SHAWNA L. ANDERSON (QUINN), Employee, v. ANDERSEN WINDOWS and OLD REPUBLIC INS. CO./GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 28, 2008
REHABILITATION - RETRAINING. Where it was supported by the unequivocal opinion of the employee’s treating surgeon and was reasonably supported also by the reports of the employer and insurer’s vocational expert and the employee’s FCE examining physical therapist, the compensation judge’s award of retraining as a diagnostic medical sonographer was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson J.
Compensation Judge: Gary M. Hall
Attorneys: Eric R. Lee, Lee Law Firm, Minneapolis, MN, for the Respondent. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of retraining as a Diagnostic Medical Sonographer. We affirm.
On September 4, 2003, Shawna Anderson sustained a cumulative stress injury to her right shoulder in the course of her work as a sub-assembly machine operator with Andersen Windows. Ms. Anderson [the employee] was thirty-two years old on that date and was earning a weekly wage of $959.40. Andersen Windows [the employer] and its insurer acknowledged liability for the injury and commenced payment of benefits. Eventually, on February 17, 2004, to relieve ongoing symptoms of the injury, orthopedic surgeon Dr. Nicholas Meyer performed a right shoulder arthroscopy with labral debridement and subacromial decompression. The employee’s symptoms continued post surgery, however, and, after undergoing, on March 21, 2005, an essentially indeterminate MRI scan, on May 17 and 18, 2005, the employee underwent a functional capacities evaluation [FCE] at Therapy Partners/OSI. The FCE resulted in a determination that the employee was capable of functioning at only a medium physical demand level and that her physical abilities at the time did not measure up to the critical demands of her position at the employer. The employee subsequently worked only intermittently at various positions at the employer for about another year, until March 17, 2006, after which she was unable to return to any position at the employer and began searching for work elsewhere.
On June 14, 2006, the employee underwent another FCE, this one performed by Reynolds Rehabilitation Enterprises, on the site of the employer and relative to the activities of jobs available there. The evaluating therapist identified notable functional deficits in the employee’s ability to do lifting out in front of her and to perform tasks requiring her right hand to be higher than shoulder level. He indicated further, however, that the employee was “a motivated employee who appears to be anxious to return to work. . . . . She knows her limitations and may sometimes display a tendency to be over zealous in trying to help out: she needs to work within her capabilities to avoid further injury.” Ultimately the therapist recommended that the employee return to one of two jobs in “Cost Center 225" at the employer and that she undergo some additional physical therapy.
In the months following her June 2006 FCE, the employee began seeing orthopedist Dr. Nicholas Weiss, first in consultation for Dr. Meyer and eventually exclusively. On August 23, 2006, on referral from Dr. Meyer, the employee underwent an MRI arthrogram, which was read to reveal a “SLAP” lesion not seen on earlier scans, though without a rotator cuff tear. Upon this information, on October 4, 2006, Dr. Weiss reversed an earlier conclusion of Dr. Meyer that the employee had reached maximum medical improvement [MMI], and he referred the employee for physical therapy. Eventually, on February 26, 2007, Dr. Weiss performed on the employee’s right shoulder a second surgical procedure - - an arthroscopy and repair of a superior labral tear. The surgery resulted in improved range of motion, improved strength, and decreased pain in the shoulder, and on March 20, 2007, the employee filed a rehabilitation request, seeking approval of retraining in a two-year Associate Degree in diagnostic medical sonography. She had selected the field of sonography partly because of her substantial experience observing repeated use of chest, vascular, and abdominal ultrasounds in treatment of her youngest son’s congenital heart problems and hemihypertrophic condition. In a letter dated March 26, 2007, Dr. Weiss indicated that he thought that the proposed retraining in that field would be very reasonable for the employee and “would utilize her cognitive skills quite well and most importantly would place little to no stress on her surgically repaired right shoulder.” On April 9, 2007, the employer and insurer filed a rehabilitation response, denying the employee’s request. An administrative conference was held on June 19, 2007, pursuant to which, by a decision filed June 28, 2007, the employee’s request was denied, on a finding that the proposed retraining plan had not been shown to be reasonable at that time. On July 13, 2007, the employee filed a request for formal hearing.
The employee had undergone an independent vocational evaluation by Richard VanWagner on June 26, 2007, at the request of the employer and insurer. In his report on August 6, 2007, Mr. VanWagner noted in part that he had reviewed both the employee’s May 2005 FCE and her June 2006 FCE, and he referenced Dr. Weiss’s conclusion on March 26, 2007, that the employee’s working as a sonographer and/or radiographer would be reasonable for her and would produce little or no stress to her right upper extremity. In reporting the employee’s activities of daily living, Mr. VanWagner noted in part the following difficulties that the employee has in using her right upper extremity, together with the manner in which she managed to compensate for some of them by use of her left upper extremity: that, in removing her jacket, the employee uses her left hand to slide the sleeve from her right shoulder; that she operates a hair-curling iron with her left hand, uses both hands to wash her hair, and uses her right hand to shave her legs; that she uses her right hand to chop food but removes items from high cupboards with her left hand; that she experiences right shoulder pain when she reaches forward to wash dishes and is unable to open jars or remove lids; that, in grocery shopping, her children generally push her cart, bag her groceries, and carry her groceries into the car and then into the house; that she uses her left arm to operate a vacuum cleaner, to clean toilets, to sort laundry, and to load and unload her clothes dryer; that she moves her laundry basket by dragging it with her left hand; that she steers her lawnmower and weeds her garden with her left hand and is unable to trim bushes or operate a weed whip; that she is able to operate her car’s gear shift with her right hand but experiences right shoulder pain when she positions her right hand on the top of her car’s steering wheel; that she is no longer able to operate a tractor on the 157-acre cattle farm that she operates with her husband and is unable to use hand tools such as a drill, a wrench, a handsaw, or a screwdriver. Mr. VanWagner concluded in part that, although she had considerable transferable skills and high average intelligence and had not, in her job search, availed herself of a full fifty-mile radius from her home, the employee would not, without retraining, be able to obtain or approximate a weekly wage equal to either her date of injury wage or the lesser wage of about fifty other jobs at the employer for which she had unsuccessfully applied. Mr. VanWagner further concluded that the employee had the intellectual ability, academic achievement levels, and aptitudes to succeed in retraining as a sonographer and that the program in such retraining that was available in Eau Claire, Wisconsin, nearer her home, was more reasonable for her than the program available in St. Paul.
On August 14 and 15, 2007, on referral from Dr. Weiss, the employee underwent yet another FCE, at Therapy Partners/OSI, with examining therapist Lisa Hanselman. In her report to the employee’s attorney on August 15, 2007, Ms. Hanselman indicated that the employee could sit, stand, or walk seven or eight hours a day but that she should do no more than occasional forward bending, overhead work, or crawling, and that she could lift or carry up to twenty pounds frequently with her left hand but no more than ten pounds with her right. She indicated further that she was unable to perform a job match grid relative to the employee’s intended vocational plan to become an ultrasound technologist because she could find no frequencies of physical demands listed in available information on that occupation. Upon receipt of that report, the employee’s attorney provided Ms. Hanselman with a description of diagnostic medical sonographer requirements from the Dictionary of Occupational Titles [DOT] and asked her if, in light of the employee’s recent FCE, the employee was physically able to work in that capacity. In a letter dated August 28, 2007, Ms. Hanselman indicated as follows: that the employee fully met the sonographer job’s requirements of pushing or pulling twenty pounds occasionally, of frequent handling and fingering of work-related objects, and of frequent walking and/or standing; that the employee “[p]artially met” the job’s requirement of lifting and carrying twenty-pounds occasionally and ten pounds frequently, “[i]f possible, self selection to perform 1 handed carry to include use of left hand versus right hand in this instance” (sic); that, although the employee’s R33 did indicate the employee’s ability to operate foot controls bilaterally, it was impossible to determine if the employee was able to perform the job’s requirement of pushing and/or pulling of arm and/or leg controls, because the DOT had not designated the specific forces required for the job; and that the employee did not meet the job’s requirement of frequent reaching, though she might self select reaching to include use of her left upper extremity.
On August 27, 2007, the employee’s attorney mailed to Dr. Weiss what he described as “an occupational description for Diagnostic Medical Sonographers from the Dictionary of Occupational Titles,” requesting that he “[p]lease review the two page description” and offer an opinion as to the physical suitability of that work for the employee, in light of her recent FCE and her permanent work restrictions. On August 30, 2007, in a reply letter to the employee’s attorney, Dr. Weiss indicated that he had reviewed the occupational requirements for diagnostic medical sonographer as listed and that, “based upon my knowledge of [the employee’s] shoulder, her postoperative status and recovery to this point, etc., it is my opinion that she would be able to easily perform such a position without difficulty,” adding, “[i]n fact, I most certainly would favor this over more physical forms of work given her shoulder pathology and treatment.”
The matter came on for hearing the following day, August 31, 2007. The sole issue at hearing as identified in the compensation judge’s eventual Findings and Order was “[w]hether the proposed retraining plan (as modified at hearing) for the Diagnostic Medical Sonography Associate Degree Program, at Chippewa Valley Technical College in Eau Claire, Wisconsin, should be approved.” At hearing, the parties stipulated in part that “[t]he proposed plan satisfies all of the Poole case-law factors - - except the question of whether the proposed occupation is physically appropriate in light of the employee’s physical limitations.”
Evidence submitted at hearing by the employee included a six-page printout from the internet of the DOT’s principal description of work performed by Diagnostic Medical Sonographers, identified in the record as Petitioner’s Exhibit G, together with two pages of what also appears to be an internet printout, headed “Occupational Requirements,” referencing “Title: Diagnostic Medical Sonographer” and “DOT Code: 078.364-010,” the latter two pages identified in the record as Petitioner’s Exhibit C. The latter exhibit identifies in part the general strength requirement for the job as “Light” and the reaching requirement as “Frequently.” Also prominent near the top of the page is the following more specific description of other aspects of the work: “Lifting, Carrying, Pushing, Pulling 20 Lbs. Occasionally, frequently up to 10 Lbs., or negligible amount constantly. Can include walking and or standing frequently even though weight is negligible. Can include pushing and or pulling of arm and or leg controls.”
Evidence submitted at hearing by the employer and insurer included the testimony of the employee’s own QRC, Aaron McKay, who was of the opinion that the work as a sonographer would not be physically suitable for the employee. Mr. McKay’s opinion was based not only on the employee’s FCE but also on direct research into the sonography training at Chippewa Valley Technical College and job descriptions of sonography positions at Allina Hospital and Fairview Hospital. Further evidence introduced by the employer and insurer, in support of Mr. McKay’s testimony, included a printout from the internet of those sections of the DOT, Fourth Edition, Revised 1991, pertaining to Diagnostic Medical Sonographer work, similar to that submitted by the employee, and also a printout from the internet of related sections of the “Occupational Informational Network,” or “O*NET,” which the DOT itself, though still available online, indicates is the current replacement for the DOT. Physical tasks of a sonographer’s work as identified in the DOT include taking and recording relevant medical history from the patient, selection of appropriate equipment settings, direction of the patient’s movement into optimum positions, spreading of a special gel on the patient’s skin, operation of special equipment, and the taking of measurements and calculation of values for a preliminary report to the physician. The DOT indicates also that “[s]onographers are on their feet for long periods and may have to lift or turn disabled patients” and that “[t]hey work at diagnostic imaging machines, but also may perform some procedures at patients’ bedsides.” Additional physical demands of the job identified in the O*NET include also observing and caring for patients throughout their examinations, to ensure their safety and comfort, and processing and coding film from procedures. Also introduced by the employer and insurer at hearing, in support of QRC McKay’s testimony, was a computer printout of materials from the “Careeronestop” website pertaining to the work of diagnostic medical sonographers. Specific additional tasks and work activities listed in those materials included the following: cleaning, checking, and maintaining sonographic equipment; maintaining stock and supplies and preparing them for special examinations; performing medical procedures such as administering oxygen and giving emergency CPR; lifting or transporting ill or injured patients; and taking vital signs.
By findings and order filed October 2, 2007, the compensation judge concluded in part that, based on the record as a whole, employment as a diagnostic medical sonographer would be physically suitable for this employee, and he approved the proposed retraining plan. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[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, “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.” Id.
The compensation judge concluded that work as a diagnostic medical sonographer was physically suitable for the employee, and as such he approved retraining toward that end. Calling it in his memorandum “a very close case,” the judge cited in particular support of his decision the medical opinion of Dr. Weiss, the motivation of the employee, her strong work ethic and considerable real life contact with people who work in the sonography field, and elements of Mr. VanWagner’s report that reflect “a measure of [the employee’s] determination to adapt as necessary in order to function.” While he made no express mention, anywhere in his findings and order or accompanying memorandum, of the O*NET materials or the Careeronestop materials on work as a sonographer, it is evident to this court that he considered those as well as all other exhibits carefully. The employer and insurer contend that the judge’s approval of the employee’s retraining as a diagnostic medical sonographer is unsupported by substantial evidence. They argue as follows: (1) that the opinion of Dr. Weiss, upon which the judge relied, was without proper foundation, in that that opinion was not based on an accurate job description; (2) that physical therapist Hanselman, who conducted the employee’s final FCE, acknowledged being without sufficient information to render a complete opinion and that her opinion was equivocal at best; and (3) that QRC McKay’s opinion, that sonographer training was not physically suitable for the employee, was the only thoroughly researched opinion and the only opinion based on an accurate and current description of sonography work, as published in the O*NET as opposed to the DOT. We are not persuaded.
Early in their argument, the employer and insurer assert that the compensation judge’s conclusion “completely ignores QRC McKay’s testimony that the description [of the sonographer job] in the DOT is obsolete” and that therefore “Dr. Weiss’s opinions are based upon inaccurate information,” Dr. Weiss having reviewed a DOT description but apparently not the O*NET description. We note, however, that the O*NET description, while perhaps slightly more detailed than the DOT description, contains very little information that is materially different from that contained in the DOT. It is true that the DOT does not reference any potential necessity to lift or transport ill or injured patients, but that prospect is referenced only in the “Careeronestop” materials offered by the employer and insurer to supplement their defense. It is not in the O*NET materials that officially replace the official DOT materials. While adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact, see Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994), and we conclude that Dr. Weiss’s thorough knowledge of the employee’s condition and of her permanent restrictions, his general experience in the medical field, and his express review of the DOT materials provide adequate foundation for his expression of a creditable opinion on this issue - - which was that the employee “would be able to easily perform such a position without difficulty” (underscoring added). To the extent that the DOT information may be construed as lacking in any detail available in the O*NET or the Careeronestop information, any insufficiency in the DOT’s detail goes only to the weight of Dr. Weiss’s opinion, not to it’s foundation or competence. Moreover, it is clear that the judge himself considered both the O*NET description and the Careeronestop information in addition to Dr. Weiss’s opinion, in reaching the ultimate decision that he did.
The judge’s decision in this matter is also reasonably supported, if less substantially, by the reports of vocational expert Mr. VanWagner and physical therapist Ms. Hanselman. We grant that Mr. VanWagner’s report contemplated only the employee’s two pre-surgery FCEs and only that opinion of Dr. Weiss that was issued prior to his express review of the DOT job description. Mr. VanWagner’s report, however, furnishes a detailed picture of the employee’s ability and willingness to compensate for any right shoulder disability by more use of her left upper extremity, and, although it did not address her physical readiness for the work, his opinion that the employee had the intellectual ability, academic achievement levels, and aptitude to succeed in retraining as a sonographer - - particularly rendered as it was at the request of the employer and insurer - - is not without probative value. We grant also, as the employer and insurer have argued, that Ms. Hanselman’s report is equivocal at best. Ms. Hanselman does affirm, however, the employee’s full physical competence for sonographer work on three of six grounds; she affirms the employee’s competence for the work on two of the other three grounds with self-selection to share right-handed tasks with her left hand; and her declining to render an opinion on the sixth ground, pertaining to the job’s requirement of pushing and/or pulling of arm and/or leg controls, for the DOT’s lack of information on specific forces required, does not render her other findings of no probative value. This is particularly true in light of the fact that, based on the language of the employee’s attorney’s letter to Dr. Weiss on August 27, 2007, the two-page DOT-based job description reviewed by Dr. Weiss as a basis for his August 30, 2007, opinion very apparently did describe an occasional twenty-pound pushing/pulling requirement, while use of leg controls is less relevant to the employee’s shoulder disability. Moreover, actual job openings for medical sonographers, as collected in the record under Petitioner’s Exhibit D, do not appear generally to exceed the employee’s restrictions.
We grant that the testimony of QRC McKay is detailed and creditable, and we agree with the compensation judge’s assessment at the very start of his memorandum, that “[t]his was a very close case.” But given the unequivocal opinion of Dr. Weiss, who understands the employee’s restrictions as intimately as any, the reasonably supportive reports of Mr. VanWagner and Ms. Hanselman, and the compensation judge’s unique perspective for assessing the credibility of witnesses before him, see Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), we cannot conclude that the compensation judge’s award of the retraining benefits here at issue was unreasonable. Therefore we affirm it. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 In their notice of appeal, the employer and insurer identify this statement of the issue at hearing as one of the items from which they appeal, but they do not address their objection to it in their brief, and therefore we deem the issue waived. See Minn. R. 9800.0900, subp. 1 (“[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court”).
 See Poole v. Farmstead Foods, Inc., 42 W.C.D. 970, 978 (W.C.C.A. 1989).
 Both the Petitioner’s exhibits and the Respondent’s exhibits are copiously highlighted in a yellow marker, as has long been the practice of this compensation judge.
 See Footnote 3.