RICHARD E. CARLSON, Employee/Appellant, v. LAKESIDE FOODS, INC., and CNA INS., Employer-Insurer/Respondents.

The employee appeals from the compensation judge’s determination that the employee is not permanently and totally disabled.  We find the determination to be unsupported by substantial evidence when viewing the record as a whole, and we reverse the compensation judge’s decision.

Richard Carlson was injured on November 3, 2010, while he was unloading a truck for his employer, Lakeside Foods.  He was knocked down by vegetables falling out of the back of a truck he was unloading, fell, and injured his low back.  The employer and its workers’ compensation insurer, CNA, accepted liability for the injury.

The employee’s initial care was at Mayo Clinic Owatonna where the employee complained of low back, left buttock, and left leg pain.  He was treated conservatively with medication and work restrictions.  An MRI scan on November 17, 2010, was read as showing a “small broad-based disk bulge” at L4-5 and a disk bulge at L5-S1 which was noted as being a “considered culprit lesion for the patient’s symptomology.”  The employee was referred to Dr. Ensor Transfeldt at Twin Cities Spine Center in July 2011.  Dr. Transfeldt diagnosed: (1) disc degeneration/spondylosis, L2 through S1; (2) facet arthrosis, L3-4, L4-5, and L5-S1; and (3) primarily axial back pain.  Dr. Transfeldt recommended physical therapy.

The employee was off work during this time, was being paid temporary total disability benefits, and was receiving rehabilitation services from Julie Kjos, a qualified rehabilitation consultant (QRC) selected by the insurer.  Her activity was essentially medical case management.  The employee was released to sedentary work in May 2011, but the employer was not able to accommodate his restrictions.

At some point in 2011, Mr. Carlson moved from Owatonna to the Twin Cities and moved into his grandparents’ home to help care for them.  By agreement of the parties, the employee’s medical care was transferred to Dr. Erik Ekstrom at the Institute for Low Back and Neck Care.  Dr. Ekstrom ordered a repeat lumbar MRI and, based on the results, recommended medial-branch blocks.  That procedure was performed in June 2012, but the employee reported no improvement in his symptoms.  Dr. Ekstrom recommended a Med-X program for spine strengthening and released the employee to work on a limited basis.  The employer made light duty work available, but the sitting involved in the job exacerbated the employee’s low back pain.  After an appointment with Dr. Ekstrom on July 26, 2012, the employee was taken off work again.

The employee was evaluated by Dr. Paul Wicklund on October 4, 2012, at the request of the employer and insurer.  After reviewing medical records and examining the employee, Dr. Wicklund concluded that the November 2010 work injury was a low back strain that the employee was at maximum medical improvement, that he had no permanent partial disability, no need for additional medical treatment, and no need for work restrictions.

A hearing was held before Compensation Judge Gary Mesna in January 2013 to consider a number of issues in dispute including: a change of QRC, whether the employee was at maximum medical improvement, whether the work injury was temporary or permanent, whether temporary total disability benefits should be continued, and approval of pain clinic treatment.  In his Findings and Order of January 31, 2013, the compensation judge found the November 2010 work injury was a substantial contributing cause of the employee’s current back condition, the employee had not reached maximum medical improvement, denied discontinuance of temporary total disability benefits, approved a change of QRC, and found a chronic pain program was reasonable and necessary.  The compensation judge’s decision was not appealed.

The employee consulted with Dr. Matthew Monsein at Phoenix Center Pain Services on March 21, 2013.  Following the evaluation, Mr. Carlson entered and completed the program.  In a report of July 20, 2013, to the new QRC, Lori Magoffin, Dr. Monsein commented that it was unclear how much the employee had benefited from the program and he stated the employee “continues to remain frustrated and I continue to question his level of motivation in terms of rehabilitation.”

A three day functional capacity evaluation (FCE) was scheduled for August 5-7, 2013.  The employee only completed part of the evaluation and did not appear for the final day at all.  Based on the employee’s attendance and failure or inability to perform, no work restrictions were established by the FCE.

The employee and his QRC met with Dr. Ekstrom in September 2013 to discuss workability.  Because of the absence of an FCE, Dr. Ekstrom decided that his restrictions should be “written to work as tolerated.”  He did indicate that lifting waist to shoulders should be limited to 20 pounds and shoulder to overhead 25 pounds.  Dr. Ekstrom also concluded the employee was at maximum medical improvement.  No further treatment recommendations were made at that time.

A job placement plan and agreement (JPPA) was prepared in October 2013 by QRC Magoffin.  The JPPA called for the employee to search for employment within his restrictions on a full-time basis.  Jobs identified for exploration were personal care attendant (PCA), customer service, dispatcher, companion, and outdoor work.

During this time the employee continued to live at his grandparents’ home. After his grandfather passed away, the employee continued to live in the home and provided assistance to his step-grandmother.  By February 2014, the employee had been approved to work as a PCA by TLC Home Care and was employed by them to provide services 4 hours a day, 5 days a week to his grandmother.

The employee was also expected to continue with job search during this time.  A review of the rehabilitation records and reports show numerous instances of the employee missing appointments, failing to provide job logs, and not keeping in regular contact with his QRC.  At a meeting in Dr. Ekstrom’s office in February 2014, the employee indicated difficulty with those tasks because of increasing pain.  Dr. Ekstrom recommended bilateral medial nerve blocks at L2, L3, and L4.  If those blocks were helpful, Dr. Ekstrom believed that radiofrequency neurotomy should be considered.

The employee was seen again by Dr. Wicklund for an independent medical examination (IME) on April 23, 2014.  Dr. Wicklund noted that “it has been judicially determined that he does have a permanent back injury,” but he also restated his earlier opinion that the employee’s work injury was a low back strain.  He changed his opinion on the date of maximum medical improvement and agreed with Dr. Ekstrom’s initial conclusion that it had occurred in August 2012.  He did not agree with additional medial blocks being done and placed restrictions of no lifting over 25 pounds with no restriction on the hours worked.  The employee filed a claim petition in June 2014 seeking various benefits including approval of the nerve root injection recommended by Dr. Ekstrom.

Dr. Ekstrom prepared a report dated July 10, 2014, at the request of the employee’s attorney.  He stated that “more likely than not” the work injury of November 2010 “substantially contributed to Mr. Carlson’s diagnosis of lumbar facet mediated pain.”  He continued to recommend the nerve blocks he had previously prescribed.  He also set work restrictions of no more than 20 hours a week, positional changes as needed, and occasional lifting of no more than 10 pounds.

The employee continued to provide services for his grandmother until her death in September 2014.  After her death, he was assigned to another client by TLC but there was some question about his performance on this job and he was taken off the assignment by TLC.  The employee was to call TLC for other assignments but did not do so and was terminated.  The QRC requested job placement services be initiated but the parties could not reach agreement on the parameters of the job search.

At Dr. Ekstrom’s recommendation a lumbar MRI was done again on February 14, 2015. The new study was read as showing stenosis at L4-5 with moderate L5 compression, mild central and moderate left stenosis at L3-4, and chronic mild to moderate foraminal stenosis at L5-S1 and L4-5.  After reviewing the results, Dr. Ekstrom reiterated his recommendation to repeat the nerve root injections.

The parties agreed to a vocational assessment which was done on April 25, 2015, at VocOptions, Inc., by Mary Skubal.  Testing showed Mr. Carlson was at the 12th percentile in general intellectual ability, he performed math calculations at the 14th percentile, and his reading vocabulary and comprehension was at the 6th grade level.  Applying Dr. Ekstrom’s restrictions, Ms. Skubal concluded there were no occupations consistent with his past work skills that he could presently perform.  If a potential search was expanded to include occupations similar to his past work experiences, the jobs identified were “selective shuttle driver/light delivery” and “selective bench work, repair, assembly, packaging.”

That information was given to Kari Terwey, a placement specialist at Palmer Placement Services, for a labor market survey.  She concluded that, based on the employee’s physical restrictions he would not qualify for jobs in assembly packaging, janitorial work, or driving.  She contacted more than 60 potential employers and found that none of them had work for the employee given his experience and restrictions.  She stated that, additionally, employers would have concerns about being able to accommodate the employee’s limit of a four hour work shift.

A hearing on the employee’s claim petition was held before a compensation judge on June 17, 2015.  Before the hearing, both Dr. Wicklund and Dr. Ekstrom prepared narrative reports.

In his report dated June 5, 2015, Dr. Wicklund referred to a reexamination done on May 26, 2015, and his review of records.  Dr. Wicklund restated his opinion that the employee’s work injury was a low back strain.  He concluded there was no permanent partial disability in excess of the “judicial determination” of 13% and restricted employment to work without bending, twisting, stooping or lifting more than 25 pounds.  No restrictions on hours were necessary in his opinion.

Dr. Ekstrom issued a narrative report to the employee’s attorney on June 12, 2015.  He concluded that the appropriate permanent partial disability was 22% based on Minn. R. 5223.0390, subp. E.(4).   He continued to state that the employee should be restricted to 20 hours with only 10 pound lifting.  His diagnosis of the employee’s condition was of an “active L5 radiculopathy secondary to his lumbar stenosis.”

A vocational evaluation of the employee was completed by Jan Lowe at the request of the employer and insurer on April 7, 2015.  She provided deposition testimony concerning her review on June 16, 2015.  It was her opinion that the employee was not permanently and totally disabled.  His vocational program should consist of “work adjustment, work hardening, and skill building, followed by job placement.”  In reaching her opinion, Ms. Lowe applied the restrictions set by Dr. Ekstrom in September 2013 which allowed full-time work and lifting up to 25 pounds.  Ms. Lowe testified that she thought those restrictions were consistent with the restrictions set by Dr. Wicklund.  It was her further opinion that the employee could be employed as a PCA with an earning potential of $9-11.00 per hour.

The witnesses at the hearing were the employee and his QRC, Lori Magoffin.  Mr. Carlson testified about his symptoms and his beliefs regarding the physical activity he was able to tolerate.  The employee also testified about his care for his step-grandmother.  He stated there was very little physical activity involved in caring for her.  She was generally independent and the employee noted she was able to go up and down stairs without assistance and was able to do so better than he could.  The employee agreed that his grandmother had some dementia that required care.  The employee was cross-examined on his absences from scheduled events such as the third day of the FCE and his failure to do the job search called for in the JPPA.

In her testimony, Ms. Magoffin reviewed her work with the employee since February 2013, including accompanying the employee to his appointments with Dr. Ekstrom.  She had also directed the vocational testing done by Ms. Skubal.  Based on the testing, Ms. Magoffin concluded the employee was not a retraining candidate.  Ms. Magoffin had also arranged for the labor market survey done by Ms. Terwey.  Based on this information, Ms. Magoffin testified that Mr. Carlson was not employable.

The parties also introduced documentary evidence in support of their positions.  The employer and insurer introduced “Job Description:  Personal Care Attendant” prepared by TLC Home Care, the employee’s employer while he took care of his grandmother in her home.  (Employer’s Ex. 7.)  The exhibit identified 25 “specific functions/responsibilities” for a PCA, including performing transfers, performing turning and positioning, and assisting with bathing and other personal hygiene activities.  For physical requirements, the job description stated “Heavy physical demands - involves lifting clients, stooping and stretching.”

The compensation judge issued her decision on July 21, 2015.  She determined the employee had sustained a 22% permanent partial disability as a result of the work injury.  She denied the employee’s claim for permanent total disability benefits and stated “part time PCA work is readily available in the employee’s labor market.  It is reasonable to believe that there are PCA positions available that fall within the restrictions recommended by Dr. Ekstrom in his July 10, 2015, letter.”^[2]

The employee has appealed the compensation judge’s decision.

To be found eligible for permanent total disability benefits, an injured employee must satisfy a two elements.  The employee must establish the requisite degree of permanent partial disability set forth in Minn. Stat. § 176.101 subd. 5.  The employee must then demonstrate that the employee’s physical condition “causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.”  Id.

Mr. Carlson was born January 12, 1966, making him 44 years old on the date of injury.  The statute requires “at least a 17 percent permanent partial disability.”  Minn. Stat. § 176.101, subd. 5(2).  The employee has met the threshold as a result of the compensation judge’s finding that he has sustained a 22% permanent partial disability from the work injury.  Since this element has been met, the issue on appeal is whether or not the employee has established that he is unable to secure anything more than sporadic employment with an insubstantial income.

Generally, an employee demonstrates an inability to find suitable employment by means of a diligent job search.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  It is apparent from the record before us that the employee’s efforts in this regard have been less than stellar.  The record is replete with references to the employee’s failure to keep appointments and to keep his QRC advised of his employment-related activity.

However, the lack of a diligent job search does not necessarily preclude a determination that the employee is permanently totally disabled.  The employee’s minimal cooperation in this case is not a bar to an award of permanent total disability if the evidence supports a determination that even a diligent job search would be futile.  Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn. 1992); Worrell v Eickhoff Enters., Inc., 73 W.C.D. 237 (W.C.C.A. 2013).  Making such a determination requires a review of the medical information and the work restrictions imposed as a result of the effects of the employee’s work injury.  Given those restrictions, the issue becomes whether there is employment within those restrictions that would be available in the employee’s labor market.

There are competing medical opinions as to the employee’s diagnosis, extent of permanent partial disability, and work restrictions.  As Compensation Judge Mesna noted in his memorandum following the 2013 hearing, “the opinions of Dr. Ekstrom and Dr. Wicklund could not be further apart.”  Their opinions were not any closer together by the time of the 2015 hearing.

Dr. Wicklund evaluated the employee a number of times for the employer and insurer.  His first evaluation was in October 2012 and the last was in May 2015.  Dr. Wicklund’s opinion remained consistent.  He diagnosed the employee as having sustained a lumbar strain.  Initially it was his opinion that the employee had no permanent partial disability from the injury. Acknowledging that a 13% permanent partial disability had been judicially determined, Dr. Wicklund’s most recent statement was that there was no permanent partial disability beyond 13%.  As to work restrictions, Dr. Wicklund most recently stated that he agreed with the restrictions placed on the employee by Dr. Ekstrom in September 2013.  That is, the employee could work full time and lift no more than 25 pounds.

The employee’s treating doctor, Dr. Ekstrom, diagnosed “an active L5 radiculopathy secondary to his lumbar stenosis.”  He rated the employee as having a total 22% permanent partial disability, based on that part of the schedule for the lumbar spine with radicular pain and objective findings.  As to restrictions, Dr. Ekstrom in his June 12, 2015, letter to the employee’s attorney, reiterated the restrictions he first placed on the employee in July 2014.  The doctor restricted the employee to working no more than 20 hours per week with no lifting over 10 pounds.

The compensation judge accepted the opinion of Dr. Ekstrom over that of Dr. Wicklund. She found the employee had a 22% permanent partial disability from the work injury as rated by Dr. Ekstrom.  (Finding 17.)  In determining the employee’s ability to work she accepted Dr. Ekstrom’s opinion that the employee was limited to part-time work and accepted the opinion that he could lift no more than 10 pounds.  (Finding 15.)  The question then is whether substantial evidence exists to support the compensation judge’s determination that employment was available for the employee within these limits.

The vocational opinions on this question were in conflict.  One opinion was provided by the employee’s QRC, Lori Magoffin.  Ms. Magoffin had worked with the employee since February 2013.  She accompanied him to his appointments with Dr. Ekstrom.  She worked with the employee in his rehabilitation activities and she was well aware of the employee’s issues in cooperating with those activities.  Ms. Magoffin directed the vocational assessments and job placement survey.  In rendering an opinion on employability, Ms. Magoffin adopted the work restrictions set by Dr. Ekstrom in June 2015.  It was her opinion that the employee was not employable.

The other vocational opinion was from Jan Lowe who evaluated the employee on behalf of the employer and insurer.  In her deposition testimony, Ms. Lowe specifically adopted the restrictions from the partial FCE done in October 2013 and Dr. Ekstrom’s report from September 2013.  She concluded that the employee could work full-time with a 25 pound lifting limit.  It was her opinion that this would allow him to work as a PCA.  Ms. Lowe reached that opinion based on Mr. Carlson having provided PCA services to his grandmother.

The only evidence about the requirements of being a PCA comes from the job description prepared by TLC and introduced into evidence by the employer and insurer.  The job description lists 25 duties expected of a PCA.  Some of those duties include providing bowel and bladder care, performing skin care, performing transfers, completing appropriate records to document cares given and pertinent observation, and assisting with bathing and grooming.

There is no evidence that the employee performed any of those services (or the other twenty not listed here) for his grandparents.  The only evidence as to the assistance provided to his grandparents came from the employee in his testimony and he described his grandmother as being very independent and in need of only minimal assistance.  There is no evidence that the employee had any training to do the tasks required of a PCA.  The compensation judge referred to the employee as being “certified” as a PCA but this is a mischaracterization of the evidence.  (Finding 10.)  The exhibit referred to by the compensation judge states only that the employee had been “approved” to work as a PCA.  (Employee’s Ex. B19B.)  Nowhere in the record is there any reference to the employee being trained in recordkeeping or similar tasks.

Finally, the employee’s physical restrictions are inconsistent with those required of a PCA.  The TLC job description identifies the work as requiring “heavy physical demands, including lifting clients.”  According to the compensation judge’s finding, the employee is limited to lifting 10 pounds on a part-time basis.  Even Dr. Wicklund’s restrictions allowing the employee to lift up to 25 pounds would not allow him to work as a PCA.

The determination by the compensation judge that it was “reasonable to believe that there are PCA positions available that fall within the restrictions recommended by Dr. Ekstrom in his July 10, 2015, report” simply has no evidentiary support.

This court is to affirm a compensation judge’s decision if that decision is supported by substantial evidence.  Substantial evidence is evidence which a reasonable mind would find adequate to reach a conclusion.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  We find, in this case, that the compensation judge’s decision is not supported by substantial evidence.  We conclude the compensation judge’s decision must be reversed and the employee’s claim for permanent total disability is hereby awarded.