DIANE L. WIMMER, Employee, v. SAM’S CLUB and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGM'T, INC., Employer-Insurer/Appellants, and SUMMIT ORTHOPEDICS, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 18, 2012
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records and expert medical and vocational opinion, supports the compensation judge's finding of permanent total disability.
Determined by: Stofferahn, J., Johnson, J., and Wilson, J.
Compensation Judge: Paul V. Rieke
Attorneys: David W. Blaeser, Woodbury, MN, for the Respondent. Brock P. Alton and Andrew A. Willaert, Gislason & Hunter, Mankato, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee is permanently and totally disabled. We affirm.
Diane Wimmer began working for Sam’s Club as a cashier in 2003. On October 11, 2006, Ms. Wimmer sustained a cervical work injury when lifting a case of bottled water. Conservative care, including therapy, medication and therapeutic injections, was unsuccessful and an MRI scan demonstrated a disc herniation at C6-7. In June 2007, Dr. Paul Hartleben performed surgery, a C6-7 anterior cervical discectomy and fusion using anterior cervical plating.
After the 2007 surgery, Ms. Wimmer returned to work at Sam’s Club as a greeter and by September 2007, she was working six hours a day. Her job consisted of checking customer membership cards and providing the customers with shopping carts. Ms. Wimmer saw Dr. Hartleben in March 2008 and he released her to work full time as of April 1, 2008. On April 2, Ms. Wimmer went to the emergency room at St. Joseph’s Hospital with complaints of increased neck pain after working full time.
A functional capacities evaluation (FCE) was recommended and was done at Saunders Therapy Center from May 13 to 15, 2008. Ms. Wimmer reported at that time that she was working as a greeter but was barely able to make it through her shift. She was no longer able to pull carts and offer them to customers entering the store. As part of the evaluation, Ms. Wimmer provided a demonstration of her tasks as a greeter. It was noted that in order to check membership cards, the employee was often forced to pivot her body or turn her head from side to side. She was seen to show increasing discomfort over the duration of the role-playing shift, and reported shooting pains in her upper trapezius region after about three hours of work. During her lunch break, Ms. Wimmer’s pain led her to lie down to rest instead of eating. By the end of the session she had palpable spasm in her left upper trapezius and left shoulder and had difficulty raising her arm. On another day of the evaluation, Ms. Wimmer was tested performing computer and desk work. She was able to tolerate sedentary work in which she could avoid using her left hand and intermittently rest her left arm on a work surface.
The functional capacities evaluation resulted in a recommendation that Ms. Wimmer be limited to standing and walking no more than four hours during her work day. She was also to avoid using ladders, should bend and stoop only occasionally, and avoid using the left hand for firm grasping. Use of the left arm for reaching, lifting or overhead movements was limited to seldom, with slow movement. She was not to bend her head or neck fully, or perform frequent rotation of the neck. Occasional lifting was limited to five pounds with an ability to lift 15 pounds “seldom.” It was recommended that Ms. Wimmer should not work in the greeter position for more than four hours per day.
Ms. Wimmer continued to have persistent left-sided neck pain and left arm pain. A CT scan was performed on September 9, 2008, and was read as showing an incomplete union of the fusion at C6-7 with permanent osteophytes extending into both foramina at that level. There was a broad-based annular tear and herniation at C5-6 which slightly indented the spinal cord. Discography performed on September 9, 2008, showed 10/10 concordant pain at the C5-6 and C4-5 levels.
On October 23, 2008, Ms. Wimmer had additional surgery performed by Dr. Daryll Dykes from Twin Cities Spine Center. The surgery consisted of plate removal and revision at C6-7; an anterior cervical discectomy and fusion at C5-6 and C6-7; anterior spinal cord and bilateral foraminal decompression at both levels; partial corpectomy at C6 and C7; and placement of posterior instrumentation at C5-6 and C6-7.
In evidence at the hearing were reports beginning October 23, 2008, from the QRC, Michael Anderson, who apparently began working with Ms. Wimmer earlier that year. From at least October 22, 2008, Mr. Anderson met with Ms. Wimmer and her doctors and communicated with the employer on a monthly basis on the possibilities of returning Ms. Wimmer to employment at Sam’s Club.
A CT scan in February 2009 showed a solid interbody fusion at C5-6 and C6-7. However, Dr. Dykes noted that Ms. Wimmer continued to have pain as well as crepitus in her left shoulder. She was kept off work and treated with physical therapy, reporting constant pain in her back and shoulder and numbness in her left hand and arm. Twelve treatments of physical therapy failed to provide improvement in her symptoms.
In April 2009, Dr. Dykes noted that the fusion was solid and there was no pattern of radicular pain, but concluded that Ms. Wimmer’s left shoulder complaints should be further explored before any return to work. The employee’s shoulder was evaluated by Dr. Michael Freehill, Sports and Orthopaedic Specialists, who diagnosed left shoulder scapulothoracic dyskinesis and parascapular muscle spasm with impingement syndrome. He did not consider Ms. Wimmer to be a surgical candidate and referred her back to Dr. Dykes.
On August 10, 2009, Dr. Dykes concluded that Ms. Wimmer was now healed from a surgical perspective. Dr. Dykes specified that restrictions for her cervical spine condition included a work limit of four hours per day; limiting bending, lifting, twisting and overhead reaching; changing positions as needed; and lifting, carrying, pushing and pulling should be limited to 10 to 15 pounds occasionally. Dr. Dykes also stated that she could return to work but “I do not think this is likely given her significant pain focus and unwillingness to do so in light of her other pain complaints.” He recommended that Ms. Wimmer see Dr. Mark G. Agre, a physical medicine specialist, for further diagnosis and pain management. Ms. Wimmer returned to work on August 13, 2009, in the greeter position with Sam’s Club four hours a day.
Dr. Agre evaluated the employee on September 24, 2009. Ms. Wimmer reported having difficulty sleeping, and was observed to have a flat affect. Dr. Agre allowed the employee to continue working at Sam’s Club on a four-hour a day basis. Dr. Agre also recommended physical therapy. On October 26, 2009, Dr. Agre told the QRC that Ms. Wimmer’s psychological status might be delaying her healing process. Noting that the employee was having substantial difficulty adjusting to her chronic pain, dysfunction and impairments, Dr. Agre recommended a referral to a psychologist for pain management. This referral was denied by the employer and insurer. She was provided with pool therapy at Dr. Agre’s clinic from September 25 through December 28, 2009, but failed to improve.
In January 2010, Dr. Agre referred Ms. Wimmer for a structured chronic pain program with Dr. Matthew Monsein at Phoenix Center Pain Programs. Ms. Wimmer was evaluated by Dr. Monsein on April 26, 2010, and he took her off work at that time pending her completion of a three-week residential pain program. She completed the pain program in June 2010 and was released to return to work by Dr. Monsein on June 14 after a new functional capacities evaluation was done on June 10, 2010. Dr. Monsein set restrictions of lifting and carrying no more than 10 pounds occasionally as well as frequent change in positions. She was allowed to work four hours per day for the first two weeks, and then to increase her work time by one hour each two weeks until she reached eight hours per day.
Ms. Wimmer was again returned to work as a greeter, this time on the night shift. On June 15, she attempted the job but was sent home early because paperwork required by the employer which would allow her sit on a stool was not completed. As a result, Ms. Wimmer was not able to alternate positions between sitting and standing. Instead, Ms. Wimmer was told to call her supervisor so that a replacement could be sent to the door and she would then be allowed to sit in the dining area maintained for customers. Ms. Wimmer was left standing at the door for up to an hour at a time. Ms. Wimmer did not return to work after June 16, calling in sick until she was able to meet with Dr. Agre.
Ms. Wimmer and QRC Anderson met with Dr. Agre on July 15, 2010. Dr. Agre noted that Ms. Wimmer had failed in her attempt to return to work and that she had intractable chronic pain and a marked degree of situational depression. He concluded the return to work had resulted in a “fairly untenable situation” and he took Ms. Wimmer off work until she was able to see Dr. John P. Cronin, a psychologist at Primary Behavioral Health Clinics, for evaluation and treatment.
Ms. Wimmer was seen at Primary Behavioral Health Clinic on September 20, 2010, and had psychological testing. Dr. Cronin met with Ms. Wimmer and QRC Anderson on October 4 and advised them that Ms. Wimmer had been diagnosed with severe depression and chronic pain syndrome. He recommended that he would continue to see her for counseling and she should see Dr. John Currin, a psychiatrist, for medication to treat these conditions. Dr. Cronin also took Ms. Wimmer off all work.
Dr. Agre also referred Ms. Wimmer to Dr. Lon Lutz at Interventional Pain Medicine and Dr. Lutz saw her on November 10, 2010, for “persistent left sided neck, shoulder, and right upper extremity pain secondary to a work-related injury sustained in October of 2006.” Dr. Lutz injected the left shoulder, providing “partial relief in the intensity and severity of her symptoms.” On January 26, 2011, a cervical MRI scan was performed at the request of Dr. Lutz which was read as showing spondylosis at C4-5 and C3-4 with disc protrusion at C3-4. There was no evidence of stenosis.
The employer and insurer denied liability for the psychological treatment of Ms. Wimmer and also denied care from Dr. Lutz. In his January 10, 2011, report, the QRC noted this dispute and also stated “Upon review of records of Dr. Cronin, Dr. Lutz, Dr. Curran (sic) and Dr. Agre, it does not appear that the client will be released to any type of work activity in the foreseeable future. At this point it appears appropriate to at least consider the fact that the client may not be returning to any type of competitive suitable gainful employment. There are numerous factors to consider. The client continues to complain of significant pain symptoms on a daily basis which at times become exacerbated to the point that she is essentially bed ridden. The client also experiences extreme difficulty sleeping at night and is only sleeping approximately 3-4 hours per night. In addition, the client continues to complain of significant depression and anxiety issues in which she continues to treat.”
The dispute over responsibility for treatment of Ms. Wimmer’s depression and chronic pain syndrome was heard by Compensation Judge Paul Rieke on April 7, 2011. In Findings and Order issued April 12, 2011, Compensation Judge Rieke determined the work injury was a substantial contributing cause of these conditions and ordered payment of outstanding charges at Dr. Cronin’s clinic. There was no appeal from this decision.
Ms. Wimmer filed a claim petition in March 2011, seeking permanent total disability benefits as the result of the October 2006 work injury.
Ms. Wimmer was evaluated on behalf of the employer and insurer by Dr. Paul A. Cederberg on June 1, 2011. Dr. Cederberg concluded that the employee had reached maximum medical improvement with respect to her physical condition, and required permanent restrictions related to the work injury, consisting of a five pound lifting restriction on either arm above shoulder level and a ten pound lifting restriction for either arm in any position. In response to a question as to whether any restrictions from the work injury “would preclude this associate from obtaining suitable, gainful employment,” he stated that “Ms. Wimmer’s permanent physical restrictions would make it difficult for her to obtain suitable and gainful employment.” He also had no treatment recommendations. He rated permanent partial disability totaling 13 percent for the left shoulder problems and 15 percent for the cervical spine.
Over several days in June and July 2011, Ms. Wimmer was seen by Jan Lowe on behalf of the employer and insurer for a vocational evaluation. Ms. Lowe noted in her testimony at the hearing that Ms. Wimmer was not able to tolerate testing for more than two hours at a time. In her initial report of July 28, 2011, she based her opinions on the FCE done at Saunders in May 2008 and Dr. Cederberg’s restrictions. Ms. Lowe concluded Ms. Wimmer was not permanently totally disabled. She noted that Ms. Wimmer “was capable of work at the 10 pound level.” Given those restrictions, Ms. Lowe stated that Ms. Wimmer was able to work in a variety of “sedentary office positions” although it was “recommended Ms. Wimmer complete an office practices training program.” In a subsequent report dated September 26, 2011, Ms. Lowe stated she had reviewed the possibility of Ms. Wimmer working at Sam’s Club as a greeter with the personnel manager at the Woodbury Sam’s Club. Ms. Lowe was told Sam’s Club could accommodate Ms. Wimmer’s restrictions and Ms. Lowe concluded that this would be appropriate employment.
On August 2, 2011, Dr. Agre issued a Report of Workability in which he stated that Ms. Wimmer was able to return to work based on the restrictions set out in the 2008 FCE but he added to those restrictions limitations that she should not perform cervical flexion, rotation or extension more than rarely, and that she could perform keyboarding only on a sporadic basis, no more than 30 minutes at a time and no more than two hours in an eight hour day. In his chart note for that date, he stated “I feel she is not able to return to work until she is cleared by Dr. Cronin for modified work as determined previously.”
On August 9, 2011, Dr. Cronin wrote that the employee should be considered permanently disabled. He stated that he was “hopeful” that her conditions might lessen in the future, but noted that “to date nothing has been particularly successful and she continues to suffer both physically, as well as emotionally.” He considered the prognosis for her eventually returning to gainful employment as “guarded at best.”
The employee’s claim petition was heard by Compensation Judge Rieke on October 10, 2011. In his Findings and Order of October 18, 2011, the compensation judge determined the employee was permanently totally disabled and awarded permanent total disability benefits as of June 29, 2010. The employer and insurer have appealed.
In his decision, the compensation judge concluded, “The physically disabling effects of the employee’s injury have been significant. The employee has undergone two surgeries. The employee’s work related injury has evolved into chronic pain and severe disabling depression. Although the employee might find work, the Court accepts Qualified Rehabilitation Consultant Anderson’s assessment that such employment would be of short duration. The ongoing significant chronic pain experienced by the employee is exacerbated by normal physical movements and such condition in combination with the employee’s age, education, work experience and transferable skills results in the Court’s determination of permanent total disability.”
On appeal, the employer and insurer argue that “no evidence in the record supports a conclusion that the employee is not gainfully employable.” Specifically, they contend that the employee has not been permanently precluded from all employment by her treating doctors and also contend that QRC Anderson’s testimony was contradictory, not credible and should not have been relied on by the compensation judge. We are not convinced.
An employee 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 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). Total disability is permanent if it is likely to exist “for an indefinite period.” Cavanaugh v. Frederick Willys, Inc., 361 N.W.2d 49, 50, 37 W.C.D. 383, 384 (Minn. 1985).
The compensation judge adopted the opinion of QRC Anderson. Mr. Anderson stated “Based upon the physical restrictions, more importantly based on her inability to perform work on an ongoing basis, I don’t see her returning to suitable gainful employment. I would also add it’s not only from a physical standpoint but also a psychological standpoint. Could Ms. Wimmer get a job? I do think she probably could get a job. The point is I don’t think she could hold a job.” On the question of Ms. Wimmer being able to do the greeter job at Sam’s Club, Mr. Anderson pointed out that, although the greeter job would seem to be within her physical restrictions, “she literally could not complete the job duties as required.”
The employer and insurer argue that these opinions do not take into account the possibility, as expressed by her doctors, that Ms. Wimmer’s depression and chronic pain syndrome could improve. The compensation judge specifically found, however, that Ms. Wimmer’s physical and psychological conditions resulting from the work injury have stabilized and she is at maximum medical improvement. As the employee points out in her brief, the mere possibility of some undetermined amount of improvement at some indefinite time in the future does not preclude an award of permanent total disability. Whitebean v. YMCA of Greater St. Paul, 68 W.C.D. 131 (W.C.C.A. 2008).
Determination of permanent total disability is ultimately a question of fact for the compensation judge. Atkinson v. Goodhue County Co-op Elec. Ass’n, 55 W.C.D. 150 (W.C.C.A. 1996). We find in the record substantial evidence to support the compensation judge’s decision. Hengemuhle v. Long Prairie Jaycees, 358 N.W. 2d 54, 37 W.C.D. 235 (Minn. 1984).
The compensation judge’s decision is affirmed.