the workforce that were appropriate for her. It is unlikely that the legislature intended this result.@ The employer asks this court, in its de novo review, to analyze the intention of the legislature in adopting this statutory provision and its applicability in a circumstance such as this. The employer apparently contends that statute, Minn. Stat. ' 176.101, subd. 4, is ambiguous and therefore subject to interpretation. We are not persuaded.
Minn. Stat. ' 645.16 provides that A[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions;@ and A[w]hen the words of the law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.@ Moreover, pursuant to Minn. Stat. ' 645.08(1), words and phrases are to be construed according to their plain meaning, and we must be guided by the presumption that the legislature dos not intend an absurd or unreasonable result. Minn. Stat. ' 645.17(1); Owens v. Water Gremlin Co., 60 W.C.D. 16, 28 (W.C.C.A. 1999).
The language at issue in this case, Minn. Stat. ' 176.101, subd. 4, is unambiguous; there is no provision in the statute for a different minimum rate to be applied to a part-time worker or to a low wage earner. We therefore must interpret the statute according to its plain meaning; we need not attempt to ascertain the legislative intent behind allowing a minimum compensation rate. We find no basis for the employer=s argument that the legislature could not have intended this statutory minimum to apply to a part-time worker like the employee in this case. We conclude that the compensation judge did not err in awarding permanent total disability for benefits to be paid at a minimum weekly compensation rate equal to 65% of the statewide average weekly wage, subject to a reduction for social security benefits received by the employee. We affirm that order.
The compensation judge=s decision is affirmed in its entirety.
 The employer submitted a labor market survey into evidence, which profiled some recent job opportunities that potentially would be available to the employee, including positions as a fast food crew member, security guard, deli worker, nutrition services aide, food preparer, performer/singing telegram delivery, and cashier. Those jobs offered earnings at $6.00/hour and above.
 See Minn. Stat. ' 176.101, subd. 4.
 Minn. Stat. ' 176.101, subd. 5, states, in part, as follows:
Subd. 5. Definition. For purposes of subdivision 4, Apermanent total disability@ means only:
* * *
(2) any other injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee must also meet the criteria of one of the following clauses:
(a) the employee has at least a 17 percent permanent partial disability rating of the whole body;
(b) the employee has a permanent partial disability rating of the whole body of at least 15 percent and the employee is at least 50 years old at the time of injury; or
(c) the employee has a permanent partial disability rating of the whole body of at least 13 percent and the employee is at least 55 years old at the time of the injury, and has not completed grade 12 or obtained a GED certificate.
For purposes of this clause, Atotally and permanently incapacitated@ means that the employee=s physical disability in combination with any one of clause (a), (b), or (c) causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Other factors not specified in clause (a), (b), or (c), including the employee=s age, education, training and experience, may only be considered in determining whether an employee is totally and permanently incapacitated after the employee meets the threshold criteria of clause (a), (b), or (c). The employee=s age, level of physical disability, or education may not be considered to the extent the factor is inconsistent with the disability, age, and education factors specified in clause (a), (b), or (c).
 Dr. Wengler assigned a 20% permanent partial disability rating under Minn. R. 5223.0600, subp. 10C(3), which refers to Aanatomic or complete functional loss of the cervix or uterus in the premenopausal years.@
 Minn. R. 5223.0600, subp. 10A(3), refers to Aanatomic or complete functional loss of the cervix or uterus in the postmenopausal years.@
 This court has addressed various situations in which an employer has asserted that an employee could be required to substantially alter his or her pre-injury work schedule. See, e.g., Scheidt v. Metropolitan Council, slip op. (W.C.C.A. Nov. 2, 2001) (compensation judge properly found that night shift job would dramatically alter a reasonable and responsible pattern of living where the employee preferred to work the day shift and only worked night shift 1-2 days per week prior to injury); Solem v. Sysco Minnesota, 54 W.C.D. 423, 431 (W.C.C.A. 1996) (employee who formerly worked part-time not expected to accept physically appropriate full-time work); Hillyer v. Jesco, Inc., slip op. (W.C.C.A. Jan. 18, 1994) (employee who formerly worked weekdays not expected to accept job involving some night and weekend shifts); Punt v. Bayliner Marine Corp., 44 W.C.D. 372, 375 (W.C.C.A.1990) (employee who formerly worked day shift not expected to accept night shift work), summarily aff=d (Minn. Apr. 18, 1991); Riley v. Chuck Meuer=s Restaurant, slip op. (W.C.C.A. Mar. 14, 1990) (employee who formerly work part-time night shift not expected to accept full-time day job).