Original Proceeding in this Court
Theodore E. Kanell and Daniel E. Young, Attorneys for
M. Lambert, Attorney for Respondent Diahann T. Jensen
Jill M. Pohlman authored this Opinion, in which Judges Kate
Appleby and Ryan M. Harris concurred.
Macy's Southtowne Center (Employer) petitions for review
of the Labor Commission's preliminary award of permanent
total disability benefits in favor of Diahann T. Jensen
(Claimant). Employer challenges the Commission's findings
regarding Claimant's maximum medical improvement (MMI)
and her ability to perform other work reasonably available.
We conclude that substantial evidence supports the
Commission's findings, and we therefore decline to
disturb its order.
Claimant sustained a lower-back injury while working as a
sales associate for Employer in April 2007. Claimant sought
treatment for her injury, and Employer accepted liability,
paid her temporary total disability compensation, and agreed
in 2008 to permanent partial disability compensation based on
an impairment rating of 13% of her lower back.
Claimant returned to work in October 2012 and worked for
Employer for another month, but because she was "unable
to think clearly or perform the physical aspects of her job
duties," she found "a more sedentary job" with
another company from December 2012 to July 2013. She could
not continue in that position, however, due to chronic pain
and side effects of medication.
In 2015, Claimant filed an application for a hearing, seeking
permanent total disability compensation. The administrative
law judge (ALJ) entered a preliminary award of permanent
total disability benefits to Claimant after an evidentiary
hearing. On Employer's motion for review, the Commission
set aside the preliminary award and remanded the matter for
referral to a medical panel on the issue of Claimant's
The appointed medical panel, consisting of two experts in
occupational medicine, concluded that Claimant had reached
MMI, i.e., "medical stability from her work-related
low-back injury." It explained that her condition
"has been stable since 2015-after fusion and trial with
spinal cord stimulator ended." After receiving this
report, the ALJ again found that Claimant was entitled to a
preliminary award of permanent total disability benefits.
Employer filed another motion for review with the Commission.
The medical record before the Commission did not contain
treatment records pertaining to Claimant's work injury
that predated 2012, but the Commission found evidence that
Claimant underwent a discectomy in 2007. Claimant also
underwent fusion surgery involving hardware placement in
August 2013 and later underwent additional treatment to
address a mal-positioned screw and to remove the hardware
fixation system. When Claimant continued to experience
lower-back pain, she had a spinal cord stimulator implanted
in August 2014.
Eight months later, a doctor (Doctor) assessed Claimant with
a 12% whole-person impairment rating for her lumbar-spine
fusion. On May 12, 2015, Doctor wrote a letter outlining
Claimant's capacity and stating that Claimant had reached
MMI. On July 2, 2015, a physician assistant (Physician
Assistant) for Claimant's surgeons stated that Claimant
was unable to work due to chronic lower-back pain. This was
the earliest date in the medical records that indicated
Claimant could not work.
In December 2015, Claimant's functional capacity was
evaluated. The resulting evaluation showed that Claimant
could function only at "the sedentary physical-demand
level for a maximum of 0-3 hours per day and could sit,
stand, and walk on an occasional basis." It also showed
that she "was capable of frequently reaching, gripping,
writing, typing, and fingering, but she was unable to