LARRY SIGURDSON, Employee/Appellant, v. JOYCE, INT'L, and CNA INS. CO., Employer-Insurer/Cross-Appellants, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 22, 2005

 

No. WC05-137

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee had been regularly employed at an increasing hourly wage for a considerable period of time, and where it was undisputed that there had been no significant change in his low back condition for ten years and he had not treated with a doctor for that condition in eight years, the compensation judge=s conclusion that the employee was not unable to secure anything more than sporadic employment resulting in insubstantial income was not clearly erroneous and unsupported by substantial evidence.

 

REHABILITATION - ELIGIBILITY.  Where no job search or other rehabilitation efforts had been requested by the employer and insurer for nine years prior to their request for rehabilitation assistance, where the restrictions under which the employee had been working during that time were substantial support for the judge=s finding that additional rehabilitation services would be futile, and where the judge=s decision was supported by expert vocational and medical opinion, the compensation judge=s conclusion that renewed rehabilitation assistance would not be appropriate was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by: Pederson, J., Johnson, C.J., and Rykken, J.

Compensation Judge: Gary M. Hall

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant.  Thomas F. Coleman, Cousineau, McGuire & Anderson, Chartered, Minneapolis, MN, for the Cross-Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s denial of his claim for permanent total disability benefits, and the employer and insurer cross-appeal from the judge=s determination that the employee was not a Aqualified employee@ for purposes of rehabilitation services.  We affirm.

 

BACKGROUND

 

Larry Sigurdson, the employee in this case, is currently fifty-seven years old and living in Albert Lea, Minnesota.  He graduated from Albert Lea High School in 1967, and thereafter he attended technical college in Austin for about six months, where he studied auto mechanics but did not complete the course or obtain certification.  In 1968, Mr. Sigurdson enlisted in the Army, and he eventually completed a tour of duty in Vietnam and was honorably discharged in 1971.  Thereafter he worked as a machine operator, dockworker, forklift operator, and assembly production worker.

 

Mr. Sigurdson [the employee] began working for Joyce International [the employer] in October of 1987.  On August 25, 1988, he sustained a work-related injury to his lower back while loading heavy boxes of hardware onto a truck.  The employee initially sought chiropractic care and then obtained conservative medical treatment at Health Reach in Albert Lea.  The employee=s pain continued to worsen, and, on November 27, 1989, he underwent an L4-5 laminectomy/discectomy in Mason City, Iowa.

 

The employee was off work for about nine months following his surgery and then returned to work for the employer in a light-duty capacity.  Although the employee was provided with light-duty assignments, the employee=s symptoms progressed, and he reported no benefit from his surgery.  In 1993, the employee was referred to spine surgeon Dr. Richard Salib, who recommended a spinal fusion.  On October 21, 1993, Dr. Salib performed a two-level anterior/posterior lumbar fusion at L4 through S1.

 

In April of 1994, about half a year after his surgery, the employee reported to Dr. Salib that his leg symptoms were essentially the same as they had been preoperatively and that his back pain was worse.  At that time, the doctor released the employee to light duty work, initially limited to two hours a day and with an objective of working eventually into full-time status.  The employer was no longer able to provide work for the employee within these restrictions, and the employee was assigned a qualified rehabilitation consultant [QRC] to assist him in searching for employment.  Vocational testing was completed by the employee=s QRC, Donna Boysen, and the employee began job search on June 13, 1994.

 

The employee returned to see Dr. Salib on August 31, 1994, and the doctor concluded that, overall, the employee had not benefitted from surgery.  He recommended that the employee continue with very light-duty work restrictions and that he look for work at four hours a day or twenty hours a week within a limited driving radius of twenty-five miles.  About two weeks later, on September 12, 1994, the employee obtained a part-time job as an activities assistant with the YMCA in Albert Lea.  His hours at this job apparently varied from ten to fourteen per week, and he was paid $4.75 per hour.  While working at his YMCA job, the employee continued to search for other jobs with the assistance of a placement specialist.

 

By the spring of 1995, the employee had been disabled for about a year and a half following his October 1993 fusion surgery, and on April 20, 1995, he was examined at the request of the employer and insurer by Dr. H. William Park.  Dr. Park obtained a history from the employee, reviewed medical records, and performed a physical examination.  In a report of that same date, Dr. Park diagnosed Achronic back pain with failed surgery of fusion at two levels in the lower lumbar spine with persistent mechanical back pain due to deconditioned back muscles.@  He stated that the employee=s prognosis was poor to fair with regard to his ability to get back to any type of work involving any lifting or repetitive bending.  Dr. Park restricted the employee from lifting any more than fifteen pounds and from doing any repetitive bending or prolonged sitting for more than one hour at a time.  He placed the employee at maximum medical improvement [MMI] one year following his October 1993 fusion surgery, and he rated the employee=s whole-body impairment at 22.5% under Minn. R. 5223.0070, subp. 1D.

 

On about June 6, 1995, the employee began working as a security guard for Guardsmark, for whom he has generally worked two eight-hour shifts per week since that time, pursuant to Dr. Salib=s restriction against working more than twenty hours per week.  Shortly after the employee began working for Guardsmark, the employer and insurer paid economic recovery compensation for a 22.5% permanent partial disability, and rehabilitation services were terminated.

 

In September 2003, the employee, although continuing to work sixteen hours per week for Guardsmark, applied for Social Security disability benefits.  The employee reported to the Social Security Administration that his ability to work was limited by his back injury, the fact that he is an insulin-dependent diabetic, and the fact that he has two bad discs in his neck.  He was found to be disabled under Social Security rules on July 1, 1999, and was awarded benefits commencing in September 2002.

 

On September 29, 2003, the employee was seen for a vocational/psychological evaluation by licensed psychologist and certified rehabilitation counselor Phillip Haber.  The evaluation included an individual psychological examination, group psychometric testing, and work sample evaluation.  In a report issued October 28, 2003, Dr. Haber opined that the employee is no longer capable of sustained occupational activity in any job that exists within the United States economy.  He indicated that his opinion was based on the employee=s Aextremely poor performance@ in the work sample evaluation and on observations of the employee=s increasing physical discomfort over the three consecutive days of testing in his clinic.  Dr. Haber also noted that the employee complained of some significant pain and discomfort on his part-time job with Guardsmark and that more recently he had been experiencing even more discomfort.  Dr. Haber concluded by stating that, in his opinion, there really existed no rehabilitative opportunities for the employee by which he could be expected to earn more than he currently earned and that the employee=s current part-time employment represented an inconsequential level of income when compared to his salary and benefits with the employer and his ability then to work full time.

 

On November 19, 2003, the employee filed a claim petition, seeking payment of permanent total disability benefits continuing from November 27, 1989.

 

The employee was seen for an orthopedic evaluation by Dr. Paul Wicklund at the request of the employer and insurer on April 5, 2004.  Dr. Wicklund obtained a history from the employee, reviewed pertinent medical records, and performed an examination.  In a report issued on that same date, Dr. Wicklund diagnosed a solid L4-to-sacrum fusion with subjective low back pain and left leg pain.  Dr. Wicklund stated that he saw no reason for the employee to be restricted with regard to his work hours.  He thought that the employee could work eight hours a day, five days a week within restrictions against repetitive bending, twisting, stooping, or lifting more than thirty pounds.  He did not believe that the employee was permanently and totally disabled.

 

Based on Dr. Wicklund=s report indicating that the employee was capable of working eight hours per day five days per week, the employer and insurer filed a rehabilitation request that rehabilitation services be provided to the employee.  They argued that the employee was substantially underemployed in his position as a security guard and that he was capable of working longer hours and earning a higher wage.

 

On August 3, 2004, the employee was seen for a vocational evaluation by vocational expert L. David Russell, on behalf of the employer and insurer.  In a report dated September 24, 2004, Mr. Russell noted that the employee had looked for work for about a year before settling into his part-time position as a security guard.  The employee had advised Mr. Russell that he had not sought alternative employment since he began his job at Guardsmark.  The employee had stated that he enjoyed his job and did not feel that he had adequate endurance to work more hours in this or any other job.  Mr. Russell indicated that his opinions regarding the employee=s employability were dependent on which doctor=s restrictions were applied.  He stated that, assuming Social Security examiner Dr. William Paul=s restrictions, that the employee was able to do only sub-sedentary work, the employee would likely be considered vocationally permanently and totally disabled.^[1]  On the other hand, assuming application of Dr. Salib=s merely light-duty restrictions, against working more than twenty hours per week, Mr. Russell opined that the vocational analysis became more difficult.  Based on these restrictions, and given the employee=s vocational background and locale, Mr. Russell opined that Ait appears that he is physically and economically suitably employed and that his current earnings are neither insubstantial nor irregular.@  If Dr. Wicklund=s full-time light-to-sedentary-duty work restrictions were applied, Mr. Russell believed that opportunities for higher wages did exist for the employee and that he was not permanently and totally disabled.  Given those restrictions, Mr. Russell concluded, the employee did have residual employability and had demonstrated ability to sustain occupational activity for many years.  If the employee continued to hold to a two-day work week, however, Mr. Russell concluded that the employee had no vocational rehabilitation alternatives, as the employee was already working suitably within that limit.

 

The employee=s claim for permanent total disability benefits and the employer and insurer=s request to provide rehabilitation services came on for a hearing before a compensation judge at the Office of Administrative Hearings on November 19, 2004.  The employee, Dr. Haber, and Mr. Russell testified at hearing, and Dr. Wicklund testified by deposition.  In a Findings and Order issued January 26, 2005, the compensation judge denied the employee=s claim for permanent total disability benefits, concluding that the employee=s employment was not sporadic and that his income was not insubstantial.  Further, adopting the restrictions recommended by Dr. Salib rather than those recommended by either Dr. Paul or Dr. Wicklund, the judge concluded also that additional rehabilitation assistance would be futile and therefore inappropriate.  The employee appeals and the employer and insurer cross-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

 

In general, an employee is permanently and totally disabled Aif his physical condition, in combination with his age, training, experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in 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).  APermanent 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).  In Minnesota, a marginal income or a limited capacity to earn does not preclude a determination of permanent total disability.  See Green v. Schmahl, 202 Minn. 254, 278 N.W.2d 157, 10 W.C.D. 209 (1938); Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W.2d 228, 27 W.C.D. 786 (1975).

 

At Finding 8, the compensation judge concluded that the employee=s security guard position with Guardsmark represented more than sporadic employment resulting in an insubstantial income, and therefore he denied the employee=s claim for permanent total disability benefits.  The employee contends that, in denying his claim, the judge applied an unduly restrictive test and too narrowly focused on the regularity of the employee=s two-day, sixteen-hour-per-week job rather than on the significance of the employee=s income.  Accepting the compensation judge=s perspective, he contends, would preclude even an employee working one hour per week every Monday morning from being found permanently and totally disabled.  We are not persuaded.

 

While there is some basis in the judge=s findings and order for the employee=s arguments, we believe that there exists substantial evidence in the record to support the judge=s determination on this issue.  First of all, at the time of trial, the employee had consistently worked a sixteen-hour schedule as a security guard for going on ten years.  The employee generally worked a schedule of Friday and Monday one week, alternating with Saturday and Sunday the next week.  The judge=s finding that the employee worked a regular schedule, earned a regular wage, and has done so regularly for many years is supported by the evidence and supports in turn his further finding that the employment was not Asporadic.@

 

At trial, Dr. Haber testified that the employee=s current earnings were insubstantial when compared to the employee=s date of injury wage, benefit package, and ability to work full time.  Citing as authority this court=s decisions in Weishaar v. Radisson Hotel South, slip op. (W.C.C.A. Sept. 24, 2002), and Sorvick v. City of Crystal, slip op. (W.C.C.A. Nov. 13, 2002), the judge rejected application of a comparison standard for determining what constitutes insubstantial income for purposes of permanent total disability.  See also Detmar v. Kasco Corp., slip op. (W.C.C.A. Apr. 28, 2000).  Here, the employee has been regularly employed at an increasing hourly wage for a considerable period of time, it is undisputed that there has been no significant change in his low back condition since 1995, and he has not treated with a doctor for his low back since 1997.  Whether an employee=s earnings represent an insubstantial income is a fact question 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 v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541, 36 W.C.D. 133, 138 (Minn. 1983); see also Zinniel v. Sharpe Mfg. Co., slip op. (W.C.C.A. Sept. 15, 1989); Tyge v. Sawmill Creek Lumber, slip op. (W.C.C.A. Jan. 17, 1991); Thomas v. Oscar J. Boldt Constr., 41 W.C.D. 441, 443 (W.C.C.A. 1988).  In this case, the judge determined that the employee=s earnings of approximately $600.00 per month were not insubstantial, and we cannot say that this determination by the judge was unreasonable.  Accordingly, we affirm.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Rehabilitation Services

 

The compensation judge determined that the restrictions placed on the employee by Dr. Salib in 1995 were the most reflective of the employee=s abilities and that the employee was currently working in a position, and for a wage, consistent with his earning capacity.  He found that an additional four hours per week were not available to the employee from his current employer and that any additional job search or rehabilitation services would be futile in this case and would not be appropriate.  He therefore denied the employer and insurer=s request to initiate rehabilitation services.  The employer and insurer contend that this conclusion of the judge is unsupported by substantial evidence.  They argue (1) that the compensation judge erred when he found that no job search or other rehabilitation efforts had been requested by the employer and insurer since 1995, (2) that the only medical opinion supported by substantial evidence is that of Dr. Wicklund, who found the employee capable of more work than he is doing, and therefore, by extension, in need of further rehabilitation assistance, and (3) that substantial evidence does not exist to support the judge=s findings that the employee=s current earnings are reflective of the employee=s earning capacity.  We are not persuaded.

 

The employer and insurer argue that, contrary to a finding of the compensation judge, a rehabilitation request was filed in June of 2004 based on the medical report of Dr. Wicklund issued April 5, 2004, in which Dr. Wicklund opined that the employee was capable of working eight hours per day, five days per week, with restrictions.  We concede that fact and the fact that the judge did issue a finding essentially contrary to it, but we conclude that that finding was inadvertent and is of little importance.  It is clear that the judge was aware of the employer and insurer=s rehabilitation request, and he made reference to that filing in his findings and order.  Further, the judge specifically addressed the issue of whether additional rehabilitation services were appropriate in this case, concluding that they were not.  What is correct about the judge=s finding is the fact that no job search or other rehabilitation efforts had been requested by the employer and insurer between 1995 and the filing of the rehabilitation request on June 7, 2004.

 

The employer and insurer argue that Dr. Wicklund reviewed the employee=s medical records, performed a physical examination, and rendered opinions based on a current assessment of the employee=s condition.  In contrast, they argue, Dr. Salib=s restrictions are ten years old and cannot be considered worthy of the court=s reliance.  In addition, they point out, the employee has not treated for his low back since 1995, and there is no evidentiary support for the judge=s finding that the employee is experiencing worsening symptoms.  We reiterate however, as we have often before, that it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Here, the employer and insurer themselves have argued that there has been no change in the employee=s back condition since 1995.  If that is true, of course, restrictions placed on that same condition by Dr. Salib in 1995 are as valid today as they were when first imposed.  The judge found the employee to be a credible witness in testifying that his back symptoms had worsened with an increase in activities.  But, even if, contrary to his testimony, the employee=s condition had not worsened, the limitations imposed by Dr. Salib on the employee=s work ability, based upon two failed back surgeries and ongoing chronic pain, remain sufficient support for the judge=s finding that additional rehabilitation services would not be appropriate.  And Dr. Park, the employer and insurer=s examiner in 1995, essentially agreed in 1995 with Dr. Salib=s diagnosis.

 

The employer and insurer=s contention that substantial evidence does not exist to support the judge=s finding that the employee=s current earnings are reflective of the employee=s earning capacity is again based on Dr. Wicklund=s opinions, together with the opinions of Mr. Russell to the extent that they are based on Dr. Wicklund=s restrictions.  As we have already noted, however, the compensation judge specifically rejected the opinion of Dr. Wicklund in favor of that of Dr. Salib, and we have affirmed that choice of the judge.  As such, Dr. Wicklund=s assessment cannot form the basis for those opinions, such as Mr. Russell=s, regarding the efficacy of additional rehabilitation services upon which the employer and insurer rely.  Dr. Haber stated in his report of October 29, 2003, that Athere really exists no rehabilitative opportunities for Mr. Sigurdson where he could be expected to earn more than he currently earns.@  At trial, Dr. Haber testified,

 

Actually I think he=s very well suited to what he=s doing now.  I don=t think he=s going to be more employable at a higher rate of pay or more hours.  I think where he is right now is where he ought to be and he=s lucky to be there.

 

Similarly, in that part of his report of September 24, 2004, in which he applied Dr. Salib=s restrictions, Mr. Russell opined as follows:

 

Mr. Sigurdson reports working steadily and regularly for more than  8 years and has increased his wages from [] $5.00 to nearly $9.00 per hour.  Within the confines of Dr. Salib=s restrictions and considering Mr. Sigurdson=s vocational background and locale, it appears that he is physically and economically suitably employed and that his current earnings are neither insubstantial nor irregular.

 

Finding it reasonable, we affirm the compensation judge=s determination that any additional job search or rehabilitation services in this case would be futile and are not appropriate.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.