NILA J. FREEMAN-FONTAINE, Employee, v. MICHAELS STORES, INC., and KEMPER INS. COS., Employer/Insurer-Appellants, and PARK AVE. THERAPIES, INC., MEDICA by HEALTHCARE RECOVERIES, ST. LUKE=S, ST. MARY=S DULUTH CLINIC HEALTH SYS., FOND DU LAC RESERVATION HEALTH PLAN, and BLUE CROSS/BLUE SHIELD OF ILL., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 7, 2005

 

No. WC04-299

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - THRESHHOLD; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 5.(2).  In determining whether an employee has met the statutory threshold of permanent partial disability necessary to qualify for permanent total disability, all of the ratable permanent impairment included in the total rating need not be related to the work injury and all permanent impairment need not be a factor affecting the employee=s wage loss or ability to work.

 

PERMANENT TOTAL DISABILITY; JOB SEARCH.  A diligent job search is not a legal  prerequisite to a finding of permanent total disability, and a job search is not required where medical and vocational evidence in the record sufficiently demonstrates that a job search would be futile, although an employee=s job search may go to the evidentiary weight of her claim that she is totally disabled.

 

Affirmed.

 

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

Compensation Judge:  Nancy Olson

 

Attorneys:  Sean M. Quinn, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent.  Devin J. Murphy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s left ankle injury represents a substantial contributing cause of her permanent total disability, and from the finding that the employee has satisfied the statutory thresholds required for a determination of permanent total disability.  Concluding that substantial evidence of record supports the compensation judge=s findings, we affirm.

BACKGROUND

 

Nila Freeman-Fontaine began working for the employer, Michaels Stores, Inc., in May 1996.  The employer operates an arts and crafts store in Duluth, Minnesota.  The employee initially worked part-time, at an average of 15 hours per week.  Within approximately six months of  commencing employment, her weekly work hours ranged between 20 to 35 hours, with additional hours during the Christmas season.  During the last several months of the employee=s employment before her work injury, she worked an average of 35 to 36 hours per week and earned a weekly wage of $286.88.

 

The employee=s work included various tasks, including unloading delivery trucks, stocking shelves, designing and building product displays such as arches and storyboards, creating wreaths for display, and performing various cleaning duties.  On August 23, 2002, the employee sustained an injury to her left ankle while climbing down a ladder.  On that date, the employee was 53 years old.  The employer and its insurer, Kemper Insurance Companies, admitted primary liability for the employee=s left ankle injury.

 

The employee sought emergency medical treatment for her ankle, was diagnosed with an anterior talofibular ligament sprain of the left ankle, and was provided with an air cast splint.  She later consulted Dr. Wade Lillegard, Duluth Clinic, who diagnosed an inversion injury, with persistent anterolateral synovitis.  He restricted the employee from work entirely for approximately one to two weeks, and then released her to return to work in a part-time, modified position and also prescribed physical therapy.   The employee returned to work for the employer in a modified sedentary position, and was provided the services of a qualified rehabilitation consultant (QRC).  By mid-January, 2003, however, the employer determined that it could no longer provide work to the employee within her physical work restrictions, and so the employee=s work with employer was terminated.

 

The employee continued to receive treatment for her left ankle, and on January 23, 2003, she underwent a steroid injection into her ankle as recommended by Dr. Lillegard.  She experienced a severe allergic reaction to the injection, for which she sought emergency room treatment and was prescribed Benadryl medication on a long-term basis.  The employee=s long- term use of Benadryl caused acid reflux problems or chronic gastritis which eventually required an upper endoscopic procedure for evaluation.  The employee experienced similar allergic reactions in the future to certain medications, and by mid-2003 was diagnosed as having multiple drug sensitivity, so was limited in the type of medications she could tolerate.

 

The employee has also treated with Dr. Lillegard for a right shoulder condition.  She earlier claimed that she sustained specific or Gillette^[1] injuries to her right shoulder on or about December 13, 2000, and August 15, 2002, as a result of her work activities with the employer.  The employee sought medical treatment for her shoulder condition and ultimately underwent arthroscopic surgery on April 25, 2003, which included debridement and acromioplasty, with arthroscopic distal clavicle excision and rotator cuff repair.  Medical records refer to a history of earlier falls and right shoulder pain and also reflect treatment the employee received between 2000 and 2003 for symptoms in her shoulder, neck and right arm.

 

The employee remained off work after mid-January 2003, and by June 2003 was released to return to work and was assigned work restrictions for both her right shoulder and her left ankle.  She commenced a job search, with the assistance of her QRC and a job placement specialist.  According to the employee=s testimony and the rehabilitation records in evidence, the employee applied for a variety of jobs, including work in retail and office settings, the hospitality industry, schools and medical facilities.

 

Certain factors have made the employee=s job search challenging, including that she has no high school diploma or general education diploma (GED), and that she is diagnosed as having dyslexia, which causes difficulty with reading job postings and completing job application forms.  The employee=s dyslexia limits her ability to perform most clerical jobs, and her physical work restrictions restrict her from performing jobs which require standing for long periods of time, including retail, janitorial, restaurant work, other tourism-related jobs or heavy labor work.  In addition, according to testimony by the employee=s QRC, a majority of employers, perhaps as many as 85%, typically will not hire someone who lacks a high school diploma or GED.

 

The nature of the employee=s job search has been disputed.  The employee=s QRC testified that the quality and quantity of the employee=s job search was lacking.  For example, the job placement plan and agreement, initially entered into in 2003, required the employee to complete 20 to 25 job contacts per week but she only completed an average of 10 to 20 per week.  The QRC also testified that it was not unusual for the quality of the employee=s job search to decline over time, in view of her barriers to employment and her discouragement resulting from no positive results after a year of searching for work.  However, the QRC recommended continued job search.  She also testified that she was hopeful the employee would be able to become re-employed and that, in her opinion, the employee is not permanently totally disabled from employment.

 

On May 30, 2003, the employee filed a claim petition, claiming that she sustained specific or Gillette injuries to her right shoulder on December 13, 2000, and August 15, 2002, and seeking entitlement to permanent total disability benefits from January 13, 2003, to the present and continuing, based on her left ankle injury and alleged shoulder injury.  The employee later made an alternative claim for entitlement to temporary total disability benefits continuing from January 20, 2004.  In addition, the employee sought benefits based on 9% permanent partial disability to the body as a whole, resulting from her shoulder injury.  She also sought payment for certain medical expenses and reimbursement of lodging and meal expenses incurred while seeking medical treatment at the Mayo Clinic.

 

By letter report of October 13, 2003, Dr. Lillegard suggested ankle surgery to the employee as an option, advising that she had a A50/50" chance of obtaining symptomatic relief from surgery.  The employee declined surgery at that point.  Dr. Lillegard assigned permanent work restrictions due to the employee=s left ankle condition, limiting her to sedentary duty with limited standing and walking for 30 minutes per hour.  He advised that she do no squatting, Aplanting@ of her foot, twisting, stair climbing, nor lifting over ten pounds.

 

On October 24, 2003, the employee was examined by Dr. Jack Drogt, orthopedist, at the request of the employer and insurer.  Dr. Drogt diagnosed a healed Grade 1 left ankle sprain and noted that the employee had pain and stiffness in her shoulder, consistent with adhesive capsulitis, and concluded that the shoulder had been incompletely rehabilitated.  He concluded that the employee=s ankle injury was related to her work but that the shoulder injury was not related to her work activities.  Dr. Drogt found that the employee had required work restrictions due to her left ankle condition for only six months post-injury, and that by then could have returned to work in a normal capacity.  He also concluded that the employee had reached maximum medical improvement from her ankle injury, and assigned a 0% permanent partial disability rating, according to Minn. R. 5223.0520, subp. 2.C.^[2]

 

In addition to her ankle and shoulder condition, the employee has received medical treatment for various conditions.  As of December 9, 2003, the Social Security Administration determined that the employee met the medical requirements for disability benefits, based on her Aleft ankle sprain, depression, right shoulder, fibromyalgia, knee pain, dyslexia and gastrointestinal problems.@  (Ee. Exh. Y)  According to the parties= stipulation at hearing, the employee was awarded Social Security disability benefits as of June 1, 2004.

 

In mid-June 2004, the employee re-injured her left ankle.  The employee reported to Dr. Lillegard that although her ankle pain had diminished over a long period of time, it Agave out@ on her while walking, and she fell.  Dr. Lillegard concluded that the employee=s anterolateral impingement caused the ankle to give out, causing an inversion injury and a chip fracture off the medial aspect of the talus.  Following this incident, Dr. Lillegard restricted the employee to Asitting work.”

 

The employee=s claim petition was addressed at a hearing on August 3, 2004.  In Findings and Order served and filed October 4, 2004, the compensation judge found that the employee continues to have significant restrictions due to her left ankle injury, and that the employee has been permanently totally disabled as of July 23, 2004, based on a combination of her age, education, learning disabilities, the current labor market, and the employee=s physical work restrictions related to her left ankle.  The compensation judge also found that the employee has satisfied the threshold level of permanent partial disability required for a determination of permanent total disability, as set forth in Minn. Stat. ' 176.101, subd. 5.^[3]  She therefore ordered payment of permanent total disability benefits from July 23, 2004, to the present, along with interest and costs, subject to a stipulated overpayment credit with appropriate offsets for Social Security Disability Income.

 

The employer and insurer appeal from the compensation judge=s finding that the employee is permanently totally disabled, and specifically argue that the employee does not have significant work restrictions due to her left ankle injury, that she has not satisfied the statutory threshold necessary for a determination of permanent total disability, and that she conducted an inadequate job search.

 

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).

 

"[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), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

The compensation judge found that the employee is permanently totally disabled as a substantial result of her work-related ankle injury of August 23, 2002.  An employee is permanently totally disabled when A[her] physical condition, in combination with [her] age, training, and experience, and the type of work available in [her] community, causes [her] 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).  Thus, a determination of permanent total disability has both a vocational and a medical component.  McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983).  In addition, a determination of permanent total disability also requires a certain level of permanent partial disability, as outlined in Minn. Stat. ' 176.101, subd. 5.^[4]

 

Permanent Partial Disability Threshold

 

The compensation judge first analyzed whether the employee had satisfied the statutory threshold of permanent partial disability necessary to qualify for permanent total disability benefits.  Because Ms. Freeman-Fontaine was 53 years old at the time of her injury in 2002, she must have a permanency rating of at least 15% permanent partial disability of the body as a whole in order to  meet the statutory threshold for permanent total disability benefits.  See Minn. Stat. ' 176.101, subd. 5(2)(b).  Even though the employee was assigned a 0% permanency rating for her work-related injury to her left ankle, the compensation judge found that the employee exceeded the statutory thresholds for permanency, based on her rating of 9% for her right shoulder condition and 20% for an earlier hysterectomy surgery.

 

Both of those ratings relate to non-work-related conditions.  However, as this court stated in Frankhauser v. Fabcon Inc., 57 W.C.D. 239, 252 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997), Aan employee who has sufficient ratable permanent partial disability from any cause may establish entitlement to benefits for permanent total disability if he or she meets the remaining eligibility requirements@ for permanent total disability.  (Emphasis in original.)  Therefore, in determining whether an employee has met the statutory threshold, it is not necessary that all ratable permanent impairment be related to the work injury nor that it be a factor affecting the employee=s wage loss or ability to work.  Indihar v. State, Dep=t of Commerce, 64 W.C.D. 437 (W.C.C.A. 2004);  see also Wensman v. St. John=s University, 64 W.C.D. 490 (W.C.C.A. 2004), summarily aff=d (Minn. Oct. 27, 2004); Makowsky v. St. Mary=s Medical Ctr., 62 W.C.D. 409, 415-19 (W.C.C.A. 2002); Shelton v. National Painting & Sandblasting, 61 W.C.D. 230, 244-45 (W.C.C.A. 2000); Metzger v. Turck, 59 W.C.D. 229 (W.C.C.A. 1999).  The parties stipulated that the employee=s partial hysterectomy would be rated at 20% of the whole body under the workers= compensation rules.  In an unappealed finding, the compensation judge also determined that the employee had a 9% whole body permanency rating relative to her shoulder condition.  We therefore affirm the compensation judge=s finding that the employee has satisfied the permanency threshold of 15% whole body impairment set forth in Minn. Stat. ' 176.101, subd. 5(2)(b).

 

Work Restrictions Related to Left Ankle Injury

 

When assessing an employee=s claim for permanent total disability benefits, however, the crucial issue is not the degree of permanency an employee has sustained as a result of her work injury, which in this case is 0%, but whether that work injury substantially contributes to the employee=s disability from work.  The employer and insurer argue that substantial evidence does not support the compensation judge=s findings that the employee remains restricted as a result of her ankle injury and that the injury is a substantial contributing cause of the employee=s disability.  The employee=s medical records, including those of Dr. Lillegard, document the work restrictions in place since the employee=s 2002 injury.  The compensation judge specifically determined that the employee=s left ankle injury, although rated at 0%, represents a substantial contributing cause of the employee=s disability.  At Finding No. 5, the compensation judge stated as follows:

 

The employee has significant restrictions due to the left ankle injury.  The compensation judge accepted Dr. Lillegard=s diagnosis of Aanterolateral impingement of the left ankle@ (Exhibit T) and his restrictions for the employee due to the ankle condition of sedentary work with no more than 30 minutes on her feet per hour.  The compensation judge rejected Dr. Drogt=s opinion that the ankle injury had healed and the employee had no restrictions due to this injury.  (Exhibit 3.)

 

It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony and opinion.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  The compensation judge accepted the opinion of the employee=s treating physician concerning the employee=s permanent work restrictions related to her left ankle injury.  As we find no foundational defect in Dr. Lillegard=s opinion, we conclude that the record as a whole supports the judge=s conclusion that the employee=s left ankle condition remains a substantial contributing cause of her permanent total disability.

 

Job Search

 

The employer and insurer appeal from the compensation judge=s finding that the employee conducted a reasonable and diligent job search, and argue that although employment opportunities are available to the employee, she did not put forth sufficient effort to secure employment, nor cooperate with her rehabilitation plan, to justify a conclusion that she is permanently totally disabled.  A diligent job search is not a legal prerequisite to a finding of permanent total disability, 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, 879, 47 W.C.D. 136, 142 (Minn. 1992).  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 she is totally disabled.  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-189, 30 W.C.D. 426, 432 (Minn. 1978) (citations omitted); 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@).

 

In this case, the employee conducted a job search, with the assistance of a QRC and two different placement specialists.  By mid-April 2004, she also worked two hours per week with a representative from Access North, Center for Independent Living of Northeastern Minnesota, who assisted her with completing job applications.  In July 2004, the employee began working with FlexWork, a training facility in Duluth, where she received instruction in keyboarding.  The  employee was granted interviews with some prospective employers, contrary to the judge=s statement that she had received no interviews, but, by the time of the hearing, she had received no job offers.  However, the employer and insurer argue that the employee conducted an inadequate job search, and that nearly every report from the QRC and placement vendors contains statements addressing the employee=s failure to meet even the minimum requirements of the Job Placement Plan and Agreement.

 

There is evidence that the employee self-limited her participation in a job search.  For example, according to the rehabilitation reports, the employee repeatedly focused on her limited reading skills and physical disabilities, but evidently did not avail herself of free tutoring offered at the Arrowhead Economic Opportunity Agency.  She hesitated to search for jobs in Duluth because of the commute, even though she had commuted from Cloquet to Duluth throughout the time she worked for the employer.  The employee=s second placement vendor expressed concerns that the employee=s job search efforts were becoming Aroutine and that she was not making any special effort in conducting her initial employer contacts for follow up contacts.@  The records document that she did not timely follow-up on a majority of the job leads provided to her by the rehabilitation professionals.

 

The employee asserts that the job search tasks were extremely difficult and frustrating for her, due in part to her difficulties with reading and the mistakes she made while completing job applications.  However, she argues that she was Adoing the best under the circumstances@ and that there was no testimony or other evidence that she did not cooperate with the rehabilitation plan.  In addition, where, as here, the employee has worked with a QRC and placement vendor and had a rehabilitation plan in effect, the focus is less on the actual job search by the employee than on whether the employee made a good faith effort to cooperate with the rehabilitation plan.  Boeder v. Minnesota DNR, slip op. (W.C.C.A. Aug. 7, 2003) (cites omitted); Johnson v. Inver Grove Ford, slip op. (W.C.C.A. Aug. 20, 2002); Dzuik v. University of Minn., slip op. (W.C.C.A. Mar. 15, 1999).

 

The compensation judge addressed the issue of the employee=s job search.  She concluded that while the employee=s job search Awas not perfect,@ it was Asufficiently diligent,@ that the employee made a good faith effort to return to work with the employer from September 2002 through January 2003, and thereafter made a good faith job search for close to a year with no success.  The compensation judge cited to the following factors that formed the basis for her conclusion that it was unlikely the employee would be able to obtain employment in the Duluth/Cloquet job market:

 

1.  The employee=s physical work restrictions related to her left ankle injury prohibit her from standing for significant periods of time and therefore from performing retail, janitorial or most heavy labor work.

 

2. The employee=s dyslexia  complicated her job search due to difficulties reading job advertisements and completing job applications, and also prevents the employee from performing most clerical jobs.

 

3.  The employee has neither a high school diploma or GED.

 

4.  The compensation judge characterized the local job market in the Duluth/Cloquet area as being Afar from robust at this time.@

 

5.  The employee had found no employment, even though she had been engaged in a job search since 2003.

 

Although it has both a medical and a vocational component, cf. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983), the question of whether an employee has met the burden of proving permanent total disability is ultimately a question of fact for the compensation judge.  See Atkinson v. Goodhue County Co-op Elec. Ass=n, 55 W.C.D. 150, 160 (W.C.C.A. 1996), citing McClish, 336 N.W.2d at 541, 36 W.C.D. at 138.  The record available for the compensation judge=s review included the employee=s medical records, rehabilitation records documenting the rehabilitation assistance and job leads she received from her QRC and placement vendors, the job logs completed by the employee, and testimony by the employee, her QRC, a former co-employee and supervisor at Michaels, and the current Michaels store manager.  Based on that evidence, the compensation judge concluded that the employee had been motivated to return to work for the employer following her injury, that the employee=s post-injury job search was sufficiently diligent, and that various factors limited the likelihood that the employee would find employment in the Duluth/Cloquet labor market.  She found that by July 23, 2004, when the employee was 90 days post maximum medical improvement, it was clear that the employee=s physical condition was not likely to improve, and that the employee had been in job search for approximately one year, which Aprovided the factual evidence that the employee was unlikely to find employment.@  In summary, the compensation judge stated that she found Athe evidence compelling that this employee was not likely to find any significant employment and the ankle injury was a substantial contributing cause of this inability to find employment.@

 

Based upon our review of the record as a whole, we conclude that the evidence of record supports the compensation judge=s finding that the employee is permanently totally disabled as a substantial result of her work-related left ankle injury.  We therefore affirm.  See Hengemuhle  v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).