GERALD L. CONN, Employee, v. ARAMARK SERVS. and NORTHWESTERN NAT’L/SPECIALTY RISK SERVS., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 22, 2010
PERMANENT TOTAL DISABILITY; JOB SEARCH. Substantial evidence, including expert medical and vocational testimony, supports the compensation judge’s finding that the employee is permanently and totally disabled, even where the employee did not conduct a job search after being laid off from his last employer. A job search is not a prerequisite to a finding of permanent total disability where other evidence in the record establishes the disability and sufficiently demonstrates that a job search would be futile.
Determined by: Rykken, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Paul V. Rieke
Attorneys: Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Respondent. James R. Waldhauser, Cousineau McGuire, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge’s finding that the employee is permanently and totally disabled. We affirm.
On March 26, 1979, Gerald Conn, the employee, sustained a work-related injury to his lumbar spine as he loaded a delivery truck while working for Aramark, the employer, which was insured for workers’ compensation liability by Northwestern National/Specialty Risk Services, the insurer. The employee ultimately was diagnosed as having chronic low back pain syndrome with associated degenerative disc disease. He has undergone extensive medical treatment and physical rehabilitation programs, not including surgery, which has not been recommended. The employer and insurer admitted liability and paid various workers’ compensation benefits. As a result of his injury, the employee has physical restrictions including: avoiding repetitive bending, lifting, twisting, high impact activities, use of vibratory equipment, and long distance driving, no lifting over 20 pounds or pushing or pulling over 25 pounds, and to be able to change positions regularly.
The employee is a high school graduate and has a civil engineering degree from a vocational school. After the employee was injured in 1979, he relocated with the employer to Brainerd where he conducted route evaluations and magazine distribution analysis. In 1988, he was laid off by the employer. The employee attempted a position with a different employer as a route delivery driver, but he could not tolerate the lifting involved. The employee moved back to Detroit Lakes, Minnesota. The employee was off work until 1989 or 1990 when he began working for Orton’s Audubon, six miles west of Detroit Lakes. In 1998, the employee resigned from this position and began working for D.L. Marine. He eventually became a service manager for that employer. This position was sedentary and did not require any heavy lifting. He was laid off from that position in approximately 2004 due to economic conditions. He later found work at McLaughlin’s R.V. & Marine as a service manager. This was also a sedentary job, but the employee began to experience more pain in his back and started having problems with his legs giving out.
In March 2006, the employee voluntarily left that position and began working at Hedahl’s, a parts store, as a parts counter person. This was similar to the service manager job where the employee could sit and change positions. He continued to develop more problems with his back, experienced more pain, and started to use a cane during this time. In February 2007, the employee voluntarily left that position to work at J & K Marine, where he became the parts and service manager. This position was also mostly sedentary. He would sit from four to six hours per day and assist at the counter the rest of the time. The employee testified that his pain level increased to an intense level and he had to use a cane forty to fifty percent of the time. In July 2009, the employee was laid off from J & K Marine for economic reasons. At the time, the employee was able to perform the duties of this position. In September 2009, the employee applied for Social Security disability benefits. The employee received unemployment compensation until November 30, 2009.
The employee has treated with Dr. Ensor Transfeldt, orthopedic spine specialist, since 1989. By October 2006, Dr. Transfeldt noted that the employee was becoming increasingly disabled by pain. In 2006, Dr. Transfeldt referred the employee to Dr. Paul Hendrickson in Detroit Lakes for monitoring of his pain medications. In February 2010, Dr. Transfeldt opined that the employee’s 1979 work injury was a substantial contributing cause of the employee’s permanent disability, that the employee’s work restrictions were permanent, and that the employee’s disability and pain preclude him from any meaningful gainful employment. He stated that
[The employee] has had severe mechanical back pain for many years. Out of necessity, he has had to keep working, but his pain has been getting progressively worse and he has now reached the point where he is really hardly able to perform menial activities of day-to-day living and is unable to stay in gainful employment. This gentleman does have a long history of lumbar disc degeneration, chronic pain, and multimodalities of treatment.
* * *
He has a really severe form of chronic unremitting low back pain. This pattern of pain is really not conducive to anybody staying gainfully employed on a regular basis because of the frequent episodes of pain. This has certainly been the case with him even for menial activities of day-to-day living. I do feel that he is permanently and severely disabled as a result of his condition.
On April 28, 2010, the employee was evaluated by Dr. Charles Hartz at the employer and insurer’s request. Dr. Hartz opined that the employee has chronic low back pain syndrome with associated degenerative disc disease due to his 1979 work injury, but that he could work at a sedentary position within his work restrictions. In his opinion, those restrictions were similar to those he had been assigned for several years, including minimizing bending, twisting, stooping, crawling, kneeling, lifting and carrying. Dr. Hartz recommended lifting restrictions of twenty pounds, and no lifting pushing or pulling anything over 25 pounds. Dr. Hartz also concluded that the employee could only work in a sedentary job because walking flares up his low back pain.
The employee has not conducted a job search since he was laid off. He testified that his symptoms have worsened and that he would no longer be able to perform the duties of the position he held at the time he was laid off. At the time of the hearing he was experiencing extreme pain in his low back and left leg and was taking pain medication for his work injuries. The employer and insurer’s vocational expert, Mr. David Berdahl, conducted an independent vocational evaluation of the employee in May 2010, and also performed a labor market survey. He concluded that various job opportunities were available for the employee within his geographical area, although some of the suggested positions were located forty miles away from Detroit Lakes, were cashier positions, or were positions with employers where no hiring had taken place for one to two years.
The employee’s vocational expert, Ms. Debra Bourgeois, also conducted an independent vocational evaluation of the employee in May 2010. At that evaluation, the employee reported that he could sit for approximately 30 minutes, stand for approximately 10 minutes, and walk about 50 feet before having to stop, and that he used a cane 90 percent of the time. Ms. Bourgeois determined that the employee could not perform sustained competitive employment on even a part-time basis, based on the history provided by the employee and her review of his medical records and employment history, and that she considered him to be permanently and totally disabled. At the hearing, Ms. Bourgeois testified that the employee would not be able to perform any of the positions designated by Mr. Berdahl in his labor market study, due to the distance from his home, his work restrictions, and his physical limitations.
On December 10, 2009, the employee filed a claim petition for temporary total or permanent total disability benefits. The employer and insurer denied the claim and a hearing was held on June 9, 2010. Evidence submitted at the hearing included medical records; a report issued by Dr. Hartz, independent medical examiner; reports and deposition testimony by Dr. Transveldt; reports issued by Mr. Berdahl and Ms. Bourgeois; and testimony by the employee and Ms. Bourgeois. The compensation judge found that the employee was permanently and totally disabled as of November 30, 2009. He relied on the medical opinion and testimony provided by Dr. Transveldt, as well as the testimony of Ms. Bourgeois and her assessment of the employee’s vocational status in conjunction with his physical condition. The compensation judge found, as follows:
As of the employee’s last day of work (July 31, 2009) the employee has been totally and permanently incapacitated for work activity due to the fact that the employee’s physical condition resulting from the work injury, in combination with the employee’s age, education, training and experience has caused the employee to be unable to secure anything more than sporadic employment resulting in insubstantial income.
(Finding No. 13.)
The employer and insurer appeal.
STANDARD OF REVIEW
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 (2008). 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, 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.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Under the workers’ compensation law in effect at the time of the employee’s injury, permanent total disability results when an injury “totally incapacitates the employee from working at an occupation which brings [the employee] an income.” Minn. Stat. § 176.101, subd. 5 (1978) (amended). Permanent total disability exists when the injured employee’s physical condition, age, training, experience, and the type of work available in the community, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Schulte v. C. H. Peterson Constr., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). The determination of permanent total disability is primarily dependent on an employee’s vocational potential rather than the employee’s physical condition. See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). The issue of whether an employee has met the burden of proving permanent total disability is ultimately a question of fact for the compensation judge. Id. at 541, 36 W.C.D. at 138.
The employee was 58 years old at the time of the hearing. He graduated from high school and has a civil engineering degree from a vocational school. After his work injury, the employee was able to locate a series of sedentary jobs that he could perform within his restrictions. The employer and insurer argue that the employee’s work restrictions have not changed over the years since his injury. They also argue that at the time of the employee’s layoff in 2009, Dr. Hendrickson determined that the employee was able to work with continued restrictions - - an assessment that matched Dr. Hendrickson’s conclusion at a medical appointment eight months earlier. The employer and insurer also relied on Dr. Hartz’s opinion that the employee could work at a sedentary position within his work restrictions.
At the hearing, the employee testified that his condition had worsened over time, that he was in constant pain and that his legs would intermittently collapse. The compensation judge specifically noted that his observance of the employee at the hearing confirmed the employee’s description of the pain and physical limitations he experiences, and found the employee to be credible. It is the trier of fact’s responsibility to assess the credibility of a witness. Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989). It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990). Further, Dr. Transfeldt opined that the employee’s disability and pain preclude him from any meaningful gainful employment. It is the compensation judge’s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).
The employer and insurer also argue that the employee should have conducted a job search after being laid off by his last employer, in order to prove his entitlement to permanent total disability benefits. While the employee has not conducted a job search since being laid off in July 2009, a diligent job search is not a necessary prerequisite to a finding of permanent total disability. See Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879, 47 W.C.D. 136, 142 (Minn. 1992). A search is not required where other evidence in the record establishes the disability, for example, when the medical and vocational evidence sufficiently demonstrates that a job search would be futile. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-189, 30 W.C.D. 426, 432 (Minn. 1978) (citations omitted); see also Atkinson v. Goodhue County Co-op Elec. Ass’n, 55 W.C.D. 150, 160 (W.C.C.A. 1996) (“There is no requirement that an injured employee affirmatively seek and be denied employment where such a search would be futile. The fact that the employee did not seek post-injury employment goes only to the evidentiary weight of his claim that he is totally disabled.”), summarily aff’d (Minn. Sept. 23, 1996).
The employer and insurer argue that Mr. Berdahl’s labor market study indicates that there were viable vocational opportunities for the employee. The study includes employers outside of the Detroit Lakes, Minnesota, area where the employee has lived since approximately 1989. Several positions are located in the Fargo/Moorhead area, Fergus Falls, and Mahnomen, which are at least 40 miles away from Detroit Lakes. The employee testified that he has to stop frequently when driving. Several employers listed in the labor market survey conducted by Mr. Berdahl had not hired for one to two years. Jobs available with those employers who had openings included cashiering positions at discount stores and convenience stores. The employee’s vocational expert testified that these positions often involve activities that would be outside of the employee’s restrictions. The compensation judge did not err by failing to rely on Mr. Berdahl’s study in his determination of whether the employee was permanently and totally disabled.
The compensation judge found Ms. Bourgeois’ testimony that the employee is permanently and totally disabled to be the best assessment of the employee’s vocational status, based on the employee’s physical condition and Dr. Tranfeldt’s opinion. The compensation judge specifically found that “the severity of the employee’s physical condition . . . would negate any requirement that the employee continue to seek employment.” Based on our review of the record as a whole, substantial evidence supports the compensation judge’s finding that the employee is permanently and totally incapacitated from work activity, and we therefore affirm.