THEODORE J. NORMAN, Employee/Cross-Appellant, v. DIAMOND RISK CORP./COOK & ASSOCS., LEGION INS. CO., adm=d by CUNNINGHAM, LINDSEY CLAIMS MGMT., INC., and MINNESOTA INS. GUAR. ASS=N, Employer-Insurer/Appellants, and DULUTH CLINIC, VIRGINIA, TWIN CITIES SPINE CTR., MN DEP=T OF LABOR & INDUS./VRU, MN DEP=T OF EMPLOYMENT & ECON. DEV., and COMPREHENSIVE CARE SERVS., INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 25, 2005
APPEALS - NOTICE OF APPEAL. While failure to serve an adverse party with a notice of appeal is a jurisdictional defect, this court will not dismiss an appeal where the health care provider=s motion to intervene had been denied and the subsequent motion was not presented to the compensation judge and no order granting intervention was ever issued.
CAUSATION - AGGRAVATION. Substantial evidence, including lay testimony, medical records and expert medical opinion supported the finding that the employee had sustained a permanent, rather than temporary, aggravation of his pre-existing low back condition.
CAUSATION - PSYCHOLOGICAL INJURY. Substantial evidence, including lay testimony, medical records and expert medical opinion supported the finding that the employee had sustained a consequential mental injury.
PERMANENT PARTIAL DISABILITY - LOW BACK; PERMANENT PARTIAL DISABILITY - MENTAL INJURY. Substantial evidence, including lay testimony, medical records and expert medical opinion supported both the rating of a low back injury under the disability schedules and the Weber rating of the employee=s consequential mental injury.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including lay testimony, medical and vocational records and expert medical and vocational opinion supported the finding that the employee was permanently totally disabled.
CREDITS & OFFSETS - SOCIAL SECURITY OFFSET. Child=s insurance benefits are included in calculating the amount of the Social Security offset against permanent and total disability benefits under Minn. Stat. ' 176.101, subd. 4.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol Eckersen
Attorneys: Leslie M. Altman, Rider Bennett, Minneapolis, MN, for the Appellants. Robert C. Falsani, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Cross-Appellant.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the findings that the employee=s low back injury was permanent rather than temporary; that the employee sustained a consequential mental injury; and that the employee is permanently and totally disabled. The employer and insurer also appeal from the findings which rated the employee as having a 10 percent permanent partial disability (APPD@) related to his low back condition and a 20 percent PPD related to his mental condition. The employee cross-appeals from the judge=s order allowing the employer and insurer to offset Social Security benefits paid both to the employee and to his children against permanent total disability. The employee has also moved this court to dismiss the employer and insurer=s appeal. We deny the employee=s motion and affirm the compensation judge=s findings and order.
The employee, Theodore J. Norman, was born in 1962 and was 42 years old at the time of the hearing. After completing high school in Virginia, Minnesota, the employee initially worked for his brother=s bar, first as a janitor, then as a bouncer and bartender. The employee next owned and operated his own bar for about four years, and then worked as a logging truck driver, did on-call construction work, and was employed from time to time as a bartender for others. The employee=s duties in these jobs generally included heavy lifting and other heavy physical activities.
In March 1993 the employee treated once at the Duluth Clinic for low back pain resulting from an incident in February 1993 when he bent over at work to pick up a chainsaw. No radicular features were noted and the employee was diagnosed with an acute low back strain. Two to four weeks of physical therapy were prescribed, and his physician anticipated a rapid resolution of his symptoms.
During the spring of 1995 the employee was treated at the Range Mental Health Center by Steven Carter, a psychologist, and by Dr. Timothy M. Magee, a psychiatrist, for what was diagnosed as an adjustment disorder with depressed mood after a breakup with his long-term girlfriend. On January 10, 1996, the employee returned for a review of his status. He had not been treated since May, 1995, and his psychologist reported that he had no further treatment needs.
In July 1996, the employee was seen at the East Range Clinic for low back and bilateral hip pain. X-rays showed mild anterior wedging at T12 and L1 with advanced degenerative spurring from T11-12 and moderate anterior osteophyte formation throughout the lumbar area. He was diagnosed with degenerative joint disease and congenital hip abnormalities. The employee returned on February 27, 1997, noting that he had continued to have low back pain, although the pain was not getting worse. At that time the employee was working as a bartender, standing on his feet for prolonged periods, and the doctor believed the employee=s back pain was likely related to this work. He recommended that the employee try chiropractic treatment.
On March 7, 1997, the employee was seen by Dr. Stephen R. Park at the Duluth Clinic for chronic anxiety and probable depression. He was given Prozac which improved his symptoms. He discontinued the Prozac but later had a recurrence of his symptoms and returned to see Dr. Park on August 25, 1998. He was put back on Prozac on a continuing basis. According to the employee=s testimony, his anxiety and depression responded well to the Prozac and over the next several years he had no depression and only occasional mild panic attacks.
The employee began working for the employer, which the parties have referred to as ACook Slurry,@ in 1998. The employer produced a blasting mixture which it sold and delivered to nearby taconite mines. The employee=s duties included moving pumps and hoses, pouring sacks of ingredients into a mixer, operating a fork lift, filling trucks, and delivering and unloading truckloads of product. On January 11, 1999, the employee was attempting to tip a 55-gallon oil drum which he estimated to weigh 700 pounds, when he was unable to straighten up and experienced an onset of severe pain in the low back, followed a short time later by pain in the left leg radiating to the knee.
He reported the injury and went from his work site to the Duluth Clinic in Virginia, Minnesota, where he was seen by Dr. T. Scott Douglass, an occupational medicine specialist. Dr. Douglass noted that the employee stood with a marked right lateral tilt and could flex forward only 20 degrees. Straight leg raising was positive at 40 degrees bilaterally. He diagnosed a lumbar strain and spasm with impingement signs, took the employee off work, and prescribed back exercises and physical therapy. By January 29, 1999, the employee continued to exhibit positive straight leg raising, but his low back pain and range of motion was sufficiently improved so that Dr. Douglass thought he could resume work with light-duty restrictions.
The employer told the employee he could not return to work with restrictions, so the employee at first remained off work. On February 17, 1999, Dr. Douglass authorized the employee to return to his regular job without restrictions. The employee returned to work for the employer, which by that time had put most of its activities on hold during contract negotiations with the mines as there was some uncertainty whether the business could continue to operate. The employee testified that he Abasically sat around@ at work over the next two weeks.
On March 1, 1999, the employee told Dr. Douglass that although he had not been doing much at work, he had been having a sharp pain in his lower back, particularly while sitting. The employee was given a trigger point injection in the left lumbosacral area. Nonetheless, Dr. Douglass continued the employee on an unrestricted status.
Ten days later, on March 11, 1999, the employee returned to see Dr. Douglass noting that he had been laid off from work, but that he continued to have discomfort in his lower back. Dr. Douglass continued the employee=s release to regular work activities, but noted in his records that the employee should avoid overhead lifting and prolonged overhead work. When next seen by Dr. Douglass on April 12, 1999, the employee told the doctor that he had not resumed work as the employer was now out of business. He had not had lasting relief from the trigger point injection. Dr. Douglass recommended that the employee resume physical therapy.
Later that month, the employee found a job as a driver for Viking Explosives. The job consisted of driving a tanker truck to deliver blasting explosives to taconite mines. The employee testified that this job was much easier than his preinjury job at Cook Slurry, because the loading was automated, there was no lifting, and delivery runs were only about 10 to 15 miles. He was able to change positions quite frequently since there were long periods of waiting time at the delivery site when he was allowed to get out and walk around or even to lie down and rest in his truck.
On May 3, 1999, the employee told Dr. Douglass that he had started having more pain across his lower back and in the right posterior thigh and right lower leg. He could identify no injury or trauma to his back at his new job. Dr. Douglass noted that the employee=s hip and thigh pain and right lower leg pain were consistent with an L4 or L5 nerve root irritation. He diagnosed a possible lumbar radiculitis at L4-L5 and speculated that there might be an extruded fragment, since leg pain now predominated over back pain, while initially the employee=s back pain had predominated. He recommended a lumbar MRI scan.
The MRI scan, performed on May 13, 1999, showed a disc protrusion at L1-2 moderately compressing the right L2 nerve root, an asymmetrical disc protrusion at L3-4 with mild to moderate central spinal stenosis and moderate compression of the right L4 nerve root, severe central spinal stenosis at L4-5 with central disc protrusion, and an asymmetrical disc protrusion at L5-S1 on the right mildly impinging the right side of the subarachnoid space and the right S1 nerve root. On May 17, 1999, Dr. Douglass saw the employee to review the MRI results. He considered the employee=s radicular pain and right leg weakness to be consistent with the L4 nerve root irritation shown on the scan. The employee reported that he had been able to tolerate his current work activity, and Dr. Douglass agreed that he could continue driving as long as climbing remained very occasional. He further recommended that the employee avoid heavy lifting, pulling or pushing, repetitive bending and twisting, or working in awkward positions. He suggested that the employee consider either an epidural steroid injection or a neurosurgical consultation.
The employee=s symptoms did not improve, and in June, 1999, Dr. Douglass referred him to Dr. Molly Urban, an anesthesiologist and pain management specialist at the Virginia Regional Medical Center, for an epidural injection, which was performed on July 13, 1999. On July 13, 1999, Dr. Douglass also wrote a letter to the insurer in which he opined that the employee=s work injury had precipitated, aggravated and accelerated his lumbar disc disease. On July 21, 1999, the employee returned to Dr. Douglass and reported that the injection had significantly reduced his back and right leg pain. The doctor noted that the employee Acontinues released to his current work without restrictions.@ However, on August 27, 1999, the employee reported that his leg pain had returned, and Dr. Douglass recommended a neurosurgical consultation.
The employee was seen by Dr. James D. Callahan, a neurosurgeon, on September 8, 1999. Dr. Callahan concluded that surgery would be unlikely to help the employee=s situation and might make matters worse by disabling him from driving. He recommended that the employee try another epidural steroid injection and continue conservative treatment. In a letter dated November 11, 1999, Dr. Callahan concluded that the employee=s work injury had aggravated and accelerated the employee=s pre-existing disc disease. He assumed the aggravation to be temporary but noted that the employee had not yet reached maximum medical improvement. The employee returned to Dr. Urban for a second steroid injection on April 11, 2000.
The employee was seen by Dr. Park on April 24, 2000, for monitoring of his chronic anxiety disorder. Dr. Park noted that the employee had been treating successfully with Prozac and gave the employee a prescription for a refill of this medication.
The employee was also seen by Dr. Stephen Barron on behalf of the employer and insurer on April 24, 2000. Dr. Barron provided the opinion that the employee=s work injury had been a temporary aggravation of pre-existing degenerative disc disease, consisting of a lumbar strain, which had since resolved. He attributed no permanent partial disability to the work injury.
The employee=s low back pain again increased, and on August 24, 2000, he returned to Dr. Douglass noting that back pain now predominated over his leg pain. He was also having significant problems with sitting, standing, or walking beyond 15 to 20 minutes. The doctor referred him for an MRI scan and a second surgical opinion with Dr. Timothy Garvey at the Twin Cities Spine Center.
The MRI scan, performed on August 29, 2000, was compared with previous studies. It showed a slight increase in size of the disc protrusion at L5-S1 with mild S1 nerve root elevation. There was severe central canal and lateral recess stenosis at L4-5 associated with a congenitally small canal, hypertrophic facet joint spurring, ligamentum flavum hypertrophy and an increase in the size of a midline herniation with possible compromise of both L5 nerve roots. Dr. Douglass thought that the herniated disc and stenosis at L4-5 and herniation at L3-4 were the cause of most of the employee=s back and leg pain. He did not restrict the employee in his current work, but noted that he needed to continue to avoid heavy lifting and to change positions frequently.
Dr. Garvey saw the employee on October 23, 2000. He concluded that lumbar decompression surgery might relieve the employee=s groin and leg pain, but that fusion surgery to attempt to address the employee=s dominant mechanical low back pain would not be advisable in light of the multilevel degenerative changes. Dr. Garvey advised that the employee continue non-operative strategies because of the multilevel degenerative condition.
On May 11, 2001, Dr. Douglass wrote a letter in which he diagnosed the employee with multilevel lumbar spondylosis with narrowing around the nerve roots. He noted that the narrowing around the nerves was caused by a combination of factors, including degenerative arthritic changes between the joints, multilevel lumbar disc protrusion, and developmentally short pedicles on the lumbar vertebrae, which combined to cause central spinal canal stenosis. He again expressed the view that the employee=s lumbar spondylosis and lumbar disc disease had been substantially aggravated as a result of the employee=s 1999 work injury. He noted that although the employee might become a surgical candidate at some time in the future, Dr. Garvey had not recommended surgical intervention based on the employee=s current mix of symptoms. He accordingly rated the employee with a 10 percent low back permanent partial disability pursuant to Minn. R. 5223.0390, subp. 4.C.(2).
When next seen by Dr. Douglass on July 11, 2001, the employee=s symptoms were primarily back pain with occasional hip and leg pain. Examination showed a very limited range of motion in the lumbar spine. There was diffuse spasm across the lower back and nodular spasm through the lower lumbar area. As the employee=s back pain was getting worse and no longer responding to Darvocet very well, Dr. Douglass suggested that the employee consider resuming Oxycontin, which Dr. Urban had given him at one time and which had seemed to help. The employee was concerned that he then would not be able to continue in his current job, because use of Oxycontin would disqualify him from commercial driving. Dr. Douglass, however, wrote in the employee=s chart that the employee would probably not be able to work in his driving job much longer either way.
The employee filed a claim petition on July 12, 2001. The employer and insurer answered, admitting the work injury but asserting that its effects had been temporary and that the injury had fully resolved.
The employee returned to Dr. Urban on July 26, 2001, and was given a prescription for Oxycontin. On July 30, 2001, the employee was discharged from his job at Viking as a result of his disqualification from commercial driving.
The employee was seen by Dr. Stephen Barron for a second medical examination on behalf of the employer and insurer on September 29, 2001. Dr. Barron again found no objective signs on examination and concluded that the work injury had been a temporary aggravation and that the substantial contributing cause of the employee=s current low back condition was his pre-existing degenerative disc disease. He did not think the employee required any work restrictions nor did he find any medical basis for the employee to be taking Oxycontin.
On October 24, 2001, Dr. Douglass again saw the employee and limited him to sedentary to light work, with lifting, carrying, pushing and pulling limited to 20 pounds, and no climbing of ladders, repeated bending or twisting.
After losing his job at Viking the employee initiated rehabilitation services through the vocational rehabilitation unit at the Minnesota Department of Labor and Industry. Rehabilitation records indicate that by late February 2002 the employee had submitted over 100 employment applications but had received no responses. On February 20, 2002, the employee was seen by Dr. Park for a refill of Prozac for depression and his chronic anxiety disorder. He had been having intermittent episodes of panic attacks but did not appear depressed to Dr. Park.
In a letter dated May 3, 2002, Dr. Garvey expressed the view that the employee=s lifting injury was entirely consistent with a disc herniation at L5-S1 with increased low back pain and left lower extremity symptomology, with persistence of symptoms after that injury.
Some time in July 2002 the employee tried working for a friend, Greg Flaim, driving a truck carrying containers of mail between Virginia, Minnesota, and Ely, Minnesota. The job took about two and half hours a day and involved no lifting. However, after less than two weeks, the employee found he was not physically able to continue doing this work.
The employee, who was not receiving workers= compensation benefits, had also applied for Social Security disability benefits. On October 25, 2002, he was determined to have been disabled under the Social Security Act since July 15, 2002, with a residual functional capacity for less than eight hours work per day, and less than five days per week in unskilled sedentary tasks with restrictions. He was deemed unable to perform any work existing in significant numbers in the national economy. As a result of the Social Security determination, the employee began receiving benefits both for himself and for two dependent children.
In November 2002, the employee returned to Dr. Garvey for reconsideration of surgery. Dr. Garvey noted that the employee=s radicular complaints were now as significant as his back pain, and recommended that the employee consider a decompression and fusion from L3 to the sacrum, which might reduce pain and allow some light duty activity. However, he noted that, regardless of whether the employee had surgery, he would be unable to perform greater than sedentary to light-duty activity on a long term basis.
On April 30, 2003, the employee=s QRC closed her file because of her conclusion that the employee would not be helped by further vocational rehabilitation services. In her notes from that date and in her subsequent closing report, she noted that his job search had not yielded any competitive employment despite placement assistance, and that the labor market had in fact deteriorated. She felt that his restrictions not only cancelled out his transferable skills but also essentially precluded retraining, as the employee=s sitting limitations would prevent him from engaging in classroom or study activities on a sustained basis.
On May 7, 2003, the employee returned to the Range Mental Health Center for diagnostic assessment of his depression. He reported that since treating there previously in 1995 he had been seeing Dr. Park for management of his Prozac, which had relieved his depression, but that after his 1999 work injury he had become more depressed and started having more panic attacks. The Prozac was no longer controlling his depression. An MMPI and a consultation with a psychiatrist, Dr. Timothy Magee, were scheduled.
The employee was seen by a QRC, Carol Anderson, on May 12, 2003, for a vocational evaluation on behalf of the employer and insurer. Ms. Anderson reviewed the employee=s job search and noted that while the employee claimed to have made about 600 job contacts, the job logs which had been submitted only documented 215 contacts. In her view, the employee should have made a total of 690 contacts and checked job postings weekly at a work force center, and thus had not made a diligent job search. She concluded that the employee had the capacity to earn from $5.25 to $10.00 per hour, though she noted that his prospects were limited by job availability as jobs meeting his restrictions were not abundant in his depressed local labor market.
In July 2003 the employee was evaluated by Dr. Magee, the psychiatrist at the Range Mental Health Center. His MMPI had shown significant depression and Dr. Magee diagnosed a generalized anxiety disorder and major depressive disorder. He opined that the employee had chronic recurring depression which was severely aggravated by his work injury, and that the employee would likely continue to have recurrences of his depression which would, during their occurrence, preclude competitive employment. He considered that the extent of the employee=s psychological disability was equivalent, for rating purposes, to that rated under Minn. R. 5223.0360, subp. 7.D.(2), which provides a 20 percent permanency rating for an organic brain dysfunction resulting in a mild emotional disturbance which is present at all times but with which the employee can live independently and relate to others.
The employee was seen a third time for evaluation by Dr. Barron on February 27, 2004. Dr. Barron again offered the opinion that the employee=s work injury had resolved and that his physical symptoms were related entirely to underlying degenerative disc disease. He recommended work restrictions consisting of avoiding lifting over 40 pounds or repetitive bending from the waist, although he attributed the restrictions solely to pre-existing degenerative disc disease.
The employee was seen by Dr. Thomas L. Gratzer for a psychiatric evaluation on behalf of the employer and insurer on March 4, 2004. Dr. Gratzer believed that the employee=s pre-existing depressive and anxiety symptoms had not been worsened by his work injury and had remained stable after the injury until April 2003. He did not believe the employee had any permanent partial disability from a psychiatric perspective.
On March 29, 2004, and June 23, 2004, a hearing was held on the employee=s claim petition before a compensation judge of the Office of Administrative Hearings. Following the hearing, the compensation judge found, in relevant part: 1) that the employee=s work injury had resulted in a permanent, rather than temporary, aggravation of his pre-existing low back condition; 2) that the employee had sustained a consequential mental injury; 3) that the employee was permanently and totally disabled; 4) that the employee=s low back condition warranted a permanency rating of 10 percent; and 5) that the employee=s mental injury warranted a Weber rating of 20 percent. The employer and insurer appeal from these findings. The compensation judge also ordered that the permanent total disability compensation be subjected to an offset for Social Security benefits paid to the employee and to his dependents. The employee cross-appeals from this order.
1. Motion to Dismiss Appeal
The employee has moved to dismiss the appeal of the employer and insurer on the grounds that there was a failure by the employer and insurer to comply with Minn. Stat. ' 176.421, subd. 4, in that adverse parties were not served with a copy of the notice of appeal and a copy of the notice of the appeal was not filed with the commissioner of the Department of Labor and Industry. It is the employee=s contention that, since the statute confers jurisdiction on this court, the employer and insurer=s failure to comply with the statute deprives this court of jurisdiction and the appeal should be dismissed. Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 39 W.C.D. 430 (Minn. 1987).
The Aadverse parties@ identified by the employee are Virginia Regional Medical Center (Virginia) and Chisholm Medical Center (Chisholm), health care providers of the employee. Both providers filed motions to intervene on March 29, 2004, the first day of hearing. The compensation judge found that neither motion had been served on the attorney for the employer and insurer. An order was issued denying the motions to intervene subject to resubmission of the motions with proper service. It does not appear that Virginia ever resubmitted its motion. On April 12, 2004, the Office of Administrative Hearings issued a Notice of Intervention Status letter to Chisholm, identifying Chisholm as an intervenor, but this was based on the motion which the compensation judge had already found legally insufficient. On April 16, 2004, Chisholm filed a revised motion and served the appropriate parties.
This matter had been assigned to Compensation Judge Eckersen pursuant to Minn. Stat. ' 176.307, by order of February 3, 2004. The order directed that all Ainquiries, petitions, or motions@ were to be directed to that judge. There is no indication that the corrected motion of Chisholm which was filed on April 16 was ever directed to the judge and no order was ever issued granting intervention status to Chisholm. While Minn. Stat. ' 176.361, subd. 3, allows an intervention status to be assumed if no objection is filed, we do not believe that this section applies when the claimed intervention had already been denied by a compensation judge. The employee notes that both Virginia and Chisholm appear as intervenors in the caption of the Findings and Order but we conclude that, in the absence of an order granting intervention to these parties, that this was a clerical error. Given these circumstances, neither Virginia nor Chisholm were parties to this case and the failure of the employer and insurer to serve them with a copy of the notice of appeal does not deprive this court of jurisdiction.
The employer and insurer do not dispute that a copy of the notice of appeal was not filed with the commissioner. The affect of the failure to file has previously been addressed. In Olson v. Midwest Printing Co., 347 N.W.2d 43, 36 W.C.D. 623, 630 (Minn. 1984), the court stated AMidwest Printing and American Mutual cannot show prejudice or delay in the appeal=s process due to Olson=s failure to file a copy of the notice of appeal with the commissioner. The requirement that a copy of the notice of appeal be filed with the commissioner simply assists the commissioner in carrying out purely administrative functions.@ We decline to dismiss the appeal of the employer and insurer on the basis of their failure to file a copy of the notice of appeal with the commissioner.
2. Temporary or Permanent Injury
The compensation judge found that the employee sustained a permanent aggravation of his pre‑existing low back condition as a result of the January 11, 1999, work injury. The employer and insurer allege that the employee sustained only a temporary aggravation and that his ongoing disability is solely due to his pre‑existing degenerative disc disease, consistent with the opinion of their medical examiner, Dr. Barron. Dr. Barron opined that the employee had sustained only a temporary low back strain that had resolved by April 24, 2000. The compensation judge expressly rejected this opinion, relying instead on the opinion of Dr. Garvey.
Several factors may be considered when determining whether an aggravation of a pre-existing condition is temporary or permanent, including: (1) the nature and severity of the pre-existing condition and the extent of restrictions and disability resulting therefrom; (2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; (3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; (4) the nature of the symptoms and extent of medical treatment following the aggravating incident; (5) the nature and extent of the employee's work duties and non-work activities during the relevant period; and (6) medical opinions on the issue. "Which of these factors are significant in a particular case and the weight to be given to any factor is generally a question of fact for the compensation judge." Wold v. Olinger Trucking, Inc., slip op. (W.C.C.A. August 29, 1994); Cull v. Wal-Mart Stores, Inc., slip op. (W.C.C.A. April 1, 2004).
Although all the medical experts agree that the employee has significant degenerative disc disease, he had no ongoing restrictions due to that condition before the January 1999 injury. While he treated a few times for back problems, he lost little time from work and was able to return each time to his regular job without limitations. Following the 1999 work injury, the employee=s symptoms eventually worsened to the point where he was under significant work restrictions. He also developed severe radicular symptoms which were not present prior to the 1999 injury. The employee=s treating physicians attributed his worsened condition to the 1999 work injury, as a permanent aggravation to his pre-existing condition. We conclude that there is substantial evidence to support the compensation judge=s conclusion that the work injury constituted a permanent aggravation of his back condition.
Ultimately, this was an issue determined on the basis of the compensation judge=s choice of expert medical opinion. This court has repeatedly noted that a compensation judge=s choice between conflicting expert opinions is generally upheld unless the factual basis for the expert=s opinion is not supported by the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer and insurer have not alleged any foundational defect in the expert opinions on which the compensation judge relied. We find no grounds to overturn the judge=s reliance on the opinions of the employee=s treating doctors on this issue.
3. Psychological Injury
The employee=s psychiatrist, Dr. Timothy Magee, offered the opinion that the employee=s work injury had resulted in an aggravation of the employee=s pre-existing chronic recurring depression. A contrary view was offered by Dr. Thomas L. Gratzer, the employer and insurer=s expert psychiatric examiner, who opined that the employee=s pre-existing depressive and anxiety symptoms had not been worsened by his work injury. The two opinions were predicated on different factual assumptions as to whether the employee=s psychological symptoms had remained essentially stable before and after the work injury, or whether they had eventually worsened.
The employer and insurer point to various factors which they contend should have convinced the compensation judge that the employee=s condition had not been worsened by the work injury. Among these, they point out that the employee was still using Prozac just prior to the work injury, and was, as of the date of the hearing, using less Prozac than he had been before the work injury. They further point out that the employee did require aggressive intervention for depression directly after the work injury, and argue that the timing and circumstances of the employee=s return to the Range Mental Health Center suggest that it was undertaken merely for litigation purposes. They also contend that the initial post-injury medical records and parts of the employee=s deposition testimony are inconsistent with his testimony that his psychological condition was continuing to worsen after the work injury.
The compensation judge explicitly accepted as credible the testimony of the employee and of his family members, acquaintances and co-workers, that there was a gradual but profound downward change in his mental health following the work injury, giving greater weight to this testimony than to the alleged discrepancies to which the employer and insurer have alluded. The employer and insurer contend that the compensation judge should have discounted this testimony as self-serving. Witness credibility is a matter principally committed to the determination of the compensation judge, who is uniquely able to observe the witness= demeanor during live testimony, and this court will not reverse a compensation judge=s determination regarding witness credibility unless the record discloses that the determination was clearly erroneous. See, e.g., Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). We note, also, that there are a number of scattered references in the medical records which corroborate this testimony and suggest that the employee was, in fact, experiencing episodes of significant depression between the date of injury and the date when he returned to the Range Mental Health Center in 2003.
The issue here was largely one of the compensation judge=s choice between opposing expert opinions. The opinion of Dr. Gratzer was based on a view of the facts contrary to the judge=s factual findings that the employee=s pre-existing depression and anxiety conditions were stable prior to the work injury but worsened thereafter. Accordingly we cannot conclude that the compensation judge clearly erred in rejecting that opinion.
4. Permanent Partial Disability - Low Back
The compensation judge found that the employee had sustained a ten percent permanent partial disability for a radicular syndrome of the lumbar spine at multiple levels, pursuant to Minn. R. 5223.0390, subp. 4.C.(2), and consistent with the rating offered by Dr. Douglass.
The employer and insurer first renew their argument that the employee=s injury was temporary, and did not result in permanent partial disability. We have already rejected this argument in the context of the issue of a temporary versus permanent low back injury.
The appellants also argue that a rating based on radicular symptoms is not appropriate in this case because no radicular symptoms were reflected in the employee=s medical records until May 1999, some four months after the work injury. They contend that the compensation judge Afailed to note the gap@ and therefore erred in accepting the ten percent rating. We are not persuaded that a delay in the emergence of specific symptoms requires that the finder of fact reject a causal link between those symptoms and the injury as a matter of law. In the present case, there was medical opinion attributing the emergence of the employee=s radicular symptoms to the progression of nerve impingement from a free fragment or from one or more disc protrusions, which the employee=s doctors associated with his work injury. There was no evidence of any intervening injury, and the compensation judge was free to conclude that the development of the radicular symptoms remained causally attributable to the work injury.
The ten percent permanency rating for the employee=s low back condition is affirmed.
5. Permanent Partial Disability - Psychological Condition
In July 2003, the employee=s psychiatrist, Dr. Magee, opined that the employee=s psychological condition, while not specifically rated in the workers= compensation disability schedules, was equivalent, for rating purposes, to that rated under Minn. R. 5223.0360, subp. 7.D.(2). That part provides a 20 percent permanency rating where organic brain dysfunction results in a mild emotional disturbance which is present at all times but with which the employee can live independently and relate to others. The compensation judge accepted Dr. Magee=s opinion that this was the most similar rating provided in the disability schedules and rated the employee=s psychological condition with a 20 percent rating pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
The employer and insurer cite precedent indicating that a Weber rating is inappropriate where the employee=s condition is addressed by the disability schedules but the employee fails to meet all of the elements for a rating under the applicable schedule. This principle, however, appears inapplicable to the present case, as the employer and insurer have not cited any part of the disability schedules which we conclude is directly applicable to the employee=s psychological condition. Minn. R. 5223.0360 is directly applicable only to conditions resulting from an organic brain dysfunction due to illness or injury and associated with anatomic loss or alteration. As there is no contention in this case that the employee=s psychological condition results from an organic brain dysfunction of this type, this schedule does not apply to the employee=s condition. See, e.g., Makowsky v. St. Mary's Medical Center, 62 W.C.D. 409 (W.C.C.A. 2002.).
The employer and insurer next contend that, if the award of permanent partial disability for the employee=s psychological condition is affirmed, they are entitled to apportionment for the employee=s pre-existing psychological condition or disability pursuant to Minn. Stat. ' 176.101, subd. 4a, which provides, in pertinent part, that
[i]f a personal injury results in a disability which is attributable in part to a preexisting disability that arises from a congenital condition or is the result of a traumatic injury or incident, whether or not compensable under this chapter, the compensation payable for the permanent partial disability pursuant to this section shall be reduced by the proportion of the disability which is attributable only to the preexisting disability. An apportionment of a permanent partial disability under this subdivision shall be made only if the preexisting disability is clearly evidenced in a medical report or record made prior to the current personal injury.
We do not believe a remand for determination of potential apportionment is warranted. First, the pleadings, hearing transcript, and other documents in the case, as well as the compensation judge=s statement of issues, fail to indicate that the employer and insurer ever raised the issue of an apportionment pursuant to Minn. Stat. ' 176.101, subd. 4a before the compensation judge. Issues not raised below may not, as a general rule, be raised for the first time on appeal. Second, there is no evidence that any pre-existing disability arises either from a congenital condition or traumatic injury. Finally, the employer and insurer have provided no medical opinion or other evidence to show that a medical report or record made prior to the current personal injury clearly evidences a ratable disability.
6. Permanent Total Disability
An employee is 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, 153 N.W.2d 130, 24 W.C.D. 290 (1967). Generally, an injured employee proves total disability by showing that work the employee is capable of doing is unavailable, which, in turn, is shown by a diligent job search to no avail. Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. l988).
The compensation judge determined that the employee was permanently and totally disabled from the combination of his work and non-work-related medical and psychological conditions. Evidence supporting the finding included the employee=s testimony, the vocational opinion of the employee=s QRC, and the medical opinion of the treating physicians, as well as the employee=s failure to find appropriate post-injury employment despite an extensive and prolonged job search with rehabilitation assistance. The employer and insurer nonetheless argue that the compensation judge=s determination was unsupported by substantial evidence.
The employer and insurer first note that the employee was not medically totally disabled but was able at a minimum to work under light-duty or sedentary restrictions. They further point out that the employee did not follow up on two job leads, one at Sears and one for a local bar; that he did not ask his wife to get him a job with her employer, a local casino; and that he did not try to obtain modifications to jobs he tried briefly for his brother and a friend after he found himself physically unable to perform them. They also rely on the opinion of their vocational expert, who testified that he should have made more job contacts, particularly on an in-person basis. The employer argues that, as a result, the employee=s job search was insufficient to support the finding of total disability.
We conclude that the job search in this case was sufficient to support the compensation judge=s findings. The employee explained why the Sears job, delivering refrigerators, and the bartending job did not appear to meet his restrictions. He testified that he did not consider asking for modifications to the light jobs he did try as there was no apparent way to modify them to make them any easier for him. He also testified that he was familiar with the jobs performed at his wife=s place of employment and did not believe he would have been able to perform any of them on a sustained basis. His QRC testified that he had cooperated fully with rehabilitation and that his job search had been reasonably diligent in his geographically limited job market.
In addition, we note that, where other evidence relevant to the Schulte factors indicates that an employee is incapable of anything but sporadic work with insubstantial income, a job search is not necessary, as a matter of law, to establish permanent total disability status. Redgate; Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn. 1992); Wensman v. Order of St. Benedict/St. John=s Univ., 64 W.C.D. 490 (W.C.C.A. 2004).
Finally, the employer and insurer argue that, if the Weber rating for the employee=s psychological condition is overturned by this court, he will be disqualified from eligibility for permanent total disability by failure to meet the 17 percent permanent partial disability threshold set forth in Minn. Stat. ' 176.101, subd. 5 (2)(a). As we have affirmed both the 10 percent permanency rating for the employee=s low back condition and the 20 percent permanency rating for his psychological condition, the 17 percent threshold has been met.
7. Social Security Offset
The employee cross-appealed from the compensation judge=s order including certain "child insurance benefits," i.e., Social Security dependent benefits awarded by virtue of the employee=s Social Security disability status, to be included in the calculation of the Social Security offset taken from permanent total disability compensation. As the employee acknowledges, the judge=s order followed precedent provided by this court=s decision in Sundby v. City of St. Peter, slip op. (W.C.C.A., May 10, 2004). In that case, we held that the unambiguous language of Minn. Stat. ' 176.101, subd. 4, required inclusion of such child insurance benefits in calculating the Social Security offset. Sundby is currently on appeal to the Minnesota Supreme Court, and it is the employee=s position that the decision will be overturned there. The employee makes no argument to this court distinguishing or seeking our reconsideration of Sundby. As our holding there is directly on point, the compensation judge=s order is affirmed.
 Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).