JOANNE M. ERICKSON f/k/a JOANNE M. SIVERTSON, Employee-Appellant, v. UNIVERSITY OF MINN. HOSP., SELF-INSURED/SEDGWICK JAMES MANAGEMENT SERVS., Employer, and BLUE CROSS/BLUE SHIELD OF MINN., HARTFORD LIFE & ACCIDENT INS. CO., and MEDICA/HEALTHCARE RECOVERIES, INC., Intervenors, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 12, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s denial of the employee=s permanent total disability claim.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee=s psychological condition did not substantially contribute to the employee=s disability.

 

MAXIMUM MEDICAL IMPROVEMENT - MULTIPLE CONDITIONS; ECONOMIC RECOVERY COMPENSATION; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 3p.  Where a work-related condition is not a substantial contributing factor in the employee=s disability and need for restrictions, and produces no permanent partial disability, attainment of MMI from that condition has no relevance in determining whether an employee is entitled to economic recovery compensation or impairment compensation for another work-related condition.

 

Affirmed.

 

Determined by Wilson, J., Johnson, C.J., and Pederson, J.

Compensation Judge:  Bradley J. Behr.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s finding that she did not prove that she was permanently totally disabled and that benefits for permanent partial disability were payable as impairment compensation.  We affirm.

 

BACKGROUND

 

The employee sustained a work-related injury to her low back on October 20, 1989, while employed by the University of Minnesota Hospital [the employer], self-insured, as a nurse.  The injury caused a permanent aggravation to a preexisting degenerative back condition.  Fusion surgery was performed in December of 1991, with poor results. 

 

The employee eventually went through a pain clinic program, and Dr. Paul Biewen released her to return to work, with restrictions, beginning three days per week and increasing to five days per week, in a sedentary nursing position.  The employee returned to work for the employer in such a position, and, between October 29, 1993, and July 5, 1994, she worked 12 to 20 hours per week.  Dr. Biewen opined that after July 5, 1994, the employee was physically capable of  working only four hours per day, three days per week.  The employer paid temporary total disability benefits until October 29, 1993, and temporary partial disability benefits thereafter based on an imputed 20-hour work week.  The employer also paid impairment compensation [IC] for a 27.5 % permanent partial disability for spinal fusion at multiple levels.^[1]

 

The employee filed a claim petition on December 19, 1994, seeking permanent partial disability benefits payable as economic recovery compensation [ERC].  The matter proceeded to hearing, at which time issues included whether the employee had sustained a psychological disability, whether she had returned to suitable employment pursuant to Minn. Stat. '176.101, subd. 3(e) (1988), what restrictions the employee had due to her physical injury, what restrictions the employee had due to her psychological condition, and whether temporary partial disability benefits should be based on actual hours worked or an imputed 20-hour work week.  In a findings and order filed on April 1, 1996, Compensation Judge Nancy Olson found, in part, that the employee was able to work 12 hours per week from and after July 4, 1994, and that temporary partial disability benefits should be based on those imputed earnings; that the employee=s psychological condition was causally related to her work injury but did not disable her; that the employee had not yet reached maximum medical improvement [MMI] from the psychological condition; that the parties had stipulated that MMI was reached from the physical effects of the employee=s back injury by October 5, 1994; that the employee had returned to suitable gainful employment with the employer by that time; and that permanency was payable as IC. 

 

The employee appealed and the employer cross appealed from that decision to the Workers= Compensation Court of Appeals.  In a decision filed on January 10, 1997, this court affirmed the compensation judge, but noted that the employee might be entitled to ERC at a later date.

 

The employee continued to work part time for the employer until approximately February of 1997, when she was diagnosed with and began treatment for leukemia.  The employee=s leukemia was in remission by October 26, 1997.  A bone marrow transplant was recommended, but the employee decided against it.  In October of 1997, the employee moved from the Twin Cities to her husband=s family farm in Fisher, Minnesota.  The couple later moved to Shelly, Minnesota, a town with a population of 332 people.

 

The employee did not advise the employer that she was in remission from the leukemia or that she was moving from the Twin Cities.  She did not search for work after moving, except for completing one employment application on March 12, 2001.

 

Dr. Heather Obregon became the employee=s family practice doctor in January of 1998.  She has treated the employee for a variety of conditions including low back pain and has completed disability forms indicating that the employee is permanently totally disabled.  When  seen by Dr. Obregon on April 11, 2000, for reflux symptoms and tacycardia, the employee also brought forms in regarding her disability insurance.  On that date Dr. Obregon opined, A[h]er chronic back pain is felt to be a permanent disability, because of this and depression, it is felt that she is unable to work.@

 

Dr. Ryan Harringon conducted a neurologic consultation on November 30, 1999, at the request of the employee=s attorney.  In his report of that date, Dr. Ryan indicated, A[w]ith respect to whether or not she is totally or partially disabled, I believe it would be advisable to proceed with a current [FCE] which would help us in that regard.@  The conclusion of the FCE performed on December 14, 1999, was that the employee could perform sedentary work for four hours per day.  Dr. Harrington subsequently completed a Report on Continuation of Total and Permanent Disability, on January 3, 2000, in which he indicated, Asee [FCE]@ in response to the question of degree of disability.  On the same form, he responded to a question regarding A[f]indings on which you base your opinion of total and permanent disability@ with an answer of Aweak legs-spinal pain.  I don=t believe she could engage in any type of employment due to pain & depression.@

 

On June 22, 2000, the employee filed a claim petition, seeking permanent total disability benefits continuing from October 26, 1997.  When the matter proceeded to hearing, issues included, in part, entitlement to permanent total disability, whether the employee had made a reasonable and diligent search for work, whether the employee had retired and/or withdrawn from the labor market by moving away from the Twin Cities, and whether the employee was entitled to ERC for her permanent partial disability related to the spinal fusion.

 

In findings and order filed on October 19, 2001, Compensation Judge Bradley J. Behr found that the parties stipulated that the employee had reached MMI from her psychological condition on November 8, 2000; that the employee had failed to engage in a reasonable and diligent search for work; that the employee had received social security benefits and retirement benefits since 1997; that the employee had failed to prove that she was permanently totally disabled; that the employee had failed to prove that her psychological condition substantially contributed to her disability; and that benefits for permanent partial disability had properly been paid as IC.  The employee appeals.

 

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

 

1.  Permanent Total Disability

 

The employee contends that substantial evidence supports her claim that her work-related low back and psychological injuries were substantial contributing factors in her permanent total disability.  There is evidence to support the employee=s claim; however, under our standard of review, the issue is not whether evidence supports alternative findings but whether substantial evidence supports the findings made by the compensation judge. 

 

Substantial evidence does support the judge=s findings.  Specifically, the FCE ordered by Dr. Harrington indicates that the employee is capable of sedentary work for four hours per day.  In addition, Dr. Mark Friedland, who examined the employee on behalf of the employer on October 10, 2000, concluded that the employee had not been permanently totally disabled, from an orthopedic standpoint, from October 26, 1997 and continuing.^[2]   Dr. Friedland  relied, in part, on the 1999 FCE,^[3] and opined that the employee was capable of full-time sedentary work, with restrictions on standing or walking for prolonged periods of time, lifting more than ten pounds, and repetitive bending, twisting, and stooping.

 

The employer also had the employee examined by psychiatrist Dr. John Rauenhorst on June 16, 1995, and October 10, 2000.  Dr. Rauenhorst reported that the employee was not permanently totally disabled from a psychiatric standpoint.  With regard to vocational evidence, the employer submitted the report of Lynn Hjelmeland, QRC, who conducted a vocational assessment and labor market survey for the employer.  In her report of October 31, 2000, Ms. Hjelmeland opined that, from a vocational standpoint, the employee was not permanently totally disabled from employment.  While the employee raised objections to Ms. Hjelmeland=s opinions, arguing that Athe only jobs identified for the employee were in the nature of >paper nurse= jobs, for which [the employee] was clearly unqualified,@ we note that Ms. Hjelmeland identified a job with the Hospice of the Red River Valley, which even the employee=s employment expert thought Acould be a possibility.@

 

These opinions, when combined with the judge=s explanation for why he rejected the employee=s treating doctors opinions,^[4] provide substantial evidence to support the judge=s denial of the employee=s permanent total disability claim.

 

The employee also contends that she did not retire and that the social security and Minnesota State Retirement System [MSRS]  benefits that she received were disability benefits and not retirement benefits.  The compensation judge did not make specific findings regarding retirement/removal from the labor market; however, in his memorandum, he did state, Athe preponderance of the evidence indicates that [the employee] chose to retire and move to a very small town in northwestern Minnesota.@  The judge did make a finding that the employee has received social security benefits and retirement benefits from the MSRS since 1997.  We agree that the compensation judge erred, to the extent that he referred to those benefits as Aretirement benefits.@  Clearly, the employee was determined to be entitled to monthly Adisability benefits@ from social security beginning in June of 1995, and Aretirement disability@ benefits from MSRS as of January 1, 1997.  However, the judge=s error in this regard has no real significance given his determination that the employee was physically able to work four hours per day in sedentary work, but considered herself disabled; that she left suitable work with the employer because of her leukemia but did not notify her employer when she was in remission from her leukemia; and that she moved from the Twin Cities to a small town in northern Minnesota and did not look for work, leading to the conclusion that the employee is not permanently totally disabled.^[5]

 

Because substantial evidence in the record, including the employee=s own testimony regarding the circumstances of her move, support the judge=s decision, we affirm his denial of permanent total disability benefits.

 

2.  Permanent Partial Disability

 

In her 1996 decision, Judge Olson found that the employee had not yet reached MMI from the psychological condition that was caused by the work injury and that the psychological condition did not disable the employee from working at that time.  The compensation judge denied the employee=s claim for ERC, as the employee had reached MMI from her back condition and had returned to suitable gainful employment with the employer.^[6]  See Minn. Stat. ' 176.101, subds. 3e and 3p (1988) (repealed 1995).

 

The parties have now stipulated that the employee reached MMI from her psychological condition on November 8, 2000.  The employee was not working at that time and did not return to work within ninety days of that date.  The employee contends that permanency for the spinal fusion is therefore payable as ERC.  However, Judge Behr found that the employee=s psychological condition did not substantially contribute to her ongoing limitations or disability from and after January 30, 1996, the date of the hearing before Judge Olson, and determined that permanent partial disability for the employee=s back injury had been appropriately paid as IC.

 

The employee contends, initially, that substantial evidence does not support the judge=s finding that her psychological condition did not contribute to her ongoing disability.  We are not persuaded.  In his October 27, 2000, report, Dr. Rauenhorst opined that the employee was not disabled from work due to her psychological status.  He went on to state that the structure of work would likely be therapeutic for the employee.  In his deposition taken on August 21, 2001, Dr. Rauenhorst stated that the only restriction that he would place on the employee from a psychiatric standpoint was that she should not return to work for the employer, because she Aharbors a great deal of resentment toward [the employer].@

 

We concede that there is evidence that supports the employee=s claim.  The employee received psychotherapy from Jeanine Kotschwar, Ph.D., and  Harold Randall, Ph.D.  While Dr. Kotschwar declined to make a disability assessment, Dr. Randall diagnosed severe depression and, on April 3, 2000, opined that the employee was not Apsychologically capable of working.@  He went on to state that the employee did not have Athe emotional resources to focus on anything other than the appeal process.@ 

 

Judge Behr explained that he found that the employee had no disability due to her depression because Athere was a lack of persuasive evidence.@  Certainly, the judge could have accepted the opinion of Dr. Randall, but he apparently chose not to.^[7]  A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Dr. Rauenhorst=s opinions provide adequate support for the judge=s decision on this issue.

 

We must then determine whether the judge erred in denying the employee=s claim for ERC based on the fact that the psychological condition from which the employee reached MMI in November of 2000 did not substantially contribute to the employee=s ongoing disability.  We have been unable to find any cases directly addressing this issue.  However, we believe that the judge=s conclusion to this effect is suggested by this court=s rationale in the case of Heimermann v. Old Dutch Foods, 55 W.C.D. 603 (W.C.C.A. 1996).

 

In Heimermann, we held that, as a Ageneral rule,@

 

where an employee reaches MMI from one compensable condition during a period in which he has not yet reached MMI from another compensable condition that substantially contributes to his ongoing disability, any determination as to the form of benefits payable for the employee=s permanent impairment is premature until the end of the 90-day period following the employee=s attainment of MMI as to both conditions.  Cf. Hammer, 435 N.W.2d 525, 41 W.C.D. 634.

 

Id. at 611-12.  We based our decision on this point on our observation that Aan employer cannot reasonably be expected to offer the employee physically and economically appropriate employment before his overall condition has stabilized and his restrictions have been set,@ id. at 611, noting that Aan employee might be totally disabled from a medical standpoint as a result of one work-related condition during a period in which he reaches MMI from some other, more minor work injury, making a truly suitable job offer virtually impossible,@ id.  The same considerations are not present in a case in which the condition from which the employee has not reached MMI has no effect on the employee=s restrictions, ability to work, or overall permanent partial disability.  We therefore hold that, in a case such as this one, where a work-related condition is not a substantial contributing factor in the employee=s disability or need for work restrictions and results in no permanent partial disability, attainment of MMI from that condition has no relevance in determining whether permanent partial disability benefits for another work-related condition should be payable as IC or ERC. 

 

In the instant case, the employee had a work-related injury to her back that resulted in time off work, permanent partial disability, and work restrictions.  The employer provided the employee with suitable work before ninety days post MMI from that low back condition, and the employee continued in that employment through the ninetieth day.  The employee eventually left that employment for reasons unrelated to her low back injury or consequential psychological condition.  Under these circumstances, the fact that the employee did not reach MMI from the consequential psychological injury until years later does not renew an employer=s responsibility to again provide suitable work in order to avoid payment of ERC.  We therefore affirm the judge=s decision on this issue.