RONALD W. ODASH, Employee, v. PEPSI COLA BOTTLING CO. and KEMPER INS. CO./BROADSPIRE SERVS., INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 31, 2007
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; PERMANENT TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET. Where the thirty-eight-year-old employee, who had been off work for six years prior to his 2003 spinal fusion surgery, had been released to work by his treating doctors, where he had indicated that he had decided to remain a permanent homemaker and care-giver to his two young children, where the QRC to whom he had been referred by his attorney had repeatedly attempted unsuccessfully for a year and a half to engage him in efforts to find an income-producing job, and where there was conflicting expert vocational testimony as to whether any attempt by the employee to return to the labor market would be futile, the compensation judge=s denial of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Ronald Odash, pro se Appellant. Shannon A. Nelson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals pro se from the compensation judge's denial of his claim for permanent total disability benefits from April 18, 2003, through the date of the hearing. We affirm.
On January 30, 1997, Ronald Odash sustained an injury to his low back when he fell from his truck in the course of his work as a delivery truck driver with Pepsi, Inc. Mr. Odash [the employee] was twenty-eight years old on that date and was earning a weekly wage of $937.77. Pepsi, Inc. [the employer], and its insurer acknowledged liability for the injury and commenced payment of workers= compensation benefits.
Subsequent to his injury, the employee attempted to return to work with the employer until about August of 1997, when he went off work completely due to continuing pain. For nearly six years thereafter, during which the employee evidently became addicted to narcotic pain medications, the employee underwent extensive medical evaluation and conservative treatment while remaining off work from any employment. Finally, on April 18, 2003, the employee underwent a two-level lumbar fusion with instrumentation, performed by Dr. Matthias Feldkamp, in hopes of reducing his pain and improving his level of function. Since that surgery, the employee has experienced a substantial reduction in his level of pain, such that he no longer uses narcotic pain medications and does not regularly seek medical treatment for any low back or leg pain.
In February of 2004, the employee completed a course of physical therapy after about a year of rehabilitation, and by March 29, 2004, the date of his final visit with Dr. Feldkamp, he was reporting minimal back pain relative to what he had experienced preoperatively and he was no longer using any narcotic pain killers. On May 12, 2004, he saw his treating neurologist, Dr. Steven Trobiani, to whom he reported a pain level of 1 or 2 on a scale of 0 to 10. Dr. Trobiani pronounced the employee capable of full-time work at light duty, within restrictions against lifting more than twenty pounds and against repetitive bending, stooping, twisting, crouching, squatting, kneeling, pushing, or pulling, provided he be permitted to vary his position between sitting, standing, and walking. The employee did not return to work, however, and on May 21, 2004, he filed a claim petition for various workers= compensation benefits. About six months later, on November 29, 2004, still not working, he was evaluated at the request of his attorney by QRC Lori Krawczyk, who found him to be eligible for rehabilitation services. Ms. Krawczyk recommended vocational testing and job placement services, and over the course of the next year and a half she repeatedly invited the employee=s approval of a rehabilitation plan, but the employee repeatedly failed to respond or declined to become involved.
By early 2005, issues in the case had come to include whether the employee=s April 18, 2003, fusion surgery had been reasonable and necessary. On February 15, 2005, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Michael Davis, to whom he reported that his low back pain was actually greater than it had been before his surgery, Abecause of all the rods and screws and going through all the muscles,@ although his leg discomfort was somewhat relieved. It was Dr. Davis=s opinion that, while the employee did appear to have sustained a lumbosacral strain at work on January 30, 1997, the symptoms which led up to the employee=s April 2003 fusion surgery were not related to the January 1997 work incident, nor was any need for that surgery related to that incident. Agreeing with Dr. Trobiani, Dr. Davis concluded that the employee could work subject to restrictions against lifting over twenty pounds and against repetitive bending, stooping, and twisting, provided he were able to vary his position between sitting, standing, and walking.
On March 18, 2005, Dr. Feldkamp wrote to the employee=s attorney following his review - - apparently for the first time - - of Avoluminous records@ of orthopedic, neurological, psychiatric, and other care that the employee had undergone prior to Dr. Feldkamp=s own commencement of treatment of him in April 2003. In his letter, Dr. Feldkamp opined in part that, Awhile not free of any back injuries in the past,@ and although A[t]here may have been some psychological overlays as well,@ the employee=s April 2003 fusion surgery had been a success Aand therefore was necessary to cure and relieve the effects of [the employee=s] 1-30-97 work injury.@ Dr. Feldkamp indicated further that, A[g]iven the length of time that the [employee] had symptoms prior to surgery, I would have anticipated at least six months of total work abstinence with significant limitations for up to a year after surgery@ and that, although he had not been asked to recommend any restrictions, AI feel that any lifting greater than 50 lb would be contraindicated.@
A hearing was held in the matter on May 19, 2005, on the employee=s entitlement to payment for his April 2003 surgery and other related matters addressed in his May 2004 claim petition. The employee testified at hearing in part that in his mind his April 2003 fusion surgery had been Aone hundred percent@ worth the undertaking, because now AI can live,@ AI can have a goal@ A[t]hat I can live life again. I can do something.@ By findings and order filed July 13, 2005, the compensation judge concluded in part that the employee=s surgery had been reasonable and necessary and causally related to his work injury, and that conclusion has been affirmed by this court. About two months later, on July 27, 2005, still unemployed and still not searching for work, the employee filed another claim petition, alleging entitlement to permanent total disability benefits continuing from April 18, 2003, the date of his surgery, consequent to his work injury on January 30, 1997.
On November 29, 2005, the employee was evaluated again for the employer and insurer by Dr. Davis, who reviewed additional medical records and performed a repeat orthopedic examination. In his report on December 8, 2005, Dr. Davis opined again that the employee=s April 2003 fusion surgery had not been reasonable, necessary, and causally related to his work injury, and he opined further that the employee had not been permanently and totally disabled since the date of that surgery. He concluded that the employee was capable of full-time employment subject to the restrictions recommended earlier, and he recommended only ibuprofen as an anti-inflammatory and pain medication, with all morphine derivatives discontinued.
On March 13, 2006, the employee underwent an apparently routine Acomplete physical@ with family practitioner Dr. James Carrabre, who noted that the employee was at that time in A[n]o acute distress,@ complaining only of Aoccasional central low back pain with weather change@ but A[n]o peripheral neuropathy or symptoms that are of concern@ and Ano numbness or tingling.@
On April 14, 2006, the employee was evaluated for the employer and insurer by vocational expert David Berdahl. In his report on May 23, 2006, and referencing the opinions of Drs. Feldkamp, Trobiani, and Davis that the employee was able to work within restrictions, Mr. Berdahl concluded that the employee was not permanently totally disabled and that a job search by the employee would not be futile. Mr. Berdahl indicated in his report that the employee had told him that he did not intend ever to return to work outside the home, that he and his wife had made a firm decision that he would remain at home caring for their two young children and functioning permanently as the family homemaker, and that, on that decision, the employee=s wife had returned to school and obtained a Master=s Degree in nursing anesthesiology, in which capacity she was now employed full time. Mr. Berdahl indicated also that the employee had reported receiving an AAS Degree Ain some type of engineering@ at Brainerd Community College and attending night school for about fifteen months at Concordia College Moorhead Ain a business program.@ Mr. Berdahl indicated further that he had conducted a labor market survey pertinent to the employee=s vocational potential and that employment options were likely to be available to him in automotive service writing, customer service, the hospitality industry, retail environments, light driving and delivery, security, and manufacturing environments. Regarding the employee=s decision not to seek work outside the home, Mr. Berdahl observed,
While homemaking can be considered a career choice, it is not an endeavor that will allow [the employee] to accrue any type of income, nor is it an endeavor that is going to provide him with any opportunity to come as close as possible in terms of earnings to the type of earning capacity that he enjoyed at time of injury.
On June 20, 2006, in response to a letter from the employee=s attorney, Dr. Trobiani reported that a review of recent medical records had indicated to him that the employee had experienced an increase in lower back pain since Dr. Trobiani=s examination and previous report on May 12, 2004. Dr. Trobiani stated in his letter,
If, over the last two years, significant efforts have been made to return to sedentary employment and, if [the employee] has not been able to procure any gainful permanent employment over the course of that time in spite of sincere efforts to do so, it would then be my opinion that [the employee] is not likely to obtain anything more than sporadic employment for insubstantial income and would qualify for a determination of permanently and totally disabled under the Worker[s=] Compensation Act.
Six days later, on June 26, 2006, after repeated failed attempts to engage the employee in job search and other rehabilitation services, QRC Krawczyk closed her file on the employee=s case.
On July 11, 2006, at the request of the employee=s attorney, the employee was evaluated by QRC John Richardson, who concluded in his report on July 27, 2006, that the employee was permanently totally disabled. In his report, Mr. Richardson acknowledged findings that the employee did have some transferable verbal skills, did have some sales experience as a result of his work for the employer, did have superior abstract reasoning, and did have Aabove average capabilities to perform at a technical, vocational, or perhaps even complete college programming.@ Mr. Richardson=s assessment of permanent total disability notwithstanding those findings was based in large part on a conclusion that any job search by the employee after his being absent from the labor market for over nine years would be fruitless. In support of this conclusion, Mr. Richardson cited in part an evaluation, diagnosis, and treatment for chronic pain by Dr. Matthew Monsein. Mr. Richardson characterized the employee as a candidate for Ahabilitation@ rather Arehabilitation@ services, Aas he has lost all momentum in the labor market and does not have any transferable skills, academic training, or basic work skills.@
The matter came on for hearing on January 25, 2007, on which date the employee was thirty-eight years old and by which date the employer and insurer had paid various workers= compensation benefits, including temporary total disability benefits, permanent partial disability benefits, and treatment expenses. The parties stipulated at hearing in part that the employee had sustained sufficient permanent partial disability to meet the threshold requirement for permanent total disability as outlined in Minnesota Statutes ' 176.101, subdivision 5. The sole issue at hearing was whether the employee had been permanently totally disabled since the date of his surgery, April 18, 2003. In his testimony at hearing, the employee acknowledged that he had Afelt like a new man@ following his fusion surgery on April 18, 2003, that he had Afelt like I was new, reborn.@ But he conceded, however, that he had nevertheless neither worked nor searched for work since leaving the employer in August of 1997. Both Mr. Berdahl and Mr. Richardson also testified at hearing, essentially reiterating the opinions that they had expressed in their earlier reports. In his testimony, Mr. Richardson acknowledged that the last time the employee had received any treatment for psychological problems was six years earlier, in May of 2000, and that the last time that he had been evaluated by Dr. Monsein for chronic pain was eight years earlier, in 1998.
By findings and order filed February 2, 2007, the compensation judge denied the employee=s claim for permanent total disability benefits, concluding in part that the employee had voluntarily elected not to return to the labor market in order to stay home as primary care-giver for his two young sons and that he had failed to prove that a reasonable and diligent job search would be futile. 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.
At Finding 7, the compensation judge concluded that, by electing to stay home as primary care-giver for his two young sons, the employee had voluntarily removed himself from the labor market. At Finding 8, the judge concluded further that the employee had failed to prove that a reasonable and diligent job search would be futile in his case. On these findings, the judge concluded at Finding 9 that the employee had failed to prove his claim that he has been permanently totally disabled since April 18, 2003, the date of his fusion surgery. The employee contends on appeal pro se that the judge erred in these conclusions. He argues that he stays at home with his children Abecause it is the most flexible job I know that I can handle with my chronic pain syndrome@ and that the futility of any search for a paying job outside the home Awas proven by John Richardson during his direct examination.@ We are not persuaded.
The supreme court has held that "a person is totally disabled if his physical 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., 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 medical and a vocational component. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983). A claim for total disability benefits is more dependent, however, on the employee=s vocational potential than on his or her physical condition. See Schulte, 278 Minn. at 83, 153 N.W.2d at 134, 24 W.C.D. at 295. That is, Athe concept of >total disability= depends upon the employee=s ability to find and hold a job, and not on his physical condition.@ McClish v. Pan-O-Gold Baking Co., 336 N.W.2d at 542, 36 W.C.D. at 139, citing Findorff v. Pinkertons, Inc., 295 N.W.2d 373, 376 (Minn. 1980). AThe reality of the job market and not the medical testimony is the most significant.@ Id. Normally, therefore, A[e]mployees who are capable of work must make a diligent job search to establish total disability.@ Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954-55 (Minn. 1988). This does not mean, however, that a job search is a prerequisite to entitlement to benefits in cases where the job search would be futile. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978). Nevertheless, although a diligent job search may not be an absolute prerequisite to an award of total disability benefits, the lack of a job search still goes to the weight of the assertion that the employee is totally disabled. See id., 267 N.W.2d at 189, 30 W.C.D. at 432; see also, e.g., Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954; Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879, 47 W.C.D. 136, 141-42 (Minn. 1992).
If he is Acapable of work,@ see Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954, an injured employee is required to cooperate with rehabilitation assistance and to make a reasonably diligent effort to find Asuitable gainful employment@ in order to be eligible for disability compensation. Hanmer v. Wes Barrette Masonry, 403, N.W.2d 839, 840, 39 W.C.D. 758, 759 (Minn. 1987) (underscoring added). An employee who is in good faith training himself for a career of his own choosing need not sacrifice his own long-range ambitions, but an employer is not obligated to subsidize that effort indefinitely where it does not produce actual income against which benefits may be credited. See id. The question of whether an employee has met the burden of proving permanent total disability is ultimately a fact issue for the compensation judge. Atkinson v. Goodhue County Co-op Elec. Ass=n, 55 W.C.D. 150, 160 (W.C.C.A. 1996), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541, 36 W.C.D. 133, 138 (Minn. 1983); see also Zinniel v. Sharpe Mfg. Co., slip op. (W.C.C.A. Sept. 15, 1989); Tyge v. Sawmill Creek Lumber, slip op. (W.C.C.A. Jan. 17, 1991); Thomas v. Oscar J. Boldt Constr., 41 W.C.D. 441, 443 (W.C.C.A. 1988).
In this case, the employee has been released to work by all of his treating physicians, and no medical expert has found him physically or otherwise medically incapable of working. The QRC to whom he was referred by his own attorney has repeatedly attempted to engage him in rehabilitation activities designed to result in his obtaining suitable income-producing employment against which the employer and insurer have a right to credit any compensation obligation that may be theirs. But the employee has now indicated clearly, to both testifying vocational experts and to others, that he has voluntarily chosen not to attempt reentry into the income-producing labor market. No one would deny that homemaking and child rearing are work of a very high order, but they are not directly income-producing employments when conducted in one=s own home with one=s own children, and under our law an employer has no obligation to pay total wage replacement benefits to an injured employee who has voluntarily chosen such work.
The employee has cited the expert testimony of Mr. Richardson as evidence that any attempt by the employee to seek work would be futile, given especially his long absence from the labor market and his history of psychological and chronic pain treatment. Mr. Richardson acknowledged on cross-examination, however, that the referenced treatment for chronic pain had been eight years earlier and that the employee=s last treatment for psychological problems had been six years earlier. Mr. Richardson denied any knowledge, moreover, of the employee=s report to Dr. Carrabre in March of 2006 that he currently had only occasional central low back pain, nor did Mr. Richardson express any knowledge of the extent of the employee=s post-secondary education, nor had he performed any vocational testing or labor market survey in the course of his evaluation of the employee. Moreover, Mr. Richardson=s testimony was expressly rejected by the compensation judge in his memorandum and was directly controverted by the expert testimony of Mr. Berdahl, whose opinion the compensation implicitly adopted. A "trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence." Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
Because there is no evidence that Mr. Berdahl=s expert vocational opinion, to the extent that it appears to have been adopted by the judge, was based on any false premises, because there is ample expert medical opinion that the employee was medically capable of working and no medical opinion to the contrary, because the employee was only thirty-eight years old at the time of the hearing and possesses identified transferrable skills and education, and because the judge=s opinion was not otherwise unreasonable or legally erroneous, we affirm the compensation judge=s conclusion that the employee is not permanently totally disabled from all income-producing employment. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 By a decision of this court filed March 14, 2006.