Wenner v. Donlin Co.

THOMAS T. WENNER, Employee, v. DONLIN CO., and WESTERN NAT=L INS. CO., Employer-Insurer/Appellants, and DONLIN CO., and FEDERATED MUTUAL INS. CO., Employer-Insurer/Cross-Appellants, and SPECIAL COMPENSATION FUND.

PERMANENT TOTAL DISABILITY - JOB SEARCH; REHABILITATION - COOPERATION. Substantial evidence supports the compensation judge=s finding that the employee performed an adequate job search and cooperated with rehabilitation under the circumstances of this case.

PERMANENT TOTAL DISABILITY; CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee had permanent restrictions related to a 1987 cervical injury, substantial evidence supported the compensation judge=s finding that the employee=s 1987 cervical injury was a substantial contributing factor to the employee=s permanent total disability even though the employee had a 1991 low back injury which resulted in more significant restrictions.

SETTLEMENTS - INTERPRETATION. Substantial evidence supports the compensation judge=s interpretation of the 1993 stipulation for settlement concerning the level of benefits closed out by the stipulation.

Attorneys: Mark J. Freeman, Fitch, Johnson, Larson, Walsh, & Held, Minneapolis, MN, for the Appellants. Mark A. Fonken and Damien A. Riehl, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Cross-Appellants. Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Respondent.

The employer and Western National Insurance Company appeal the compensation judge=s findings that the employee is permanently and totally disabled and that the employee=s 1987 cervical spine injury is a substantial contributing cause of the employee=s permanent total disability. The employer and Federated Insurance Company cross-appeal the compensation judge=s finding that the employee is permanently and totally disabled and the compensation judge=s interpretation of a 1993 stipulation for settlement regarding the amount of permanent partial disability closed out for his 1991 lumbar spine injury. We affirm.

Thomas T. Wenner, the employee, sustained two work injuries while working for Donlin Company, the employer. The employee, age 45, worked for the employer for 18 years, between 1983 and 2001, after completion of high school and a two-year auto-body repair program at St. Cloud Technical College. He worked as a laborer, worked in general production and then later served as a delivery driver. He initially sustained a cervical spine injury on January 7, 1987, when the employer was insured by Western National Insurance Company (Western). Following that injury, the employee was able to return to work for the employer. He sustained a lumbar spine injury on May 30, 1991, when the employer was insured by Federated Mutual Insurance Company (Federated). After that injury, the employee was able to continue working for the employer, but his job was changed from driving to working in the window repair department due to his low back symptoms.

In August 1993, the parties entered into a to-date settlement. In that settlement, the employee had claimed, in part, that he had sustained 14% whole body impairment due to his 1987 cervical spine injury and 14% whole body impairment due to his 1991 lumbar spine injury. The parties closed out the employee=s claims, relative to both injuries, on a to-date basis, and also closed out payment of permanent partial disability benefits to the extent of 28% whole body impairment related to claims arising out of both injuries. The employee continued to work for the employer following the settlement. The employee underwent a fusion surgery to his cervical spine in 1996, in the nature of an anterior cervical decompression and fusion at the C5-C6 level, and eventually was able to return to work. Due to his worsened low back condition, the employee required surgery and in March 2001, he underwent a decompression from L-3 through L-5 and foraminal discectomy at the L3-4 level. Six months later he underwent a transforaminal posterior interbody fusion at the L3-4 and L4-5 levels. The employee has not returned to work for the employer since his latest surgery.

After his second surgery in 2001, the employee continued to have symptoms and continued to treat with Dr. Sunny Kim, his treating orthopedic surgeon. Dr. Kim eventually released the employee to work but recommended a functional capacities evaluation, which was performed on July 29-30, 2002. The evaluation report indicated that the employee had significant deficits with static positions, including prolonged sitting, standing and bending, should avoid working at heights, limited lifting from the floor and no lifting overhead, and limited pushing, pulling and carrying. Upon review of the functional capacities evaluation, Dr. Kim released the employee to light duty work up to four hours per day with a gradual increase to eight hours per day. The employee has been unable to return to work for the employer since 2001 as the employer had no work available within these restrictions.

In May 2002, QRC Michael Gurda began working with the employee and established a rehabilitation plan. The employee underwent vocational testing which indicated low average learning ability, eighth grade math ability, poor spelling ability, fifth grade reading ability, below average clerical perception, low average mechanical comprehension and spacial relations abilities, and average finger manual dexterity and motor coordination skills. The employee has difficulty reading a newspaper, cannot maintain a checkbook, and does not use a computer.

By late August or early September 2002, the employer determined that it was unable to provide work to the employee within his physical work restrictions, and formally terminated his employment as of September 5, 2002. At that point, Jim Broderick, a job placement vendor, began working with the employee to provide job placement services. A September 24, 2002, job placement plan called for the employee to be available for job search activities 2-4 hours per day, five days per week, and to focus on the areas of auto damage appraiser, autobody estimator, security work, light delivery, courtesy driver, and property management. The placement vendor made about 295 contacts resulting in about 15 leads for the employee, but only two appeared to be within the employee=s restrictions. One employer was interested in hiring the employee for a building maintenance position, but could not accommodate the employee=s lifting restrictions. In view of the placement vendor=s services, the employer later limited the QRC to two hours of activity every 30 days, although the QRC continued to provide medical management services.

On April 30, 2003, the employee was evaluated by Dr. Robert Wengler, who concluded that the employee was permanently and totally disabled because of his intractable back and leg pain and his use of pain medication. Dr. Wengler testified in his deposition that the functional capacities evaluation was not a reliable indicator of the employee=s abilities in a long-term job situation. Dr. Wengler also opined that the cervical injury led to significant restrictions, including no lifting over 25 pounds, no repetitive bending or stooping, heavy pushing or pulling, avoidance of stressful positions and overhead work, and the requirement that the employee be able to move frequently. Dr. Wengler indicated that the employee=s low back restrictions included no bending or stooping and avoiding long periods of sitting. Dr. Wengler also noted that were it not for the lumbar spine injury, the employee would probably be able to work.

On August 21, 2003, the employee was evaluated by Dr. Elmer Salovich at the request of the employer and Western. Dr. Salovich opined that the employee is restricted due to his low back condition and should avoid lifting from floor level, unusual positions, repetitious bending, pushing, and pulling, and sitting for more than 30 minutes at a time. He also determined that the employee is restricted due to his cervical spine and should avoid continuous working overhead, unusual positions and repetitious strain of his cervical spine. Dr. Salovich concluded that the employee is not permanently and totally disabled but has been unable to find employment because of his low back condition.

On August 28, 2003, the employee was evaluated by Dr. Larry Stern at the request of the employer and Federated. Dr. Stern opined that the employee was not permanently and totally disabled, but had permanent restrictions as indicated in the functional capacities evaluation. Dr. Stern initially concluded that the employee had no symptoms or restrictions related to his cervical spine. He later testified in his deposition that the employee would be permanently restricted from repetitive motions with his neck and from holding his neck in a static position due to his cervical fusion.

In June 2003, the employee=s QRC reported that the job search was not progressing and that the employee was not a candidate for retraining, and concluded that the employee was permanently and totally disabled in view of the employee=s restrictions, academic deficits and limited transferable skills. By this time, Dr. Kim had recommended that the employee=s restrictions be made permanent. In June 2003, the employee amended his earlier-filed claim petition, asserting a claim for permanent partial disability benefits relative to his lumbar spine and permanent total disability benefits.^[1]

In September 2003, the employee underwent a vocational evaluation with QRC L. David Russell at the employer and Federated=s request. Mr. Russell agreed that the employee was not a candidate for academic retraining, but opined that the employee was capable of learning technical skills and was not permanently and totally disabled. Mr. Russell opined that the employee could perform driving jobs, assembly positions, hand packaging, and positions as a salesperson, cashier or security guard, and that according to his labor market survey, there were jobs available in the St. Cloud area that would be within the employee=s restrictions.

A hearing was held on September 18, 2003, to address the employee=s amended claim petition. In her findings and order served and filed on November 14, 2003, the compensation judge found that the employee was permanently and totally disabled, that both work injuries represented substantial contributing factors to the employee=s permanent total disability, that the employee sustained a 22.5% permanent partial disability of the body as a whole as a result of his low back injury, and that because the 1993 stipulation only closed out benefits to the extent of 14% permanent partial disability relative to the lumbar spine, the employee was entitled to payment of permanency benefits based on 8.5% whole body impairment after deduction is made for the benefits closed out by the 1993 stipulation for settlement.

The employer and Western National Insurance Company appeal the compensation judge=s findings that the employee is permanently and totally disabled and that the employee=s cervical spine injury is a substantial contributing cause of the employee=s permanent total disability. The employer and Federated Insurance Company cross-appeal the compensation judge=s finding that the employee is permanently and totally disabled and the compensation judge=s award of permanent partial disability benefits beyond the level of permanent partial disability closed out in the 1993 stipulation for settlement.

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. 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).

The employer and both insurers appeal the compensation judge=s finding that the employee is permanently and totally disabled. Permanent total disability means an injury which totally incapacitates the employee from working at an occupation which brings the employee an income. Minn. Stat. ' 176.101, subd. 5 (1990). "[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). "Permanent 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), summarily aff'd (Minn. Jan. 19, 1994). Permanent total determinations are a combination of both medical and vocational factors. McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983)(concept of total disability depends on employee's ability to find and hold job, not on his or her physical condition).

The employer and insurers argue that the employee did not sufficiently participate in a job search, nor cooperate with his rehabilitation plan, to justify a conclusion that he is permanently totally disabled. A diligent job search is not a legal prerequisite to being found totally disabled in a workers' compensation proceeding, if the medical and vocational evidence sufficiently demonstrates that a job search would be futile. See Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 122 (Minn. 1992); see also Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988) (Aemployees who are capable of work must make a diligent job search to establish total disability@). However, evidence of a post‑injury job search, or the lack thereof, may still go to the evidentiary weight of the employee=s claim that he is totally disabled. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-189, 30 W.C.D. 426, 432 (Minn. 1978). In this case, while there is evidence that the employee did not log all of his job contacts and only performed his job search activities for a few hours a day, the employee testified that he thought he was only to log his job contacts where he made an application and that his physical symptoms limited his job search. The employee testified that he had constant pain in his low back, left groin and upper left thigh, occasional stiffness in his neck, loss of range of motion to his neck and that he needed to avoid static positions.

As a general rule, once a rehabilitation plan is developed, the issue is whether the employee is making a good faith effort to participate in that plan. See, e.g., Mayer v. Erickson Decorators, 372 N.W.2d 729, 38 W.C.D. 107 (Minn. 1985); see also Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (a diligent job search Ais a search that is reasonable under all the facts and circumstances@). In this case, the employee=s rehabilitation plan only called for two to four hours of job search per day. The compensation judge found that the employee=s job search was sufficient given his permanent physical restrictions and daily symptoms. Considering the employee=s attempts at a job search and his testimony regarding his medical condition, the judge could reasonably conclude that the employee=s job search, as well as his cooperation with his rehabilitation plan, were sufficient. The judge found the employee=s entire testimony, including testimony about his daily symptoms, to be credible. Because assessment of the credibility of a witness is the unique function of the trier of fact, Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989). We conclude that the record adequately supports the compensation judge=s conclusions. We therefore affirm the finding that the employee is permanently and totally disabled.

The employer and Western National Insurance Company, the insurer at the time of the employee=s 1987 injury, also appeal the compensation judge=s finding that the employee=s cervical spine injury is a substantial contributing cause of the employee=s permanent total disability. Dr. Stern testified in his deposition that the employee had restrictions and limitations as a result of his cervical spine fusion. Dr. Wengler testified that the employee has restrictions due to both his cervical and lumbar spine conditions, but that the employee would be considered to be permanently and totally disabled based upon his lumbar spine condition alone. The employer and Western claim that since the employee could be considered permanently and totally disabled based upon his lumbar condition alone, his cervical spine condition cannot be deemed a substantial contributing cause of the employee=s permanent total disability. They argue that if an employee is totally disabled as a result of a subsequent injury or disability alone, and would be totally disabled, regardless of whether the original injury occurred, they, as employer and insurer for the original work injury, are not responsible to pay for the employee=s total disability from work, citing Leegard v. Mid-City Hotel Ass=n, 44 W.C.D. 240 (W.C.C.A. 1990). The Leegard case, however, states that A[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.@ What constitutes a Asubstantial@ or Asignificant@ contributing factor in a workers= compensation setting has not been precisely defined since each case stands on its own facts. See Flowers v. Consolidated Containers Corp., 336 N.W.2d 255, 36 W.C.D. 39 (Minn. 1983). Because of the many factual variables present in each case, the issue of whether a work injury is a substantial contributing factor in a claimed disability is a fact question for the compensation judge. See Hamm v. Marvin Windows & Doors, slip op. (W.C.C.A. Apr. 21, 2004), summarily aff=d (Minn. July 20, 2004).

In this case, while the employee was able to work after his cervical spine injury and surgery, he has permanent restrictions resulting from that injury. The compensation judge found that the employee=s permanent restrictions related to his cervical spine condition limit his ability to perform unskilled or semi-skilled jobs, despite his minimal neck symptoms. The employee testified regarding his loss of range of motion in his neck and his need to avoid static positions. Substantial evidence, including the employee=s testimony, medical records and expert medical opinions, supports the compensation judge=s finding that the employee=s cervical spine condition was a substantial contributing cause of the employee=s permanent total disability, and we affirm.

The employer and insurers also claim that the compensation judge erred by failing to apportion liability between the employee=s 1987 and 1991 injuries, and that although the judge ordered Federated, the insurer at the time of the employee=s 1991 injury, to be the paying agent for benefits, she made no finding on apportionment of liability for the permanent total disability benefits. We see nothing in the record to indicate the issue of apportionment between the insurers was presented to the compensation judge. This court will not address on appeal issues not raised, considered, or resolved in a hearing before a compensation judge or the commissioner. See, e.g., Troester v. Drapery Servs. of Austin, 49 W.C.D. 74 (W.C.C.A. 1993); Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992). Therefore, under the circumstances, Federated remains the paying agent for the employee=s benefits and may file a claim for contribution and/or reimbursement as it deems appropriate.

The employer and Federated appeal the compensation judge=s interpretation of the 1993 stipulation for settlement and from her order for payment of additional permanency benefits. The compensation judge found that as a result of the employee=s lumbar spine injury and surgeries, he is entitled to a 22.5% permanent partial disability rating of the body as a whole. See Minn. R. 5223.0070, subp. 1D. The compensation judge also concluded that the 1993 stipulation closed out claims for 14% permanent partial disability of the whole body relating to the lumbar spine, and ordered that the employer and Federated pay the employee compensation for 22.5% permanent partial disability to the body as a whole minus the 14% previously closed out under the stipulation for settlement. The employer and Federated argue that the employee is owed no additional permanency benefits at this point, since the stipulation closed out claims for such benefits to the extent of 28% whole body impairment.

The 1993 stipulation for settlement closed out claims on a to-date basis, leaving open any additional claims beyond July 20, 1993. In the stipulation, drafted by the employer, the parties separately outlined their claims and contentions, and then outlined agreements reached in the settlement. One of the employee=s contentions, pertinent to this appeal, was that he was entitled to 14% permanent partial disability of the body as a whole relative to his cervical spine and 14% permanent partial disability of the body as a whole relative to his lumbar spine. In the stipulation, the employer and insurers denied this contention. The employer and Western instead asserted that the employee had a 9% rating for the cervical spine and a 3.5% rating for his lumbar spine; the employer and Federated asserted that the employee had a 3.5% or 10.5% rating for his lumbar spine. Those ratings were based upon various medical records and opinions available at the time of the stipulation. The stipulation for settlement then goes on to state that the parties intended to close all claims for permanent partial disability Ato the extent of 28% whole body impairment.@ The stipulation does not specifically state whether this total rating refers to the employee=s cervical spine condition, his lumbar spine condition, or both.

It appears that the employer and Federated do not dispute the assessment of a 22.5% whole body impairment rating as awarded by the compensation judge. However, they now argue that the stipulation clearly closes out permanency benefits to the extent of 28%, and that because the employee has been rated as having a 22.5% permanency rating relative to his lumbar spine, no additional permanency benefits are due. The employee argues against this interpretation, asserting that the employee has been assigned a rating of 11.5% whole body impairment relative to his cervical spine,^[2] in addition to his permanency rating assigned on the basis of his lumbar spine, and therefore his total impairment rating now exceeds the 28% rating listed in the stipulation for settlement.

At the time of the settlement, neither insurer claimed that the employee=s permanent partial disability relative to his lumbar spine exceeded 14%, and, in fact, claimed it was less. It was not until after his two surgeries in 2001 that the employee claimed additional permanent partial disability relative to his lumbar spine. The compensation judge found that the 1993 stipulation for settlement was unclear as to whether the parties intended to close out claims for permanency benefits up to a total of 28%, or instead intended to close out claims for 14% permanent partial disability of the whole body relating to the lumbar spine in addition to claims for 14% permanent partial disability of the whole body relating to the cervical spine. The compensation judge concluded that any ambiguity in the terms of the stipulation for settlement concerning the level of closed-out benefits should be construed against the drafter, the employer in this case. She therefore determined that the 1993 stipulation closed out claims only to the extent of 14% permanent partial disability of the whole body relating to the lumbar spine.

Upon review of the stipulation and the evidence in the record, we conclude that substantial evidence supports the compensation judge=s interpretation that the references in the stipulation for settlement referred to the two separate levels of impairment claimed by the employee in the stipulation, 14% relative to the lumbar spine and 14% relative to the cervical spine. The stipulated close-out to the extent of 28% permanent partial disability to the body as a whole related to both the employee=s cervical and lumbar spine injuries. However, the present claim involves a permanency rating related solely to the employee=s lumbar spine condition. The employee=s 1987 injury to his cervical spine does not represent a substantial contributing cause to the employee=s need for his low back surgeries nor to his related 22.5% whole body impairment assigned as a result of those surgeries. To now disallow the employee=s claim for permanency benefits relative to his lumbar spine on the basis that he closed out claims to the extent of a 28% rating would be tantamount to equitably apportioning liability for the additional permanency against the insurer for the 1987 cervical spine injury, which would be a legally incorrect result. See Fleener v. CBM Indus., 564 N.W.2d 215, 56 W.C.D. 495 (Minn. 1997); Kulp v. Sheraton Ritz Hotel, 450 N.W. 2d 296, 42 W.C.D. 598 (Minn. 1990).

Under the particular circumstances of this case, we conclude that the compensation judge=s resolution of the issue was both reasonable and appropriate, and presents a logical interpretation of the parties= agreement.^[3] The compensation reasonably determined that the employee is entitled to payment of additional permanent partial disability for the lumbar spine, based on the difference between the employee=s current rating of 22.5% whole body impairment and the 14% rating earlier closed out by the settlement agreement. Accordingly, we affirm the decision of the compensation judge.

^[1] The employee originally filed a claim petition on August 4, 2001; claims asserted in that petition were partially resolved by a stipulation for settlement entered into by the parties in July 2002. It is that claim petition that the employee later amended, and that later was set for hearing in September 2003.

^[2] Pursuant to Minn. R. 5223.0070, subp. 2.D., based on the employee=s cervical fusion surgery, and as assigned by Dr. Wengler. (Wengler depo., Pet. Exh. A.)

^[3] See, e.g., McLaughlin v. Crenlo, Inc., slip op. (W.C.C.A. Oct. 8, 1992).