DENNIS LINDBERG, Employee/Appellant v. PRAIRIE CORRECTIONAL FACILITY and ZURICH/GAB ROBINS N. AM., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 14, 2008
PERMANENT TOTAL DISABILITY - THRESHOLD. Substantial evidence supports the compensation judge’s finding that the employee had not demonstrated he sustained permanent partial disability of the body as a whole based upon a non-work-related lumbar spine condition, and that although the employee has sustained a stipulated 13% permanent partial disability of the body as a whole relative to his thoracic spine, he has not met the statutory threshold of 17% permanent partial disability necessary for a determination of his eligibility for permanent total disability benefits.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: DeAnna McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Craig A. Larsen, Cousineau McGuire, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge’s denial of his claim for permanent total disability benefits on the basis that he has not demonstrated that he has satisfied the minimum permanent partial disability criteria required for permanent total disability under Minn. Stat. § 176.101, subd. 5(2)(a). The employee also appeals from the compensation judge’s denial of his claim for reimbursement for certain transportation expenses related to attendance at medical appointments and an independent vocational evaluation. We affirm.
In 1998, Mr. Dennis Lindberg [the employee], began working as a correctional officer for Prairie Correctional Facility [the employer]. On January 5, 2000, the employee sustained an admitted injury to his thoracic spine when he tripped over a step and fell. At the time of his injury, the employee was 26 years old, and earned a weekly wage of $369.00. The employer and its workers’ compensation insurer, Zurich/GAB Robins North America, Inc, admitted primary liability for the employee’s injury to his thoracic spine, and have paid various benefits, including the statutory maximum of 104 weeks of temporary total disability benefits, temporary partial disability benefits, medical treatment expenses, rehabilitation services, and benefits based on 13% permanent partial disability of the whole body referable to the thoracic spine.
The employee initially received chiropractic treatment from Dr. Allen Berquist, from early February through mid-March 2000. On March 13, 2000, he consulted Dr. Peter Reynen, at Milbank Medical Services, reporting left-sided low back pain and increased pain in his left mid-back. Dr. Reynen diagnosed “musculoskeletal strain and possibly a rib crack in the T11 area.” On May 3, 2000, at Dr. Reynen’s referral, the employee consulted Dr. Donald Frisco for an orthopedic evaluation. Dr. Frisco’s chart note states that the employee “fell while working on January 15, 2000, and landed on his left side and he developed mid-back pain and pain radiating around the left ribs.” Dr. Frisco’s diagnosis was “left mid-back/thoracic back pain; T-spine DJD, most extensive at T8-9, mechanical dysfunction thoracolumbar junction, and morbid obesity.” Dr. Frisco noted that the employee had received extensive treatment, including physical therapy, limited chiropractic treatment and medication, all without symptom relief. He suggested further work-up, including radiographic studies to evaluate for disk pathology. He also suggested a consultation with a dietician to address weight loss, as his weight was hindering the employee’s recovery. A later MRI scan of the thoracic spine was interpreted as showing no definite disc herniations or spinal canal stenosis.
The employee continued to obtain medical treatment for his back pain. He returned to work for the employer briefly after his injury, but was off work as of March 9, 2000, at which time the employer and insurer commenced payment of temporary total disability benefits. The employee was terminated from his position with the employer as of April 4, 2000. The employer and insurer continued to pay temporary total disability benefits, and later paid temporary partial disability benefits upon the employee’s return to work for a separate employer in 2001.
On June 17, 2000, Dr. John Dowdle examined the employee on behalf of the employer and insurer. The employee reported midback pain radiating to his left and right sides in the area of his ribs. Dr. Dowdle diagnosed a thoracic strain with left thoracic radiculitis as well as morbid obesity. He concurred with a treating physician’s recommendation for an intercostal nerve injection, and also suggested other prescription medication to decrease nerve irritation. Dr. Dowdle also recommended a weight loss program to improve the employee’s general health and to help decrease the pain he felt with movement. Dr. Dowdle assigned work restrictions and suggested that the employee would be a candidate for office work. He concluded that the employee had not yet reached maximum medical improvement (MMI).
The employer and insurer initiated provision of rehabilitation services in May 2000. The employee’s medical treatment, including periodic diagnostic testing, radiographic studies, physical therapy and prescriptions for continued pain, was overseen by Dr. Allan Ross at Northside Medical Center in Ortonville, Minnesota . The employee remained subject to work restrictions, and, according to a work performance assessment conducted in August 2000, was found to be capable of working at a medium duty level. By 2001, the employee obtained employment as a part-time school bus driver, initially working as a substitute driver for three hours per day, one to two days each week. His back symptoms persisted.
On March 8, 2001, Dr. Michael Smith examined the employee at the request of the employer and insurer. He concluded that the employee was neurologically intact, and diagnosed thoracic degenerative disc disease at the T8-9 level, with possible thoracic radiculopathy. Dr. Smith also diagnosed degenerative arthritis of the lumbar spine, as well as chronic pain syndrome, morbid obesity and sleep apnea. Dr. Smith recommended against chiropractic care, recommended active aerobic conditioning, and also suggested a thoracic myelogram and CT scan to rule out a lateral disc herniation. He recommended chronic pain management and integration back into the regular work force if the diagnostic test results were normal and further intervention, possibly including surgery, if the studies were abnormal.
In April 2002, Dr. Ross referred the employee to Dr. Mark Fox for an orthopedic surgical consultation. Subsequent diagnostic testing revealed herniated discs at three levels of the thoracic spine. On May 20, 2003, Dr. Fox performed surgery on the employee’s thoracic spine, including anterior thoracic discectomies at T5-6, T6-7, and T7-8, as well as fusion at those three levels with instrumentation. That surgery did not improve his mid-back condition, however, and the employee continued to experience symptoms in his mid-back and developed a non-fusion or pseudoarthrosis.
Following his recuperation from surgery, the employee returned to work as a school bus driver. His symptoms persisted, and in March 2004, at the referral of Dr. Fox, he consulted a physiatrist, Dr. Myung Cho, for evaluation and potential treatment in a chronic pain management or work-hardening program. Upon Dr. Cho’s recommendation, the employee participated in an outpatient chronic pain management program in Sioux Falls, South Dakota, and he was able to return to his work as a school bus driver after completion of that program.
Once the employee returned to work, his rehabilitation assistance was temporarily suspended. In July 2004, however, the employer and insurer reinstated rehabilitation and job search assistance in an attempt to locate employment that would provide higher wages to the employee. The employee also began formal study in an attempt to complete his G.E.D. Neither effort was successful at that time. The employee was unable to locate any alternative employment beyond his part-time job as a bus driver. According to rehabilitation records and the employee’s testimony, he has not yet attained his G.E.D.
Since his injury in 2000, the employee has received ongoing treatment for his thoracic spine. He has also reported low back pain, and has undergone various diagnostic testing, including MRI scans of the thoracic and lumbar spine, myelograms of the thoracic spine and x-rays of the thoracic and lumbar spine. The employee has also undergone functional capacity evaluations in the course of his rehabilitation, and has consulted with various medical specialists. In August 2005, following approval of the employee’s request for additional consultation and treatment for chronic pain, the employee began treatment with Dr. Leslie Hillman, a physical and rehabilitation specialist with Central Minnesota Neurosciences. In addition, the employee followed up with his surgeon, Dr. Fox, and with Dr. Wilson Asfora, who recommended an intrathecal pump or dorsal column stimulator to treat the employee’s intense pain. Upon further evaluation, and following a pre-surgical psychological evaluation with Dr. Michael Bloom, the employee’s physicians determined that an intrathecal pump would not be appropriate and instead referred the employee to a chronic pain program. On March 31, 2006, Dr. Hillman restricted the employee from work. Since that date, no treating physician has released the employee to return to employment.
The employee’s symptoms have persisted. His medical records show that he has made several trips to local emergency rooms due to unbearable pain accompanied by muscle spasm and leg pain which, according to the employee’s testimony, limited his ability to walk or move. In January 2007, upon referral from Dr. Hillman, the employee consulted Dr. Sam Elghor at the Center for Pain Management, for recommendations concerning his chronic pain. Dr. Elghor recommended a thoracic epidural injection to evaluate the employee’s spine and to determine whether the employee would be a candidate in the future for spinal cord stimulation. The record does not include later reports or treatment recommendations from Dr. Elghor.
In April 2007, the employee was hospitalized in Sioux Falls for eight days to treat his intractable back pain. The employee testified that he continues to note mid-back and low back pain and is limited in how much he can flex his low back to perform certain self-cares. He finds that he is unable to drive due to the level of pain and the use of narcotic medication, and occasionally falls due to leg spasms.
On January 18, 2007, the employee filed a claim petition seeking permanent total disability benefits since November 11, 2006, the date his entitlement to temporary total disability benefits expired, due to the statutory limitation of 104 weeks of such benefits. As part of his claim, the employee alleged that because of his lumbar spine condition - - which he did not contend was related to his work injury - - he qualified for a 10% whole body impairment rating to the lumbar spine. He alleged that this 10% rating, in combination with his 13% rating for his work-related thoracic spine condition, satisfied the statutory threshold of 17% whole body impairment necessary to qualify him for receipt of permanent total disability benefits.
The employee based his permanency claim on the opinion of Dr. Ross, who had provided his opinion concerning the employee’s level of permanent partial disability in response to a letter sent to him by counsel for the employee. In that letter, counsel requested Dr. Ross’s opinion on whether certain medical conditions qualified the employee for permanency ratings, using the Minnesota Department of Labor and Industry Disability Schedules, Chapter 5223, as a guideline, and citing to portions of the employee’s medical records related to three medical conditions: his lumbar spine, Type II diabetes, and a non-union of a fractured bone in the employee’s right foot. Dr. Ross responded to the question of whether the employee qualified for a 10% whole body impairment rating relative to his low back by checking the blank marked “yes”and by adding a brief note stating that “Patient has medical evidence of.” Dr. Ross also checked the blanks marked “no” in reference to other cited medical conditions; he advised that the employee did not have Type II diabetes, and that he had recovered from the fractured right metatarsal.
On March 17, 2007, Dr. Dowdle reexamined the employee at the employer and insurer’s request. The employee’s primary complaint was his midback pain radiating to his left and right sides; he also reported low back pain, and advised Dr. Dowdle that he had been unable to resume his work activities due to his continuing back pain and resulting limitation on his activities. Dr. Dowdle diagnosed the following:
1. Morbid obesity and deconditioning;
2. Mechanical mid thoracic back pain with thoracic radicular pain on the left, resolved;
3. Pain mid thoracic on the right status post rib resection, anterior and posterior fusion at the T5-6, T6-7 and T7-8 segments;
4. Solid fusion T5-6;
5. Pseudoarthorsis T6-7 and T7-8;
6. Continued mechanical low back pain.
Dr. Dowdle concurred with Dr. Elghor’s recommendation for a thoracic epidural injection, and suggested that the employee’s ongoing treatment include chronic pain management as opposed to any additional surgery. He concluded that
It is my opinion the prognosis in this case is guarded due to [the employee]’s two problems at this point. One problem is morbid obesity and the other is the mechanical low back pain with a degenerative disc in the thoracic spine and post surgical symptoms. At this point, as far as treatment is concerned, decreasing his weight may afford him significant improvement and decrease his pain levels, and may allow him to be functional at a sedentary level. As already noted, I believe [the employee] needs to be managed on a pain management level rather than additional surgery.
Dr. Dowdle encouraged an aggressive approach to weight loss to reduce the “force and stress on a degenerative process in the mid portion of his back, and potentially afford him significant relief. This and the medication may afford him an opportunity to return back to sedentary-type work activities,” if allowance was made for some mobility in view of his fusion surgery. In a follow-up report, Dr. Dowdle concluded that the employee “has the potential for being medically and clinically improved,” based on potential weight loss and on whether additional surgery could be considered once he lost weight.
In an amendment to his claim petition, the employee also sought reimbursement for payment he made to a friend who had driven him to three appointments in April and May 2007: two medical appointments with Dr. Elghor in Sartell, Minnesota, and an appointment to attend a vocational evaluation with Lynn Hjelmeland in Alexandria, Minnesota. The employee sought penalties for the employer and insurer’s failure to earlier pay these requested transportation expenses.
The employee’s claims were addressed at a hearing on October 23, 2007. At hearing the employer and insurer asserted that the employee had not met the statutory threshold for permanent partial disability as required for a claim of permanent total disability benefits. The employer and insurer also asserted that it was premature to determine that the employee was permanently and totally disabled, basing their argument, in part, on Dr. Dowdle’s opinion that additional treatment, including weight loss, could lead to improvement of the employee’s condition sufficient to allow him to return to work. The employer and insurer also contended that the employee had not provided appropriate documentation of the claimed transportation expenses, therefore no reimbursement was yet due. The employer and insurer also asserted that their defense to the employee’s claim for transportation expenses was not frivolous and therefore the employee did not qualify for payment of a penalty based upon a frivolous denial of a claim.
In his findings and order served and filed December 14, 2007, the compensation judge denied the employee’s claim for permanent total disability benefits and for reimbursement of transportation expenses. Although he acknowledged the employee’s lumbar spine condition, including degenerative changes at multiple levels of the lumbar spine, he concluded that the employee failed to demonstrate that he has sustained a rateable permanent partial disability related to the lumbar spine. As a result, the compensation judge concluded that the employee had not satisfied the minimum permanent partial disability criteria required to be eligible for permanent total disability benefits.
The compensation judge also denied the employee’s claim for reimbursement of transportation expenses. He concluded that although a friend had driven the employee to medical appointments on April 25 and May 15, 2007, and to an independent vocational evaluation on May 17, 2007, the employee had provided no documentation or proof of payment that he made to the driver. The compensation judge found that the employee had not demonstrated entitlement to reimbursement for those expenses, nor had he demonstrated entitlement to penalties for the employer and insurer’s failure to pay the requested transportation expenses.
The employee appeals.
Permanent Total Disability
The employee appeals the compensation judge’s finding that the employee has not sustained a ratable permanent partial disability related to his low back. The employee argues that he has continued to experience pain in both his thoracic and lumbar spine since his 2000 injury, that his medical records document his low back symptoms and the diagnostic testing conducted on his lumbar spine, and that the compensation judge erred in concluding that the employee does not satisfy the criteria necessary for assignment of a permanency rating relative to his lumbar spine.
As outlined in Minn. Stat. § 176.101, subd. 5, a person is permanently totally disabled if he has sustained an injury which “totally and permanently incapacitates the employee from working at an occupation which brings the employee an income,” provided that the employee also meets a threshold rating of permanent partial disability. The phrase “totally and permanently incapacitated” is defined by the statute as meaning that “the employee’s physical disability in combination with any requisite amount of permanent partial disability causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.” Other factors to be considered include the employee’s age, education, training and experience. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239, 252 (W.C.C.A. 1997), summarily aff’d (Minn. Oct. 28, 1997); Schulte v. C.H. Peterson Construction Co., 278 Minn. 79, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).
A determination of permanent total disability requires a certain level of permanent partial disability, as outlined in Minn. Stat. § 176.101, subd. 5. See Gluba v. Bitzan & Ohren Masonry, 735 N.W.2d 713 (Minn. 2007). In determining whether an employee has met the statutory threshold, it is not necessary that all ratable permanent impairment be related to the work injury nor that it be a factor affecting the employee’s wage loss or ability to work. Indihar v. State, Dep’t of Commerce, 64 W.C.D. 437 (W.C.C.A. 2004); see also Wensman v. St. John’s Univ., 64 W.C.D. 490 (W.C.C.A. 2004), summarily aff’d (Minn. Oct. 27, 2004); Makowsky v. St. Mary’s Med.l Ctr., 62 W.C.D. 409, 415-19 (W.C.C.A. 2002); Shelton v. National Painting & Sandblasting, 61 W.C.D. 230, 244-45 (W.C.C.A. 2000); Metzger v. Turck, 59 W.C.D. 229 (W.C.C.A. 1999).
The employee, now 34 years old, must meet the threshold of 17% permanent partial disability of the whole body before he can be found to be permanently and totally disabled. As stipulated by the parties, the employer and insurer have paid 13% permanent partial disability of the whole body for the employee’s thoracic spine condition. The employee claims that he has sustained an additional 10% permanent partial disability under Minn. R. 5223.0390, subp. 3C(2), which requires:
C. Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part;
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(2) multiple vertebral levels, ten percent.
As noted by the compensation judge, Dr. Ross is the only doctor to indicate that the employee has sustained any permanent partial disability related to his low back. Dr. Ross found that the employee did not qualify for permanency ratings related to Type II diabetes or the non-union of a right metatarsal fracture. However, he concluded that the employee qualified for a 10% permanent partial disability rating related to his low back. In order to obtain a permanent partial disability rating, the employee must meet each element of the particular disability schedule. Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (Minn. 1987). The compensation judge noted that Dr. Ross did not address the employee’s lumbar spine condition specifically with respect to the factors cited in the rule, and did not cite specific objective findings in support of the permanent partial disability rating.
The employee argues that the compensation judge is not free to disregard unopposed medical testimony, referring to Dr. Ross’s opinion regarding a permanency rating for the employee’s lumbar spine. See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990); see also Olson v. Midwest Printing Co., 347 N.W.2d 43, 46, 36 W.C.D. 623, 627 (Minn. 1984) (citing DeHaan v. Farmers Union Mktg. & Processing Ass’n, 302 Minn. 552, 555, 225 N.W.2d 21, 23, 27 W.C.D. 683, 686 (1975)). A compensation judge may not ignore or “disregard” uncontroverted medical opinion. See Flansburg v. Giza, 284 Minn. 199, 169 N.W.2d 744, 25 W.C.D. 3 (1969). "[T]here is a difference between disregarding unopposed medical opinion and rejecting it on the basis of other evidence." Clark v. Archer Daniels Midland, slip op. at 6 (W.C.C.A. Feb. 14, 1994). In addition, the compensation judge is not bound by the ratings made by physicians; the ratings of the physicians simply assist the compensation judge in making ultimate fact determination of the appropriate permanent partial disability rating. Jensen v. Best Temporaries, 46 W.C.D. 498, 501 (W.C.C.A. 1992).
In this case, the compensation judge did not ignore uncontroverted medical testimony. The compensation judge reviewed the medical records from the employee’s treating physicians as well as the employee’s testimony and other documents in the record, and determined that the medical opinion on which the employee relied did not support a conclusion that the employee sustained permanent partial disability related to his low back. The compensation judge acknowledged that the employee has been diagnosed with degenerative changes at multiple levels of his lumbar spine, including spondylosis without spondylolisthesis at L5 and mild stenosis from L2-5. The compensation judge, however, found that the employee failed to demonstrate that he has satisfied the minimum permanent partial disability criteria required for permanent partial disability rating to his lumbar spine. In his memorandum, the compensation judge stated that:
While the employee’s diagnostic testing does demonstrate spondylosis and degenerative changes at multiple levels, the evidence of persistent objective findings is less clear . . . . The permanent partial disability “opinion” is not stated in a narrative report or office notes.
It is the employee’s burden to demonstrate by a preponderance of the evidence that the requisite elements of a specific permanent partial disability rating have been met. [Cite omitted.] Neither Dr. Ross nor any other examiner has offered even a brief discussion regarding the employee’s lumbar spine, particularly with respect to the factors cited in Minn. Rule § 5223.0390. Dr. Ross does not cite specific objective findings in support of a PPD rating.
The employee sustained a significant injury to his thoracic spine and then underwent a three level fusion with instrumentation, which failed. He continues to experience severe pain which is generally localized in the lower thoracic spine, as is documented by extensive medical records. He has occasionally reported that this pain radiates up and down his spine. Presumably his limited range of motion is attributable, at least in part, to this thoracic injury. Although his records do contain occasional references to low back discomfort, particularly in 2000 and 2001, his providers have not provided any significant treatment addressing the lumbar levels. No treating physician, including Dr. Ross, explicitly described persistent complaints of lumbar pain, persistent objective findings of lumbar spasm or persistent limitation of lumbar motion since 2002.
(Memo. at 4-5; emphasis in original.)
A compensation judge’s finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987). It is not the role of this court to make our own evaluation of conflicting testimony or to choose from among possible inferences different from those drawn by the compensation judge. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). Upon appellate review, “[t]he point is not whether [the appellate court] might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.” Id. Under this court’s standard of review, we must consider whether there is substantial evidence to support the conclusion reached by the compensation judge, and, in so doing, we are to look not “only at the evidence which supports the Compensation Judge’s findings, but also at the opposing evidence . . . . The evidence, in a sense, is weighed to determine its substantiality.” See Kidd v. NSP Co. d/b/a Xcel Energy, No. WC07-278 (W.C.C.A. June 23, 2008), quoting Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). We have reviewed and weighed the extensive medical and other evidence in the record, with careful note of the specific records cited by the parties in their briefs, and conclude that substantial evidence supports the compensation judge’s finding that the employee failed to demonstrate that he has more than 13% permanent partial disability of the body as a whole, and that he has not satisfied the statutorily-required permanent partial disability criteria necessary for eligibility for permanent total disability benefits. We therefore affirm those findings.
The employee also appeals the compensation judge’s finding that the employee did not submit proof of payment to a driver he hired to drive him to three out-of-town appointments and the resulting denial of reimbursement for that transportation expense. The employee resides in rural eastern South Dakota and, at the time of the appointments at issue, in April and May 2007, he was incapable of driving an automobile due to his increased pain and his use of prescribed narcotic pain medication. The employee therefore made arrangements with a friend to drive him to the appointments; he claims that he paid his friend based upon the hours spent traveling, using the same hourly rate of $10.00 that the friend earned at his place of employment. Based upon correspondence submitted into evidence, the employer and insurer apparently agreed to reimburse the employee for these payments, but only within certain limits and subject to receipt of requested documentation of the claimed expense.
A dispute arose regarding the number of hours to be paid to the driver. Although the employee and his wife testified that they had paid the driver based on the actual number of hours he drove on each of the three days, the employer and insurer apparently agreed to pay only for those hours which the driver actually missed from his employment. The employer and insurer therefore requested an accounting of the driver’s lost wages. The employee provided a letter from the driver’s employer, in which that employer verified the driver’s hourly wage and that he had missed work on the three days in question in order to drive the employee to medical appointments. The employee, however, did not provide documentation of the driver’s actual lost time from work, as requested by the employer and insurer. There was also no documentation of payment receipt by the driver and the driver did not testify or provide an affidavit regarding the amount of payment he had received from the employee. (See Employee Exhibit J.)
The compensation judge denied the employee’s claim for reimbursement of transportation expenses. He found that a friend had driven the employee to medical appointments on April 25 and May 15, 2007, and to an independent vocational evaluation on May 17, 2007, and that the insurer had consented to reimbursement of the driver’s actual loss of earnings resulting from his travel. Because the employee had provided no documentation or proof of payment to the driver, the compensation judge concluded that the employee had not demonstrated entitlement to reimbursement for those expenses, nor had he demonstrated entitlement to a penalty claim.
It appears from the record that the employee was paid mileage in advance for attendance at the vocational evaluation and was paid mileage for his medical appointments. Based upon the evidence submitted into the record on this transportation issue, it was not unreasonable for the compensation judge to determine that the employee did not provide documentation of payment to his driver. Substantial evidence supports the judge’s finding and the resulting denial of that claim, and we affirm.
 The employee testified that he had remained off work due to this physician’s restrictions. According to a letter sent to the employee by the employer on April 4, 2000, however, he was terminated from his position “for failing to call in or show for March 31, April 1 and 2,” after being released to return to work as of March 29. The employer also advised the employee that he had not provided evidence that he had completed his General Education Development (G.E.D.) requirements by April 1, even though he had been provided time to complete that process.
 See Minn. Stat. § 176.101, subd. 5(2)a.
 Minn. Stat. § 176.101, subd. 5, states, in part, as follows:
Subd. 5. Definition. For purposes of subdivision 4, “permanent total disability” means only:
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(2) any other injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee must also meet the criteria of one of the following clauses:
(a) the employee has at least a 17 percent permanent partial disability rating of the whole body;
(b) the employee has a permanent partial disability rating of the whole body of at least 15 percent and the employee is at least 50 years old at the time of injury; or
(c) the employee has a permanent partial disability rating of the whole body of at least 13 percent and the employee is at least 55 years old at the time of the injury, and has not completed grade 12 or obtained a GED certificate.
For purposes of this clause, “totally and permanently incapacitated” means that the employee’s physical disability in combination with any one of clause (a), (b), or (c) causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Other factors not specified in clause (a), (b), or (c), including the employee’s age, education, training and experience, may only be considered in determining whether an employee is totally and permanently incapacitated after the employee meets the threshold criteria of clause (a), (b), or (c). The employee’s age, level of physical disability, or education may not be considered to the extent the factor is inconsistent with the disability, age, and education factors specified in clause (a), (b), or (c).
 The employee did not appeal the denial of his penalty claim.
 The employee indicated that he paid the driver based on the actual number of hours he drove, including 11.5 hours on April 25, 9 hours on May 15, and 10 hours on May 17, 2007.