DONNA M. MILLER, Employee/Appellant, v. LAKESIDE NURSING HOME and EMPLOYERS INS. OF WAUSAU, Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 6, 2002

                       

HEADNOTES

 

SETTLEMENTS.  The compensation judge did not err in failing to enforce a purported agreement to pay permanent total disability benefits where there was no award issued prior to the employer and insurer=s refusal to pay and where the employer and insurer did not in any event breach the terms of the agreement.

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including rehabilitation records, supported the compensation judge=s conclusion that the employee was not permanently and totally disabled, especially since the record indicated that placement services had not been exhausted.

 

PENALTIES.  The compensation judge did not err in failing to award penalties based on the employer and insurer=s refusal to pay permanent total disability benefits where in the end such benefits were not awarded or due, and the compensation judge did not err in denying the employee=s claim for penalties based on the employer and insurer=s failure to pay additional permanent partial disability benefits where the opinion of their independent examiner raised questions as to causation.

 

Affirmed.

 

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

Compensation Judge: Danny P. Kelly

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of permanent total disability benefits and penalties.  We affirm.

 

BACKGROUND

 

On December 16, 1980, the employee sustained a work-related low back injury while employed as a nursing assistant by Lakeside Nursing Home [the employer].  She was 23 years old at the time, with a weekly wage of $166.00.  The employer and its insurer admitted liability and paid various benefits, and the employee continued to work for the employer on an intermittent basis over the next five years.^[1]  In November of 1985, the parties entered into a stipulation for settlement, closing out claims for permanent partial disability to the extent of 15% of the back, and closing out all other claims, except medical expense claims, for a five-year period.^[2]  An award on stipulation was issued on December 6, 1985.

 

The employee=s low back symptoms apparently worsened over time, and on July 26, 1996, she underwent a posterior fusion, L4 to sacrum, with discectomy at L4-5, performed by Dr. James Ogilvie.  The surgery helped relieve the employee=s leg pain.  About a year later, in August of 1997, Dr. Ogilvie released the employee to light or sedentary work, with a 20-pound lifting limit, restrictions against repetitive bending, lifting, and twisting, and a recommendation that the employee be allowed to change positions every 45 to 60 minutes.  At that time, the doctor also indicated that the employee now had a 22.5% Awhole body@ impairment.  The employee, who had evidently been a homemaker since 1985,^[3] began looking for work in the vicinity of her home in Rush City, Minnesota, but was not offered any employment.

 

In June of 1998, the employee filed a claim petition, alleging entitlement to temporary total disability benefits after October 10, 1990, and permanent partial disability and rehabilitation benefits Ato be determined.@  In March of 1999, several months after taking the employee=s deposition, the employer and insurer began providing the employee with rehabilitation assistance.

 

The employee worked with QRC Frank Mazza and a placement vendor.  Within a few months, in June of 1999, she began paid training as a counselor for an organization that assists the mentally ill with daily care, but that organization subsequently determined that the work would not be consistent with the employee=s restrictions, and the employee was essentially terminated after only a short period.  In July of 1999, Dr. Ogilvie indicated that the employee was limited to five pounds lifting and a 20 to 30 minute drive, one way.

 

In early October 1999, the employee obtained work with Lee=s Pro Shop, operating a sewing machine to apply embroidered patches to sports clothing.  This employer made several modifications to the job to accommodate the employee=s restrictions, and the QRC arranged for a therapist to develop exercises for her to perform on the job.  The employee testified, however, that her symptoms nevertheless worsened over time, compelling her to quit this job on about January 20, 2000.

 

The parties agreed to discontinue rehabilitation in February of 2000.  In his February 22, 2000, AFinal Report,@ QRC Mazza wrote in part as follows:

 

Ms. Miller attempted the position at Lee=s Pro Shop between October 6, 1999 and January 20, 2000 but, due to her reported pain level, terminated her employment.  Given the nature of this sedentary position at the employer, with no significant or frequent lifting or bending, along with her ability to alter her position as needed as well as to take periodic stretch breaks, it is my opinion that the likelihood of identifying another position, but less physically demanding is unlikely.  While the possibility exists for identifying a position suitable for Ms. Miller, it remains improbable due primarily to the labor market limitations imposed by the employee=s current driving restrictions.

 

Two months later, the employee served and filed an amended claim petition, seeking permanent total disability benefits from October 24, 1990, and benefits for a 31.69% permanent partial disability of the back.

 

In July of 2000, the employer and insurer had the employee examined by Dr. Thomas Raih, who indicated that the employee was capable of full-time work with a 20-pound lifting limit (from table top level), with frequent position changes and limited rotational activities.  He also indicated that the additional 7.5% permanency rated by Dr. Ogilvie^[4] Ahas been the result of a Gillette type phenomenon since 1985.@

 

In September of 2000, the employee served and filed a notice of intention to seek penalties from the employer and insurer Afor interposing a defense that does not present a real controversy but which is frivolous or for the purpose of delay.@  The notice did not explain the specific factual basis for the claim.  Also in the fall of 2000, the parties agreed, after negotiation, to a limited reinstatement of placement services, with the employer and insurer indicating that they would concede permanent total disability should the employee fail to find work within a specified 90-day period.  The last communication pertinent to this issue apparently occurred in a November 15, 2000, letter from the employer=s counsel, indicating that she was agreeable to a 90-day job search, beginning to run from the first day the employee met with QRC Mazza and Gary Novitsky, the new placement specialist.  Within a few weeks of resumed rehabilitation services, in early December of 2000, the employee secured employment taking telephone orders for a business called Dennis Kirk, which sells parts for recreational vehicles.

 

At Dennis Kirk, the employee was allowed to sit or stand at will and to take reasonable breaks, but she decided to quit the job after several weeks, allegedly due to an increase in her symptoms.  Her QRC asked her to try the job again, so, after about a week off, she returned to work, part-time, but she quit again, effective February 14, 2001, indicating that her symptoms had simply become too severe.  Because of her termination, plans to modify the level of her work surface were not implemented.

 

The employee underwent a Functional Capacities Evaluation [FCE] in mid-March of 2001.  The report issued following the three-day evaluation noted that, while the employee put forth a reasonable effort, she Acould have performed on a higher level on many tasks,@ as evidenced by positive Waddell=s sign, by the fact that the employee=s report of intense pain Adid not correlate with the quality of motion and behavior demonstrated,@ by the fact that she self-limited her lifting Aprior to the onset of objective signs of difficulty,@ by the fact that she self-limited activity that required repeated motion or lifting, and by the fact that she demonstrated improved sitting tolerance when engaged in activity.  The evaluator concluded that the employee was able to perform sedentary to light work, with negligible lifting, as long as she had the opportunity to sit or stand as needed, but the evaluator again noted that the employee=s limitations were based on her willingness to function as opposed to her maximum objective physical capabilities.  Specific restrictions included no squatting, crawling, crouching, or kneeling and a 20-pound maximum lifting limit.  Dr. Ogilvie reviewed the report and wrote that he had Ano reason to contest the conclusions.@  Following Dr. Ogilvie=s review of the FCE, the QRC reported that he had Aattempted to resume vocational services but [that] the employee indicated her intention of not participating with additional services as she felt incapable of returning to work.@

 

Hearing on the employee=s claim petition was held before a compensation judge on June 14, 2001.  As of the hearing date, the employer and insurer had agreed to pay the employee additional benefits for permanent partial disability resulting from her 1996 fusion surgery.  Issues included whether the employee was permanently and totally disabled and whether penalties were payable for Aunreasonable refusal to pay.@  Testimony was given by the employee, QRC Mazza, and a representative of the employee=s last employer, Dennis Kirk.  In a decision issued on August 7, 2001, the compensation judge denied the employee=s claims for permanent total disability benefits and penalties.  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

 

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., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  In the present case, the employee contends that the compensation judge erred in failing to enforce the parties= purported agreement as to permanent total disability and also that the judge=s denial of permanent total disability benefits is unsupported by substantial evidence in the record as a whole.  We are not persuaded.

 

The employee=s argument with respect to the alleged agreement as to permanent total disability is based on the series of letters between the parties in November of 2000.  The employee contends that, because the employer and insurer agreed to pay permanent total disability benefits if the employee were unable to find work after an additional 90 days of job search, the compensation judge should have enforced the agreement and found the employee permanently and totally disabled.  We note initially that it is not clear from the record that the employee was actually asking the compensation judge to hold the employer and insurer to their agreement.  Moreover, even if the letters, taken together, could be viewed as a settlement agreement, there was never any award on settlement, and an award may not be issued where one of the parties withdraws consent to the agreement prior to issuance of an award.  Alvord v. Hoffman Eng=g Co., 55 W.C.D. 47 (W.C.C.A. 1996).  Finally, we see no breach of the agreement in any event.  In a November 7, 2000, letter, the employer and insurer agreed to pay permanent total disability benefits if the employee found no job by March 1, 2001, after a diligent search.  The employee did find work, at Dennis Kirk, beginning in early December 2000, shortly after resumption of placement assistance.  While the employee left the job in mid-February of 2001, there was no agreement by the employer and insurer to pay if a job did not work out, and certainly, from the employer and insurer=s perspective, the fact that the employee found work so quickly after reinstatement of rehabilitation undercuts her claim of total disability.  For all these reasons, we find no error in the judge=s failure to award permanent total disability benefits based on the parties= purported agreement.

 

We also find no error in the judge=s denial of benefits on a factual basis.  We concede that the employee has fairly significant restrictions, and that her driving restrictions, especially, will hamper her ability to find work given her residence in Rush City.  QRC Mazza=s February 2000 report -- indicating that appropriate placement was Aimprobable@ due to the employee=s driving restrictions -- would also support the employee=s claim, especially in view of the QRC=s testimony that nothing has really changed since he issued that report.  However, there is also evidence that supports the judge=s decision.

 

We note initially that the employee is only 43 years old and that she found work relatively quickly whenever she had placement assistance.  It may be true that she left her jobs at Lee=s Pro Shop and Dennis Kirk after only a few months, but the compensation judge was not required to accept her testimony that she was forced to leave those jobs due to increased symptoms; in fact, the judge expressly found that the employee left both jobs Avoluntarily,@ and the March 2001 FCE report is full of references to pain behavior and the employee=s self-limitation of activity.  In his June 2001 report, QRC Mazza indicated that, because the employee had obtained the job at Dennis Kirk so quickly, the placement vendor had Anot fully exhaust[ed] his job search resources.@  The employee, however, refused to resume job placement activities.  Although QRC Mazza could not state with any certainty that the employee would obtain work with additional job search, he appeared to be cautiously optimistic in that regard.  All of this evidence reasonably supports the compensation judge=s denial of the employee=s permanent total disability claim, and we affirm.

 

2.  Penalties

 

At hearing, the employee claimed an additional award as a penalty, pursuant to Minn. Stat. ' 176.225, based on the employer and insurer=s Aunreasonable refusal to pay.@  The compensation judge expressly addressed only one penalty claim, finding that the employer and insurer had not unreasonably delayed payment of permanent partial disability benefits, even though they did not agree to pay the additional benefits attributable to the employee=s 1996 surgery until the date of hearing.  We affirm.  In his report, Dr. Raih attributed the additional permanent impairment, related to the employee=s surgery, to Aa Gillette-type phenomenon@^[5] occurring after 1985.  On these facts, the compensation judge could conclude that the employer and insurer=s failure to pay earlier was not unreasonable.

 

The employee also contends that the compensation judge erred in failing to award penalties based on the employer=s refusal to pay permanent total disability benefits after QRC Mazza initially closed his file in February of 2000, and based on the employer and insurer=s failure to pay permanent total disability benefits under the Aagreement@ embodied in their November 2000 letter.  The compensation judge did not address these issues.  However, as we indicated earlier, we find no breach of the purported agreement.  Further, we see no grounds for penalties based on failure to pay permanent total disability benefits where, as here, no such benefits were in the end due or awarded.  See, e.g., Perseke v. Kleepsie Tank & Petroleum, slip op. (W.C.C.A. May 10, 2001).

 

Finally, the employee claims on appeal that the compensation judge erred in failing to award penalties based on the employer and insurer=s refusal to provide rehabilitation assistance until after they took the employee=s deposition in November of 1998.  However, the hearing record does not clearly indicate that the employee was claiming penalties specifically based on any delay in the provision of rehabilitation services; rather, the penalty claim appeared to be based on the employer and insurer=s refusal to pay permanent partial and permanent total disability benefits.^[6]  Because we do not believe that the claim was clearly raised, we cannot conclude that the judge erred by failing to award penalties on this basis.  See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988) (due process requires notice and reasonable opportunity to be heard before benefit decisions may be made).