KAREN SCHENDEL, Employee, v. BEST, INC., and ACCEPTANCE INS. COS., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, BLUE CROSS/BLUE SHIELD OF MINN. & BLUE PLUS, ST. LUKE=S CLINICS, and OCCUPATIONAL & MANUAL MED. OF DULUTH, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2008

 

No. WC08-133

 

HEADNOTES

 

PERMANENT TOTAL DISABILTY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including evidence as to the employee=s restrictions, work history, and unsuccessful job search, supported the judge=s decision that the employee is permanently and totally disabled.

 

Affirmed.

 

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

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Sean M. Quinn, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent.  Ted A. Johnson, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s finding that the employee is permanently totally disabled.  We affirm.

 

BACKGROUND

 

The employee sustained a work-related injury to her low back on October 1, 1992, while working as a dietary aide for Best Incorporated [the employer] at the Lakeshore Lutheran Home in Duluth, Minnesota.  The employer and its workers= compensation insurer accepted liability for the injury and paid temporary total disability benefits from October 6, 1992, through October 13, 1992.  In 1994, the employer transferred the employee to Lake Haven Manor in order to accommodate the restrictions set by Dr. Jed Downs, which included a twenty-pound lifting limit and sedentary class work.  Intermittent temporary total and temporary partial disability benefits were paid to the employee in 1993 and, sometime shortly after the injury, the employee was paid for a 3.5% permanent partial disability of the body as a whole.

 

The employee had periodic flare-ups of pain each year subsequent to 1994, for which she would treat with Dr. Downs and receive physical therapy.  A short period of therapy would generally reduce the intensity of the employee=s symptoms, for a time, before the employee would suffer another flare-up.  The employee received temporary partial disability benefits for a period in 1994.

 

The employee was examined by independent medical examiner Dr. Thomas J. Raih, on August 10, 2005, at the request of the employer and insurer.  In his report of August 25, 2005, Dr. Raih opined that the employee=s preexisting spondylolisthesis at L5-S1 had been aggravated by the work injury in 1992.  He agreed with the ongoing restrictions imposed by Dr. Downs and opined that intermittent physical therapy, 6 to 12 times per year, would be reasonable to treat the employee=s condition.

 

The employee experienced another flare-up later in August of 2005.  She again treated with Dr. Downs, who again prescribed physical therapy.  According to Dr. Downs, the employee=s work restrictions as of August 18, 2005, were as follows:

 

sedentary class work, allows for periodic postural changes, avoid static, deep, or repetitive flexion at waist, and avoid forceful truncal rotation.  Any pushing should be light forces.  Bending and squatting should be rare.

 

On January 5, 2006, the employee was seen by her family doctor, Dr. Kristan A. Wegerson, for follow up of her 1992 work injury,^[1] and Dr. Wegerson imposed work restrictions that  included no lifting of more than ten pounds, no standing for more than an hour in an eight-hour period, no sitting for more than 30 minutes without postural change, and bending or squatting only once a day.  Dr. Wegerson also referred the employee to physical therapy.  The employee returned to Dr. Wegerson on January 20, 2006, complaining that she was having difficulty performing her job.  Dr. Wegerson further restricted the employee to working four hours a day, in the morning when she would have help.

 

Also in January of 2006, the employee entered into a partial stipulation for settlement with Lake Haven Manor and its workers= compensation insurer, Royal & Sun Alliance, concerning a work-related neck injury that had allegedly occurred on May 13, 2003.  Under the terms of the stipulation, the employee was paid $1,500.00 for a full, final, and complete settlement of any and all claims that the employee might have against Lake Haven Manor and its insurer.  An award on partial stipulation was filed on February 9, 2006.

 

On February 10, 2006, Dr. Wegerson took the employee off work when the employee indicated she could not continue with her job, and the employee began using accumulated sick leave.

 

On February 28, 2006, the employer advised the employee that they would not accommodate Dr. Wegerson=s January 5, 2006, restrictions and that the employee would not be allowed to return to work until she was able to work the shift she had worked prior to January 5, 2006.

 

Dr. Downs examined the employee again on May 3, 2006, after which he completed a report of workability that released the employee to return to work on May 10, 2006.  In this report, Dr. Downs restricted the employee from standing for more than 30 minutes at a time, forceful rotation, static or deep flexion, more than occasional pushing and pulling of up to 15 pounds, and bending more than 8 times a day.  He further restricted her to lifting no more than 10 pounds occasionally and indicated that she should make periodic postural changes.

 

When the employee returned to work on May 10, 2006, she was given a letter informing her that, due to budget constraints, she was being permanently laid off from her position as dietary support staff.

 

The employee had an initial interview with Dale Kinnunen, a QRC with the Minnesota Department of Labor & Industry, Vocational Rehabilitation Unit, on May 23, 2006.  A rehabilitation plan was filed on June 6, 2006, with the goal of returning the employee to work within her restrictions.  The employee was given job placement assistance and actively searched for work.  Over the next nine months, she averaged 50 contacts with possible employers per month.

 

On July 14, 2006, the employee was examined by independent examiner Dr. Jeffrey Nipper.^[2]  In his report of that date, Dr. Nipper opined that the employee=s injury of October 1, 1992, had resulted in Aa thoracolumbar strain or sprain injury,@ which had Aresolved within six to eight weeks following that event.@  It was his opinion that it was not reasonable or necessary for the employee Ato receive any further medical treatment of any kind@ and that the employee did not need any restrictions on her work activities as a result of the 1992 injury.

 

The employee filed an amended claim petition on November 15, 2006, seeking, in part, permanent total disability benefits continuing from February 10, 2006.  In their answer, the employer and insurer denied that the employee was permanently totally disabled and affirmatively alleged that the 1992 injury was temporary in nature.

 

The employee returned to Dr. Downs on February 22, 2007, complaining of a flare- up of low back pain.  Dr. Downs noted that the employee=s Aflares are becoming more intense and that the period between flares is becoming progressively shorter.@  He opined that the employee was unable to work at that time.

 

In March of 2007, Stacy Layman, with Alaris, became the employee=s QRC.  Ms. Layman met with the employee on April 5, 2007, and initially provided medical management services.

 

When seen by Dr. Downs on July 11, 2007, the employee noted lack of strength in her left leg and difficulty doing household chores.  About two weeks later, on July 24, 2007, the employee was examined by neurosurgeon Dr. Nancy J. Ensley.  Dr. Ensley opined that Aat some point surgery likely will be indicated for her.@

 

On October 11, 2007, Dr. Downs released the employee to look for work within sedentary restrictions, which limited lifting to a maximum of 10 pounds.  QRC Layman contacted the insurer for permission to reinstate job placement services, which were eventually approved and were initiated on December 13, 2007.  The employee apparently signed a Job Placement Plan and Agreement providing for her to make four to five contacts per day with potential employers.  She also participated in a typing-enhancement program and a mock interview while she searched for work.  After about a month, on January 22, 2008, the employee had another flare-up of pain, and Dr. Downs took her off job search again.

 

The amended claim petition came on for hearing on January 29, 2008.  In findings and order filed on February 8, 2008, the compensation judge found, in part, that the employee had made a reasonably diligent search for work, that the employee has sustained a 14% whole body impairment causally related to her work injury, and that the employee had been permanently totally disabled since February 10, 2006.  The employer and insurer appeal from the determination of  permanent total disability.^[3]

 

STANDARD OF REVIEW

 

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 (2008).  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, 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 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

 

Pursuant to the law in effect on the date of the employee=s injury, an employee is permanently and totally disabled if Athe employee=s physical disability, in combination with the employee=s age, education, training, and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Minn. Stat. ' 176.101, subd. 5(b) (1992); Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 150 N.W.2d 130, 24 W.C.D. 290 (1967).  A finding of permanent total disability is one of fact and must be affirmed if supported by evidence that a reasonable mind might accept as adequate.  See Boryca v. Marvin Lumbar & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn. 1992). 

 

In the present case, the employer and insurer contend that substantial evidence does not support the judge=s finding that the employee was permanently totally disabled as of February 10, 2006.  We are not persuaded.

 

The employer and insurer began their brief and oral argument by contending that a determination of permanent total disability Ais almost always accompanied by either some medical or vocational opinion indicating permanent total disability@ and that there was no expert opinion supporting the employee=s claim for permanent total disability.  At oral argument, however, counsel for the employer and insurer conceded that expert opinion is not required for a finding of permanent total disability.

 

The employer and insurer=s primary argument is that, until one week prior to the hearing, the employee had been released to work within Aessentially the same restrictions put in place in 1993" and that the employee Ahad a long history of being able to work and earn a reasonable income under these restrictions.@  At oral argument, the employer and insurer=s counsel also pointed to the employee=s testimony at hearing that she would take back her 2006 job with the employer,  if they offered it to her, as evidence that the employee does not consider herself permanently totally disabled.

 

It is true that the employee worked for the employer for more than twelve years with restrictions similar to those currently imposed by Dr. Downs.  However, the employer and insurer=s argument ignores the fact that the employer placed the employee on permanent lay off status on May 10, 2006, and that, after speaking to the employer, QRC Kinnunen indicated in his May 31, 2006, rehabilitation consultation report that the employee could not be expected to return to that employer.  QRC Layman also testified that it was her understanding that a return to work with the employer Awas not a possibility.@  An employee=s ability to continue working for an employer that has accommodated substantial restrictions is not necessarily indicative of her employability in the general labor market.

 

Permanent total disability is dependent primarily on the employee=s ability to find and hold a job, not on the employee=s physical condition.  See, e.g., McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983).  In a nine-month period from May of 2006 through February of 2007, while working with a job placement specialist, the employee averaged 50 job contacts per month.   QRC Layman testified that during the period from December of 2007 into January of 2008, the employee Amet and actually exceeded the actual number of contacts required.@ In spite of this extensive job search and vocational assistance in finding work, the employee had only two interviews and no job offers.  Ms. Layman also testified  that the Duluth job market Ahasn=t been great@ and that with the employee=s current skill set Ait=s looking a little grim.@  While the employee has been looking for office positions, the employee=s nonwork-related hand restrictions and her lack of computer skills are detriments to finding such employment.  Ms. Layman=s testimony that Ayou just never know what=s going to open up@ and Ayou just don=t know if someone that she knows is going to come up with something@ does not preclude a finding of permanent total disability.  See Petter v. K.W. McKee, Inc., 270 Minn. 362, 133 N.W.2d 638, 23 W.C.D. 436 (1965) (the possibility of rehabilitation through retraining in the future will not of itself preclude a finding of permanent total disability).

 

In essentially unappealed findings,^[4] the judge found that the employee is 51 years old, a high school graduate, worked for only a single employer from 1989 to May of 2006, has a 14%  impairment of the body as a whole, and is substantially restricted in her physical activities.  Dr. Downs= medical records provide evidence of the substantial restrictions placed on the employee, and the vocational and job search evidence cited above reasonably indicate that the employee=s prospects for employment are poor.  Because substantial evidence establishes that the employee=s physical disability, in combination with her age, education, training, and experience, make it unlikely that the employee will be able to secure employment, the judge=s findings and order are affirmed in their entirety.