DARRYL R. KRUEGER, Employee, v. RITTER AGRI SALES, INC., and SFM MUT. INS. CO., Employer-Insurer/Appellants, and MAYO FOUND., MANKATO CLINIC, LTD., LIFESCAN MINN. STAND-UP MRI, FAIRVIEW HEALTH SERVS., CENTER FOR ORTHOPEDIC & SPORTS MED., CONSULTING RADIOLOGISTS, BLUE CROSS/BLUE SHIELD OF MINN., UNIVERSITY OF MINN. PHYSICIANS, and ST. JAMES HEALTH SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 29, 2007
CAUSATION - INTERVENING CAUSE. The doctrine of a superseding, intervening cause does not apply where an employee sustains a reinjury or aggravation while performing work activities. Where the July 29, 2003, injury occurred while working for the employer, the defense of a superseding, intervening cause cannot provide a viable defense to liability for the admitted March 25, 2003, personal injury.
PERMANENT PARTIAL DISABILITY - THORACIC SPINE. Substantial evidence supports the compensation judge=s award of a 5% permanent partial disability to the thoracic spine as a result of the employee=s March 25, 2003, personal injury.
PERMANENT TOTAL DISABILITY. Where the compensation judge=s finding of permanent total disability was based, in part, upon medical opinion which the judge rejected, and, in part, on medical opinion that concluded the employee=s inability to work was not causally related to the personal injury; and where the restrictions and limitations resulting from the work injury, and the effect of the employee=s work injury on his ability to work were not clear from the judge=s decision, the findings relating to permanent total disability are vacated and remanded to the compensation judge for reconsideration.
Affirmed in part, reversed in part, and vacated and remanded in part.
Determined by: Johnson, C.J., Pederson, J. and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: Matthew T. Nielsen, Krahmer & Nielsen, Fairmont, MN, for the Respondent. Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee=s July 29, 2003, injury to the thoracic spine was not a superseding, intervening cause of the employee=s disability; the judge=s award of permanent partial disability benefits for the thoracic spine based on the employee=s March 25, 2003, personal injury; and the judge=s findings that the employee=s side businesses do not demonstrate an ability to perform sustained gainful employment, that he has been unable to secure anything more than sporadic employment resulting in insubstantial income since April 18, 2005, and that the employee is permanently and totally disabled. We affirm in part, reverse in part, and vacate and remand for reconsideration, in part.
Darryl R. Krueger, the employee, began working as a salesman for Ritter Agri Sales, Inc., in January 1998. The employee sold chemical hose sprayers and sprayer parts. His work duties included servicing sprayers so they were ready for customer use. On March 25, 2003, while working at the top of a boom sprayer, the ladder on which he was standing shifted and the employee fell approximately twelve feet onto a cement floor. The employer and insurer admitted liability for the injury. On that date, the employee=s weekly wage with the employer was $607.02.
The employee was seen by Dr. Thomas Koehnen at the Trimont Clinic on the day of the injury. The employee stated he struck his left elbow and left hip when he fell. Dr. Koehnen referred the employee to Fairmont Orthopedics & Sports Medicine where he was seen by Dawn Pedersen, C-FNP. An MRI scan showed grade 1 spondylolisthesis and bilateral spondylolysis, with a small annular tear at L5-S1 without evidence of a disc herniation or nerve root compression. On April 2, 2003, the employee was seen by Dr. Gregory Thompson, a neurosurgeon, at Immanuel St. Joseph Clinic. The doctor diagnosed severe acute low back pain and traumatic spondylolysis of L5 on the right, and prescribed conservative treatment including medication, physical therapy and light-duty work.
The employee returned to see Dr. Thompson on May 21, 2003, complaining of low back and mid-thoracic pain. The doctor diagnosed chronic progressive low back pain caused by a traumatic spondylolysis and grade I spondylolisthesis at L5‑S1. On July 2, 2003, Dr. Thompson noted the employee=s low back pain appeared to be slowly improving, but stated the majority of his pain was now in the mid-thoracic spine in and around the T8 region. A July 14, 2003, MRI scan of the thoracic spine showed disc space narrowing and dehydration at T9-10, without evidence of fracture or herniated disc. Dr. Thompson personally reviewed the MRI scan noting, additionally, a lesion at T5‑6 dorsal and to the left side of the spinal cord. The doctor concluded the employee=s thoracic pain was musculoskeletal in nature, and there were no surgical indications for the employee=s thoracic region.
The employee continued to perform his job with the employer following his work injury with some modifications. On July 29, 2003, the employee bumped his back going through the door of a grain bin on a farm at which he was working. The employee did not claim an injury on this date, believing it to be an exacerbation of his March 25, 2003, injury.
The employee returned to see Dr. Thompson on August 11, 2003, with continuing complaints of chronic low back and thoracic pain. The employee stated he had been unable to return to full-duty employment and complained that any bending or lifting at work incapacitated him. The doctor=s diagnosis was incapacitating mid-thoracic pain and low back pain associated with a traumatic spondylolysis at L5. Dr. Thompson referred the employee to Medical Advanced Pain Specialists (MAPS) for evaluation and treatment. The employee subsequently underwent thoracic trigger point injections at MAPS.
Dr. Joel Gedan, a neurologist, examined the employee in January 2004 at the request of the employer and insurer. The employee complained of severe mid and low back pain but denied any radicular symptoms, weakness or numbness in his arms or legs. Dr. Gedan diagnosed a grade 1 spondylolisthesis of L5 on S1 with a possible spondylolysis with a pars defect at L5 secondary to the March 25, 2003, personal injury. Dr. Gedan, however, questioned the employee=s severe lumbar complaints given his minimal findings. The doctor found the employee=s thoracic symptoms even more puzzling, and stated he found no objective or clinical findings or anatomic diagnosis to explain the employee=s thoracic spine complaints. Dr. Gedan concluded the employee=s mid back complaints were not causally related to the work injury of March 25, 2003. The doctor rated a 15% permanent partial disability for the employee=s spondylolisthesis, and stated the employee could work, subject to restrictions.
The employee returned to see Dr. Thompson in May 2004, stating his pain had not improved with the trigger-point injections. The employee described mid-thoracic pain extending into the lumbosacral junction and described numbness and loss of control in his hands and feet. On examination, straight leg raising was negative, motor strength in the lower extremities was normal, and sensory examination was intact to light touch. Dr. Thompson diagnosed severe chronic pain without significant improvement after multiple injections. The doctor ordered an upper extremity EMG study which showed findings compatible with carpal tunnel syndrome bilaterally, but also evidence of ongoing denervation and motor unit irritability consistent with a lower cervical bilateral radicular process or possible developing motor neuron disease. An MRI scan of the cervical spine showed moderate cervical spondylosis predominantly at C4-5 with mild compression of the spinal cord. On July 27, 2004, Dr. Thompson recorded complaints of Amyelopathic symptoms involving difficulty with the use of hands, difficulty with fine motor control to his hands, difficulty with weakness to his hands. He notes paresthesias and numbness to both of his hands. He also states that he has some difficulty with his balance and walking, which he has noticed slowly occurring over the past couple of years.@ (Pet. Ex. 3.7.) The doctor concluded there was early evidence of cervical spondylotic myelopathy with some spinal cord compression at C4-5. Dr. Thompson recommended evaluation at the Fairview Pain Management Clinic, stating the employee=s cervical spondylotic myelopathy was a slowly worsening condition which did not need to be emergently addressed.
In October 2004, Suzanne Proudfoot, D.O., at the Fairview-University Medical Center examined the employee for his chronic low back and thoracic pain. The doctor diagnosed a chronic pain syndrome and recommended the pain program, which the employee commenced. In December 2004, the employee was seen in follow up by Barbara St. Marie, CNP, MA, who followed the employee through his treatment at the Fairview Pain Management Clinic. Ms. St. Marie was concerned that something Anew@ was occurring at the thoracic level. She recommended a repeat thoracic MRI scan which showed a desiccated disc at T6-7 with a tiny central herniation mid and slightly to the left, no evidence of myelomalacia, and multi-level degenerative disc changes in the mid and lower thoracic spine.
The employee was examined by Dr. Mark Larkins, a neurosurgeon, in February 2005 at the request of the employer and insurer. Dr. Larkins concluded the radiographic findings appeared to support a dramatic L5 spondylolysis pars defect, although the doctor felt the defect might be congenital. The doctor=s neurologic examination was essentially normal with no objective findings except severe pain in the coccyx and lower lumbar spine. The doctor diagnosed a very complex pain situation centering around the employee=s coccyx and lumbar spine for which there did not appear to be any objective physical correlation. Dr. Larkins opined the March 25, 2003, injury was a prolonged temporary aggravation of an underlying congenital pars defect, and that the March 2003 injury was not a cause of the employee=s cervical complaints. Dr. Larkins further stated the employee sustained no permanent disability secondary to the work injury, but did opine the employee should avoid repetitive lifting and bending and lifting over 20 pounds.
In March 2005, Dr. Belgrade at the Fairview Pain Management Clinic referred the employee to Dr. Paul Tuite, a neurologist, for evaluation of his muscle spasms. The doctor diagnosed dystonic spasm with pain syndrome, but found no neurologic basis for the employee=s condition. Dr. Tuite reported there was some Avariability in his speech impairment which varies from grunting to repetitive type palilalic speech. His symptoms clearly vary with distraction.@ (Resp. Ex. 18.) On April 11, 2005, Ms. St. Marie reported the employee=s back spasms were so severe his participation in the program was terminated. She opined it was not then possible for the employee to continue working. The employee voluntarily terminated his employment with the employer on April 15, 2005, and did not thereafter look for other employment.
The employee saw Dr. Mark Stuckey, a pain specialist at the University of Minnesota Medical Center, on October 25, 2005. The employee complained of mid and low back pain with muscle spasms, tic‑like movements of the head and neck, a stuttering-type of speech and difficulty with urination and sexual dysfunction. The employee reported the more activity he engaged in the more severe the spasms became. The doctor=s evaluation revealed speech difficulty, word finding problems, paraspinal tenderness, intermittent spasms affecting the employee=s ability to speak and walk, and sensory loss in the upper and lower extremities. Dr. Stuckey concluded the employee sustained a cervical spinal cord injury on March 25, 2003, and rated a 58.5% whole body permanent partial disability. Dr. Stuckey opined the employee=s neurologic symptoms were very debilitating and inhibited the employee=s ability to function. In addition, the doctor stated, the medication prescribed to control the employee=s symptoms and pain had side effects that made it difficult for the employee to function in a work environment. Accordingly, Dr. Stuckey concluded the employee was permanently and totally disabled from all employment.
Dr. Larkins reexamined the employee on December 13, 2005. The employee then complained of low back and thoracic pain, and a cervical spine injury with resultant neurologic issues. The employee reported severe pain to palpation at T6 which the doctor noted was somewhat different from his first examination when the tenderness was at T12. Dr. Larkins also noted a stocking/glove numbness which was not present earlier. He stated the employee had diminished hearing on the right and was basically deaf. The doctor reported the employee Ahas this startling speech problem where he just grunts and lets out what appear to be involuntary sounds. They do not really appear to interrupt his train of speech at all times, although he does jump with these utterances.@ Dr. Larkins observed the development of the speech issue was profound since his last examination. He further stated the primary locale of the employee=s pain appeared to have moved into the thoracic spine whereas the employee had minimal thoracic complaints in February 2005. The doctor opined the March 2003 injury caused an aggravation of a congenital pars defect and a contusion of the coccyx which the doctor concluded had resolved. Dr. Larkins noted the employee had no thoracic complaints until approximately two months after the March 2003 fall, and based upon the delay in the onset of symptoms and the changing location and nature of the symptoms, opined the employee=s thoracic complaints were unrelated to the March 2003 injury. The doctor further noted that multiple physicians and diagnostic studies had failed to find any organic basis for the symptoms, concluding:
Although entirely unrelated to the work injury, given the nature of symptoms he has been reporting, along with the apparent progression of his verbal and physical tics, spasm, and dystonia, the possibility of upper motor neuron disease or some other type of similar process should be evaluated. There may also be a psychological component to his presentation, although that is out of my area of expertise.
Dr. Larkins recommended an evaluation by a neurologist specializing in neuromuscular disorders and/or a psychologist specializing in chronic pain/somatization issues. Dr. Larkins also opined the employee had not been totally disabled since April 18, 2005, that the employee sustained no permanent disability as a result of his personal injury and required no restrictions. (Resp. Ex. 4.)
Dr. Richard Galbraith, a neurologist, examined the employee in May 2006 at the request of the employer and insurer. With respect to the March 25, 2003, injury, the doctor diagnosed a lumbar sprain and contusion of the left hip and low back, all of which resolved after six weeks. Dr. Galbraith noted, based on the medical records, the employee did not complain of mid back pain until six weeks after the injury and concluded the mid back pain was not related to the personal injury. Dr. Galbraith stated the employee needed no further treatment relative to the March 25, 2003, injury. He further opined the employee=s injury on July 29, 2003, was a superseding, intervening cause of the employee=s disability to his thoracic spine and constituted a substantial contributing factor, if not the sole cause, of the employee=s thoracic spine complaints. The doctor opined the employee sustained no permanent disability, had no restrictions, and was not permanently and totally disabled by reason of the March 2003 work injury.
The employee was seen in May 2006 by Dr. Beth Baker at Regions Hospital for an evaluation of chemical exposure as a possible cause of his muscle spasms. The employee reported he fell in March 2003 and six months later developed numbness and tingling, weakness in hand grip and in December 2004 developed muscle spasms and stuttering. On examination, Dr. Baker noted the employee had an obvious twitching in his neck and his extremities as well as a noticeable stutter which seemed to get better when he focused on answering questions. Dr. Baker diagnosed chronic low back pain due to the work injury with a subjective sensation of numbness in his arms and feet but with normal position and vibration sense on examination. Dr. Baker stated the employee Adoes have some stuttering and weird or abnormal movements of restlessness of his arms and legs. It appears almost like he has akathisia. It is possible the akathisia is due to some medication he is on, although it does not appear to be due to any pesticides as far as I know.@ (Pet. Ex. 3.12.)
At the time of his injury, the employee resided in Welcome, Minnesota, located west of Fairmont, Minnesota. For much of his life the employee has been engaged in a family farming operation. Prior to his personal injury, the employee actively farmed 150 acres of land owned by his family for which he paid rent to his mother and his aunt. Subsequent to the injury, the employee continued to rent and farm the land, but hired others to perform the work on the farm. In 1990, the employee began selling seed corn for Golden Harvest. The employee ordered the seed on-line, had the seed delivered and then sold it to local farmers. Prior to his injury, the employee also sold corn-burning stoves, fireplaces and boilers. Typically, the employee purchased the inventory and resold the items. The employee continued his self-employment after leaving his employment with the employer. In January 2006, the employee purchased corn-burning furnaces and boilers from L.D.J. Manufacturing, at a cost of approximately $40,000.00. As of the date of the hearing, the employee testified one-half of this inventory had been sold. In January 2006, the employee deposited approximately $34,000.00 in a bank account which he earned from the sale of seed corn money.
Ms. Jan Lowe, a qualified rehabilitation consultant, performed a vocational evaluation of the employee in January 2006. Ms. Lowe interviewed the employee, administered vocational tests and reviewed the relevant medical records. Ms. Lowe opined the employee was not permanently and totally disabled and was employable considering the restrictions and physical capacities as defined by Dr. Gedan and Dr. Larkins. She opined the employee had demonstrated sales ability based on his work history and the level of gross income generated in his self-employment activities. Ms. Lowe opined the employee has an earning capacity of at least $30,000.00 per year and stated there were a number of jobs available to the employee in his geographic area including sales and management positions.
Ms. Kathy Tuff, a qualified rehabilitation consultant, conducted a vocational evaluation of the employee in January 2006 and her deposition was taken in May 2006. Ms. Tuff interviewed the employee and reviewed certain medical records that she concluded demonstrated a ongoing chronic pain syndrome unresponsive to treatment. Ms. Tuff noted the employee was then 52 years of age and resided on a 150 acre farm which he rented from his mother and his aunt. Ms. Tuff concluded the employee was not capable of sustained employment because he was not physically capable of functioning on a long-term basis at a level which would keep him competitively employed.
The employee filed a claim petition seeking wage loss benefits, medical expenses and permanent partial disability benefits. Following a hearing, the compensation judge found the employee injured his lumbar and thoracic spine on March 25, 2003, and awarded a 15% permanent partial disability relative to the lumbar spine and a 5% permanent partial disability relative to the thoracic spine. The judge found the employee aggravated his thoracic spine on July 29, 2003, but found this injury was a temporary aggravation of the March 25 personal injury. The compensation judge further found the July 2003 injury was not a superseding, intervening cause of the employee=s thoracic problems. The compensation judge further found the employee=s self‑employment was not profitable and did not demonstrate an ability to perform sustained gainful employment, and found the employee became permanently and totally disabled effective April 18, 2005, as a result of the March 2003 personal injury. The employer and insurer appeal.
1. July 29, 2003 injury; superseding, intervening cause
The compensation judge found the employee aggravated his thoracic spine on July 29, 2003, while working for the employer. The employer and insurer contend this finding is legally erroneous because the employee never claimed a work injury on that date. Although the compensation judge found the July 2003 injury was temporary only, the appellants contend the issue is significant because of the judge=s award of permanent partial disability benefits for the thoracic spine. The employer and insurer contend they had no opportunity to defend the claim of a July 2003 personal injury. They further argue any permanent disability of the thoracic spine was solely caused by the July 2003 injury for which they did not receive notice. Accordingly, they assert the award of permanent disability benefits for the thoracic spine must be reversed. We disagree.
It is apparently undisputed the employee did sustain an injury to the thoracic spine on July 29, 2003. Although the employee did not claim a personal injury on that date, nor allege he was entitled to any benefits due to that injury, the employer and insurer argued the July 29, 2003, incident was a superseding, intervening cause of the employee=s disability to the thoracic spine. The doctrine of a superseding, intervening cause applies only where there is a work injury followed by an injury caused by a non-work-related activity. AThe principle of superseding, intervening cause does not apply, and does not constitute a viable defense to liability, where an employee sustains a reinjury or aggravation while performing subsequent work activities.@ Rather, the pertinent inquiry is whether the initial work-related injury is a substantial contributing cause of the employee=s disability. Johnson v. Northern Pride, 59 W.C.D. 494 (W.C.C.A. 1999); see also Daddario v. Ziem=s Floor Covering, 58 W.C.D. 538 (W.C.C.A. 1998); compare, e.g., Nelson v. American Lutheran Church, 420 N.W.2d 588, 40 W.C.D. 849 (Minn. 1988); Heinemann v. Independent Sch. Dist. #279, 63 W.C.D. 312 (W.C.C.A. 2003). The employer and insurer do not argue on appeal that the July 29, 2003, injury did not occur Awhile working for the employer@ as found by the compensation judge, nor is there any evidence to the contrary. Accordingly, the appellant=s legal theory cannot provide a viable defense to liability for the admitted March 25, 2003, injury in this case.
2. Permanent partial disability - thoracic spine
The issue of permanent partial disability for the thoracic spine is, however, a closer question. The MRI scan on July 14, 2003, showed no evidence of a disc herniation. The January 2005 MRI scan revealed, for the first time, the appellant=s assert, a T6-7 disc herniation. The appellants maintain it was this later scan that was the basis for the compensation judge=s finding of permanent disability in the thoracic spine. Since the disc herniation was not identified until after the July 29, 2003, injury, the appellants assert it was a direct result of that injury rather than the March 2003 injury. We are not persuaded.
Minn. R. 5223.0380, subp. 4.C., provides a 5% rating for ARadicular pain or radicular paresthesia, with or without thoracic pain syndrome, with persistent objective clinical findings confined to the region of the thoracic spine, that is, involuntary muscle tightness in the paradorsal muscles, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part.@ The thoracic MRI scan on July 14, 2003, showed disc space narrowing and dehydration at T9-10. Dr. Thompson also read the MRI scan and concluded it showed a lesion at T5-6 dorsal to the spinal cord on the left side. Thus, there is evidence of MRI scan abnormalities that pre-existed the July 29, 2003, injury. The January 2005 study similarly revealed degenerative disc changes in the mid and lower thoracic spine. These abnormalities together with the objective clinical findings on examination of the thoracic spine support the compensation judge=s award of a 5% permanent partial disability. That award is, therefore, affirmed.
3. Permanent Total Disability
The compensation judge found that as a result of the March 25, 2003, work injury, the employee could no longer work for the employer after April 17, 2005. The judge further found that although the employee continued to farm and sell seeds, furnaces and boilers, his side businesses were never profitable and did not demonstrate an ability to perform sustained gainful employment. Accordingly, the compensation judge found since April 18, 2005, the employee has been unable to secure anything more than sporadic employment resulting in insubstantial income and awarded permanent total disability benefits. The employer and insurer contend this finding is unsupported by substantial evidence. They assert Jan Lowe=s testimony that the employee has a residual earning capacity was overlooked by the compensation judge. Further, they assert the employee=s income from self-employment is not insubstantial. Accordingly, the appellants contend the compensation judge=s award of permanent total disability benefits must be reversed.
Permanent total disability is disability which, in combination with threshold permanent partial disability requirements, Atotally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@ Totally and permanently incapacitated means that the employee=s disability Acauses the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Minn. Stat. § 176.101, subd. 5. Permanent total disability is primarily dependent on an employee=s vocational potential rather than the employee=s physical condition. See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983); Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). If the services the injured employee can perform are so limited in quality, quantity or dependability that a market for them does not exist, the employee is permanently disabled. Berg v. Sadler, 235 Minn. 214, 50 N.W.2d 266, 23 W.C.D. 436 (1957).
Findings of fact are to be affirmed unless they are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. § 176.421, subd. 1(3). That is, the findings are to be affirmed if, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate. AIn applying this standard, the Workers= Compensation Court of Appeals looks not only at the evidence which supports the compensation judge=s findings, but also at the opposing evidence and the evidence from which conflicting inferences might be drawn. The evidence, in a sense, is weighed to determine its substantiality.@ The standard of review is Aan admonition to the reviewing court not to treat the findings of a fact finder lightly, while at the same time the reviewing court remains cognizant of its own responsibility to exercise good judgment in reviewing what the evidence will reasonably sustain.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
This case was factually and medically complex. We acknowledge there is evidence of record which arguably supports the compensation judge=s conclusion that the employee is permanently and totally disabled. Based upon our review of the entire record, however, the court is troubled by the substantiality of the medical and vocational evidence that supports the finding of permanent total disability.
We first review the medical evidence. The compensation judge found the March 25, 2003, injury was Aa substantial contributing cause of the lumbar and thoracic problems that the employee has experienced since the work injury of March 25, 2003. These problems include symptoms into the legs and spasms and tics in the thoracic area that caused stuttering.@ (Finding 11.) There is substantial evidence of record that supports the finding of permanent partial disability to the thoracic and lumbar spines as a result of the March 2003 injury. The only evidentiary support, however, for the judge=s finding that the symptoms from the injury included spasms and tics in the thoracic area that caused stuttering came from the testimony of Dr. Stuckey.
Dr. Stuckey stated that the employee=s underlying condition resulting from the personal injury was a spinal cord injury. (Pet. Ex.10, p.63.) The doctor stated the symptoms which resulted from the spinal cord injury included dystonic spasm, tics, a stuttering type of speech, upper and lower extremity loss and bladder and sexual dysfunction. In his deposition, Dr. Stuckey was asked to discuss the speech issues he observed with the employee. The doctor testified, AI=ve noticed especially when his spasms become more - - his dystonic spasms become more severe that he has more of a stuttering type of speech, and certainly that may relate to the airflow that=s coming out of the thoracic cage as the - - as the spasms occur. Q. And - - and these spasms that you=re discussing, in your opinion, do they come out of the central cord injury? A. Yes.@ (Pet. Ex. 10, p. 39.) Clearly, Dr. Stuckey related the employee=s muscle spasms not to any thoracic injury but rather to a dystonic condition secondary to a spinal cord injury.
In his memorandum the compensation judge stated the employee failed to prove he sustained a spinal cord injury on March 25, 2003, and he rejected the opinions of Dr. Stuckey as nothing more than speculation. Having rejected Dr. Stuckey=s opinion that the employee sustained a spinal cord injury, there is no other evidentiary support for the compensation judge=s finding that the employee=s personal injury caused spasms and tics in the thoracic area that caused stuttering. Absent evidentiary support, the finding cannot be affirmed. Accordingly, that factual finding must be reversed.
According to Dr. Stuckey, the employee=s March 2003 cervical spinal cord injury resulted in dystonic spasms, tics, a stuttering type of speech, upper and lower extremity sensory loss, a gait dysfunction, and bladder and sexual dysfunction. Based upon these neurologic symptoms, Dr. Stuckey concluded the employee was very limited in his ability to function and concluded he was totally disabled. The compensation judge, however, rejected the employee=s claims for permanent disability for a brain dysfunction causing a disturbance of expressive language and found the employee demonstrated no signs or symptoms of organic brain dysfunction, word finding difficulties or paraphasia. The compensation judge also denied the employee=s claim for permanent disability for an abnormal tandem gait, bladder disorder, and sexual dysfunction as rated by Dr. Stuckey. The compensation judge awarded permanent disability only for the thoracic and lumbar spines. We have reversed the compensation judge=s finding that the symptoms from the personal injury included spasms and tics in the thoracic area causing stuttering. The compensation judge concluded the March 2003 personal injury did not cause most of the symptoms or conditions which formed the basis for Dr. Stuckey=s opinion regarding the employee=s ability to work.
In finding that the employee has been unable to work on a sustained gainful basis since April 18, 2005, the compensation judge stated he was persuaded by the opinion of Dr. Larkins. In his report of December 13, 2005, Dr. Larkins stated:
With respect to the thoracic pain and now the spasticity, along with the vocal manifestations, which have apparently been a significant factor in his disability, again, no clear etiology has been defined for this period. However, I do not believe that with these factors, and combined with his significant hearing loss, Mr. Krueger would have been capable of working from April 18, 2005 to the present. He would therefore have been temporarily totally disabled due to these issues.
(Resp. Exh. 4.) This opinion, however, was based on the employee=s thoracic pain, spasticity, vocal manifestations, and hearing loss all of which Dr. Larkins opined were unrelated to the March 2003 injury. Rather, Dr. Larkins= diagnosis of the effects of the March 2003 personal injury was an aggravation of a congenital pars defect and coccygeal contusion. Dr. Larkins stated, A[w]ith specific regard to the injury sustained on March 25, 2003, I do not believe that Mr. Krueger has been temporarily and totally disabled from employment from April 18, 2005 to the present.@ (Resp. Ex. 4).
The compensation judge concluded the employee could no longer work after April 17, 2005, as a result of his personal injury. Having rejected the opinions of Dr. Stuckey, however, we are again unclear what medical evidence supports this finding. The compensation judge found the employee has permanent disability of his thoracic and lumbar spines. The judge made no finding, however, what restrictions or limitations, if any, are attributable to these conditions. Dr. Gedan rated a 15% whole body disability for a traumatic spondylolisthesis and assigned restrictions of no repetitive bending, twisting or turning with occasional lifting up to 25 pounds. Dr. Larkins and Dr. Galbraith concluded the employee could work without restrictions. We cannot determine what contribution, if any, the work injury has had on the employee=s ability to work.
We turn next to the vocational evidence. Ms. Tuff opined the employee was permanently and totally disabled. She does not state specifically, however, what medical opinion(s) she relied upon for her opinion or what restrictions or limitations she assumed were applicable. Ms. Lowe, based upon the restrictions assigned by Dr. Gedan, opined the employee was not permanently and totally disabled. The vocational effects of the employee=s personal injury and any restrictions or limitations resulting therefrom are significant but unanswered questions.
Another issue in this case is whether the employee=s self-employment is anything more then Asporadic employment resulting in an insubstantial income.@ Minn. Stat. § 176.101, subd. 5(c). The employee was engaged in farming for many years prior to his personal injury and has been engaged in seed corn and corn-burning furnace and boiler sales since at least 2002. The employee=s tax returns for the years 2002 through 2005 are in evidence as Exhibit 6. Each return contains a Schedule F which reflects profit or loss from farming operations and appears to include the income from all of the employee=s self‑employment businesses. In 2002, the employee=s gross income was $73,887.00 with a net loss after expenses of $2,039.00; in 2003, the gross income was $132,101.00 with a net loss of $725.00; in 2004, the gross income was $74, 243.00 with a net loss of $28,035.00. In 2005, the gross income was $90,622.00 with a net loss of $14, 435.00. The tax returns reflect the employee expended money on advertising of his sales businesses which he described as paper and radio advertising. In January 2006, the employee purchased eleven corn-burning furnaces and one boiler from L.D.J. Manufacturing at a cost of approximately $40,000.00, half of which he had sold by the date of the hearing. In January 2006, the employee deposited approximately $40,000.00 from the sale of seed corn. The employee testified he continued his farming operation during 2006.
Since his personal injury, the employee has continued his self-employment activities through the date of the hearing. We acknowledge Schedule F to the employee=s income tax returns reflects a net loss from his various self-employment businesses. Schedule F, however, aggregates all of the employer=s businesses so it is not clear which expenses are attributable to farming and which are attributable to the sales income. Furthermore, as Ms. Lowe opined, the fact that the employee is engaged in sales businesses evidences an earning capacity whether or not he generates taxable income from his self-employment. Compare, e.g., Ogren v. Mid America Pipe Cleaning, Inc., slip op. (W.C.C.A. August 29, 2000); Lundeen v. Independent Sch. Dist. #191, slip op. (W.C.C.A. Nov. 2, 2005); see also Backaus v. Murphy Motor Freight Lines, 442 N.W.2d 326, 42 W.C.D. 24 (Minn. 1989); Brantl v. Kendrick Elec., Inc., slip op. (W.C.C.A. Mar. 18, 1998).
Based upon our review of the record, we cannot determine whether substantial evidence supports a finding that the employee is permanently and totally disabled. Accordingly, we vacate the remaining findings of fact and remand the case to the compensation judge for reconsideration.
 Certified family nurse practitioner.
 Dystonia is dyskinetic movements due to disordered tonicity of muscle. Dorland=s Illustrated Medical Dictionary, 559 (29th ed. 2000).
 Dr. Stuckey rated permanent disability for upper and lower extremity partial sensory loss, disturbance of expressive language, restriction of tandem gait, lumbar and thoracic pain syndrome, bladder dysfunction and sexual dysfunction.
 Akathisia is a Acondition of motor restlessness in which there is a feeling of muscular quivering, an urge to move about constantly, and an inability to sit still.@ Dorland=s Illustrated Medical Dictionary, 42 (29th ed. 2000).
 We vacate, however, the compensation judge=s finding that the employer and insurer received timely notice of the July 29, 2003, work-related injury. There was no claim of a work-related injury on that date before the compensation judge, and the finding is not necessary to the determination of the issues in this case. If the July 2003 injury was a contributing cause of the employee=s disability, the appellants may have an argument that they have no liability for any share of benefits apportioned to that injury if statutory notice was not provided. See Pearson v. Foot Transfer, 221 N.W.2d 710, 26 W.C.D. 605 (Minn. 1974).
 We also vacate the compensation judge=s finding that the July 29, 2003, incident was a minor temporary aggravation of the thoracic spine as the nature of the July 2003 injury was not before the compensation judge, nor is it a necessary finding given the issues in this case.
 The records of Dr. Thompson and the Wohlrabe Chiropractic Clinic reflect involuntary muscle tightness in the thoracic region.
 In his February 9, 2006, medical report, Dr. Stuckey stated:
My initial evaluation of Mr. Krueger occurred on October 25, 2005. At that time, he continued to complain of mid-back and low back pain described as a deep, aching, throbbing pain associated with spasms. At that time, he stated that approximately nine months after his injury, be began to experience tic-like movements of his head and neck associated with a stuttering-type of speech. Up until that point in time, he had received a number of different types of management which were unable to provide much relief at all. My evaluation revealed the difficulty with speech, word finding problems, paraspinal tenderness with muscle spasm and radiating pain toward the flanks. My examination also revealed sensory changes in the upper and lower extremities consistent with a stocking-glove type of distribution. In addition to the above-named physical exam problems, he also complained of difficulty with urination, hence, urinary retention and also sexual dysfunction. These problems were also noted intermittently through the review of his medical records.
Certainly, there has been some confusion in regards to Mr. Krueger=s pain processing of the spasms and dystonia, and what his diagnoses ultimately may be. Certainly, his x-ray, MRI and EMG data may not be entirely conclusive. But in reviewing his records it appears to me that within a medical certainty that the injury sustained on March 25, 2003 was probably a cervical spinal cord injury. This seems to be most consistent with his symptoms, what he describes, and also the EMG data which was performed on July 7, 2004. Certainly, the time course may appear confusing, but when one reads the medical literature, one is struck with the variability in time course that this particular problem can take. In addition, many times people who sustain this type of injury, i.e., spinal cord injury, may not have any objective findings which an be pointed to demonstrate the possible site of injury. An analogous situation is in sports when a football player suffers a concussive force, which would be similar to the type of injury Mr. Krueger sustained falling 12 feet from a ladder onto a concrete floor onto the end of his spine with nothing interfering to break his fall. This is very similar to a process athletes develop with this type of concussive injury of burning hands and/or feet which is probably resultant from a central cord injury. Half the time this occurs in the context of a demonstrable spinal column abnormality, but in the other 50%of the time no such abnormality is demonstrable. Hence, because of the similarities in presentation, in symptomatology, and the lack of objectifiable evidence, I believe indeed, Mr. Krueger because of the fall sustained a central cord injury.
(Pet. Ex. 1.)