MARCH 15, 2017

No. WC16-6003

PERMANENT TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinions of the medical and vocational experts, supports the compensation judge’s determination that the employee is not presently permanently and totally disabled.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: Miriam P. Rykken

Attorneys: Eric B. Nelson and Scott F. Johnson, Fay & Assocs., LLC, Minneapolis, Minnesota, for the Appellant. Timothy P. Jung and Katie H. Storms, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for the Respondent.




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


The employee, Cindy Gerhardson, was employed by the employer, Industries, Inc., as a job coach. As a job coach, the employee provided job training and supervision to persons with disabilities, which in some instances involved assisting those persons in performing their job duties. On July 27, 2005, while assisting a client, the employee injured her neck and left shoulder as a result of holding an entire heavy tailgate assembly by herself after the client had dropped one end.

Over the next few years, the employee underwent a discectomy and fusion at C5-6 and C6-7 in 2006, left shoulder surgery in 2007 in the nature of arthroscopy with subacromial decompression, labral debridement, and chondroplasty of the glenoid, and a diagnostic arthroscopy with subacromial decompression and distal clavicle excision of the left shoulder in 2009. With respect to her neck, the employee was placed at maximum medical improvement (MMI) on August 23, 2007, and was assigned a permanent partial disability rating of 25% by Dr. Joel Shobe. And, with respect to her left shoulder, Dr. Shobe determined the employee had reached MMI on March 18, 2009, and assigned a 3% permanent partial disability rating.

The employee received rehabilitation assistance following her 2005 injury and eventually returned to work with the employer in a light-duty position. In 2008, the employee was charged with an alcohol-related driving violation which interfered with her ability to perform some of her job functions and the employer’s ability to insure the employee. For these reasons, the employer terminated her position. The employee underwent chemical dependency treatment.

On July 27, 2009, the employee suffered a second injury as a result of a motor vehicle accident following an appointment related to her initial work injury. The employee experienced neck pain and low back pain. Dr. Shobe recommended additional surgery to the cervical spine, which the employee declined. He placed the employee at MMI with respect to her low back on June 29, 2010. The employee also treated with Dr. James Schwender, who ultimately endorsed permanent work restrictions as outlined by a functional capacities evaluation (FCE) conducted in March 2011. Those restrictions allowed for sedentary work and included limits on sitting and standing, lifting, and other physical tasks. During this time, the employee had been provided with rehabilitation assistance, including medical management services and job placement assistance. The parties agreed to suspend assistance in July 2011, at which time the QRC opined that any further job search would be futile. The employee had applied for and began receiving Social Security disability benefits in June 2011.

The employee continued to treat for neck, low back, and shoulder pain. Her course of treatment has included epidural steroid and trigger-point injections, branch blocks, radiofrequency denervation, physical therapy, and occupational therapy. On November 27, 2015, Dr. Shobe assigned a permanency rating of 7% for the employee’s low back condition. The employee also suffers from depression and anxiety, which she relates to her pain, and she testified that she treats her pain with alcohol. She further testified to a loss of coordination, reduced ability to focus, lack of patience, and difficulty sleeping.

In October 2014, and as amended in November 2014 and August 2015, the employee filed a claim petition in which she claimed entitlement to permanent total disability benefits, additional permanency, and payment of medical treatment.

The employer and insurer arranged for the employee to be evaluated by Dr. David Carlson. In his report dated February 2, 2015, Dr. Carlson opined that some of the employee’s restrictions, specifically the limitation of no overhead or out-front activities, and the weight lifting limitation of 5 to 15 pounds, were excessive. Rather, Dr. Carlson recommended lifting up to 25 pounds on a regular basis, avoid frequent bending, stooping, and twisting, and avoid overhead work over 25 pounds. He related these restrictions to the employee’s neck and shoulder conditions that resulted from the 2005 work injury, and he considered her to have reached MMI.

In June 2015, the employee was seen for an employability assessment by Kate Schrot at the request of the employer and insurer. Ms. Schrot recorded the employee’s report of educational and work history, as well as her description of limited physical functioning, emotional and life stressors including going through a divorce, uncertain living arrangements, alcohol use, and coping with mental health issues and social isolation. Ms. Schrot was aware of the physical restrictions from the 2011 FCE and was told by the employee that she believed that her functional abilities have decreased since 2011. Medical, rehabilitation, employment, and social security records were reviewed, as well as deposition testimony of the employee. Ms. Schrot declined to conduct vocational testing due to the employee’s illness on the day of the evaluation, and instead considered the employee’s educational and work histories in concluding that she had demonstrated academic abilities and a variety of transferable skills. Labor market research was conducted and potential employment that would be suitable and gainful, in the area in which the employee lives, was identified.

It is the opinion of Ms. Schrot that the employee is employable. In her report, Ms. Schrot identified a number of barriers to employment that the employee faces, and offers suggestions as to how those barriers may be overcome. She recommended that the employee address physical reconditioning, participate in chemical dependency treatment, consider classes to update her skills and abilities, and work closely with a placement specialist who would assist the employee in applying for appropriate jobs. Ms. Schrot also suggested provisions that could be made by the employer and insurer to accommodate a return to work, such as equipment necessary for work at home positions, or training for medical coding positions.

In September 2015, counsel for the employee arranged for a vocational evaluation with Laura Hokeness, who issued a report dated December 2, 2015. Ms. Hokeness reviewed medical, vocational, and social security records, and interviewed the employee regarding her current functioning levels and education and work histories. She also conducted vocational testing, an assessment of transferable skills, and a labor market survey. It is Ms. Hokeness’s opinion that the employee is unlikely to be successful in completing any retraining because of pain, mental health issues, her living situation, and alcohol use, which would exclude any clerical position. She found that the positions identified according to the employee’s transferable skills were beyond her physical restrictions. Ms. Hokeness also considered work from home opportunities, as were suggested by Ms. Schrot, to be inappropriate in light of the employee’s current living situation. She considered the barriers faced by the employee to be impediments to an ability to secure and maintain long-term suitable, gainful employment.

In November 2015, the employer and insurer filed a rehabilitation request seeking commencement of rehabilitation services. By rehabilitation response, the employee disagreed with the request, alleging that services would be futile and that the employee’s condition had deteriorated since services were terminated in 2011. A Department of Labor and Industry mediator granted the employer and insurer’s request to the extent that a rehabilitation consultation be completed. Such a consultation was completed by Jan Van Pelt in December 2015, and according to her January 2016 report, she concluded that the employee was not a qualified employee as she could not reasonably be expected to return to suitable, gainful employment through the provision of rehabilitation services due to a number of barriers to employment, including low functioning levels, alcohol use, unstable living situation, and need for training and skill enhancement which the employee is not interested in pursuing and feels incapable of completing.

On June 30, 2016, this matter came on for hearing before Compensation Judge Miriam Rykken for consideration of the employee’s amended claim petition. The compensation judge found that the employee was entitled to 7% permanency for the low back as claimed, but denied the employee’s claim for permanent total disability benefits upon finding that the employee retains the ability to obtain sustained gainful employment. The employee appeals.


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 employee appeals the compensation judge’s determination that she is not permanently and totally disabled because she has a strong aptitude, suitable work experience, and retains the ability to obtain sustained gainful employment. Based on the analysis below, we affirm the compensation judge under the substantial evidence rule in accordance with Hengemuhle v. Long Prairie Jaycees.[1]

An employee is considered totally disabled “if 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.” Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). “[T]he concept of ‘total disability’” is primarily dependent “upon the employee’s ability to find and hold a job, not on his physical condition. (Citation omitted.) The reality of the job market and not the medical testimony is the most significant [factor].” McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983).

The compensation judge found that, at the present time, the employee is not permanently and totally disabled from either a medical or vocational perspective, relying, in part, upon the expert opinions of Ms. Schrot and Dr. Carlson. In her appeal, the employee alleges that the opinion of Ms. Schrot lacks foundation, arguing that she failed to take into account the employee’s actual condition and some of the medical treatment the employee has undergone. She further argues that Ms. Schrot’s opinions with regard to employability are speculative. At the request of the employer and insurer, the employee was seen by Ms. Schrot for an assessment of her employability. In her narrative report, Ms. Schrot outlined the foundation for her opinion that the employee was employable notwithstanding the barriers to reemployment. Ms. Schrot, a case manager and vocational evaluator at Stubbe and Associates, had the competency to render an opinion on this issue. She took a history from the employee, conducted an evaluation, and reviewed the following records: the 2012 and 2015 deposition transcripts, employment records, rehabilitation records, social security records, the IME reports of Dr. Hartmann and Dr. Carlson, and the FCE report from Saunders Physical Therapy. Ms. Schrot also completed a labor market survey. This degree of knowledge is sufficient to establish foundation for an opinion in this case. As such, the employee’s arguments with respect to the opinions of Ms. Schrot go to the weight of this evidence, and we must defer to the compensation judge’s choice of expert in this matter. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The employee identifies a number of specific suggestions made by Ms. Schrot with which she takes issue, especially as it relates to medical treatment. When read in its entirety, however, the report of Ms. Schrot indicates that the employee felt ill and nauseous on the day of the evaluation, and several of the suggestions merely address that issue. Ms. Schrot also opined that the employee’s alcohol use and mental health issues might be addressed. Contrary to the position taken by the employee, we do not consider these suggestions made by Ms. Schrot to be recommendations for medical treatment. To the extent she believed the employee’s neck, shoulder, or low back conditions to be a barrier to employment, Ms. Schrot accepted that physical restrictions are appropriate. That Ms. Schrot suggested, among numerous other things, that the employee participate in reconditioning, physical therapy, or other conditioning programs does not invalidate her vocational opinion, and does not indicate those opinions to be in contradiction to Dr. Carlson’s orthopedic opinions.

Further, a careful reading of the Findings and Order and supporting memorandum demonstrate that the suggestions and recommendations made by Ms. Schrot were not endorsed by the compensation judge in their entirety. Rather, the compensation judge characterizes the suggestions and recommendations of Ms. Schrot as “guidelines for rehabilitation personnel.” In addition, the compensation judge did not rely only upon the expert reports submitted in this matter, but instead found that the employee was not permanently and totally disabled based upon her own independent assessment. Specifically, the compensation judge found the employee to have strong potential and strong aptitude. She considered the employee to be forthright, highly intelligent, and creative. She believed the employee to have a high degree of empathy, good planning and organizational skills, and good communication and interpersonal skills. It was not unreasonable for the compensation judge to rely upon her own assessment of the employee, in addition to the well-founded reports of both Ms. Schrot and Dr. Carlson, in concluding that while the employee is facing a number of barriers, she is capable of overcoming those barriers and obtaining suitable, gainful employment with directed rehabilitation assistance and the support and cooperation of the employer and insurer. As the compensation judge’s findings are supported by substantial evidence, we affirm.

[1] 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).