JEANNINE M. DUNBAR, Employee/Appellant, v. METHODIST HOSP., SELF-INSURED/GALLAGHER BASSETT SERVS., Employer, and FAIRVIEW HEALTH SERVS., and BLUE CROSS/BLUE SHIELD OF MINN., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 29, 2002

 

No. 501-62-8965

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY; PRACTICE & PROCEDURE - REMAND.  Where the compensation judge may have applied a standard not required by law, and where the court could not follow the judge=s reasoning on the issue, remand was necessary for reconsideration of the employee=s permanent total disability claim.

 

Reversed and remanded.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  Kathleen Behounek.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of permanent total disability benefits.  We reverse and remand for reconsideration.

 

BACKGROUND

 

On September 24, 1998, the employee sustained injuries in the course and scope of her employment with Methodist Hospital when a brick fell through the ceiling of her workplace break room, striking her in the head.  The employee was 46 years old on the date of injury and was employed by the employer as a registered nurse, earning $813.07 a week.  Following this incident, the employee eventually developed and was treated for a variety of symptoms, including neck pain, low back pain, hearing loss, and dizziness.  She underwent surgery to investigate and/or treat her hearing loss in November of 1998, September of 1999, and February of 2000.  Cervical fusion surgery was performed in the spring of 1999, lumbar fusion surgery in the spring of 2000.  In May of 2000, the employee=s QRC closed the employee=s file, indicating that the employee=s medical condition precluded rehabilitation.  The employee has apparently not worked in any capacity since February of 2000.

 

The matter initially came on for hearing before a compensation judge on July 12, 2000.  At that time, the self-insured employer admitted liability for the employee=s hearing loss and agreed to pay associated wage loss and medical expense benefits.  Liability for the employee=s neck and low back condition was, however, disputed.  In a decision issued on September 18, 2000, the compensation judge concluded that the September 24, 1998, incident had aggravated the employee=s low back condition, but only temporarily, and that the employer was not responsible for the lumbar fusion surgery and the employee=s related lumbar disability.  The judge further concluded that, while the employee=s need for cervical treatment was causally related to the September 1998 incident, the cervical fusion procedure was not reasonably required to treat that condition.  However, finding also that the employee=s decision to undergo the cervical fusion was not unreasonable under the circumstances, the judge determined that the employee was entitled to wage loss benefits as well as benefits for a 15% whole body impairment related to her neck condition.  Neither party appealed from this decision.

 

In November of 2000, the employee underwent yet another surgery to treat her hearing loss, this time placement of a bone-anchored hearing aid.  The surgery apparently improved her hearing, but the employee continued to experience dizziness, which some physicians diagnosed as vertigo associated with her work-related ear condition.  Medical records contain references to falls that the employee attributed to her dizziness and balance problems.  Dr. Samuel Levine, one of the employee=s treating physicians, has expressed concern about the employee=s ability to drive given her vertigo.  The employee testified, however, that she is able to drive safely by carefully planning her medication usage.

 

This matter came on for hearing a second time on July 26, 2001, for resolution of the employee=s claim for various benefits, including treatment expenses relating to the bone-anchored hearing aid, permanent partial disability benefits related to the hearing loss and her alleged vertigo condition, and temporary total or permanent total disability benefits from and after April 12, 2000.  The employer denied that the employee=s alleged vertigo was causally related to her September 24, 1998, injury, denied that the bone-anchored hearing aid was reasonable and necessary treatment, and denied that the employee was totally disabled as a result of her work-related condition.  The evidence submitted in connection with these issues was extensive, including the employee=s voluminous treatment records; the deposition testimony and report of Dr. Phillip Rapport, the employer=s independent medical examiner; the deposition testimony and report of Jan Lowe, the employer=s independent vocational expert; and the deposition testimony and records of Dr. Levine.  The employee also submitted a report from Michael Richardson, a licensed psychologist specializing in vocational issues, and Mr. Richardson testified at hearing.

 

In a decision issued on September 28, 2001, the compensation judge resolved most issues in the employee=s favor, finding that the employee has vertigo as a result of her work-related injury, entitling her to medical expenses and benefits for a 10% whole body impairment related to that condition, that the bone-anchored hearing aid was reasonable and necessary to treat the employee=s work-related conductive hearing loss, and that the employee is entitled to a 2% whole body rating for her hearing loss.  The judge also determined that the employee had been temporarily totally disabled from and after April 12, 2000, due to her vertigo condition.  However, in her memorandum, the judge concluded that the employee was not permanently and totally disabled.  The employee appeals from the judge=s decision on that issue.^[1]

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.

 

DECISION

 

An injured employee is permanently and totally disabled Aif [the employee=s] physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] 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).^[2]  In the present case, the employee contended that she was permanently totally disabled primarily as a result of her work-related vertigo.  The compensation judge made no express findings on the issue of permanent total disability.  However, in her memorandum, she wrote as follows:

 

The employee has been totally disabled since April 4, 2000 as a result of the work related vertigo condition.  This conclusion is based upon the opinion of the employee=s treating doctor, Dr. Levine.  Dr. Levine attempted to increase the employee=s ability to work, which was unsuccessful because of the dizziness and unsteadiness she experienced from the vertigo condition.  He opined that she was totally disabled since April 4, 2000 as a result of her work related ear condition.

 

The employee made an alternative claim for permanent total disability benefits.  Dr. Levine issued a report in April of 2001 which indicated that he believed that the employee was permanently and totally disabled from gainful employment as a result of the ear and vertigo condition.  However, determination of permanent total disability is essentially a vocational determination.  In this case, there was no expert vocational opinion that the employee was permanently and totally disabled from employment as a result of her work injury pursuant to the statutory and case law requirements.  Therefore, benefits are being awarded as temporary total disability benefits rather than permanent total disability benefits.

 

(Emphasis added.)  On appeal, the employee contends that the compensation judge erred in denying her permanent total disability claim in that the judge accepted Dr. Levine=s opinion as to total disability but then ignored Aunanimous opinion@ from the vocational experts to the effect that, if Dr. Levine=s restrictions were to be accepted, the employee would be permanently and totally disabled from employment.  We conclude that the matter must be remanded for reconsideration.

 

We note initially that, while vocational opinion on the issue is often helpful, such opinion is not necessarily required to establish permanent total disability.  Boschee v. Edina Care Ctr., slip op. (W.C.C.A. July 9, 1997).  Moreover, in addition to the permanent total disability opinion of Dr. Levine, the employee offered the opinion of Mr. Richardson, a vocational psychologist, who testified that the employee was not Aconsistently, competitively employable@ due to her hearing loss and vertigo and that it was therefore appropriate for the employee=s QRC to discontinue rehabilitation services.  Furthermore, Jan Lowe, the employer=s own vocational expert testified that, accepting Dr. Levine=s restrictions, the employee would be Aunemployable,@ and the employer conceded that point to the judge in closing argument, contending only that the restrictions of Dr. Rapport, not Dr. Levine, should be adopted.  Yet, while apparently accepting Dr. Levine=s opinion on total disability, the judge rejected the employee=s permanent total disability claim, despite evidence that the employee=s condition is unlikely to change.

 

We do not follow the judge=s reasoning.  For this reason, and because the judge may have applied a standard for permanent total disability not required by statute and case law, we reverse and remand for reconsideration and further findings.  In so holding, we note that we do not intend to dictate any particular result on remand.