The employee appeals from the compensation judge’s decision that the employee is not permanently and totally disabled.  The employer and insurer cross-appeal from the compensation judge’s denial of their claim for reimbursement pursuant to Minn. Stat. § 176.179 for benefits allegedly received by the employee in bad faith.  We affirm.

The employee sustained two work-related shoulder injuries while employed by S.T. Services [the employer] – one occurring in 1984, the other in 1985.  The employee is a licensed master plumber and also has welding experience, but, at the time of his injuries, he was working for the employer as a terminal manager.  Following the injuries, the employee underwent a number of shoulder surgeries, and he was eventually rated as having a 12% whole body impairment for his left shoulder condition and a 9% whole body impairment for his right shoulder condition.  He was restricted to light work with a 20-pound lifting limit, no overhead activities, and no repetitive use of his upper extremities.

In 1994, after extensive litigation, the parties entered into a settlement agreement that provided, in relevant part,

In 2011, the employer and insurer filed a petition to discontinue permanent total disability benefits on grounds that the employee was capable of gainful employment.  In support of their petition, the employer and insurer submitted evidence establishing that the employee had earned substantial wages while working at a Home Depot store in Alaska in 2008, 2009, and 2010, while continuing to receive permanent total disability benefits.

By majority decision issued on October 8, 2012, a panel of this court concluded that the Workers’ Compensation Court of Appeals had jurisdiction to consider the employer and insurer’s petition to discontinue permanent total disability benefits.  Stevens v. S.T. Servs., 72 W.C.D. 569 (W.C.C.A. 2012).  Further noting that discontinuance was allowable only if the settlement agreement “contains language indicating that benefits are payable only if the employee continues to be permanently and totally disabled,”^[2] the court analyzed the stipulation and concluded that it was “evident that the parties contemplated continued payment of permanent total disability benefits only so long as the employee continued to qualify as permanently and totally disabled under the workers’ compensation act.”  Id. at 572-73.  Finally, on the merits of the petition to discontinue, we concluded that the matter should be referred for an evidentiary hearing and findings of fact.  Issues to be determined were whether the employee was permanently and totally disabled as of the hearing date, whether the employer and insurer were entitled to a credit for permanent total disability benefits paid while the employee was working in Alaska, and, if a credit was due, the amount of that credit.

The hearing on referral was held by a compensation judge on December 18, 2012. At that hearing, the parties informed the compensation judge that the employee had voluntarily agreed to discontinuance of permanent total disability benefits effective October 3, 2011, and the employee asked the judge to reinstate those benefits effective October 4, 2011, and continuing.  The parties agreed that the judge should also determine whether the employer and insurer were entitled to reimbursement of permanent total disability benefits paid between February 14, 2008, and December 20, 2010, on the theory that the employee had received those benefits in bad faith.  Evidence included the employee’s testimony, the employee’s medical records, and records concerning the employee’s employment at Home Depot.

In her findings and order issued on December 28, 2012, the compensation judge concluded that the employee had not been permanently and totally disabled from and after October 4, 2011, through the hearing date.  The compensation judge also determined that the employer and insurer had mistakenly paid the employee permanent total disability benefits during the period of his employment at Home Depot but that the employee had not received those benefits in bad faith.  She therefore awarded the employer and insurer a credit but denied their request for reimbursement.  Both parties appeal.

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 (2012).  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 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).

At oral argument, the employee clarified that he was not taking the position that the Workers’ Compensation Court of Appeals lacks jurisdiction to consider petitions to discontinue permanent total disability benefits.  Rather, he was alleging that the stipulation for settlement in this case does not demonstrate the requisite intent, specified by case law, to allow discontinuance.  We are not persuaded.  In our previous decision, we expressly considered this issue and resolved it in the employer and insurer’s favor.  Given that the employee did not appeal, our ruling to that effect is at least arguably the law of the case.^[3]  In any event, we see no reason to reverse our previous decision on either this issue or the question of our jurisdiction, in general, over requests to discontinue permanent total disability benefits.  We therefore decline to reverse the compensation judge or to dismiss the matter on these grounds.

In 2003, the employee began spending at least part of the year in Alaska, while his wife remained in Winona, Minnesota.  On about February 14, 2008, the employee secured employment in Alaska at a Home Depot store, working as a master plumber, giving plumbing advice to store customers.  He initially earned $25.00 an hour and worked essentially full time, earning $34,872 in 2008, $42,483.40 in 2009, and $32,727.75 in 2010.  The employee continued to receive permanent total disability benefits during this period.  The checks were evidently sent to the employee’s Winona address, and the employee’s wife would deposit the checks into their joint bank account.  The employee visited his wife in Winona for several weeks every year.

In December of 2010, the employee returned to Minnesota to undergo treatment for prostate cancer, including surgery and radiation.  He also ultimately received treatment for low back and radiating leg pain, vertigo, arm and wrist pain, and symptoms of a stroke.  According to medical records, the employee initially hoped to return to his Home Depot job in Alaska, and he worried that the side effects from his cancer treatment would prevent him from performing that job.  He did not return to that job, however, or to any other job, and he testified at hearing that the Home Depot position was eliminated at some point.

The compensation judge concluded that the employee was not permanently and totally disabled while he was employed in Alaska and that he had not established that he was permanently totally disabled as a substantial result of his work injury thereafter.  The employee contends that the compensation judge erred in her decision on this issue, in part because the Home Depot job was specifically tailored to accommodate the restrictions resulting from the employee’s work injury.^[4]  The employee also contends that the employer and insurer did not meet their burden to show that the employee was capable of substantial gainful employment or that the employee could qualify for any other work, either in Alaska or Winona.  We are not persuaded by any of the employee’s arguments.

To qualify for permanent total disability benefits, an injured employee must prove that “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 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).  The work injury need not be the sole cause, but only a substantial contributing cause, for benefits to be payable.  See Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987).  When discontinuance of benefits is sought, the employer and insurer have the initial burden to show an evidentiary basis for discontinuance, after which the burden shifts to the employee to establish entitlement.  See, e.g., King v. Farmstead Foods, 45 W.C.D. 282 (W.C.C.A. 1991).

In the present case, the compensation judge could reasonably conclude that the employee’s work at Home Depot established an evidentiary basis for discontinuance of permanent total disability benefits as contemplated by case law.  Whether or not the work was tailored to meet his restrictions, the work paid quite well, and the employee performed it for nearly three years.  Certainly the job qualified as sustained, gainful employment^[5] for the duration of the employee’s employment there.  Therefore, because the employer and insurer established a basis to discontinue benefits, the burden shifted to the employee to establish entitlement.  Id.

We concede that several factors weigh in favor of the employee’s permanent total disability claim.  He was 72 years old at the time of the most recent hearing.  His work-related bilateral shoulder condition limits him to light work, and he cannot work with arms outstretched or above his head, so he cannot do regular plumbing work.  In addition, aside from the Home Depot job in Alaska, it appears that the employee has not been employed in more than 25 years.  Add to this his other health complaints, and the record might support a finding that the employee is now permanently and totally disabled.  There are, however, other factors relevant to this issue.  Specifically, the employee has not looked for any work since returning from Alaska, he has not had his physical restrictions reassessed for many years, and he submitted no vocational evidence in support of his permanent total disability claim.  An employee need not search for work if a job search would be futile.  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).  In this case, however, there is no evidence on this point.  The record further indicates that the employee is capable of various physical activities despite his work-related condition,^[6] and even the employee feels that he would be able to work if he could find an employer that would accommodate his restrictions.  Given all of these circumstances, substantial evidence supports the compensation judge’s conclusion that the employee did not establish permanent total disability for the period in question.

The compensation judge concluded that the employee was not permanently and totally disabled from February 14, 2008, through December 20, 2010, during his Home Depot employment, and that the employer and insurer had mistakenly paid the employee benefits during this period.  The judge also concluded, however, that the employer and insurer were not entitled to reimbursement of the benefits paid, in that the employee did not receive those benefits in bad faith.  Substantial evidence supports the judge’s decision.

The employee testified that he informed the workers’ compensation insurance investigator about his employment annually, and the employer and insurer offered no evidence to the contrary.  The employee also testified that, when the Social Security Administration informed him that his earnings would have no effect on his entitlement to Social Security benefits, he assumed that the same would be true of his workers’ compensation benefits.  Given this evidence, the judge’s decision on bad faith was reasonable, and we affirm.

I agree there is substantial evidence to support the compensation judge’s determination that the employee was not permanent and totally disabled during the three years he worked in Alaska.  I concur in the result reached by the majority given the procedural posture of this case.

I respectfully dissent from the majority opinion for the same reasons expressed in my previous dissent in this case.  See Stevens v. S.T. Servs., 72 W.C.D. 569, 574 (W.C.C.A. 2012) (Hall, J., dissenting).

I am also not persuaded that the previous determination by this court confers jurisdiction to act where the plain language of the statute denies us jurisdiction.

This court should not be in the business of fashioning remedies for what it or the parties believe was an omission by the legislature.  The creation of those remedies by this court not only usurps the authority of the legislature, but also upsets the balance of negotiations among members of the Workers’ Compensation Advisory Council who make joint recommendations to the legislature for statutory changes.  I would vacate and dismiss.

I join Judge Hall in his dissent.