DAVID P. SCHULER, Employee, v. CEMSTONE PRODS. CO. and ZURICH N. AM./RISK ENTER. MGMT., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 30, 2011
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinion of the employee’s QRC, supported the compensation judge’s decision that the employee was permanently and totally disabled as a substantial result of his work injury.
CREDITS & OFFSETS. Nothing in the statute or case law supported the employer and insurer’s claim that the employee’s permanent total disability benefits should be reduced by benefits the employee received under a private long-term disability insurance plan.
Determined by: Wilson, J., Stofferahn, J., and Milun, C.J.
Compensation Judge: Jennifer Patterson
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent. Leslie M. Altman, Littler Mendelson, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s award of permanent partial and permanent total disability benefits and from the judge’s refusal to offset the employer and insurer’s obligation for permanent total disability benefits by sums the employee received under a long-term disability plan. We affirm.
The employee was born on September 23, 1944. After graduating from high school, he worked in manufacturing for several years before obtaining employment as a cement truck driver. He first worked in that capacity for Schmidt Ready-Mix and then went on to work for Cemstone Products Company, the employer herein. All told, he was employed as a cement truck driver for more than 30 years.
On June 2, 2006, the employee sustained a work-related injury to his low back while employed by the employer, and he subsequently received conservative care from several providers, including Dr. Paul Biewen. Dr. Biewen recommended that the employee observe lifting limits and other restrictions and, on about November 1, 2007, Dr. Biewen indicated that the employee should not drive a cement truck.
The employee subsequently looked for other work with the assistance of QRC Lynn Hjelmeland and placement specialist Gary Novitsky. Eventually, the employee took computer classes to help him complete online job applications and qualify for additional kinds of employment, but he found the work difficult, and training staff recommended that he not attempt more advanced classes. Vocational testing disclosed that the employee has very poor math and reading skills and other intellectual challenges.
Rehabilitation assistance, including job placement, was suspended in early February 2008 when a compensation judge allowed the employer and insurer to discontinue benefits on grounds that the employee’s low back condition was not causally related to his work injury. On August 12, 2008, the insurer asked the QRC to reopen her file and reinstitute services. Subsequent rehabilitation records indicate that the employee was at times resistant to pursuing some job leads provided by the placement specialist.
By late 2008, the QRC began expressing doubt that the employee would be able to find any employment, and, in June of 2009, she closed her file. Among other reasons cited for discontinuing rehabilitation, the QRC noted that the employee was taking Vicodin for his back condition and was therefore precluded from driving jobs. By this time, the employee had been found eligible for Social Security disability benefits retroactive to November 1, 2007, and he was also receiving benefits under a long-term disability plan.
When the matter came on for hearing on November 2, 2010, the primary issue was whether the employee was entitled to permanent total disability benefits effective November 1, 2007. Related issues included whether the employee’s condition met the applicable permanent partial disability threshold for permanent total disability, whether the employee had cooperated with rehabilitation assistance and made a diligent job search, and whether the employee had voluntarily retired when he reached age 65. The employer and insurer also claimed a credit, against their liability for permanent total disability benefits, for long-term disability benefits paid to the employee by Sun Life Assurance Company of Canada. The parties stipulated that the employee had last worked on November 1, 2007, that he had become eligible for Social Security disability benefits on that date, that he had been paid temporary total disability benefits through April 6, 2008, and that the issue of his potential need for low back surgery would be reserved for later proceedings. Evidence included certain of the employee’s medical records, the employee’s rehabilitation records, the reports of the employer and insurer’s independent medical examiners, the deposition testimony of one of those examiners, Dr. Richard Hadley, and the testimony of the employee, the employee’s wife, and QRC Hjelmeland.
In a decision issued on December 20, 2010, the compensation judge resolved all issues in the employee’s favor and awarded the employee permanent partial and permanent total disability benefits as claimed, with no offset for the long-term disability benefits the employee had received. 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 (2010). 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).
1. Permanent Partial Disability - Low Back
The compensation judge concluded that the employee’s work-related low back condition warranted a 10% permanent partial disability rating pursuant to Minn. R. 5223.0390, subp. 3.C.(2), as rated by Dr. Biewen. On appeal, the employer and insurer contend that the employee is not entitled to a 10% rating because medical records fail to support the conclusion that the employee has “[s]ymptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion.” Id. (emphasis added). According to the employer and insurer, loss of range of motion is not noted consistently enough in the employee’s records to qualify as “persistent” under the rule. We find no merit in this argument.
It is true that Dr. Hadley found no loss of range of motion on his exam. However, Dr. Biewen and other medical providers noted restricted range of motion repeatedly in the years since the employee’s injury. Clearly, the judge was entitled to conclude that the symptoms “persisted” within the meaning of the rule, and we affirm that award.
2. Permanent Total Disability
The compensation judge concluded that the employee had been permanently and totally disabled since November 1, 2007, and she awarded benefits accordingly. On appeal, the employer and insurer argue that the judge erred in concluding that the employee met the permanent partial disability threshold required for a finding of permanent total disability. The employer and insurer also contend that substantial evidence does not support the judge’s award and that the record establishes that the employee intended to retire when he turned 65, meaning that permanent total disability benefits should cease on that date. We are not persuaded by any of these arguments.
The employee was 61 years old on the date of his work injury. As such, he is not eligible for permanent total disability benefits, pursuant to Minn. Stat. § 176.101, subd. 5(2)(c), unless he has, at minimum, a 13% whole body impairment. Id. The permanent partial disability need not be work-related, as long as the employee’s work-related injury is a substantial contributing cause of the employee’s permanent total disability. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997).
We have affirmed the compensation judge’s decision that the employee has a 10% whole body impairment attributable to his work-related low back condition. The remaining issue in this regard is whether the record supports the conclusion that the employee has at least 3% additional permanent partial disability. The only evidence on this issue is two notice of benefits payment forms, completed and filed by the insurer, indicating that the employee was paid benefits for a 6% impairment for a rotator cuff tear and for a 6% impairment for a knee condition.
The employer and insurer contend that these documents are insufficient to support the conclusion that the employee actually has the requisite additional permanent partial disability, but we disagree. The forms in question specify the rating category applicable to the employee’s condition and the name of the physician whose reports supported the rating. The employer and its insurer paid the employee benefits for these conditions. This evidence is adequate to support the conclusion that the employee has the requisite additional permanent partial disability.
The employer and insurer also argue that substantial evidence does not support the compensation judge’s finding of permanent total disability because the employee and the rehabilitation providers unreasonably ruled out driving jobs, and because the employee failed to cooperate with rehabilitation and to make a reasonably diligent search for other work when he left the employer. We are not persuaded by these arguments, either.
Dr. Biewen prescribed Vicodin for the employee to deal with pain related to his work-related low back injury. The employee, who was a commercial driver for more than 30 years, testified that he could not lawfully work as a commercial driver while using that narcotic, and Dr. Hadley, the employer and insurer’s own independent examiner, testified that it would in fact be illegal for the employee to drive commercially, or even at all, while taking that drug for pain. Further, QRC Hjelmeland testified that Dr. Biewen had told the employee, in the QRC’s presence, not to drive commercially while taking Vicodin. All of the employer and insurer’s arguments to the contrary notwithstanding, the compensation judge was entitled to conclude that the employee was restricted from driving jobs due to his use of a narcotic pain reliever.
As for the employer and insurer’s argument as to job search and cooperation with rehabilitation assistance, we acknowledge that the employee did not always fulfill his obligations to the letter. He did not always complete job logs or follow up on job leads provided by the placement specialist, and he perhaps unreasonably ruled out security work based on assumptions about the amount of walking required. At the same time, however, the record reasonably supports the compensation judge’s decision that the employee was permanently and totally disabled, as claimed.
The employee was 63 years old when Dr. Biewen removed him from his job as a cement truck driver. He had worked in that capacity for more than 30 years. While he completed high school, he had no additional education, except for the basic computer class he took in connection with his rehabilitation, and he had considerable difficulty even with that. He has other restrictions on lifting and needs to be able to change positions, he is using a narcotic that affects his ability to drive, and vocational testing indicates that he has significant intellectual challenges, meaning that he is not a candidate for retraining. In her last report before she closed her file, QRC Hjelmeland wrote as follows:
Mr. Schuler has significant work restrictions. Further, he takes Vicodin and is unable to drive, except for his own personal purposes. He has spent all of his life in construction. My opinion is that about the only job that he could get would be shuttling cars for Hertz Rent-A-Car or some such facility. I believe Mr. Novitsky gave him some job leads for greeter jobs at companies, such a Wal-Mart.
Unfortunately, the job market is competitive. Even these entry level minimum wage jobs have numerous applicants. I do not believe that Mr. Schuler is going to become employed. He is 64 years old. He is collecting Social Security and retirement benefits.
Whatever our concerns about the employee’s job search efforts, the record reasonably supports the conclusion that the employee’s physical disability “causes the employee to be unable to secure anything more than sporadic employment resulting in insubstantial income.” Minn. Stat. § 176.101, subd. 5; see also Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).
Finally, we reject the employer and insurer’s argument that the employee is not entitled to permanent total disability benefits after his 65th birthday based on his stated intention to retire at that age. We acknowledge that the employee testified at his deposition that he had intended to retire at age 65, and certain of the employee’s treatment records indicate that he considered himself “retired” after he was unable to continue working for the employer as a cement truck driver. However, the compensation judge explained her decision on this issue as follows:
At points in the past, the employee expressed the opinion that he would have liked to retire at age 65. He applied for and received monthly Social Security Disability benefits (See Exhibit A). As set out in the 2008 Findings and Order in this case, the employee has a strong work ethic and returned to a far-from-sedentary job after multiple surgeries to his heart, right knee, and right shoulder. The . . . employee’s testimony that he would have kept driving a concrete truck for Cemstone if he had not injured his low back on June 2, 2006, was accepted. By operation of law, on his 65th birthday, the employee’s Social Security Disability benefits became Social Security Retirement benefits. The employee has available to him a pension from the employer. Through the date of hearing, the employee had not applied to receive pension benefits from the employer. As supported by the employee’s life long strong work ethic, his testimony about wanting to continue working, and his lack of application for pension benefits available to him, the employee did not voluntarily retire at age 65 or on any other date through November 2, 2010.
The judge’s decision on this question was not unreasonable on this record. Substantial evidence supports the compensation judge’s award of permanent total disability benefits, and we affirm.
3. Offset for Long-term Disability Benefits.
The employee received long-term disability benefits from Sun Life Assurance Company for some of the period for which he was found entitled to permanent total disability benefits. Sun Life chose not to intervene in the workers’ compensation proceedings, indicating instead that it intended to seek reimbursement from the employee for benefits it had paid once the employee became permanently and totally disabled, as allowed by its contract of insurance.
The employer and insurer contend that their obligation for permanent total disability benefits should be reduced by the long-term disability benefits paid by Sun Life, “to prevent a double recovery.” This argument has no merit whatsoever. The right to an offset here is, by contract, Sun Life’s. Nothing in the statute allows an employer and insurer to reduce workers’ compensation benefit payments on grounds that the employee is receiving insurance benefits under a private long-term disability plan. Furthermore, the employee indicated that he intended to reimburse Sun Life, as the insurance contract requires. In any event, the employer and insurer’s claim for offset has no basis in the statute or case law, and the compensation judge properly rejected it.
The judge’s decision is affirmed in its entirety.
 Some of the background information here was taken from our previous decision in this matter, Schuler v. Cemstone Prods. Co., No. WC08-198 (W.C.C.A. Dec. 10, 2008).
 On July 10, 2008, a compensation judge issued a decision indicating that the employee’s disability was in fact related to the employee’s work injury. The judge also made findings on maximum medical improvement and the employee’s entitlement to wage loss benefits. The judge’s decision on these issues was affirmed, for the most part, on appeal to this court.
 The notice of benefit payment filed March 15, 2000, indicates that payment was being made for an impairment pursuant to Minn. R. 5223.0510, subp. 3.B.(4), based on the report of Dr. Gary Wyard. The notice filed August 7, 2006, cites Minn. R. 5223.0450, subp. 3.A.(2), and the report of Dr. Robert Heeter.
 The employer and insurer cite Lindberg v. Prairie Correctional Facility, No. WC08-110 (W.C.C.A. July 14, 2008), to support their argument that the notice of benefit payment forms in the present case are inadequate to support the required finding of permanent partial disability. However, Lindberg was an affirmance of a compensation judge’s decision on substantial evidence grounds and is not controlling here.
 We also find no merit in the employer and insurer’s suggestion that the QRC should have asked for Dr. Biewen to prescribe a different pain reliever. The employee had already tried other medications for pain, with no success. Furthermore, it is not the QRC’s function to suggest specific medical treatment.
 The statutory retirement presumption does not apply until the employee reaches age 67. Minn. Stat. § 176.101, subd. 4.
 Specifically, some of Dr. Biewen’s records.