No. WC14-5696


CAUSATION - INTERVENING CAUSE.  Where the employee has ongoing restrictions due to his work injuries, and may be capable of some limited employment despite significant restrictions from his non-work tinnitus and vertigo, the employer and insurer failed to prove that the employee’s non-work conditions were a superseding, intervening cause of the employee’s disability.

REHABILITATION - ELIGIBILITY.  The court need not reach the question of whether a superseding, intervening cause may defeat liability for a rehabilitation consultation, where the employer and insurer failed to prove that the employee’s non-work tinnitus and vertigo were a superseding, intervening cause of the employee’s disability; accordingly, the judge’s award of a rehabilitation consultation was appropriate.

REHABILITIATION - WORK RESTRICTIONS.  Substantial evidence, including expert medical opinion, medical records and lay testimony, supports the compensation judge’s finding that the employee has ongoing physical restrictions as a result of his work injury.


Determined by:  Hall, J., Stofferahn, J., and Cervantes, J.
Compensation Judge:  Kathleen Behounek

Attorneys:  James A. Batchelor, Batchelor Law Firm, Minneapolis, MN, for the Respondent.  Craig B. Nichols and Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN for the Appellants.




The employer and insurer appeal from the compensation judge’s determination that the employee is entitled to a rehabilitation consultation.  We affirm.


The employee began working for the employer as an installation technician in 1997.  The job involved installing phone and DSL lines and connections both outside and inside of customers’ homes and businesses.

He sustained a work injury to the low back on July 25, 2005.  The injury resulted in an L5-S1 disc herniation with radicular symptoms in the right leg.  He underwent a right L5-S1 hemilaminectomy and microdiskectomy on October 21, 2005.  Following the surgery he was paid compensation for an 11 percent permanent partial disability and was released to full duty.

The employee returned to his pre-injury job classification, but testified his back and leg pain never entirely resolved after the surgery, and that his supervisors and co-workers generally allowed him to perform mostly the lighter aspects of the installer job and often avoid ladder work.

On June 16, 2007, the employee sustained a work-related left knee injury.  An MRI showed a complex tear of the posterior horn and body of the medial meniscus.  The employee was again off work and underwent surgery in the form of a left partial medial and lateral meniscectomy on September 14, 2007.

The employee was seen by Dr. Paul Cederberg for an examination on behalf of the employer in 2007.  Dr. Cederberg noted that the employee continued to have persistent left knee pain despite surgery.  He recommended permanent restrictions against repetitive squatting, kneeling or stair/ladder climbing.  Similarly, when evaluated during physical therapy in January 2008, the employee’s functional limitations were noted to restrict sitting for more than one to two hours or walking for more than five or ten minutes.  He had a limited ability to extend his knee, squat, kneel or bend the knee.

The employee initially returned to a light-duty version of his pre-injury job with the employer in which he did primarily paperwork and trained other installers.  In 2008, the employee was able to bid into a customer service office job for the employer which was not only lighter work than that of an installer, but which paid at a higher rate.  The job involved working at a computer to build networks for the employer’s customers.

The employee continued to have ongoing symptoms of popping and locking in his knee and continued to seek treatment for his knee over the next few years.  He was also seen several times from 2008 into 2010 for treatment for low back and radicular right leg pain.  In January 2009, the employee was evaluated for left knee pain by Dr. Asa B. Kim, who authorized him to work without restrictions.  However, when seen at MD Care on September 17, 2011 in follow up to a 2010 exacerbation of his low back pain, he was still complaining of trouble with his knee which continued at times to lock or give way.

Since sometime in 2008, the employee had been having non-work-related vertigo and tinnitus which continued to worsen over time.  By the spring of 2012, the symptoms had become debilitating, and on April 13, 2012, he was taken off work due to vertigo and accompanying migraine headaches.  The employee has been treated by Dr. Chiasson at the Noran Clinic for these conditions, and was seen from May 23, 2012 to January 16, 2013 at the National Dizzy and Balance Center, where he was discharged with no improvement.  He was on short term disability status from the employer from April 13, 2012 to April 18, 2013, and then sought long-term disability status and applied for social security disability.

On December 18, 2012, Dr. Orrin Mann examined the employee on behalf of the short-term disability carrier.  Dr. Mann diagnosed a vestibular pathology and nerve damage which gives intractable nausea, vomiting, vertigo and dizziness.  He considered the employee’s current functional capacities quite limited, noting that the employee could not travel in a car for more than 15 minutes at a time, could not tolerate bright lights or computer work for more than 15 minutes at a time, and could not work from heights.  On page 11 of his report, Dr. Mann offered this opinion about the employee’s ability to work:

He could, however, potentially work in a very limited capacity, probably from home, as he does not tolerate travel.  He would need to be in a room with lowered light setting with little computer work and with little motions of the head and torso.  He could not work at heights or in situations where falling could be harmful to himself or others.  There does not appear to be any deficit in his ability to work with audio stimuli, so he could potentially work on a telephone.

On March 20, 2013, the employee filed a rehabilitation request seeking approval for a rehabilitation consultation.  The employer denied authorization on the basis that the employee’s disability from work resulted from a superseding, intervening medical condition.

The employee was examined by Dr. Mark Engasser for a review of his orthopedic problems on August 1, 2013.  Dr. Engasser noted that the employee had work-related low back, right hip and right leg pain; work-related left knee pain with swelling and instability; and non-work-related right inguinal and groin pain.  Dr. Engasser opined that the employee’s orthopedic problems restricted him to only sedentary to modified light duty work.  He restricted lifting to 10 pounds frequently and 20 pounds occasionally, and limited standing and walking to at most four hours per day.

The matter came on for hearing on January 22, 2014.  Following the hearing, the judge found that the employee was still subject to work restrictions as a result of his work-related injuries, and that the employee’s restrictions from the non-work conditions were such as might permit him to perform some kind of work.  The compensation judge awarded the consultation, and the employer and insurer appeal.


In reviewing cases 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.  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, “[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 Foods Products, 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, “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.”  Id.


Minn. Stat. § 176.102, subd. 4(a), provides that a rehabilitation consultation must be provided by the employer to an injured employee upon request.  Generally, unless the employer or insurer has filed and been granted a rehabilitation waiver, an employee is entitled to a rehabilitation consultation as a matter of right.  Schierman v. Diversified Printers, slip op. (W.C.C.A. Jan. 13, 1998); Minn. R. 5220.0110, subp. 7.A.  The purpose of a rehabilitation consultation is to determine whether an employee is qualified for rehabilitation services.  Minn. R. 5220.0100, subp. 26.  The right to a rehabilitation consultation thus may not be challenged by the assertion that the employee is not a “qualified employee” for rehabilitation purposes.  Wagner v. Bethesda Hosp., slip op. (W.C.C.A, Jan. 5, 1995).

At the hearing below, the employer and insurer disputed the employee’s right to a rehabilitation consultation on the basis that the evidence in the case shows that his non-work conditions constitute a superseding, intervening cause of his disability which, they contend, severs their liability for a rehabilitation consultation.  Specifically, they point out that the employee had been able to work in his post-injury job as a customer service representative until disabled from that job by his non-work vertigo, tinnitus and migraine headaches.

We previously considered a similar factual argument in Buford v. Ford Motor Co., 52 W.C.D. 723 (W.C.C.A. 1995), summarily aff’d (Minn. June 30, 1995).  In Buford, an employee was able to perform light-duty work for the employer under restrictions from two admitted injuries until he sustained a non-work heart attack.  The employer contended that the heart attack was a superseding, intervening cause of his subsequent disability from work on the basis that the employee would still be able to work “but for” the heart attack.  However, as we noted in Buford, the question whether a contributing cause of disability is one which supersedes and intervenes the causal effects of a work injury, is not determined on the basis of a “but for” test.  Instead, a superseding, intervening cause “is one which severs the causal link between the original personal injury and the resultant disability such that the original personal injury is no longer a substantial and contributing cause of the resultant disability.”  Id. at 728.  Thus “[a] disabling, non-work-related medical condition sustained subsequent to a work injury does not automatically constitute an intervening cause where it can be shown that the previous work injury remains a substantial contributing factor in the employee’s disability.”  Leegard v. Mid-City Hotel Assoc., 44 W.C.D. 240, 243 (W.C.C.A. 1990).

Here, the compensation judge expressly found that the employee was still subject to work restrictions as a result of the work-related injuries.  She also noted in her memorandum that there was evidence, in the form of Dr. Mann’s opinion, to suggest that the employee’s restrictions from the non-work conditions were such as might permit him to perform some kind of work.  These findings, if supported by substantial evidence, constitute an implicit determination that the employee’s non-work conditions were not a superseding, intervening cause of his disability.

The employer and insurer, however, dispute both factual findings on appeal.  They argue that the medical records fail to demonstrate that the employee was given permanent work restrictions for the lumbar spine after his recovery from surgery.  They also point to medical records, notably the chart note of Dr. Kim from January 2009, which released the employee to return to work without restrictions following the knee surgery.  They also point out that the employee returned to work in the same job for the employer after both injuries.  With respect to the finding that the employee is not totally disabled from all work due to his non-work conditions, the employer argues Dr. Mann’s opinions should have been given little weight where the employee’s treating physicians for his tinnitus and vertigo had taken him off work entirely from his post-injury job and have not released him to return to work.

The employee counters that the finding of ongoing restrictions due to the work injuries has substantial support in the record.  Among evidence supporting the findings, we note the employee’s testimony about how his injuries continued to affect his ability to perform certain tasks and about the modified nature of his post-injury jobs for the employer.  We note further that the employee’s testimony was buttressed by the medical records of treatment through at least 2011.  Finally, we note that the compensation judge’s findings were supported by the restrictions offered by Dr. Engasser in 2012 and the medical opinion of Dr. Mann.

Finding substantial support in the record for the judge’s findings, we affirm both those findings and the award of a rehabilitation consultation to determine whether the employee qualifies for vocational rehabilitation services.

As an alternative basis for her award of the rehabilitation consultation, the compensation judge concluded that the “the employer’s contention that the employee continues to be totally disabled as a result of his non-work related condition bears more to the issue of whether the employee is a qualified employee for rehabilitation, rather than entitled to a consultation.”  The employer and insurer contend on appeal that by denying their defense on this basis, the compensation judge essentially held that a defense of superseding, intervening cause may not be raised against a request for a rehabilitation consultation.  Citing various cases which they contend indirectly support their position, they argue that such a holding is error as a matter of law.

We need not reach the question whether a defense of superseding, intervening cause may be raised against a request for a rehabilitation consultation, as our affirmance of the compensation judge’s factual findings in this case renders this issue moot.