STEVEN R. TURNER, Employee, v. EVTAC MINING and CNA CLAIMPLUS, Employer-Insurer/Appellants, and IRON RANGE REHAB CTR. and ORTHOPAEDIC ASSOCS. OF DULUTH, P.A., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 25, 2006

 

No. WC05-264

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee had worked for over twelve years following his work injury with essentially the same permanent restrictions, where the employee=s own QRC clearly suggested that the employee=s job search during the period at issue had been insufficiently diligent and expressly agreed that her labor market survey was very cursory, where there was no medical evidence that the employee could not work full time, where there was expert vocational opinion supportive of the conclusion that Amore than sporadic employment resulting in an insubstantial income@ was available to someone of the employee=s physical condition, age, training, and experience, and where the employee=s own attorney conceded that the job that the employee quit when he was awarded Social Security benefits could perhaps have been modified to better comport with the employee=s restrictions, analysis of the case pursuant to the standard articulated in Schulte v. C. H. Peterson Construction, 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967), resulted in a conclusion that the compensation judge=s award of permanent total disability benefits was clearly erroneous and unsupported by substantial evidence.

 

Reversed.

 

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

Compensation Judge: John Ellefson

 

Attorneys: Diana L. Brennan, Brennan Law Office, Inver Grove Heights, MN, for the Respondent. Thomas F. Coleman, Cousineau McGuire Chartered, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of permanent total disability benefits.  We reverse.

 

BACKGROUND

 

Prior to the work injury that is here at issue, Steven Turner was subject to various neck and back problems consequent to earlier claimed work injuries in March 1985, October 1987, July 1988, October 1989, and February 1990.  On July 18, 1990, Dr. William Fleeson had diagnosed intermittent mechanical low back pain, a disc bulge at L5-S1 without neural compression, and facet spondyloarthropathy.  A lumbar MRI scan on August 2, 1990, had been read to reveal a herniated disc at L1-2 Adeforming the subarachnoid space,@ a disc herniation at L3-4 without evidence of nerve root compression, annular tears at L4-5 and L5-S1 without evidence of nerve root compression, and degenerative disc dehydration at all levels from L3 through S1.

 

On August 6, 1990, four days after the August 2, 1990, MRI scan, Mr. Turner sustained a permanent exacerbation of his preexisting low back condition while lifting a thirty-pound part in the course of his work as an automotive mechanic with EVTAC Mining [the employer].  Mr. Turner [the employee] was forty-three years old on that date and was earning a weekly wage of $611.72.  On the date of his injury, the employee saw Dr. B. C. Pfeifer, who, upon negative x-rays, diagnosed acute lumbosacral strain and prescribed medication, bedrest for three days, and icing of the lower back three times daily.  The employee subsequently came under the care of Dr. James Hendricks, who, on August 13, 1990, prescribed medications and physical therapy, restricted the employee from working,  and referred the employee for a consultation with neurosurgeon Dr. Robert Donley.  Dr. Donley saw the employee on September 17, 1990, and concluded that surgery was not indicated, recommending that the employee Aget back to work on a progressive basis@ but anticipating that the employee Awill have intermittent need for therapy throughout his career.@  When he saw the employee again on September 28, 1990, Dr. Hendricks proposed two treatment options:  A[h]e can either return to work with some significant restrictions@ or Afind a totally different type of job, which would be more sedentary in nature.@

 

Since the date of his August 6, 1990, work injury, the employee has received extensive medical treatment and other therapy for his low back condition.  He remained temporarily restricted from working through the end of 1990, and on January 10, 1991, Dr. Hendricks released him to return to work three days a week under a diagnosis of A[r]esolving cervical lumbosacral strain.@  Back pain returned, however, and on January 21, 1991, Dr. Hendricks restricted the employee once again from working, and on January 29, 1991, he referred him for a functional capacity evaluation [FCE], which the employee underwent on January 31, 1991.  The FCE resulted in part in restrictions against the following:  prolonged walking, sitting, or standing; bending and stooping more than about twenty times a day; crawling more than about twenty times a day; crouching more than occasionally; kneeling more than occasionally; pushing or pulling over sixty or fifty-five pounds, respectively, more than fifty times a day; carrying over twenty-five pounds more than eight times a day; lifting or carrying over twenty pounds more than fifty times a day; and using the feet for repetitive movements.

 

The employee=s restrictions, which ultimately became permanent, precluded the employee=s return to his pre-injury job, and on March 13, 1991, the employee underwent vocational testing with placement specialist Eve Winters of Stubbe & Associates, Inc.  This testing resulted in findings that the employee had average reading, spelling, and arithmetic skills and apparent potential for learning and performing in fourteen specified career areas.  The testing indicated that his interest level in eight of these career areas was at least at the 50th percentile, a level sufficient to forecast probable success in the field.  Those eight career areas were as follows: (1) Ascience skilled@ occupations, (2) Atechnology professional@ occupations, (3) Atechnology skilled@ occupations, (4) Abusiness professional@ occupations, (5) Abusiness skilled@ occupations, (6) Aclerical@ occupations, (7) Acommunication@ occupations, and (8) Aservice professional@ occupations.  There is no clear indication, in the listed examples for each of these career areas, that the testing took fully into account the employee=s physical restrictions.

 

On April 29, 1991, the employee returned to work with the employer full time at a light duty job in its tool room, which was generally within the employee=s FCE restrictions but occasionally left him experiencing some back pain upon his return home at the end of the day.  The employee remained in physical therapy throughout 1991, over the course of which he continued to experience low back symptoms of fluctuating nature and severity.  On September 19, 1991, he was examined by orthopedic surgeon Dr. D. F. Person, who ordered x-rays on that date that were read to reveal relatively mild osteoarthritis and slight scoliosis, but no definite disc narrowing was evident, and the x-rays were otherwise negative.  On October 2, 1991, Dr. Person rated the employee=s permanent partial disability at 24% of the whole body - - 10.5% pursuant to Minnesota Rules 5223.0070, subpart 1A(3)(b), which provides for payment of benefits for rigidity or chronic muscle spasm substantiated by objective clinical findings and associated with multilevel degenerative changes, and 14% pursuant to Minnesota Rules 5223.0070, subpart 1B(1)(b), which provides for payment of benefits for a single herniated disc not surgically treated but substantiated by imaging and accompanied by back and specific radicular pain with objective neurologic findings.  The employer and insurer ultimately paid benefits pursuant to this rating.

 

In January of 1992, the employee was discharged from physical therapy and referred for long-term massage therapy.  When he saw Dr. Hendricks again on October 12, 1992, he evidently reported that his back had generally been Agetting a little more painful over the last several months@ but also that he had been Adoing well at work, full-time@ and had been off his medication for a large part of the past year.  In a AMedical Statement@ dated December 3, 1992, however, Dr. Hendricks did indicate that the employee had, in addition to mechanical back strain, Anerve rootlet irritation and partial disc disruption, concluding that A[p]robably the [employee] will never be able to do unrestricted full time work.@  Dr. Hendricks=s treatment notes for April 26, 1993, indicate that the nerve rootlet irritation was by that date Aresolved,@ but his notes for November of that year indicated that the employee had by then been experiencing headaches for the past several months, for which he had recently been prescribed Zoloft.  About half a year later, in the spring of 1994, massage therapy was evidently discontinued when coverage was disallowed by the insurer and conventional physical therapy was apparently recommenced, although the employee maintained that it was not as effective in relieving his symptoms.  In February of 1995, the employee saw internist Dr. Mark Plachta, apparently for a general physical, complaining of major fatigue in addition to back pain.  Dr. Plachta=s records report that the employee was smoking two packs of cigarettes daily, that he was not getting regular exercise because of his back discomfort, and that breathing tests and chest x-rays demonstrated mild emphysema, and Dr. Plachta prescribed an inhaler for use as needed.

 

About ten months later, on December 22, 1995, the employee commenced treatment with occupational medicine specialist Dr. T. Scott Douglass, to whom he reported back pain at a level seven on a scale of one to ten.  Noting that the employee had reported missing no time from work due to his back pain over the course of the past year, Dr. Douglass modified the employee=s medication prescription but rendered an essentially unchanged diagnosis and recommended unchanged restrictions.  On follow-up a few weeks later, on January 12, 1996, Dr. Douglass reported in part that the employee=s pain had returned to a baseline level five on a one-to-ten scale.  The employee apparently sustained a strain also of his thoracic back, on March 27, 1996, which the employee claimed aggravated also his low back condition, but in his treatment notes on April 8, 1996, Dr. Douglass concluded that the new pain remained myofascial and continued the employee=s same restrictions.  A week later, on April 15, 1996, with the employee=s complaints continuing, Dr. Douglass referred the employee for a consultation with neurologist Dr. Fred Lux.  The employee saw Dr. Lux on April 19, 1996, complaining to him of headaches in addition to his back pain.  Dr. Lux found the employee neurologically normal and prescribed medication, concluding that the headaches were most likely due to tension.  When he saw the employee again on April 23, 1996, Dr. Douglass found the employee=s headaches resolved and his back condition and depressive mood, for which he was evidently being treated with Zoloft, improved.

 

On October 24, 1996, the employee returned to see Dr. Douglass, complaining of an exacerbation that day of his thoracolumbar strain condition, and Dr. Douglass prescribed medication and three weeks of physical therapy and continued the employee=s release for work under his previous permanent work restrictions.  In January of 1997, Dr. Plachta referred the employee to rehabilitation specialist Dr. Peter Hindle, who examined the employee on January 28, 1997.  Dr. Hindle diagnosed myofascial pain in the thoracolumbar and lumbosacral areas with bilateral sacroiliitis Ain a stiff, tight, deconditioned male,@ together with underlying degenerative disc disease and degenerative arthritis.  He did not, however, see any significant disc space narrowing on the employee=s x-rays, and he did not see any evidence of any acute radiculopathy or disc herniation, noting that the employee had no leg symptoms at all and that his straight leg raising was negative.  Noting also that the employee was currently on indefinite light duty restrictions, Dr. Hindle prescribed physical therapy and expressly declined to write any new restrictions.  When he saw the employee again about two months later, on March 24, 1997, Dr. Hindle indicated that the employee=s mobility and flexibility had improved with his physical therapy, and he recommended that the employee be transitioned into a ninety-day medical membership at the YMCA.  On April 14, 1997, the employee saw Dr. Douglass again, who, diagnosing thoracic strain with spasm, concluded that the employee had reached maximum medical improvement [MMI] with respect to his October 24, 1996, exacerbation with 0% related permanent partial disability.

 

Dr. Douglass continued to follow the employee=s case over the course of the next few years, during which time the employee evidently asserted a claim for another work injury to his lower back, on January 30, 1998.  In treatment notes on April 5, 1999, Dr. Douglas indicated that the employee had reported that Athe people at work have been very good to him and have told him to take it easy and not push himself so much because of his back problems.@  X-rays taken on that date were read to in part reveal osseous degenerative changes that had only  Avery mildly increased@ since the employee=s April 4, 1994, study.  The following month, in May of 1999, the employer eliminated all of its light-duty positions, and the employee, in order to retain employment with the employer, returned to regular duty as an automotive mechanic, a job that was outside his restrictions.  Although apparently his fellow employees normally did the heavier work, leaving the lighter work for the employee, the employee evidently found himself experiencing back pain nearly every day upon returning home after work, frequently going to bed with a heating pad and not getting up again until it was time to go to work again the next day.

 

On October 29, 1999, five months after the employee=s return to regular duty status, Dr. Douglass=s diagnosis remained multilevel lumbar disc disease with chronic mechanical lower back pain and spasms but without significant leg pain, and he expressly affirmed continued application of the employee=s FCE work restrictions.  Two months later, however, on December 8, 1999, when he saw Dr. Plachta again, the employee evidently reported that his pain now occasionally radiated down his right leg.  However, about half a year after that, on July 19, 2000, he reported to Dr. Douglass that he had not missed any work because of his back condition in the past six months, and Dr. Douglass continued to diagnose chronic lower back pain and lumbar disc disease, together with lumbar spondylosis, and to recommend the employee=s FCE-based restrictions.  Further, when the employee saw Dr. Plachta again another half year after that, on February 28, 2001, Dr. Plachta noted that the employee continued to have back pain but that it did not radiate into his legs.  Moreover, yet another half year later, on September 21, 2001, Dr. Douglass noted that the employee=s Aexamination does not appear to have changed significantly compared to 1999 or 2000,@ and he continued to permit the employee Ato work with his previous restrictions, which were placed on him many years ago.@  Occupational medicine treatment notes for July 17, 2002, do indicate that the employee was reporting that his Apain is getting worse[ - - ]more pain in legs more often; back goes out more often & easier.  Pain would be unbearable without meds,@ but Dr. Douglass noted on that same date, that the employee had not been missing any work due to his low back, and x-rays taken on that date were read to reveal Ano significant interval change@ in comparison with the x-rays taken on April 5, 1999.

 

The employee=s complaints continued, and on July 25, 2002, the employee saw Dr. Thomas Applegate on referral for a second opinion regarding abdominal distress in addition to his chronic low back pain.  Dr. Applegate referred him for a lumbar MRI scan on July 31, 2002, which was read to reveal a small disc protrusion at L4-5 that resulted in mild displacement of the left L5 nerve root, a small disc protrusion at L5-S1 without neural compression, and a small abdominal aortic aneurysm.  On August 15, 2002, also on referral from Dr. Applegate, he saw anesthesiologist Dr. Molly Urban for a lumbar epidural steroid injection.  Neither this nor apparently a second injection on September 3, 2002, was effective in relieving the employee=s complaints, however, and on September 25, 2002, Dr. Applegate=s impression was A[s]uspicion of fibromyalgia.@

 

Dr. Applegate ultimately referred the employee to osteopath and physical medicine specialist Dr. Daniel Wallerstein at the St. Luke=s Physical Medicine & Rehab clinic.  Intake forms at the clinic on September 27, 2002, indicate that the employee was reporting constant stabbing back pain that again radiated down into both of his buttocks and thighs and knees.  When he saw the employee on October 3, 2002, Dr. Wallerstein diagnosed recently increased chronic intermittent low back pain, degenerative disc disease at L4-5 and L5-S1, with mild displacement of the L5 nerve root, and chronic deconditioning.  Dr. Wallerstein prescribed six weeks of physical therapy, appropriate ergonomics at work, and follow-up in three or four weeks.  The employee had also been referred by Dr. Applegate for a surgical consultation with orthopedist Dr. Joel Zamzow, whom the employee saw on October 25, 2002.  Concluding that the employee=s leg pain had Apretty much resolved,@ Dr. Zamzow declined to recommend surgery and released the employee to return to work with restrictions, and on November 15, 2002, he reported the employee=s leg pain to be Agone.@

 

 The employee subsequently asserted a claim based on a work injury to his left shoulder on November 27, 2002, which eventually resulted in rotator cuff surgery on January 20, 2003.  Following that surgery, the employee returned to work on April 21, 2003, with no shoulder-related restrictions. On May 8, 2003, the employee was informed that, for reasons apparently related to bankruptcy proceedings on the part of  the employer, he would be permanently laid off in about a week.  On the date of this notice, the employee quit his job with the employer, subsequently contending that that he was at the time in severe pain consequent to his work.  On May 18, 2003, the employee and about seven hundred other employees of the employer were officially laid off.  The employee was apparently offered retraining options,^[1] but the employee expressed no interest in retraining and instead requested assistance from the Vocational Rehabilitation Unit at the Department of Labor and Industry on May 19, 2003, and filed a claim for Social Security disability benefits.  On May 23, 2003, the employee also filed a claim petition for various workers= compensation benefits consequent to his August 6, 1990 work injury, alleging entitlement to permanent total disability benefits continuing from May 17, 2003, to payment of various medical benefits, and to rehabilitation services with QRC Helen Thran at the Vocational Rehabilitation Unit or, as he preferred, a private QRC whom he named in the petition.  Also on May 23, 2003, the employee commenced a search for work within a fifty-mile radius of his home.

 

On June 11, 2003, the employee saw Dr. Applegate again, primarily regarding persistent low back pain.  Finding no evidence for neurologic symptoms associated with the employee=s low back pain, but Adue to his desire for disability,@ Dr. Applegate scheduled additional consultations with Dr. Zamzow and Dr. Wallerstein and restricted the employee for eight weeks from all of the following: (1) lifting over ten pounds; (2) excessive bending, stooping, twisting, or working in awkward positions; (3) heavy pulling or pushing; (4) prolonged shoveling, sweeping, mopping, or other repetitive work; (5) overhead lifting or work; (6) prolonged walking and/or standing; (7) ladder climbing; (8) stair climbing; (9) work in irregular terrain; (10) operating mobile equipment; (11) work around moving equipment and/or machinery; (12) lifting above shoulder height; and (13) work from elevated scaffolds or platforms, including ladders.  When he saw Dr. Zamzow on June 20, 2003, the employee reported having no leg pain, and Dr. Zamzow declined to recommend surgery.  The doctor stated further that the employee had Atold me that his lawyer wanted a phone call with regard to [the employee=s] total permanent disability rating.  At this juncture I do not have information to feel that he has a higher rating on his back.@

 

On June 12, the employer and insurer denied the employee=s May 23, 2003, claim petition, on grounds that the employee=s current disability was due to an event subsequent to the employee=s August 6, 1990, work injury or to a pre-existing condition or injury.

 

The employee=s job search ultimately resulted in his finding a half-time cashier job at an ICO gas station paying about $6.00 an hour, or about $120.00 a week, at which he apparently began working about late July or early August 2003.  On July 31, 2003, the employee talked by telephone with QRC Helen Thran of the Vocational Rehabilitation Unit of the Department of Labor and Industry in Hibbing, Minnesota, whose case notes for that date indicate that the employee reported Ahaving physical difficulty doing the [ICO] position though it is not as physically demanding as some convenience positions.@  On August 4, 2003, QRC Thran met with the employee, and on August 8, 2003, she completed a rehabilitation consultation report on which she concluded that the employee was eligible for rehabilitation services.  On that report, she indicated that, considering the treating physician=s report of work ability, she thought that the employee could be expected to return to suitable gainful employment through such services.  In her case notes on that same date, however, Ms. Thran indicated that she had Areservations about his ability to find other employment and will reserve judgment on his part time convenience job.@  On that same date, August 8, 2003, the employee saw Dr. Applegate again, who reported that the employee had been suffering severe symptoms of depression and prescribed Prozac.

 

On August 19, 2003, QRC Thran completed an R-2 Rehabilitation Plan, and the employee commenced a search for alternative work.  Ms. Thran=s case notes for August 25, 2003, report that the employee had been informed by the employer=s insurer that it did not consider the employee=s ICO job appropriate employment and so were not paying the employee temporary partial disability benefits.  The employee continued to search for alternative work for about another month, until, after being notified on September 28, 2003, that he had qualified for Social Security disability benefits, which in turn secured his pension with the employer, he discontinued his job search.  The notice of the employee=s entitlement to Social Security benefits indicated that the employee had become disabled under Social Security rules on May 8, 2003,^[2] and that his benefits would commence effective November 2003, also under those rules.  On October 22, 2003, the employee quit his job at ICO, having reported to Dr. Applegate that the job had increased his back pain and having reported to QRC Thran on October 16, 2003, that, although he had Afound the work to be socially more acceptable than it had at the beginning,@ he had been Aexperiencing some difficulty with his back@ on the job.  On November 13, 2003, QRC Thran noted in her files that the employee Asaid he is actually feeling somewhat worse since he has discontinued work,@ but on December 2, 2003, she closed her file on the employee=s case.  In her final report on that date, QRC Thran stated that it was her opinion as a QRC that the employee Awas fortunate to find even part time employment that was somewhat within his ability to handle physically@ and that she did Anot believe that he is competitively employable on a full time basis in this area.@

 

On January 9, 2004, the employee was examined for the employer and insurer by Dr. John Dowdle, who, in his report on January 19, 2004, diagnosed mechanical low back pain and multi-level degenerative disc disease of the lumbar spine.  Dr. Dowdle disagreed with the employee=s 24.5% permanent partial disability rating, concluding instead that the employee was entitled to benefits for only a 3.5% whole-body impairment, pursuant to Minnesota Rule 5223.0070, subpart 1A(2).  That rule provides for compensation for low back pain associated with rigidity or chronic muscle spasm substantiated by objective clinical findings but not associated with demonstrable degenerative changes, Dr. Dowdle concluding that the employee=s degenerative disc disease was unrelated to his August 9, 1990, work injury because it was evident already on his August 2, 1990, MRI scan and therefore preexisted the work injury.  He recommended that the employee, relative to his back condition, be restricted from lifting over thirty-five pounds and avoid prolonged single positions, but he concluded that the employee had reached MMI regarding his August 1990 work injury, that he was not in need of any further medical care and treatment, and that his social security disability did not appear related to his low back condition.

 

On June 9, 2004, the employee underwent an independent vocational evaluation by vocational rehabilitation consultant L. David Russell at the request of the employer and insurer.  In his report to the employer and insurer=s attorney on August 18, 2004, Mr. Russell noted in part that unemployment in the employee=s job market was currently at 5.8%, the same as it was in the country as a whole in 2004, though 1.1% higher than it was in the state of Minnesota in general. Acknowledging that fact, Mr. Russell indicated that, assuming the light to medium duty work restrictions in effect for the employee, and given the employee=s age, education, work history, and area of residence, seven job titles appeared to be Aselectively representative of [the employee=s] current employability.@  Those seven job titles, together with the estimated number of positions in the employee=s Northeast Minnesota job market, were the following: (1) tool grinder/sharpener (about 20 positions); (2) hand grinder/polisher (about 630 positions); (3) assembler (about 660 positions); (4) parts salesperson (about 290 positions); (5) retail salesperson (about 5100 positions); (6) light driver (about 1020 positions); and (7) security guard (about 490 positions).  Mr. Russell indicated that wages in these areas ranged from about $6.00 to $23.00 an hour, and that, based on a formula average the low and mean wages for these jobs, the employee could expect a re-entry wage of about $10.00 an hour.  Mr. Russell stated specifically that the employee Aappears neither permanently nor totally disabled as a result of his 1990 injury@ but that the employee had advised him that he had Ano return to work intentions.@  Mr. Russell indicated that the employee had also reported securing a combined disability and retirement income of about $3,200.00 a month, or the equivalent of a full-time working wage of about $18.60 an hour, and that therefore there appeared to Mr. Russell to be a significant disincentive for the employee to work for a projected re-entry wage of about $10.00 an hour.

 

On December 13, 2004, the employee was examined by orthopedist Dr. Robert Wengler, who diagnosed mechanical low back pain secondary to multilevel degenerative disc disease, with segmental instability and documented contained herniations at L4-5 and L5-S1.  Dr. Wengler indicated that he did not think that it was reasonable to anticipate that the employee Acould return to the level of work activity at the present time that he was performing at [the employer] in the spring of 2003.@  Referencing the employee=s work for a few months as a Acounter person@ at the ICO and the employee=s report that Ahe did not tolerate this level of activity and had to quit,@ Dr. Wengler concluded also that, A[c]onsidering this and the information regarding his general inability to engage in household and sporting activities, it is reasonable to consider [the employee] to be permanently and totally disabled from sustained gainful employment.@  He concluded further that the employee=s August 1990 work injury was Aa material aggravation of a developing degenerative disc problem@ and so was Aa substantial contributing factor [in the employee=s] current inability to work.@ Dr. Wengler indicated that he understood the employee=s permanent partial disability to have been rated at 24% of the whole body, and he opined that the employee Adoes not have additional permanency over and above that rating.@  He indicated further that he had discussed with the employee the prospect of multilevel discography Afor the purpose of finding a possible surgically treatable lesion(s)@ but that the employee had declined to consider any invasive procedures for the time being.  Dr. Wengler concluded finally that the employee had reached MMI Aunless he chooses to seek further treatment.@

 

On June 29, 2005, Mr. Russell completed a survey of the labor market within a fifty-mile radius of the employee=s residential zip code in Virginia, Minnesota.  Mr. Russell indicated that his survey, which identified seventeen available positions, supported availability in some of the job families identified in his August 18, 2004, vocational analysis, with starting wages ranging from $5.50 to $15.00 an hour, generally consistent with the $10.00 per hour projection that he had made in the earlier analysis.  He indicated also that potentially higher earnings would be anticipated in the supervisory and sales positions among the seventeen, where earnings were not disclosed.

 

The matter came on for hearing on July 1, 2005.  Issues at hearing included (1) whether, pursuant to Minn. Stat. ' 176.179, the employer and insurer were entitled to reimbursement for an overpayment of permanent partial disability benefits and (2) whether the employee was entitled to compensation for permanent total disability and if so commencing when.  The employer and insurer contended at hearing that the employee was entitled to permanent partial disability benefits for only 3.5% of his whole body, pursuant to the opinion of Dr. Dowdle, or, in the alternative, for only either 10.5% or 14% of the whole body, rather than the sum of the two latter ratings.  With regard to the wage replacement issue, Mr. Russell testified for the employer and insurer specifically that, in his opinion, the employee was not permanently and totally disabled, in that he had,

 

substantial transferable skills.  He has a long and varied work history.  He has work abilities that span the light to medium duty work classifications.  The majority of jobs in the economy are in those classifications, or lighter.  He has skills that apply to various specific job families, light production, parts sales, light driving, security, that not only use transferable skills, but are often available to mature workers reentering the workforce.

 

He opined specifically that he believed that there existed substantial numbers of jobs in these area for which the employee would be eligible and that a job search Awould be extremely fruitful if [the employee] wanted and needed to return to work.@  The employee himself testified at hearing, in part that, at the time he was laid off by the employer in May of 2003, he had been in pain constantly for many years.  He acknowledged also, however, that no doctor had ever restricted him from doing the work that he was doing at the time he was laid off from the employer in May of 2003 and that no doctor had ever restricted him from doing the work that he was doing at ICO when he quit that job in October of 2003.  Nor was he, he testified, restricted by a doctor to working fewer than forty hours a week.  The employee testified also, in part, that, except for an increase in frequency of flare-ups, his symptoms remain Abasically the same@ as they were between 1991 and 1999.  He testified that the job at ICO neither caused any new symptoms nor permanently aggravated his existing ones.

 

By post-hearing deposition on August 18, 2005, QRC Thran also testified, in part that, when she first met the employee, he was Ahaving some difficulty with@ his job at ICO, which Awasn=t . . . the best fit, but it was something he was able to cope with at that time.@  She acknowledged that the employee=s termination of work with the employer had been the result of his being laid off, not the result of his becoming physically unable to continue, and that the employee had found the job at ICO not long after his termination from the employer, on his own, and with no help from a QRC.  She acknowledged also that the employee=s subsequent quitting of the job was not at a doctor=s recommendation, but it was her opinion that, even though the employee=s ICO work had been relatively light and part time, she did not believe that the employee, due to his work-related back problem, Acould have handled this on a full-time competitive basis.@  On cross-examination she acknowledged that she had drawn this conclusion without ever actually observing the ICO job being performed.  Further, she acknowledged that she had never done any aptitude testing on the employee, that she had never submitted any job leads to him, that her organization had never provided any job placement services for him, that she had never filled out a Job Placement Plan and Agreement on his case, and that she had never performed a labor market survey relevant to his case while the employee was still purportedly searching for work.

 

With regard to the employee=s job search itself, Ms. Thran acknowledged that, prior to her work with him, the employee made no in-person job contacts in the months of May or June 2003, characterizing that fact as Anot good@ and Abad,@ and that even the eight in-person contacts that the employee made in July 2003 were Anot enough for a month.@  With regard to the employee=s job search after his retaining her, she acknowledged that the three in-person contacts that he made in August 2003 were Adeficient@ and that the three in-person contacts that he apparently made in September 2003 were also Anot sufficient.@  She testified further that she was not aware either that the employee had applied for Social Security disability benefits the same month in which he was laid off by the employer or that, three days after the employee had contacted her, the employee=s attorney had filed a claim petition for permanent total disability benefits on the employee=s behalf.  She agreed in follow-up that this combination of facts did raise a question about the employee=s motivation to find suitable gainful full-time employment.  She acknowledged that, according to Mr. Russell=s testing results, the employee appeared to be an intelligent person with lots of job skills, and she conceded  that the employee appeared to have the ability to successfully complete short-term retraining in keyboarding and other office equipment that would further enhance or increase his employability and that he appeared to be capable of doing cashier and light assembly work, light auto parts and other retail sales work, and perhaps even certain security guard and driving work.  Further, she conceded that restrictions that she understood to be in place for the employee did not limit the number of hours that he could work.  She testified also, however, that, pursuant to what she acknowledged to be Aa very cursory search of available jobs in the relevant labor market,@ she had spent about fifteen minutes the previous day reviewing 150 jobs on a Ajob bank@ and found none of them appropriate for the employee.  She conceded , however, that, although some of the reviewed jobs had not listed essential physical requirements, she had not followed up by telephone to inquire further.  Finally, she conceded also that the employee had been capable of part-time employment at the time she worked with him and that there did appear to be some jobs in Mr. Russell=s labor market study that the employee would have been capable of doing, although she did not believe that the employee had been Acapable at the time I worked with him in 2003 of full-time competitive employment that would be equivalent to the kind of salary he earned at [the employer].@

 

By findings and order filed September 19, 2005, the compensation judge concluded in part that the employee continued to be subject to work-related low back pain associated with rigidity or chronic muscle spasm and with demonstrable degenerative changes and was therefore entitled to compensation for permanent partial disability to 10.5% of his whole body pursuant to Minnesota Rule 5223.0070, subpart 1A(3)(b).  The judge concluded also, however, that the employee was no longer subject to radicular pain and that the employer and insurer were therefore entitled to reimbursement of the permanency benefits that it had paid for an additional 14% whole-body impairment under Minnesota Rule 5223.0070, subpart 1B(1)(b).  The judge also concluded, however, that the employee had been permanently and totally disabled since May of 2003, finding that the employee Abegan a job search@ after quitting work for the employer in May 2003, that he Acontinued his job search@ after obtaining his job with ICO, and that two episodes of back pain during the ICO employment were Athe primary factors in the employee=s decision to quit this job,@ although the employee=s award of social security disability benefits Awas also a substantial contributing factor in the employee=s decision.@  In support of his decision on this issue, the judge expressly adopting the opinions of Ms. Thran and Dr. Wengler over the opinion of Mr. Russell.  The employer and insurer appeal from the award of permanent total disability benefits.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

The compensation judge found in part that the employee had been permanently and totally disabled since the date in May 2003 when he quit his job with the employer.  The employer and insurer contend that the judge=s conclusion is unsupported by substantial evidence, arguing (1) that the employee is subject to no formal restrictions that preclude him from substantial gainful employment, (2) that the employee has performed no reasonably diligent job search since working for the employer, (3) that there is no adequately founded expert vocational or medical opinion that the employee is incapable of working, and (4) that the employee has experienced no adverse change in condition - - and has perhaps experienced even a positive one - - since his work injury.  We agree that the judge=s award of permanent total disability benefits is unsupported by substantial evidence.

 

A[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., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).^[3]  Although the compensation judge does make findings that the employee conducted a job search following his layoff from the employer in 2003 and that the employee had back pain during the period of that job search, the judge does not address, either in his findings or in his memorandum, either the reasonable diligence of that job search or the severity of the employee=s pain, nor, most importantly, does he do any sort of analysis of the employee=s circumstances in light of the elements established as a standard in the Schulte case.  Virtually all of the judge=s memorandum pertains to his decision regarding the issue of permanent partial disability, his only discussion of his award of permanent total disability benefits being a very brief closing paragraph in which he asserts that A[t]his is essentially a question of credibility@ and that he found the opinions of QRC Thran and Dr. Wengler more credible than the opinion of QRC Russell.  Normally this court grants substantial deference to credibility-related conclusions of a factfinder, who is normally in a unique position to observe the live testimony of the witnesses.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978); see also Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (the trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  However, as we stated in Hensch v. The Cornelius Co.,

 

[A] credibility finding is not solely based on observation of witness demeanor.  While such observation can certainly be an aid to a factfinder=s determination, the actual wording of the testimony itself, its consistency, how it compares with the testimony of others, and factors such as the passage of time between the testimony and the event in question must also be considered in determining if the witness testified credibly.

 

Hensch v. The Cornelius Co., slip op. (W.C.C.A. Mar. 14, 1994).  In this case, we can only conclude that a thorough analysis of the employee=s circumstances and all other evidence of record, in light of the elements established in Schulte and the arguments raised by the employer and insurer, leads inevitably to a conclusion that the compensation judge=s decision on this issue is unsupported by substantial evidence.

 

1.  Physical Condition; Restrictions; Change in Ability to Work

 

The employee became subject in 1991 to working restrictions issued consequent to an FCE, and these restrictions, contrary to emphatic assumptions of the employee in his brief, have been clearly acknowledged by both parties to now be permanent.^[4]  As the employer and insurer have argued, not one of the several different doctors with whom the employee has consulted over the course of the thirteen years subsequent to his FCE has permanently increased those restrictions.   It is true that Dr. Wengler found it Areasonable to consider@ the employee to be permanently and totally disabled Afrom substantial gainful employment,@ but, as the employer and insurer have argued, that conclusion is a vocational rather than a medical one, and Dr. Wengler did not opine that the employee was incapable of any work.  Without any permanent increase in his restrictions since his 1991 FCE, there is, as the employer and insurer have suggested, no reason to conclude that the employee was any less capable of working when he left his job with the employer in May of 2003 than he was when he received the FCE-based restrictions in the first place, since which date he has continued to work with fluctuating but not clearly declining physical ability.  In light of this evidence, and particularly absent any restriction from full-time work by even the employee=s treating doctors, we cannot conclude that  the employee has borne his burden of proving that his physical condition precludes gainful employment.

 

2.  Age, Training, Experience, and Work Available in the Community; Job Search

 

We acknowledge that the employee, now at age 58, is only a few years away from a common retirement age and, indeed, has applied for and is receiving a pension from the employer. And we acknowledge also that his training in the employment world, though certainly substantial in his field, is apparently neither broad nor varied.  It is just as clear, however, that the employee has substantial and varied work experience in the employment world, experience not exclusively as a laborer.  In his own brief he acknowledges that he was trained, and so presumably worked, as a telephone linesman in the Army, as a laborer in the iron mines, as an assembly worker for an air-conditioning/heating manufacturer, as a salesman and shelf stocker for two small auto and boat shops, and as a journeyman mechanic in the mining industry.

 

With regard to employment opportunities actually available in the community, entitlement to compensation for total disability normally requires a showing of a reasonably diligent but unavailing job search.  See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988); see also, e.g., Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987).  While a diligent job search is not an absolute prerequisite to an award of total disability benefits - - e.g., in circumstance where such a search appears obviously futile - - the lack of such a search nevertheless goes to the weight of the assertion that the employee is totally disabled.  See, e.g., McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983), citing Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978).  In this case, there is no substantial evidence either that the job search conducted by the employee subsequent to his quitting work with the employer in May 2003 was reasonably diligent or that a reasonably diligent job search would have been obviously futile.  Even the employee=s own QRC testified that the employee=s lack of any in-person contacts at all among his May and June 2003 contacts was Abad@ job search technique, that the eight in-person contacts that he made in the month of July were still Anot enough for a month,@ and that the three in-person contacts that he made in the month of August and again in the month of September continued to manifest Adeficient@ and Ainsufficient@ effort.  Moreover, near the end of her brief, the employee=s own attorney concedes that A[p]erhaps the ICO job could have been modified to fit within [the employee=s] restrictions,@ asserting unpersuasively that that possibility no longer has any relevance and is now moot.

 

Given the clear suggestion in the testimony of the employee=s own QRC that the employee=s job search was not sufficiently diligent, given that QRC=s concession that her own survey of the employee=s job market had been a Avery cursory@ one, and particularly in light of the clear opinion of QRC Russell that a reasonably diligent job search by the employee would not be futile, we cannot conclude that substantial evidence exists to support a conclusion that the employee carried his burden of proving that work was not available in his community to someone of his physical condition, age, training, and experience.

 

3.  Substantiality of Available Work; Expert Vocational and Medical Opinion

 

Both the compensation judge and the employee have cited in support of the judge=s award the expert testimony and opinion of Dr. Wengler and QRC Thran.  Dr. Wengler did not, however, opine that the employee was incapable of working.  Indeed, he did not increase the employee=s restrictions from what they had essentially been ever since the January 1991 FCE.  He opined only that he thought it unreasonable to anticipate that the employee Acould return to the level of work activity at the present time that he was performing at [the employer] in the spring of 2003.@  To the extent that Dr. Wengler opined further opinion that it was reasonable to consider the employee to be Apermanently and totally disabled from sustained gainful employment,@ we agree with the employer and insurer, that the doctor has, with this opinion, ventured beyond the area of his medical expertise into an area of vocational expertise, rendering his statement lacking in foundation.^[5]  Had the doctor concluded that the employee is incapable of any work, Dr. Wengler=s opinion would be within his professional purview and would, if credited, render any job search by the employee futile and so unnecessary.^[6]  But the doctor offered no such general opinion.

 

Similarly, QRC Thran in no place concludes that the employee is permanently and totally disabled from all substantial employment, only that he is in her opinion not competitively employable Aon a full time basis@ at work that might earn him a wage Aequivalent to the kind of salary he earned at [the employer].@  Moreover, in so testifying, QRC Thran even conceded that employment doesn=t have to be full time to be Asubstantial.@  The unavailability of full time work does not automatically entitle an injured employee to permanent total disability benefits.  Cf. Hough v. Independent Sch. Dist. #115, 58 W.C.D. 213 (W.C.C.A. 1998) (substantial evidence supported the compensation judge=s determination that the employee=s medical restriction to two hours of work per day did not result in an inability to secure anything more than sporadic employment resulting in an insubstantial income).  Moreover, contrary to what may be the case with permanent partial disability compensation,^[7] neither does the mere disparity between the pre-injury wage and the post-injury wage.  See Detmar v. Kasco Corp., slip op. (W.C.C.A. April 28, 2000) (as a general rule, in determining whether an employee=s post-injury earning capacity does not constitute a Asubstantial income,@ a compensation judge may not consider the fact that the post-injury wage might be considered inconsequential or insignificant in comparison with the pre-injury wage).

 

Particularly in light of the very specific and very contrary testimony of vocational expert Russell, and absent any specific references by the compensation judge to any pivotal or otherwise persuasive particulars in the opinions of Ms. Thran and Dr. Wengler, we cannot conclude that the expert opinion cited by the compensation judge constitutes sufficiently substantial and sufficiently founded evidence to support a conclusion that work potentially available to the employee in his community would not be Amore than sporadic employment resulting in an insubstantial income."  Schulte, 278 Minn. at 83, 153 N.W.2d at 133-34, 24 W.C.D. at 295.

 

In that the compensation judge failed to analyze the permanent total disability issue before him pursuant to the well established standard established in Schulte v. C. H. Peterson Construction, and because, under this court=s analysis pursuant to that Schulte standard, persuasive evidence does exist for a contrary conclusion, we reverse the compensation judge=s award of permanent total disability benefits.