HENRY J. KAHLSTORF, Employee, v. POTLATCH CORP., SELF-INSURED, Employer/Appellant.

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 2, 2004

HEADNOTES

APPEALS - NOTICE OF APPEAL.  Where the employer did not appeal the compensation judge=s finding that the employee had conducted a reasonable job search and did not otherwise address the issue of job search in the notice of appeal, this court does not have jurisdiction to review the compensation judge=s determination on the issue of job search.

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s 1993 work injury was a substantial contributing cause of his permanent total disability.

Affirmed.

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

Compensation Judge: Catherine A. Dallner

Attorneys:  James R. Waldhauser and Vincent A. Petersen, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellant.  Kathryn Hipp Carlson, Miller & Carlson, Minneapolis, MN, for the Respondent.

OPINION

MIRIAM P. RYKKEN, Judge

The self-insured employer appeals the compensation judge=s findings that the employee was permanently and totally disabled from and after December 30, 2000, and that the employee=s 1993 work injury was a substantial contributing cause of his permanent total disability.  We affirm.

BACKGROUND

On January 3, 1993, Henry Kahlstorf, the employee, sustained a work-related low back injury while working as a fuel prep operator for Potlatch, the self-insured employer, which is located in Bemidji, Minnesota.  On that date, the employee was 35 years old, and earned a weekly wage of $674.08.  The employee had a limited work history when he began working for the employer.  After graduating from high school, where he was not an academically strong student, the employee worked as a dishwasher and cook at Country Kitchen in Forest Lake, Minnesota.  He then was hired as a restaurant manager at Country Kitchen in Bemidji, where he worked for ten years.  After five years of applying, the employee was hired by the employer in 1987 as a utility worker.  He continued in this position for eighteen months, then became a fuel prep operator.  This position required the employee to shovel dust, bark and rock, to use picks, hammers and chainsaws to unplug conveyors, to fight fires using four-inch pressure hoses, and to climb stairs.  After the employee=s 1993 back injury, he was able to continue working his regular job with no time lost, but his symptoms continued to increase over the years.  The employee treated with Dr. Brian Livermore, who assigned restrictions which prohibited carrying over 30 pounds and further restrictions on bending, pushing, and lifting.  The employee stopped working for the employer in December 2000 since the employer was no longer able to accommodate these restrictions and because the employee=s pain level was too high to continue in his job as a fuel prep operator.

The employee underwent an MRI on January 31, 2001, which indicated disc dehydration at L4-5 and L5-S1, a minimal broad based disc bulge at L4-5 without herniation, no central stenosis or neural foramina stenosis.  In April 2001, the employee underwent a functional capacities evaluation, which indicated that the employee could exert 20-30 pounds of force occasionally, 10-25 pounds frequently, and 10 pounds continuously.  In May 2001, the employee began working with QRC Glenn Gifford and a job placement vendor.  The employee, who resides in LaPorte, Minnesota, approximately 24 miles from Bemidji, conducted a full-time job search, which the compensation judge characterized as exhaustive, but did not receive any job offers.  On January 16, 2002, the employee sustained a myocardial infarction and did not look for work much for six weeks.  The employee had additional limitations due to this condition for a few weeks.  After that, the employee conducted more of his job search by mail, but also made in-person applications in Bemidji.  The compensation judge, however, concluded that the employee=s job search following his myocardial infarction was reasonably diligent.  The employee received no job offers. 

The employer paid temporary total disability benefits from February 2, 2001, through May 31, 2002, and also paid 26 weeks of economic recovery compensation.  The parties entered into a stipulation for settlement in which the parties stipulated  that the employee was at maximum medical improvement as of March 1, 2002, and that temporary total disability benefits would cease 90 days after March 1, 2002.  The employee=s QRC and his placement vendor opined that the employee was not a candidate for formal retraining due to his significant academic deficits and his physical condition, which precluded him from sitting for long periods of time in a classroom.  In March 2003, the parties agreed to halt formal rehabilitation efforts. 

On February 28, 2003, the employee filed a claim petition for permanent total disability benefits from and after December 30, 2000.  He underwent another functional capacities evaluation (FCE) in July 2003, which indicated that the employee could only perform sedentary work, based upon his physical deficits, including lower extremity weakness affecting his ability to lift and carry, and decreased tolerance for static position such as elevated work, forward flexion of the spine, sitting, standing, and kneeling, decreased tolerance for rotation of the spine, walking, stair climbing, and step ladder climbing.  According to the report issued following the FCE, the employee had restrictions of lifting or carrying a maximum of 20 pounds on an intermittent basis, occasional lifting or carrying up to ten pounds, intermittent forward bending while sitting or standing, and intermittent sitting or standing in a static position.  Dr. Livermore added that the employee must be able to move frequently and could not drive more than a half an hour on a regular basis.  Dr. Livermore opined that the employee=s 1993 work injury was a substantial contributing cause of the employee=s need for these restrictions. 

On June 2, 2003, the employee underwent a medical evaluation with Dr. John Dowdle at the employer=s request.  Dr. Dowdle had previously evaluated the employee on September 14, 2001.  Dr. Dowdle opined that the employee=s work activities had aggravated a pre-existing degenerative disc condition.  At the time of both examinations, in 2001 and 2003, Dr. Dowdle concluded that the employee was capable of working full time within the restrictions of the 2001 functional capacities evaluation; those restrictions were not as restrictive as those issued following the 2003 FCE.  Dr. Dowdle also concluded that the employee had no permanent partial disability related to his work injury, and required no further medical treatment for his low back. 

On June 26, 2003, the employee underwent a vocational evaluation with John Richardson, a rehabilitation consultant, as requested by the employer.  Mr. Richardson opined that the employee did not perform an effective job search after his heart attack and that Abut for the heart attack [the employee] has the requisite physical capabilities to participate in competitive employment within his geographic area.@  Mr. Richardson agreed that the employee was not a candidate for a four year academic degree program or any formal academic program, but claimed that the employee could be a candidate for a hands-on learning program. 

A hearing was held on July 25, 2003, to address the employee=s claim petition.  The compensation judge found that the employee was permanently and totally disabled from and after December 30, 2000, given the employee=s age, significant physical restrictions, lack of transferable skills, limited education, and the depressed local labor market, and also found that his January 3, 1993, work-related low back injury was a substantial contributing cause of his permanent total disability.  The self-insured employer 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.  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

The employer claims that substantial evidence does not support the compensation judge=s finding that the employee is permanently and totally disabled, arguing that the employee did not conduct a diligent job search and that he could have found a job in the retail or food industry that would be within his physical work restrictions.

Minn. Stat. ' 176.101, subd. 5(2) defines permanent total disability as an injury which Atotally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@ATotally and permanently incapacitated@ means that the Aemployee=s physical disability, in combination with the employee=s age, education, training, and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Minn. Stat. ' 176.101, subd. 5(b);  Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967).  Total disability is not based solely on an inability to work but may also be based on an inability to find work the injured employee is capable of performing.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).

In this case, the compensation judge found that the employee had conducted an exhaustive job search from July 2001 until January 2002, and a reasonably diligent job search from March 2002 through March 2003 after recuperating from his January 16, 2002, myocardial infarction.  The employer did not appeal this finding; the employee=s notice of appeal does not list this finding among those from which appeal was taken, nor does the notice of appeal otherwise address the issue of job search.  The employer only appealed the compensation judge=s findings that the employee was permanently and totally disabled from and after December 30, 2000, and that the employee=s 1993 work injury was a substantial contributing cause of his permanent total disability.  This court=s authority on review is limited to those issues raised by the parties in a timely notice of appeal or cross‑appeal.  Minn. Stat. ' 176.421, subd. 6.  This court, therefore, lacks jurisdiction to review the compensation judge's determination on the issue of job search.

The employer also argues that the employee=s January 2002 myocardial infarction was a superseding intervening cause of the employee=s permanent total disability.  A disabling, non-work-related medical condition sustained subsequent to a work injury does not automatically constitute an intervening cause where it can be shown that the previous work injury remains a substantial contributing factor in the employee's disability.  See Leegard v. Mid-City Hotel Associates, 44 W.C.D. 240, 243 (W.C.C.A. 1990), summarily aff=d (Minn. Mar. 7, 1991) (remanded for finding of whether non-work related stroke was a superseding intervening cause of the employee=s disability); DeBenedet v. Hennepin County Medical Center, 33 W.C.D. 500 (W.C.C.A. 1981) (employee=s subsequent manifestation of multiple sclerosis was not an intervening cause of disability where the employee had not recovered from her work injury).  In this case, the compensation judge found that the employee=s January 3, 1993, work-related low back injury was a substantial contributing factor in the employee=s permanent total disability.  As of July 2003, the employee continued to have significant restrictions related to his low back condition, including lifting or carrying a maximum of 20 pounds on an intermittent basis, occasional lifting or carrying up to ten pounds, intermittent forward bending while sitting or standing, and intermittent sitting or standing in a static position.  Dr. Livermore=s opinion remained that the employee=s 1993 work injury was a substantial contributing cause of the employee=s need for these restrictions and he also determined that the employee must be able to move frequently and could not drive more than a half an hour on a regular basis.  Substantial evidence supports the compensation judge=s finding that the employee=s 1993 work injury was a substantial contributing cause of the employee=s permanent total disability, and we affirm.