LYNDA EDELMAN-HOECHERL, Employee/Appellant, v. MINNEAPOLIS PUB. SCHOOLS (SSD1), Self-Insured Employer/Respondent, ADMIN’D BY CORVEL CORP., and NOVACARE OUTPATIENT REHAB., PARK NICOLLET HEALTH SERVS., GRP. HEALTH PLAN d/b/a HEALTHPARTNERS, INC., RAYUS RADIOLOGY, BLUE CROSS BLUE SHIELD OF MINN., ALLINA MED. CLINIC, and INTERVENTIONAL SPINE & PAIN PHYSICIANS, Intervenors.

The employee appeals from the compensation judge’s determination that the employee was not permanently and totally disabled.  As substantial evidence supports the compensation judge’s determination, we affirm.

Lynda Edelman-Hoecherl, the employee, began working for Minneapolis Public Schools, the employer, in 1993.  Prior to 1993 her work history included delivering papers, waitressing, dishwashing, working as a dietary aide, providing customer service, filing medical records, answering phones, working at a tanning salon, and providing daycare.  With the employer, she began as a substitute/floater kitchen worker at various elementary schools in the district and then became the elementary manager, and eventually the senior food service coordinator.  (T. 48-49.)  Her job duties included ordering food for the schools, preparing bank deposits, processing time sheets, and receiving deliveries of food.  (Id.)

On August 16, 2016, the employee was carrying a box of fruit when she tripped and fell forward, twisting and injuring her low back.  As a result of her admitted work injury, the employee has had two lumbar surgeries.  The first was a transforaminal interbody fusion at L4-5 and L5-S1 performed by Frederick Harris, M.D., on January 19, 2017.

Following surgery, the employee returned to work for the employer with restrictions, working seven and a half hour days, five days per week, at the Laura Ingalls building.  That position was not available after the 2017-2018 school year.  The employee continued to receive medical care for her work injury, including work hardening and follow-up visits with Zeke McKinney, M.D., an occupational medicine physician.  Dr. McKinney recommended massage therapy, chiropractic treatment, steroid injections, physical therapy, and strengthening at PDR Clinics (now iSpine), and issued restrictions on her lifting, bending, crouching, and kneeling.  (Exs. F, I.)

After her temporary total disability benefits were exhausted, the employee found full-time, light-duty work at the Salvation Army beginning on July 13, 2020.  The employee worked at the jewelry sales counter until she was taken off work on February 23, 2021, pending her second surgery.  Joseph R. Kapurch, M.D., recommended an L3-4 decompression and fusion due to her ongoing symptoms and adjacent segment disease.  Paul T. Wicklund, M.D., performed an independent medical examination (IME) at the request of the employer and insurer and agreed that the recommended surgery was appropriate and related to the work injury.

On August 27, 2021, Dr. Kapurch performed the employee’s second surgery.  Following the procedure, the employee reported to her physicians and QRC that her condition was improved.  (Exs. R, L.)  She was referred to NovaCare for physical therapy, where she attended 26 therapy sessions, and then underwent a six-week work conditioning program.  (Ex. K.)  She continued to report right-sided low back and SI joint pain, but did note improvement of her radicular pain in her lower extremities.  (Ex. L.)  Since the second surgery, she also received SI joint injections that have helped relieve her pain.  (Id.)

On March 22, 2022, Dr. Kapurch removed the employee’s lifting restrictions and ordered work hardening, which she began at NovaCare Rehabilitation on April 6, 2022.  (Exs. L, K.)  On May 26, 2022, the employee was discharged from work conditioning and her therapist noted that she could work a medium category job.  (Ex. K.)  At her one-year postoperative appointment with Dr. Kapurch on August 25, 2022, the employee reported a 50 percent improvement of her symptoms since the surgery.  (Ex. L.)  Dr. Kapurch released the employee to return to work without restriction.  (Id.)  Dr. Kapurch noted that she may need additional SI joint injections, but that she had no need for additional neurosurgical treatment.  (Ex. L.)  The employee’s vocational rehabilitation records reflect that in October 2022, the employee reported to her QRC that she felt 60-80 percent better since the surgery.  (Ex. R.)

The employee received QRC vocational rehabilitation services from Stubbe Case Management starting in January 2017, and she began working with a job placement specialist, Kari Brustad, in November 2022.^[1]  Placement services ended by June 5, 2023, as reflected by the Placement Progress Report of that date, indicating that the employee had requested that placement services be put on hold due to “a number of personal concerns.”  (Ex. W.)  Progress reports and job search logs reflect that during this time frame the employee applied to approximately 50 jobs and had four interviews but received no job offers.  (Exs. R, W.)^[2]  Job search logs reflect that she spent approximately four and one-half hours looking for employment online.  (Ex. R.)  The employee testified that she had difficulty recording her job search efforts on the job logs as it required too much sitting.  (T. 61, 111.)

Despite the cessation of placement assistance, the employee secured employment with the Anoka-Hennepin School District beginning on August 28, 2023.  She worked as a screener/greeter nearly four hours per day, five days per week, earning $17.10 per hour.  Her duties included screening visitors, answering the door, and printing announcements.  (Ex. R.)  She was able to sit and stand as needed.  The employee ended her employment on September 26, 2023, due to pain.  She returned to Dr. McKinney who took her off work so that she could focus on therapy for functional improvement through rehabilitation without exacerbations from work.  Dr. McKinney noted that he did not intend to keep the employee out of work permanently.  (Ex. F.)  As of the date of hearing, the employee had not looked for work since leaving the Anoka-Hennepin position.  She has received Social Security Disability Insurance benefits since 2019.

In March of 2023 the employee was seen in follow up by Dr. McKinney, who recommended additional therapy at PDR Clinics (iSpine) and referred her to NovaCare for gait training, physical therapy, and to obtain orthotics for gait biomechanics.  (Ex. K.)  On November 8, 2023, the employee was seen in follow up at iSpine following 13 therapy sessions.  The employee noted improvement with the MedX therapy.  Additional therapy was recommended, along with an SI belt.  On December 1, 2023, Dustin Ward, M.D., at iSpine recommended an L5-S1, S1 transforaminal steroid injection, bilateral SI injections, and a spinal cord stimulator trial.  (Ex. M.)

On January 22, 2024, the employee was seen again by Dr. McKinney who noted that she was not at maximum medical improvement (MMI), as she was reporting improvement from the iSpine program and gait improvement with the use of orthotics.  He recommended additional medications, ongoing treatment at iSpine, ongoing gait treatment at NovaCare, and bilateral SI injections.  Although he indicated that she was not at MMI, Dr. McKinney assessed a permanency rating of 38.53%, including the condition of the employee’s knees.^[3]

Dr. Wicklund conducted an IME of the employee at the request of the employer and insurer and issued a report dated January 7, 2023.  Dr. Wicklund assessed the employee as post-lumbar fusion with average results.  He opined that the medical treatment received by the employee through the date of examination was reasonable, but no further treatment was necessary other than home exercises.  Dr. Wicklund assessed the employee as capable of working forty hours per week with restrictions, as having a permanency rating of 20%, and as being at MMI.  (Ex. 7.) Dr. Wicklund prepared a supplemental report dated June 12, 2023, noting that his opinions had not changed after reviewing additional medical records, and reiterating his permanency rating of 20% and his opinion that the employee was physically capable of performing full-time, light-duty work.  (Ex. 9.)

Dr. Mark Agre performed an IME on behalf of the employee and provided a report dated March 10, 2023.  Dr. Agre diagnosed the employee as having low back pain, spondylosis with myelopathy in the lumbar region, fusion from L3-S1, lumbar disc degeneration, right SI joint pain, left foot drop, left leg weakness, and paralytic gait.  Her symptoms at that time included weakness and numbness in the left leg and constant back pain radiating down the left leg despite decompressive surgery, which he felt is permanent.  Dr. Agre noted that her pain interferes with her stamina and concentration, and that prolonged sitting and standing aggravated her back.  He concluded that she is not likely to be able to support herself in competitive employment and that she qualified for “total and permanent incapacitation.”  (Ex. D.)  Dr. Agre did not comment on MMI, but did note that the “true way to test occupational capacities would be a functional Capacities Evaluation.”  (Id.)

Laura Hokeness performed a vocational evaluation on behalf of the employee and authored a report dated May 17, 2023.  As part of her evaluation, she performed a Transferable Skill Analysis, which identified only one job, industrial food manager, that may have been appropriate for the employee but for the restriction on hours.  (T. 143.)  Based on those results, she concluded that the employee is unable to perform 98% of transferrable jobs, regardless of the four-hour work restriction, and that no transferrable options are appropriate due to the time restriction.

During the evaluation, the employee was given a typing test, and she typed 13 words per minute with 84% accuracy, which is below proficient for clerical work.  As such, Ms. Hokeness concluded that the employee did not meet the qualifications for clerical jobs without skill enhancement.  (T. 154, 155.)  In her report, Ms. Hokeness concluded that given the employee’s chronic pain, her advanced age, permanent restrictions, work history, and limited transferable skills, she would not be able to secure anything more than sporadic employment resulting in insubstantial income.  (Ex. S.)  With the employee’s lack of transferable skills, her participation in a job placement program that did not result in employment, and the failed job attempt at Anoka-Hennepin School District, Ms. Hokeness concluded that a job search would be futile.  At hearing, she testified that the employee did not perform a reasonable and diligent job search.  (T. 144.)  She testified that although the job leads provided by the job placement specialist were within the employee’s restrictions, they may not have been within her physical abilities.  (T. 177.)

The employee underwent a vocational evaluation with Lori Magoffin at the request of the employer and insurer.  The evaluation included an interview, review of medical and vocational rehabilitation records and job search logs, and vocational testing.  A labor market survey was also conducted by Kari Terwey of Palmer Lake Placement Services and was referenced in Ms. Magoffin’s report dated June 13, 2023.  In that report, Ms. Magoffin opined that there is employment available in the competitive labor market for the employee, that there are several vocational areas that would fit within the employee’s restrictions that are currently available, including customer service, optical sales, companion care, receptionist, and clerical-related positions.  (Ex. 23.)  She noted that the employee would benefit from skill enhancement training, such as basic computer skills and typing.  (Ex. 12.)

Ms. Magoffin authored a supplemental report dated July 25, 2023, after reviewing further job search logs, the IME report of Dr. Agre, and the supplemental report of Dr. Wicklund.  In that report, she concluded that the employee had not conducted a reasonable and diligent job search, pointing out that in fact there were three months during job placement that she had no job search logs at all.  (T. 191.)  Ms. Magoffin noted that there are several remote or hybrid employment opportunities for which the employee has not applied, as well as several opportunities within her physical and geographical restrictions.  Ms. Magoffin indicated that employers are willing to provide reasonable accommodations when requested, as well as part time hours.  She reiterated her opinion that the employee would benefit from skill enhancement training, and that declaring the employee permanently and totally disabled is premature.  (Ex. 14, T. 194.)

The employee filed a claim petition, subsequently amended, seeking permanent total disability (PTD) benefits, permanent partial disability (PPD) benefits for her low back condition, approval of an MRI scan, and penalties.  The case came on for hearing before a compensation judge on January 31, 2024, and July 5, 2024.  Additional issues were raised, including whether the employee was at MMI, reasonableness and necessity of provided medical care and proposed injections, the compensability of intervention claims, and the employee’s entitlement to medical mileage and expense.  Several medical opinions and the two vocational opinions were admitted into evidence.  Ms. Hokeness, Ms. Magoffin, and the employee testified at the hearing.

The compensation judge found that the employee has not yet attained MMI since additional treatment has been recommended that is meant to improve her functional abilities, that any claim she has to a permanency rating greater than 20% is premature, that she is entitled to TPD benefits for the period she worked for Anoka-Hennepin School District, that she is entitled to left left-sided SI joint injections, but that additional right-sided SI joint injections are barred by the treatment parameters, and that she is not permanently and totally disabled at the time of hearing.  The compensation judge specifically found that the employee’s testimony regarding her job duties at the Salvation Army and Anoka-Hennepin School District having increased her symptoms, her testimony regarding her job search efforts, and her testimony concerning her functional abilities, pain levels, and the pain behavior exhibited at hearing was not consistent with contemporaneous vocational and medical records, and was not persuasive.  The employee appeals the finding that she is not permanently and totally disabled.

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).

In assessing whether the employee is permanently and totally disabled, the compensation judge considered the varying expert medical and vocational opinions and records and the employee’s testimony, combined with her age, training, experience, and the work available in her community.  From this evidence, the compensation judge found that the employee is not permanently and totally disabled.  The compensation judge found that the employee is not at MMI, that she has not conducted a reasonable and diligent job search, and that she did not fully cooperate with the rehabilitation plan.  The employee argues that the compensation judge erred since a job search is futile, any earnings would comprise an insubstantial income, and that there is no evidence that the employee’s condition will improve.  We are not persuaded.

The law regarding permanent total disability is well settled.  Permanent total disability means that the employee’s physical disability in combination with her age, education, training, and experience render her unable to secure anything more than sporadic employment resulting in insubstantial income.  Schulte v. C.H. Peterson Constr. Co., et al., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).  In 1995, the Workers’ Compensation Act was amended to add a minimum permanent partial disability threshold to this definition.  In this case, the minimum permanency rating for eligibility for permanent total disability benefits is a 15 percent PPD rating.^[4]  Minn. Stat. § 176.101, subd. 5.  As the employee meets this threshold with the accepted PPD rating given by Dr. Wicklund, the analysis moves to the employee’s ability to obtain regular employment resulting in substantial income.

While there is disagreement amongst the medical experts as to how many hours the employee can work per week or day, there is agreement that the employee does have significant work restrictions.  These include limitations on standing, walking, lifting, carrying, and sitting. Dr. McKinney also imposed restrictions on her squatting, climbing, kneeling, and driving.  (Exs. 7, F, D.)  Dr. Agre opined that a functional capacities evaluation would be a true way to test her occupational capacities.  (Ex. D.)  The compensation judge thoroughly outlined and considered all the medical opinions.  The concept of total disability depends primarily 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).  To that end, the compensation judge also carefully considered the vocational testimony and the vocational rehabilitation records, including job search logs.

There were two vocational opinions in this matter, with each expert submitting a report and testifying at hearing.  Ms. Hokeness administered a transferrable skills analysis to identify jobs for which the employee would be qualified with her background.  The only job identified was industrial food manager, which Ms. Hokeness did not feel was an appropriate job for the employee since that job title requires a 40-hour work week.  Ms. Hokeness critiqued the labor market survey utilized by Ms. Magoffin as ignoring the employee’s restrictions and lack of transferrable skills.  (T. 151-155.)  Based on the results of the transferrable skills analysis and the employee’s background and restrictions, Ms. Hokeness concluded that a job search would be futile.  (T. 144; Ex. S.)  By contrast, Ms. Magoffin relied on vocational testing and a labor market survey to inform her opinions.  She found that there are several vocational areas that should be explored, that the employee’s job search to date was not reasonable and diligent, and that she would benefit from skill enhancement.  Considering those factors, Ms. Magoffin considered declaring the employee permanently and totally disabled to be premature.  As the opinion of Ms. Magoffin is supported by adequate factual foundation, the compensation judge did not abuse her discretion in choosing this vocational opinion over the opinion of the employee’s expert.  Wagner v. City of St. Paul, slip op. (W.C.C.A. Jan. 18, 2002).

There was also testimony and evidence regarding the employee’s pain behaviors and non-exertional limitations. In his report, Dr. Agre noted that the employee’s pain interferes with her stamina and concentration and noted that if she worked more than four hours her pain becomes worse and that she would be unproductive and unsafe.  (Ex. D.)  The employee testified that she was unable to continue working at the Salvation Army and Anoka-Hennepin due to pain.  (T. 54, 59.) Ms. Hokeness reported and testified that the employee’s pain would limit her ability to concentrate and to hold a job.  (T. 155, 166; Ex. S.)  In contrast, Ms. Magoffin testified that the employee exhibited very few pain behaviors during her two-hour interview, that she did not require any breaks, and that the employee was not using a cane, as she was at the hearing.  (T. 187.)  The compensation judge, after observing the employee at hearing and reviewing the evidence, found that the employee’s testimony regarding her work duties exceeding her restriction and causing significant pain was unsupported by contemporaneous vocational and medical records and was not persuasive.  (Finding 67.)  She also found “the employee’s testimony concerning her functional abilities, pain levels and her pain behavior exhibited at hearing was inconsistent with the recent medical treatment record from her January 22, 2024, appointment with Dr. McKinney, and therefore, was not persuasive.”  (Finding 6.)  The compensation judge, as the trier of fact, has the unique position to assess credibility, and those findings will not be disturbed by this court.  Johnson by Johnson v. Eliason d/b/a Blitz Auto Sales, 76 W.C.D. 53 (W.C.C.A. 2016) (citing Brennan v. Joseph G. Brennan, 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988)).

The vocational experts agreed that the employee did not conduct a diligent job search.  The employee correctly points out that a diligent job search is not a necessary prerequisite to a finding of permanent total disability where the vocational evidence sufficiently demonstrates that a job search would be futile.  Lueck v. Main Motors Co., slip op. (W.C.C.A. Jan. 26, 1995).  However, an employee’s job search may go to the evidentiary weight of a claim for permanent total disability benefits.  Wensman v. Order of St. Benedict/St. John’s Univ., 64 W.C.D. 490 (W.C.C.A. 2004).  The employee’s job search logs showed that she participated in a job search for four of the seven months that she received job placement services, that her job search efforts included 36 applications, three entries of searching for work online, ten interviews and six telephone calls.  (Exs. R, 13.)  There were no job search efforts recorded between March 24 and June 5, 2023, at which time job placement services were put on hold at the employee’s request.  (Ex. W.)  Although the employee testified that her job search efforts were more than what is reflected on her logs, and that she put job placement on hold due to her broken eyeglasses, the compensation judge found that testimony inconsistent with the contemporaneous vocational rehabilitation and job placement records and not persuasive.  As this determination is supported by substantial evidence in the record, this court does not draw different inferences from the evidence than those of the compensation judge.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

Additionally, the employee was able to secure employment with the Anoka-Hennepin School District that was within her physical restrictions.  Although the employee ended that job due to increased pain, that she was able to secure employment in her relevant labor market supports the determination that a job search would not have been futile and supports the compensation judge’s ultimate finding that the employee is not permanently and totally disabled.

Although the employee did not specifically brief the issue of whether the compensation judge erred in finding that the employee has not reached MMI, the issue of whether the employee’s condition is permanent was discussed.  The compensation judge noted in her memorandum that the employee’s treating physicians expect functional improvement with additional treatment which may bear on the employee’s ability to find employment.

MMI is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can be reasonably anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.” Minn. Stat. § 176.011, subd. 13a.  MMI is not strictly a medical issue, but an issue of ultimate fact, as it is a controlling legal standard.  Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).  To determine MMI, a compensation judge must evaluate the employee’s condition as documented by medical records, medical opinions, and other data and circumstances.  Id.

In this case, the compensation judge found that the employee had not yet reached MMI.  In doing so, she adopted the opinion of Dr. McKinney, who is an occupational medicine physician, has treated the employee since 2018, was aware of her condition both prior and after her second fusion, and who noted on several occasions prior to the hearing that the employee is not at MMI and that she was continuing to improve.  Dr. McKinney has recommended additional medical treatment including physical therapy at iSpine, ongoing gait treatment at NovaCare, bilateral SI injections and medications.  In addition to those recommendations, Dr. Ward has proposed a trial spinal cord stimulator.  (Ex. M.)  There is substantial evidence supporting the compensation judge’s finding that the employee is not at MMI and that she can reasonably anticipate improvement in her condition.

An employee who earns only insubstantial income is not precluded from being found permanently and totally disabled.  Bertsch v. Varnum Lumber & Fuel Co., 303 Minn. 545, 228 N.W.2d 228, 27 W.C.D. 786 (1975); Hengemuhle, 358 N.W.2d at 62.  In this case the employee argues that even if she were able to find part-time employment, her earnings would be insubstantial, thus rendering her permanently and totally disabled.  For the period that she worked for Anoka-Hennepin School District, her earnings were $17.10 per hour for 3.75 hours per day, 5 days per week.  The compensation judge determined that those earnings were not insubstantial for the purposes of awarding TPD benefits.  The court concludes that the employee’s earnings are evidence which supports the compensation judge’s conclusion that the employee is not permanently totally disabled.^[5]  For the foregoing reasons, the compensation judge’s determination is affirmed.