ROBERT M. HURD, Employee, v. NORTHERN INDUS. INSULATION and WESTERN NAT’L INS. GROUP, Employer-Insurer/Appellants, and LAKES STATES INSULATION and GENERAL CAS. COS., Employer-Insurer, and DULUTH BLDG. TRADES HEALTH & WELFARE FUND, LAKEWALK SURGERY CTR., and ST. MARY’S DULUTH CLINIC HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 10, 2009
PERMANENT TOTAL DISABILITY - RETIREMENT; PERMANENT TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET. The critical factor in determining entitlement to permanent total disability benefits is not the employee's disability status at retirement, but whether the retirement or withdrawal from the labor market was voluntary or involuntary. While differing inferences could be drawn, substantial evidence supports the compensation judge's finding that the employee's retirement and withdrawal from the labor market was involuntary.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence including expert opinion, supports the compensation judge’s findings that, as of January 26, 2006, the employee’s physical condition, in combination with his age, training and experience and the type of work available in his community prevented him from being able to secure anything more than sporadic employment resulting in insubstantial income and therefore he was permanently and totally disabled, and that the employee’s left knee injury was a substantial contributing cause of his disability and inability to work.
PRACTICE & PROCEDURE - MATTERS AT ISSUE. The issue of apportionment was not at issue before the judge and, because it was not raised at the hearing and therefore was not subject to being raised in the notice of appeal, the issue of apportionment is not properly before this court and will not be addressed.
APPEALS - SCOPE OF REVIEW. The employer and insurer appealed the compensation judge’s findings that the employee had sustained 10% permanent partial disability to the body as a whole as a result of his June 24, 1991, work injury, and that the employee’s permanent partial disability from his multiple medical conditions exceeds the level of 17% whole body impairment, but did not address these issues in their appellant brief. Issues raised on appeal but not addressed in the appeal brief are deemed waived and will not be addressed on appeal.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Patrick M. Spott and Mary Katherine Cohen, Orman, Nord, Spott & Hurd, Duluth, MN, for the Respondent Employee. James A. Wade, Johnson, Killen & Seiler, Duluth, MN, for the Appellants. David O. Nirenstein, Fitch, Johnson, Larson & Held, for the Respondent Lake States/General Casualty.
MIRIAM P. RYKKEN, Judge
Northern Industrial Insulation and Western National Insurance Group appeal from the compensation judge’s findings that the employee’s left knee condition is causally related to his June 24, 1991, work injury, that the employee was permanently totally disabled as of January 26, 2006, that his 1991 left knee injury is a substantial contributing factor in the employee’s permanent total disability, and that the employee sustained 10% permanent partial disability to the body as a whole as a result of his June 24, 1991, work injury. They also contend that the compensation judge erred by not apportioning liability between the employee’s multiple work-related injuries. We affirm.
Mr. Robert Hurd, the employee, worked as an insulation installer throughout his career between 1962 and 2004. Following high school graduation in 1962, he worked briefly as a construction laborer. He joined the National Guard in 1964, completed five months of active duty, and retired from the Guard after 23 years of service. Between 1965 and 1985, the employee worked as a union insulation installer, working for various employers. Between 1985 and 1994, he worked for Northern Industrial Insulation, and, in 1994, he and his business partners founded Lakes States Insulation. According to the employee, he was not involved in the business operations, but did some occasional estimating and attended decision-making meetings, holding ownership in the company until he quit working in July 2004. At Lakes States Insulation, the employee installed insulation, both as a working and non-working foreman, and also performed some fabrication work in the company’s shop.
Throughout his career, the employee sustained various injuries that arose out of and in the course of his employment as an insulation installer, including injuries to his left knee on December 15, 1988, and June 24, 1991, and an injury to his right shoulder on November 21, 2003.
The claims that were addressed at hearing on May 15, 2008, and therefore at issue in this appeal, relate to the employee’s injury to his left knee which he sustained on June 24, 1991. On that date, as he stood on a ladder at work, it slipped out from under him and he fell, injuring his left knee. He was diagnosed with a tear of the mid-portion of the medial meniscus, and, on September 17, 1991, underwent a partial meniscectomy of the medial meniscus. Northern Industrial Insulation, the employer, and its workers’ compensation insurer, Western National Insurance Group, admitted primary liability for this injury, and paid the employee benefits based upon 21 weeks of temporary total disability and 7% permanent partial disability to the left knee.
Following left knee surgery, the employee returned to work in February 1992 installing insulation. Although he did not seek medical care for his left knee, he continued to note problems with his left knee following his 1991 surgery. His symptoms periodically flared up, and he was unable to put pressure on his left knee while climbing ladders or scaffolding. For example, his left knee occasionally hurt and swelled up, these symptoms would last for one or two weeks, and eventually the swelling would subside. At times, while working, the employee needed to sit down to rest for a few minutes because he could no longer tolerate standing on his left knee. However, he was able to perform his work as an insulation installer without work restrictions until he suffered a right shoulder injury in a fall at work.
On November 21, 2003, while carrying a box of material in the course of his employment with Lake States Insulation, the employee stepped on a plastic conduit and fell, landing on his right shoulder. He sought emergency room treatment for his shoulder and was assessed with a possible rotator cuff injury. Within three days, he consulted Dr. Ann Sudoh, an orthopedist, who diagnosed a probable rotator cuff strain and prescribed conservative management using ice, ibuprofen, and exercises. She assigned right arm work restrictions, including no lifting over 20 pounds and no overhead or repetitive motions with his right arm. In follow-up appointments with Dr. Sudoh, the employee continued to report his inability to lift anything significant with his arm away from his body and reported weakness in performing overhead motions. Dr. Sudoh referred the employee to physical therapy for instructions on strengthening and exercises. She also restricted the employee from climbing ladders. At a follow-up appointment in January 2004, Dr. Sudoh suggested a cortisone injection, which the employee declined. Dr. Sudoh advised the employee to continue his exercises, and recommended continued work restrictions.
According to the employee’s testimony, he did not miss time from work following his November 2003 injury, although he was physically unable to perform all of his installation tasks and so spent part of his work time supervising employees. Lake States Insulation and its insurer, General Casualty Companies, admitted primary liability for the employee’s right shoulder injury, and paid workers’ compensation benefits following that injury, although the types of amounts of benefits paid are not included in the record.
In view of his ongoing problems with his general health, knees, and right shoulder, the employee decided to discontinue working as an insulation installer as of his 60th birthday, in part because by that date he became eligible for insurance benefits through his previous military service. He felt that continuing his installation work was too hard on his physical well-being, and therefore arranged for a buy-out of his ownership interest in the insulation business, and quit his employment on July 8, 2004. Once he ceased working, the employee conducted no job search for other work, and, instead, began performing volunteer work for a local hospital and a local school. He typically works one and a half days volunteering at an information station and at a café register at the hospital. He also scores and announces ten to twelve local high school hockey games each year, and assists with other school sporting events, earning moderate sums which he donates back to the school’s teams.
The employee’s symptoms in both knees increased and he returned to Dr. Sudoh on February 14, 2005, complaining of bilateral knee pain that he had experienced for several years. Dr. Sudoh diagnosed bilateral knee tri-compartmental degenerative joint disease, and presented various treatment options to the employee, including medication, cortisone injections, and surgical management. At that time, the employee elected oral medication. On April 15, 2005, upon referral by Dr. Sudoh, he consulted Dr. Michael Gibbons, orthopedic surgeon, again reporting bilateral knee pain. Dr. Gibbons recommended bilateral knee arthroplasty, and scheduled the employee for left knee surgery, to be followed by right knee surgery one month later. Dr. Gibbons cancelled the left knee surgery, however, upon detection of a mass on the employee’s right knee, which was surgically removed by Dr. Thomas Kaiser in May 2005, and which was determined to be non-malignant. At that time, the employee also received a cortisone injection in his left knee. Both scheduled arthroplasty surgeries were temporarily postponed.
In July 2005, the employee received treatment for a left shoulder muscle strain. In September and October 2005, the employee was diagnosed with bilateral carpal tunnel of a severe grade, moderate ulnar neuropathy at his left elbow, and moderately severe ulnar neuropathy at his right elbow/cubital tunnel. On November 21, 2005, the employee underwent a left carpal tunnel release and right ulnar nerve transposition by Dr. Robin Hendricks, orthopedist. On December 5, 2005, he underwent a right carpal tunnel release and right ulnar nerve transposition. On December 15, 2005, the employee was seen in follow-up by Dr. Hendricks, reporting he was doing well, and he was scheduled for a final post-surgical appointment in mid-January 2006.
In January 2006, the employee consulted Dr. Kaiser, who had earlier treated the employee for the mass located behind his right knee. The employee reported left knee pain with any sort of walking, and he also noted recurring swelling. Dr. Kaiser diagnosed significant medial compartment osteoarthritis in the left knee with subluxation together with changes in the patellofemoral area and lateral joint, and recommended a total left knee arthroplasty, which he performed on January 29, 2006. The employee received post-surgical physical therapy, and reported a good result from his left knee surgery.
On August 21, 2006, the employee was examined by Dr. William Fleeson, who found the employee’s work activities to be a substantial contributing cause of his left knee condition and surgery, his carpal/cubital tunnel syndromes, and his contemplated right knee total arthroplasty. Dr. Fleeson found the employee to have an 8% permanent partial disability of the left knee. Dr. Fleeson recommended substantial restrictions, and concluded that the employee was permanently precluded from activities and exertions required of the employee’s work as an insulation installer. Dr. Fleeson likewise concluded that the employee’s work restrictions, for both his right shoulder and his left knee, were wide-ranging, and permanently limited him from multiple activities, including reaching, lifting, carrying, climbing ladders or stairs, jumping, running, crouching, squatting, kneeling, pushing and pulling, operating firm hand controls, performing fine or repetitive hand/digit manipulation tasks, or heavy gripping and grasping. Dr. Fleeson concluded that the employee was “permanently limited from the activities and tasks/exertions mentioned above,” and that he was “not suited for sustained substantial gainful employment at any of these tasks or work activities that he has performed all his life.” He explained that
the limitations and restrictions discussed above are wide-ranging an[d] cover most of the musculoskeletal system, leaving little in the way of significant work activities such as [the employee] is used to, and trained to, perform. At 62, the existence of significant other transferable skills would have to be addressed to see if there is a reasonable expectation of his finding sustained gainful meaningful employment in the future.
On February 20, 2007, the employee underwent an independent vocational evaluation by QRC Kandice Garrison at the request of his attorneys. She found the employee to be permanently and totally disabled from competitive employment given his age, education, skills, his employment background which she described as “singular life-long manual labor,” multiple medical conditions, physical limitations to sedentary or light work, and the status of the local labor market.
On March 22, 2007, the employee underwent an examination by Dr. Paul Wicklund at the request of Northern Industrial and Western National. Dr. Wicklund concluded that the employee’s left knee problem was “related not only to the 1991 injury but also to a Gillette injury that culminated when he stopped working due to left knee pain in July of 2004.” He also opined that the employee had sustained 8% permanent partial disability of the body as a whole with regard to his left knee. Dr. Wicklund also concluded that the employee sustained an injury to his right shoulder in 2003, but had not sustained any permanent partial disability with regard to either shoulder due to his normal range of motion and essentially normal strength in both shoulders. Dr. Wicklund concluded that the employee was not permanently totally disabled, and that he could work as long as he performed no overhead work greater than 10 pounds, performed no climbing or kneeling on either knee, no lifting greater than 20 pounds, no use of vibrating tools, and no jobs involving repetitive flexion of the elbow past 120 degrees.
Also on March 22, 2007, the employee saw Dr. Nolan Segal at the request of Lakes States Insulation and its insurer, General Casualty Companies. Dr. Segal concluded that the employee’s left knee condition was primarily due to idiopathic or psoriatic arthritis and also to a work injury he sustained in December 1988, later aggravated in 1991. Dr. Segal assigned a rating of 10% permanent partial disability of the left knee based upon a total knee arthroplasty and limitation of range of motion. Dr. Segal found no causal connection between the employee’s work activities and his bilateral wrist condition and bilateral shoulder condition. He concluded that the employee would have been able to work by approximately May 1, 2006, upon recuperation from surgery, but concluded that the employee would have required significant limitations due to his multiple conditions. He recommended no squatting, crawling and kneeling, no repetitive stair climbing and ladder work, all due to his knee conditions, and also recommended that the employee avoid repetitive overhead work using his right arm. Dr. Segal restricted the employee to a maximum 35-pound lifting and carrying limit. He predicted that the employee likely would require a total right knee arthroplasty and possible additional treatment for his right shoulder. When asked about the apportionment he would assign for the employee’s overall disability, he concluded that ten percent of the liability for the employee’s disability was due to his 1988 or 1991 left knee injury, ten percent was due to his November 21, 2003, right shoulder injury, and 80 percent was due to his idiopathic and degenerative conditions.
On December 10, 2007, the employee underwent an independent vocational examination by QRC John Witzke at the request of Northern Industrial and Western National. Mr. Witzke noted that there was employment available for him within his local labor market and within the sedentary, light-duty restrictions imposed by all of the examining medical doctors. Mr. Witzke remarked about the employee’s strong work ethic, evidenced by the minimal work he missed due to injuries and surgeries and his ongoing volunteer work, but also noted that the employee had not conducted any job search since leaving his work with Lakes States Insulation. Mr. Witzke found the employee to be competitively employable and able to perform gainful employment in a variety of occupations, and therefore concluded that the employee was not permanently and totally disabled. He also suggested that the employee could have continued working with Lakes States Insulation, in an office and management capacity, that his experience would have been an asset to the company, and that otherwise he remained competitively employable in a variety of occupations.
On November 20, 2006, the employee filed a claim petition alleging, in part, a left knee injury on June 24, 1991, sustained while he was employed with Northern Industrial Insulation. The employee also alleged a November 21, 2003, injury and Gillette injuries culminating on July 7, 2004, June 30, 2005, November 21, 2005, and December 5, 2005, related to his employment with Lakes States Insulation and General Casualty Companies. The employee later amended his claim petitions in 2007 and March 2008, and his claims ultimately were scheduled for hearing on May 15, 2008. That hearing was scheduled to address the employee’s claims for additional left knee permanency and permanent total disability extending from his last day of work on July 7, 2004, to the present and continuing.
Shortly before the hearing, however, the employee’s claims against Lakes States Insulation and General Casualty were resolved under a Pierringer settlement. The hearing therefore proceeded, with the claims limited to those related to the employee’s June 24, 1991, left knee injury. Evidence at the hearing included extensive medical records and reports from independent medical and vocational evaluations. Testimony was provided by the employee, representatives from Lakes States Insulation, Dr. Segal, and John Witzke, vocational expert.
In his findings and order served and filed June 23, 2008, the compensation judge awarded the employee’s claim for permanent total disability benefits, commencing on January 26, 2006, the date on which the employee underwent left knee surgery. The compensation judge concluded that the employee’s current left knee condition is causally related to his June 24, 1991, work injury, that his left knee injury has prevented him being able to secure anything more than sporadic employment resulting in an insubstantial income, and that his left knee injury represents a substantial contributing factor in his permanent total disability.
The compensation judge did not award the employee’s entire claim, however. He denied his claim for permanent total disability benefits from July 1, 2004, to January 26, 2006, rejecting the employee’s arguments that he was entitled to those benefits as of his last date of work on July 8, 2004, because he did not conduct a diligent job search during that period of time. The compensation judge, instead, determined that the employee was entitled to permanent total disability benefits as of January 26, 2006, the date on which he underwent left knee total arthroplasty surgery. The judge found that, by the time of his 2006 surgery, the employee’s medical condition and work limitations “were such that a diligent job search would not produce employment that was anything more than sporadic resulting in an insubstantial income. [The employee] has shown that as of January 26, 2006, a job search would have been futile.”
Northern Industrial Insulation and Western National Insurance Group, the employer and insurer at the time of the employee’s June 24, 1991, injury, appeal.
Northern Industrial Insulation and Western National [the employer and insurer] contend that substantial evidence does not support the compensation judge’s determination that the employee is permanently and totally disabled as a result of his June 24, 1991, work injury, nor does the evidence support his finding that the employee sustained 10% permanent partial disability to the body as a whole as a result of his 1991 injury. They also argue that the compensation judge committed an error of law by not apportioning liability between both employers for whom the employee worked between 1991 and 2005, including Northern Industrial, for whom the employee worked at the time of his left knee injury in 1991, and Lakes States Insulation, his employer at the time of his right shoulder injury in 2003 and the employer with whom the employee settled on a Pierringer basis. The employer and insurer argue that the judge should have apportioned liability among all injuries and should have determined what minimal percentage of liability, if any, should specifically be attributed to the employee’s 1991 left knee injury.
Withdrawal from the Labor Market or Retirement
The employer and insurer contend that the employee is precluded from receiving permanent total disability benefits because he retired on July 7, 2004, and voluntarily removed himself from the labor market. The employee disputes that assertion, contending that he no longer could effectively perform his duties as an insulation installer due to his deteriorating physical condition. He decided to quit his employment when he reached 60 years of age, because his military service benefits would provide him with health insurance by that date.
Retirement is a permanent voluntary withdrawal from the labor market. Liniewicz v. Muller Family Theatre, No. WC06-253 (W.C.C.A. Mar. 21, 2007); Szuba v. Wendy’s Int’l, 65 W.C.D. 212 (W.C.C.A. 2005). Retirement from the labor market or a voluntary withdrawal from the labor market may preclude a finding of permanent total disability benefits if it is not the involuntary result of a compensable disability. Behrens v. City of Fairmont, 533 N.W.2d 854, 53 W.C.D. 41, (Minn. 1995) (citations omitted). The fact that the employee “retired” from employment with his employer, however, is not dispositive of the question of whether the employee has permanently retired from the labor market. Dillemuth v. Owatonna Tool Co., 59 W.C.D. 349, 357 (W.C.C.A. 1999) (cites omitted). Whether an employee has retired from the labor market is dependent upon the facts of each case, and several factors are relevant to this consideration, including the intent of the employee in retiring or withdrawing from the labor market. See, e.g., Davidson v. Thermo King, 64 W.C.D. 380 (W.C.C.A. 2004). This court has concluded that the critical factor is not the employee’s disability status at retirement, but is the employee’s intent in withdrawing from the labor market, that is, whether the retirement or withdrawal was voluntary or involuntary. Hanegmon v. U.S. Steel Corp., 66 W.C.D. 364 (W.C.C.A. 2006). Any statement by the employee that he or she would have continued to work but for the disability is of particular significance in establishing an intent not to retire. Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 69, 40 W.C.D. 1130, 1135 (Minn. 1988).
Northern Industrial and Western National argue that the employee admitted that he retired and decided to quit his job at age 60, when he qualified for military health care. They argue that he admittedly would have continued to work until such time that military health care coverage was available, and that he has not looked for work since leaving his employment at age 60. They argue that the employee has produced no evidence that his left knee prompted him to leave the work force and retire at age 60.
At the time the employee quit his work in July 2004, he had various medical conditions and had received treatment for his right shoulder, bilateral upper extremities, bilateral knees, psoriasis, high blood pressure, and diabetes. He had undergone bilateral carpel tunnel and bilateral ulnar nerve transpositions in 2005, and had undergone a total left knee replacement on January 26, 2006. The employee testified that he had reached the point whereby he felt he could no longer work as an insulation installer, explaining that “it was just too hard to get up in the morning and go to work,” and that in his industry “there’s no such thing as light duty, part-time, getting full pay. It doesn’t exist in the industry. You either work and do your job, or you can’t do your job, you don’t get paid.” The employee contends that he left his job because he could not physically perform his job duties, due to his physical limitations and specifically due to his left knee condition. He testified that it ultimately became too difficult for him to work, that he did not leave work voluntarily, and that, although he used the term “retirement” when talking about leaving work, he was not making a legal conclusion but was referring to when he would stop working.
The compensation judge adopted the employee’s testimony, which he determined to be “most credible,” that he left his employment because of the aggravation of his symptoms resulting from continuing his work as an insulation installer. The compensation judge concluded that although the employee did not provide his employer with an opportunity to provide him other duties, such as light duty work, “such employment opportunities would reasonably not have been available commencing with the first of several surgeries in late 2005.” The compensation judge found the employee’s testimony to be corroborated by his medical treatment records, and noted that no doctor, including the several independent medical examiners, has concluded that the employee could return to his work as an insulation installer.
In summary, the compensation judge concluded that the employee’s retirement was not a voluntary withdrawal, but instead was linked to his work-related medical condition. The record as a whole, including the employee’s testimony and his medical records, supports the compensation judge’s conclusion. We are aware that there may well have been substantial evidence to support factual conclusions and a result contrary to the one reached by the compensation judge. However, it is this court’s function on factual review to assess whether substantial evidence exists to support the conclusion reached by the judge. Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003); see also Ask v. Winona Health, No. WC08-156 (W.C.C.A. Oct. 29, 2008); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (“whether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”). In addition, it also is the role of the compensation judge to assess the credibility of the employee’s testimony; it is not the role of this court to evaluate the credibility and probative value of that testimony in order to draw different inferences from the evidence than those reached by the compensation judge. See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).
As there is support for the compensation judge’s conclusion, and because that conclusion was not clearly erroneous, we affirm. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
Permanent Total Disability Status
The employer and insurer also appeal the compensation judge’s determination that the employee was permanently and totally disabled as of January 26, 2006, the date he underwent arthroplasty surgery to his left knee. The compensation judge found that as of that date, the employee’s physical condition, in combination with his age, training and experience and the type of work available in his community prevented him from being able to secure anything more than sporadic employment resulting in insubstantial income and thus he has shown to be permanently and totally disabled under the Minnesota Workers’ Compensation Act. Minn. Stat. § 176.101, subd. 5(b); Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). The compensation judge also found that the employee’s left knee condition was causally related to his June 24, 1991, work injury, and was a substantial contributing factor in the employee’s permanent and total disability as of January 26, 2006, which has continued through the date of hearing.
It is well established that the concept of “total disability” depends primarily upon the employee’s ability to obtain or maintain gainful employment rather than his physical condition. McClish v. Pan-O-Gold Baking Co., 336N.W.2d 538, 36 W.C.D. l33 (Minn. l983). To recover compensation benefits, the employee must establish the work injury is a substantial contributing cause of the disability. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 42 W.C.D. 91 (Minn. 1989).
Northern Industrial and Western National argue that substantial evidence does not support the compensation judge’s finding that there is a causal relationship between the employee’s left knee injury in 1991 and his permanent total disability. They argue that at the time the employee retired and voluntarily withdrew from the labor market on July 7, 2004, he was not experiencing any left knee problems, nor did he have any work restrictions related to his left knee. They contend that at the time of his retirement, the only work restriction under which the employee operated was related to his right rotator cuff sprain, including a restriction on overhead lifting. They emphasize that the first medical consultation the employee had sought since 1992, with respect to his knees, occurred seven months after his retirement, and that he did not seek treatment at that point but simply sought advice with respect to whether there was something else he should be doing.
An employee need not prove that the work-related injury was the sole cause of the disability. It is only necessary to show that the injury was an appreciable or substantial contributing cause. Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987), citing Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964). The question is, then, whether there is substantial evidence to support the compensation judge’s finding that the employee’s left knee injury was a substantial contributing cause of his disability and inability to work. The employer and insurer also argue that at the time the employee quit work in 2004, he was not experiencing any knee problems nor was he under any work-related restrictions related to his left knee, and that the only restrictions in place in 2004 related to his right shoulder.
The employee argues that the medical record clearly establishes the causal connection between his admitted left knee injury in 1991 and his later degeneration of his left knee condition and the need for left knee replacement. Dr. Segal concluded that the employee’s 1991 injury was the significant contributing cause to his overall knee disability, and recommended permanent work restrictions for the employee that precluded him from performing work as an insulation installer. Dr. Wicklund also concluded that the employee’s left knee problem was related to his 1991 injury, as well as to his ongoing work activities since 1991, and concluded that the employee’s ongoing work as an insulation installer, including climbing, kneeling, and squatting contributed to the worsening of his problem and ultimately his need for a left total knee replacement. Dr. Wicklund’s work restrictions also effectively precluded the employee from performing work as an insulation installer. Dr. Fleeson likewise concluded that the employee’s work restrictions, related to his right shoulder and his left knee, were wide-ranging, and permanently limited him from multiple activities, including reaching, lifting, carrying, climbing ladders or stairs, jumping, running, crouching, squatting, kneeling, operating firm hand controls, performing fine or repetitive hand/digit manipulation tasks, or heavy gripping and grasping. Dr. Fleeson concluded that the employee was “permanently limited from the activities and tasks/exertions” referred to in his above-cited list of restrictions, and that he was “not suited for sustained substantial gainful employment at any of these tasks or work activities that he has performed all his life.”
In light of the record which establishes a causal connection between employee’s 1991 admitted left knee injury and his left knee disability, there is substantial evidence to support the compensation judge’s finding that the employee is permanently totally disabled, and that his left knee condition represents a substantial contributing factor to his disability. These findings are “supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984). The compensation judge’s findings are not “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1. Therefore, the judge’s finding that the 1991 left knee injury is causally related to his permanent total disability must be affirmed. See Northern States Power Co. v. Lyon Food Prods., Inc., 305 Minn. 196, 201, 229 N.W. 2d 521, 524 (1975).
The employer and insurer also argue that the compensation judge erred by not making a finding regarding apportionment. We have carefully reviewed the transcript of the proceedings before the compensation judge, and we can discern no reference to the issue of apportionment, or, in other words, the issue of allocation of liability for payment of benefits between the employee’s various claimed injuries. At the beginning of the hearing, the compensation judge confirmed with counsel that the case between the employee and Lakes States Insulation and General Casualty had been settled, and so the only claim to be addressed at the hearing was the employee’s claim against Northern Industrial Insulation and Western National. In his Findings and Order, the judge set forth the specific issues of law and fact submitted to him for decision. The issue of apportionment was not among them, nor did the judge issue any findings relative to this alleged issue.
An issue raised for the first time on appeal is not properly before the court and will not be addressed. See Stanford v. Shaw Stewart Lumber Co., No. WC08-206 (W.C.C.A. Jan. 8, 2009); Moreno v. Advertising Unlimited, slip op. (W.C.C.A. Jan. 3, 2001). Because the issue of apportionment, or the allocation of liability for payment of benefits, was not raised at the hearing and therefore was not at issue before the compensation judge, that issue could not be raised in the notice of appeal, is not properly subject for our review, and will not be addressed.
Permanent Partial Disability
The compensation judge concluded that the employee’s overall level of permanent partial disability exceeds 17% whole body impairment. At Finding No. 36, he concluded “[t]hat to the extent it may be an issue the employee from his multiple medical conditions including his left knee condition has a permanent partial disability that exceeds 17% under the permanency schedules.” The employer and insurer appealed from this finding, but did not address it in their appellant brief. In their reply brief, the employer and insurer argued that, “aside from a conclusory statement,” the compensation judge did not specifically find a threshold permanency rating sufficient for entitlement to permanent total disability benefits, as required by Minn. Stat. § 176.101(5). They did not discuss the matter further.
In their notice of appeal, the employer and insurer also listed an appeal from the compensation judge’s finding that the employee had sustained 10% permanent partial disability to the body as a whole as a result of his June 24, 1991, work injury. They did not, however, address this particular issue in their appellate brief. Because these two issues concerning permanent partial disability were not addressed in the employer and insurer’s appellant brief, we have not addressed those issues in our decision. “Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.” Minn. R. 9800.0900, subp. 1 and 5.
 As explained by counsel for the employee during the evidentiary hearing, the employee claims to have sustained a left knee injury in 1988, and there is a reference in his medical records to such an injury, but the employer and insurer deny primary liability for a 1988 injury. The parties agree that the employee sustained a left knee injury on June 24, 1991, and it is the 1991 injury that was litigated at the hearing on May 15, 2008.
 According to a reference in a report issued by John Witzke, dated January 11, 2008, the employee remained off work for five to six months due to complications with his left knee surgery.
 Dr. Fleeson also assigned permanency ratings related to the employee’s right knee, and also related to his upper extremities for his carpal tunnel syndrome and ulnar nerve syndrome.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 July 7, 2004, was the employee’s last day working at Lakes States Insulation. The dates in 2005 correlate with dates of surgery.
 Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963); Frey v. Snelgrove, 269 N.W.2d 918 (Minn. 1978).