ROBERT KRISTOFFERSON, JR., Deceased Employee, by ROBERT M. KRISTOFFERSON, Petitioner/Appellant, v. ARCTIC CAT, INC., SELF-INSURED/BERKLEY RISK ADM’RS, Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN., RS MED., MINNESOTA DEP’T OF LABOR & INDUS./VRU, and NORTH COUNTRY REG’L HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 8, 2010
CAUSATION - CONSEQUENTIAL INJURY; CAUSATION - INTERVENING CAUSE; DEPENDENCY BENEFITS - PAYMENTS TO ESTATE. Where the deceased employee had tested positive for marijuana use at the time of his hernia work injury and had quit his job rather than submit to a random drug test, where, upon his death, illicit drugs were discovered near the employee’s body, and where the autopsy report had noted several puncture spots on the employee’s body suggestive of injection sites and had concluded that the employee’s death could have resulted from either morphine prescribed for his work-injury pain or illicit heroin, the compensation judge’s conclusion that the employee’s own negligence and intentional conduct was a superseding intervening cause of his death was not clearly erroneous and unsupported by substantial evidence. On this record, it was not unreasonable for the judge to find that the employee’s own conduct was a superseding intervening cause of his death, and the judge’s denial of the estate’s claim for the statutory death benefit is affirmed.
PERMANENT PARTIAL DISABILITY - WEBER RATING. Where the treating doctor’s permanency rating was unclear and was not based on workers’ compensation schedules, where that rating appeared to include generally the employee’s entire hernia-related condition, including loss of a testicle and chronic pain, and where no doctor had documented a functional loss of use or impairment of function related to the employee’s alleged chronic pain syndrome, the compensation judge’s conclusion that the petitioner did not prove the employee’s entitlement to an additional rating for chronic pain syndrome under Weber v. City of Inver Grove Heights was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee had demonstrated an ability to work full time until he voluntarily quit working two years after his work injury, where he acknowledged in testimony that for over two years thereafter he made no effort to search for work, where after being found qualified for rehabilitation assistance he failed to maintain any contact with his QRC, where there was no evidence that he ever again searched for work up to the date of his death, and where his doctor did not explain what he meant by concluding that the employee had been unable during that time to perform any “meaningful” work, the compensation judge’s denial of wage replacement benefits during all but a brief period of the employee’s claim was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the judge evidently accepted expert medical opinion that, for a period of the employee’s claim, the employee was clearly unable to work due to his work injury, and where, for another part of the employee’s claim, the judge apparently misconstrued what the court concluded was a medical restriction from all work pending further repair of the employee’s work injury, the compensation judge’s denial of temporary total disability benefits for part of the period of the employee’s claim was unsupported by substantial evidence and so was reversed.
PERMANENT TOTAL DISABILITY. Where the employee did not pursue vocational rehabilitation and did not offer any expert vocational opinion in support of his claim that a job search would be futile for him, and where he did not meet the permanent partial disability threshold required for an award of permanent total disability under the statute, the compensation judge’s denial of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence.
Affirmed in part and reversed in part.
Determined by: Pederson, J., Stofferahn, J., and Rykken, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Mark L. Rodgers and Yuri Jelokov, Rodgers Law Office, Bemidji, MN, for the Petitioner/Appellant. Kay Nord Hunt and Richard L. Plagens, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The petitioner appeals from the compensation judge’s finding that the employee’s death, caused by morphine overdose, was not causally related to his work-related injury; from the judge’s denial of total disability benefits from December 11, 2002, through January 12, 2005, and from May 3 through May 28, 2005; and from the judge’s denial of permanent partial disability under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D.471 (Minn. 1990). We reverse the judge’s denial of total disability benefits from January 3 through January 12, 2005, and from May 3 through May 28, 2005, and we affirm the balance of the judge’s findings and order.
On December 6, 1999, Robert Kristofferson, Jr., sustained a work-related injury in the form of a left inguinal hernia while employed as a machinist with Arctic Cat, Inc. [the employer]. Mr. Kristofferson [the employee] was forty-three years old on that date and was earning a weekly wage of $433.05, and the employer was self-insured against workers’ compensation liability, with claims administered by Berkley Risk Administrators [Berkley]. On January 18, 2000, the employee underwent surgical repair of his injury employing a mesh “plug and patch,” performed by Dr. Jerome Bray.
The employee had a longstanding history of abusing street drugs prior to his move to Minnesota in 1999. His drug use included marijuana, heroin, cocaine, and speed, and he had been incarcerated on a number of occasions in the State of Washington for drug use and/or drug trafficking. Immediately following his work injury with the employer, the employee tested positive for marijuana. Pursuant to the employer’s policies, the employee was therefore required to attend a chemical dependency evaluation. Dr. Bray released the employee to return to work on February 21, 2000, and the employee completed the required chemical dependency evaluation about two weeks later, on March 9, 2000. Thereafter, the employee was subject to random drug testing for two years.
The employee returned for follow-up examinations by Dr. Bray in July and August of 2000, complaining of having increasing discomfort in his left groin area with activity. Dr. Bray recommended that the employee try to avoid twisting, bending, and lifting, so as to allow complete healing at the hernia site. About eight months later, the employee saw Dr. Bray again, complaining of severe pain in his left testicle such that he wanted to have it removed to get rid of the discomfort. Dr. Bray sought a second opinion from surgeon Dr. David Antonenko, who felt that the employee probably was experiencing some irritation of the genitofemoral nerve, either from scar tissue or from the hernia repair mesh. He recommended a referral to Dr. Jayant Damle for pain management.
The employee first saw Dr. Damle on April 27, 2001. Dr. Damle subsequently diagnosed ilioinguinal neuralgia and administered a nerve block followed by cryoablation treatment on July 13, 2001. The employee reported significant improvement in follow-up on July 27, 2001, and Dr. Damle released the employee from his care.
The employee continued working for the employer until November 2001, when he was asked to undergo a random drug test. Test results were inconclusive, and the employer required a retest. Rather than submit to a retest, the employee voluntarily quit his job with the employer on November 5, 2001. About two days after leaving the employer, the employee found a seasonal job at Northern Pride, a turkey processing plant. He worked there for about one month before being laid off. The employee did not return to work following his layoff by Northern Pride.
On February 14, 2002, the employee returned to see Dr. Damle with a recurrence of his ilioinguinal neuralgia. This time, the cryoablation treatment did not help, and the employee was referred for surgical consultations both in Grand Forks and at the Mayo Clinic. Mayo Clinic surgeon Dr. Patrick Dean, who saw the employee on July 15, 2002, did not believe that removal of the mesh plug followed by autogenous tissue repair would improve the employee’s symptoms, and he thought that the employee would be at risk for loss of a testicle on that side in the process. Dr. Dean recommended instead an intensive pain management program for the employee’s condition.
Meanwhile, Dr. Damle began prescribing oxycodone for the employee’s pain and referred the employee for a psychological evaluation and opinion regarding the placement of a peripheral nerve stimulator. On April 16 and 23, 2002, the employee was examined by psychologist Dr. Kim LaHaise, who noted the employee’s prior history of street drug use and his use of oxycodone. Her diagnosis was “pain disorder associated with both psychological factors and a general medical condition.” Based on his history prior to 1999, she stated that she was extremely reluctant to recommend the employee for the nerve stimulator, and Dr. Damle declined to do the implantation procedure, offering instead to do an alternative, radiofrequency thermocoagulation procedure. On October 23, 2002, Dr. LaHaise noted that the employee admitted to smoking marijuana and taking more oxycodone than he was prescribed. The employee did not benefit from the thermocoagulation treatment subsequently performed on November 13, 2002.
On March 3, 2003, the employee filed a claim petition for workers’ compensation benefits in which he claimed entitlement to temporary total disability benefits continuing from December 11, 2002, supported by a December 16, 2002, report of workability completed by his family physician, Dr. Scott Petrescue. Dr. Petrescue had diagnosed chronic left groin pain following hernia surgery and had indicated that the employee was unable to work from December 16, 2002, through December 16, 2003.
Throughout 2003, the employee’s pain was treated primarily with oxycodone, and Dr. Damle ultimately recommended implantation of a peripheral nerve stimulator after all. On January 19, 2004, the employee was seen by neurologist Dr. Lia Guina, who concluded that she had nothing other to recommend for the employee and fully supported the placement of the peripheral nerve stimulator for pain management.
On March 1, 2004, the employee underwent surgical placement of a trial peripheral nerve stimulator for his diagnosed left ilioinguinal neuralgia. Dr. Damle noted that he was unable to obtain “adequate coverage” with the device, and he removed the stimulator three days later. When he saw the employee in follow-up on March 16, 2004, Dr. Damle reported:
I have counseled the patient that I have exhausted all the options in treatment of his ilioinguinal neuralgia. I do not have any further plans for treatment for him. He is taking 1 oxycodone 5-mg tablet per day. Dr. Petrescue can continue that medication for him. He has a history of substance abuse in the past. I have counseled him not to take more than this amount of medication. He understands that, and he has followed the rules well.
The employee testified by deposition on April 9, 2004, in part that he suffered from constant left groin and testicle pain, that traveled down into his left thigh and grew worse with movement. The employee stated that he hadn’t looked for work since Dr. Petrescue took him off work in December 2002 and had not contacted any state agency to request vocational assistance.
The employee was referred for a rehabilitation consultation and met with qualified rehabilitation consultant [QRC] Kevin McCarthy on July 28, 2004. The QRC noted that Dr. Petrescue’s records indicated that the employee was restricted from working and was being evaluated by a surgeon for possible removal of the mesh from his hernia surgery in 2000. QRC McCarthy concluded that the employee had transferable skills and would benefit from rehabilitation services. His plan at that time was to provide medical management to clarify the prospect of surgery and/or a pain clinic. QRC McCarthy prepared an R-2 Rehabilitation Plan on September 16, 2004, calling for “assist[ing] client in finding physically and economically suitable work using transferable skills,” but it does not appear from the record that the employee had had any further meetings or conversations with the QRC after the initial consultation.
On December 21, 2004, the employee was seen in consultation by surgeon Dr. Jerome Thompson on referral from Dr. Petrescue. Dr. Thompson noted the employee’s history of hernia surgery in 2000 followed by a number of unsuccessful pain management procedures. The employee described himself as being totally disabled, and he pleaded with Dr. Thompson to “explore him and remove his mesh in hopes that it might help.” After a detailed discussion of the advantages and disadvantages of the proposed surgery, the employee elected to proceed.
The employer and Berkley arranged for the employee to see Dr. Eric Irwin, a specialist in general/vascular surgery on January 3, 2005. Dr. Irwin reviewed the employee’s medical records, obtained a history, and performed a physical examination. In a report dated January 18, 2005, Dr. Irwin diagnosed “left inguinal hernia status post-repair, now with pain syndrome,” noting, “This has been previously diagnosed as ilioinguinal neuralgia and certainly the distribution would be consistent with this.” While he believed that further surgery would be reasonable, he favored a resection of a segment of the irritated nerve rather than removal of the mesh. He considered removal of the mesh to be “truly a last ditch effort” that would likely result in loss of the testicle and recurrence of the hernia. With regard to permanent partial disability, Dr. Irwin stated that, although it was likely that the employee would have “ongoing partial disability,” it would be premature to make a statement until evaluation following the nerve resections. He noted that the employee seemed to have been disabled between the date of injury and the present time. And he concluded by stating, “at this time it would seem unlikely that [the employee] would be able to work consistently in gainful employment.”
On January 13, 2005, Dr. Thompson removed the left inguinal mesh and performed a neurectomy and removal of the left testicle. On March 22, 2005, Dr. Petrescue reported that, following surgery, some of the employee’s symptoms had improved but a number had continued. He noted that, with the removal of the mesh, the employee had again a large left inguinal hernia “that hopefully will be repaired and hopefully some of his other symptoms in the groin will improve.” Dr. Petrescue indicated that the employee was being treated for his pain with morphine and remained unable to work. Dr. Thompson saw the employee in follow-up on May 2, 2005. He recommended re-repair of the employee’s hernia later in the fall or in early winter. He noted that the employee had limited functional abilities and was not able to return to any meaningful employment until his hernia was repaired. The employee was last seen by Dr. Petrescue on May 20, 2005. At that visit, the employee reported continued trouble with groin pain but overall improvement since the surgery. He continued to receive morphine for his pain.
The employee was found dead in his home on May 28, 2005. According to the investigation report prepared by the Thief River Falls Police, officers found “drug paraphernalia present in the [employee’s] room.” The “officers could see various drug paraphernalia used for smoking marijuana and other illegal substances.” The report noted that underneath the employee’s body there was “what appeared to be [a] carved bong commonly used for smoking marijuana.” The officers also located “what appear[ed] to be marijuana and possible meth and heroin on scene.”
An autopsy was performed by Dr. Mary Ann Sens on May 29, 2005. The Autopsy Final Report issued on June 21, 2005, lists the cause of death as morphine overdose. Dr. Sens noted that significant autopsy findings included a “high level of morphine (3.28 mg/L). This could have resulted from either morphine or heroin, which rapidly metabolizes to morphine. Dr. Sens stated further, “Decedent reportedly used methamphetamine, heroin, and THC. Scene investigation confirmed the presence of all three agents as well as drug paraphernalia in his apartment.” Dr. Sens also found “several small punctate, slightly erythematous, pustular-like areas on the arms, legs, and abdomen suggestive of injection sites or flea bites.”
On May 18, 2006, an Administrative Law Judge with the Social Security Administration issued a decision wherein he found that the employee had been disabled from the date of his application (July 1, 2004) through the date of his death as a result of a combination of impairments that were “severe” within the meaning of the regulations. One of those impairments was the employee’s history of severe left-side groin pain stemming from left ilioinguinal neuralgia.
Sometime in 2006, the employee’s medical records were sent by the petitioner’s attorney for review by Dr. Jessica Scott, a family physician in North Carolina. In a report dated October 14, 2006, Dr. Scott concluded that the employee had developed a chronic pain syndrome, “specifically left-sided ilioinguinal neuralgia following surgical repair of an inguinal hernia.” She noted that the employee had other medical problems, including non-insulin dependent Diabetes Mellitus, hypertension, Hepatitis C, and a previous history of addiction to drugs including heroin. She went on to conclude the following:
During the days prior to his death, [the employee] had apparently been quite ill with a bronchitis or pneumonia. Drug paraphernalia was found in [the employee’s] home when police found his body, though no evidence exists that he used heroin. Hypothetically, if he had used heroin, it could not have contributed significantly to his blood narcotic level since the level was significantly higher than that seen with heroin overdose, and thus points to an excessive morphine intake.
* * *
After carefully evaluating the records [provided], it is my opinion based on a reasonable degree of medical certainty, that [the employee’s] death is more likely than not, related to his excessive narcotic use/abuse in treatment of his chronic pain due to ilioinguinal neuralgia and that this neuralgia developed after ilioinguinal hernia repair and, thus, the hernia was a substantial contributing factor to his death.
In a letter to the petitioner’s attorney dated May 21, 2007, Dr. Petrescue also noted the employee’s past history of illegal drug use and misuse of legal drugs. At some point, he surmised, “[the employee] started using more than the recommended doses of pain medications and possibly even using illegal drugs again, which certainly could have been due to increasing pain or the past drug addiction that he had.” Dr. Petrescue stated that he agreed with the coroner that the employee’s death “was likely an accident secondary to excessive consumption of narcotics.” He also suggested that “[i]t is certainly possible that [the employee] started increasing the dose of pain medications he was taking on his own the week he died in an attempt to help reduce his pain. His judgment could have been impaired as well from the pneumonia that the coroner confirmed.” Dr. Petrescue offered also his opinions regarding permanent partial disability related to the employee’s hernia and loss of his testicle. The doctor explained,
He did get a repair, which did not help with the symptoms, and his symptoms limited his activities of daily living and made it difficult for him to perform any meaningful employment. The significant troubles that [the employee] had with the hernia would put him at a 30% impairment. In terms of the loss of his testicle, [the employee] did have significant pain in the testicle, which limited his activities of daily living, and as a result he had to have the testicle removed, which put him at another 20% impairment from the total loss of the left testicle and pain associated with the procedure.
In a follow-up letter to the petitioner’s attorney on November 29, 2007, Dr. Petrescue clarified that his 20% rating referred to Minnesota Rules 5223.0600, subpart 7.C., and reflected loss of a single testicle with complete loss of seminal and hormonal function. In terms of the hernia itself, Dr. Petrescue referred to the AMA guidelines and stated that the employee’s 30% impairment resulted from the significant pain and discomfort associated with the hernia and subsequent revision. By letter dated December 19, 2007, the petitioner amended the employee’s claim petition to include the ratings set forth in Dr. Petrescue’s November 29, 2007, letter.
In early 2009, the employer and Berkley requested a medical record review by psychiatrist Dr. Scott Yarosh. In a report dated February 11, 2009, Dr. Yarosh noted particularly the employee’s history of illicit substance abuse, the report of the police investigation, the autopsy report of Dr. Sens, and the opinions of Dr. Scott. After reviewing the employee’s records, Dr. Yarosh opined that the employee’s death was “due to a multiplicity of factors.”
Those factors primarily concern his proclivity for ongoing opioid/narcotic abuse. Accidental overdoses are not uncommon among heroin users, and that such an event is a foreseeable consequence of that lifestyle. He had been treated with copious amounts of prescribed opioids including morphine and oxycodone, and he had clearly been augmenting his prescribed medications with illicit drugs as evidenced by the paraphernalia and illicit drugs found at the time of the discovery of the body. Sequela from [the employee’s] injury may have been a factor in the cause of his death, but in all likelihood, it was a minor factor in conjunction with the numerous other factors listed above. It would be speculative to opine that, but for his work injury, [the employee] would not have continued to use illicit drugs with all the risks inherent in that decision.
The employee’s estate’s claims for workers’ compensation benefits vesting prior to the employee’s death, together with the estate’s claim for a $60,000 death benefit under Minnesota Statutes section 176.111, subdivision 22, came on for hearing before a compensation judge at the Office of Administrative Hearings on March 13, 2009. Issues at trial included in part the following: (1) whether the December 6, 1999, work injury was a substantial contributing factor to the employee’s death; (2) whether the employee was either temporarily totally disabled or permanently and totally disabled from December 11, 2002, through May 28, 2005; (3) the extent of the employee’s permanent partial disability for his work-related hernia and loss of a testicle; (4) whether the employee’s estate was entitled to payment of a $60,000 death benefit pursuant to statute; and (6) whether the claims for temporary total, permanent total, and permanent partial disability benefits vested in the employee prior to his death.
In a findings and order issued June 9, 2009, the compensation judge found that the employee’s death was not causally related to the work injury and denied his estate’s claim for a $60,000 statutory death benefit. The judge found that the employee was neither temporarily totally nor permanently and totally disabled from December 11, 2002, through May 28, 2005, except for the period following the employee’s surgery from January 13, 2005, through May 2, 2005. The judge awarded compensation for a 5% permanent partial disability of the whole body related to the surgical removal of single testicle and compensation for another 5% impairment related to the employee’s two herniorrhaphies. She denied the petitioner’s claim for a Weber rating related to the employee’s alleged chronic pain syndrome. The petitioner appeals.
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 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 Minnesota Statutes section 176.111, subdivision 22, a petitioner may receive a death benefit of $60,000 if the death of the employee resulted from the work injury. As a general rule, when an injury or condition is found to be work-related, an employer and insurer are liable for every natural consequence that flows from the injury or condition. Nelson v. American Lutheran Church, 420 N.W.2d 588, 590, 40 W.C.D. 849, 851 (Minn. 1988). In Gerhardt v. Welch, the supreme court adopted the “direct and natural consequence rule” set forth in Larson’s Workmen’s Compensation Law, which provided that,
[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.
Gerhardt v. Welch, 267 Minn. 206, 209, 125 N.W.2d 721, 723, 23 W.C.D. 108, 112 (1964) (quoting 1A. Larson Workmen’s Compensation Law, § 13.00). The chain of causation between the work injury and a subsequent aggravation may be broken, however, if the aggravation is the result of “unreasonable, negligent, dangerous or abnormal” activity or conduct on the part of the employee. Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 102, 109 N.W.2d 47, 49-50, 21 W.C.D. 437, 441 (1961). “Thus, when the issue is the compensability of a claimed consequence of a personal injury, fault or negligence is a factor and the employee’s own intentional conduct may be an independent or intervening cause of the disability.” Melartin v. Mavo Sys., Inc., 65 W.C.D. 405, 412 (W.C.C.A. 2005). “The more remote the claimed consequence is from the personal injury, the less likely it is the claimed consequence is compensable.” Id. at 414.
At Finding 13, the compensation judge found that
[t]he employee’s own negligence and intentional conduct in utilizing his morphine medication greater than the recommended dosage and utilizing his medication while ingesting other illicit drugs, contrary to medical advice by multiple physicians on multiple occasions, is an independent intervening cause of the disability resulting in his death on May 28, 2005.
In her memorandum, the judge reviewed the expert opinions by Dr. Petrescue, Dr. Scott, and Dr. Yarosh. She concluded that the employee’s work injury had not been proven to be a substantial contributing factor in the employee’s death by overdose. She found Dr. Scott’s opinion to be speculative and lacking in its consideration of the employee’s long history of drug abuse. She accepted Dr. Yarosh’s opinion as “persuasive [and] representing the greater probability of the truth.” And she reiterated her conclusion that “the employee’s own negligent behavior in ingesting large amounts of morphine, along with use of illicit drugs, represent[ed] an intervening cause to break the claim of causation.”
On appeal, the petitioner argues that the judge’s denial of death benefits, based on the finding that the employee’s negligence in utilizing his morphine medication amounted to an independent intervening cause of his death, represents a misapplication of the law and is reversible error. He contends that there is no case law in Minnesota standing for the proposition that the injured worker’s act of taking an increased dosage of pain medication for ongoing work-related pain is to be treated as an intervening cause that breaks the chain of causation between the original injury and the compensable consequence. To the contrary, he asserts, citing to Professor Larson’s treatise and cases cited therein, a holding that the employee’s death from overdose on prescription pain medication is compensable would be in accord with other jurisdictions. In the present case, the petitioner argues, the weight of the evidence supports a direct and natural connection between the employee’s work injury, his years of debilitating and poorly controlled pain, his consumption of pain medication, and his death from morphine overdose. Moreover, even though the employee had problems with chemical dependency in the past, he had overcome those problems shortly before moving to Minnesota and commencing work for the employer in 1999. We are not persuaded.
We would note initially that the petitioner appears to have misconstrued the judge’s findings on causation. The main thrust of the petitioner’s argument is that there is a clear and unbroken causal connection between the employee’s work injury, his use of pain medication for that injury, and an overdose of that medication leading to his death. The judge, however, found that the employee not only negligently and intentionally misused his morphine medication, but did so “while ingesting other illicit drugs,” after being counseled on multiple occasions by multiple physicians regarding the dangers. There was no medical evidence that the drugs that were prescribed would have caused the employee’s death if taken as directed. Nor was the judge required to accept the assertion that the employee had been free from illicit drugs, except for marijuana, since 1999. The judge quite properly considered the employee’s extensive drug history prior to 1999. The record shows that the employee tested positive for marijuana at the time of his injury and that he voluntarily quit his employment rather than submit to a random drug test in 2001. In January 2004, the employee again tested positive for marijuana, and in April 2005, he requested a replacement prescription for missing medications. When the employee’s body was found, there were illicit drugs present. The employee’s father, who had been interviewed by the investigating police officer, stated that the employee was a “hard core drug addict.” In her autopsy report of June 21, 2005, Dr. Sens concluded that the employee’s high level of morphine “could have resulted from either morphine or heroin, which rapidly metabolizes to morphine.” She also noted several small puncture-like areas on the employee’s body that were suggestive of injection sites or flea bites. On this record, the judge could reasonably conclude that the employee was using illicit drugs at the time of his death.
Finally, the petitioner argues that the judge’s reference to this court’s decision in Melartin v. Mavo Sys., Inc., 65 W.C.D. 405 (W.C.C.A. 2005), as “particularly instructive” was inappropriate in this case because Melartin differs from this case significantly, both factually and substantively. We are not persuaded. The judge cited Melartin for the proposition that, when the issue is the claimed consequence of a personal injury, an employee’s fault or negligence is a factor and his own intentional conduct may be an independent or intervening cause of the disability. Regardless of the factual differences between the present case and Melartin, the judge quite properly applied its legal principles. On this record, it was not unreasonable for the judge to find that the employee’s own conduct was a superseding intervening cause of his death. We therefore affirm the judge’s denial of the estate’s claim for the statutory death benefit.
2. Permanent Partial Disability under Weber
The petitioner claimed permanent partial disability for chronic pain syndrome pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). In Weber, the Minnesota Supreme Court held that non-scheduled injuries resulting in permanent functional impairment could not be excluded from coverage by the permanent partial disability schedules. The legislature essentially codified the Weber decision in 1992 Minnesota Laws 510. Minnesota Statutes section 176.105, subdivision 1(c), provides as follows: “If an injury for which there is objective medical evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.” Minn. Stat. § 105, subd. 1(c).
In the present case, the compensation judge denied the petitioner’s claim for permanent partial disability benefits for chronic pain syndrome on grounds that no specific entitlement had been demonstrated under Weber principles. In her memorandum, the judge noted that Dr. Petrescue had rated the employee’s whole body impairment at 30% under the AMA guidelines, with only vague references to the workers’ compensation permanent partial disability schedule and with no reference to any objective functional limitations that could be attributed to the chronic pain syndrome. On appeal, the petitioner argues that the judge improperly found the petitioner’s claim for chronic pain-related permanent partial disability incapable of ascertainment because the employee had not reached MMI. He argues further that the judge’s statement that Dr. Petrescue’s opinions “do not reference objective findings or functional limitations from the chronic pain syndrome” was a clearly erroneous observation. We are not persuaded.
We note initially that a Weber rating is not intended to be used in cases where the injuries to a particular part of the body are provided for in detail in the schedules or where the employee’s claim is based on significant subjective complaints of pain with no objective findings. While a rating for chronic pain syndrome may be appropriate in certain cases, it is incumbent on the employee seeking the rating to offer a clear basis for the claimed functional impairment.
In the present case, Dr. Petrescue’s 30% impairment rating does not reference the workers’ compensation permanent partial disability schedules at all, and only generally the AMA guidelines. In his letter of November 29, 2007, Dr. Petrescue stated:
In terms of the impairment from his hernia [the employee’s] AMA ratings for 30% impairment as a result of the significant pain and discomfort associated with the hernia and subsequent revision. He had pain and swelling in the left inguinal area again which was not amenable to adequate treatment with conservative therapies consisting of pain medication and a number of other pain improving modalities tried by the pain clinic and a number of specialists. As a result [the employee] had to undergo a subsequent surgery for removal of the mass and removal of the testicle on that side. As a result of his discomfort and hernia the AMA ratings would give him a disability percentage of 30% impairment.
We agree with the compensation judge that Dr. Petrescue’s rating is unclear as to what is included. The judge awarded permanency separately for the employee’s hernia surgeries and for his loss of a testicle. Dr. Petrescue’s rating appears to include the employee’s entire hernia-related condition, not just a chronic pain syndrome. Dr. Petrescue does not reference the diagnosis “chronic pain syndrome” in his reports regarding permanency, and it is unclear whether the doctor relates the employee’s pain complaints to a general medical condition or to a separate psychiatric condition. Here, no doctor has documented a functional loss of use or impairment of function that the employee might have sustained as a result of any “chronic pain syndrome,” which would be a psychological loss or impairment separate and distinct from the physical loss or impairment sustained as a result of the hernia itself. Because the employee did not prove entitlement to an additional rating for chronic pain syndrome, we affirm the judge’s decision on this issue.
3. Temporary Total Disability Benefits
The compensation judge denied the petitioner’s claim for temporary total disability between December 11, 2002, and May 28, 2005, except for the period following surgery from January 13, 2005, through May 2, 2005. In her findings, the judge found that the employee had failed to perform a diligent search for work and had failed to maintain contact with his QRC. The judge acknowledged Dr. Petrescue’s opinions that the employee was unable to perform “meaningful employment,” but she found those opinions unconvincing in light of his recommendations for long periods of prospective disability and his failure to assign specific functional abilities instead of merely stating generally that the employee was unable to perform meaningful employment. The judge noted also that, until he voluntarily quit his job, the employee had demonstrated an ability to perform some job duties. In light of the employee’s failure to search for work, the judge found that an award of temporary total disability benefits would be purely speculative.
On appeal, the petitioner argues that an injured worker is not required to seek and be denied employment as a prerequisite to a finding of total disability. Here, he contends, there is absolutely no evidence that the employee had any functional ability to perform any job duties, and therefore a job search would be futile. He notes that, on December 16, 2002, Dr. Petrescue filled out a report of workability wherein he indicated the employee would be unable to work for the whole of the coming year. In addition, he argues, Dr. Irwin essentially agreed with Dr. Petrescue when he stated: “[the employee] certainly seems to have been disabled between the date of injury and the present time.” Moreover, he contends, based on the treating physician’s opinion that the employee was medically unable to work, there was no reason for the QRC to formulate a rehabilitation plan that included job search. We agree in part.
“[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him 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). The concept of temporary total disability is primarily dependent upon an employee’s ability to find or hold a job, not the employee’s physical condition. Ahoe v. Quality Park Prods., 258 N.W.2d 885, 30 W.C.D. 69 (Minn. 1977). An employee is excused from the requirement to conduct a reasonably diligent job search only if the employee has established that such a search would be futile. Scott v. Southview Chevrolet, 267 N.W.2d 185 (Minn. 1978).
We believe that there is substantial evidence in the record supporting the judge’s denial of temporary total disability benefits during the period December 11, 2002, through January 2, 2005. As noted by the judge, the employee returned to work for the employer following his January 2000 hernia surgery. He worked for the employer until November 2001, when he voluntarily quit. He then worked for a turkey processing plant for one month before being laid off. At least through December 2001, the employee had demonstrated an ability to perform some job duties. According to his own deposition testimony, the employee made no effort to search for employment between December 2001 and April 2004. Nor is there any evidence that the employee searched for work between the date of his deposition and his death. The judge found Dr. Petrescue’s opinions unconvincing in light of his failure to assign actual functional abilities rather than simply stating that the employee was unable to perform meaningful employment, the doctor having offered no explanation of what he meant by “meaningful.” Even after he made contact with a rehabilitation consultant in July 2004, records indicate that the employee failed to maintain contact following the initial consultation. On this record, we affirm the judge’s denial of temporary total disability benefits through January 2, 2005.
On January 3, 2005, the employee was examined by Dr. Eric Irwin on behalf of the employer and Berkley. In her memorandum, the judge noted that Dr. Irwin’s statement that the employee’s pain “clearly has been incapacitating and at this time it would seem unlikely that he would be able to work consistently in gainful employment.” The judge evidently accepted Dr. Irwin’s opinion, and we therefore modify the judge’s award to reflect an award of total disability benefits beginning January 3, 2005.
The judge also denied temporary total disability benefits for the period May 3 through May 28, 2005. She found that Dr. Thompson had released the employee to return to sedentary employment on May 2, 2005, apparently inferring that the employee had the ability to work at some job after that date. We believe that the judge misconstrued Dr. Thompson’s report. On that date, Dr. Thompson was recommending that the employee undergo re-repair of his hernia later that year, after the tissue had had time to heal from his earlier surgery. The doctor stated that the employee remained “markedly uncomfortable” from his January 2005 surgery, that he “cannot tolerate a lot of activities,” and that “he has very limited functional abilities and certainly is not able to return to work at his present condition, other than some minimal activities.” We do not construe Dr. Thompson’s comment “other than some minimal activities” as representing a release to sedentary employment. We therefore reverse the judge’s denial of benefits following May 2, 2005, and we modify her award to reflect the employee’s temporary total disability from January 3, 2005, through May 28, 2005.
4. Permanent Total Disability Benefits
The compensation judge found that the employee failed to consistently pursue vocational rehabilitation and failed to perform a diligent job search for alternate employment. In her memorandum, she noted additionally that no vocational opinions were offered into evidence to support the employee’s claim for permanent total disability and that the permanent partial disability threshold required for a permanent total disability finding had not been met. She therefore denied the petitioner’s claim for permanent total disability benefits. The petitioner argues that the weight of the evidence supports his contention that the employee was medically disabled during the period alleged and that a job search would have been futile. Therefore, he contends, the judge’s finding denying total disability benefits should be reversed. We are not persuaded.
“Permanent total disability is primarily dependent on an employee’s vocational potential, rather than his physical condition.” Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1994); see also McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542 36 W.C.D. 133, 139 (Minn. 1983) (the concept of total disability depends on employee’s ability to find and hold a job, not on his or her physical condition). Here, the employee notably did not offer any vocational opinions in support of his claim for permanent total disability. Nor has the employee met the threshold permanent partial disability rating for a claim under Minnesota Statutes section 176.101, subdivision 5(2)(a). We therefore affirm the judge’s denial of permanent total disability benefits.
 The removal of tissue by destroying it with extreme cold. Dorland’s Illustrated Medical Dictionary 426 (29th ed. 2000).
 The use of electromagnetic waves in the radiofrequency range to coagulate tissue in stereotactic surgery and rhizotomy. Dorland’s 1829.
 The petitioner appealed also from the judge’s finding of 5% permanent partial disability for loss of a single testicle under Minnesota Rules 5223.0600, subpart 7.A.(2), but he failed to address the issue in his brief. “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.