RONALD J. WEISHAAR, Employee/Appellant, v. RADISSON HOTEL SOUTH, SELF-INSURED, admin=d by CRAWFORD & CO., Employer-Insurer, and METHODIST HOSP., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 24, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - INSUBSTANTIAL INCOME.  As a general rule, a compensation judge should not compare an employee=s post-injury earning capacity with the employee=s pre-injury earnings in determining whether the employee is capable of employment resulting in more than an insubstantial income.  Substantial evidence supports the compensation judge=s determination that a potential weekly earn­ing capacity of $360.00 - based on the testimony of the employer=s vocational expert - is not insubstantial and the judge=s denial of permanent total disability benefits.

 

Affirmed.

 

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

Compensation Judge: James R. Otto.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that he is not permanently  and totally disabled.  We affirm.

 

BACKGROUND

 

Ronald J. Weishaar, the employee, began working for the Radisson Hotel South, the employer, in February 1998 as a shift engineer.  On May 3, 1999, the employee sustained a personal injury to his low back for which the employer and its insurer admitted liability.  The employee earned a weekly wage of $823.60.^[1]  Initially, the employee received medical treatment from the Park Nicollet Medical Center.  Ultimately, he was referred to Dr. Andrew Smith, a neurosurgeon.  Dr. Smith diagnosed a herniated disk at L4-5 on the right and a herniated disk at L5-S1 on the left.  On September 24, 1999, Dr. Smith performed a hemilaminectomy, facetectomy and discectomy at L4-5 on the right and a hemilaminectomy and discectomy at L5-S1 on the left.  In an unappealed finding, the compensation judge found the employee had a 23 percent whole body disability as a result of his personal injury.  The judge further found the employee reached maximum medical improvement on October 10, 2000.

 

The employee was born on August 28, 1946, and was 56 years of age on the date of the hearing.  The employee has a high school diploma and attended two years at a vo-tech college taking courses in mechanics.  The employee did not, however, obtain a degree.  The employee has a chief engineer=s license which allows him to operate boilers, a license in refrigeration systems and a swimming pool operators= license.  Initially, the employee worked for Brown & Williamson as a sales representative for tobacco.  The employee then worked for Suzuki Motor Corporation as a district sales manager.  In the 1970s, the employee changed careers and began working as an engineer repairing electrical and water equipment.  The employee then worked as an engineer until his injury on May 3, 1999.

 

Following his injury, in May 2000, the employee underwent a functional capacity evaluation (FCE) which outlined permanent restrictions of no lifting over 15 pounds from the floor to waist level, frequent changes of position and eight hours of work per day in a sedentary job. The employee=s physicians agreed with the restrictions contained in the FCE.  In August 2000, Alissa O=Hara, a qualified rehabilitation consultant (QRC), began working with the employee.  By September 2000, Ms. O=Hara concluded the employee was unable to return to his pre-injury job, and determined that no other economically suitable positions were available with the employer.  The focus of rehabilitation was then directed to a job search in the areas of sales, district sales, sales manager, stationary engineer and power plant chief engineer.  The employee began his job search in November 2000.  The employee testified his search was directed towards obtaining a job paying $15.00 an hour or $600.00 a week.  The employee stated he did not look for jobs in the $10.00 an hour range and tried to stay away from jobs like that.  During his approximately nine months of active job search, the employee stated he received no job offers.  In April 2001, the employee ended his formal job search.  Thereafter, he testified he talked to a few people here and there when he went shopping but again found no job openings.

 

Ms. O=Hara testified the employee sent resumes to prospective employers, developed job leads on his own and followed-up on job leads.  The employee had eight or nine interviews during this period but received no job offers.  The QRC stated the job development process yielded few suitable job leads.  By April 2001, Ms. O=Hara testified the employee had come to the end of the job search process because he had exhausted the job target areas.  Ms. O=Hara then advised a representative of the insurer that in her opinion, the employee would unlikely be able to return to suitable employment.  On August 11, 2001, she closed her rehabilitation file.   

 

Ms. Jan Lowe, a rehabilitation consultant, conducted a vocational evaluation of the employee on January 7, 2002, prepared a written report of the results of her evaluation and testified at the hearing.  As part of her evaluation, Ms. Lowe obtained an education and employment history from the employee, reviewed his medical records, including the functional capacity evaluation, and administered vocational testing.  Ms. Lowe concluded the vocational testing demonstrated the employee was in the average range of vocational development with his highest score in the area of manual dexterity.  Ms. Lowe stated she agreed with the restrictions set forth in the FCE.  Ms. Lowe opined, considering his vocational qualifications and physical restrictions, the employee was able to perform full-time employment in the competitive labor market.  She identified jobs such as rental clerk, order taker, customer service representative, security guard, cashier and driver as entry level jobs which the employee could obtain.  These jobs, Ms. Lowe testified, paid between $9.00 to $11.00 an hour as a starting wage, and she testified these jobs were then available in the Twin Cities labor market.  Ms. Lowe reviewed the employee=s job search records and concluded he was primarily interested in obtaining management or supervisory type positions.  She opined the employee would be more successful seeking entry level positions and then obtaining promotions to the supervisory positions.

 

Ms. O=Hara testified the employee fully cooperated with rehabilitation efforts and performed a reasonable and diligent job search.  She concluded, however, the employee=s restrictions and his lack of qualifications were the main barriers to obtaining employment.  Ms. O=Hara opined the employee was permanently and totally disabled.  She further opined a job paying $7.00 to $10.00 and hour would be considered insubstantial income given the employee=s pre-injury wage.  In any event, however, Ms. O=Hara opined the employee would be unable to find a job paying $8.00 to $10.00 an hour.  

 

The employee=s claim petition seeking permanent total disability benefits was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed February 28, 2002, the compensation judge found the employee had the physical and vocational capacity to obtain jobs paying between $360 and $400 a week.  Accordingly, the compensation judge concluded the employee failed to prove he was unable to secure any employment other than sporadic employment resulting in insubstantial income and denied the employee=s claims.  The employee appeals. 

 

DECISION

 

The employee first contends the compensation judge=s denial of his claim for permanent total disability benefits is unsupported by substantial evidence.  The employee argues he cooperated with rehabilitation assistance, and performed a reasonable and diligent job search but did not receive a single offer of employment.  Ms. O=Hara opined that based on the employee=s age, his physical restrictions, his limited transferrable skills, educational level, chronic pain and the current labor market, the employee was permanently and totally disabled.  Based upon this evidence, the employee contends the compensation judge erred in denying his claim for permanent total disability benefits.  We disagree.

 

There is no dispute the employee is able to work on a full-time basis subject to the restrictions contained in the functional capacity evaluation.  Admittedly, those restrictions coupled with the employee=s training and experience have a significant impact on the employee=s ability to find a job.  The employee cooperated with his rehabilitation program but, despite a job search, was unable to secure employment.  His QRC, Ms. O=Hara, opined the employee was permanently and totally disabled.  This evidence supports the employee=s position that he is permanently and totally disabled.  Under this court=s standard of review, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the compensation judge=s findings.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  The judge accepted the testimony of Ms. Lowe that the employee would be able to find an entry level job and was not, therefore, permanently and totally disabled.  It is the responsibility of the compensation judge, as the trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985). 

 

The employee further argues the compensation judge denied the claim based on an erroneous legal standard.  The employee argues the judge must compare his post-injury earning capacity to his pre-injury wage to determine whether he is capable of earning only an insubstantial income.  Even if he could obtain a full-time, $9.00 per hour job, the employee contends his income would be insubstantial.  Accordingly, the employee asks this court to reverse the compensation judge=s denial of benefits. 

 

Minn. Stat. ' 176.101, subd. 5 (2) (1995), defines permanent total disability as any Ainjury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@  The statute further provides that Atotally and permanently incapacitated@ means the employee=s physical disability in combination with the requisite level of permanent partial disability causes the employee to be Aunable to secure anything more than sporadic employment resulting in an insubstantial income.@  Id., subd. 5 (1995).  APermanent 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. 1993).  AA person is totally disabled if his physical condition, in combination with his age, training and experience, and the type of work available in the 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). 

 

In Detmar v. Kasco Corp., 60 W.C.D. 81 (W.C.C.A. 2000) this court held that, as a general rule, the compensation judge should not compare an employee=s post-injury earnings or earning capacity with the employee=s pre-injury earnings in deciding the issue of whether the employee=s post-injury earnings or earning capacity are insubstantial.  The question of what con­stitutes an insubstantial income does not change based solely upon the size of the employee=s pre-injury income.  Ms. Lowe opined the employee could obtain jobs paying $9.00 an hour.  The compensation judge reasonably concluded a potential earning capacity of $360 a week was not insubstantial.  The judge=s decision is, therefore, affirmed.