RASHELL C. ELLSWORTH, Employee, v. DAYS INN/BRUTGERS EQUITIES and CAMBRIDGE INTEGRATED SERVS., Employer-Insurer/Appellants, and MEDICA by HEALTHCARE RECOVERIES, LAKEWALK SURGERY CTR., FALLS MEMORIAL HOSP., and MEDICARE by NORIDIAN ADMIN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 8, 2007
CAUSATION - REFLEX SYMPATHETIC DYSTROPHY; RULES CONSTRUED - MINN. R. 5223.0430, SUBP. 6. Where it was amply supported by expert medical opinion, the compensation judge=s conclusion that the employee=s diagnosis of reflex sympathetic dystrophy was valid and that the condition was causally related to the work injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding marked inconsistency in the employee=s symptoms and weakness in her credibility due in large part to her somatization disorder and other psychiatric disorders, and notwithstanding the fact that the employee=s symptomology did not fully meet the requirements for an award of permanent partial disability benefits under Minnesota Rules 5223.0430, subpart 6.
PERMANENT PARTIAL DISABILITY - REFLEX SYMPATHETIC DYSTROPHY; RULES CONSTRUED - MINN. R. 5223.0430, SUBP. 6. Where it was based on an established medical diagnosis and otherwise supported by expert medical opinion, the compensation judge=s award of permanent partial disability benefits related to the employee=s reflex sympathetic dystrophy was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee did not manifest a full five of the diagnostic Aconditions@ listed in Minnesota Rules 5223.0430, subpart 6, notwithstanding the fact that the qualifying conditions that the employee did manifest were not shown to appear concurrently in the same moment of time, and notwithstanding the fact that the employee=s diagnosis of RSD was not uncontested.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee was affirmatively found to be subject to work-related reflex sympathetic dystrophy, where there was substantial evidence that that syndrome severely disabled the employee, and where the compensation judge=s findings and memorandum clearly indicated that the judge contemplated the ASchulte factors@ as codified in Minnesota Statutes section 176.10 1, subdivision 5, in making his decision, the compensation judge=s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Lyndon F. Larsen, International Falls, MN, for the Respondent. James S. Pikala and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak, Minneapolis, MN, for theAppellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's finding that the employee suffers from work-injury-related reflex sympathetic dystrophy/complex regional pain syndrome [RSD] and from the judge=s consequent awards of permanent total disability, permanent partial disability, and other benefits. We affirm.
Rashell Ellsworth was in Aspecialized classes@ in high school, and prior to completion of eleventh grade she dropped out of school and has not obtained a GED. In addition to an evident history of learning disabilities, Ms. Ellsworth has demonstrated a life-long pattern of poor coping skills, evidently in part the result of an unstable and dysfunctional childhood. Apparently due to a life-long difficulty with reading, she was unable to pass the written parts of a driver=s test until her third attempt, but with the aid of a friend she pursued and obtained certification as a Certified Nursing Assistant. She was able to work in that capacity only about six months, however, in that it required substantial lifting, bending, twisting, pushing, pulling, stooping, and contorting, which eventually resulted in a back injury. Ms. Ellsworth also held employment as a housekeeper in a motel complex for about three years and, for about three months, as a full-time caregiver for a live-in friend with a serious medical condition.
In May of 2002, Ms. Ellsworth [the employee] commenced work as a housekeeper with Days Inn/Brutgers Equities [the employer]. On June 11, 2003, while so employed, she sustained a work-related injury to her right lower extremity when she slipped and fell over a rolled carpet, twisting her ankle and bruising her right hip. She was thirty-seven years old on that date and was earning a weekly wage of $184.12. The employer and its insurer accepted liability for the injury and commenced payment of benefits.
The employee=s medical history subsequent to her work injury has been detailed and complex, having included treatment or examination by over two dozen different medical experts and other providers, only some of which here need to be referenced. On the date of her injury, the employee was examined by family practitioner Dr. Samantha Crossley at the Duluth Clinic in International Falls, who noted pain and swelling in the right foot and ankle and ordered x-rays, which were read to reveal no fracture. About two weeks later, on June 26, 2003, with her pain continuing, the employee was examined on referral from Dr. Crossley by orthopedic surgeon Dr. Peter Goldschmidt at Orthopaedic Associates of Duluth. Noting symptoms of continued swelling about the foot with tenderness and some mild mottling of the skin about the forefoot and ankle, Dr. Goldschmidt diagnosed an A[a]nkle sprain secondary to inversion injury with increased pain, possible early reflex sympathetic dystrophy.@ Dr. Goldschmidt prescribed an Aircast boot and restricted the employee from working for two weeks, reiterating that he was Aconcerned that her pain may represent very early reflex sympathetic dystrophy.@ On July 17, 2003, noting that the employee=s ankle pain was still not improving and that findings on examination, including continued evidence of mottling, remained unchanged, Dr. Goldschmidt affirmatively diagnosed A[r]ight ankle reflex sympathetic dystrophy after twisting injury.@ On that diagnosis he ordered a lumbosacral sympathetic block and restricted the employee from working for another four weeks, anticipating that she Amay need a number of blocks.@
On July 23, 2003, the employee was examined on referral from Dr. Goldschmidt by anesthesiologist Dr. Hal Heyer at the Pain Center at Lakewalk, for what the doctor noted to be Aclinically proven RSD@ after a sprained ankle at work Asome time ago.@ Dr. Heyer found the employee=s right foot to be slightly discolored, her range of motion to be severely limited, and her right leg to be Acool to the touch compared to her other leg.@ He concluded that the employee=s Asymptoms seem to have the general appearance of an RSD,@ and he proceeded with a lumbar sympathetic block Ato confirm that.@ On July 28, 2003, Dr. Heyer noted the effects of the block to have lasted about sixteen hours, and his examination showed the employee=s injured foot to be still Amarkedly discolored, swollen, mottled and bruised.@ The doctor discussed with the employee the risks and indications of another lumbar sympathetic block, and the employee elected to proceed with the block immediately. In follow-up on August 27, 2003, Dr. Heyer noted that the employee continued to benefit from past sympathetic blocks, showing less swelling and less discoloration, and, noting also that Dr. Goldschmidt had encouraged the employee to have more of them, he proceeded with another block. In follow-up with Dr. Goldschmidt on September 4, 2004, the employee no longer exhibited any significant swelling, but there was appearing some Aearly wrinkling,@ and motion in the injured ankle was still painful.
On September 9, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. William Akins. Upon physical examination, and with the employee=s legs hanging down from the side of the examination table, Dr. Akins found Aan obvious reddish discoloration to the right leg below the level of the knee,@ in contrast to the left leg, with the right foot an even Adeeper shade of red than the ankle and distal leg region,@ although there was no discoloration remaining in even the right leg when it was held at a level elevation. Dr. Akins also found in the right leg slight swelling in the subcutaneous tissue about the ankle, increased skin temperature in the ankle and foot, and extreme hypersensitivity to any touch of the skin. Upon review also of the employee=s medical records, Dr. Akins stated in part as follows in response to specific queries of the employer and insurer, offering his conclusions Awithin a reasonable degree of medical certainty based on my training and experience as a Board Certified Orthopedic Surgeon@:
The diagnosis of [RSD] can be made with an appropriate history of injury and consistent physical findings of skin discoloration, hypersensitivity, skin temperature change, altered moisture content of the skin and muscular dysfunction. However, most textbooks state that the primary method of establishing a diagnosis of [RSD] is relief of the pain (even on a temporary basis) by the use of a sympathetic block. [The employee] does have a history of relief of pain when a sympathetic block was administered in the lumbar region (no records have been provided to confirm this detail, however).
It is my opinion that the majority of medi[c]al evidence available at this time indicates that [the employee] has developed [RSD] as a result of an injury of 11 June 2003.
Dr. Akins concluded further in part that the employee remained temporarily totally disabled as a result of her condition, that she had not yet reached maximum medical improvement [MMI] with regard to that condition, and that her medical treatment to this point had been reasonable and necessary. He concluded finally that, while he could not substantiate the employee=s subjective complaints of pain and hypersensitivity relative to his own objective findings, objective findings did Ainclude shrinkage of musculature of both the thigh and calf, obvious discoloration of the skin, obvious temperature change in skin layers and the edema that is observed,@ and he saw A[n]o real discrepancies@ between the employee=s complaints and his own observations.
Upon follow-up with Dr. Heyer on September 10, 2003, the employee reportedly had continued to benefit from her lumbar nerve blocks and, although discoloration in her ankle was surprisingly increased, the swelling in her ankle was reduced, and Dr. Heyer performed another lumbar sympathetic block. On September 16, 2003, Dr. Heyer reported that the employee had Agood pain relief following each and every injection,@ that her right leg was on that date painful to the touch but not swollen or discolored, and he administered another lumbar sympathetic block. On December 15, 2003, the employee saw on referral neurosurgeon Dr. Scott Dulebohn at the Duluth Clinic. Dr. Dulebohn limited his examination Asecondary to pain,@ but, noting the employee=s extreme sensitivity and apparent increased pain with touch of her right leg, together with other reported impacts of her condition on her life and activities, he agreed with Dr. Goldschmidt=s and Dr. Heyer=s diagnoses of RSD.
On May 18 and 20, 2004, the employee was surgically fitted with a spinal cord stimulator by Dr. Dulebohn, in an effort to reduce her lower extremity pain, and the device was at least initially effective. Over the course of the next several months, however, the employee saw various doctors on various occasions for treatment related to recurrent RSD symptoms. Finally, on March 21, 2005, she filed a claim petition, alleging entitlement to permanent total disability benefits continuing from June 12, 2003, and to permanent partial disability benefits for a 37.5% whole-body impairment, pursuant to Minnesota Rules 5223.0430, subpart 6(c), consequent to her work injury on June 11, 2003. On May 3, 2005, the employer and insurer filed their answer to the employee=s petition, denying the claim.
On May 16, 2005, the employee was examined at the request of her attorney by Dr. Duane Person. Based upon a history taken of the employee, physical examination of the employee, x-rays, and a medical record review, Dr. Person concluded in part that the employee was subject to RSD of the right lower extremity consequent to her work injury of June 11, 2003. Dr. Person reported findings of hypersensitive skin apparently on the thighs and then decreased sensation in the entire right lower extremity but no difference in temperature from side to side and no evidence of osteoporosis in the right foot or ankle. He concluded further that the employee was totally restricted by her condition and was subject to a related 20% whole-body permanent partial disability pursuant to Minnesota Rules 5223.0420, subpart 6B, and 5223.0550, subpart 1C.
On June 9, 2005, the employee saw Dr. Heyer on referral from Dr. Dulebohn for an intrathecal narcotic trial. The trial was successful in relieving the employee=s pain, and Dr. Heyer anticipated placement of an intrathecal narcotic pump in the near future.
On June 25, 2005, the employee was examined for the employer and insurer by neurologist Dr. Donald Starzinski. In his report of July 7, 2005, Dr. Starzinski concluded that the employee was subject to Aa chronic multi-focal pain syndrome,@ with no convincing evidence of radiculopathy or peripheral neuropathy and Ano physical examination evidence of reflex sympathetic dystrophy that I can observe at this point@ - - specifically no Atemperature changes, vascular changes, trophic skin changes, or any bony abnormalities by various imaging studies.@ Dr. Starzinski noted that the employee exhibited indications of symptom magnification and/or had Avery significant functional overlay, including a strong suggestion of depressive symptomatology,@ which the doctor concluded Aperpetuates and exacerbates her pain syndrome.@ He noted further that the employee was currently taking Asignificant opiate analgesic medications, which may, because of inherent side effects and dependence potential, be counterproductive in the treatment of her pain syndrome.@ It was Dr. Starzinski=s opinion that the employee had reached maximum medical improvement [MMI] with regard to any possible injuries that she may have sustained at work on June 11, 2003, that any ongoing chronic pain syndrome was not work-related, and that the employee was not subject to any permanent partial disability as a consequence of any work injury. Dr. Starzinski strongly recommended that the employee begin a gradual withdrawal from her opiate analgesics, concluding that a morphine pump might actually perpetuate her chronic pain and strongly recommending instead a graded exercise program such as one in yoga or Tai Chi, to include significant flexibility work. He anticipated that the employee would eventually be able to return to normal physical activities, after a systematic program of exercise and related increased mobility.
On July 14, 2005, the employee was examined again by Dr. Heyer. Dr. Heyer reported that, while she always seemed to find temporary pain relief in them, the employee never actually improved as a result of her lumbar sympathetic blocks, and he elected to install an intrathecal narcotic pump as had been recommended by Dr. Dulebohn.
On July 16, 2005, the employee was examined for the employer and insurer also by psychiatrist Dr. Thomas Gratzer. In the social history section of his July 25, 2005, report, Dr. Gratzer reported that the employee=s home life as a child had been extremely unsettled and that the employee had reported being physically, emotionally, and sexually abused by one of several different stepfathers between the ages of eight and sixteen. After conducting a detailed review also of the employee=s medical history, certain psychological testing, and a mental status examination, Dr. Gratzer diagnosed the following: (1) a personality disorder stemming from a chaotic and abusive childhood, resulting in an acknowledged sensitivity to criticism and rejection, a sense of lack of support, and a tendency toward attention-seeking; (2) a depressive disorder, involving low stress tolerance and poor coping skills; (3) an anxiety disorder, resulting in excessive worry and impaired sleep and concentration; and (4) a somatization disorder, manifesting itself in a Ahistory of many physical complaints that cannot be fully explained by a known general medical condition beginning before age 30 years that occur over a period of several years and result in treatment being sought or significant impairment in social, occupational, or other important areas of functioning.@ Dr. Gratzer indicated that all four of these conditions were interrelated, and it was his opinion that they all preexisted and were unrelated to the employee=s June 11, 2003, work injury. It was his further opinion that the employee did not have any permanent partial disability relative to that injury and did not require any work restrictions. Dr. Gratzer indicated that, although the employee=s chronic depressive and anxiety symptoms might benefit from ongoing treatment with medications, proper Amanagement of somatization disorder focuses on early diagnosis, avoidance of unnecessary medical and surgical interventions, and encouraging the patient to focus on problems in living rather than on somatic complaints,@ Ashould focus on coping with symptoms rather than eliminating them.@ He indicated that Asomatization disorder is the most severe somatoform disorder and is relatively uncommon,@ that A[t]his condition is associated with severe personality disorder dynamics,@ and that, for individuals suffering from the condition, Asomatization is the principal mechanism for managing psychological distress.@ On August 23, 2005, Dr. Gratzer issued a supplementary report, after review of the reports by Dr. Starzinski and Dr. Person. In his report, Dr. Gratzer noted that Dr. Person=s diagnosis of RSD appeared to have been made on the basis of the employee=s subjective complaints, and he opined that, Agiven [the employee=s] long history of somatization and severe somatic overlay, a diagnosis based on [the employee=s] subjective complaints may not be accurate.@
On September 14, 2005, the employee returned to see Dr. Crossley, complaining of an RSD Aexacerbation.@ Dr. Crossley noted that the employee had been Adoing extremely well@ after placement of her morphine pump and had actually Astopped using her cane at all,@ Adoing a lot more@ and being Aa lot more active,@ until Ashe may just have overdone it some,@ resulting in increased swelling and some redness in the leg. Dr. Crossly diagnosed RSD exacerbation, prescribed medication, and encouraged the employee to stay off her leg until her appointment with Dr. Heyer the following day. Upon examination of the employee on September 15, 2005, Dr. Heyer found the employee=s foot Aswollen, discolored, and cold,@ and he increased her morphine dosage.
On October 19, 2005, the employer and insurer served and filed a notice of intention to discontinue [NOID] temporary total disability benefits retroactive to June 12, 2005, on grounds that the employee had reached that benefit=s statutory limit of one hundred four weeks as of that date.
On November 10, 2005, Dr. Heyer prescribed a scooter for the employee=s Aindependence and inability to ambulate distances@ consequent to her ARSDBlower extremity.@ About a month later, on December 7, 2005, he removed the spinal cord stimulator that had been installed by Dr. Dulebohn, noting that she was doing well with her intrathecal narcotic pump, although her right leg was still Amarkedly discolored, painful to light touch and swollen.@ About a month later, on January 11, 2006, having noted that the employee=s A[e]xam shows the [employee=s] right leg to continue to be swollen, discolored, cold with alteration with hot and shiny@ (sic), Dr. Heyer stated in a letter to the employee=s attorney,
I have no problem defining that Rashell Ellsworth has RSD. She has edema. She has had color change. She has had disorders with her sweating. Her skin has been hot and cold. Her range of motion has been reduced, and her skin is shiny. She also has all the psychological components associated with it. She has endured numerous surgical procedures in order of severity. She should have had social security disability insurance by now. I feel terrible what this lady has been put through. I am optimistic that if we can get her some help from the legal system, she can at least have a life.
On that same date, Dr. Heyer wrote a letter ATo Whom It May Concern,@ in which he wrote in part that the employee Ais not capable of employment@ and Ais not capable physically or intellectually to take a 6 hour test,@ referencing thereafter handwritten, A(Vocational Assessment).@
On January 19, 2006, Dr. Person issued a supplemental report, in which he acknowledged that the employee did not have five of the eight RSD indicators listed Minnesota Rules 5223.0430, subpart 6, at the time of either his own examination on May 16, 2005 or that of Dr. Starzinski on June 25, 2005. He went on to state, however, that
the criteria to make the diagnosis did exist prior to our examinations when considering the history, medical records, and extensive treatment that [the employee] received. Also, considering that the treatment for the most part wasn=t helpful, all of these factors strongly point to the diagnosis of reflex sympathetic dystrophy. From time to time the objective findings that are noted in the Work[er]=s Compensation Guidelines will be present concurrently, and at other times they will not be as the severity of RSD waxes and wanes. Once the diagnosis is made however, even if the condition is relatively quiescent, the approach to care and treatment must be with the knowledge that RSD is still present.
On February 14, 2006, Dr. Heyer increased the employee=s morphine dose. On February 27, 2006, in a letter to the employee=s attorney, Dr. Goldschmidt reiterated his diagnosis of RSD, noting that he had discussed the employee=s case with Dr. Heyer and that the latter had concurred that the employee=s diagnosis was RSD. He opined that, of the diagnostic criteria listed in Minnesota Rules 5223.0430, subpart 6B, the employee manifested edema, change in skin color, temperature change, and decreased passive range of motion. He opined that the employee could ambulate only with assistive devices or special shoes, that this would result in a permanent partial disability rating of 17% of the whole body, and that the condition at issue was related to the employee=s work injury of June 11, 2003.
The employee had been evaluated for the employer by QRC, CRC, and Rehabilitation Consultant Richard VanWagner on February 15 and 16, 2006. His evaluation involved five tests spanning several hours over the course of the two days: the adult level Gates-MacGinitie Reading Test, a Wide Range Achievement Test, a Pinch Strength Test, Automated Clerical Testing, and a Career Assessment Inventory. In his report on March 24, 2006, Mr. VanWagner acknowledged that the employee had very few transferable skills, but he opined that she had the capacity to acquire skills in her local community and labor market, that she would be, in fact, Aa good candidate for skills enhancement, on-the-job training, and at this point, limited direct job placement.@ He acknowledged, however, that there were a considerable number of barriers to her returning to work, specifically the fact that A[she] clearly believes herself to be totally disabled,@ a presumption that her husband clearly appeared to cultivate. Having read recent medical reports, it was Mr. VanWagner=s opinion that ADr. Heyer inappropriately states that [the employee] is not >intellectually= capable of being involved in an evaluation and, moreover, Dr. Heyer appears to advocate for [the employee=s] disablement.@ Mr. VanWagner recommended that the employee Aparticipate in one or more of the Continuing Education programs that are offered at Rainy River Community College in International Falls,@ citing in particular courses titled AIntroduction to Computers, Introduction to Word, Introduction to Excel, Intermediate Word, and Intermediate Excel.@
On April 12, 2006, Dr. Starzinski testified by deposition, essentially reiterating the opinions that he had voiced in his report of July 7, 2005. In his deposition, Dr. Starzinski reiterated his earlier finding that the employee=s range of motion and functional capacity in general appeared greater to him at her examination than she reported it to be, that her legs were symmetric both with regard to their color and with regard to their temperature, and that there was no evidence of vascular insufficiency or swelling in her extremities. Dr. Starzinski also reiterated his diagnosis of chronic pain syndrome, Acaused and perpetuated by psychological factors, and also wh[at] I would consider to be suboptimal treatment, particularly opioid treatment,@ not by the June 11, 2003, work injury. Dr. Starzinski distinguished perpetuation of a condition by suboptimal treatment from conscious malingering by explaining that the former can lead to Aa feeling of disability@ in quite Awell meaning people that are treating [their problems] in aggressive ways.@ On cross-examination, Dr. Starzinski agreed that RSD symptoms Acan to some degree@ wax and wane.
On April 14, 2006, Dr. Gratzer testified by deposition, essentially reiterating conclusions he had stated in his report of July 25, 2005, and also stating an opinion regarding the employee=s claim to permanent total disability status that, Aif you permanently disable her and continue to permanently disable her, you would reinforce the somatization disorder, and reinforce the social and vocational [dis]integration which would be absolutely the worst thing you could do with that type of psychiatric condition.@ He testified further that
the reason [the employee] would be so confusing to either medical providers or the legal profession, is that she genuinely believes these psychogenic pain complaints. . . . I don=t think she=s lying. But on the other hand I don=t believe [the pain complaints are] accurate because she is psychosomatisizing her emotional distress.
AI don=t believe for a moment that [the employee] is lying about her psychogenic pain,@ he later repeated.
On April 20, 2006, the employee underwent a vocation rehabilitation assessment by QRC, CRC, and Licensed Professional Counselor L. James Jackson at the request of her attorney. In his report on May 8, 2006, after a detailed review of the employee=s personal history, education, medical condition, employment history, rehabilitation assistance, and independent vocational evaluation by Mr. VanWagner, QRC Jackson concluded that the employee was
not competitively employable. She has a medical condition, which is deteriorating, and she is functioning within the mild level of mental retardation. She has, at best, worked a short time within the semiskilled level, and has no competitive transferable job skills commensurate with her level of physical functioning . . . . Simply stated, she has nothing to offer an employer that would entice an employer to hire her, rather than someone who has the physical capabilities to report to work on a regular basis and who would have relevant and pertinent training and skills to maintain competitive employment.
On May 4, 2006, Mr. VanWagner submitted a supplemental report, in which he responded to, among other things, a surveillance videotape taken of the employee coming and going to the two days of her independent vocational evaluation with Mr. VanWagner. In his report, Mr. Van Wagner noted remarkable differences between the employee as she appeared on the videotape - - walking apparently easily independent of her cane, including down from a curb, carrying objects in either hand without any apparent effort, and even assisting with the assembly of her wheelchair - - and the employee as she presented herself to him at her vocational evaluation - - extremely disabled, able to lift only with both hands and with substantial difficulty, and continuously dependent on her cane. Based importantly on that discrepancy, Mr. VanWagner altered his opinion as to the employee=s employability, concluding that she was immediately capable of sedentary employment as defined by the United States Department of Labor, and he identified several specific jobs in the International Falls area either currently open or periodically open for which the employee would qualify.
The matter came on for hearing in International Falls, Minnesota, on May 25, 2006, and at Duluth, Minnesota, on June 26, 2006. Issues at hearing included the following: (1) whether the employee suffers from RSD as a result of her June 11, 2003, work injury; (2) whether permanent partial disability for RSD can be found if there are not at least five of the eight indicative conditions listed in Minnesota Rules 5223.0430, subpart 6; (3) whether the employee has sustained any permanent partial disability based on RSD and, if so, to what extent; (4) whether the employee meets the minimum permanent partial disability threshold for an award of permanent total disability benefits; and (5) whether the employee had been permanently totally disabled since the date of her work injury, June 11, 2003. Evidence submitted at hearing included voluminous medical and other documentary evidence, including surveillance videotape of the employee and transcripts of the deposition testimony of Dr. Starzinski and Dr. Gratzer, together with the in-person testimony of eight additional witness - - the employee, her daughter and her husband, a manager and a co-worker of the employee at the employer, QRCs Jackson and VanWagner, and the private investigator responsible for the surveillance. The testimony of the manager, Jeanette Kucera, was that the employee herself completed her shift without reporting any injury on June 11, 2003, that she learned of the employee=s injury that day only second hand for her desk clerk, who had learned of it from someone else. The testimony of the co-worker, Vicky Donner, was that she, without being observed herself, had observed the employee and apparently the employee=s daughter recently at a local K-Mart, and the employee was without her scooter and walking quickly without even her cane.
By findings and order filed October 10, 2006, the compensation judge concluded in part (1) that the employee had suffered from RSD since the date of and consequent to her June 11, 2003, work injury, (2) that she was entitled to permanent partial disability benefits for a 17% whole-body impairment as a consequence of that RSD, (3) that she satisfied the permanent partial disability threshold for permanent total disability benefits related to her work injury, and (4) that she was entitled to permanent total disability benefits, minus temporary total disability benefits already paid, consequent to that injury. In his detailed, five-page memorandum, the judge volunteered that A[i]n the nearly 25 years of presiding over workers= compensation cases this present case has been among the most challenging to the Court.@ The judge acknowledged that the Amost troubling of all of the complex medical and factual issues presented in this case is the issue permeating this entire action - - [the employee=s] credibility@ but concluded nevertheless that the evidence - - especially medical opinion - - best supported a finding of intermittently disabling RSD and that Ajust because an individual suffers from a history of psychogenic pain, suffers from a somatization disorder does not mean that [that] person cannot also suffer from reflex sympathetic dystrophy.@ The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The Minnesota Rules provide that five of eight specified conditions should Apersist concurrently@ for a rating of permanent partial disability to be issued for RSD directly under the rules. Minn. R. 5223.0430, subp. 6. In Stone v. Harold Chevrolet, this court concluded that, while the conditions in this provision may be useful as Adiagnostic tools with which to establish a diagnosis of RSD,@ an employee=s failure to manifest a full five of the conditions does not preclude an award of benefits where the employee=s diagnosis is established and the employee is functionally impaired by the effects of the syndrome. See Stone v. Harold Chevrolet, 65 W.C.D. 102, 111-12 (W.C.C.A. 2004); see also Peterson v. Benedictine Health Ctr., 66 W.C.D. 319, 325 (W.C.C.A. 2006). The eight conditions so interpreted to be typical constituents of an RSD diagnosis are as follows: (1) Aedema@; (2) Alocal skin color change of red or purple@; (3) Aosteoporosis in underlying bony structures demonstrated by radiograph@; (4) Alocal dyshidrosis@; (5) Alocal abnormality of skin temperature regulation@; (6) Areduced passive range of motion in contiguous or contained joints@; (7) Alocal alteration of skin texture of smooth or shiny@; and (8) Atypical findings of reflex sympathetic dystrophy on bone scan.@ Minn. R. 5223.0430, subp. 6. The compensation judge concluded at Finding 21 as follows:
A careful review of the very extensive medical records introduced into evidence reveals that although not constantly present nor always present together as a constellation of conditions, since the traumatic injury of June 11, 2003 the employee=s right lower extremity, centering on the right foot and ankle, has exhibited on a frequent basis swelling, local skin color change, changes in skin temperature, shininess of skin, a reduction in the range of motion and an intense pain reaction to at times even slight touch to the right lower extremity.
(Emphasis in original.) On this finding, the judge then concluded at Finding 23 that the employee was subject to ongoing effects of RSD as a consequence of her work injury on June 11, 2003. The employer and insurer contend that the judge=s finding of RSD is unsupported by substantial evidence, arguing that
[a] thorough evaluation of all of the medical records, including an understanding of the employee=s pre-existing and underlying somatization disorder, shows that the diagnosis of RSD was initially premised upon subjective findings, and that this diagnosis has been perpetuated in the medical records despite the lack of objective clinical findings to support this diagnosis.
They argue further that no more than three of the conditions listed Minnesota Rules 5223.0430, subpart 6, have persisted Aconcurrently@ at any point in the employee=s medical history and that there is certainly Ano consistency in the >conditions= reported or noted.@ They argue further that the surveillance videotape of the employee in evidence, together with the testimony of co-worker Vicky Donner, establish that the employee=s reports of symptoms cannot be trusted and that more objective clinical findings are especially essential in a case such as this, Awhere the Employee=s credibility is seriously in question.@ Moreover, they argue, the holdings in Stone and its descendent Peterson v. Benedictine Health Center were premised on the RSD diagnosis being uncontested, see Stone, 65 W.C.D. at 111; Peterson, 66 W.C.D. at 324, whereas here the diagnosis itself is contested. We are not persuaded.
While it is true that it was earlier only a tentative one and one collateral with ankle sprain, Dr. Goldschmidt=s diagnosis of RSD on July 17, 2003, was affirmative and was based at least in part on objective personal observation of at least two RSD-relevant conditions - - edema and skin color change - - not on any previous diagnoses or mere reports of symptoms by the employee. Similarly, while his note indicated a presumption the employee was on referral for Aclinically proven RSD,@ Dr. Heyer, on July 23, 2003, also conducted his own physical examination of the employee, upon which he found color change, abnormal skin temperature, and severely limited range of motion and concluded independently that the employee=s Asymptoms seem to have the general appearance of an RSD.@ He thereupon commenced a series of lumbar sympathetic blocks to confirm that diagnosis, and the blocks repeatedly appeared to confirm it each time by their evident, if only temporary, relief of the employee=s pain. Moreover, while certain of the employee=s later treating providers may have to an extent based their own diagnoses on the diagnoses of earlier physicians, as any physician is entitled to do, the diagnosis of independent medical examiner Dr. Akins was again clearly founded in his own direct observation - - and expressly Awithin a reasonable degree of medical certainty@ - - of objective physical findings of color change, edema, temperature change, and hypersensitivity. Further, particularly important to Dr. Akins= diagnosis was the employee=s history of pain relief as a result of her series of lumbar sympathetic blocks. The diagnosis of Dr. Akins, particularly given his function as an adverse examiner, was clearly not a mere blind parroting of earlier diagnoses.
The employer and insurer argue with some emphasis that, however many may have been found individually by various doctors, an adequate number of RSD indicators was never found concurrently Aat any given time@ by a single doctor, which they suggest is required under the language of Minnesota Rules 5223.0430, subpart 6. Contrary to assertions of the employer and insurer, however, the medical experts were in general agreement that part of the nature of RSD is that its symptoms may wax and wane, and, also contrary to their suggestion, we find nothing in any of those experts= opinions, on either side of this issue, to suggest that all of the symptoms of RSD must come and go only collectively. Nor is it definitively established that the requirements for a permanent partial disability rating under Minnesota Rules 5223.0430, subpart 6, even apply to preclude any individual doctor=s diagnosis of RSD, although they may be a useful index by which a judge may elect to accept such a diagnosis, see Peterson, 66 W.C.D. at 325. It can be argued that the term Aconcurrently@ in the rule may be read to imply appearance in a general period of time rather than in a specific moment of time, and, until there is more definitive expert medical evidence on the subject, we cannot conclude that it was unreasonable for the compensation judge to rely on the several diagnoses of RSD of record, notwithstanding the fact that a full five of the indicators specified in the rule may not have been present at the same moment in time.
With regard to the employee=s credibility, we will defer, as we most often do, to the unique perspective of the compensation judge. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978). The judge was able personally to observe both the employee=s testimony and the testimony of Ms. Donner before coming to the conclusion that he did. Moreover, with regard to the surveillance videotape, the judge was satisfied to learn, in addition to the transitory aspect of RSD symptomology to begin with, that an increase in the employee=s morphine dosage preceded by only about an hour the employee=s apparent painlessness on the video. The judge=s resolution of the credibility issue raised by the surveillance video on this basis was not unreasonable, particularly in light of IME Dr. Gratzer=s emphatic conviction that, though her pain was in his opinion psychogenic, AI don=t believe for a moment that [the employee] is lying about her psychogenic pain.@ In the context of his decision, the judge expressly acknowledged the credibility issue as a Atroubling@ one, given the employee=s history and medical diagnosis of somatization, concluding his detailed five-page memorandum with the statement that Ajust because an individual suffers from a history of psychogenic pain, suffers from a somatization disorder does not mean that [that] person cannot also suffer from reflex sympathetic dystrophy.@ Nor, even granting the rule=s diagnostic usefulness, see Peterson, 66 W.C.D. at 325, can we find any basis for finding the provisions of Minnesota Rules 5223.0430, subpart 6 - - a permanency rule, after all - - any more restrictive of a compensation judge=s prerogative to rely on a medical expert=s contested diagnosis to find injury than it is restrictive of the judge=s prerogative to rely on an uncontested diagnosis to award permanency benefits.
The evidence submitted in this case was voluminous and amply substantial in support of both sides on this issue. The judge clearly examined all of that evidence reasonably and carefully and in detail, and our standard of review clearly requires us to affirm his reliance on expert medical evidence in finding the employee subject to RSD. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).
2. Permanent Partial Disability
As referenced earlier, Minnesota Rules 5223.0430, subpart 6, provides that, for an award of permanency benefits under that rule, RSD is
deemed to occur in a member if at least five of the following conditions persist concurrently in that member: edema, local skin color change of red or purple, osteoporosis in underlying bony structures, demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulation, reduced passive range of motion in contiguous or contained joints, local alteration of skin texture of smooth or shiny, or typical findings of reflex sympathetic dystrophy on bone scan.
Minn. R. 5223.0430, subp. 6. As also indicated earlier, this court has interpreted this provision not to preclude an award of benefits where the employee=s RSD diagnosis is established and results in functional disability even though the injured employee may not be manifesting a full five of the eight Aconditions@ identified in the rule. See again Stone, 65 W.C.D. at 111-12; Peterson, 66 W.C.D. at 325. We have further concluded that the word Aconcurrently@ in the statute, absent more definitive agreement among medical experts on the issue, need not necessarily be read to mean Aat the same moment.@ The compensation judge in this case concluded, at Finding 27, that the employee had sustained permanent partial disability to 17% of her body as a whole, in reliance on the opinion of Dr. Goldschmidt. The employer and insurer contend that Athe objective medical evidence, when combined with the credibility issues associated with the Employee=s claims of disability, do not support a finding of a permanent functional loss of use or impairment of function,@ under an RSD or any other diagnosis. Citing this court=s 2005 decision in Mundy v. American Red Cross, they argue that the holding in Stone should not to be read to imply that every diagnosis of RSD will result in an award of permanent partial disability benefits. See Mundy v. American Red Cross, No. WC05-186 (W.C.C.A. Dec. 13, 2005). They quote the Mundy court as stating that A[t]he central factor in Stone was the undisputed existence of objective findings of functional impairment,@ quoting Mundy, and they suggest that it remains essential to establish Asufficient evidence of functional impairment to support an award of permanent partial disability,@ id. They argue that Athe existence of objective findings of functional impairment [is] vehemently disputed@ in this case and that Athe Employee=s physical abilities far exceed her representations to the Court and her medical providers.@ We are not persuaded.
A finding of permanent partial disability is one of ultimate fact to be determined by a compensation judge. See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987); see also Hill v. MacKay Envelope, slip op. (W.C.C.A. July 10, 1998). We acknowledge that there is ample and arguably substantial evidence of record to support a conclusion that the employee is not permanently impaired functionally, particularly in light of the surveillance videotape and the testimony of Ms. Donner as to the employee=s sometime activities. Just as certainly, however, there is also ample and very substantial evidence of record to support the compensation judge=s conclusion that the employee is subject to at least repeated episodes of very chronic pain as a result of her RSD condition, which we have already affirmed as being a valid and medically supported diagnosis. Nor does it appear to us, in light of the severity of the employee=s complaints to several of her physicians and in turn those physicians= clear crediting of those complaints, that the judge merely presumed that every diagnosis of RSD should result in an award of permanency benefits. At least two medical experts, Dr. Goldschmidt and Dr. Person, have concluded that the employee is permanently partially disabled, and the one whose more conservative rating the judge accepted, Dr. Goldschmidt, has had close observation of the employee=s case from very early on. We conclude that it was not unreasonable for the compensation judge to rely on the rating of Dr. Goldschmidt, see Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73, and therefore we affirm the judge=s award of permanent partial disability benefits. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Permanent Total Disability
The compensation judge concluded at Finding 26 that the employee was permanently and totally disabled, explaining in his memorandum that the Apronounced, debilitating effects of the work injury effectively preclude the employee from being >reliable.=@ The employer and insurer contend that these conclusions by the judge are Aerroneously premised on the conclusion that the Employee is severely restricted as a result of RSD,@ which conclusion they argue again is unsupported by the evidence. Minnesota Statutes ' 176.101, subdivision 5, establishes criteria by which, in combination with the employee=s physical disability, a compensation judge may determine that an injured employee is permanently and totally disabled. A material portion of those criteria are a codification of factors previously well established in Schulte v. C. H. Peterson Construction Co. - - factors identified in the statute as Athe employee=s age, education, training and experience. Minn. Stat. ' 176.101, subd. 5(2); see also Schulte v. C. H. Peterson Constr. Co., 130 Minn. 79, 153 N.W.2d 278 (1967). The employer and insurer contend that the judge=s AFindings and Order do not contain any analysis of the factors listed in the statute or the Schulte case,@ the judge=s only reference to the Schulte factors being, they argue, Afor purposes of acknowledging the standard.@ The employer and insurer acknowledge that the judge does indicate that it is the employee=s medical inability to work Ain combination with her training, experience and the job market@ that renders her permanently and totally disabled, but they argue that Athe only element of PTD [actually] analyzed or discussed in the Compensation Judge=s Findings and Order and Memorandum is the medical element.@ The judge=s conclusion that the employee=s work injury renders her Aunreliable@ to sustain anything other than sporadic and insubstantial employment is based solely, they suggest, on the employee=s medical condition, which they argue again has been misassessed by the judge. We are not persuaded.
We have already sufficiently addressed the credibility of the employee=s RSD condition and the reasonableness of the judge=s reliance on medical opinion that it is both severely debilitating and permanent. Moreover, we find more than mere invocation - - and instead sufficient analysis and discussion - - of the Schulte factors in the judge=s decision, both in his findings and in his memorandum. Unappealed Finding 1 is devoted expressly to the employee=s educational weaknesses, documenting her relegation to Aspecialized@ courses in school, her dropping out prior to completion of the eleventh grade, and her failure to obtain even a GED. Unappealed Finding 2 documents the employee=s dependence on a friend=s help in getting through Certified Nursing Assistant training, A[b]ecause of a lifelong difficulty with reading.@ Unappealed Finding 3 documents the employee=s failure twice to pass the written portion of her driver=s exam and her eventual passing of the exam only after asking that the questions be read to her aloud. Unappealed Finding 4 documents, however briefly but discretely, the fact that Athe employee unfortunately experienced an unstable, dysfunctional childhood which, in the opinion of Dr. Thomas Gratzer led to a life long pattern of poor coping skills,@ the judge concluding in his memorandum that Ait is most clear that the employee is bringing a substantial amount of >baggage= to any attempt to return to gainful employment.@
It is clear to us that the compensation judge reviewed carefully such full pictures of the employee=s nonmedical experience as is contained in Dr. Gratzer=s detailed analysis, nor is the judge=s decision on this issue unsupported by expert vocational opinion, as is manifested in the report and testimony of Mr. Jackson. Because it was not unreasonable, we affirm the compensation judge=s conclusion that the employee is permanently totally disabled as a result of her work injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 On page 24 of their brief, the employer and insurer assert clearly, citing only pages 72-74 of Dr. Gratzer=s deposition, that Dr. Starzinski disagreed with Dr. Person=s opinion that the symptoms of RSD can wax and wane, and earlier on that same page of their brief they assert, without citation, that Dr. Starzinski also Aexplained why the presence at one time or another of one of the >conditions= associated with RSD cannot lead to a diagnosis of the condition of RSD.@ The transcript of Dr. Gratzer=s testimony does not extend to seventy-two pages; the former of these assertions is clearly contrary to the express testimony of Dr. Starzinski on pages 72 to 74 of his testimony, and we do not find the second of these assertions borne out anywhere in that testimony.
 Factors identified in the statute in addition to the Schulte factors involve minimum Athreshold@ ratings of permanent partial disability.