CHERYL L. DILLON, Employee/Appellant, v. SCHMITTY & SONS SCHOOL BUSES, INC., and SFM MUTUAL INSURANCE, Employer-Insurer, and MINNEAPOLIS ORTHOPAEDICS, INJURED WORKERS PHARMACY, A.B. BAKER NEUROLOGICAL CLINIC, SUBURBAN RADIOLOGICAL CONSULTANTS, and STATE FARM INS. COS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 21, 2009
PERMANENT TOTAL DISABILITY - THRESHOLD; PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where the compensation judge’s general finding that the permanency threshold had not been met was unsupported by findings also as to the specific ratings that were being contemplated, but where the parties had expressly told the judge that she need not make specific findings, the issue of whether the employee met the statutory permanent partial disability threshold for an award of permanent total disability benefits had not been litigated so as to permit review by the WCCA, and the judge’s general finding on the matter was vacated.
PERMANENT TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET. Where the employee as much as conceded that she was not seriously looking for work, where few of the many physicians who had examined her had not restricted her from working, and where there was evidence that there were jobs available in her job market that were within her restrictions, the compensation judge’s conclusion that the employee had withdrawn from the labor market and that her job search was insufficient for an award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence.
Affirmed in part and vacated in part.
Determined by: Pederson, J., Wilson, J., and Rykken, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Janet Monson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s denial of permanent total disability benefits. We affirm the judge’s denial of benefits pursuant to requirements set forth in 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), and we vacate the judge’s finding that the employee has not satisfied the statutory permanent partial disability threshold for an award of permanent total disability benefits.
Cheryl Dillon is a high school graduate whose employment history includes work as a nurse’s aide, a deli manager, a bus aide, and a checking accounts data entry specialist. On May 5, 2004, Ms. Dillon [the employee] sustained several work-related injuries, including ones to her right shoulder, right knee, neck, and low back, as a result of a motor vehicle accident in the course of her work as a bus driver with Schmitty & Sons School Buses, Inc. The employee’s medical history since those injuries has been complex and extensive. Immediately following the accident, the employee experienced pain in her neck, low back, right knee, and right ankle, with some swelling and bruising in the knee and some minor swelling in the ankle. She was taken immediately to the emergency room at Fairview Ridges Hospital, where a right knee x-ray was read to be negative, a cervical spine x-ray was read to be within normal limits, and lumbar spine x-rays were read to reveal some very minor degenerative changes. Dr. Brian Patty diagnosed cervical strain, lumbar strain, right knee contusion, and anxiety with hyperventilation, and the employee was discharged on Motrin with a recommendation that she apply ice to the swelling. The employee was forty-two years old on the date of the accident and was earning a weekly wage of $361.63. Schmitty & Sons School Buses, Inc. [the employer], and its insurer acknowledged liability for the injuries and commenced payment of benefits.
On May 6, 2004, the employee saw Dr. Heather Awad at Kenwood Dodd Clinic with regard to pain in her right knee, which was extremely swollen, and in her left shoulder, “where her seatbelt held her,” in addition to some neck and back pain. Noting expressly that the employee “did not lose consciousness or hit her head,” Dr. Awad ordered physical therapy for all of the employee’s injuries, recommended icing and elevation of the knee, restricted the employee from driving for the time being, prescribed Vicodin, and released the employee to do office work “[a]s long as she can tolerate it.” Upon follow-up on May 20, 2004, the employee complained also of extreme neck and now right shoulder pain. Dr. Awad ordered an MRI scan of the right knee, restricted the employee from working, and prescribed a knee immobilizer for the employee to wear whenever she needed to be on her feet for any length of time. The MRI scan was conducted on May 26, 2004, and was read to reveal evidence of a resolving soft tissue hematoma and probable patellar chondromalacia, but no meniscal, cruciate ligament, or collateral ligament tear. By June 2, 2004, the employee’s knee was “much improved,” and, noting that her MRI was essentially normal, Dr. Awad recommended some gentle walking and urged her to discontinue her immobilizer. The doctor restricted the employee from driving but released her to work at sedentary office work. She also prescribed physical therapy for the employee’s neck strain and advised her to move her shoulder more. On June 16, 2004, Dr. Awad ordered also a right shoulder MRI scan, which was conducted on June 22, 2004, and was read to reveal a SLAP [superior labrum anterior-posterior] lesion, with no evidence of a rotator cuff tear. An MRI scan of the lumbar spine was also conducted on that date and was read to reveal a right paracentral disc herniation at T12-L1 that was slightly impinging on the thecal sac, together with a right-side disc protrusion at L4-5 and a small protrusion or bulge also at L2-3. On July 1, 2004, Dr. Awad released the employee to work subject to restrictions against lifting over ten pounds with her right arm, against driving, and against working more than four hours a day, requiring also that she be given time off for physical therapy.
Beginning in June of 2004, the employee was provided the rehabilitation services of QRC Larry Mansfield, who assisted the employee for about three years with medical management matters and some return-to-work efforts, including some early efforts to return to office work with the employer, which evidently failed over performance issues.
On July 16, 2004, the employee saw orthopedic surgeon Dr. Douglas Becker with regard to her right knee and right shoulder pain. Dr. Becker diagnosed chondromalacia of the patella in the right knee and a SLAP lesion and impingement syndrome in the right shoulder, for which he recommended a brace, exercise, and surgery. On August 12, 2004, Dr. Becker performed on the employee’s right shoulder an arthroscopic subacromial decompression, anterior labral debridement, SLAP repair, and partial distal clavicle AC joint resection. On August 18, 2004, he referred the employee to neurologist Dr. Lowell Baker, apparently with regard to all of her complaints - - back, neck, shoulder, knee, and a more recently developing complaint with cognition and memory. After examining the employee on September 21, 2004, Dr. Baker prescribed a “home heating” program and instructed the employee in the use of a cervical collar, concluding that all of the employee’s maladies were related to her work accident of May 5, 2004. On October 13, 2004, Dr. Baker ordered an MRI scan of the employee’s cervical spine, which was conducted on October 18, 2004, and was read to be normal, and an MRI scan of the employee’s right shoulder on October 27, 2004, revealed no abnormality. Dr. Baker examined the employee again in follow-up on November 5, 2004, and, noting that she had in some ways improved, concluded that surgery was not indicated and that the employee should be treated for her neurologic difficulties on a conservative basis.
Because of the employee’s complaints of persistent pain and her report at five weeks post-operation of a “pop” in her shoulder, on January 20, 2005, Dr. Becker performed a revision of the employee’s August 2004 right shoulder surgery, together with a right shoulder rotator cuff repair. On that same date, at the employee’s earlier request, he performed also a patellar chondroplasty, a lateral retinacular release, and a medial thermal retinacular shrinkage on the employee’s right knee. By March 22, 2005, the employee was released to work with restrictions by Dr. Baker, with whom she was continuing to treat.
Despite Dr. Baker’s prescription of pool therapy in June of 2005, the employee’s recovery from her surgery was slow over the course of most of that year, particularly with regard to her right shoulder. In a letter to the employee’s attorney dated August 24, 2005, Dr. Baker opined that the employee’s prognosis was “very guarded” and that the employee “should continue on with her conservative medical management and treatment which has benefitted her to date from a neurologic standpoint.” He reiterated that the employee’s neck, low back, closed head, right hand, right shoulder, and right knee problems were all related to her work-related accident on May 5, 2004, and that, as a consequence of those problems, she should “avoid repetitive bending, lifting, squatting, prolonged static positions of the upper and lower back with a weight limitation of 15 pounds.” He concluded also that the employee was currently temporarily totally disabled from her occupation as a bus driver. Further, he opined that the employee had sustained a 3.5% whole body impairment related to her neck pursuant to Minnesota Rules 5223.0370, subpart 3.B., a 10% impairment related to her low back pursuant to Minnesota Rules 5223.0390, subpart 3.C.(2), and a 10% impairment related to her head pursuant to Minnesota Rules 5223.0360, subpart 7.A.(1). Dr. Baker deferred to Dr. Becker for any permanency ratings related to the employee’s right knee and right shoulder. Finally, it was Dr. Baker’s opinion that all of the employee’s treatment and testing related to the work accident at issue had been reasonable, necessary, and appropriate.
In a letter to the employee’s attorney dated October 3, 2005, Dr. Becker opined that the employee “suffered a right shoulder SLAP tear and right knee chondromalacia of the patella, as well as a cervical and lumbar strain as a result of a work-related automobile accident which occurred on May 5, 2004.” Dr. Becker anticipated permanent restrictions against standing for more than eight hours a day and against doing more than limited squatting, kneeling, stair climbing, or stooping.
On October 18, 2005, the insurer evidently wrote to Dr. Becker, inquiring as to whether a job described in its letter would be reasonable work for the employee to perform, and on October 24, 2005, Dr. Becker replied in the affirmative. On October 31, 2005, Dr. Becker completed a Health Care Provider Report, on which he indicated that he anticipated that the employee would reach maximum medical improvement [MMI] with regard to her work injuries by January 16, 2006, subject to a permanent partial disability to 24% of her whole body related to her right shoulder, right knee, and low back. He rated the employee’s right shoulder permanency at 9% under Minnesota Rules 5223.0450, subparts 3.A.(2) and 4.A.(1), her right knee at 5% under Minnesota Rules 5223.0510, subpart 2.E., and her low back at 10% under Minnesota Rules 5223.0390, subpart 4.C.(2). On November 11, 2005, the employee evidently complained to Dr. Baker of a sudden increase in her low back pain, and Dr. Baker restricted her from working. Three days later, however, on November 14, 2005, Dr. Becker released the employee to return to work with restrictions from November 15, 2005, through January 8, 2006, beginning at four hours a day and increasing one hour a day every two weeks to a maximum of six hours a day after a month. He relaxed the employee's lifting restrictions to include a seven pound limit with the right arm, but he made those and other right-arm restrictions permanent, also assessing further temporary restrictions.
The last of the employee’s two or three attempts to return to work with the employer evidently took place in November of 2005 and was apparently unsuccessful. On November 16, 2005, the insurer filed a notice of intention to discontinue [NOID] temporary total disability benefits on grounds that the employee had returned to work at reduced wages, evidently demonstrating payment of temporary partial disability benefits upon proof by wage records. On November 22, 2005, Dr. Baker ordered a repeat MRI scan of the employee’s low back, and the following day Dr. Becker referred her for consultation with a back surgeon at Twin Cities Spine. On November 28, 2005, Dr. Becker informed the employee’s QRC that the employee was showing steady improvement with physical therapy but still required additional shoulder therapy.
On December 2, 2005, the employee underwent the lumbar MRI scan ordered by Dr. Baker, which was read to reveal mild degenerative disc disease and minimal disc bulging at various levels but no evidence of acute disc herniation or spinal stenosis. On January 5, 2006, the employee underwent also a left lower extremity EMG, also on referral from Dr. Baker, which was interpreted as showing a possible early L5 radiculopathy on the left or a possible peroneal nerve injury of the left leg at the level of the fibular head.
The insurer’s NOID was addressed at an administrative conference on January 11, 2006, and by order filed January 17, 2006, the employee was determined to be entitled to continuing temporary total disability benefits, with temporary partial disability benefits for any period during which she had worked. On January 23, 2006, the employer and insurer filed a request for formal hearing, on grounds that the employer had sedentary, light-duty work available for the employee, which the employee could perform. On February 3, 2006, the insurer filed another NOID, based on a failure by the employee to comply with a January 11, 2006, order that she present herself for an independent medical evaluation and for a discovery deposition. In a letter to the employee’s attorney dated February 13, 2006, Dr. Baker essentially reiterated the opinions that he had stated in his letter to that attorney dated August 24, 2005, concluding that the employee “continues to be totally disabled from any and all gainful employment.” By order dated February 14, 2006, the compensation judge suspended the employee’s temporary total disability benefits pending the employee’s compliance with the January 11, 2006, order to compel discovery, ordering reinstatement upon such compliance. On February 17, 2006, the employer and insurer filed a request for formal hearing, on grounds that the judge’s order of conditional reinstatement of benefits was beyond the scope and jurisdiction of the judge, that sanctions were appropriate against the employee, and that the employer and insurer were entitled to payment of the costs of two independent medical examinations that the employee had failed to attend.
On March 7, 2006, the employee was examined for the employer and insurer by neurologist Dr. Richard Galbraith with regard to her cervical, thoracic, and lumbar spine. In his report on that date, after examining the employee and reviewing her medical history, Dr. Galbraith diagnosed resolved cervical and lumbar strains and found no evidence of a thoracic strain. In reply to the employer and insurer’s query, he opined that the employee was “able to perform routine household tasks, sedentary work at [the employer] and she was capable of performing this work . . . from November 1st onward.” It was his opinion that the employee had not sustained any permanent cervical, thoracic, or lumbar injury as a result of her May 5, 2004, motor vehicle accident, nor did he find any evidence of a radiculopathy consequent to that event. Dr. Galbraith opined further that the employee did not have a separate permanent peroneal nerve injury on the left, did not have a permanent injury to either of her lower extremities with the exception of the right knee, which the doctor did not address, and did not have a permanent injury to either upper extremity. Dr. Galbraith indicated further his opinion that there were no objective clinical findings or radiological correlations to account for the employee’s subjective complaints of low back, hip, left leg, and foot pain. Dr. Galbraith concluded finally that the employee was not subject to any permanent partial disability related to her low back, neck, left leg, or peroneal nerve consequent to her work accident on May 5, 2004, and that she had reached MMI with regard to all of her injuries.
On March 23, 2006, Dr. Baker released the employee to work no more than one hour a day, five days a week, restricted from any repetitive use of her right arm, from lifting more than one pound with that arm, from doing any lifting at all above shoulder height, and from lifting any more than five pounds using both hands. He recommended also that she should continue with physical therapy two or three times a week for six weeks. About this same time, Dr. Baker retired from practice and referred the employee to physiatrist Dr. Anne Brutlag for further treatment.
The employee had also been evaluated for the employer and insurer by orthopedic surgeon Dr. Nolan Segal, on March 3, 2006. In his report on April 7, 2006, Dr. Segal noted that, upon examination of the employee and review of her medical records, he found certain evidence of a resolved right knee contusion and hematoma but “no evidence to suggest any significant closed head injury,” “absolutely no evidence that [the employee] sustained any right shoulder injury,” “no evidence to suggest a thoracic spine injury as a result of the [May 5, 2004,] accident,” “absolutely no evidence to suggest any ongoing cervical spine abnormalities,” and, while there was evidence of juvenile disc disease in the lumbar spine, “[no] evidence of nerve root compression that would result in an L5 radiculopathy or in [the employee’s] left leg complaints.” Dr. Segal expressed concern over “the possibility of some sort of hysteric conversion reaction or . . . the possibility of some secondary gain issues regarding [the employee’s] extensive subjective complaints,” concluding that she was fully capable of performing sedentary work and did not sustain any permanent injury to her cervical spine as a result of the May 5, 2004, motor vehicle accident. He concluded that the employee had reached MMI by August 5, 2004, with regard to any cervical or lumbar injury, twelve weeks after the accident. Although he disagreed with the employee’s treating doctors’ diagnoses with regard to her right shoulder and right knee, it was also Dr. Segal’s opinion that, if the those diagnoses were accepted, the employee would be subject to 4% whole-body permanent partial disability - - 3% related to her shoulder under Minnesota Rules 5223.0450, subpart 2.C., and 1% related to her knee under Minnesota Rules 5223.0510, subpart 2.C. Finally, Dr. Segal did not believe that the employee required any further care or treatment related to her May 5, 2004, motor vehicle accident, and he strongly urged that she get off narcotic analgesics.
On April 10, 2006, the employee saw Dr. Brutlag for her low back pain and secondarily for her neck pain, right shoulder pain, and memory issues. Upon examination of the employee and her medical history, Dr. Brutlag diagnosed low back and left leg pain status post lumbosacral strain, herniated lumbar disc with left lumbar radiculopathy, cervical strain/sprain, right patellofemoral knee pain status post trauma, right shoulder pain status post SLAP lesion and arthroscopic surgery twice, and memory issues status post closed head injury. On those diagnoses, she recommended aquatic physical therapy two times a weeks for four weeks, followed by therapeutic swimming two or three times a week for two or three months. Further, she recommended an MRI scan of the employee’s head, neuropsychometric testing related to the employee’s memory issues, continued use of medications, no change in current work restrictions pending further information, and possible provision of a left ankle-foot orthosis [AFO] in treatment of gait and left foot-drop problems, with follow-up in three to four weeks.
On April 26, 2006, the employer and insurer’s requests for formal hearing filed January 23 and February 17, 2006, together with their motion for sanctions filed February 23, 2006, came on for the second of two days of hearing before Compensation Judge Janice Culnane. The parties stipulated at hearing in part to work-related injuries to the employee's right shoulder, right knee, neck, and low back. By findings and order filed May 22, 2006, Judge Culnane granted the employee's claim for temporary total disability benefits continuing from January 13, 2006. In a lengthy memorandum accompanying her findings and order, the judge credited the employee’s testimony and accepted as credible and accurate the restrictions placed on the employee by Dr. Baker, specifically rejecting the opinions offered by Drs. Galbraith and Segal.
The employee had earlier returned to Dr. Brutlag on May 1, 2006, complaining of severe pain in multiple locations, particularly in her low back, which she rated at a level eight on a scale of zero to ten. Dr. Brutlag had recommended at that time a trial of physical therapy focusing on left sacroiliac dysfunction, stretching, continued consideration of an AFO, medication for muscle spasm, continued pain medication, no change in work restrictions, and follow-up in one month. The employee returned to see Dr. Brutlag on June 19, 2006, expressing anger and frustration with her persistent symptoms. Dr. Brutlag restricted the employee from working for a month and ordered a left hip x-ray to rule out degenerative change or fracture, a left knee MRI scan to rule out internal derangement, continued aquatic exercise, a neuropsychometric and chronic pain evaluation, continued medication, a left AFO, and follow-up in three weeks - - all with a goal to return the employee to four hours of work a day at sedentary work within the next six months.
The insurer in this case had brought a district court lawsuit against a third party, here unnamed, alleging his negligence as a direct cause of the employee’s May 5, 2004, injuries, and the employee was made a necessary party to the litigation. The third party agreed to pay a total of $100,000 in exchange for a complete release of all claims of the employee, the insurer, and the employer herein. On about August 14, 2006, the parties herein executed a stipulation for settlement and distribution of the third-party proceeds. Pursuant to that stipulation, the employer and insurer agreed to pay to the employee $28,000.00 in closeout of all claims for permanent partial disability benefits to the extent of a 10% whole-body impairment related to her lumbar spine, a 9% whole-body impairment related to her right shoulder, a 5% whole-body impairment related to her right knee, and a 3.5% whole-body impairment related to her cervical spine. It had been the employee’s position at the time of the settlement that she was also entitled to permanency benefits for a 10% whole-body impairment related to a traumatic brain injury; the stipulation provided expressly for “a full final, and complete settlement of any and all permanent partial disability claims for benefits pursuant to Minnesota Rules Part 5223.0360” - - the scheduled rule pertaining to traumatic brain injuries. The stipulation also provided expressly that
the employer and insurer are reserving all of their defenses with regard to the nature and extent of the employee’s claimed injuries as a result of the May 5, 2004 work-related motor vehicle accident. The payment and compromise of the employee’s permanent partial disability claim is not to be construed as an admission that the employee has sustained injuries to the body parts listed, nor is it an admission with regard to the nature and extent of the employee’s claimed injuries.
An award on the parties’ stipulation for settlement was served and filed on August 18, 2006.
When she saw Dr. Brutlag again on October 2, 2006, the employee continued to complain of level eight pain on a scale of one to ten, and Dr. Brutlag continued with the same restrictions and treatment plan. The employee’s left hip x-ray, conducted on October 6, 2006, was negative, but her left knee MRI scan, conducted on that same date, was read to reveal some early chondromalacia of the weight-bearing aspect of the medial femoral condyle, together with some small cysts in the posterior margin of the medial tibial plateau, but no meniscal, crucial ligament, or collateral ligament tears.
In light of the employee’s recent MRI scans, on November 20, 2006, Dr. Brutlag assessed in part left lumbar radiculopathy status post lumbosacral strain/sprain and referred the employee to clinical psychologist Dr. Gordon Braatz for a neuropsychometric evaluation, otherwise continuing the employee’s medication and treatment plan and issuing the following permanent restrictions:
Work restrictions include rare lifting of maximum 10 pounds, rare bending and twisting at the waist and neck, rare reaching below knee level, no lifting above shoulder level, no squatting or kneeling, no climbing stairs and ladders. She is able to sit for a maximum of 15 minutes, stand for a maximum of 5 minutes and walk 1 block. She is able to drive a maximum of 15 minutes due to sitting restrictions. She should avoid any overhead use of the right arm and have the ability to l[ie] down . . . as needed.
The employee was examined by Dr. Braatz on November 29, 2006. In his report on that date, presuming that the employee was subject to a closed head injury and noting that “[s]he gave every indication that she was making a realistic effort on the evaluation instruments,” Dr. Braatz concluded that the employee's
[o]verall intellectual functioning and memory are well below the average range. If she did, in fact, attain average performance in high school, then this level of performance represents a distinct decline. In view of her closed head injury and her report of adequate functioning prior to the [May 5, 2004,] accident, it is reasonable to consider the decline to be post-traumatic.
On January 18, 2007, the employee filed a claim petition, alleging entitlement to permanent total disability benefits continuing from June 1, 2006. The employee’s condition, including her level of pain, her memory complaints, and her antalgic gait and left foot drop, changed little over the course of the following months, and Dr. Brutlag’s diagnosis remained essentially left lumbar radiculopathy, left patellofemoral pain, closed head injury, and chronic shoulder and cervical pain.
On April 21, 2007, the employee was evaluated for the employer and insurer by neurologist Dr. Donald Starzinski. After examination of the employee and review of her medical history and records, Dr. Starzinski opined in his report on April 30, 2007, that the employee was subject to “multifocal chronic musculoskeletal pain prominently involving her cervical spine, lumbar spine, and right shoulder,” noting that long-standing degenerative osteoarthritis, diabetic polyneuropathy, and psychiatric features, including prominent anxiety and possible depression, significantly contributed to her condition. He indicated that the employee’s pain problem was further complicated by her use of chronic narcotic analgesics, adding that that use “may indeed explain [the employee’s] difficult[y] with concentration and some of her cognitive symptoms.” With regard to the employee's May 5, 2004, work injury, it was Dr. Starzinski’s opinion that “any such injury would have been mild and self limited in nature and would have long since healed.” The doctor recommended a gradual program of physical training, aggressive management of the employee's psychological features, and the “revamping” of her medications for chronic pain. He opined that she could work forty hours a week subject to physical restrictions for her degenerative osteoarthritis and noting that “[t]here are indeed signs of functional overlay or secondary gain with regard to [her] examination.”
On May 4, 2007, the employer and insurer filed a rehabilitation request, seeking termination of the employee’s rehabilitation plan on grounds that the employee was “not participating in active treatment,” that there was “no vocational plan at this point,” that the employee was “not looking for work,” and that “[s]he claims permanent total disability.” In the alternative to termination of the plan, the employer and insurer requested suspension of the plan pending a determination of the employee’s permanent total disability claim. Subsequently, on five days in May and early June, 2007, the employee evidently commenced job search efforts with the assistance of QRC Mansfield. At the administrative conference on June 13, 2007, the employer and insurer argued that the employee’s recent efforts to find work had been so insincere as to render payment for further job search assistance pointless. By a decision and order filed June 18, 2007, the mediator/arbitrator determined that the employee was not eligible for rehabilitation services pursuant to Minnesota Statutes section 176.102 and that she was not a qualified employee for purposes of such services under Minnesota Rules 5220.0100, subpart 22. In his memorandum, the mediator/arbitrator noted in part that “[t]he job search done so far has proven fruitless” and that, given the employee’s well below average intellectual functioning and memory, in addition to her “rather severe physical restrictions, limited skill levels, and the employee’s own statements on her deposition regarding her interest in finding work,” “there is no indication that, even with the employee's full cooperation and the best efforts of the QRC and the job placement specialist, the results would be different.” On July 3, 2007, QRC Mansfield filed an R-8, closing his file on the employee’s rehabilitation assistance, pursuant to the mediator/arbitrator’s decision.
Neuropsychologist Dr. Thomas Beniak had examined the employee for the employer and insurer on June 16, 2007, and in his report on August 28, 2007, Dr. Beniak concluded that the employee’s “[o]verall intellectual capability falls in the average range,” with some areas, such as abstract verbal reasoning, “in the superior to very superior range” and others, such as attention-concentration and arithmetic reasoning, “borderline” or apparently impaired. After extensive testing of the employee and review of her medical records, Dr. Beniak concluded that he did “not believe that [the employee] sustained even the mildest degree of traumatic brain injury as a consequence of the May 5, 2004 motor vehicle accident,” “based on all of the factual information surrounding this incident and [the employee’s] account of it.” With regard to what he termed the employee’s “exceedingly poor performance on measures of learning and memory as well as auditory attention and select other cognitive tasks,” Dr. Beniak concluded that “the most important factor accounting for these poor test performances is likely her motivation and attitude, as well as level of effort expended” and “the possibility of some medication side-effects.” He indicated that he was “in total agreement with the neurologic impressions of Drs. Galbraith and Starzinski,” that none of his test findings or those of Dr. Braatz supported evidence of organic brain damage or cerebral dysfunction, that he would place “absolutely no vocational restrictions upon [the employee] as a function of her intellectual or cognitive status,” and that the inconsistencies in the employee’s neuropsychological test performances “strongly suggest extreme functional overlay, motivational deficiencies, and, in some limited areas, the possibility of malingering.”
Meanwhile, the employee was continuing to treat with Dr. Brutlag for left lumbar radiculopathy, chronic right shoulder pain, cervical strain/sprain, and post concussive syndrome, and on August 8, 2007, and again more formally on October 9, 2007, Dr. Brutlag recommended a chronic pain program.
The employee’s employability was evaluated for the employer and insurer on December 3 and 4, 2007, by vocational expert Richard VanWagner. After extensive testing and review of the employee’s medical history, it was Mr. VanWagner’s opinion that the employee had the capacity to work full time in selected sedentary occupations that currently existed in her labor market but that she had “no desire or intention to return to work in her current labor market,” primarily due to her personal commitments for transportation of her children.
On February 6, 2008, the employee was examined by chronic pain specialist Dr. Matthew Monsein. Upon examination, Dr. Monsein concluded that “if any intervention at this point will prove beneficial for this individual it would be through a multi-disciplinary rehabilitation program,” where “the focus is on functional restoration, weaning her off narcotics, and trying to support her in increasing her activities of daily living.” Dr. Monsein indicated his belief that “her prognosis [is] not so much due to her physical injury, but more due to her chronic pain syndrome,” which he concluded was “rather profound,” noting that “her diagnoses and treatment options remain somewhat controversial and contentious.” A few months later, on July 1, 2008, Dr. Monsein reported to Dr. Brutlag that, “[i]n addition to her very real orthopedic problem, [the employee] has, in my opinion, significant mental health issues,” reduction in her narcotic medication having been a central goal in his treatment of her. In a report dated September 5, 2008, Dr. Monsein reiterated that he believed that “there are numerous psychological and social factors contributing to [the employee’s] overall pain syndrome” and that, in his opinion, “if this patient continues on narcotics it would be important that she have a contract with careful monitoring between her and her prescribing physician.” He indicated further that he believed that the employee “would be capable of returning to part time light-duty work,” stating that “[she] has a significant component of anxiety and depression, which I believe is a major contributing factor to her pain.” Based on the employee’s physical findings alone, Dr. Monsein recommended a five-pound lifting restriction, indicating that “[s]he needs to be able to change positions as needed. She is not able to stand on her feet for long periods of time 15-20 minutes at most.”
The matter came on for hearing on November 12, 2008, before Compensation Judge Jane Gordon Ertl. At issue at hearing was whether or not the employee met all of the requirements for an award of permanent total disability benefits, including job search requirements and the permanent partial disability requirement, and, if so, was June 1, 2006, the correct start date for payment of benefits. At the outset of the hearing, the compensation judge requested clarification from the parties regarding the issue of the permanent partial disability threshold, asking whether, in light of their earlier settlement, they were expecting specific findings related to specific body parts. The parties responded that they wanted nothing more specific than a finding as to whether or not the employee had met the threshold level of permanent partial disability required for an award of permanent total disability benefits under the statute.
Evidence offered at hearing included the testimony of QRC Mansfield who testified that in May of 2007 he had assisted the employee in searching for work as a receptionist, a cashier, a cook, or an assistant teacher but that he had closed his file on the employee's case in July of 2007, pursuant to the mediator/arbitrator’s June 18, 2007, administrative report, the employer and insurer’s request, and his own conclusion that she was not capable of sustained gainful employment. He testified that the employee had had problems with endurance and accuracy and performance but that, in his opinion, the biggest factor in her failure to secure work was her physical restrictions, noting that her having been out of work for four years was also an obstacle in today's dwindling job market. Also testifying at hearing was vocational expert VanWagner, who essentially reiterated his opinion that the employee was capable of working full time at various sedentary occupations that were currently available in her labor market but had essentially chosen not to seek employment. He testified that he found the employee to be very articulate and possessing of a good memory, with intelligence reflective of the I.Q. that Dr. Beniak’s testing had show to be “right smack in the middle of the average range.” He testified that his own testing found the employee’s vocabulary and reading comprehension to be at a post high school level, and he noted that, despite her substantial restrictions, he saw the employee as an active and self-sufficient individual physically. Nevertheless, he testified, in his opinion, the employee had not conducted a diligent search for work and seemed to have no desire for employment.
By findings and order filed January 23, 2009, the compensation judge concluded in part that the employee had not established “at this time” the threshold level of 17% whole-body permanent partial disability that is required to qualify her for an award of permanent total disability benefits, that she had furthermore failed to perform a job search sufficiently diligent to qualify her for such benefits, and that she had evidently withdrawn from the labor market. On those conclusions, the compensation judge denied the employee's claim for permanent total disability benefits as “premature.” The employee appeals.
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 denied the benefits at issue both on grounds that the employee did not meet the statutory permanent partial disability threshold for an award of permanent total disability benefits and on grounds that she did not satisfy the job search element of the requirements for an award that are well established under Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). Concluding that the permanency threshold issue was not litigated, we vacate the judge’s finding that the statutory threshold was not met, and we affirm the judge’s denial of benefits based on the requirements under Schulte.
1. Permanent Partial Disability Threshold
The compensation judge concluded at Finding 19 that the employee had not established “at this time” that she had attained the threshold level of permanent partial disability needed to qualify her for permanent total disability compensation. That finding was the judge’s only finding on the issue. Perhaps influenced by their earlier settlement, the parties advised the judge that she need only issue a general finding on the issue and not specific findings as to specific body parts contemplated by her conclusion. Because neither party was apparently litigating the employee’s specific permanent partial disability ratings, we are unable to review effectively the issue on appeal. Nor are we inclined to construe the judge’s memorandum as somehow representing her findings on issues that she was asked not to address. Because we are affirming the judge’s denial of permanent total disability benefits on other grounds, and because we cannot properly review the judge’s general finding on the threshold without findings also as to the specific ratings that are being contemplated under that general finding, we vacate Finding 19 of the judge’s Findings and Order.
2. Job Search under the Schulte Standard
At Finding 21, the compensation judge concluded that the employee had failed to conduct a diligent search for employment within her restrictions and had in effect withdrawn from the labor market. To qualify for an award of permanent total disability benefits, an injured employee must prove that “[her] physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] to be unable to secure anything more than sporadic employment resulting in an 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). Central to this standard is a demonstration that employment within the injured employee’s restrictions is unavailable to her in her labor market. Normally the injured employee must prove this unavailability by conducting a reasonably diligent job search, unless the injured employee is so severely disabled that a search for employment would obviously be futile. See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954-55 (Minn. 1988) (employees capable of working must make a diligent job search to establish total disability); Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978) (the employee need not search for work in order to prove total disability if the job search would be futile). Among the circumstances to consider in determining the reasonableness of a job search are expert testimony on the labor market and whether the employer has undertaken to provide work for the employee. Redgate, 421 N.W.2d at 734, 40 W.C.D. at 956.
In the case here at issue, few if any of the many physicians who had examined the employee were finding her physically or mentally unable to work at the time of the hearing below. In finding the employee’s job search insufficiently diligent, it is clear that the compensation judge did not believe that a search would be futile in the employee’s case, and there exists ample evidence to support this conclusion, not only in the employee’s very extensive medical record but also in the opinions and testimony of vocational expert VanWagner. Moreover, the employee’s QRC acknowledged that the employee’s early attempts to return to sedentary work with the employer, which concluded in November 2005, about a year and a half after her work injury, failed in part due to some accuracy and “performance” issues at “some very basic sorts of activities.” Nor, apparently, was the employee terminated for those issues, in that, according to the employer and insurer’s January 23, 2006, request for formal hearing, the employer apparently continued at the time to make work available to the employee that was within her restrictions. Although the employee was most of the time since then released by her doctors to work with restrictions, the employee’s only other efforts to return to work occurred evidently on only five days over a five-week period a year and a half later, in May and early June 2007 - - a search described by QRC Mansfield as “a little bit of job search for a month or so.” Moreover, vocational expert Mr. VanWagner testified unequivocally that, in his opinion, after substantial evaluation of the employee and examination of her labor market, the employee had not conducted a reasonably diligent job search and was not permanently totally disabled from employment.
We conclude, on the evidence cited above, that substantial evidence exists in support of the compensation judge’s conclusion that the employee’s efforts at returning to work have been insufficiently diligent to qualify her for the award of permanent total disability benefits that is here at issue. Therefore we affirm the judge’s denial of those benefits.