Gerhardson v. Indus., Inc.

 Gerhardson v. Indus., Inc., WC16-6003 (W.C.C.A. March 15, 2017).

The employee appeals the compensation judge’s denial of her claim for permanent total disability benefits.  The W.C.C.A. affirmed by finding substantial evidence supports the holdings of the Compensation Judge.   The employee was employed by Industries, Inc., as a job coach. In this position, she provided training and supervision to persons with disabilities, which, at times, did involve performing their job duties.  On July 27, 2005, while helping a client hold a heavy tailgate assembly, the employee injured her neck and left shoulder when the client dropped one end.   As a result, the employee underwent surgery on her neck in 2006 and surgery on her left shoulder in 2007 and 2009.  Dr. Shobe gave her a permanent partial disability rating of 25% for her neck and 3% for her left shoulder. The employee eventually returned to work with the DOI employer in a light-duty position.

However, in 2008, the employee was charged with an alcohol-related violation, which not only interfered with her ability to perform her job, but also with the employer’s ability to insure the employee.  As a result, the employee was terminated.  The employee was then involved in a motor vehicle accident on July 27, 2009 following an appointment for her initial work injury, injuring her low back and further injuring to her neck.  The employee was put at MMI for her low back on June 29, 2010.  The employee then underwent a Functional Capacities Evaluation by Dr. Schwender, who opined the employee has permanent work restrictions.  Further, the QRC opined at that time a further job search would be futile.  The employee also applied for and began receiving Social Security Disability.  Moving forward, the employee was eventually given an additional 7% permanency rating for her low back condition.  In October 2014, the employee filed a claim petition alleging permanent total disability benefits, additional permanency, and payment of medical treatment.

The employer and insurer had the employee undergo an independent medical examination in which a report was issued on February 2, 2015, finding that, although the permanent work restrictions given by Dr. Schwender are related to the 2005 work injury, the restrictions were excessive.  Further, the employer and insurer also had Ms. Schrot perform an employability assessment.  Although Ms. Schrot declined to conduct vocational testing due to the employee’s illness on that day, she instead considered the employee’s educational and work histories and concluded the employee had demonstrated academic abilities and transferable skills, ultimately concluding the employee is employable.   She further recommended participation in chemical dependency treatment and classes to update her skills.  In return, the employee underwent a vocational evaluation in September 2015 by Ms. Hokeness.  Ms. Hokeness opined that the employee is unlikely to be successful in completing retraining and that her transferable skills were beyond her physical restrictions.  In December 2015, a rehabilitation consultation was completed, concluding the employee was not a qualified employee because she could not reasonably be expected to return to suitable, gainful employment.  On June 30, 2016, the Compensation Judge found the employee was entitled to the 7% permanency for the low back, but denied permanent total disability benefits finding the employee retains the ability to obtain sustained gainful employment.

Upon appeal, the W.C.C.A affirmed the Compensation Court under a substantial evidence review.  The W.C.C.A. restated the rule that 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 (1967).  Further, it stated that “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 (Minn. 1983).

The W.C.C.A. acknowledged the employee’s argument that Ms. Schrot’s opinion lacks foundation as she allegedly failed to take into account the employee’s actual condition and medical treatment the employee has undergone.  However, the W.C.C.A. stated that she took a history from the employee, conducted an evaluation, and reviewed various records.  This degree of knowledge is sufficient to establish foundation.  Therefore, the Court must defer to the compensation judge’s choice of expert.  Further, the Court stated that Ms. Schrot’s opinions about the employee’s alcohol use, mental health issues, and numerous other things, did not invalidate her vocational opinion.  Lastly, the Court stated that if a careful reading is done of the Findings and Order, one will find that the compensation judge characterized the suggestions of Ms. Schrot as “guidelines for rehabilitations personnel” and found the employee was not permanently and totally disabled based upon her own independent assessment.