RITA HAMANN, Employee/Appellant, v. ADVANCED CIRCUITS, and TRAVELERS INS. CO., Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN./BLUE PLUS, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 17, 2005
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. The compensation judge made specific findings regarding medical care provided to the employee between December 1999 and May 2004, and substantial evidence, including expert medical and vocational testimony, supports the compensation judge=s determination that the employee was not permanently and totally disabled.
Determined by: Johnson, C.J., Pederson, J., and Wilson, J.
Compensation Judge: Ronald E. Erickson
Attorneys: Friedrich A. Reeker, Minneapolis, MN, for the Appellant. Kenneth B. Huber, John G. Ness & Associates, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s denial of her claim for permanent total disability benefits. We affirm.
Rita Hamann, the employee, sustained a personal injury to her low back on June 9, 1995, while working for Advanced Circuits, the employer, then insured by Travelers Insurance Company. The employee earned a weekly wage of $554.11. The employer and insurer admitted liability for the employee=s personal injury.
Dr. John Dowdle performed a spinal fusion at L4-5 and L5-S1 in November 1995. The surgery was not successful and in April 1996, Dr. Dowdle performed a facet fusion at L4-5. Following the surgeries, the insurer paid the employee for a 20 percent permanent partial disability of the whole body.
The employee returned to work for the employer in October 1996, but resigned from this position in September 1998. She began working at Kuehn Roofing as a secretary in January 1999, working approximately three hours a day, every other day, up to 15 hours per week. The employee filed a claim petition seeking temporary partial disability benefits. In a Findings and Order, served and filed November 30, 1999, a compensation judge denied the employee=s claim, concluding the employee had voluntarily limited her work hours. In a decision filed May 12, 2000, a panel of this court affirmed the compensation judge=s decision.
The employee left the job at Keuhn Roofing on May 15, 2001. In December 2001, the employee obtained a job with Volunteers of America at the Anoka Care Center working as a nurses aide, 20 hours per week. She left this job in June 2002 and attended Anoka-Ramsey Community College for two semesters taking the prerequisites for a registered nursing degree. The employee did not complete the program and has not returned to work since June 2002. In August 2003, Mr. and Mrs. Hamann moved to Conroe, Texas, a community north of Houston, where they reside for nine months of the year, spending the summers in Minnesota.
The employee came under the care of Dr. David P. Dorn, a neurologist, in December 1999. The doctor diagnosed low back pain, paresthesias and pain in the lower extremities resulting from the employee=s work injury and surgeries, together with depression. The doctor stated the etiology of the dysesthesias in the lower extremities was unclear and did not fit any definite radicular or dermatomal pattern. Dr. Dorn prescribed exercises and medication. The employee periodically received treatment from Dr. Dorn or his nurse practitioner. In April 2001, Dr. Dorn felt it appropriate for the employee to try to work five or six hours a day, up to 20 hours a week, but not on consecutive days. The doctor ordered an MRI scan of the lumbar spine that showed the surgical BAK cages and hardware with no evidence of nerve root impingement, nerve compression or arachnoiditis.
Dr. Dorn referred the employee to Ronald M. Tarrel, DO, who examined the employee in May 2001. Dr. Tarrel noted the employee was then taking Trazodone, Neurontin, Prozac and Lorcet. Dr. Tarrel=s examination was essentially normal with some persistent subjective paresthesias and tenderness in the lower left leg, but with no evidence of incoordination or abnormal gait. The doctor felt the employee might do well with some myofascial therapy or a low back rehabilitation program.
Dr. Dorn reexamined the employee in September 2001 and continued her work restrictions. In March 2002, the doctor changed the employee=s work restrictions allowing her to work eight hours a day but not on consecutive days or more than two days a week. The doctor stated the employee should lift less than 10 pounds and should minimize repetitive bending or prolonged fixed postures and be able to change positions as needed. In July 2002, Gretchen Heidler, Dr. Dorn=s nurse practitioner, took the employee off work due to increasing, unmanageable pain. In October 2002, Dr. Dorn confirmed the employee was unable to work.
By report dated September 29, 2003, Dr. Dorn stated the employee has had Along standing problems with lower back pain dating back to an injury which occurred in 1995. In addition to lower back pain, she had a variety of associated symptoms, including pain and numbness in the lower extremities and bowel and bladder incontinence as well as depression.@ (Ee. Ex. 1.) The doctor stated these symptoms were permanent and opined the employee was permanently and totally disabled. Dr. Dorn reexamined the employee on May 18, 2004. The employee then stated her condition was getting progressively worse with more back pain and left thigh pain. On examination, Dr. Dorn noted tenderness to palpation in the low back with limited range of motion but no definite muscle spasm. Muscle tone and strength were normal with no evidence of atrophy and reflexes and gait was normal. Dr. Dorn=s diagnosis remained unchanged and the doctor stated he did not feel he had a lot else to add.
Dr. Paul Cederberg examined the employee on March 11, 2003, at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed the relevant medical records, and performed a physical examination. During his examination, Dr. Cederberg testified he noted inconsistencies which made him wonder whether the employee was malingering or had some sort of psychological disease that manifested itself during his examination. Dr. Cederberg diagnosed degenerative disc disease, status post L4-5 and L5-S1 anterior fusion and posterior L4-5 facet fusion, subjective complaints out of proportion to objective clinical findings and a history of depression. The doctor reported the employee complained of numbness in her legs and feet which did not fit any nerve root distribution and complained of a right foot throb which was never documented in the medical records. The doctor concluded the employee had a solid fusion at L4-5 and L5-S1 anteriorly with some lack of fusion of the bone grafts posteriorly. However, the doctor did not feel there would be any motion at the lumbar segments at the fusion site, nor did he find any nerve root impingement or evidence of stenosis that would explain any radicular symptoms. The doctor opined the employee could perform light sedentary work eight hours a day.
Richard VanWagner performed a vocational evaluation of the employee in May 2004, prepared a written report and testified at the hearing. Mr. VanWagner obtained a history from the employee, administered six vocational tests and assessments and reviewed the employee=s relevant medical records. Mr. VanWagner concluded the employee had been permanently and totally disabled since October 1, 2003. He noted that while the employee Aappears to be an intelligent person with good achievement in math and modest proficiency in keyboarding, she is not able to sustain functional positions in order to use her learning ability, aptitudes, and achievement levels in anything other than insubstantial, sporadic vocational activity.@ (Ee. Ex. 21.) Mr. VanWagner opined the employee made a diligent effort to attempt to return to work by seeking and finding part-time work and learning new skills. Mr. VanWagner stated that although jobs existed in Texas and the Twin Cities area for which the employee was qualified, she would be incapable of sustaining gainful employment were she hired. Accordingly, Mr. VanWagner testified it would have been futile for the employee to perform a job search after October 1, 2003.
Jan Lowe, a qualified rehabilitation consultant, conducted a vocational assessment of the employee in May 2004, prepared a report of her findings and testified at the hearing. As part of her evaluation, Ms. Lowe obtained a history from the employee, reviewed her medical records, performed certain vocational tests and performed a labor market survey for the Twin Cities metropolitan area and for Conroe, Texas, and the surrounding area for the period August 2003 through April 2004. Based upon the restrictions established by Dr. Cederberg, Ms. Lowe placed the employee into a light, sedentary work category. She concluded the employee had transferrable skills in the areas of office tasks, some inspection work, supervision and machine setup. Based upon the labor market survey she conducted, Ms. Lowe opined that between August 2003 and April 2004, there were job opportunities in both labor markets which the employee was vocationally and physically capable of performing. These jobs included telephone interviewer, administrative, clerical, phone center associate, receptionist and administrative assistant. Finally, Ms. Lowe opined that had the employee performed a job search, there was a reasonable likelihood that she could obtain employment in one of the enumerated positions.
The employee filed a claim petition seeking permanent total disability benefits. In a Findings and Order, served and filed August 27, 2004, the compensation judge found the employee had been able, since October 2003, to work in a light and sedentary type of employment on a full-time basis and denied the employee=s claim for benefits. The employee appeals.
The employee argues the compensation judge failed to consider the Schulte factors in deciding her claim, and failed to consider her work and job search efforts prior to October 2003. Further, the employee contends the compensation judge based his decision upon the record as it stood at the time of the October 1999 hearing. Finally, the employee asserts the compensation judge=s decision is not supported by substantial or credible evidence and should be reversed.
The compensation judge found there had been little, if any, change in the employee=s condition since the previous hearing, and concluded the employee had essentially the same symptoms and problems in 2003 as she did in October 1999. In reaching this conclusion, it is evident the compensation judge considered all of the employee=s treatment records following the 1999 hearing. In findings 12, 13, 14, 15, 16, 17, 18 and 21, the compensation judge made specific findings regarding the treatment provided to the employee between December 1999 and May 2004. There is no basis to conclude the compensation judge ignored the evidence.
Minn. Stat. ' 176.101, subd. 5(a)(2), defines permanent total disability as any Ainjury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@ Totally and permanently incapacitated Ameans that the employee=s physical disability . . . causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ In determining whether an employee is totally and permanently incapacitated, the court may consider non-medical factors including the employee=s age, education, training and experience. Minn. Stat. ' 176.101, subd. 5(b).
Dr. Dorn and Mr. VanWagner opined the employee was permanently and totally disabled. Dr. Cederberg, on the other hand, opined the employee could perform light, sedentary work eight hours a day. The compensation judge accepted the opinion of Dr. Cederberg. It is the compensation judge=s responsibility as the trier of fact to resolve conflicts in medical expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Based upon the restrictions set by Dr. Cederberg, Ms. Lowe placed the employee in the light, sedentary work category. She concluded the employee had transferable skills in the areas of office tasks, some inspection work, supervision and machine setup. Clearly, Ms. Lowe did consider the employee=s education, training and experience. Based upon two labor market surveys, Ms. Lowe opined there were opportunities in the Minnesota and Texas relevant labor markets for jobs that the employee was vocationally and physically capable of performing. This testimony supports the compensation judge=s conclusion that the employee was not totally and permanently incapacitated within the meaning of the statute. Accordingly, the compensation judge=s decision is affirmed.
 Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).