ARLENE J. BETTIN, Employee, v. WAL-MART and INSURANCE CO. OF STATE OF PA./AIG, adm=d by CLAIMS MGMT., INC., Employer-Insurer/Appellants, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 11, 2005

 

No. WC04-246

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert vocational opinion, supported the compensation judge=s conclusion that the employee is permanently totally disabled as a result of her work injuries.

 

APPLICABLE LAW - CONTROLLING EVENT.  Where both the employee=s 1992 left knee and ankle injuries and her 1999 right knee injury substantially contributed to the employee=s permanent total disability, the compensation judge correctly concluded that the 1999 injury was the controlling event for purposes of determining applicable law.

 

Affirmed.

 

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

Compensation Judge:  Harold W. Schultz II

 

Attorneys:  William D. Krueger, New Brighton, MN, for the Respondent.  Christopher E. Sandquist, Gislason & Hunter, Mankato, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s award of permanent total disability benefits and from the judge=s conclusion that the employee=s 1999 injury is the controlling event for purposes of the applicable law.  We affirm.

 

BACKGROUND

 

The employee began working in the layaway department of Wal-Mart Stores, Inc. [the employer], in February of 1991.  Her job duties required her to be on her feet for virtually all of her shift.

 

On February 27, 1992, the employee slipped and fell in the parking lot at work, sustaining a left ankle fracture that required open reduction and internal fixation surgery, including placement of a permanent plate.  Following her ankle surgery, it was discovered that the employee had also injured her left knee in the February 27, 1992, fall.  On July 29, 1992, the employee underwent left knee surgery, performed by Dr. Jefferson Brand, in the nature of a partial medial meniscectomy, resection of the medial synovial plica, and shaving of the patella.  At the same time, Dr. Brand removed a screw used in the employee=s prior left ankle surgery.

 

Following her surgeries, the employee returned to work for the employer, initially on a part-time basis.  Some time in the fall of 1992, she apparently resumed her usual job, full time.  She testified that, while she was able to perform her job duties, her left knee and left ankle continued to be symptomatic, at least intermittently.

 

On March 13, 1999, the employee sustained a second work injury when she hooked her right foot on a cord and twisted her right knee as she caught herself to keep from falling.  Conservative treatment, including medication, Synvisc injections, and cortisone injections, failed to alleviate her symptoms, and on July 24, 2001, the employee underwent a total right knee arthroplasty, performed by Dr. Paul Dale.  In October of 2001, the issue of liability for the employee=s right knee replacement surgery was tried before a compensation judge.  The judge concluded that the knee replacement surgery was reasonable, necessary, and causally related to the employee=s 1999 work injury.  The judge also approved surgery proposed by Dr. Brand to debride osteophytes and remove a bone chip in the employee=s left ankle.

 

While recovering from her right knee surgery, the employee sought treatment from Dr. Dale for left knee symptoms.  Steroid injections were administered.  In notes from a February 2002 recheck, Dr. Dale indicated that, Aat this point I do not feel that [the employee] is fit for any significant employment and she is apparently in the process of considering Social Security Disability.@  Work ability reports completed by Dr. Dale in both February and May of 2002 indicated that the employee was expected to be off work indefinitely.  Later, because of continuing complaints of severe pain, the employee was referred to the Sister Kenny chronic pain rehabilitation program, which she completed in September of 2002.  According to the discharge summary from that program, Dr. Matthew Monsein was of the opinion that the employee would not be able to return to her pre-injury job.  In December of 2002, Dr. Dale issued a report indicating that the employee had reached  maximum medical improvement [MMI] from her 1999 right knee injury.

 

In May of 2003, the employee consulted Dr. David Kittleson for a second opinion, particularly regarding Asevere left knee pain.@^[1]  Left knee x-rays disclosed end-stage degenerative arthritis, and Dr. Kittleson recommended a total left knee replacement as the Aonly surgical option.@  The employee agreed to the surgery, which was performed on July 21, 2003.

 

The employee continued to follow up with Dr. Kittleson after her left knee surgery.  Office notes from those consultations indicate that the employee wanted to know whether anything could be done to improve her right knee condition, which was still painful.  The employee testified that Dr. Kittleson told her Athat there might be a possibility that he could correct [her right knee]@ once the left knee healed.

 

In a January 2004 office note, Dr. Kittleson indicated that the employee=s left knee was still sore but gradually improving, that the employee was not yet at MMI with regard to her left knee, and that he (Dr. Kittleson) wanted to see the employee again at the one-year point following her left knee surgery.  With regard to the right knee, Dr. Kittleson wrote that the employee=s Apatella does tend to tip laterally but beyond that the incidental x-rays of the right knee look just fine.@  Dr. Kittleson=s office records contain no specific recommendations for further right knee surgery.  The left ankle surgery approved by the compensation judge following the 2001 proceeding has not yet been performed.

 

The matter came on again for hearing before a compensation judge on May 13, 2004, for resolution of the employee=s claim for permanent total disability benefits.  Also at issue was which of the employee=s two work injuries was the controlling event for purposes of determining the applicable law.  The employer and insurer took the position that it was premature to determine whether or not the employee was permanently and totally disabled but that, if the employee was permanently and totally disabled, the 1992 work injury would be the controlling event, meaning that the employer would be liable for supplementary benefits, subject to reimbursement from the Special Compensation Fund [the Fund].  Evidence offered at hearing included select medical records and reports; the report and deposition testimony of Dr. Randall Norgard, the employer and insurer=s independent examiner; and the reports and testimony of Roxanne Tarrant, the employee=s independent vocational expert, and Kathryn Lee, the employer and insurer=s independent vocational expert.

 

In a decision issued on July 29, 2004, the compensation judge concluded that the employee was permanently and totally disabled, as claimed, effective July 24, 2001, the date of her right knee replacement surgery, and that the 1999 injury was the controlling event for purposes of determining the employee=s eligibility for supplementary benefits.  The employer and insurer were ordered to pay permanent total disability benefits accordingly, with no reimbursement from the Fund.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

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 (2004).  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).

 

DECISION

 

1. Permanent Total Disability

 

As a rule, an injured employee is totally disabled if the employee=s Aphysical 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.@^[2]  Schulte v. C.H. Peterson Constr. Co., 278 Minn 79, 83, 153 N.W.2d  130, 133-134, 24 W.C.D. 290, 295 (1967).  An employee is permanently and totally disabled if the total disability is likely to exist indefinitely.  Behrens v. City of Fairmont, 533 N.W.2d 854, 856, 53 W.C.D. 41, 43 (Minn. 1995).

 

In the present case, the employee was 58 years old as of the date of hearing.  She is a high school graduate but has no other formal education or training.  Prior to beginning work for the employer, the employee had been employed for many years in the printing industry.  It is essentially undisputed that she is not physically capable of performing any of the jobs she held prior to her work injuries, and there is no indication that she can expect an offer of any other work from the employer, which apparently never provided her with any rehabilitation assistance of any kind.  The employee lives in Parkers Prairie, Minnesota, and, in addition to her work-related left ankle and bilateral knee problems, she is subject to other medical conditions at least arguably relevant to her employability, including morbid obesity,^[3] diabetes, a history of low back pain, and chronic depression and/or an anxiety disorder, for which she takes medication and receives periodic counseling.

 

The employee has not worked at all since at least July 24, 2001, the date of her right knee replacement, and there is no evidence that any of her treating physicians has released her to work.  Dr. Norgard, the employer and insurer=s independent medical examiner, has indicated that the employee is medically capable of sedentary employment, which he described as sit-down work that would allow the employee to change positions every 30 minutes, with no repetitive kneeling, crouching, or crawling and no stair climbing or balancing activities.  Ms. Lee, the employer and insurer=s vocational expert, concluded that the employee is capable of sedentary employment within the restrictions outlined by Dr. Norgard and that a job search in the employee=s labor market would not be futile.  Ms. Lee also testified that, while the employee is not presently Aplaceable,@ she is employable, and that, under all the circumstances, including the possibility of further improvement and additional surgery, it is premature to determine whether the employee is permanently and totally disabled.  Ms. Tarrant, the employee=s vocational expert, concluded otherwise, testifying that, given the employee=s physical capabilities, the employee=s lack of transferrable skills, and the bleak nature of the relevant labor market with respect to sedentary employment, the employee is in fact permanently totally disabled.  The compensation judge expressly accepted the opinion of Ms. Tarrant on this issue.

 

On appeal, the employer and insurer note initially that none of the employee=s treating physicians has indicated that the employee is permanently and totally disabled.  However, the question of permanent total disability is dependent primarily upon the employee=s vocational potential, not the employee=s physical condition per se.  See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983); Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1994).  As such, the lack of a medical opinion as to permanent total disability  is not dispositive.

 

The employer and insurer also contend that the compensation judge erred by accepting the opinion of Ms. Tarrant, in that Ms. Tarrant mistakenly assumed that Drs. Monsein and Dale had permanently restricted the employee from working, and in that Ms. Tarrant did not take into account the possibility that the employee=s functional ability might still improve, especially if the employee undergoes additional surgery.  We are not persuaded.

 

Ms. Tarrant testified that the employee would be unlikely to secure employment in her labor market even if she were able to work within the sedentary restrictions recommended by Dr. Norgard.  As for the possibility that the employee=s condition might improve with additional surgery, we note that there is no evidence in the record establishing that Dr. Kittleson has proposed any specific surgery to treat the employee=s continuing right knee complaints, much less that any significant change in the employee=s functional status could be expected from surgery.  In fact, Dr. Norgard reported that no further right knee treatment was necessary and, with respect to the approved left ankle surgery, he testified that the employee would remain limited to sedentary employment.  The labor market survey conducted by Ms. Lee, the employer and insurer=s vocational expert, disclosed no current openings for sedentary jobs, and Ms. Lee acknowledged that recently-filled jobs identified as possibilities for the employee would not in fact be physically suitable.^[4]

 

In the end, this case hinges simply on the judge=s choice between conflicting vocational opinions.  Because we cannot conclude that the judge erred in accepting Ms. Tarrant=s opinion, and because substantial evidence otherwise supports the judge=s decision, we affirm the award of permanent total disability benefits.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).

 

2.  Controlling Event

 

It is undisputed that both the employee=s 1992 injury and her 1999 injury substantially contribute to her permanent total disability.  Finding the case indistinguishable in any relevant way from Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987), the compensation judge concluded that the 1999 injury was the Acontrolling event@ for purposes of determining applicable law.  As such, the judge concluded that the employee was not entitled to supplementary benefits from the employer and that the employer had no corresponding right to  reimbursement from the Fund.^[5]

 

On appeal, the employer and insurer argue that the present case involves a Aunique@ fact situation not addressed by prior case law, namely, that the employee continued to suffer from the effects of the 1992 injury prior to and simultaneously with the occurrence of the 1999 injury and that the employee would have continued to be disabled due to the 1992 injury even without having sustained the injury in 1999.  Therefore, the employer and insurer contend, the employee=s rights with respect to the 1992 injury were vested, rather than contingent, differentiating the case from Joyce.  We are not persuaded by any of the employer and insurer=s arguments on this issue.

 

The determination of which of several injuries is the controlling event Ais a legal conclusion which follows from factual findings that an injury is either a new, separate injury or a consequential injury, recurrence, or mere temporary aggravation.@  Busch v. Advanced Maintenance, 659 N.W.2d 772, 778-79, 63 W.C.D. 277, 284 (Minn. 2003).  If the employee=s 1999 injury in the present case is a new, separate injury, the 1999 injury is the controlling event Aas a matter of law.@  See id. at 779, 63 W.C.D. at 285.  In our view, the issue is no more complicated than that.

 

Because the employee=s 1999 right knee injury was a new, separate injury that substantially contributes to the employee=s disability, the 1999 injury is the controlling event for purposes of determining the law governing the rights and liabilities of the parties as to permanent total disability and supplementary benefits.  We therefore affirm the judge=s decision on this issue.