DARLENE WALSH, Employee, v. K-MART CORP. and MINNESOTA SELF-INSURER’S SEC. FUND/BERKLEY RISK ADM’RS Employer-Insurer/Appellants, and MICHELSON REHAB. CONSULTANTS, INC., IMPACT PHYSICAL MED., NORAN NEUROLOGICAL CLINIC, NEUROLOGICAL ASSOCS. OF ST. PAUL, and MEDICA HEALTH PLANS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 19, 2012
CAUSATION - INTERVENING CAUSE. The compensation judge properly concluded that the aggravation of the employee’s low back condition, resulting from a coughing incident, was not an intervening, superseding cause of the employee’s subsequent disability. The fact that the cough was caused by pneumonia, as opposed to a less serious illness, is irrelevant to the analysis.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinion of the employee’s vocational expert, supported the compensation judge’s finding of permanent total disability.
Determined by: Wilson, J., Milun, C.J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Frederick E. Kaiser, Hanson, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent. Roderick C. Cosgriff and Britt M. Kringle, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge’s award of permanent total disability benefits, contending that the judge erred in rejecting the employer’s intervening cause defense and in finding the employee permanently totally disabled despite her failure to look for work. We affirm.
The employee was born in 1961. She completed high school but has no other formal education. In 1986, she began working for K-Mart [the employer], where she performed a number of jobs over the years, including cashier, layaway worker, stocker, desk service worker, pharmacy clerk, and certain supervisory positions. Her work schedule varied between full-time and part-time.
On September 15, 1990, the employee sustained a compensable injury to her low back while working in the employer’s layaway department. Two months later, in November of 1990, she underwent surgery in the nature of a laminectomy at L5-S1. The procedure relieved much of the employee’s low back and leg pain, but she continued to experience at least intermittent flare-ups, which she treated primarily with over-the-counter medication. The employee continued to work for the employer, sometimes part-time, sometimes full-time, with little or no need for time off due to her back symptoms, from April 1991 into March 2007.
On March 26, 2007, the employee experienced immediate right leg and low back pain when she sneezed at home. About six seeks later, she underwent a second low back surgery, a right L5 hemilaminectomy with decompression of the right L5 nerve root. The employee’s surgeon, Dr. Mary Dunn, noted that she had been unable to remove a calcific disc or spur and that the employee had foraminal stenosis at L5-S1. The 2007 surgery relieved much of the employee’s leg pain but left her with numbness, and she began using a cane to help her with balance. The employee also developed foot drop on the right and was eventually prescribed an orthotic.
The employee was released to work full-time with a 50-pound lifting limit following the 2007 surgery, but she continued to experience low back and leg symptoms. Because of her condition, she was assigned a very light-duty job.
In April 2009, the employee developed pneumonia, and she went off work due to this illness on April 30, 2009. Shortly thereafter, she experienced increased low back symptoms and shooting pain in her right leg during a severe coughing spell. On May 15, 2009, one of the employee’s treating physicians indicated that the employee was unable to work as a result of her low back condition. About a year and a half later, in January of 2011, another of the employee’s doctors, Dr. Ronald Tarrel, indicated that the employee could perform very light work, up to four hours a day, as long as she could change positions and take breaks as needed. He also indicated that the employee could do only very light and occasional lifting and carrying and that she should not do any bending at all.
The employee had rehabilitation assistance from QRC Michael Anderson, who performed primarily medical monitoring. No placement assistance was authorized, because the employer had taken the position that the employee’s condition was no longer causally related to the admitted 1990 work injury but was instead the result of a superseding, intervening cause - - namely, the employee’s pneumonia-related coughing spell. The employer has not offered the employee any work, and the employee has not looked for any work, since April 29, 2009.
When the matter came on for hearing before a compensation judge, issues included whether the employee was permanently and totally or temporarily and totally disabled as a result of her 1990 work injury, the extent of the employee’s permanent partial disability, whether the employee’s 2009 coughing incident constituted a superseding, intervening cause of the employee’s subsequent disability and need for treatment, whether the orthotic prescribed for the employee’s foot drop was compensable, and whether the employee’s QRC was entitled to payment. Evidence included extensive medical records; rehabilitation records; reports and deposition testimony from Dr. Mark Friedland, the employer’s independent medical examiner; and the opinions of two independent vocational experts, both of whom also testified at hearing.
In a decision issued on April 16, 2012, the compensation judge concluded in part that the employee had a 15% whole body impairment due to her 1990 work injury, that the May 2009 coughing event was not an intervening, superseding cause of the employee’s subsequent disability and need for treatment, and that the employee had been permanently and totally disabled due to her work injury beginning May 15, 2009. The employer 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 (2012). 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. Superseding, Intervening Cause
One of the primary issues at hearing was whether the employee’s disability beginning in May 2009 was attributable to a superseding, intervening cause. The employer contends that the employee’s pneumonia qualified as a “serious and abnormal illness” that severed the link between the 1990 injury and the employee’s disability. This argument has no merit.
As explained by the Minnesota Supreme Court,
Where a work-injury creates a permanently weakened physical condition which an employee’s subsequent normal physical activity may aggravate to the extent of requiring additional medical care, such additional care is compensable. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the employee’s customary activity in light of the employee’s condition, then such additional medical care for the aggravation is not compensable.
Nelson v. American Lutheran Church, 420 N.W.2d 588, 590, 40 W.C.D. 849, 851 (Minn. 1988). According to Larson’s treatise, “[t]he basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury.” 1A. Larson and L.K. Larson, Larson’s Workers’ Compensation Law §10.02 (2007). Larson describes a Utah case in which the employee’s work-related back condition was aggravated by a sneeze, explaining,
The presence of the sneezing incident should not obscure the true nature of the case, which is nothing more than that of a further medical complication flowing from a compensable injury. If the herniation had occurred while claimant was asleep in bed, is [sic] characterization as a mere sequel to the compensable injury would have seemed obvious. The case should be no different if the triggering episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury, associated with an exertion that in itself would not be unreasonable in the circumstances.
The employer acknowledges these principles and in fact concedes that the 2007 aggravation of the employee’s condition, precipitated by a sneeze, remained causally connected to the original 1990 work injury. However, relying on the opinion of Dr. Friedland, the employer contends that pneumonia is an “abnormal” illness. Therefore, the argument goes, the 2009 aggravation triggered by the coughing spell was not compensable because it was somehow not “attributable to the employee’s customary activities.” First of all, we find no principled basis to distinguish a cough from a sneeze, whatever the cause. We similarly see no basis to draw a line between coughs or sneezes triggered by allergies, colds, bronchitis, pneumonia, or inhalation of cold air. Clearly, in all of these cases, the “real operative factor” remains the original work injury, and to hold otherwise would require us to put coughing in the same category as an employee’s unreasonable or reckless behavior. See Larson, id. We decline to do so. The compensation judge correctly concluded that the coughing incident in 2009 did not constitute an intervening, superseding cause of the employee’s subsequent disability, and we affirm that decision.
2. Permanent Total Disability
“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 Const. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). The concept of total disability depends primarily on the employee’s ability to find and hold a job, as opposed to his or her physical condition. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 35 W.C.D. 133, 139 (Minn. 1983).
In the present case, three vocational experts offered opinions bearing on the employee’s permanent total disability claim. The employee’s QRC was skeptical that the employee would find work but nevertheless recommended a trial of placement assistance. Obie Kipper, the employee’s independent expert, concluded that the employee would not be able to find or hold employment given all the circumstances, including her physical condition. Jan Lowe, the employer’s independent expert, concluded that, with some basic computer training, the employee should be able to secure employment that equaled or exceeded her pre-injury wage. The compensation judge expressly rejected the opinions of the QRC and Ms. Lowe and accepted the opinion of Mr. Kipper.
On appeal, the employer contends that the compensation judge erred in relying on the opinion of Mr. Kipper and that, especially given the employee’s failure to look for any work, the judge’s finding of permanent total disability is unsupported by substantial evidence and clearly erroneous. This is a close case, but we are ultimately unpersuaded by these arguments.
Initially, we reject the employer’s assertion that Mr. Kipper lacked foundation to render an opinion. While not a QRC, Mr. Kipper has extensive experience in the area of vocational rehabilitation, and, contrary to the employer’s assertions, we find no significant deficiencies in either his knowledge of the case or his reasons for finding the employee permanently totally disabled.
We also find insufficient basis to overturn the judge’s decision on substantial evidence grounds. It is true that the employee was only 51 years old on the date of hearing, that she did not look for any work after being released to work by Dr. Tarrel in January of 2011, and that it would take only part-time employment to meet or exceed her date-of-injury wage of $131.43. Certainly these factors, standing alone, tend to support the conclusion that a finding of permanent total disability is at least premature. We are especially concerned by the lack of any job search in the face of her own QRC’s recommendation for a trial of placement assistance. However, a job search is not a prerequisite to a finding of total disability if the evidence reasonably establishes that a job search would be futile. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Given all the circumstances here, the compensation judge could reasonably conclude that the employee’s failure to look for work was not fatal to her claim.
The employee is a high school graduate but has no other formal education or training. She is, according to medical records, considered to be “super morbidly obese” at 5’2” tall and more than 320 pounds. She does not now nor has she ever driven a car. She needs a cane to ambulate and cannot walk far, her balance is precarious, and she has foot drop and needs an orthotic. Dr. Tarrel has recommended very severe restrictions, including no more than half-time work, only very light and occasional lifting and carrying and no bending at all, and he further indicated that the employee would have to be allowed to take breaks and change positions as needed. In his deposition, Dr. Tarrel acknowledged that the employee might possibly be able to work but testified that he himself considers the employee totally disabled. Similarly, the employee’s QRC may have recommended a trial of placement assistance, but it is evident he had no great expectation of success. The employer, for whom the employee worked for more than 20 years, will apparently not accommodate her restrictions. Even Ms. Lowe could only come up with a very few jobs that the employee might possibly obtain without training. Given this evidence, in conjunction with the opinion of Mr. Kipper, the compensation judge could reasonably conclude that the employee satisfied the Schulte standard for permanent total disability despite her failure to look for work.
3. Reviewability of Compensation Judge’s Decision
Finally, the employer contends that the compensation judge’s decision contains insufficient explanation to allow this court to conduct a meaningful review. The employer complains, for example, that the compensation judge did not explain why he found the opinion of Mr. Kipper more persuasive than the opinions of the other experts. The employer also contends that Mr. Kipper’s opinion should have been rejected as he did not conduct any labor market survey to support his conclusion that the employee would not be able to obtain work.
We decline to hold that a labor market survey is a prerequisite to a finding or opinion that an employee is permanently and totally disabled. We also conclude that the judge’s decision contains adequate indication as to how he evaluated the evidence and reached his conclusions. We require no further explanation. The judge’s decision is affirmed in its entirety.
 The employer argues, for example, that Mr. Kipper relied “heavily” on the Social Security Administration’s finding of total disability. We do not read his testimony that way. The remainder of the employer’s attacks on Mr. Kipper’s opinion have more to do with differing views of the evidence than any major defects in either Mr. Kipper’s knowledge or his experience. In essence, the employer’s ultimate claim is that Ms. Lowe’s opinions are better founded and more persuasive. That is not for us to decide.