STEVEN J. COZZI, Employee, v. UNIVERSITY OF MINN., SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT., Employer/Appellant, and ST. MARY=S DULUTH CLINIC HEALTH SYS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 7, 2006
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee was permanently and totally disabled, despite the employee=s failure to look for work.
Determined by Wilson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Nancy Olson
Attorneys: Louis A. Stockman, Petersen, Sage, Graves & Stockman, Duluth, MN, for the Respondent. Kathleen S. Bray, Hanft Fride, Duluth, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision that the employee is permanently and totally disabled. We affirm.
The employee was born in 1949. He left high school after completing the tenth grade, and he never obtained a GED. His employment history consists primarily of jobs involving heavy physical labor, including tree service, construction, and railroad labor.
In 1984, the employee began a full-time janitorial job at the University of Minnesota [the employer] in Duluth. His job duties included stripping and waxing floors, moving furniture, cleaning windows, and other typical maintenance work. Medical records indicate that the employee was treated for bilateral knee pain, diagnosed as Ahousemaid=s knee@ or bursitis, along with a Baker=s cyst, in the early 1990's. He was advised to use knee pads, and he continued to perform his usual work. Other complaints noted in the employee=s treatment records include periodic episodes of back pain, repeated respiratory infections, chronic bronchitis, gastric reflux, ulcers, and episodes of depression.
On August 21, 2001, the employee sustained an admitted work-related injury to his right knee when he missed a step backing down a staircase while mopping. An MRI scan performed two days later disclosed an extensive tear of the medial meniscus, a complete tear of the anterior cruciate ligament [ACL], prominent joint effusion, and a prominent Baker=s cyst. About two months after that, on October 19, 2001, the employee underwent an arthroscopic procedure, consisting of ACL reconstruction, a partial medial meniscectomy, and a medial chondroplasty. A second surgery was performed on May 20, 2002, in the nature of a chondroplasty of the medial and patellofemoral joint and removal of a lesion in the infrapatellar region. Following his recovery from this procedure, in December of 2002, the employee returned to his job with the employer on a work-hardening basis. However, his job duties aggravated his right knee pain, and he was taken off work again in April of 2003. In the summer of 2003, the employee began receiving psychological counseling from Dr. Paul Remark, who diagnosed adjustment disorder, mixed anxiety, and depression. The employee underwent a third right knee procedure, on September 25, 2003, consisting of another partial lateral meniscectomy, plicectomy and tricompartmental chondroplasty and debridement.
On December 17, 2003, the employee slipped on some ice at a funeral, injuring his left knee and apparently aggravating his right knee as well. Diagnostic tests eventually disclosed a torn medial meniscus and moderate to advanced osteoarthritic changes in the employee=s left knee. Surgery was recommended but not performed because of a dispute over liability for the left knee injury. With respect to the right knee, an MRI scan performed on February 2, 2004, disclosed an intact ACL repair but also a tear of the posterior horn of the lateral meniscus.
In the summer of 2004, the employee was released to sedentary work, but the employer could not accommodate his restrictions. The employee=s rehabilitation plan apparently called for a return to work with the employer and was never amended to include consideration of alternative employment. For this reason, and because he believed that no one would consider hiring him given his knee condition, the employee never looked for other jobs. Eventually, effective April of 2005, the employee was approved for social security disability benefits. The following month, he took a basic keyboarding class at the employer=s request. He completed the course; however, he testified that he had to take five or six 15-minute breaks during each three-hour class session, because the necessary sitting hurt his knees so much. Both the employee and his wife testified that he experienced debilitating knee pain in the evenings following classes. The employee also testified that the 10-mile drive to school aggravated his symptoms.
The employee filed a claim petition alleging entitlement to permanent total disability benefits, and the matter came on for hearing before a compensation judge on June 14, 2005. At that time, the employer admitted that the employee had sufficient permanent partial disability to satisfy Minn. Stat. ' 176.101, subd. 5, but they denied that the employee was permanently totally disabled, arguing in part that a finding of permanent total disability was premature given the employee=s failure to search for alternate work. Witnesses at hearing included the employee; the employee=s wife; Wende Morrell, the employee=s QRC; two of the employee=s coworkers; and Richard Van Wagner, the employer=s independent vocational expert. Other evidence submitted at hearing included the employee=s extensive treatment records and reports from Dr. Lynn Quenemoen, one of the employee=s primary treating physicians; Dr. Remark, the employee=s psychologist; Dr. Marvin Logel, the employer=s independent psychological examiner; Dr. Larry Stern, the employer=s independent medical examiner; Dr. William Fleeson, the employee=s independent medical examiner, and Kandise Garrison, the employee=s independent vocational expert.
In a decision issued on September 12, 2005, the compensation judge concluded that the employee had been permanently and totally disabled since December 17, 2003, the date of his fall on ice, and that the employee=s right knee condition was a substantial contributing cause of that disability. The employer appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2006). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
As a general rule, an employee is totally disabled if the employee=s Aphysical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him 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). The total disability is permanent if it is likely to exist indefinitely. Behrens v. City of Fairmont, 533 N.W.2d 854, 856, 53 W.C.D. 41, 43 (Minn. 1995).
In the present case, the employee was 55 years old as of the date of hearing. He did not graduate from high school and does not have a GED. All physicians agree that the employee is restricted to sedentary employment, which precludes a return to the job he had held since 1984, and he has worked almost exclusively at physical labor for virtually all of his life. Treatment records indicate that he is suffering from moderate to severe depression and that he has also developed a problem with alcohol. Except for one relatively brief attempt to return to his pre-injury job, the employee has not worked at all since shortly after his August 21, 2001, work injury.
Medical evidence relevant to the issue of permanent total disability is conflicting. The employee=s primary treating physician, Dr. Quenemoen, encouraged the employee to apply for social security disability benefits as early as June of 2004, later writing that, although the employee Amay or may not be able to work in a sedentary position,@ it would be difficult for him to find employment. Dr. Quenemoen further concluded that the employee had chronic pain syndrome and depression secondary to his chronic pain and significantly reduced functional capacity, writing that, A[i]rrespective of education and transferrable skills, I think the chronic progressive nature of his bilateral knee conditions as well as his chronic pain syndrome and his depression will prevent him from maintaining gainful employment.@ Dr. Fleeson, the employee=s independent medical examiner and a specialist in occupational medicine, was similarly of the opinion that, while the employee could Aputter around,@ his work history, education, and poor medical prognosis rendered him Anot suitable@ for Asustained significant gainful employment.@ Dr. Stern, the employer=s independent medical examiner, disagreed. According to Dr. Stern, Athere is no orthopedic basis for [the employee=s] right knee pain,@ and he found nothing that would preclude the employee from holding a full-time, sedentary job. However, Dr. Logel, who was the employer=s psychological expert, wrote as follows concerning the employee=s employability:
In my opinion, Mr. Cozzi=s depressive symptoms, pattern of excessive use of alcohol, and personality problems impair his ability to function effectively in the workplace at the present time. He appears to be highly distracted, which I would expect would interfere directly with his performance of even routine tasks. In addition, his irritable and depressed mood would be likely to result in problems interacting with others in the workplace. His motivation to return to gainful employment appears to be questionable due to his psychiatric problems.
Vocational opinions similarly differ. Ms. Garrison, the employee=s independent vocational examiner, concluded as follows:
Mr. Cozzi is not, in my opinion, a candidate for vocational rehabilitation, nor is he a candidate for retraining. His work restrictions from both the IME physician and Dr. Quenemoen limit him to sedentary level work. If we consider the additional restrictions to limit sitting which is addressed by both Dr. Fleeson and self-reported by Mr. Cozzi, a sedentary job is not appropriate, as by definition these are jobs that require prolonged sitting.
Mr. Cozzi has a history of heavy, labor type jobs. He has no skills transferable to sedentary work and thus would be relegated to unskilled, entry level jobs, such as parking lot attendant.
Even this very limited job option would be problematic for Mr. Cozzi. He has no computer skills as is evidenced by his poor performance in the keyboarding test administered by Mr. VanWagner. He cannot sit for more than a short time.
When I consider the totality of Mr. Cozzi=s vocational situation, including his 10th grade education, his age, his borderline abilities, his history of heavy labor work and lack of transferable skills to sedentary work, his physical capacity to a limited scope of sedentary activity, and his chronic pain and unresolved knee issues, he is not now employable, nor is there any medical expectation that he will be in the future. Under the meaning of the Minnesota Workers= Compensation Law, Mr. Cozzi is permanently and totally disabled from competitive employment.
Mr. VanWagner, on the other hand, testified that the employee was Anot incapable@ of vocational activities due to his physical or psychological conditions, that the employee had some transferrable skills and could enhance his employment options by obtaining his GED, and that, while job placement would be Adifficult@ for the employee, a job search would not be futile, and the employee was not permanently totally disabled. Employment possibilities suggested by Mr. VanWagner included parking lot attendant and cashier. The testimony of Ms. Morrell, the employee=s QRC, was equivocal. At one point, she testified that vocational rehabilitation had not been Afully explored or exhausted@ and that it would be Apremature@ to say whether a job placement effort would be futile. At another point, she acknowledged that job search activities would not be appropriate until issues related to the employee=s depression and chronic pain syndrome had been resolved. She also testified that, given Dr. Quenemoen=s opinions as to the employee=s employability, it would not be fruitful to initiate a job search.
In its appeal from the compensation judge=s finding of permanent total disability, the employer argues primarily that the record as a whole does not support the judge=s decision because the employee Adid not produce any evidence of diligent job search or related productive vocational activities.@ However, a job search is not a prerequisite to a finding of total disability if the evidence reasonably establishes that such a search would be futile. See, e.g., McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983); Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978). In the present case, the compensation judge clearly weighed the absence of job search in reaching her decision, explaining in her memorandum as follows:
Although as a general rule an employee is required to engage in a diligent, but fruitless, job search to prove that they are totally disabled, this was one of the rare cases where this compensation judge did not believe that an exhaustive job search was necessary. This employee is 55 years old, with a 10th grade education. The majority of the employee=s work experience has been heavy labor. The employee has performed janitorial work for the employer since 1984. This work required working on ladders, using stairs, and long hours on his feet. The employee tried to return to work with the employer and had right knee pain working on a ladder at work, in April, of 2003. The employee has had three surgeries on his right knee and continues to experience severe pain. The compensation judge accepted Dr. Quenemoen=s opinion that the employee may have an exaggerated pain response, but, she did not believe he was malingering. . . . The employee tried a keyboarding course. The employee could only do this course with numerous breaks. The employee did not developed [sic] competitive keyboarding skills. The employee slipped on the ice and injured his left knee as well as aggravating his right knee on December 17, 2003. The compensation judge did not accept the employee=s argument that this slip was caused by the right knee condition. None-the-less, after this incident, the employee was even more disabled with two severely compromised knees. Both Ms. Garrison and Ms. Morrell are working QRCs in the Duluth labor market. The compensation judge found their reports and testimony persuasive that the combination of the employee=s limitation to sedentary work with his age, education, and work experience, made him unemployable in the Duluth labor market in terms of finding significant gainful employment.
Whether an employee is permanently and totally disabled is a question of fact. See, e.g., Mayer v. Frogner Drywall, slip op. (W.C.C.A. Feb. 20, 1997). In the present case, the record might well have supported a determination that it was premature to find the employee permanently totally disabled, in view of expert suggestions for further medical treatment, psychiatric care, and vocational rehabilitation activities. However, given the conflicting expert opinions and the employee=s testimony as to the severity of his symptoms, we cannot say that it was unreasonable for the compensation judge to conclude that the employee is permanently and totally disabled, despite his failure to look for work. We therefore affirm the judge=s decision in its entirety.
 The judge denied the employee=s claim that he had sustained consequential injuries to his left knee, low back, and/or hip, and the judge=s decision to this effect is undisputed on appeal.
 The current statute, Minn. Stat. ' 176.101, subd. 5, also requires certain minimum permanent partial disability, depending in part on the employee=s age on the date of injury. As previously noted, it is conceded that this requirement for permanent total disability has been met.
 Dr. Stern also strenuously disagreed with Drs. Fleeson and Quenemoen on the issue of whether tests showed osteoarthritic changes in the employee=s right knee. As for the left knee, Dr. Stern agreed that the employee should have surgery.
 In this regard it should be noted that the employer evidently refused to authorize prescribed chronic pain treatment, apparently relying on Dr. Logel=s assessment that a chronic pain program was contraindicated given the employee=s Auntreated psychiatric problems.@