ANN TREBIL, Employee/Respondent, v. LEGACY ASSISTED LIVING and CHURCH MUT. INS. CO., Employer-Insurer/Appellants, and TARRANT REHAB. SERVS., Intervenor.

The employer and insurer appeal the compensation judge’s award of permanent total disability benefits as of January 20, 2022.  We affirm in part, vacate in part, and remand.

Ann Trebil, the employee and respondent in this matter, is 69 years old.  She was hired by Legacy Assisted Living, the employer and appellant, in 2019 and worked as a certified nursing assistant (CNA) for 32 hours per week.  Her job duties included providing daily cares of residents, such as assistance with dressing, bathing, feeding, nail care, dispensing medications, activities, entertainment, and engaging in conversation.

Before working for the employer, the employee ran a home daycare for 27 years.  She then moved to Morris, Minnesota where she worked initially as a housekeeper and later for West Wind Village as a CNA for approximately 11 years.  After a work-related knee injury, the employee could no longer work for that employer and she subsequently applied for and received Social Security disability benefits.  She later worked in a school cafeteria five hours per day for the Morris School District, and after that as a part-time apartment cleaner for about 18 months for West Central Homes.

On February 22, 2020, the employee was injured while taking a resident’s garbage to the trash bin in the parking lot.  She slipped on ice, landing on her outstretched hands.  She was taken by a coworker to the emergency room at Stevens Community Medical Center (SCMC).  Imaging revealed two fractured bones near the wrist on the left hand and one fractured bone near the wrist on her right hand and she was transferred by ambulance to Douglas County Hospital.  On February 24, 2020, the employee underwent open reduction and internal fixation (ORIF) surgery on both wrists that included bilateral volar locking plates and the placement of hard casts performed by Dr. Paul Dale.  Following surgery, she spent several weeks at a nursing home due to an inability to perform self-care.  After the bilateral hard casts were removed, she continued her recovery using slings, and later, spica braces.  The employee returned to work at full hours with restrictions on July 7, 2020.  At a follow-up appointment in September 2020, Dr. Dale imposed additional restrictions including no patient lifting or transferring due to increased pain symptoms and findings on x-ray.

The employee’s condition did not improve despite the additional restrictions and physical therapy. The employee underwent revision surgery to remove the volar plate and screws on the right wrist.  The employee underwent an MRI scan of her left wrist in October 2020 that showed postoperative changes, mild to moderate osteoarthritic changes at the first metacarpal joint, likely high-grade partial thickness tear of the triangular fibrocartilage complex (TFCC), and other findings.  She had a second surgery to her right wrist October 30, 2020, when Dr. Dale removed the volar plate and screws, and she was again taken off of work at that time.  For treatment of the left wrist, Dr. Dale referred the employee to Dr. Andrew Staiger at St. Cloud Orthopedics.

While recuperating from her right wrist surgery, the employee underwent total knee replacement surgeries in December of 2020 and February of 2021 conducted by Dr. Timothy Jay. The employee’s recovery from those procedures was uneventful.

On January 5, 2021, Dr. Staiger examined the employee’s left wrist and diagnosed her with left wrist pain status post-ORIF of intra-articular distal radius fracture with retained painful hardware, left wrist TFCC tear, and left side carpal tunnel syndrome.  He thought that her symptoms at that time were related to soft tissue irritation associated with her hardware.  On April 26, 2021, Dr. Staiger performed a left wrist arthroscopy with TFCC debridement, left wrist hardware removal, and left carpal tunnel release.  After that procedure, the employee underwent physical therapy.  She was released to return to work with restrictions on June 7, 2021.  Eight days later, the employee reported significant wrist pain that was increasing.  On June 23, 2021, Dr. Dale examined the employee, placed additional restrictions on her right wrist, and recommended ongoing occupational therapy.  At that time, her job duties involved COVID screening of residents, which required pushing a cart from room to room, taking manual temperatures and oxygen saturation levels of the residents, and recording the results on a clipboard.  She was working four hours per day, four days per week.

In December 2021, the employee underwent a three-day functional capacities evaluation (FCE).  The FCE results showed that she was completely restricted from performing patient cares, and that she had restrictions on bending, stooping, squatting, crawling, climbing and reaching above shoulder level, crouching, kneeling, balancing, pushing and pulling, carrying and lifting, and repetitive grasping.  The FCE evaluator concluded that the employee was able to do sedentary work.  At hearing, the employee testified that she had significant pain after each day of the FCE.  She followed up with both Dr. Staiger and Dr. Dale to address the results of the FCE and her increased symptoms.  In his note of January 19, 2022, Dr. Dale agreed with the FCE conclusion that she is limited to sedentary work.  Although Dr. Dale did not mention a limit on her work hours in that report, the employee testified that in addition to the FCE restrictions, Dr. Dale limited her to working four hours per day.

In March 2022, the employee’s QRC, Heather Moske, performed an on-site job analysis to assess the employee’s work duties.  On April 6, 2022, Dr. Jay recommended steroid injections of the employee’s wrists and that she continue to follow the restrictions recommended by the FCE.  On April 7, 2022, Dr. Dale rated the employee at 13.5 percent permanent partial disability (PPD) pursuant to Minn. R. 5223.0470, subp. 4(A)(1)(b), 5223.0480, subp. 4(A)(1)(b), and 5223.0480, subp. 4(B)(1)(b).  On April 8, 2022, the employee had a follow up with Nurse Practitioner (NP) Cara Nachbor to review the on-site job analysis.  NP Nachbor reviewed the results with the employee and imposed additional restrictions limiting the employee to no more than two, four-hour shifts in a row, and working no more than 12 hours per week.

On June 7, 2022, Dr. Dale referred the employee to Dr. Thomas Suszynski, a hand specialist at the University of Minnesota pain management clinic.  Dr. Dale recommended that the employee not work in an assisted living setting, as it was too repetitive.  In anticipation of his retirement, Dr. Dale recommended that the employee continue care with Dr. Jay.

At a meeting including the employee, the QRC, and the employer on June 20, 2022, the employer determined there was no permanent position for the employee within her restrictions, and she was terminated from employment.  The employee then commenced a job search with the assistance of her QRC.  While the formal job search began on August 31, 2022, the employee had started to look for work even before the job placement meeting.

In the fall of 2022, the employee saw Dr. Suszynski, who gave her right thumb carpometacarpal joint and left forearm flexor tendon steroid injections.  As the employee experienced difficulty driving from Morris to Minneapolis for the appointment, Dr. Suszynski restricted her from driving farther than 15 miles.  He later supported a transfer of care to SCMC in Morris to accommodate her difficulty with travel.

From August 31, through October 27, 2022, the employee was involved in a formal job search under the direction of her QRC.  The employee maintained logs reflecting 83 job contacts, 32 job applications, 20 in-person contacts, and 8 interviews.  She testified that although she did not receive any job offers, a friend allowed her to attempt a job, but after ten minutes of typing, she could not continue due to the pain in her hands.  The employee also tried to volunteer at the library but putting books back on shelves for just 15 minutes caused her hands to shake due to increased pain.  QRC Moske testified that she was unable to find any suitable job leads for the employee in the Morris area as it was a small community surrounded by even smaller communities, where the labor market was predominantly manufacturing, medical, and service positions.  The QRC opined that the employee conducted a diligent job search and that the employee is permanently and totally disabled from a vocational standpoint given the physical restrictions, the employee’s geographical labor market, and the employee’s education and work history.

On October 19, 2022, Dr. Donovan conducted an independent medical evaluation of the employee on behalf of the employer and insurer.  Dr. Donovan opined that the employee had reached maximum medical improvement by the date of the FCE, that she required no further medical treatment, and that she could work an eight-hour day.  Dr. Donovan agreed that the employee should avoid highly repetitive wrist motions and prolonged or repetitive hard grasping.  Dr. Donovan rated her PPD as 9.8125 percent under Minn. R. 5223.0470.

On October 27, 2022, Dr. Jay examined the employee, who reported that her functioning had worsened since the FCE.  On examination, Dr. Jay noted tenderness in both of the employee’s hands and wrists and weakness of both hands.  Dr. Jay stated that she was medically unable to participate in gainful employment given her bilateral wrist and hand issues, bilateral knee issues, and increasing depression.

In a narrative report dated February 14, 2023, Dr. Staiger opined that the employee suffered from bilateral distal radius fractures and cartilaginous and ligamentous injuries, as well as TFCC tear, painful hardware secondary to surgery, and carpal tunnel syndrome.  These injuries required ORIF of her distal radius, resulting in a malunion of her left distal radius.  He further opined that each diagnosis was either directly related to the work injury or to the surgical interventions and subsequent treatment of the effects of the work injury.

In February 2022, the employee filed a claim petition seeking permanent total disability (PTD) benefits from and after January 20, 2022, as well as payment of outstanding rehabilitation bills.  The matter came before a compensation judge who found the employee to be permanently and totally disabled as of January 20, 2022, and awarded payment of the outstanding invoices for vocational rehabilitation services.  The employer and its insurer appeal the award of permanent total disability, as well as the onset date of permanent total disability.

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).

This case presents two issues for determination: first, whether substantial evidence in the record supports an award of permanent and total disability, and second, whether substantial evidence supports the permanent and total disability onset date of January 20, 2022.  We affirm in part, vacate in part, and remand to the compensation judge for reconsideration of the onset date for the employee’s permanent total disability.

The employer and insurer argue that the compensation judge should not have relied on Dr. Jay’s opinion that the employee is permanently and totally disabled from a medical standpoint. They point out that Dr. Jay had not treated the employee for her work injury until April 6, 2022, more than two years after the injury, and also that he took her completely off of work on only his second visit with her for her wrists.  They also note the absence of evidence that Dr. Jay is a wrist specialist, and that his opinions regarding work ability are not consistent with the conclusions of the FCE or the opinions of her other physicians who felt that the employee could work with restrictions. The employer and insurer maintain that Dr. Jay’s opinion was outweighed by the evidence as a whole and should not have been adopted by the compensation judge.  We are not persuaded.

While Dr. Jay did not perform the employee’s wrist surgeries, he was aware of her overall condition.  He had performed her knee replacements in December 2021 and February 2022 while she was recovering from her wrist surgeries.  He had agreed to be her treating physician for her work injury going forward, following the retirement of Dr. Dale.  Dr. Jay reviewed the on-site job analysis and was aware of the FCE results.  Dr. Jay’s records note the decline in the employee’s condition from April to October 2022.  His opinion that the employee was not able to work is supported by his own observations, the recommendations of Dr. Staiger, who endorsed increasing restrictions, and the notes of NP Nachbor whose records documented the decline of the employee’s abilities and increased restrictions.  The compensation judge has the discretion as the trier of fact to choose between competing and conflicting medical experts reports and opinions.  See Ruether v. State, 455 N.W.2d 475, 478 (Minn. 1990) (citing Olson v. Midwest Printing Co., 347 N.W. 2d 43, 46 (Minn. 1984)).  The compensation judge’s reliance on Dr. Jay’s opinion is not an abuse of discretion.

The employer and insurer contend that the compensation judge erred in finding that the employee was permanently and totally disabled because the employee is physically capable of working, she subverted her return-to-work efforts, and she did not engage in a reasonably diligent job search.  We are not persuaded.

An employee is considered totally disabled if her physical condition, in combination with her age, training, and experience, and the type of work available in her community, causes her to be unable to secure anything more than sporadic employment resulting in an unsubstantial 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).  The concept of total disability depends on the employee’s ability to find and hold a job, not on the employee’s physical condition.  McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983).   In this case, the compensation judge considered the employee’s physical disability, work restrictions, age, education, training, and experience in concluding that she is permanently totally disabled.

Although the compensation judge appropriately relied on the medical opinions of Dr. Jay, the compensation judge expressly noted that his conclusion did not rely solely on the opinion of Dr. Jay.  The compensation judge’s findings indicate that only considering the restrictions from the FCE, as modified by Drs. Staiger, Dale, and Suszynski, he would still find the employee to be permanently and totally disabled.  The compensation judge found that the employee’s restrictions are permanent, and they severely limit the use of her hands and wrists, her ability to lift and carry, her ability to drive long distances, and preclude her working directly with residents.  The restrictions limit her to only sedentary work, at no more than four hours per shift. Those restrictions, along with her age, education, and the work available in her community, support the judge’s determination that she is permanently and totally disabled.

The compensation judge’s determination that the employee is permanently disabled is further supported by the records and testimony of QRC Moske.  QRC Moske testified that after doing an on-site job analysis on March 8, 2022, and discussing those results with Dr. Dale, Dr. Jay, and NP Nachbor, the employee’s FCE restrictions were revised to include no working in assisted living, and no working more than three shifts per week, four hours per shift, or over 12 hours maximum.  The employee was terminated from her job with the employer on June 20, 2022, since there was no work available within the employee’s restrictions.  The employee documented her job search, first on her own, and then through more formal job placement.  The employee’s local labor market of Morris, Minnesota, was described by the QRC as having a population of 5,000 people with employers consisting predominantly of manufacturers, medical providers, and restaurants.  The only other town within the employee’s driving radius of 15 miles is Cyrus, which has a population of 300 people.  The QRC described the employee as having conducted a “very diligent” job search, including networking within her community, and even applying for jobs that were outside of her restrictions and volunteering at positions to determine if she could perform the tasks.  QRC Moske stated that even if Dr. Jay had not taken her off of work permanently for medical reasons, she remained permanently disabled from a vocational standpoint, based on the QRC’s knowledge of the labor market and the employee’s restrictions, experience, and level of education.  There is substantial evidence in the record that the employee could not secure anything more than sporadic employment resulting in an unsubstantial income.

The employer and insurer contend that the compensation judge’s finding is not supported by substantial evidence of record as, in their view, the employee subverted her return-to-work efforts.  They argue that the employee limited herself to part-time work, that she was only interested in working in Morris, that she campaigned against the results of the FCE, and that her restrictions were the result of “doctor shopping.”  They also argue that any claim to the effect that the employee wanted to continue to work for the employer or that she made a diligent good faith effort to return to work there, is completely belied by the evidence as a whole and that the employee was not credible on this issue.  Issues of credibility are the unique function of the finder of fact, and those findings are given deference by this court.  Even v. Kraft, 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).  As related above, there is ample evidence in the record to support the compensation judge’s finding that the employee is permanently and totally disabled and, therefore, we affirm that determination.

The employer and insurer also appeal the finding that the employee has been permanently and totally disabled as of January 20, 2022.  They argue that there is no explanation and no stated facts to support that date for the onset of permanent disability.  As the employee worked from January 20 through June 20, 2022, the employer and insurer contend that June 20, 2022, should be the onset date of her PTD.  We agree that there is not substantial evidence in the record on appeal to support a January 20, 2022, onset date of PTD.

The employee asserted permanent total disability as of January 20, 2022, the date Dr. Dale revised the FCE restrictions to include a limit of four hours of work per day.  Between that date and June 20, 2022, the employee’s restrictions were revised even further to limit her to four hours per day, three shifts per week, with no two consecutive days.  However, there is no evidence that she was unable to work, that she did not work, or that she was not engaged in sustained gainful employment as of January 20, 2022.  No wage records were introduced as evidence by either party, but the employee testified that she continued to work in some capacity, perhaps even outside of her restrictions, until the employer advised her they could no longer accommodate her on June 20, 2022. The respondent’s brief states, “She was not free to decline the work activity which she believed exceeded her functional ability as if she had while waiting for a hearing on her claim for PTD, she would have had no income.”  (Respondent’s brief at 17.)  Clearly, the employee worked in some capacity between January 20 and June 20, 2022.  However, the evidence in the record of the extent of her work and earnings during that time period is not sufficient to allow this court to review the compensation judge’s determination.

Sporadic work with insubstantial income does not preclude a finding of permanent total disability.  Hengemuhle, 368 N.W.2d. at 62.  In Olds v. Lutheran Soc. Servs. of Minn., 67 W.C.D. 252 (W.C.C.A. Apr. 9, 2007), summarily aff’d (Minn. Aug. 21, 2007), this court stated:

While the employee’s earnings were reduced as of January 20, 2022, the record before us is lacking specific wage records to support the judge’s finding regarding the onset date of the employee’s PTD.  Therefore, the finding of the onset date of PTD as January 20, 2022, is vacated, and the matter is remanded to the compensation judge for reconsideration of the onset date of PTD based on additional evidence and in accord with the factors of insubstantial earnings and sporadic employment.

For the foregoing reasons, the decision of the compensation judge is affirmed in part, vacated in part, and remanded for a finding of the onset date of PTD.