DOUG M. DEKEYREL, Employee/Appellant, v. METRO. MECH. CONTRACTORS and TRAVELERS GROUP, Employer-Insurer/Respondents.

The employee has appealed from the compensation judge’s finding that the employee failed to prove his disability is likely to exist for an indefinite period of time, and from the judge’s determination that a finding the employee has been permanently and totally disabled since December 15, 2013, as a substantial result of his September 8, 2011, work injury is premature at this time. We reverse.

The employee worked for the employer, an HVAC contractor, as a union sheet metal worker and general foreman. The employee’s job duties were physically demanding. On September 8, 2011, the employee sustained an admitted work-related injury to his low back. Following the work injury, the employee received extensive care and treatment, including medications, physical therapy, and assignment of light-duty work restrictions. The employee did not obtain significant or long-lasting relief, and in about June 2012, was referred to Midwest Spine Institute for a surgical consultation with Dr. Daniel Hanson.

After further conservative treatment failed to alleviate the employee’s symptoms, Dr. Hanson performed surgery on January 23, 2013, consisting of placement of an artificial disc at L5-S1 and a fusion at L4-5. For about three months following the surgery, the employee’s back condition improved. Thereafter, his back pain and symptoms progressively worsened.

Post-surgery the employee received extensive physical therapy and in August 2013, Dr. Hanson approved a work conditioning program. On September 3, 2013, the employee was seen by qualified rehabilitation counselor (QRC) Bill Potocnik for a rehabilitation consultation and was determined to be eligible for statutory rehabilitation services. QRC Potocnik provided rehabilitation assistance through the date of hearing, attending medical appointments with the employee and exploring sedentary work availability with the employer.

On September 23, 2013, the work hardening program was discontinued due to increasing back pain and muscle spasms. Dr. Hanson released the employee to work four hours per day, five days a week, with work limited to table top height, no lifting over 10 pounds, limited bending and twisting, and changing positions as needed. On September 27, 2013, the employee began light-duty work, as available, in the employer’s fabrication shop.

At a follow-up visit with Dr. Hanson on October 28, 2013, the employee reported severe pain with all activities including light-duty work. The employee’s condition continued to deteriorate and by December 15, 2013, he ceased working for the employer due to intractable and disabling low back pain. The employee has not worked since.

On February 22, 2014, the employee sought a second opinion from Dr. James Schwender at Twin Cities Spine Center. The doctor recommended non-surgical options including facet joint injections and radio frequency ablations. The employee did not obtain relief from this treatment. In April 2014, Dr. Schwender assigned work restrictions limiting lift/carry and push/pull to 10 pounds occasionally and requiring frequent changes of position as needed. Work was limited to no more than four hours a day, three days a week. The employer was unable to accommodate these restrictions and the employee continued off work.

In October 2014, Dr. Schwender stated he was unwilling to undertake disc removal surgery, and referred the employee to Dr. Paul Huddleston at the Mayo Clinic. The employee was seen by Dr. Huddleston on February 17, 2015. Imaging showed severe spondylosis at the L4-5 and L5-S1 facet joints and significant artifact around the artificial disc at S1. Additional diagnostic testing was ordered. At a follow-up appointment on February 25, 2015, surgery was recommended to remove the failed synthetic disc and extend the fusion through S1. The employee was taken off work “indefinitely.”^[1] Concerned about the high risk associated with the surgery, the employee elected to delay the procedure to spend time with his family during the summer of 2015. The employee continued to receive specialized physical therapy to manage intractable low back pain.

The surgery was performed by Dr. Huddleston and his team on September 23, 2015. The area around L5-S1 was heavily scarred over and the surgery was prolonged by more than ninety minutes over the scheduled time. As of the date of hearing, the employee had not been released to return to work, and was scheduled for his first post-surgical follow-up with Dr. Huddleston on December 10, 2015.

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.”^[2] 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.” Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. 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.”^[3] 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.”^[4] This court reviews questions of law under a de novo standard of review.^[5]

An employee is permanently and totally disabled when “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 an insubstantial income.”^[6] Such disability is permanent if it is likely to exist for an indefinite period of time.^[7]

In this case, the employee’s training and work experience are exclusively as a sheet metal worker and working foreman on HVAC projects. The work is physically demanding. The employee has experienced intractable back pain and has been subject to significant work limitations since the September 2011 injury. There is no dispute the employee cannot return to his pre-injury work.

With the exception of an unsuccessful trial of part-time, light-duty work between September 27 and December 15, 2013, the employee has not worked since January 2013, a period of nearly 3 years. The employee received temporary total disability benefits until September 4, 2015, when he reached the statutory maximum of 104 weeks.^[8] Permanent partial disability benefits for a 20% rating were paid on a weekly basis through December 1, 2015. The injured employee has been without wage loss benefits since then.

The evidence presented at the hearing consisted of the employee’s medical treatment records, the QRC’s vocational records and reports, and the testimony of the employee and the QRC. The sole opinion offered regarding permanent and total disability was that of the employee’s QRC who opined the employee was currently permanently and totally disabled and the employee’s disability was likely to exist for an indefinite period of time.

The compensation judge concluded that a finding of permanent total disability was premature at the time of the hearing in part due to the absence of a medical opinion specifically opining the employee was permanently and totally disabled, and because the possibility of improvement following the second surgery was “simply unknown.”^[9]

As a result of the employee’s work injury, in April 2014, Dr. Schwender imposed very significant restrictions the employer was unable to accommodate. On February 25, 2015, Dr. Huddleston took the employee off work “indefinitely.” The employee has not worked since December 15, 2013, and as of the date of hearing, no physician had released the employee to return to work. No evidence was presented that the second surgery will significantly aid the employee in returning to work, or that a return to work in any capacity was contemplated in the foreseeable future.

The employer and insurer did not submit any medical expert opinion relevant to the dispute. And, while neither of the employee’s physicians specifically opined the employee is permanently and totally disabled, the evidence reveals that neither Dr. Schwender nor Dr. Huddleston were particularly optimistic about the employee’s prognosis following the second operation. The QRC testified that Dr. Schwender would not do the surgery because he did not think it would make much difference and did not necessarily feel the surgery would improve the employee’s symptoms.^[10] The Mayo Clinic doctors hoped to return the employee to the level of pain experienced before the January 2013 surgery but cautioned it was very unlikely they would be able to make the employee pain free. Dr. Huddleston further stated, “I think even in a perfect world, if we can address some of these issues, he is going to have limited realistic outcomes.”^[11]

As of the date of the hearing, the employee had been and continued to be precluded from work as a result of his September 2011 injury. Although the possibility exists that the employee’s second surgery may benefit him to the point where his physicians are able to establish permanent restrictions and release him to return to work, this speculative potential does not obscure the fact that the employee’s disability and inability to work has existed, and is likely to continue to exist, for an indefinite period of time into the foreseeable future.

The compensation judge additionally concluded the QRC’s vocational opinion was premature because the QRC had not contacted Dr. Huddleston to discuss the employee’s prospects of returning to work or possible restrictions; the employee has not undergone a functional capacities evaluation (FCE) which might demonstrate a change in restrictions post-surgery; and because sedentary work, including retraining as a computer-aided drafting (CAD) worker, may be a possible alternative for employment in the future.

Permanent total disability depends primarily on an employee’s ability to find and hold a job, rather than his physical condition.^[12] “The reality of the job market and not the medical testimony is the most significant” factor.^[13] The testimony of an experienced vocational expert is both material and relevant in determining permanent total disability. The purpose of vocational testimony is not to establish the nature of the disability or its duration, but to determine whether employment is viable for the injured worker while such disability continues.^[14]

QRC Potocnik testified that, taking into consideration his interaction with the employee as his QRC, his attendance at the employee’s doctor appointments, his background as a QRC and occupational therapist, and his years of experience with employees in similar circumstances, it was his professional opinion that the employee is currently permanently and totally disabled and is likely to be disabled from work for an indefinite period of time.^[15]

Between December 2013 and the September 2015 surgery, the records show the QRC contacted the employer on multiple occasions about light-duty work for the employee and was advised that none was available within his restrictions. The employer could not decide whether they could accommodate long-term restrictions as late as May 2015.^[16] By reason of the employer’s inability to provide work to the employee within his restrictions, the compensation judge found that a job search would have been futile.

In December 2014, the QRC and the employer’s representative discussed possibly retraining the employee to perform CAD tasks for the employer.^[17] At the hearing, the employee questioned whether working in the CAD department would be feasible. He testified he had been released from the sheet metal workers union in July 2015, and stated that even working in the CAD department, he would still be a union sheet metal worker so could be asked to help lift things – “that’s your job, you lift heavy things.”^[18]

While possible future training as a CAD worker might aid the employee in returning to work with the employer, mere speculation that an employee might find employment if he receives some unspecified training in a sedentary profession provides an inadequate basis for a compensation judge to conclude that an employee is not currently permanently and totally disabled.^[19]

At the hearing, the employee testified it had been a rough go to this point, and that within the last two to three weeks, he had been experiencing more pain, getting nauseous, and having difficulty with bowel movements. QRC Potocnik stated the employee could not currently work due to debilitating pain, and that his symptoms had not improved post-surgery. The QRC agreed he had personally observed worsening of the employee’s condition since the September 2015 surgery.^[20]

The employee asserts the QRC’s ongoing interaction with the employee’s treating physicians, the employee, and the employer’s representative provides adequate foundation for his opinion regarding the employee’s ability to return to work in the foreseeable future. The QRC explained that his opinion that the employee was permanently totally disabled is based on the physical restrictions that have limited the employee’s ability to work, specifically relying on the restrictions placed on the employee by his treating physicians, including Dr. Huddleston. Having attended the employee’s medical appointments since September 2013, the QRC was well aware of the restrictions imposed by the employee’s physicians, the employee’s ongoing problems, and the extensive treatment provided to the employee.

The employee has a significant disability resulting from his work injury. He has been and continues to be disabled from sustained gainful employment. There is evidence the employee’s post-injury restrictions have not, and will not, allow the employee to perform any regular or consistent employment for the foreseeable future. That some future FCE might possibly result in less restrictive work limitations is pure speculation at this point.

The compensation judge found that as of the date of hearing on December 9, 2015, the employee continued to be temporarily totally disabled as a result of the September 8, 2011, work injury.^[21] This clearly contradicts Finding 9 in which the judge found the employee failed to prove the work injury was a substantial contributing factor in his current claim for permanent total disability. We find no support for this finding. All medical reports state the employee’s ongoing problems are the result of the work injury.^[22]

Given the employee’s ongoing disabling back condition and the extended period during which the employee has been unable to work, the record as a whole does not support the finding the employee is not currently permanently and totally disabled. We, accordingly, reverse.