Correa v. Waymouth Farms, Inc.

FERNANDO CORREA, Employee, v. WAYMOUTH FARMS, INC., and ST. PAUL COS., Employer-Insurer/Appellants.

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence of record supports the compensation judge=s conclusion that the employee is permanently totally disabled from substantial gainful employment as a result of his significant physical restrictions associated with his low back condition in combination with his educational and employment background, limited English language skills, and level of permanent partial disability of the body as a whole.

PERMANENT TOTAL DISABILITY - UNDOCUMENTED WORKER; PERMANENT TOTAL DISABILITY - APPLICABLE LAW. The Minnesota Workers= Compensation Act does not, as a matter of law, preclude an undocumented employee who is unauthorized to work in the United States from receiving permanent total disability benefits.

Attorneys: Barbara L. Heck, Law Offices of Candlin & Heck, St. Paul, MN, for the Appellants. Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Respondent.

The employer and insurer appeal the compensation judge=s finding that the employee has been permanently and totally disabled from employment since June 8, 2002, as a substantial result of his work-related injury. We affirm.

On March 3, 2000,^[1] Mr. Fernando Correa, the employee, sustained an admitted low back injury while working for Waymouth Farms, Inc., the employer. On that date, the employee was working as an order picker in a warehouse for the employer and also worked at a second job for another employer, earning a combined weekly wage of $500. At the time of his injury, the employer was insured for workers= compensation liability by St. Paul Companies.

Following his injury, the employee continued to work and underwent medical treatment for his low back and left leg pain. As a result of his injury, the employee underwent a L4-5 microdiscectomy on July 20, 2000. The employer and insurer paid the employee temporary total disability benefits between June 8, 2000, and July 30, 2002, with the exception of a period of time between December 2000 and February 2001, when they paid temporary partial disability benefits after the employee returned to work temporarily on a light-duty basis.^[2] The employer and insurer have also provided rehabilitation assistance to the employee and paid medical expenses on his behalf.

As of February 7, 2001, the employer and insurer terminated the employee=s position based on his lack of legal authorization to work in the United States. They petitioned to discontinue his temporary total disability benefits based on his lack of legal documentation. Following a hearing on August 22, 2001, the compensation judge denied the employer and insurer=s petition to discontinue temporary total disability benefits. She determined that the employee was entitled to temporary total disability benefits between February 7, 2001, the date the employee=s position with the employer was terminated, and March 6, 2001, the date the employee became medically unable to work. The compensation judge rejected the employer and insurer=s contention that the employee=s wage loss was due to his status as an unauthorized alien. The compensation judge also awarded temporary total disability benefits between March 6, 2001, and the hearing, concluding that the employee had been medically unable to continue working since March 6, 2001, when he was restricted from employment and referred for low back surgery, and also found that the surgery proposed by his treating physician was reasonable and necessary and causally related to his work injury.

The employer and insurer appealed the award of benefits for temporary total disability between February 7 and March 6, 2002. The issue addressed in that appeal was whether, as a matter of law, the employee=s undocumented status precluded him from receipt of temporary total disability benefits during that period of time because of the impact his undocumented status had on his ability to conduct a diligent job search.

This court affirmed the compensation judge=s finding, holding that the employee=s undocumented status did not automatically render him unable to conduct a reasonable and diligent job search as a matter of law, but that his status was a factor for the compensation judge to consider. We held that based upon the circumstances of the case, substantial evidence supported the compensation judge=s finding that the employee=s undocumented status did not prevent him from conducting a reasonable and diligent job search. Correa v. Waymouth Farms, Inc., 63 W.C.D. 347 (W.C.C.A. 2002). The Minnesota Supreme Court affirmed, holding that as long as the employee was able to document a diligent search for work, he was entitled to temporary total disability benefits in spite of his undocumented status. Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 63 W.C.D. 353 (Minn. 2003).

During the pendency of earlier litigation, the employee underwent a second surgery to his low back, on November 1, 2001, in the nature of a decompression and fusion at the L4-5 vertebral level and a foraminal diskectomy at the L3-4 and L5-S1 levels. The surgery did not result in any substantial improvement in the employee=s low back condition. However, as of January 21, 2002, the employee=s treating physician, Dr. Sunny Kim, released the employee to return to work within physical work restrictions. As of April 9, 2002, due to the employee=s increased symptoms, Dr. Kim removed the employee from the labor market for two months. By July 15, 2002, Dr. Kim again released the employee to return to work 4-8 hours per day, within restrictions set forth in the report issued following a functional capacities evaluation performed in June 2002. Those restrictions included limitation to light or sedentary work, with a restriction of minimal lifting and a requirement for frequent position changes. Thereafter, the employee engaged in a job search. Although he was again provided with the assistance of QRC, the QRC did not provide the employee with any job placement assistance after his release to work nor provide the employee with any job leads. The employee was not successful in obtaining employment.

In July 2002, the employee filed a claim petition for permanent total disability benefits from July 30, 2002, to the present; he later amended his petition to include a claim for additional permanent partial disability benefits based upon a rating of 23 percent whole body impairment. On October 3, 2002, Dr. Kim advised that the employee continued to be able to tolerate full-time work on a sedentary or light duty basis. Dr. Kim also determined the employee had reached maximum medical improvement from his 2000 work injury. On March 3, 2003, the employee reported continued low back pain, which Dr. Kim attributed to the worn condition of the employee=s discs at the levels immediately above and below the vertebral level that was fused during earlier surgery. Dr. Kim concluded that the employee may be a candidate for a third surgery involving fusion at those two levels. Dr. Kim recommended two choices to the employee: that he should either file for permanent total disability benefits or undergo a discogram with consideration of possible additional surgery. Dr. Kim also referred the employee for an additional six months of exercise and pool therapy to relieve his symptoms. According to the employee=s testimony at hearing, the employee did not wish to proceed with an additional surgery, and he had no plans to go forward with that recommendation from Dr. Kim.

The record contains reports and opinions from two vocational professionals, L. David Russell, who conducted a vocational evaluation of the employee on January 13, 2003, at the employer and insurer=s request, and Norman Mastbaum, the employee=s QRC. Mr. Russell concluded that from a physical perspective the employee could work in selective light-duty work such as production work or cleaning and light food preparation-related occupations. He identified various positions that the employee could perform, from a physical standpoint, and that would pay in the range of $8.51 - $13.72/hour, although he also concluded that certain jobs and overtime earnings would be limited due to the employee=s work restrictions. Mr. Russell concluded that the employee was not a reasonable candidate for formal retraining in view of his educational and employment background. However, Mr. Russell recommended classes for improvement of the employee=s English language skills. Mr. Russell concluded that the employee had not conducted a diligent job search, based on the lack of documentation of job search efforts and the employee=s lack of recall of the employers he had contacted. In addition, Mr. Russell commented that if the employee=s legal resident documentation was not adequate or correct, he was Anot aware of a legitimate vocational remedy to Mr. Correa=s unemployed state.@

In his report dated March 6, 2003, QRC Mastbaum stated that the employee had been job seeking independently of a job placement vendor, reportedly had contacted more than 50 employers without any success, and had depended on the assistance of friends to help him either get interviews or applications due to his difficulty communicating in English. Mr. Mastbaum concluded that the employee is vocationally handicapped based on his work restrictions that preclude him from fields of work he previously performed, competition from a large pool of unemployed job seekers competing within the same unskilled job market, lack of transferable skills and lack of English language skills. Mr. Mastbaum testified that, in his opinion, the employee=s undocumented status had not impeded the employee=s ability to find work and that the employee=s lack of documentation was the least of his vocational barriers.

On March 12, 2003, the employee=s claim was addressed at hearing. By Findings and Order, served and filed April 30, 2003, the compensation judge found that the employee was permanently totally disabled as of June 8, 2002, and that the employee had sustained a 23 percent permanent partial disability to the body as a whole as a result of his work injury. The employer and insurer appeal from the determination of permanent total disability.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "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 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, findings of fact should not be disturbed, even though the reviewing 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo." Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The employer and insurer appeal from the compensation judge=s finding that the employee has been permanently totally disabled from employment since June 8, 2002, as a substantial result of his March 3, 2000, injury.

As outlined in Minn. Stat. ' 176.101, subd. 5, a person is permanently totally disabled if he has sustained an injury which Atotally and permanently incapacitates the employee from working at an occupation which brings the employee an income,@ provided that the employee also meets a threshold of permanent partial disability rating. The phrase Atotally and permanently incapacitated@ is defined by the statute as meaning that Athe employee=s physical disability in combination with any requisite amount of permanent partial disability causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Other factors to be considered include the employee=s age, education, training and experience. Id.

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). In evaluating permanent total disability, the primary consideration is the employee=s vocational potential, rather than his physical condition. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983); Boileau v. A-Plus Indus., 58 W.C.D. 549, 558-59 (W.C.C.A.1998).

The compensation judge found that the employee was permanently totally disabled from June 8, 2002, through the time of the hearing, as a result of his March 2000 work injury. She concluded that the employee made a reasonable and diligent job search since June 8, 2002 and found that

The employee=s limited education, English skills and work experience in combination with the significant physical restrictions associated with his low back condition have caused him to be permanently totally disabled from June 8, 2002 through the time of hearing. The March 3, 2000 work injury is a substantial contributing factor in this disability.

(Finding No. 16.) In her memorandum, the compensation judge referred to the employee=s past work history and his ability to hold one and often two jobs simultaneously, despite substantial vocational obstacles of limited education, limited English language skills and limited work experience. She concluded that the employee=s restrictions following his March 2000 work injury, combined with his existing vocational limitations, Ahave left him with no reasonable likelihood of returning to substantial gainful employment@ and that he could not return to the type of work he had done in the past because it exceeds his restrictions.

In her Findings and Order, the compensation judge also specifically addressed the issue of the employee=s status as an undocumented worker and whether that status had any vocational impact on the employee=s ability to find and hold a job. The compensation judge found that

The preponderance of evidence fails to establish the employee=s status as an undocumented worker has had any material impact whatsoever on his ability to find and hold a job since June 8, 2002. Here, as in the last hearing, there is no evidence that the employee=s inability to find work since June 8, 2002 has anything to do with his lack of documentation. The employee worked steadily in the U.S. for roughly 13 years before his injury occurred--a strong indicator that a lack of documentation is not a bar to employment. Additionally, there is no evidence prospective employers even asked about his legal status as he has applied for jobs since June 8, 2002.

(Finding No. 17.) In her memorandum, the compensation judge concluded that the employer and insurer=s suggestion that the employee=s status as undocumented worker is a per se defense to liability was unpersuasive and that there was no evidence Athat the employee=s undocumented status had any measurable effect on his ability to find and hold a job.@

On appeal, the employer and insurer contend that the record as a whole does not support the compensation judge=s finding the employee engaged in a diligent job search nor her determination that an employee=s status as an undocumented worker has no significant vocational impact on his ability to find and hold a job. The compensation judge concluded that the employee had made a reasonable diligent job search between June 8, 2002, and the hearing date, and referred to the methods used by the employee to search for employment, the number of contacts the employee had made since January 21, 2002, and the lack of job search assistance provided by the employer and insurer. The employee testified that he had contacted 3-4 employers per day, although he had a limited recollection as to where and when he actually looked for work, and had no records documenting his job search between January-April 2002. Conflicting vocational expert testimony was presented at hearing. Mr. Russell concluded that because of the employee=s limited quantity of job search contacts and lack of specificity of his job logs, the employee had not conducted a diligent job search for work. QRC Mastbaum concluded that the employee conducted a diligent job search but he also admitted that he did not directly monitor the employee=s job search efforts other than to inquire of the employee about his job search and to remind the employee to stay within his physical work restrictions. The employer and insurer argue that in view of the employee=s work restrictions, his job search focusing on jobs similar to his previous employment in labor positions would be extremely unlikely to ever produce a suitable job. In view of these factors, the employer and insurer argue that the employee=s job search was not legally sufficient and could not support a determination of permanent total disability. However, an unsuccessful job search is not required for a finding of permanent total disability. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426 (Minn. 1978); Alden v. Minnesota Implement Co., 41 W.C.D. 756 (W.C.C.A. 1988). The compensation judge may consider the nature of the job search as a factor in determining whether the employee was permanently and totally disabled. Id. In this case, the compensation judge considered the methods used by the employee to search for employment, the number of contacts the employee had made and the lack of job search assistance provided to him, as well as testimony by the employee and opinions rendered by two vocational professionals and determined that the employee had made a reasonable job search. Substantial evidence supports this finding and we affirm.

The employer and insurer also appeal from the compensation judge=s finding that the employee=s status as an undocumented worker had no material impact on his ability to find and hold a job since June 8, 2002, arguing that an injured worker=s legal status has a tremendous impact on his ability to locate and secure post-injury employment. They do not dispute that the employee was a hard worker and had at times worked at more than one job since entering the United States, and that the types of jobs the employee traditionally held were in the unskilled medium to heavy labor areas. But they argue that given the nature of the employee=s injury, his surgery and resulting restrictions, those types of jobs are no longer available to the employee, and, therefore, that it is no longer a relevant consideration that the employee in the past has always been able to seek, locate and hold employment. Instead, the employer and insurer contend that the traditional means of finding employment previously utilized by the employee must change and that he must utilize new means and methods of locating employment.

The employer and insurer also argue that there is a fundamental and insurmountable problem in providing appropriate rehabilitation and job search assistance to the employee, since he is an undocumented worker and argue that under the Immigration Reform Control Act, it is a federal crime for an individual to recruit or refer for an employment an alien knowing that the alien is unauthorized. The employer and insurer argue that violation of the IRCA subjects an employer to both civil and criminal penalties. The employer and insurer further argue that it is a prohibited act and violation of Minnesota Rules for a QRC to engage in conduct likely to deceive, defraud or harm the public. See Minn. R. 5220.1801, subp. 9.F. and J. The employee=s QRC testified that he was not in a position to help the employee because he could not legally assist him with job placement. The employer and insurer argue that this places an employer in an impossible situation: an employer can not legally return the employee to work, as that would violate federal law, nor can an employer hire a vocational professional to assist the employee in finding alternative work with another employer because to do so would also violate federal law. Instead, they contend, and employer and its insurer are relegated to hoping that an injured worker will be able to obtain work on his own in a field which he has little or no experience or background and if the employee=s job search does not succeed, they may then be responsible for payment of permanent total disability benefits.

The Minnesota Supreme Court held in Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 63 W.C.D. 353 (Minn. 2003), that the IRCA does not prohibit unauthorized aliens from receiving state workers= compensation benefits generally or temporary total disability benefits conditioned on a diligent job search specifically. The court stated that the focus of the IRCA is on preventing employers from hiring unauthorized aliens, and, aside from the prohibition on employees tendering fraudulent documents, the IRCA does not prohibit unauthorized aliens from seeking or accepting employment in the United States. They further held that the Minnesota Workers= Compensation Act applies to alien workers, whether authorized or not to work in the United States, and therefore the Act permits unauthorized aliens to receive temporary total disability benefits conditioned on a diligent job search. In view of the supreme court=s decision regarding the impact of the employee=s undocumented status on his entitlement to benefits, we conclude that the employee=s undocumented status does not per se prohibit him from receipt of permanent total disability benefits. We therefore must determine whether the record supports the compensation judge=s finding that the employee is qualified for permanent total disability benefits, based on the factors articulated in the Workers= Compensation Act and corresponding case law, such as the employee=s physical condition, his level of permanent partial disability, age, training and experience and the type of work available in his community. The evidence in the record supports the compensation judge=s conclusion that the employee is permanently totally disabled from substantial gainful employment as a result of his significant physical restrictions associated with his low back condition in combination with his educational and employment background and his limited English language skills. See Schulte, 278 Minn. at 83, 153 N.W.2d at 133-34, 24 W.C.D. at 295. He has sustained 23% permanent partial disability to the whole body and therefore satisfies the statutory threshold for the requisite amount of permanency. See Minn. Stat. ' 176.101, subd. 5(2)(a). In addition, in view of the supreme court=s decision regarding the impact of the employee=s undocumented status on his entitlement to benefits, we conclude that the compensation judge=s finding, that the employee=s undocumented status does not bar the employee from receiving permanent total disability benefits, is not clearly erroneous. Concluding that substantial evidence of record supports the compensation judge=s finding that the employee is permanently totally disabled from employment as a substantial result of his work injury, we affirm.

The employer and insurer also argue that circumstances such as those presented here require that they may be liable to pay a greater amount of workers= compensation benefits simply because the injured worker is an undocumented alien, and that such a requirement violates the equal protection clauses of both the Minnesota state and federal constitutions. This court has no jurisdiction to address constitutionality issues, and therefore the employer and insurer=s constitutional challenge is preserved for further appeal. Quam v. State, 391 N.W.2d 803, 809, 39 W.C.D. 32, 39-40 (Minn. 1986).

^[1] The record refers alternatively to injury dates of March 3 and March 6, 2000; the Findings and Order served and filed on May 29, 2003, refer to a corrected injury date of March 3, 2000, and there is no dispute that the injury occurred in March 2000.

^[2] As of July 30, 2002, the employer and insurer had paid the employee 104 weeks of temporary total disability benefits, the maximum amount allowed by statute. Minn. Stat. ' 176.101, subd. 1(k).