MICHAEL WHITEBEAN, Employee, v. YMCA OF GREATER ST. PAUL and ST. PAUL TRAVELERS, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 22, 2008
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical and vocational evidence, supports the compensation judge=s finding that the employee has been permanently and totally disabled from sustained gainful employment since October 21, 2004.
Determined by: Rykken, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent. Thomas A. Atkinson, John G. Ness & Assocs., St. Paul, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee is permanently and totally disabled as a result of his injury of September 1, 2002. We affirm.
Michael Whitebean, the employee, worked for the YMCA of Greater St. Paul, the employer, on a full-time basis, earning a weekly wage of $288.00. On September 1, 2002, he was employed at Camp DuNord, the employer=s northern Minnesota facility. On that date, the employee and a co-employee lifted and moved docks. While they lifted one of the docks, the dock slipped in the co-employee=s hands, which caused the weight of the dock to be bourne by the employee and jerked him forward. The employee experienced an immediate onset of pain and discomfort in his low back as well as in his groin area. He worked the following day, but his work activities tended to worsen his symptoms. The employee consulted physicians at the Duluth Clinic; on September 4, 2002, Dr. John Knott restricted the employee from work for approximately two weeks.
The employer and its workers= compensation insurer, St. Paul Travelers, admitted primary liability for the employee=s injury, and instituted payment of temporary total disability benefits. Once the employee was released to return to work within light duty work restrictions, he continued to work until early November, when he again was restricted from work due to his ongoing symptoms. The employer and insurer re-commenced payment of temporary total disability benefits as of November 7, 2002.
The employee sought continued medical treatment for his groin pain and the continued low back and radicular pain that he had noted since his injury. He also obtained treatment for symptoms of depression that developed post-injury. On November 7, 2002, at Dr. Knott=s referral, the employee consulted Dr. Stephen Marchuck at the Duluth Clinic - Hibbing, reporting low back pain as well as his groin pain. Dr. Marchuck restricted the employee from work and prescribed physiotherapy. On January 30, 2003, at Dr. Marchuck=s referral, the employee consulted Dr. T. Scott Douglass in the Occupational Medicine Department at the Duluth Clinic - Virginia. Dr. Douglass diagnosed a lumbar strain with lower back pain, right groin pain, bilateral leg pain symptoms and pelvic dysfunction. Dr. Douglass also diagnosed symptoms of severe depression, as the employee reported suicidal ideation to Dr. Douglass. He concluded that the employee=s depression was probably secondary to his chronic pain and disability, and referred the employee for an urgent consultation at Range Mental Health Center for evaluation of his depressive symptoms and suicidal ideation. He also recommended that the employee continue his physical therapy to treat his low back condition, restricted him from work, and continued to oversee the employee=s treatment.
An MRI scan of the employee=s lumbar spine, conducted on February 3, 2003, showed an asymmetrical disc protrusion at the L4-5 on the right with right L4 and L5 nerve root compression. An MRI scan of the employee=s pelvis conducted that same day was interpreted as being normal. Dr. Douglass later diagnosed a right inguinal hernia, lumbar disc disease with radicular symptoms of pain in the right hip and leg, consistent with possible L4-L5 nerve root irritation, and depression for which the employee continued to receive treatment and prescription medication. He referred the employee for a neurosurgical consultation, and continued to restrict the employee from work.
The employee=s groin pain worsened, and he consulted Dr. Wendell Smith for his hernia condition. On February 11, 2003, Dr. Smith performed hernia repair surgery in the nature of a right inguinal herniorrhaphy.
Dr. James Callahan, neurosurgeon, initially examined the employee on May 5, 2003, and diagnosed mechanical low back pain due to two levels of degenerative disk change. He initially provided the employee with an epidural steroid injection at the L4-5 level, and recommended physical therapy, but later referred the employee for discography to evaluate his severe low back pain. Based on the results of the testing, Dr. Callahan suggested surgery to treat his condition. Dr. Callahan also recommended that the employee begin a vocational analysis in consideration for retraining, and advised the employee that it was likely he would never be able to return to heavy work.
On September 18, 2003, Dr. Callahan performed surgery in the nature of an anterior lumbar discectomy and an anterior interbody fusion at the L4-5 and L5-S1 levels, as well as a posterior fusion from the L4 level to the sacrum. He provided the employee with follow-up treatment, and prescribed post-surgery physical therapy. By July 2004, Dr. Callahan concluded that the employee=s condition had plateaued to the point where he could be released to permanent sedentary work with a work restriction of no lifting over ten pounds. In a Health Care Provider Report dated August 9, 2004, Dr. Callahan assigned 20% permanent partial disability of the whole body.
The employer and insurer continued to pay ongoing temporary total disability benefits until October 20, 2004, at which time the employee=s entitlement to such benefits ceased as he had been paid the statutorily-allowed maximum of 104 weeks of temporary total disability benefits. See Minn. Stat. ' 176.101, subd. 1(k).
In early 2005, the employee attempted to return to work, initially working one day each week for approximately two months, delivering a local shopping paper published by the Ely Shopper. He earned $7.50 per hour. In addition, between May 13, 2005, and mid-November 2005, the employee worked in a delicatessen at a local casino. He performed various duties including operating the cash register, cooking, mopping floors, and restocking items, earning $7.40 per hour. The work he performed at the casino was often beyond his assigned physical work restrictions. He testified that because the work aggravated his low back symptoms, he typically missed two days of work every other week, but continued to work as many hours as possible. Based on the information in the record, it appears that his hours ranged from approximately 15 to 35 hours per week, and averaged approximately 30 hours per week.
On July 22, 2005, the employee underwent an independent psychiatric examination with Dr. Keith Hartman. Records show that the employee had received psychiatric and psychological counseling for his depression and anxiety since January 2003, and had been diagnosed with major depression and anxiety, largely due to his sense of lack of self worth related to his inability to work. His records document repeated expressions of suicide ideation, but also included reports by the employee that his antidepressant medication had been beneficial. Dr. Hartman diagnosed the employee as having major affective disorder, depression and obsessive-compulsive personality features, and concluded that the employee=s injury was the cause of his mood disorder. He also addressed the occasions when the employee either was treated for or experienced the over-use of alcohol, and concluded that the employee=s prognosis for complete recovery was good as long as he abstained from alcohol. He also commented that he Awould not place psychological limitations on the [employee=s] personal or occupational pursuits as a result of this injury. He currently functions in a position where there is a good deal of >people= pressure and contact, and by his account does well.@
During the same time when he was receiving psychological counseling, and due to increasing discomfort in the right groin area, the employee consulted Dr. Smith in November 2005, reporting groin pain radiating into his right leg, and advising that he had noted continued symptoms in his groin area following his February 2003 surgery. Dr. Smith diagnosed a probable ilioinguinal nerve entrapment. On November 18, 2005, Dr. Smith performed surgery to correct the nerve entrapment between the ilioinguinal nerve, scar tissue and mesh that had been inserted during the employee=s first surgery. At a follow-up appointment on December 5, 2005, Dr. Smith advised the employee to avoid any heavy lifting or strenuous activity. The employee had taken a leave of absence from his work at the casino at the time of his surgery in November 2005, and, by the time of the hearing in February 2007, had not yet returned to work.
On February 1, 2006, the employee reported to his family physician, Dr. Knott, that his groin symptoms had improved, but that his low back pain had increased. Dr. Knott continued to prescribe pain medication for the employee, recommended a repeat lumbar MRI scan, and assessed the employee=s ongoing low back symptoms. The MRI scan conducted on May 25, 2006, revealed a solid lumbar surgical fusion and no new pathology. Dr. Knott referred the employee for additional physical therapy, and advised that the employee remained entirely restricted from work.
According to Dr. Knott=s chart note of August 1, 2006, the employee reported continued depression and continued low back pain. Dr. Knott diagnosed lumbar and lumbosacral disk degeneration, depressive disorder, erectile dysfunction, and inguinal hernia. Dr. Knott continued to restrict the employee entirely from work due to his hernia and low back conditions. The employee has received follow-up care for his low back and groin conditions, and has also undergone treatment for depression, including psychiatric and psychological counseling and antidepressant medication. The employer and insurer have admitted liability for and have paid for the employee=s medical treatment related to his depression.
The employer and insurer also provided statutory case management assistance as well as rehabilitation and placement assistance, initially extending from February 2003 to September 2005. A dispute arose as to the employee=s entitlement to continued rehabilitation assistance, once the employee had returned to work and had reached maximum medical improvement. Minimal rehabilitation assistance was provided from approximately September 2005 until August 2006, when the assignment of the employee=s qualified rehabilitation consultant (QRC) was changed to Ms. Sharon Naumann. Limited rehabilitation assistance in the form of medical management was provided by the newly-assigned QRC between August 2006 and the date of hearing in February 2007.
In addition to a dispute concerning the employee=s entitlement to rehabilitation, disputes arose concerning the compensability of the employee=s groin injury and the employee=s claims for temporary partial disability benefits for the months in 2005 when he worked at the casino delicatessen, for permanent total disability benefits, and for prescription medication. The disputed issues were consolidated and set for a hearing in February 2007.
On August 5, 2006, Dr. Thomas Jetzer conducted an independent medical examination of the employee, to address the employee=s groin condition. The employee evidently reported to Dr. Jetzer that the only reason he was off work was because of his back and not because of his hernia. Dr. Jetzer concluded that, with respect to the employee=s groin condition, the employee was fully capable of working and needed no restrictions. Dr. Jetzer also concluded that the employee, at most, suffered from a groin strain as a result of his September 2002 injury. He found no causal relationship between the employee=s September 1, 2002, injury and his groin condition, basing this conclusion on what seemed to be an equivocation in the medical records about whether the employee needed an exploration of his right groin in the first place or whether he actually had an inguinal hernia.
On November 2, 2006, Mr. Franklin Cox, M.S., C.R.C., conducted an independent vocational evaluation of the employee, which included an interview and various aptitude and vocational tests. Mr. Cox concluded that the employee had vocational rehabilitation potential, although he concluded that the residual effects of the employee=s low back injury were vocationally significant, and that his physical limitations diminish the transferability of his skills, and that this combination, in with a small labor market, Awould make direct placement a challenge.@ Mr. Cox also concluded that the employee=s chronic pain and depression conditions were significant. He recommended that those conditions be addressed, through an out-patient or in-patient program, that the employee undergo a functional capacity evaluation, and that the parties consider on-the-job training, short-term skill enhancement or both. Mr. Cox advised that retraining could be an option Aonly if the client realized significant progress in his chronic pain/depression issues.@ He suggested that the employee consider part-time employment that might work into full-time status, to ease the employee=s transition into employment.
In a letter dated December 7, 2006, Ms. Naumann advised counsel that she would not recommend focusing on retraining and job placement at that time, as she believed it was Apremature to make a determination whether the employee would benefit from retraining or job placement services in the future considering that the results of the chronic pain program are not available.@
On January 3, 2007, the employee underwent an evaluation with Kathy Henrickson, R.N., C.N.P., at the Duluth Clinic Pain Management Center, for participation in its formal pain management program. The proposed outpatient program included psychotherapy, physical and occupational therapy, patient education, as well as a referral for a sleep study, psychiatric evaluation and smoking cessation program, and extended over a sixteen-week period of time. Ms. Henrickson=s note advises that the clinic would await insurance authorization for the employee=s attendance at the program, and also noted that the employee=s prognosis was AGuarded.@
A hearing was held on February 23, 2007, before a compensation judge; testimony was taken from the employee and his spouse, the QRC and the employer and insurer=s independent vocational expert. Post-hearing, the parties submitted written memorandum, and the employer and insurer submitted a supplemental report prepared by Dr. Hartman.
In his findings and order, the compensation judge concluded that the employee=s injury on September 1, 2002, represented a substantial contributing cause of his ongoing groin pain and need for related treatment; that the employee=s injury and related depression constituted a substantial contributing cause of the employee=s erectile dysfunction and need for prescription medication to treat that condition; and that, but for the six-month period of time when the employee worked at the casino delicatessen, the employee had been permanently and totally disabled since November 7, 2002. The compensation judge also concluded that the work the employee performed at the delicatessen in 2005 was in excess of his restrictions and that he was entitled to payment of temporary partial disability benefits for that period of time, based on his actual earnings as opposed to a wage earlier imputed by the employer and insurer.
The compensation judge found that, as of the date of the hearing, Athe employee is and continues to be permanently totally disabled@ and was precluded from work as a result of his 2002 injury. He concluded that
Although additional medical care and treatment, including participation in the pain management program, may beneficially affect the employee=s chances of being able to reenter the job market, as of the date of hearing the employee continues to be unable to perform anything approaching substantial gainful employment.
The employer and insurer appeal from the finding that the employee is permanently and total disabled from employment as a result of his injury on September 1, 2002.
The employer and insurer appeal the compensation judge=s finding that the employee is permanently and totally disabled. Minn. Stat. ' 176.101, subd. 5(2) defines permanent total disability as any Ainjury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@ The statute further provides that Atotally and permanently incapacitated@ means that the employee=s physical disability in combination with the requisite level of permanent partial disability causes the employee to be Aunable to secure anything more than sporadic employment resulting in an insubstantial income.@ Id., subd. 5. AA person is totally disabled if his physical condition, in combination with his age, training and experience, and the type of work available in the community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.@ Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). APermanent total disability is primarily dependent on an employee=s vocational potential rather than his physical condition.@ Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1993). In Minnesota, a marginal income or a limited capacity to earn does not preclude a determination of permanent total disability. See Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W.2d 228, 27 W.C.D. 786 (1975); Green v. Schmahl, 202 Minn. 254, 278 N.W.2d 157, 10 W.C.D. 209 (1938).
The essential issue raised in the current appeal is whether the compensation judge=s factual conclusion, that the employee is permanently totally disabled from employment, is supported by substantial evidence in view of the entire record as submitted. The employer and insurer argue that it was premature to determine whether the employee is permanently and totally disabled, as no doctor had specifically advised that he is unable to work and because additional medical treatment had been recommended, which ostensibly could increase the employee=s ability to work. They argue, therefore, that there is a lack of clear medical opinion from any treating doctor whether the employee is unable to return to work and a lack of vocational evidence supporting the judge=s conclusions.
It is undisputed that the employee is permanently precluded from returning to the work that he was performing at the time of his injury, due to his current physical work restrictions. Nor is it contended by the employer that other employment within the employee=s physical limitations is available to him in his community. At the time of the hearing before the compensation judge, additional medical treatment had been recommended for the employee, in the nature of a pain management program, and the employee=s treating and consulting physicians had not yet released him to return to work, pending the outcome of that treatment. The employer and insurer argue that it was premature for the compensation judge to conclude that the employee is permanently and totally disabled in view of the pain management treatment that had been proposed. The employer and insurer rely on the opinion of Dr. Hartman, independent consulting psychiatrist, who concluded that Ait is employment coupled with mental health therapy that will break the cycle of perceived disability in this case.@
A disability Ais permanent if it is likely to exist for an indefinite period of time.@ Cavanaugh v. Frederick Willys, Inc., 361 N.W.2d 49, 37 W.C.D. 383 (Minn. 1985). Citing to the reference in Cavanaugh, the compensation judge concluded, from both a medical and vocational perspective, that the employee remained disabled from employment. The employer and insurer argue that the judge erroneously concluded that the employee=s proposed participation in a chronic pain program created a period of Aindefinite disability.@ They assert that the employee would be participating in a pain program in the foreseeable, and not indefinite, future; that the pain program would facilitate a further review of his work abilities; and therefore it was premature for the compensation judge to conclude that the employee was permanently and totally disabled. We are not persuaded.
The compensation judge referred to both the medical and vocational evidence that showed the employee=s inability to engage in any sustained gainful employment; the record amply supports the compensation judge=s conclusions. The employee has a significant disability resulting from his work injury, including an injury to his low back and groin area and substantial negative psychological effects that developed as a compensable consequence of his physical injuries. He continues to be disabled from sustained gainful employment; the record contains evidence of the employee=s physical condition, physical work restrictions and depressive condition that have rendered him totally disabled since he was taken off work on November 7, 2002. At the time of the hearing, none of the employee=s physicians had released him to return to work, including Dr. Knott, who has continued to restrict the employee from returning to work until such time as he is psychologically stable. In addition, the QRC testified that the employee presently was unable to engage in any sustained gainful employment. Mr. Franklin Cox, independent vocational evaluator, acknowledged that the Aresidual effects of the low back injury are obviously vocationally significant@ even though the employee Adoes have potential for employment.@
The compensation judge directly addressed the employer and insurer=s argument that a determination of permanent total disability status would be premature, explaining as follows:
As for counsel for the employer and insurer=s argument that a determination of permanent total disability at this time is premature, that argument runs counter to the established law. As indicated earlier, this disability is Apermanent@ if it is likely to exist for an indefinite period of time. Clearly in the present case this total disability will be existing for the indefinite period of time. Although there is the possibility that the employee=s involvement in the pain management program will markedly benefit him to the point where his physicians are able to release him to return to work and although the employee, with the assistance of a rehabilitation specialist, may in the future find some type of employment, that potentiality does not obscure the fact that the employee=s disability is likely to exist for an indefinite period of time. Further if the best case scenario does come to pass, if the employee is successful in further treatment, is released to return to work and is able to find some type of gainful employment the employer and insurer are certainly then free to file a petition to discontinue payment of permanent total disability benefits. In the meantime until and unless some major, positive changes occur the disability will exist for an indefinite period of time.
Memo., p. 12. In view of the evidence in the record, it was not unreasonable for the judge to conclude that the employee was permanently and totally disabled from sustained gainful employment. Considering the record as a whole, including the medical records, the employee=s testimony and vocational testimony, we cannot say that the evidence was insufficient, as a matter of law, to establish permanent total disability. Because substantial evidence supports the judge=s finding that the employee is permanently and totally disabled, Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984), we affirm the award of permanent total disability benefits since October 21, 2004, allowing a credit to the employer and insurer for those benefits paid for the period of time extending from May 13, 2005, through November 24, 2005.
 Pursuant to Minn. R. 5223.0390, subp. 4C(2), and 5223.0390, subp. 5B.