ROBERT T. MAXFIELD, Employee/Appellant, v. STREMEL MFG., LLC, and SENTRY INS. GROUP, Employer-Insurer/Respondents.

The employee appeals from the compensation judge’s determination that he is not permanently and totally disabled, and from the denial of payment of vocational rehabilitation bills. We affirm the compensation judge’s decision with respect to the employee’s permanent total disability status, but reverse the compensation judge’s denial of payment of vocational rehabilitation bills and remand for determination of a reasonable fee for a rehabilitation consultation.

The employee, Robert Maxfield, injured his low back on November 13, 1991, while co-lifting an iron chain curtain grill for a door while working for the employer.^[1] He had been a long-term ironworker, a physically demanding occupation. Following the injury, the employee treated with Dr. Mary Ann Ryken of the Institute for Low Back Care. Dr. Ryken issued a narrative report and completed a functional capacity evaluation (FCE) in July 1992. Dr. Ryken diagnosed multi-level degenerative disc disease, put the employee at maximum medical improvement, rated 10.5% permanent partial disability,^[2] and provided moderate physical restrictions.^[3] The evidence in the record shows intermittent treatment for complaints of low back pain primarily through the 1990s.

Following his injury, the employee was no longer able to perform his work duties and was terminated by the employer. He began working as a laborer for his brother at A-1 Outdoor Power Equipment (A-1 Power), a small engine shop. In 1994, he was awarded retraining for a paralegal program and received job placement assistance, and ultimately secured a legal document coder position in 1996 through a temporary employment agency. He was laid off in 1998. Since that time, the employee has not kept up his paralegal training and has not had any paralegal work experience.

In August of 1998, the employee returned to work for his brother. In this position, the employee was able to work within the physical restrictions provided in the 1992 FCE. He worked there until December 2014 when he was laid off. He returned to work in the same position but on a part-time basis from March 2 until August 2, 2015, when he was permanently laid off.^[4]

The employee testified that after both the December 2014 and August 2015 layoffs, he commenced a job search, seeking a paralegal or legal assistant position. Through his testimony on cross-examination, the employee acknowledged that he lacked qualifications for many of the positions about which he had inquired. He further acknowledged that he did not seek positions of employment with duties similar to those he performed at A-1 Power. The employee testified that he likes working and thinks that he is able to work.

After each layoff, the employee met with QRC Nathan Kirk of Rehab Results, L.L.C., for a rehabilitation consultation. After the first consultation, which occurred in December 2014, Mr. Kirk determined the employee to be qualified for rehabilitation services. Before services commenced, however, the employee had returned to employment at A-1 Power and Mr. Kirk closed his file.^[5] After the second consultation, which occurred in September 2015, Mr. Kirk determined that the employee was not qualified.^[6] According to his testimony, Mr. Kirk felt that because the employee could not return to work for the date of injury employer or his usual and customary occupation, because he had limiting restrictions, because he had limited transferable skills, and because his self-directed job search was unsuccessful, the employee would not benefit from rehabilitation services. Other factors Mr. Kirk considered were the employee’s age and his lack of familiarity with technology. Mr. Kirk understood the employee to have no experience as a legal assistant, but did not direct the employee’s search away from that area because that was the area in which the employee was interested and trained. He did not consider transferable skills from the employee’s employment at A-1 Power because that position did not require any specialty training, though he did acknowledge that it could have been productive to look at jobs similar to the A-1 Power position. It is Mr. Kirk’s opinion that the employee should not search for temporary employment because of lack of wage stability, job security, and benefits.

On July 27, 2015, the employee was seen for an independent medical examination by Dr. Charles Burton. It was Dr. Burton’s opinion that the employee suffered a sprain/strain injury superimposed on a pre-existing degenerative condition which has long-since resolved, and any need for physical restrictions is not related to that injury. He was of the opinion that no permanency had been sustained beyond the 10.5% already paid. Dr. Burton further opined that the employee is not permanently and totally disabled, rather, he is physically and neurologically intact, has a proven ability to work part-time, and functions in all normal daily activities.

In support of his current claims, the employee submitted a September 30, 2015, narrative report of Dr. Robert Wengler. It was Dr. Wengler’s opinion that the work injury of November 13, 1991, was an aggravation of a pre-existing degenerative spine condition which resulted in two-level spinal stenosis. He provided a rating of 19% for the stenosis pursuant to Minn. R. 5223.0070, subp. 1.C.(1) and (2). Dr. Wengler also recommended that the employee’s lifting restriction be reduced from 20 to 10 pounds, and that he not engage in repetitive bending or stooping, pushing or pulling, or work in a position of postural stress.

David Russell was retained by the employer and insurer and met with the employee for a vocational rehabilitation evaluation on November 17, 2015. Mr. Russell completed a report dated January 5, 2016, and labor market survey dated March 31, 2016. In his testimony, Mr. Russell outlined the vocational testing he performed. It was Mr. Russell’s opinion that the employee withdrew from his available labor market and had effectively retired. He believes that it was not reasonable for the employee to have expected to qualify for a paralegal position given his vocational interests and transferable skills, and because of the time that has passed since his training in that area and the lack of job prospects immediately following that training. Mr. Russell opined that considering the employee’s transferable skills, functional abilities, and proximity to the metropolitan job market, and with some skill improvement and appropriately focused job placement services, the employee is employable. Specifically, Mr. Russell emphasized that the employee would likely be successful obtaining a position at a personnel agency and in a ‘trial for hire’ situation in which a permanent position could be offered.

In response to the report of Mr. Russell, the employee submitted a rebuttal report prepared by QRC John Richardson, dated April 8, 2016. Mr. Richardson was critical of the labor market survey conducted by Mr. Russell. Specifically, upon contacting employers listed on the survey, Mr. Richardson reported that he learned some positions may be outside of the employee’s physical abilities or were part-time positions. He was also critical of a recommendation that the employee apply to temporary agencies and described these agencies as a last resort with respect to providing vocational services.

This matter was heard by a compensation judge of the Office of Administrative Hearings on April 1, 2016. At the time of the hearing, the employee was 72 years old.^[7] The employee claimed entitlement to temporary partial disability benefits from March 2, 2015, to August 2, 2015, the time during which he was employed at A-1 Power on a part-time basis, as well as entitlement to additional permanent partial disability beyond that which was already paid and according to the opinion of Dr. Wengler. The employee also claimed that he was permanently and totally disabled. He further sought ongoing rehabilitation assistance, and payment of Rehab Results’ outstanding bills. By Findings and Order dated June 13, 2016, the compensation judge found that the employee was entitled to temporary partial disability benefits and ongoing rehabilitation assistance, but denied his claim for additional permanency. The judge denied the outstanding rehabilitation bills upon finding that the assistance provided had been inadequate, and concluded that the employee is not permanently and totally disabled. 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.”^[8] 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.”^[9] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[10] 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.”^[11]

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.^[12]

The employee appealed the compensation judge’s determination that he is not permanently and totally disabled, and the denial of payment of vocational rehabilitation bills.

An employee is considered permanently and 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.”^[13] The analysis of total disability focuses on an employee’s ability to find and hold a job, rather than his physical condition.^[14] “The reality of the job market and not the medical testimony is the most significant” factor.^[15] A diligent job search is required to establish total disability, unless the circumstances are such that a job search would be futile.^[16] In this case, the compensation judge found that the employee failed to prove that he is permanently and totally disabled. The employee asserts that substantial evidence in the record does not support the compensation judge’s conclusion. We disagree.

The employee alleges that the labor market survey of Mr. Russell relied upon by the judge lacked foundation, and therefore, the conclusion that he is capable of engaging in part-time and/or temporary employment was in error. The employee’s foundation argument is based upon the rebuttal labor market survey of Mr. Richardson and his conclusions that the jobs found by Mr. Russell were temporary, outside the employee’s restrictions and geographic area, or were likely to result in sporadic or insubstantial income. The employee was able to cross-examine Mr. Russell at hearing and was afforded the opportunity to offer rebuttal evidence. His arguments with respect to the expert opinions of Mr. Russell go to the weight of the evidence. The report and opinions of Mr. Russell have adequate foundation as they were based upon a personal meeting with the employee, the performance of vocational testing, the review of background records, and the completion of a labor market survey. Accordingly, this court affirms the compensation judge’s choice of expert in this matter.^[17]

Furthermore, review of the Findings and Order and supporting memorandum indicates that, in concluding that the employee has failed to prove permanent and total disability, numerous factors other than the labor market survey and opinions of Mr. Russell were relied upon by the compensation judge. As support for her decision on employability, the judge outlined the employee’s recent and lengthy period of employment at which he earned raises and utilized job skills. She noted that, in addition to job skills such as an ability to follow directions and finish tasks, the employee is able to drive and he resides in an area that is in fairly close proximity to metro areas. Finally, the employee testified that he enjoys working and wants to work.

In light of these considerations of the compensation judge, coupled with the well-founded vocational expert opinions, it was not unreasonable for the judge to conclude that a job search that considers the employee’s job skills and experience, that includes positions that are part-time and temporary in addition to full-time, and that is conducted with competent vocational assistance, would best reflect the employee’s employability in the relevant labor market. Based on the record, we therefore affirm the compensation judge’s denial of the employee’s claim for permanent total disability benefits.

The employee appeals the compensation judge’s denial of the vocational rehabilitation bills of Rehab Results. According to the invoices contained in the record and the testimony offered by Mr. Kirk, three consultations were provided. The first consultation occurred in December 2014 and, though the employee was determined to be qualified, no services were commenced because Mr. Maxfield returned to work. A second consultation occurred in September 2015 when Mr. Maxfield was laid off, and a third consultation occurred in February 2016. Mr. Kirk determined that the employee was not a qualified employee in the latter two consultations. The compensation judge denied payment of all vocational rehabilitation bills submitted by Rehab Results, finding that any assistance or advice provided by Mr. Kirk was a detriment to the employee and was otherwise inadequate.

Under Minn. Stat. § 176.102, subd. 4(a), an employee is entitled to a rehabilitation consultation upon request of the employee, the employer, or the commissioner. It is not disputed in this case that the employee made a request for rehabilitation consultation and/or services. No waiver was filed by the employer and insurer.^[18] As such, the employee was entitled to a rehabilitation consultation as a matter of right. The compensation judge denied payment of all vocational rehabilitation bills submitted by Rehab Results without consideration of the requirements set forth in Minn. Stat. § 176.102, subd. 4(a). We therefore reverse.

On the record submitted, it is possible to isolate charges related to an initial consultation to which the employee was statutorily entitled, and charges related to other services. We therefore remand the matter to the compensation judge for consideration of the bills submitted by Rehab Results and direct an award of a reasonable amount for a rehabilitation consultation to which the employee was entitled under the Minnesota Workers’ Compensation Act.