JACK R. OGREN, Employee/Appellant, v. MID AMERICA PIPE CLEANING, INC., and SOUTH DAKOTA INS. GUAR. FUND, Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

AUGUST 29, 2000

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.   Substantial evidence, including medical records, expert medical and vocational opinion and lay testimony supported the compensation judge=s finding that the employee was not permanently and totally disabled during the period claimed.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Wheeler, C.J.

Compensation Judge:  Carol A. Eckersen

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The pro se employee appeals from the compensation judge=s determination denying his claim for permanent total disability compensation.  We affirm.

 

BACKGROUND

 

The employee, Jack R. Ogren, was born in 1942 and is 58 years old.  He grew up in Sioux Falls, South Dakota, but moved to Minnesota during high school and graduated from Marshall High School in Minneapolis.  Following high school, the employee served in the U.S. Marine Corps for three years from 1960 to 1963.  Upon discharge from the Marine Corps, the employee returned to Sioux Falls where he went to college for about two and a half years, majoring in accounting.  He did not complete his degree.  While he was attending college he worked for his stepfather performing accounting work.  After he quit college, the employee held a variety of jobs, including performing work as an electrical lineman, working on water towers, and as a traveling sales representative for the A & M Addressograph and Multigraph Corporation.  After this latter company went out of business, the employee relocated to Tyndall, South Dakota, where he purchased and operated a bar and steakhouse until 1981.  The employee then held sales jobs, first selling computers and then farm feed and seed.  (Exh. 9 at 6-22.)

 

In 1984 the employee began working for the employer, Mid America Pipe Cleaning, Inc., painting and repairing towers.  On August 6, 1984 the employee sustained an admitted work-related injury when he fell 40 feet to a cement floor inside a water tower in Isle, Minnesota.  The employee=s weekly wage as of that date was stipulated to be $491.75.  Following the injury the employee was taken to the local hospital emergency room and then transferred to the Hennepin County Medical Center, where he was admitted to the surgical intensive care unit.  He was diagnosed with right anterior temporal and left frontal intracerebral hematomas, right rib fractures, adult respiratory distress syndrome and pneumonia.  He remained hospitalized for about two months, then was transferred to the Metropolitan Medical Center where he was given physiotherapy and progressed from a wheelchair first to a walker and then to being able to walk independently.  The employee was discharged to his home in Tyndal, South Dakota, in December 1984.  (Finding 3; Judgment Roll: First Report of Injury, May 1994 Stipulation for Settlement; Exhs. 5, 7.)

 

During the next several years the employee was treated variously with cognitive therapy, occupational therapy and physical therapy, including extended treatment by the Capron Institute for Rehabilitation in Colorado Springs, Colorado, near the home of his mother and stepfather.  During a four-year period of residence in Colorado, the employee received on-the-job training in accounting and tax preparation from his stepfather, with his room and board funded by the insurer.  The employee lived independently in an efficiency apartment during the stay in Colorado.  (Exhs. 5, 7; Exh. 9 at 33-36.)

 

It is stipulated that the employee reached maximum medical improvement by October 12, 1992, when a report evidencing maximum medical improvement was served on him.  Since 1994 the employee has been seen for treatment only by his family physician, Dr. H. A. Saloum and has required no specific therapy for the residuals of his closed head injury.   The employee testified that his residual symptoms include significant hearing loss in both ears, loss of the senses of taste and smell, right-sided strength loss causing him to limp with the right leg and to have diminished grasping power in the right hand, and diminished bowel and bladder control. The employee=s long-time friends and relatives maintain that there has been a marked change in the employee=s personality following his head injury, such that he has become irritable, frustrated, and seems to have short-term memory problems.  Some have noted mild slurring of speech.  These complaints and observations are largely consistent with the findings of independent medical examiners who examined the employee in 1994 and 1998.  (Judgment Roll: May 1994 Stipulation for Settlement; Exhs. 4 -7; Exhs. C-M .)

 

In 1989 the employee moved back to Tyndall, South Dakota, from Colorado.  In about 1991 or 1992 the employee worked briefly as a substitute rural mail carrier at about $14.00 per hour, but was fired during his probationary period, ostensibly for making too many errors and taking too long to make his deliveries.  Upon returning to Tyndall he also started his own accounting and tax preparation business, JR=s Management Services, preparing accounts, payroll and withholding for local small businesses and preparing yearly tax returns for individual and farm clients.  He continued to operate this business through the date of hearing in February 2000.  The employee testified that he has averaged six or seven business clients, charging from $75 up to $300-400 per month to such clients for his services depending on their volume of checks and the size of their payroll.  At first the employee was preparing about fifty tax returns a year, but the business has grown, so that in 1998 and 1999 he prepared about 85 tax returns during the tax filing season each year, charging $30 for an individual return, $45 for a married couple, $55 for a business and $65 for a farm tax return.  During the tax season, the employee worked in this business up to seven days per week, from two to ten hours per day.  (Exh. 9 at 43-49, T. 63-68, 76.)

 

In addition to the accounting business, the employee has for several years been performing Agrove cleaning,@ consisting of initial clearing out overgrown groves of trees with a skid loader and then cultivating around newly planted trees in the grove two to three times a year to keep the grove weed free.  The employee testified that his charge for this work by the date of hearing was $28.00 per hour.  (T 77-78.)

 

In April 1992 the employee began receiving vocational rehabilitation assistance from Tom Karrow, a rehabilitation consultant with Midwest Rehabilitation Consultants, Inc. of Sioux Falls, South Dakota.  Mr. Karrow provided job leads from at least December 1992 through March 25, 1994, and recommended that the employee register with the South Dakota Job Service in Yankton, South Dakota, located about 30 miles from his home in Tyndall.  Throughout this period Mr. Karrow unsuccessfully attempted to verify with potential employers that the employee had applied for any of the jobs for which leads were provided.  There is no indication in the rehabilitation records that the employee ever did register with the Job Service.  (Exh. 8.)

 

The employer and insurer paid temporary total disability compensation from August 6, 1984 through January 6, 1993, in the total amount of $176, 275.27, at which time temporary total benefits were discontinued due to the attainment of maximum medical improvement.  In 1993 a dispute arose between the parties concerning whether there had been an over or under payment in temporary total disability payments.  This question was resolved by a letter agreement between the parties in March 1993, under which the employee received an additional lump sum in the amount of $5,360.85.  This stipulated settlement was approved by a compensation judge and an award on stipulation was served and filed on April 15, 1993.  In May 1994 the parties entered into a further stipulation for settlement closing out weekly indemnity payments to date and closing out permanent partial disability claims in return for a lump sum payment of $110,000.00.  An award on stipulation approving this further stipulation for settlement was served and filed on May 12, 1994.  (Judgment Roll.)

 

The employee was seen for neurologic and psychiatric examination by Dr. Andrew J. Leemhuis on March 2, 1994.  Dr. Leemhuis found that the employee did have diminished hearing and sense of smell, but no vision loss.  He had diminished grip strength in the right and muscle atrophy in the right biceps, forearm and calf.  He walked with a mild spastic gait involving the right leg.  The employee=s speech was voluble and circumstantial and he was often vague and unable to remember.  There was no evidence of depression, psychomotor retardation or stimulation and the employee was oriented to time, place and person.  Psychological testing indicated pervasive personality difficulties in interpersonal relationships.  An MRI scan showed mild cortical and cerebellar atrophy and focal areas of signal abnormality in the left frontal and both temporal lobes consistent with the effects of a coup/contracoup head injury.  The employee was also seen at the same clinic by Michael J. Fuhrman, a psychologist.  Based on testing administered to the employee, Mr. Fuhrman opined that the employee=s cognitive functions and abilities were Agrossly intact in all areas and are exceptionally intact in some areas.@  He believed the employee to be capable of Aimmediate resumption of competitive employment . . . within the primary constraint of right hemiparesis and the secondary constraint of personality disturbance.@  (Exhs. 3, 5.)

 

The employee was also seen by Dr. Neil R. Dahlquist for neurologic consultation on March 3, 1994.   Dr. Dahlquist noted evidence of pyramidal tract dysfunction with spasticity of the right leg and mild weakness of the right arm and leg.  He considered the employee able to work with no restrictions other than that he avoid heights, and further opined that the employee had been capable of returning to substantial gainful work activity two years after the 1984 work injury.  (Exh. 7.)

 

The employee filed a claim petition on August 28, 1998 alleging entitlement to permanent total disability compensation from and after May 13, 1994, and the employer and insurer answered on September 8, 1998 denying that the employee was permanently totally disabled.

 

In the employee=s deposition, taken on October 27, 1998, the employee testified that during the preceding four years he had unsuccessfully applied for only a couple of jobs, including a dispatcher position for his local county and a job as a school bus driver.  He testified that while the nearest city, Yankton, was only thirty miles away, he had neither looked for work there or even looked at employment want ads from the Yankton newspaper.  (Exh. 9 at 59-61.)

 

The employee was seen by Dr. Leemhuis for a repeat neurologic and psychiatric examination on December 17, 1998, at the request of the employer and insurer.  He found the employee=s condition to be largely unchanged since his 1994 examination except that he no longer seemed to show any speech disturbance.  Dr. Leemhuis opined that the employee was capable of work activity and was not permanently or totally disabled.  He suggested that the employee should not climb ladders because of his diminished right hand grip strength, and that, due to the employee=s diminished sense of smell, he should not be around gasoline or volatile substances.  Other than this, he did not think that the employee required any work restrictions.  (Exh. 4.)

 

The employee was also reexamined by Dr. Dahlquist on December 18, 1998.  He also found the employee basically unchanged from his previous examination in 1994 and again opined that the employee was capable of working and not permanently and totally disabled.  Other than restricting the employee from heights, the doctor offered no work restrictions.  (Exh. 6.)

 

L. David Russell, a certified rehabilitation consultant, saw the employee for a vocational assessment on December 18, 1998.  Mr. Russell noted that the employee=s vocational assets included a high school education followed by two years of college and additional training in sales, average academic abilities with no identified deficits, and transferable skills in business management, bookkeeping, office machine and computer use, sales, use of hand and power tools, and equipment operation.  Deficits included age, restrictions on working at heights, altered gait, possible mild speech slur, caution on working with dangerous machinery and a lengthy withdrawal from conventional employment.  He further noted that the county in which the employee resided had a stable job market and an unemployment rate of only 1.7 percent, as well as proximity to the cities of Yankton, Mitchell and Alexandria.  Overall, he considered the employee to be employable in a variety of clerical and sales positions, and highly marketable as an accounting or bookkeeping clerk with an hourly earning range of from $7.01 to $9.88 per hour, specifically averaging $8.65 per hour in the southeast South Dakota labor market.  (Exh. 1.)

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on May 21, 1999.  Following the hearing, the compensation judge concluded that the employee was not permanently and totally disabled.  The employee appeals.

 

DECISION

 

The employee appeals from the judge=s determination that his physical and cognitive restrictions resulting from the 1984 injury have not caused him to be unable to maintain substantial gainful employment since June 27, 1995.

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm.  This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court; thus it is irrelevant whether different conclusions than those found by the compensation judge could also be reached on the evidence.   Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably  supported by the evidence as a whole."  Id.

 

Therefore, the central issue on appeal is not whether the compensation judge=s decision was simply wrong but whether substantial evidence supports the compensation judge=s determination that the employee is not permanently and totally disabled. A[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). "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), summarily aff'd (Minn. Jan. 19, 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 evidence demonstrates that the employee sustained a serious work injury and is left with significant residual medical and psychological problems, which entitled him to rated disability compensation known as Apermanent partial disability compensation.@  This benefit was the subject of a prior settlement and is not before the court.  The issue which is before this court is one of entitlement to Apermanent total disability compensation,@ which is a type of wage loss benefit.  The medical question in this context is not whether the employee sustained a serious injury, but whether given his serious injuries he is physically capable of more than insubstantial employment.

 

The expert medical evidence concerning the employee=s physical and psychological ability to work was relatively consistent and essentially uncontroverted.  Dr. Dahlquist, Dr. Leemhuis, and psychologist Michael J. Furhman all offered the opinion that the employee was capable of employment, with relatively minor restrictions including avoiding heights and ladders.  The employee offered a letter from his family physician, Dr. Saloum, which opines that the employee=s coordination limits him from performing work requiring fine dexterity or operating dangerous machinery.  (Exh. A.) Dr. Saloum further stated that the employee=s memory processing speed could affect his employment prospects.  While Dr. Saloum did assert that another physician, Dr. Steven F. Noran, had Astated that Jack is permanently disabled from the point of view that he is not able to hold down a regular job,@ no reports or records from Dr. Noran were placed in evidence.  The compensation judge was thus unable to verify or evaluate what Dr. Noran may specifically have stated, and in what context.  This statement does not constitute medical evidence of an absolute inability to work.  We note also that Dr. Saloum did not give an opinion in his letter that the employee is medically unable to work.  Nor does the employee himself contend that he is not able to perform any form of work.

 

The issue then becomes one of whether there was adequate evidence in the record to support the compensation judge=s conclusion that work is available to the employee in his labor market which could provide the employee more than insubstantial income.  A vocational expert, L. David Russell, offered the opinion that the employee was capable of a range of clerical and sales work which was available in his local labor market and which commonly paid about $7.00 to almost $10.00 per hour.  The employee did not really dispute that he could perform such work or that work in this pay range was available.  At the hearing, the employee testified that he had not sought and did not wish to apply for work for jobs paying less than about $12.00 to $14.00 per hour, because if he returned to work he would lose his social security and private disability insurance payments, amounting to $960.25 and $250.00 per month, respectively.  He testified that he had applied for several jobs paying wages in this higher range, but was not hired.  Accordingly, the employee argued, he was not capable of working for other than an insubstantial income.  Under Minnesota law, however, the question as to whether the pay an employee could receive is Ainsubstantial@ is not determined by whether the work would pay an amount equivalent to benefits the employee may receive from non-workers= compensation public and private sources. 

 

The employee=s ability to perform work providing more than an insubstantial income was also demonstrated by the employee=s self-employment activities.  The employee=s ability to perform accounting and bookkeeping activities in his self-employment, sometimes working for  more than eight hours per day during peak periods, demonstrated that he was not medically or psychologically unable to perform similar work which the evidence indicated would also be available to him as an employee rather than in self-employment.  The employee maintained, however, that his self-employment did not evidence an ability to earn more than an insubstantial income, pointing out that this work had provided him no taxable income.  (T. 29-30, 35-36, 50-51, 55.)

 

There was substantial evidence to support the compensation judge=s conclusion that the employee Ais limiting his earnings@ in these businesses.  Such evidence included the employee=s own testimony concerning his charges compared with other rates in his community for the same services, as well as the report of Howard Kaminsky, CPA, who reviewed the employee=s tax returns and concluded that the employee=s business deductions appeared to be unreasonably high.  While there was a factual controversy over the validity of the employee=s business deductions and over the customary charges for similar services in his business market, there was enough evidence to support the compensation judge=s factual conclusion.

 

The employee argues on appeal that, in any event, no jobs in accounting are currently available and that even if $7.00 to $10.00 jobs were available he would have great difficulty in obtaining such work as a result of the effects of the work injury.  Generally, where an employee is medically able to work, relevant evidence that work is unavailable to him in his disabled condition is a showing that the employee has performed a reasonably diligent job search to no avail.  Redgate v. Sroga's  Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. l988).

 

Here, however, the employee, by his own admission, has performed only very limited and sporadic job search efforts since May 13, 1994, the period for which benefits are claimed.  Even the employee=s most recent job search efforts could not be verified (see Exhibit 2).  In the absence of evidence of a reasonably diligent job search, the compensation judge was entitled to give relatively little weight to the employee=s speculative contention that he would not have been able to find work, even if he had engaged in a diligent search.

 

The compensation judge concluded that the employee has effectively removed himself from the labor market.  "Whether an employee has removed himself from the labor market is a question of fact, the resolution of which may not be disturbed on appeal unless manifestly contrary to the evidence."  Schroeder v. Highway Services, 403 N.W.2d 237, 238, 39 W.C.D. 723, 725 (Minn. 1987).  Taking into account the evidence of the limited scope and extent of the employee=s job search, and the employee=s own admitted refusal to seek or accept jobs paying in the $7.00 to $10.00 per hour range, we conclude that substantial evidence supports the finding of a withdrawal from the labor market.  The finding of a withdrawal from the labor market is also supported by the fact that although the employee=s tax returns have consistently claimed ongoing yearly losses in his self-employment, he has refused to seek, and claims he cannot afford to accept, the same kind of work as an employee at $7.00 to $10.00 per hour with no expense-driven losses.

 

Pursuant to our standard of review, the compensation judge=s findings must be affirmed, as they are supported by substantial evidence and are not clearly erroneous.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).