MARY R. OLDS, Employee/Cross-Appellant, v. LUTHERAN SOC. SERVS. OF MINN., SELF-INSURED/COMPCOST, INC., Employer/Appellant, and TWIN CITIES SPINE CTR., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 9, 2007
CAUSATION - PERMANENT AGGRAVATION. Substantial evidence, including adequately founded medical expert opinion, supports the compensation judge=s decision findig a permanent, work-related aggravation of the employee=s pre-existing low back condition.
PERMANENT TOTAL DISABILITY - INSUBSTANTIAL INCOME. Although the employee was working only 16 hours per week and was receiving Social Security disability benefits prior to her work injuries, there is evidence the employee=s post-injury restrictions would not allow the employee to perform any regular or consistent employment, resulting in an insubstantial income, and the compensation judge did not err in awarding permanent total disability benefits.
PERMANENT TOTAL DISABILITY. A disability is permanent for workers= compensation purposes if it is likely to exist for an indefinite period of time. There was no evidence that any further treatment would significantly aid the employee in returning to work, and the compensation judge=s finding of permanent total disability was not premature.
CREDITS & OFFSETS - SOCIAL SECURITY OFFSET. There is no substantial evidence that the employee=s low back condition was a factor in the 1999 award of Social Security disability benefits to the employee, and it cannot be concluded that the disability benefits were occasioned by the employee=s 2002 and 2003 work injuries to the low back, thus the allowance of a statutory offset for Social Security benefits must be reversed.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Steven M. Bradt, Bradt Law Offices, Grand Rapids, MN, for the Cross-Appellant. David L. Christianson, Cronan Pearson Quinlivan, Minneapolis, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge=s award to the employee of permanent total disability benefits. The employee cross-appeals from the compensation judge=s decision allowing the employer to offset the employee=s Social Security disability benefits. We affirm the award of permanent total disability benefits and reverse the allowance of a Social Security offset.
Mary R. Olds, the employee, began working for Lutheran Social Services of Minnesota on a part-time basis in 2002. Initially, the employee worked two days a week, four hours a day, but then increased her hours to 16 hours a week. On April 1, 2002, and August 24, 2003, the employee sustained injuries to her low back arising out of her employment. On both dates, the employer was self-insured for workers= compensation liability, with claims administered by Compcost, Inc. The employer admitted liability for the employee=s personal injuries and paid benefits based upon a weekly wage of $147.00.
By decision dated February 2, 1999, the employee was awarded Social Security disability insurance (SSDI) benefits, effective August 18, 1997. The administrative law judge found the employee qualified for benefits due to Athe following medically determinable, severe impairment: Major Depression, recurrent; Fibromyalgia; and Chronic Pain Syndrome.@ (Ee Ex. M.)
The employee had injured her low back before commencing work for the employer. On August 24, 2000, the employee was seen at the New Spirit Women=s Clinic complaining of low back pain with radiation down her left leg. Suzanne Koprowski, a certified nurse practitioner, noted the employee was walking stiffly and having difficulty sitting and rising. On examination, Ms. Koprowski found muscle pain from the mid-thoracic to L5 level and diagnosed sciatica. On April 3, 2001, the employee again saw Ms. Koprowski, stating she fell in her bathtub several days earlier and complaining of low back pain with radiation down her left leg. On May 14, 2001, Dr. Kristin Johnson at the New Spirit Clinic diagnosed low back pain with left radicular symptoms. A lumbar MRI scan in May 2001, showed degenerative changes at L4-5 and L5-S1. The employee then told Dr. Johnson she was planning to leave her job at Leisure Hills Nursing Home so she would not have to push wheelchairs. In November 2001, the employee again fell in her bathroom landing on her back. She returned to see Dr. Johnson complaining of severe back and left leg pain.
Following the April 2002, personal injury, the employee treated with Elizabeth Garcia, D.C., and her symptoms resolved within about two months. In October 2002, however, the employee was seen at the New Spirit Women=s Clinic complaining of low back pain worsening over the last month. In January 2003, Dr. Johnson diagnosed low back pain with left sciatica which she related to the employee=s fall in April 2002. Dr. Johnson advised the employee to change her job. In June 2003, a nurse practitioner at the clinic imposed work restrictions limiting the employee=s lifting and bending. The employee continued to work for the employer within those restrictions.
On August 24, 2003, the employee reinjured her low back while she was lifting a male patient from the floor. She went immediately to the emergency room at Grand Itasca Hospital where the diagnosis was lumbar spasm. An MRI scan in November 2003 showed small disc herniations at L4-5 and L5-S1 with degenerative changes at the L4-5 facet joints. The radiologist stated the findings had not changed significantly compared to the prior MRI scan in May 2001. Dr. Wolcott Holt, a neurologist, examined the employee in December 2003 on referral from Dr. Johnson. Dr. Holt concluded the employee did not present a clinical picture of radiculopathy that would likely improve with surgery. The doctor recommended an epidural steroid injection and stated the employee should remain off work. Dr. Scott Dulebohn, a neurosurgeon, examined the employee on February 2004 and also opined surgery would not be of great benefit.
Dr. Joseph Perra, an orthopedic surgeon, examined the employee in June 2004. The doctor diagnosed disc degeneration at L4-5 and L5-S1 and left-sided foraminal stenosis at L5-S1. Dr. Perra recommended continued conservative care but stated the employee could be a candidate for a selective decompression at L5-S1 on the left. An MRI scan in November 2004 again showed abnormalities at the L4-5 and L5-S1 levels which the radiologist stated had not significantly changed from the November 2003 MRI scan.
Dr. John Dowdle examined the employee in February 2005 at the request of the self-insured employer. The doctor opined the employee=s April 2002 and August 2003 work injuries were temporary aggravations of an underlying chronic low back condition. Dr. Dowdle released the employee to light-duty work with restrictions, but related the necessity for restrictions to the underlying degenerative disc condition and not the August 2003 personal injury.
Dr. William Fleeson examined the employee in August 2005 at the request of the employee=s attorney. The doctor diagnosed multilevel lumbar degenerative disc disease, disc protrusions at L4-5 and L5-S1, left foraminal stenosis at L5-S1, mechanical low back pain, sacroiliac joint dysfunction and lumbar radiculopathy. Dr. Fleeson opined the April 2002 and August 2003 work injuries were substantial and permanent aggravations of pre-existing conditions in the employee=s spine. Dr. Fleeson rated a 21 percent whole body disability and assigned extensive work restrictions.
On January 23, 2006, Dr. Johnson released the employee to return to work, subject to restrictions, two hours a day, three days a week, working every other day. The employee returned to work for her employer with these restrictions, earning $9.32 per hour. In April 2006, Dr. Johnson released the employee to work four hours a day on alternating days. The employee told the doctor she was unable to recover between the work days, and Dr. Johnson reinstated the prior restrictions of two hours of work every other day. The employee continued working these hours to the date of hearing.
The employee filed a claim petition seeking permanent total disability benefits from August 25, 2003. Following a hearing, the compensation judge found the April 2002 and August 2003 work injuries were permanent aggravations of the employee=s pre-existing chronic low back condition. The judge found the work injuries were a substantial cause of the employee=s work restrictions which resulted in the employee=s inability to find or hold employment resulting in more than an insubstantial income, and awarded permanent total disability benefits. The self-insured employer appeals the finding of permanent total disability. The compensation judge further found the employee=s Social Security benefits were occasioned in substantial part by the two work injuries, entitling the employer to the Social Security offset provided under Minn. Stat. ' 176.101, subd. 4. The employee cross-appeals from this finding.
1. Permanent Aggravation
The employee=s testimony and the medical records establish the employee suffered from a low back condition prior to her work injuries. This condition was serious enough that the employee was forced to leave her job at Leisure Hills Nursing Home. Dr. Dowdle opined the employee had degenerative disc disease at L4-5 and L5-S1 which pre-existed her personal injuries, and concluded the work injuries were temporary aggravations of that pre-existing condition. Dr. Dowdle further stated the employee=s need for work restrictions was due to her degenerative disc disease, not her personal injuries. This evidence, the employer argues, requires a reversal of the judge=s finding that the employee=s work injuries were permanent aggravations of a pre-existing condition. We disagree.
There is evidence of record which, if accepted by the compensation judge, would support a different result. The issue before this court, however, is not whether a different conclusion could be reached. Rather, the issue on appeal is whether the factual findings are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1. 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).
The compensation judge rejected the opinions of Dr. Dowdle and adopted those of Dr. Fleeson. It is the compensation judge=s responsibility as the trier of fact to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Dr. Fleeson opined the employee=s work injuries were substantial and permanent aggravations of her pre-existing condition. The opinions of Dr. Fleeson were adequately founded and the compensation judge could reasonably rely upon them. The testimony of Dr. Fleeson constitutes substantial evidence supporting the compensation judge=s decision finding a permanent aggravation. That decision must, therefore, be affirmed.
2. Permanent Total Disability
The compensation judge found the employee=s work restrictions secondary to her personal injury caused her to be unable to find or hold competitive employment or employment which would result in anything more than an insubstantial income. The self-insured employer contends this finding is clearly erroneous and unsupported by substantial evidence. Prior to her injury, the employee was working only 16 hours per week and now works six hours per week. The appellant contends the employee=s vocational potential has only been slightly reduced and the appropriate weekly benefit is temporary partial disability. In Peterson v. Farmstead Foods, slip op. (W.C.C.A. Feb. 5, 1992), this court denied permanent total disability benefits to an injured employee who had returned to work 20 hours a week at an hourly wage of $4.00. Based upon a six hour work week the employee earns $55.92, a sum, the appellant claims, that is close to the employee=s earning in the Peterson case. Accordingly, the appellant asserts the compensation judge=s award of permanent total disability benefits should be reversed.
The concept of total disability depends on the employee=s ability to find and hold a job, not on the employee=s physical condition. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). An employee is totally and permanently incapacitated where the employee=s physical disability in combination with the requisite permanent partial disability, Acauses the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Minn. Stat. ' 176.101, subd. 5. The fact that an injured employee earns a marginal income does not preclude a determination of permanent total disability. Bertsch v. Varnum Lumber & Fuel Co., 228 N.W.2d 228, 27 W.C.D. 786 (Minn. 1975). As a general rule, whether an employee=s income is insubstantial is not determined by comparing the employee=s pre- and post-injury earnings. Weishaar v. Radisson Hotel South, slip op. (W.C.C.A. Sept. 24, 2002). In other words, what constitutes an insubstantial income does not change relative to the employee=s pre-injury wage. Detmar v. Kasko Corp., 60 W.C.D. 81 (W.C.C.A. 2000).
Prior to her second personal injury, the employee was working only 16 hours per week. There is no evidence, however, that the employee was limited to working part time due to any medical restrictions caused by her pre-existing low back condition or by the depression, fibromyalgia or chronic pain syndrome for which she was receiving SSDI. Rather, the employee testified she voluntarily limited her hours because she Acouldn=t go over what I was getting for social security.@ (T. 48.) When she returned to work in 2006, the employee described her job as playing cards with the residents, following a resident around to make sure the resident did his laundry and dusting his room, and giving speech prompts to another resident. Jack Casper performed a vocational evaluation of the employee in June 2006. Mr. Casper described the restrictions issued by Dr. Fleeson as Asub-sedentary types of work activities@ and concluded these restrictions do not allow the employee to perform any type of regular and consistent employment. Mr. Casper concluded the employee=s work for the employer was not substantial, gainful or competitive. Joel Rhyner, the employee=s QRC, testified the employee=s job was not competitive employment and was not competitively obtained, but was structured as a transitional-type of job in hopes the employee would progress in her ability to work. Ms. Garrison testified that with the employee=s current restrictions, a new employer would not hire her. Based upon this evidence, the compensation judge could reasonably conclude the employee is now unable to obtain employment resulting in more than an insubstantial income. Accordingly, the award of permanent total disability benefits is not clearly erroneous, and is affirmed.
The self-insured employer next argues the award of permanent total disability benefits is premature. In 2004, Dr. Pena recommended surgery. In January 2005, Dr. Dulebohn suggested the possibility of a nerve stimulator implant. The employee testified she plans to see Dr. Garvey to discuss a possible surgery, and stated that if surgery would improve her ability to work, she would consider it. Ms. Garrison testified the employee is not permanently and totally disabled because there is potential for her to increase her work hours. The employer argues there is the possibility of a significant improvement in the employee=s condition which would increase her ability to work. Accordingly, the appellant contends it is premature to conclude the employee is permanently and totally disabled.
A disability is permanent for workers= compensation purposes if it is likely to exist for an indefinite period of time. Harrison v. Cleaning Concepts, Inc., 526 N.W.2d 46, 51 W.C.D. 545 (Minn. 1994). At this point, no doctor has recommended surgery. Dr. Dulebohn did not think a fusion operation would be of much benefit to the employee. Dr. Perra felt the employee could be a candidate for a decompression surgery, but cautioned this would hopefully take away her leg pain but would not take away the back pain. Dr. Fleeson recommended the employee see Dr. Tim Garvey, whom Dr. Fleeson thought might recommend a discogram and possible surgery or a spinal stimulator. There is no evidence, however, that any further treatment will significantly aid the employee in returning to work. Absence such testimony, we cannot conclude the compensation judge=s finding of permanent total disability is premature.
3. Social Security Offset
Minn. Stat. ' 176.101, subd. 4 provides,
[A]fter a total of $25, 000 of weekly compensation has been paid, the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any disability benefits being paid by any government disability benefit program if the disability benefits are occasioned by the same injury or injuries which give rise to the payments under this subdivision.
The compensation judge found the employee=s Social Security disability benefits received since August 24, 2003, were occasioned in substantial part by the employee=s low back pain resulting from the 2002 and 2003 personal injuries. The compensation judge based this finding primarily on the employee=s testimony that, currently, her low back condition is her most severe impairment and that if Social Security were again to review her case, she would point to her low back condition as her most severe impairment. The employee appeals this decision.
The purpose of the offset provision of Minn. Stat. ' 176.101, subd. 4, is to reduce the duplication of benefits between the Social Security system and the workers= compensation system. Kloss v. E & H Earthmovers, 472 N.W.2d 109, 44 W.C.D. 530 (Minn. 1991). The employer and insurer state that, based upon the minimum rate in effect for the August 2003 date of injury, the employee=s benefit amount is $457.00 a week. Without the offset, the employer and insurer argue, the employee receives a windfall due to a duplication of benefits which is unfair and contrary to the policy underlying the offset provision. Whatever the merit to the employer and insurer=s argument, we conclude the plain language of the statute requires a reversal in this case.
The order of Administrative Law Judge, Roger W. Thomas, awarding the employee Social Security disability benefits is dated February 22, 1999. In the order, the judge stated,
The medical evidence reveals that the claimant has fibromyalgia with the most severe symptom being pain, then fatigue with sleep disorder which has not been responsive to treatment, including medications and physical therapy. She has been treated for complaints of fatigue, joint and muscle aches, and chronic migraine headaches. It was noted by her treating physician that the claimant=s headaches actually worsened after physical therapy.
In addition, the claimant was first hospitalized in 1990 for depression. Her treating psychiatrist, Dr. May, reported that the claimant=s recurrent depression had become more severe after losing her job. She indicated that the claimant=s chronic pain syndrome was secondary to the fibromyalgia and that her physical stamina was very limited. The claimant had demonstrated improvement with mood on current medications in that she was no longer suicidal and feeling hopeless and helpless. However, she indicated that the claimant=s concentration, energy and memory were adversely affected by the depression.
. . . During a normal day, she watches television, reads, has occasional visits with friends and babysits a small child three days a week. She drives short distances and wears a neck brace. She can walk four blocks but her legs begin to feel heavy. She can sit less than an hour before experiencing low back pain. She does not rest well at night due to pain so during the day she will rest. She also stated that she cries at least once a day for several minutes for no apparent reason.
Judge Thomas further noted a medical expert testified Athe claimant was moderately limited in activities of daily living; moderately limited in maintaining social functioning; and was frequently limited in concentration, pace, and persistence. She opined that considering the severity of the claimant=s impairment, she was not capable of maintaining competitive employment.@ (Ee Ex. M.)
Attached to Judge Thomas=s order was a list of medical records considered by the judge. These include a report from Dr. Marie May, records from the USPHS Hospital from January 29 through September 21, 1998, and from October 19 through October 23, 1998, and a medical report dated December 7, 1998, from the New Spirit Women=s Clinic. Only the records from the New Spirit Women=s Clinic are in evidence in this case. The first entry in the clinic records is November 9, 1998, when the employee=s chief complaint was fibromyalgia. Dr. Johnson noted the employee had a past medical history of severe depression for which she was followed by Dr. May. On examination, Dr. Johnson noted many joint and muscle aches with trigger points along the medial left chest and along the upper and lower spine, knees, and hips. The diagnosis was fibromyalgia, chronic depression, migraine headaches, and sleep disorder. On November 12, 1998, Dr. Johnson again diagnosed fibromyalgia with pain being the most severe symptom, then fatigue due to sleep disorder. A note on December 7, 1998, states that medical records were sent to the Disability Specialists, Cook, Minnesota. The first specific complaint of low back pain in the records of the New Spirit Women=s Clinic is August 24, 2000, after issuance of the Social Security decision.
The compensation judge concluded the SSDI payments received since August 24, 2003, were primarily due to the employee=s low back condition. Accordingly, the compensation judge concluded the SSDI payments were occasioned by the work injuries and allowed the employer to take the statutory offset. While this may be an equitable result, we conclude the plain language of the statute mandates a reversal. The administrative law judge concluded the employee was eligible for SSDI benefits based upon major depression, recurrent, and fibromylgia with headaches and chronic pain syndrome. The only reference in the judge=s decision to low back pain was the employee=s testimony that she could sit less than an hour before experiencing low back pain. There is no evidence before us that the administrative law judge reviewed any medical records documenting any then existing low back condition or complaints. We find no substantial evidence supporting a conclusion that the employee=s low back condition was a factor in the award of SSDI benefits. Since the employee was awarded SSDI benefits prior to her personal injuries, we conclude the disability benefits could not be occasioned by the 2002 or 2003 personal injuries. Accordingly, the compensation judge=s determination that the employer is entitled to the statutory offset is reversed.
 Kandice Garrison, the employer=s vocational consultant, testified that in 2006 the employee could earn up to $859.00 a month before she met the Social Security definition of substantial gainful employment.