MARY B. ARNESON, Employee/Appellant, v. ALEXANDRIA EXTRUSION, SELF-INSURED/MEADOWBROOK INS. GROUP, Employer/Respondent, and MINN. DEP’T OF HUMAN SERVS. and INJURED WORKERS’ PHARMACY, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 18, 2016

No. WC15-5850

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge’s decision regarding the nature and extent of the employee’s work injuries.

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where there is evidence that the employee was capable of some sedentary employment and was employable within her local labor market with reconditioning, training, and job search assistance, substantial evidence supports the compensation judge’s denial of permanent total disability.

Determined by:
            Patricia J. Milun, Chief Judge
            David A. Stofferahn, Judge
            Manuel J. Cervantes, Judge

Compensation Judge:  Sandra J. Grove

Attorneys:  Deanna M. McCashin, McCashin Law Firm, Chtd., Alexandria, Minnesota, for the Appellant.  Arlen R. Logren and Krista L. Hiner, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Respondent.

Affirmed.

OPINION

PATRICIA J. MILUN, Chief Judge

The employee appeals the compensation judge’s denial of her permanent total disability claim.  We affirm.

BACKGROUND

Mary B. Arneson, the employee, began working as a machine operator for Alexandria Extrusion in 2005.  The employer was self-insured for workers’ compensation liability with claims administered by Meadowbrook Insurance Group.  The employee loaded parts from pallets, used a power torque wrench, used hand tools to deburr parts, and packed parts onto shelves.  Many functions of the job involved work at shoulder level or higher.  On January 9, 2009, the employee began experiencing pain in her mid-back, heaviness in her arms, and pain and numbness in her hands.  The symptoms increased when she returned to work the following Monday.

The employee began treating with Dr. Steven Radjenovich for pain between her shoulder blades radiating into her neck, arms, and hands.  Dr. Radjenovich noted somatic dysfunction in the thoracic, cervical, and lumbar spine with significant muscle spasm, and assigned restrictions of no lifting over ten pounds and no use of torqueing wrenches.  The employer admitted liability for the thoracic spine injury.  The employee reported improvement of her back pain since she stopped using torqueing wrenches and was released to return to work without restrictions on January 29, 2009.  The employee experienced additional symptoms and took voluntary layoffs from February 7 through April 3, 2009, and from May 2 through May 30, 2009.

On June 2, 2009, the employee reported arm numbness with tingling and pain after working a shift and was treated for distal arm pain and thoracic back pain.  Dr. George Erhard diagnosed bilateral carpal tunnel syndrome and thoracic sprain/strain.  On June 5, 2009, a thoracic MRI scan indicated left paracentral and subarticular recess thoracic disc herniation with an annular tear, without central spinal canal stenosis or neural foraminal narrowing, and no evidence of cord compression.  The employee’s last day of work for the employer was June 9, 2009.  On June 15, 2009, the employer denied primary liability for any cumulative injury to the employee’s wrists.  The employer also notified the employee that she was released to light-duty work and that the employer had work available within her restrictions.  Dr. Radjenovich took the employee off work indefinitely as of July 14, 2009.

On August 17, 2009, the employee filed a claim petition for temporary total and temporary partial disability benefits, medical expenses, and rehabilitation benefits.  The claim petition listed the employee’s work injury as a Gillette injury involving a thoracic herniation and bilateral carpal tunnel.  The employee amended her claim petition to add a cervical spine injury on October 29, 2009.  On March 3, 2010, the parties litigated the claims contained in the petition.  The employer argued that the employee had experienced a temporary aggravation of pre-existing degenerative changes which lasted two weeks and needed no further treatment or restrictions.  A compensation judge found that the employee had sustained Gillette-type injuries to her cervical spine, thoracic spine, and her bilateral wrists that continued to be symptomatic.[1]  No appeal was taken from this decision.

The employee continued to treat for her spinal condition with thoracic facet injections and pool therapy with no significant relief.  In July 2010, the employee treated with Dr. James Andrews for her back condition.  He noted cervical, thoracic, and lumbar spine spasms and diagnosed chronic pain syndrome.  The employee was seen for an independent neurologic evaluation by Dr. Donald Starzinski, who opined that any spine injury would have resolved by April 2009.

On April 1, 2011, the employer filed a petition to discontinue benefits on the grounds that the employee had reached maximum medical improvement, that her work injury had resolved, or that she was able to return to work with restrictions with the employer.  After a hearing, a compensation judge denied the petition to discontinue benefits, finding that the employee’s injuries had not resolved by the date of the hearing since she had persistent spasms and pain in her thoracic spine that limited her ability to function in daily activities, that she had not reached MMI, and that she had not unreasonably refused light-duty work.[2]  No appeal was taken from this decision.

In a June 26, 2012, report, Dr. Andrews responded to a request to determine the employee’s “permanent partial disability in regards to this patient’s work related injury.”  Dr. Andrews rated the employee as having 10 percent permanent partial disability for her cervical condition, 2.5 percent for her thoracic condition, and 7 percent for her lumbar condition.  On July 16, 2012, the employee filed a claim petition for permanent partial disability benefits based on these ratings.

Dr. Andrews also recommended a functional capacities evaluation which the employee underwent on July 9-10, 2012.  Dr. Andrews concluded that the FCE demonstrated that the employee was capable of obtaining a sedentary job of 4 to 5 hours per day but was “not capable of sustaining competitive employment.”[3]  The FCE identified the following limitations for the employee: deconditioned, unable to squat, kneel, or lift below waist level, low tolerance for walking and standing, upper back weakness and low endurance functionally limited reaching (forward, to the side, and above shoulder level) to occasional, low lifting/carrying abilities due to trunk and shoulder weakness, and limited trunk flexion tolerance.  Dr. Andrews recommended a pain program and assigned permanent restrictions of limited standing or walking 3 hours per day at 8 to 10 minute intervals, no squatting, climbing, crouching or kneeling, rare bending, occasional reaching, pushing or pulling, and no lifting from the floor, no lifting over 25 pounds, and limited lifting/carrying at waist level.  No driving restrictions were assigned.

On August 1, 2012, the employee was again examined by Dr. Starzinski at the employer’s request.  Dr. Starzinski opined that the employee’s January 2009 work injuries were temporary aggravations of her underlying degenerative spine condition and her carpal tunnel condition, and concluded that the employee was displaying a chronic pain syndrome unrelated to the work-related injury.  In February 2013, the employer approved an inpatient pain program for the employee in the Twin Cities area.  Based on the evidence in the record, the employee has yet to attend a pain clinic appointment, citing transportation issues.

The employee raised the permanent partial disability claims in a July 16, 2012, claim petition which listed the nature of the employee’s injury as being to the neck, low back, and thoracic spine.  The parties settled the employee’s permanent partial disability claims to the extent of Dr. Andrews’ ratings of 10 percent permanent partial disability for her cervical condition, 2.5 percent for her thoracic condition, and 7 percent for her lumbar condition in 2013.  The employer had previously paid permanent partial disability claims based on a 3.5 percent rating for the cervical spine and 2.5 percent for thoracic spine.  But in the stipulation for settlement, the employer claimed that those payments were made by mistake, maintained that the nature and extent of the admitted work injuries remained in dispute, and specifically denied that the employee had sustained a lumbar spine injury.

On February 28, 2014, the employee’s QRC, Ione Tollefson, issued a report opining that the employee was unable to maintain competitive employment, noting her lack of endurance, debilitating pain which increased with activity, difficulty with activities of daily living, difficulty tolerating driving, and location in a rural area with a limited labor market.  The QRC concluded that the employee was not employable for the foreseeable future.  In March 2014, rehabilitation services ended.

The employee filed a claim petition for permanent total disability benefits on March 28, 2014.  The claim petition listed the nature of the employee’s January 9, 2009, injury as being to the neck, low back, thoracic spine, and carpal tunnel.

The employee underwent an independent medical examination with Dr. Kristen Zeller on November 6, 2014.  Dr. Zeller opined that the effects of any strain-type injury would have resolved long ago since generally that type of injury would heal in a 6 to 12 week period.  She diagnosed fibromyalgia that was not related to the work injuries and interpreted the FCE as signifying that deconditioning was the employee’s main barrier.  Dr. Zeller concluded that the employee was not permanently and totally disabled since there was nothing from an objective medical standpoint that was limiting her work ability.  Dr. Zeller did not recommend a chronic pain program because in her opinion it would not make a significant improvement in the employee’s condition.  She recommended that the employee be tapered off narcotic medications and be more physically active.

On April 14, 2015, the employee underwent a vocational evaluation with Jan Lowe at the employer’s request.  Ms. Lowe opined that the employee was employable within her local labor market, but that she needed reconditioning, training, and job search assistance.

A hearing was held on May 20, 2015.  At the hearing, the compensation judge stated the issues for determination as including:

the nature and extent of the injury on January 9, 2009, including whether the employee is permanently and totally disabled as a substantial result of the injuries with a permanent total disability date of May 26, 2012.[4]

The parties agreed that all issues were stated correctly.  The compensation judge found that the employee sustained chronic sprain/strain injuries to her cervical and thoracic spine and mild carpal tunnel syndrome culminating on January 9, 2009, and that the cervical and thoracic injuries had “resolved no later than July 10, 2012, when the FCE established that the employee is primarily limited by deconditioning, and are no longer a substantial contributing factor with respect to any disability.”[5]  In her memorandum, the compensation judge stated that the carpal tunnel syndrome had also resolved by July 2012.  The judge also found that the employee had not sustained a work injury to her low back, that the work injuries had not changed the natural course of the employee’s pre-existing, multi-level, degenerative disease of the cervical, thoracic, and lumbar spine, and that any restrictions were not related to the work injuries.  Medication expenses were denied as not causally related to the work injuries.

The compensation judge further found that the employee met the statutory threshold of permanent partial disability and that she was totally disabled because of substantial limitations due to pre-existing degenerative disease of the cervical, thoracic, and lumbar spine exacerbated by smoking, inactivity, obesity, and migraine headaches.  The judge determined that these limitations precluded her from all substantial gainful employment in her geographic area, and that while the employee was totally disabled, her disability was not permanent.  The judge therefore denied her claim for permanent total disability benefits.  The employee appeals.

STANDARD OF REVIEW

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.[6]  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.[7]  Findings of fact are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[8]  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.”[9]

DECISION

The employee contends that the compensation judge erred in determining that the employee’s work injuries were no longer a substantial contributing factor of any disability by making findings regarding issues which were not raised by the parties.  We are not persuaded by this argument for the reasons stated below.

The employee’s March 28, 2014, claim petition for permanent total disability benefits initiated the proceedings.  The employee listed the nature of her January 9, 2009, injury as being to the neck, low back, thoracic spine, and carpal tunnel.  As a general rule, a compensation judge will not raise an issue that the parties have not raised at the hearing.[10]  Here, the material issue raised by the employee was permanent total disability.  On the record, the judge listed the nature and extent of the employee’s injuries sustained on January 9, 2009, as one of the issues to be addressed.  The parties agreed to the recitation of the issues without correction or clarification.  It appears to us from the trial transcript that the parties took the position that defining the nature of the work injury and defining the extent of the work injury were relevant to the ultimate disposition of the case.

In fact, while the parties did settle the employee’s July 16, 2012, claim for permanent partial disability, which included a rating for a low back injury, the employer maintained that the nature and extent of the admitted work injuries remained in dispute and specifically denied that the employee had sustained a lumbar spine injury.  The nature and extent of the employee’s work injuries encompassed all of the injuries listed on the March 28, 2014, claim petition, including the employee’s alleged low back injury.  A dispute also remained on whether the employee’s restrictions were related to her work injuries and that decision was made in part by addressing the extent of the employee’s injuries.  We therefore conclude the compensation judge committed no error in law by considering the nature and extent of the work injuries.

The employee also argues that Dr. Zeller’s opinion does not support the judge’s finding that the employee’s work injuries had resolved by July 2012 since Dr. Zeller didn’t use the July 2012 date, but had opined that the sprain/strain injuries would have resolved 6 to 12 weeks post injury.  The employee contends that Dr. Zeller’s opinion conflicts with the previous unappealed findings in 2010 and 2011, in that the employee’s work injuries had not resolved.  We are not persuaded by this argument.  The compensation judge did not rely on Dr. Zeller’s opinion as to the date that the employee’s injuries had resolved, but instead relied on Dr. Zeller’s interpretation of the employee’s July 2012 FCE that the employee was primarily limited by deconditioning at that time.  The FCE identified limitations for the employee as being deconditioned, unable to squat, kneel, or lift below waist level, low tolerance for walking and standing, upper back weakness and low endurance functionally limited reaching to occasional, low lifting/carrying abilities due to trunk and shoulder weakness, and limited trunk flexion tolerance.  The FCE did not connect the employee’s need for work restrictions specifically to any of the employee’s work injuries.  The judge was free to analyze and consider the causal connection between the employee’s condition in July of 2012 and the work related injury of October 2009.  The date chosen by the compensation judge, July 10, 2012, was after the last Findings and Order relied on by the employee.[11]  The compensation judge could reasonably rely on Dr. Zeller’s opinion and the FCE in determining that the employee’s work injuries had resolved and that any restrictions were no longer related to her work injuries.

Based on her findings that the employee’s work injuries had resolved by July 2012, that the employee had not sustained a low back injury,[12] and that the employee’s restrictions were no longer related to her work injuries, the judge made the ultimate finding that the employee’s work injuries were not substantial contributing factors to her disability at the time of the hearing.  Substantial evidence in the record supports these findings.

The employee also appealed the compensation judge’s denial of claims for medications prescribed after July 2012.  Since we have affirmed the compensation judge’s finding that the employee’s work injuries were not substantial contributing factors of her disability after July 2012, we also affirm the finding, under a substantial evidence review, that the claimed medication expenses were no longer causally related to the work injury.

Finally, the employee argues that the compensation judge erred by denying the employee’s claim for permanent total disability.  Permanent total disability, as defined by Minn. Stat. § 176.101, subd. 5(2), means an injury which “totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.”  “[T]otally and permanently incapacitated” means that the employee’s physical disability, after meeting threshold criteria, “causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.”[13]  The employee’s age, education, training, and experience may also be considered.[14]

Here, the compensation judge found that the employee was precluded from all substantial gainful employment in her geographic area and was totally disabled, but also found that her total disability was not permanent, noting in her memorandum that the employee’s limitations could be significantly reduced.  In her appeal, the employee points to the fact that she was permanently and totally disabled based on the QRC’s report and Dr. Andrews’ opinion that the employee was not capable of sustained competitive employment.  We agree that there was evidence in the record to support this position; however, the point is not whether we might have viewed the evidence differently, but whether the findings are supported by the evidence under the Hengemuhle standard of review.[15]

The analysis of permanent total disability in a workers’ compensation case has medical and vocational components, and the question of whether an employee has met the burden of proving permanent total disability is ultimately a question of fact for the compensation judge.[16]  In this case, there is conflicting medical and vocational evidence on the issue of the employee’s permanent total disability.  The judge relied on Dr. Zeller’s opinions, Jan Lowe’s testimony, and the FCE report in denying the permanent total disability claim.  Dr. Zeller found nothing from an objective medical standpoint that was limiting the employee’s work ability and concluded the employee was not permanently and totally disabled.  Ms. Lowe opined that the employee was employable within her local labor market with reconditioning, training, and job search assistance.  The FCE indicated that the employee had a sedentary work ability of 4 to 5 hours per day with restrictions.  Here, the judge concluded that Dr. Zeller’s and vocational expert Jan Lowe’s opinions were more persuasive than the opinions of Dr. Andrews and the QRC.  We find substantial evidence in the record to support this conclusion.

The employee also argues that she is not able to drive for more than half an hour, which limits her ability to commute to some treatment and to potential workplaces.  The compensation judge noted that video surveillance of the employee indicated that the employee was able to drive even while taking her medications, but it otherwise was not a factor in her decision.  The judge was free to determine what weight the testimony of the employee held against the video surveillance and to conclude that the employee’s ability to drive was not as restricted as the employee testified.

Substantial evidence supports the compensation judge’s finding that the employee’s total disability was no longer work related and was not permanent at the time of the hearing.  We affirm.



[1] Findings and Order served and filed May 3, 2010.  Employee’s Ex. E.

[2] Findings and Order served and filed April 28, 2011.  Employee’s Ex. G.

[3] Employee’s Ex. D.

[4] Transcript at 7.

[5] Finding 39.

[6] Minn. Stat. § 176.421, subd. 1.

[7] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60, 37 W.C.D. 235, 239-40 (Minn. 1984).

[8] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[9] Id.

[10] Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988) (basic fairness requires reasonable notice and opportunity to be heard).

[11] See, e.g., Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982) (any res judicata effect of a prior workers' compensation determination is limited to those issues determinative of benefit eligibility at issue and in existence as of the date of the prior hearing).

[12] The employee also requests that this court vacate Finding 40 of the judge’s findings and order.  The employee did not list Finding 40 in her notice of appeal and therefore we will not consider it.

[13] Minn. Stat. § 176.101, subd. 5(2).

[14] Id.

[15] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60, 37 W.C.D. 235, 239-40 (Minn. 1984).

[16] See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541, 36 W.C.D. 133, 139 (Minn. 1983).