DARLENE F. MOYER, Employee/Appellant, v. LIFEWORKS SERVS., INC., SELF-INSURED/ NONPROFIT INS. TRUST, Employer/Respondent, and MINN. DEP’T OF LABOR & INDUS./VOCATIONAL REHAB. UNIT, Intervenor.

The employee, Darlene Moyer, was born in 1945 and is 71 years old. She began working for the employer, Lifeworks, on July 12, 1999. As of December 19, 2013, the employee’s job involved administering medications and performing tube feedings for disabled individuals at the employer’s facility. On that date, the employee sustained an admitted injury to her left shoulder, which also resulted in a consequential injury to her right shoulder. The employee further sustained a temporary aggravation of the left shoulder injury on February 13, 2014. Following her 2013, work injury, the employee was off work for various periods through July 9, 2014, and was paid 73.6 weeks of temporary total disability compensation based on a stipulated average weekly wage of $721.65.

The employee began treating for the 2013 work injury with her personal physician Dr. David Yauch on December 22, 2013, who placed the employee under light duty work restrictions and referred her for physical therapy. An injection to the left shoulder was performed on December 30, 2013, which provided some initial improvement until the employee’s February 13, 2014, aggravation. The employee was taken off work on Monday, March 10, 2014, and continued in physical therapy. On March 17, 2014, Dr. Yauch released the employee to light duty work lifting papers, but the employer did not have work within the employee’s restrictions. The employee has not worked for the employer since Friday, March 7, 2014.

On March 31, 2013, Dr. Yauch referred the employee for an orthopedic consultation. The employee was seen by Dr. David A. Kittleson at Summit Orthopedics on April 8, 2014. Dr. Kittleson diagnosed work related injuries to both shoulders. He opined that prolonged use of the arm above shoulder height had led to rotator cuff tendinitis and bursitis on both shoulders. The doctor noted that the employee also had pre-existing glenohumoral arthritis, which he did not consider to be clinically significant at that time. He felt that the employee might eventually be a candidate for arthroscopic decompression or distal clavicle excision. He did not believe it likely that the employee could successfully return to work involving prolonged use of her arm above shoulder height. He recommended restrictions limiting lifting, carrying, pushing and pulling to 10 pounds, and that the employee avoid outstretched use of either arm above shoulder level.

Also in March 2014, the employee began receiving vocational assistance, initially from the Department of Labor and Industry’s Vocational Rehabilitation Unit. She thereafter performed an ongoing job search for full time work within her restrictions, but without success.

On August 5, 2014, Dr. Kittleson noted that the employee had reached maximum medical improvement (MMI). He placed a permanent restriction on any overhead use of her arms.

The employee was seen by Dr. Tilok Ghose for an independent medical examination on June 17, 2014, and again on July 31, 2014. Dr. Ghose diagnosed bilateral shoulder impingement with glenohumeral arthritis. He agreed that the employee required permanent restrictions as a result of the December 19, 2013, work injury, including avoidance of repetitive overhead motion with the bilateral upper extremities, but thought that she could work full time under that restriction. He concluded that she had reached MMI for both injuries. He rated her with a six percent permanency for each shoulder, for a total of 12 percent.

On February 6, 2015, the employee was seen by Noelle Maze, a nurse practitioner at Allina Health’s Abbott Northwestern Hospital. She reviewed and clarified the employee’s work restrictions, noting that some confusion had arisen due to restrictions being issued both by Dr. Yauch and Dr. Kittleson. She stated that the work restrictions included a weight restriction of 10 pounds maximum lifting as well as activity restrictions of no use of the arms above shoulder level, no repetitive outstretched reaching with the elbows greater than 4-6 inches from the body, and tabletop use. She noted that the employee was currently not interested in surgery, and stated that conservative care would consist of a chronic home exercise program, occasional returns to PT for pain flares, and occasional steroid injections. She further noted that the employee might ultimately be a candidate for surgery for rotator cuff vs. joint replacement.

On April 1, 2015, the employee began receiving vocational rehabilitation assistance from QRC Julie McDonough and a private job placement specialist. Beginning in June 2015, at the suggestion of her placement specialist, the employee expanded her job search to include part time work.

On April 9, 2015, the employee filed a claim petition seeking permanent total disability benefits from and after December 20, 2014. On April 23, 2015, the employee amended her claim petition to reserve her right to claim temporary partial disability benefits.

The employee was hired as a companion care giver for Right At Home on July 10, 2015, working six hours per week at $10.00 per hour. The employee testified her job duties with this employer were within her restrictions.

On August 10, 2015, at the employee’s request, Dr. Yauch restricted the employee to working no more than 6-10 hours per week. On November 5, 2015, the employee’s QRC noted that she continued to work at about six hours per week, because “when [she] tries to add more hours it usually involves cleaning which is difficult for her and causes increased shoulder pain.” The employee testified that the hourly restrictions from Dr. Yauch were related specifically to her current job, and that she was still looking for full time work where she would be able to work at a desk and not have to do things like mopping floors. The employee told the QRC that she felt the job she was doing at that time was the maximum workload she could handle. Job search was placed on hold and QRC services were limited to monitoring of job status.

The employer and insurer obtained an independent vocational analysis from their expert, Maureen Ziezulewicz, QRC, who opined that the employee was not permanently totally disabled. QRC Ziezulewicz opined that the employee had many transferable skills and that there were many jobs within her restrictions available in her community.

In order to establish sufficient permanency to meet the permanent total disability threshold required under Minn. Stat. § 176.101, subd. 5, the employee obtained an opinion from her chiropractor, Ryan D. Hetland, D.C., dated December 10, 2015, rating her with permanent partial disability for non-work-related spinal problems for which he had been treating her, including cervico-brachial syndrome, degeneration of cervical spine, sciatica, and degeneration of the lumbar spine. Dr. Hetland rated her lumbar spine condition at 10 percent under Minn. R. 5223.0390, subp. 3. He rated her cervical condition at 10 percent pursuant to Minn. R. 5223.0370, subp. 3. He noted that he would also restrict her from certain twisting, lifting, and repetitive work as a result of these conditions.

On December 14, 2015, Dr. Yauch advised that the employee could not work a full schedule. There was no statement as to how many hours she could work short of that. She was otherwise to continue working under the lifting and reaching restrictions outlined by him and by Noelle Maze.

The employee’s claim petition came on for hearing before a compensation judge on December 15, 2015. The judge provided the following statement of the issues:

At the beginning of the hearing, the judge asked the parties’ counsel if these were the issues for determination, although she listed them in reverse order from that given above. Counsel agreed that these were the issues for hearing.

Following the hearing, the compensation judge found that the employee had not met her burden to prove that she had at least a 15% permanent partial disability affecting her employability, and therefore had not met the threshold rating required by Minn. Stat. § 176.101, subd. 5(2). The judge further found that the employee had not met her burden to prove that her physical disability in combination with her permanent partial disability caused her to be unable to secure anything more than sporadic income resulting in insubstantial income. Accordingly, the judge concluded it was premature to determine that the employee was permanently and totally disabled.

The judge also found that the employee had conducted a reasonable job search; that the employer and insurer had failed to overcome the presumption that her actual earnings reflected her earning capacity from July 10, 2015, through the date of hearing. Accordingly, the judge awarded temporary partial disability compensation from July 10, 2015, through the date of hearing.

The employee appeals from the finding that she failed to prove that she had permanent partial disability sufficient to meet the threshold rating required by Minn. Stat. § 176.101, subd. 5(2).

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(3). 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), summarily aff’d (Minn. June 3, 1993).

The appellant employee appeals only from the finding that she failed to prove that she had at least a 15% permanent partial disability affecting her employability. She makes two arguments on appeal. First, she argues that the compensation judge should not have made a finding on this issue, and that the finding should therefore be vacated. Second, she argues that even if the judge did not err by making a finding on the issue, the finding was unsupported by substantial evidence.

The employee’s theory of the case below was that her post-injury employment for Right At Home demonstrated an inability to secure anything more than insubstantial income, and that she had been permanently and totally disabled since March 7, 2014. As a necessary corollary to this claim for permanent total disability benefits, the employee also needed to show that she had sufficient permanent partial disability from the work injury, in combination with permanent partial disability for non-work conditions affecting her employment, to meet the permanency threshold set out under Minn. Stat. § 176.101, subd. 5(2). In the alternative, the employee claimed that she was entitled to temporary partial disability compensation from and after July 10, 2015, based on her post-injury, part-time employment with Right At Home. The compensation judge denied permanent total disability compensation, but awarded temporary partial disability compensation.

The compensation judge found that the employee had not met her burden to show sufficient permanent partial disability to meet the threshold, or that her physical disability in combination with her permanent partial disability caused her to be unable to secure anything more than sporadic employment resulting in insubstantial income. She found that a determination that she was permanently totally disabled was premature, noting in her memorandum that the employee continued to want to work, that she had many transferable skills, that many jobs were available in her labor market within her restrictions, that the restriction of 6-10 hours per week was specific to the employee’s current job, and that reinstatement of rehabilitation services could increase the likelihood of reemployment in an appropriate job.

The judge further found that the employee had performed a reasonably diligent job search and that the employer and insurer failed to rebut the presumption that her earnings at Right At Home represented her earning capacity during the period from July 10, 2015, through the date of the hearing, December 15, 2015. Accordingly, she awarded temporary partial disability compensation for that period.

The employee’s argument on appeal is that the finding as to whether she had sufficient permanency to meet the applicable permanency threshold was unnecessary in light of the judge’s finding that the employee was entitled to temporary partial disability benefits. At that point, she argues, there was no longer a justiciable controversy requiring a determination whether the employee had met the permanency threshold for permanent total disability.

We disagree. First, pursuant to Minn. Stat. § 176.371, where there is a hearing before a compensation judge on a claim petition, “the compensation judge’s decision shall include a determination of all contested issues of fact and law.” Here, the employee’s initial and primary claim was for permanent total disability benefits. That issue remained contested throughout the hearing. The question whether the employee could demonstrate the requisite threshold permanency for such benefits was a necessary part of that issue. That point also remained in dispute throughout the hearing. Accordingly, the judge was required by statute to make findings on that issue.

The employee’s argument is, however, that the determination that she was entitled to temporary partial disability benefits for a period of time rendered the issue of permanent total disability moot. We disagree. First, the compensation judge was not required to address the employee’s alternative claims in any specific order. More importantly, however, the evidence accepted by the compensation judge as supporting an award of temporary partial benefits was not, under the facts of this case, determinative on the issue of permanent total disability. The judge’s memorandum makes clear that the findings that the employee had failed to prove permanent total disability, and that the issue remained premature, were based on the conclusion that additional rehabilitation services and continued job search were likely to assist the employee to find more suitable work at a higher income. The award of temporary partial disability compensation between July 10, 2015, and the date of hearing rested only on the determination that the employee had to date performed a reasonable job search and that her earnings during this brief period were a reasonable indication of her earning capacity for that period. This is not tantamount to a finding that the $60.00 weekly wage provided by that job was greater than the kind of insubstantial income which might support a permanent total disability claim, were the employee found to be limited to that level of earning potential indefinitely into the future.

We are thus not persuaded that the compensation judge erred in making findings related to the issues presented by the employee’s claim for permanent total disability compensation. We accordingly decline to vacate the finding regarding the permanency threshold on that basis.

The employee next argues that the finding that she failed to prove that she had met the permanency threshold is unsupported by substantial evidence. The employee relied on the opinion of her chiropractor, Ryan D. Hetland, D.C., dated December 10, 2015, and on Dr. Hetland’s treatment records. Dr. Hetland noted that he had been treating the employee over a number of years for various non-work-related conditions. He rated her with a 10 percent permanent partial disability for a non-work lumbar spine condition and a further 10 percent for a non-work cervical condition. He noted that he would also restrict her from certain twisting, lifting and repetitive work as a result of these conditions.

The compensation judge explained in her memorandum that there were two bases for her finding that the employee had failed to prove the requisite threshold permanency. First, the compensation judge indicates that she did not find Dr. Hetland’s ratings persuasive. She noted in her memorandum that the permanency rules Dr. Hetland relied upon required “persistent objective clinical findings,” but concluded that Dr. Hetland’s treatment records failed to provide adequate evidence of such persistent objective findings. This is essentially a determination that Dr. Hetland’s rating was based on an inadequate foundation. The employee does not directly dispute the compensation judge’s rejection of Dr. Hetland’s ratings on appeal, other than to point out in her brief that the employer and insurer did not offer an expert medical opinion to refute the opinions of Dr. Hetland.^[1] The compensation judge was not required to adopt Dr. Hetland’s ratings, even in the absence of a contrary medical opinion, particularly where the judge reasonably concluded that foundation for that opinion was lacking. A compensation judge's finding as to the rating of permanent partial disability is one of ultimate fact. As such, it must be affirmed by the WCCA if it is supported by substantial evidence. Jacobowich v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). We therefore affirm the compensation judge’s rejection of the PPD ratings offered by Dr. Hetland.

In her memorandum, the judge also noted that no work restrictions had ever been imposed on the employee for her non-work neck and back conditions prior to those imposed by Dr. Hetland in his December 10, 2015, report. She further noted that the employee had not reported any restrictions or disability that affected her ability to work, based on those non-work conditions, to either her other physicians, her QRC, or the independent vocational examiner. Accordingly, the judge concluded that these non-work conditions did not affect the employee’s ability to work. The judge noted that in Allan v. R.D. Offutt Company, 869 N.W.2d 31, 75 W.C.D. 401 (Minn. 2015), our supreme court held that only permanent partial disability from conditions which affect the employee’s ability to work may be included in the permanency necessary to reach the threshold. The judge did not find sufficient evidence here to indicate that the employee’s non-work neck and back conditions actually affected her ability to work.

The employee argues that the judge misinterpreted the record and took some of the employee’s statements out of context. We have examined the record and are satisfied that the compensation judge’s interpretation was one which a reasonable mind might adopt. Indeed, the employee seems to concede in her brief that, given the restrictions associated with the employee’s admitted work injuries to her shoulders, nothing about her non-work back and neck conditions significantly further reduced her ability to work.

Either basis relied upon by the compensation judge to support her finding that the employee had not shown that she met the threshold permanency would be independently sufficient to sustain that finding. As we conclude that both bases for that finding have substantial support in the record, we affirm.