WILLIAM J. ANSTETT, Employee, v. UNITED RENTALS, and ST. PAUL COS./CAMBRIDGE INTEGRATED SERVS., Employer-Insurer/Appellants, and SUBURBAN RADIOLOGIC CONSULTANTS, LTD., PRIMARY BEHAVIORAL HEALTH CLINIC, and MAPS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 18, 2006
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including lay testimony, medical and vocational records, and expert opinion, supported the finding that the employee was permanently totally disabled.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: James E. Lindell, Lindell & Lavoie, Minneapolis, MN, for the Respondent. Richard L. Plagens, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee is permanently and totally disabled. We affirm.
William Anstett was picking up traffic cones in his job for United Rentals when he sustained a low back injury on April 4, 2000. Ultimately, the employee had a two-level fusion surgery done by Dr. James Ogilvie in December 2001. The employer and insurer accepted liability for the employee=s work injury and, by the time of the hearing in November 2005, had paid 104 weeks of temporary total disability benefits and 20% permanent partial disability of the body for the spine surgery.
Issues for determination at the hearing were the employee=s claim for permanent total disability benefits from and after December 19, 2002, the employee=s claim for permanent partial disability related to depression, and the question of payment for medical expenses. In his Findings and Order of November 28, 2005, the compensation judge denied the claim for permanent partial disability due to depression, ordered payment of the medical bills in dispute and determined that the employee was permanently totally disabled and had been so disabled since December 19, 2002. The employer and insurer appeal from the award of permanent total disability benefits.
The employee was born on July 6, 1955, making him 44 years old on the date of injury and 50 years old on the date of hearing. The employee completed the 10th grade. He was in prison in the 1990's and, while incarcerated, completed a couple of college courses. The employee=s work history was limited to general labor and he had no transferable work skills. The employee began receiving statutory rehabilitation services in December 2000, and since that time has worked with QRC Michael Stern.
The employee=s healing from his lumbar surgery was slow and his rehabilitation file was in medical management status for some time. On December 18, 2002, one year after surgery, Dr. Ogilvie indicated that the anterior portion of the fusion had not healed and he recommended a pain management program. The employee completed the program at the Vinland Center in February 2003. The employee was released to return to work part-time at a sedentary level. The QRC discussed with the employer the possibility of light-duty work but no job offer was made at that time because Dr. Ogilvie was considering revision surgery.
On July 30, 2003, the employee returned to work at a light-duty job with the employer. He worked four hours a day on non-consecutive days. His assignment was to check batteries in traffic warning lights and to do some related maintenance tasks. The job was approved by Dr. Ogilvie. On October 8, 2003, Dr. Ogilvie indicated that the employee could increase his hours if it was for sedentary work. The employee=s light-duty job was seasonal and he was laid off in December 2003.
Also in December 2003, the employee=s care was assumed by Dr. Daryll Dykes, an orthopedist at Dr. Ogilvie=s office. Dr. Ogilvie had retired. Dr. Dykes concluded that the employee had a pseudoarthrosis at both the L4-5 and L5-S1 levels. Dr. Dykes recommended additional diagnostic studies, but since the employee was released to return to work full time in sedentary work, and since the employee was not working, the QRC initiated job placement. The placement person looked for jobs in the areas of car runner or parking lot attendant. On April 20, 2004, Dr. Dykes clarified the employee=s work restrictions, indicating that the employee was allowed to work two to four hours a day, three days per week. The employee was to avoid bending and twisting and could lift or carry up to 25 pounds occasionally. The employee returned to work in April 2004, delivering pizzas for Pizza Hut four hours a day every other day.
On April 6, 2004, the employee was evaluated at the request of the employer and insurer by Dr. Mark Engasser. Dr. Engasser agreed with the diagnosis of Dr. Dykes and agreed that the employee might need further surgery because of the pseudoarthrosis. In the meantime, however, Dr. Engasser was of the opinion that the employee was capable of full-time work with a lifting limit of 15 pounds. The employer offered the employee work within Dr. Engasser=s restrictions. The employee quit his job with Pizza Hut and returned to work with the employer on the part-time schedule set by Dr. Dykes. The employee returned to his previous light-duty job of maintaining warning lights. At the request of the insurer, job placement activities ceased.
On July 20, 2004, the employer offered the employee full-time work and the employee returned to full-time work. Some time before November 19, 2004, the employee reduced his hours to six hours a day, three days a week with the consent of the employer. The employee advised the QRC that he thought his condition was worsening. The employee was laid off by the employer on November 25, 2004. Thereafter, the QRC recommended instituting placement services again. Initially the parties disputed who the placement vendor should be, and, in April 2005, placement stopped because the insurer advised the QRC that the employer had work available for the employee again. The employee applied with the employer but was denied reemployment, apparently on the basis of his criminal history. Placement activities began again and about a week before the hearing, the employee returned to work as a pizza delivery driver, working 10 to 12 hours a week.
John Richardson performed an independent vocational evaluation at the request of the employer and insurer on July 25, 2005. Mr. Richardson also testified at the hearing. It was his opinion that the employee was not permanently totally disabled. Mr. Richardson believed that a functional capacities assessment should be done to determine precise limitations, and he thought that the employee should be able to move into full-time employment. Mr. Richardson testified that the employee=s job search efforts to date had been unfocused and that a proper job search was necessary to return the employee to gainful employment. In his report, Mr. Richardson stated “when working with an individual who is 50 years of age and who has significant vocational problems such as substance abuse, felony convictions, and physical limitations, it would be important for job search to be focused, methodical and tenacious as opposed to randomly attempting to find a job.”
QRC Stern also testified at the hearing. It was his opinion, based upon his work with the employee, that the employee was permanently totally disabled.
On appeal, the employer and insurer argue that substantial evidence does not support the compensation judge=s determination that the employee is permanently totally disabled. According to the employer and insurer, it is premature to reach that conclusion until a functional capacities assessment has been done which would be followed by the focused job search referenced by the IVE, Mr Richardson. Not until these steps were taken and proven to be unsuccessful should permanent total disability be considered. We are not convinced.
The argument made by the employer and insurer on appeal is the same argument made to the compensation judge at hearing and considered at that time. After considering all of the evidence presented by the parties, the compensation judge determined that the weight of the evidence supported a finding of permanent total disability. The question for this reviewing court is not whether the evidence could have supported a contrary result but whether substantial evidence supports the compensation judge=s decision. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
As the parties point out in their briefs, the question of permanent total disability is made up of both medical and vocational factors. McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). The usual definition is taken from Schulte v. C. H. Peterson Constr. Co., 278 Minn 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). The question is whether the employee=s age, education, and work experience when combined with restrictions from the work injury, cause the employee to be unable to secure anything more than sporadic employment resulting in insubstantial income.
The parties are in agreement that the employee has significant barriers to employment in his background: his age, work experience consisting of general labor with no transferable skills, a history of incarcerations for felonies, and a history of drug abuse. In addition, the employee has a significant barrier to employment in his medical condition. He has a failed two-level lumbar fusion. Although there was discussion at one time of revising the surgery, there are no references to possible surgery in the recent records, and the employee=s current care appears to be aimed at pain management.
At present, the employee=s treating doctors have released him to work no more than three hours a day, every other day. The opinion of the employer and insurer=s IVE is predicated on an assumption that the employee is capable of employment on a full-time basis. Although Dr. Ogilvie did consider a release to work full-time at a sedentary level, his final restriction before turning the case over to Dr. Dykes was to limit the employee to part-time work. Dr. Dykes has never released the employee to full-time work. When the employee attempted full-time work for the employer, he was not successful and reported to his QRC that his condition worsened. The compensation judge also had opportunity to consider the testimony of the employee and his wife concerning the difficulty the employee had with very light physical activity in his daily life. The compensation judge also had opportunity to consider the testimony of Mr. Stern, the QRC who had worked with the employee for almost five years. Given the evidence, we are unable to say that the compensation judge erred in not accepting the IVE opinion.
We conclude that substantial evidence supports the compensation judge=s determination. The decision of the compensation judge is affirmed.
 There was no appeal of the compensation judge=s finding that the employee has not sustained permanent partial disability for his psychological condition as the result of his work injury.