THOMAS RICHARDS, Employee, v. ABF FREIGHT SYS., SELF-INSURED, Employer/Appellant, and NEUROLOGICAL ASSOCS., FAIRVIEW HEALTH SERVS., CENTER FOR DIAGNOSTIC IMAGING, and PREFERRED ONE CMTY. HEALTH PLAN, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 28, 2007
CAUSATION - GILLETTE INJURY; EVIDENCE - BURDEN OF PROOF; PRACTICE & PROCEDURE - REMAND. Where the employee=s doctor did not reference the employee=s neck complaints in all of his treatment records in part because he kept separate records on the employee=s upper extremity injury and his low back injury, where the judge had noted that lack of referencing as a basis for his denial of neck-related as opposed to shoulder-related benefits, and where the judge appeared to have applied an outdated legal standard for proving a Gillette-type injury, the compensation judge=s denial of benefits for either a specific or a Gillette-type work injury to the neck was reversed and remanded for reconsideration of the evidence in light of the current legal standard.
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. Where it was supported by expert medical opinion and was not otherwise unreasonable, the compensation judge=s conclusion that the employee=s shoulder disability was both work-related and permanent in nature was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. Where the only hard evidence of any search for work over the three-year span of the employee=s wage replacement claim was a log of his having made five Acold calls@ a day for a period of two months, the compensation judge=s award of temporary total disability benefits was, except for a period when the employee was medically restricted from working, unsupported by substantial evidence, notwithstanding the fact that the employee was without a QRC=s assistance in his job search.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EARNING CAPACITY. Where there was expert medical opinion that the employee was permanently restricted from returning to his pre-injury work as a truck driver, and where the self-insured employer did not rebut the presumption that the employee=s post-injury wages as a security guard constituted a reasonable representation of his post-injury earning capacity, the compensation judge=s award of temporary partial disability benefits was not clearly erroneous and unsupported by substantial evidence.
Affirmed in part, reversed in part, and remanded.
Determined by Pederson, J., Wilson, J., and Stofferahn, J.
Compensation Judge: James Cannon
Attorneys: Michael C. Van Berkom, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Respondent. Leslie M. Altman and Joshua T. Brinkman, Littler Mendelson, Minneapolis, MN, for the Appellant.
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge=s award of compensation for an injury to the employee=s left shoulder sustained in the course of his employment on May 29, 2000. The employee cross-appeals from the judge=s denial of compensation for an alleged neck injury sustained on or about that same date. We affirm the judge=s finding of a work-related left shoulder injury, we affirm in part and reverse in part the judge=s award of temporary total disability benefits, we affirm the judge=s award of temporary partial disability benefits, permanent partial disability benefits, and treatment expenses related to the left shoulder, and we reverse and remand for reconsideration the issue of causation of the alleged neck injury and related benefits.
Thomas Richards [the employee] was born in 1951 and began working as an over-the-road truck driver a few years after graduating from high school in 1969. In April of 1987, he commenced employment as a driver for ABF Freight Systems [the employer], for whom he worked subsequently until about June 9, 2000.
On January 28, 1993, the employee hit some black ice while driving for the employer, and his truck jackknifed and went into a ditch. About two weeks later, the employee was referred to orthopedist Dr. Mark Engasser, who diagnosed myoligamentous sprain of the cervical and lumbar spine with mild left upper extremity radiculitis. The employee=s neck symptoms gradually resolved, with the exception of occasional headaches. His low back pain persisted, however, and was exacerbated by his work as a truck driver. He received regular follow-up care from Dr. Engasser, and eventually, in January 1998, he underwent a lumbar discectomy at L4-5. The self-insured employer admitted liability for the low back injury and paid intermittent temporary total and temporary partial disability benefits, compensation for a permanent impairment to 9% of the whole body, and medical expenses. Following his surgery, the employee was also provided rehabilitation assistance by rehabilitation consultant Larry Mansfield, and he eventually returned to his driving position with the employer.
The employee alleges that on May 29, 2000, he sustained a work-related injury to his left shoulder and neck while cranking up the heavy landing stand, or Adolly,@ at the front end of an old semitrailer, the gears of which were stiff and partially stripped. According to a First Report of Injury filed by the employer on July 11, 2000, the employee notified the employer on May 30, 2000, that he had strained his left shoulder the previous evening at the employer=s terminal in Fargo, North Dakota, while Ahooking and dropping trailers in [the] yard.@ The employee was forty-eight years old on May 29, 2000, and was earning a weekly wage of $1,228.08.
Following his injury, the employee evidently continued working until he was seen by Dr. Engasser on June 9, 2000, to whom he reported that he had recently aggravated his low back while unhooking a trailer and had developed some left shoulder pain as well. Dr. Engasser prescribed a course of medication and took the employee off work. Over the next several months, the employee received follow-up care from Dr. Engasser and physical therapy treatments at NovaCare. Dr. Engasser=s diagnoses during this period included lumbar degenerative disc disease with herniation at L4-5, left shoulder strain and impingement, left shoulder cervical strain, left cervical radiculitis, and cervical degenerative disc disease.
While employed by the employer, the employee also operated his own trucking company, Shiloh Transportation, Inc. The company owned six tractors, two trailers, and was evidently insured by Zurich-American Insurance Group. The employee reported his May 2000 left shoulder strain injury to Zurich, which, on July 6, 2000, completed a First Report of Injury for a left shoulder strain alleged to have occurred in Fargo, North Dakota, on June 9, 2000, while Adropping a trailer.@ About a month later, however, in a AStatement of Facts@ provided to Zurich by the employee, the employee expressly described his injury as having occurred while working for ABF Freight Systems at its terminal in Fargo. He indicated that the injury had occurred on May 29, 2000, while dropping and hooking trailers.
In September of 2000, Dr. Engasser referred the employee for a functional capacity evaluation [FCE] related to his neck, left shoulder, and low back. The FCE was performed on October 5 and 6, 2000, and the therapist noted that the employee gave maximum consistent effort. The therapist concluded that the employee would be severely impaired from performing a job as an over-the-road trucker. The therapist noted good upper extremity strength, but she also noted that the employee=s complaints of ongoing left shoulder pain and decreased cervical range of motion resulted in low endurance to elevated work.
The employee continued to treat with Dr. Engasser, to whom he complained on December 1, 2000, of ongoing neck and left shoulder discomfort with overhead reaching and rotation. Dr. Engasser diagnosed left-side cervical, shoulder, and upper back strain and administered an injection to the left shoulder.
On December 14, 2000, the employee was examined at the request of the employer by orthopedist Dr. Peter Daly. In a report on that same date, the doctor diagnosed chronic lumbar degenerative disc disease, with ongoing symptoms, status post L4-5 laminectomy and discectomy, and a left shoulder myofascial strain, without objective abnormalities. Dr. Daly noted that, while the employee carried a diagnosis of cervical degenerative disc disease confirmed by x-ray, he did not believe that the employee had sustained a new injury to his neck in the May 2000 work injury. He felt furthermore that the employee=s left shoulder strain had resolved, and he opined that the employee had been at maximum medical improvement [MMI] as of eight weeks after the May 2000 injury, or approximately July 29, 2000. Dr. Daly agreed that restrictions were appropriate for the employee=s low back condition, but he did not believe that any other restrictions were needed for the shoulder or neck.
The employee continued to experience left shoulder and neck symptoms, however, and Dr. Engasser referred him for a left shoulder MRI. The MRI, performed on April 5, 2001, revealed moderately advanced AC joint arthrosis and moderate inferior hypertrophic changes as well as some mild tendinosis of the supraspinatus. There was no evidence of any rotator cuff tear or glenoid labral pathology, nor was there evidence of any impingement of the subacromial space.
On April 13, 2001, Dr. Engasser noted that the employee was still having quite a bit of pain in his neck, with radiation to his left shoulder and arm, concluding that the employee had Asome local component to the problem and also some radicular component as well.@ Dr. Engasser diagnosed left shoulder and arm pain due to the employee=s injury in May 2000. He indicated that he did not feel that surgery was required for the left shoulder but noted that A[s]ometimes it is difficult to discern shoulder versus neck problems.@ He recommended an MRI scan of the cervical spine, which was performed on April 30, 2001, and was followed by a CT myelogram on June 20, 2001. Dr. Engasser concluded that the tests were consistent with a left paracentral disc protrusion at C5-6, and he recommended a neurosurgical consultation with Dr. Christine Cox.
The employee was seen by Dr. Cox on September 4, 2001, to whom he provided a history of his injury at work in May 2000. Dr. Cox reported in part that,
. . . over the years [the employee] has experienced quite a few injuries cumulatively to the top of his head. He is quite tall (6'5") and in an air-ride seat. This does not allow much clearance of his head from the roof of the cab and anytime he hits a ditch, there is a fair amount of height that he experiences that is not allowed for in the cab and he hits the top of his head relatively frequently.
Based on this history, Dr. Cox stated that the employee=s Aaxial load injury (hitting the top of his head) is classic for disc degeneration centrally in conjunction with neck pain and headache.@ To better identify whether the C5-6 disc was responsible for the employee=s symptoms, Dr. Cox recommended an EMG and cervical discogram.
The employee returned to see Dr. Cox in follow-up on September 28, 2001. The doctor reported that the discography had revealed 9/10 concordant pain at C5-6 for the neck and left shoulder pain. At C4-5 there was nonconcordant pressure. Dr. Cox therefore recommended proceeding with a cervical discectomy and fusion at C5-6. Because Dr. Cox then went on medical leave, the employee=s care was subsequently transferred to Dr. Cox=s partner, Dr. Michael McCue. On December 6, 2001, Dr. McCue performed the discectomy and fusion surgery recommended by Dr. Cox.
On February 18, 2002, the employee was seen in neurosurgical follow-up by nurse practitioner Kristina Tompach, who noted that the employee=s radicular and cervical pain had completely resolved. She recommended that the employee continue physical therapy for six more sessions, remaining off work for three more weeks while completing that therapy. The employee was then to return to Dr. Engasser for evaluation of his left shoulder.
About this time, the employee=s own trucking company, Shiloh Transportation, went out of business. The employee acknowledged at trial that during 2001 he drove twelve to fourteen runs on behalf of Shiloh between Minneapolis and Roseau, Minnesota. He acknowledged that he did not advise the employer that he was performing this activity or that he even owned another trucking company.
The employee returned to see Dr. Engasser on March 8, 2002. He reported improvement following surgery, but he continued to describe problems along the anterior aspect of his shoulder, with clicking and popping in the shoulder. Dr. Engasser noted again that the employee had some degenerative changes, but he concluded again that the employee was not a surgical candidate. He concluded that the employee could do light work restricted to twenty pounds lifting, using his left upper extremity at or above shoulder level only occasionally.
On April 3, 2002, the employee was examined for the employer by orthopedist Dr. William Simonet. In a report dated April 11, 2002, Dr. Simonet diagnosed the employee as having age-appropriate degenerative disc disease in the cervical and lumbar spine and age-appropriate degeneration in his left shoulder. He attributed these conditions to naturally occurring degenerative processes and not to a work injury. Dr. Simonet also did not believe that the employee=s striking his head on the roof of the cab of his truck while driving was a substantial contributing cause of his cervical spine condition. He concluded that, if the employee had sustained any work injuries at all in addition to his 1993 low back injury, the injuries were temporary aggravations of pre-existent conditions. With regard to the employee=s cervical spine, Dr. Simonet concluded the employee had reached MMI by July 28, 2000, had sustained no permanent partial disability, and required no work restrictions. While finding it to have been Amarginally appropriate,@ Dr. Simonet related the employee=s December 2001 cervical spine surgery to naturally occurring degenerative processes and not to any work-related conditions.
In a narrative report to the employee=s attorney dated August 12, 2002, Dr. Engasser related the employee=s need for cervical discectomy and fusion to the employee=s specific incident on May 29, 2000, as well as to the nature of the employee=s work. He agreed with Dr. Cox, that Athe repetitive axial load on the head, especially in such a tall individual,@ contributed to the employee=s degenerative disc disease and resulting herniation. Dr. Engasser restricted the employee from using his left upper extremity above shoulder level more than occasionally. He also restricted the employee from lifting more than ten pounds with his left arm and from lifting more than twenty-five pounds with both arms, and he advised the employee to avoid holding his neck in a position of maximum extension or flexion for long periods of time. He rated the employee=s neck-related permanent partial disability at 11.5% of the whole body.
In a letter to the employee=s attorney dated August 13, 2002, Dr. McCue also related the employee=s need for cervical spine surgery to the injury of May 29, 2000, noting that prior to May 29, 2000, the employee had had no radicular symptoms. He concluded that the employee had reached MMI with regard to the surgery of December 2001, and that, although no assessment had been made, the employee qualified for permanent partial disability. He did not recommend any restrictions related to the employee=s neck.
On November 24, 2002, the employee took a job as a security guard for Twin City Security, working thirty-two to thirty-seven hours a week at $7.00 an hour at North Hennepin Community College. He continued to experience problems in his left shoulder, and on January 24, 2003, Dr. Engasser diagnosed left shoulder rotator cuff tendinitis and strain and administered a subacromial injection. The employee continued in his security guard job until April 11, 2003, when he was evidently laid off for four months.
On July 15, 2003, the employee was examined by shoulder specialist Dr. John Anderson, who diagnosed left shoulder impingement syndrome and recommended an MRI to rule out rotator cuff tearing. The employee underwent the MRI and returned to see Dr. Anderson on July 30, 2003. The MRI was interpreted as showing Aa type II acromion morphology with mild tendonosis in the supraspinatus with no evidence of tearing.@ Dr. Anderson advised the employee that he did not have evidence of a rotator cuff tear but that he might have an inferior labral tear associated with a paralabral cyst. This cyst had not been mentioned in the April 2001 MRI report. Dr. Anderson prescribed either oral or injected anti-inflammatories and, based on the MRI findings, did not recommend surgery.
The employee returned to work at Twin City Security on August 31, 2003, and continued to work for this company through July 3, 2004. During this time period, he continued to experience left shoulder pain that affected his sleep and interfered with his activities of daily life. Left shoulder surgery was planned by Dr. Anderson in September 2004, but about this same time the employee apparently was undergoing assessment of potential coronary artery blockage, and the surgery had to be postponed.
On October 1, 2004, the employee underwent arthroscopy of the left shoulder with what was described as subacromial space decompression, distal clavicle resection, debridement of anterior glenoid labrum tear and chondral wear of the anterior glenoid, and debridement of partial thickness tears in the infraspinatus. He was seen in follow-up at Dr. Anderson=s office on October 12, 2004, when he was reported to be doing quite well. He was advised to continue his strengthening and home exercise programs and was authorized to remain off work until November 1, 2004. The employee subsequently underwent physical therapy at the Institute for Athletic Medicine through November 1, 2004. On that date, the employee reported minimal left shoulder pain or limitation with activities of daily living, and he did not subsequently return. On December 1, 2004, he was discharged from therapy because he did not complete the planned course of treatment and failed to schedule further appointments.
The employee returned to work as a security guard on December 11, 2004. He continued to work at North Hennepin Community College, but his employer was now Per Mar and his hourly wage had increased to $10.50.
In a letter to the employee=s attorney dated February 14, 2006, Dr. Engasser offered the opinion that the employee=s left shoulder surgery performed by Dr. Anderson on October 1, 2004, was related to the work injury of May 29, 2000. It was his opinion that the employee continued to require restrictions related to his left shoulder injury and surgery essentially the same as those recommended in his letter of August 12, 2002. Dr. Engasser believed that all treatment for the employee=s left shoulder provided by Dr. Anderson had been reasonable and necessary and related to the work injury of May 29, 2000. He also rated the employee=s permanent impairment at 5% of the whole body - - 3% related to resection of the distal clavicle and 2% related to a partial thickness rotator cuff tear.
The employee=s claims for benefits came on for a hearing before a compensation judge on February 24, 2006, and the record closed on March 27, 2006, upon the submission of post-trial letter briefs from the parties. Issues presented to the compensation judge for determination included the following: (1) the nature and extent of any work-related injury occurring on May 29, 2000; (2) whether the employee sustained a work-related left shoulder injury on May 29, 2000; (3) whether the employee sustained a work-related neck injury on May 29, 2000; (4) whether the employee sustained a Gillette-type injury to the neck due to his work activity culminating on or about May 29, 2000; (5) whether the employee was temporarily totally disabled from September 28, 2001, to November 15, 2002, from April 11, 2003, to August 15, 2003, from July 9, 2004, to December 10, 2004, or for any period of time therein, due to a work-related left shoulder injury of May 29, 2000, and/or a work-related neck injury of May 29, 2000, and/or a Gillette-type neck injury culminating on or about May 29, 2000; and (6) whether the employee was temporarily partially disabled from November 24, 2002, to April 13, 2003, from August 31, 2003, to July 4, 2004, and from December 11, 2004, to the present and continuing due to a work-related neck or left shoulder injury of May 29, 2000, and/or a Gillette-type neck injury culminating on or about May 29, 2000. Two witnesses testified at hearing - - the employee and Stan Sizen, the employer=s independent vocational expert. Other evidence submitted included the employee=s voluminous treatment and rehabilitation records and deposition testimony and reports from Drs. Peter Daly and William Simonet, the employer=s medical examiners.
In a decision issued May 26, 2006, the compensation judge found that the employee sustained a permanent injury to his left shoulder on May 29, 2000, and that this injury was a substantial contributing factor in the employee=s ongoing disability and need for work restrictions continuing from the date of injury. He found also that the employee did not sustain a work-related neck injury on May 29, 2000, or a Gillette-type injury to his neck culminating on or about May 29, 2000. Consequently, the judge awarded periods of temporary total and temporary partial disability benefits attributable in part to the employee=s left shoulder injury, he denied the employee=s claims for wage loss benefits, permanent partial disability benefits, and payment of medical expenses attributable to the employee=s neck condition, and he awarded permanent partial disability benefits and payment of medical expenses related to the employee=s shoulder condition. The employer appeals, and the employee cross-appeals.
STANDARD OF REVIEW
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. ' 176.4521, subd. 1 (2006). 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, 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Cervical Spine Injury - Causation
The compensation judge determined that the employee did not sustain a work-related neck injury on May 29, 2000, Awhen cranking on a dolly or connector that was stiff and heavy,@ and he determined also that the employee did not sustain a Gillette-type neck injury culminating on or about May 29, 2000, as a result of repetitively hitting his head on the roof of his cab in the course of his employment. In a memorandum accompanying his findings and order, the judge explained that he based his findings on the employee=s medical records and on Dr. Simonet=s deposition testimony. In his cross-appeal, the employee contends that the judge=s findings regarding causation of the employee=s neck condition were based on an erroneous view of the evidence and medical documentation. We agree, and, noting that the judge may also have applied an improper legal standard with regard to Gillette-type injuries, we reverse and remand for reconsideration, based on the existing record, Findings 3, 4, 7, and 11, to the extent that they pertain to work causation of the employee=s neck condition.
In his memorandum, the judge explained that, in his view, the contemporaneous medical records support neither a specific injury on May 29, 2000, nor a Gillette-type injury on about that date. We note first of all that one of the problems in this case is that Dr. Engasser often created multiple chart notes for a single date of service. Dr. Engasser was also the treating doctor for the employee=s 1993 low back injury, and he often prepared separate chart notes for each of the separate injuries. The judge stated in his memorandum that Ait was not until July 28, 2000, that Dr. Engasser even records the employee as having any neck pain, which is described as merely mild flattening of the cervical spine, with a diagnosis of cervical degenerative disc disease.@ The judge=s characterization of Dr. Engasser=s records is not accurate.
In one of three chart notes for the employee=s visit already on June 23, 2000, Dr. Engasser does note neck pain. In his history on that date, Dr. Engasser noted, AThe low back issue has been somewhat secondary to a cervical and left shoulder strain which [the employee] sustained on 05-29-00. . . . . He has been undergoing some treatment for his neck and left shoulder.@ On physical examination, the doctor noted further, AThere is reduced range of motion of the left shoulder and arm as well as some significant trapezius and cervical pain.@ Following his visit to Dr. Engasser on June 23, 2000, the employee was evaluated on July 13, 2000, for physical therapy at NovaCare. Although Dr. Engasser had referred the employee under a diagnosis of left shoulder rotator cuff strain, the physical therapist immediately noted an Aapparent cervical component@ to the employee=s symptoms. And in a status report prepared on July 27, 2000, the therapist later noted that the employee=s left shoulder girdle symptoms were apparently of cervical origin. Moreover, on July 28, 2000, after receiving the physical therapy notes, Dr. Engasser obtained x-rays of the employee=s cervical spine and diagnosed left shoulder cervical strain, left cervical radiculitis, and cervical degenerative disc disease. Although the employee had not reported that he sustained a specific neck injury on May 29, 2000, he had reported symptoms of neck pain within a month of the incident, and he had reported no prior significant history of neck problems or treatment before that date. In a note about a year later, dated April 13, 2001, Dr. Engasser observed that A[o]verall the [employee] still is having quite a bit of pain in his neck with radiation to his left shoulder and arm. He has some local component to the problem and also some radicular component as well.@ The doctor went on to state that A[s]ometimes it is difficult to discern shoulder versus neck problems.@
Because there may have been some confusion caused by Dr. Engasser=s multiple chart notes, and because the employee=s failure to report a specific neck injury may have been due to the overlapping of neck and shoulder symptoms, we conclude that the judge should re-examine the evidence on this issue. On remand, the judge may or may not find again that the employee=s cervical condition is due to age-related degenerative changes and not to a work injury.
We also remand for reconsideration the issue of the employee=s alleged Gillette-type injury. Here, the employee alleged that, over the years, he repeatedly hit his head on the top of his truck cab while working for the employer. It was the cumulative effect of these multiple incidents that the employee alleges also substantially contributed to his neck condition. In his memorandum, the judge commented that Ait is questionable why this employee would subject himself to repetitive injury to his neck for fourteen years, from April of 1987 to May of 2000, without reporting a neck problem to some supervisor, and/or obtaining some medical treatment for his neck condition@ (emphasis in original). We believe that the judge=s statement misapprehends the nature of a Gillette-type injury.
A Gillette-type injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work. Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W.2d 200, 205-06, 21 W.C.D. 105, 112-13 (1960); Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981). A[T]he question of a Gillette injury primarily depends on medical evidence.@ Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). Pursuant to the supreme court=s standard in Steffen, an employee is required to Aprove a causal connection between [his] ordinary work and ensuing disability@ but is not required to document an actual pattern of specific activities leading to specific symptoms in order to demonstrate that causal connection. Id. To require such a showing is held to cast Aan unfair burden@ upon employees attempting to claim benefits based on a Gillette-type injury. Id. This conclusion stands to reason in that, by its very nature, a Gillette-type injury may develop so inconspicuously as to not demand the sort of close attention necessary to identify any clear pattern of association between Aspecific@ activities and Aspecific@ symptoms.
We see no reason for the employee to have reported to his employer, or to have sought medical treatment, for the repeated incidents of bumping his head. No single incident of this nature was sufficiently serious to warrant either. There is no evidence to suggest that the employee knew that repeatedly hitting his head on the top of the cab would be a cause for disc degeneration. While the compensation judge is certainly free to accept Dr. Simonet=s opinion that such episodes are not a contributing cause to the employee=s neck condition, the basis for rejecting the claim should not be the employee=s having failed to report the episodes of minute trauma that ultimately, and cumulatively, may have contributed to his disability. Here, it was not until Dr. Cox related the employee=s neck condition to his work activity that the employee had any reason to report such an injury. As part of this remand, should the judge find causation for the employee=s neck condition, the judge should also reconsider the employee=s claims for wage loss benefits, permanent partial disability benefits, and payment of medical expenses related to the neck.
2. Left Shoulder Injury
The compensation judge found that the employee did sustain a work-related left shoulder injury on May 29, 2000, while cranking on the dolly of his trailer in the course of his work for the employer. The employer contends that the employee=s testimony regarding a left shoulder injury lacks credibility and is unsupported by the contemporaneous medical records. Specifically, the employer argues that the employee is right hand dominant and almost always cranked dollies with his right hand, noting that the employee even testified that he could not remember which arm he used to crank on the dolly on May 29, 2000. Additionally, the employer argues, the employee did not tell Dr. Engasser on June 9, 2000, that he injured his shoulder cranking on a dolly but in fact told the doctor that he injured his back unhooking a trailer. Moreover, the employer argues, the employee told Dr. Simonet that he could not recall a specific work incident leading to his shoulder pain, and he made an identical claim for the same injury on the same date against Shiloh Transportation and Zurich. Given the employee=s poor memory of the events on May 29, 2000, and the fact that he did not report a shoulder injury when he first treated with Dr. Engasser, the employer asserts, it is far more likely that the employee used his right hand to crank the dolly and that he did not injure his left shoulder in the process. We are not persuaded.
Whether the employee sustained an injury to his left shoulder as claimed is essentially an issue of credibility. AAssessment of witness credibility is the unique function of the factfinder,@ Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988), and a finding based on the credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary, Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989). The judge certainly could have adopted the position of the employer, but he was not compelled to do so.
After acknowledging the employer=s arguments on causation in his memorandum, the judge stated as follows:
However, this Compensation Judge observed the employee during the course of his testimony, and found him to be a credible witness with respect to his claim that he actually sustained a work-related left shoulder injury on May 29, 2000. Although he could not say that he used his left arm to crank the dolly or connector on May 29, 2000, he did say that when cranking the dolly or connector it was stiff and heavy, requiring him to exert force, and that he felt pain in his left shoulder. Moreover, the employee=s testimony that he sustained a left shoulder injury is supported by the contemporaneous medical records. It is noted that when the employee first sought medical treatment on June 9, 2000, less than 2 weeks after May 29, 2000, he gave a medical history to Dr. Mark Engasser of experiencing increased low back pain and left shoulder pain due to unhooking a trailer. In the medical record of June 9, 2000, the employee=s physical examination showed reduced range of motion of the left shoulder. Further, when the employee saw Dr. Engasser on June 23, 2000, the employee again gave Dr. Engasser a medical history of injuring his left shoulder while cranking a trailer. In the medical record of June 23, 2000, the employee=s examination revealed no evidence of swelling of the left shoulder, but pain with abduction of the left shoulder, as well as weakness with abduction and external rotation of the left shoulder. Further, in the medical record of June 23, 2000, Dr. Engasser diagnosed the employee as having a left shoulder rotator cuff strain, based on the employee=s medical history of injuring his left shoulder while cranking a trailer at work. Therefore, the contemporaneous medical records support the employee=s testimony that he sustained a work-related left shoulder injury on May 29, 2000.
Further, the employee noted that prior to May 29, 2000, he had no significant history of left shoulder problems, and no significant medical treatment for left shoulder problems. In addition, the employee noted that he started working for the self-insured employer on April 20, 1987, full-time as a truck driver, and had an approximately thirty year work history, prior to May 29, 2000.
Accordingly, based on the preponderance of the evidence, it is determined that the employee did sustain a work-related left shoulder injury on May 29, 2000, when cranking a dolly or connector which was stiff and heavy, while employed as a truck driver for the employer.
The judge=s memorandum more than adequately explains the basis for his finding on causation, and it is amply supported by the record. Therefore, the judge=s finding that the employee sustained a work-related left shoulder injury on May 29, 2000, is affirmed.
The employer next contends that, even if the employee sustained a left shoulder injury on May 29, 2000, any left shoulder injury was temporary in nature and resolved by July 29, 2000. The employer contends that, while the evidence of record may support the existence of a myofascial strain to the left shoulder as a result of the May 2000 injury, no evidence was presented that the employee suffered any structural shoulder damage. Supported by the testimony of Dr. Peter Daly, the employer contends that the employee=s left shoulder symptoms after July 29, 2000, were essentially related to his pre-existing acromioclavicular joint degenerative disease and that that disease was neither substantially accelerated nor permanently aggravated by the employee=s injury. The employer notes that Dr. Daly testified that the employee=s left shoulder injury was merely a strain, that the employee did not experience any direct trauma to it, that he did not fall on it, and that there was no severe mechanism of injury described in May of 2000. Moreover, the employer argues, Dr. Daly testified that, because the employee=s MRI scan in April of 2001 had revealed no rotator cuff tearing and no tearing or damage to the labrum, both of which were subsequently noted at the time of surgery in 2004, the tears evident in 2004 were new findings completely unrelated to any work exposure in 2000. We are not persuaded.
In his memorandum, the compensation judge addressed the employer=s arguments and drew different conclusions from the evidence. The judge noted that his determination was based in substantial part on two factors: first, his inference from the medical records that, after the work-related left shoulder injury, the employee=s symptoms did not resolve but were ongoing and persistent; and, second, his acceptance of the expert opinions of Dr. Engasser over those of Dr. Daly. As we have stated on many occasions, it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). In his narrative report of February 14, 2006, Dr. Engasser, who had regularly treated the employee since 1993, stated that the employee=s left shoulder problem and left shoulder surgery performed on October 1, 2004, were causally related to the employee=s work-related injury of May 29, 2000. The judge accepted this opinion. The judge also accepted Dr. Engasser=s opinion that the employee required restrictions related to his left shoulder injury and that the employee=s left shoulder injury was a substantial contributing factor to the employee=s disability after May 29, 2000. The employer=s only challenges to Dr. Engasser=s opinion are that he primarily treated the employee for his low back injury and not his shoulder injury and that Dr. Engasser did not perform the employee=s shoulder surgery. These facts do not preclude the judge from relying upon Dr. Engasser=s opinions. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). We therefore affirm the compensation judge=s finding that the employee=s work-related left shoulder injury of May 29, 2000, was a permanent injury, not a temporary one, and we affirm also the judge=s finding that the employee=s left shoulder injury was a substantial contributing factor in the employee=s ongoing disability and need for work restrictions from the date of injury to the present and continuing.
3. Temporary Total Disability
At Finding 11, the judge found that the employee was temporarily totally disabled from September 28, 2001, to November 15, 2002, except for the period of December 6, 2001, to March 6, 2002, when he was recuperating from the nonwork-related neck surgery, from April 11, 2003, to August 15, 2003, and from July 9, 2004, to December 10, 2004. In his memorandum, the judge explained that the employee=s work restrictions, as determined by Dr. Engasser, are significant and preclude the employee from returning to work as an over-the-road truck driver on a sustained gainful employment basis. He concluded that, Aeven though the employee=s job search was limited,@ the employee was able to find job positions and return to work during the periods from November 24, 2002, to April 13, 2003, from August 31, 2003, to July 4, 2004, and from December 11, 2004, to the present and continuing. The judge noted also that no rehabilitation assistance was provided to the employee during the claimed periods of temporary total disability. Therefore, for these reasons, and in spite of Mr. Sizen=s testimony that the employee did not conduct a diligent search for employment, the judge awarded the benefits claimed. The employer argues that, even if the employee did sustain a permanent injury that restricts his left shoulder, and even though rehabilitation assistance was not provided, the employee was still required to prove that he conducted a diligent job search during the period of his claim, which they contend he did not do. We agree and reverse, in part, the judge=s award of temporary total disability benefits.
As a general rule, an employee who has been released to return to work must prove total disability by showing that work within his restrictions is not available. That there is no work available within the employee=s capabilities is demonstrated by a reasonable and diligent job search. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). Here the employee acknowledged that, except for periods when he was recovering from his surgeries, he understood himself to be released to return to work within restrictions. The compensation judge was evidently influenced by the lack of rehabilitation assistance provided to the employee, but the lack of such assistance does not relieve the employee from the responsibility of making a reasonable effort to find employment on his own. See Peters v. Egan & Sons, 54 W.C.D. 262, 275 (W.C.C.A. 1996); Mattson v. State, Dep=t of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992). Moreover, a job search, to be persuasive of the fact that no work is available for the employee, must be more than perfunctory. Redgate, at 743, 40 W.C.D. at 956. The compensation judge in this case reasonably concluded that the employee=s work restrictions were significant and that he was precluded from returning to work as an over-the-road truck driver. He made no analysis, however, of the employee=s work search, other than to conclude that it Awas limited.@ Nor does the employee=s responsive brief argue much more than that Athe compensation judge found that [the employee] was credible with regard to his job search efforts.@
In this case, evidence as to the employee=s job search is limited to the employee=s testimony, the testimony of the employer=s vocational expert Mr. Sizen, and the vocational records of QRC Larry Mansfield. The employee testified that after he was released to return to work he did his best to find a job. He felt that he could not return to truck driving and so directed his job search toward Adispatching, sales, or, you know, willing to be trained type of deal.@ The employee did not testify about the methods that he used to search for job openings, and he offered no testimony relative to the amount of time that he spent in this effort. The only hard evidence of record regarding the employee=s job search over the course of the entire three-year period from September 28, 2001, to December 10, 2004, was the employee=s written job logs for the very limited, two-month period from June 18, 2002, to August 16, 2002. Those logs were offered as part of QRC Mansfield=s records, and the employee offered no testimony in explanation of them. During the two-month period that they span, the employee simply placed five Acold calls@ each day, primarily in search of Asales training@ positions. There is no indication that the employee=s calls were placed in response to any advertisement, and on most occasions the employee=s contact was with the company receptionist. Nor do the records reflect that the employee submitted any applications or resumes, attended any interviews, or, in fact, had any in-person contacts with any prospective employer. Other than this rather pro forma completion of job logs for a period of two months, the employee essentially offered no evidence concerning his job search during the entire period in question.
While the determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve, we cannot conclude that the judge=s findings in this regard are supported by substantial evidence in the record. We therefore reverse the judge=s award for the periods March 6, 2002, to November 15, 2002, April 11, 2003, to August 15, 2003, and July 9, 2004, to October 1, 2004. Between September 28, 2001, and December 6, 2001, when the employee underwent his cervical fusion, the employee had just completed an EMG and cervical discogram and was awaiting the scheduling of the cervical discectomy and fusion recommended by Dr. Cox. In an office note of October 22, 2001, Dr. Engasser indicated that the employee was disabled Abecause of his neck and left upper extremity problem for which he is undergoing surgery.@ Because we have already affirmed the judge=s determination that the employee=s left shoulder injury is a substantial contributing factor in the employee=s need for work restrictions since the date of injury, we affirm the judge=s award of compensation during this period when the employee was disabled due to several causes. We also affirm the judge=s award for the period of October 1, 2004, the date of the employee=s left shoulder surgery, to December 10, 2004, the date when the employee found employment with Per Mar.
4. Temporary Partial Disability
The compensation judge awarded the employee temporary partial disability benefits from November 24, 2002, to April 13, 2003, from August 31, 2003, to July 4, 2004, and from December 11, 2004, to the date of the hearing. During these time periods, the employee worked as a security guard for Twin City Security and Per Mar. The employer contends, supported by the testimony of vocational expert Stan Sizen, that the employee has voluntarily been working at reduced earnings and that his wages as a security guard do not accurately represent his earning capacity. The employer asserts that the employee is capable of working as a truck driver without wage loss, as evidenced by Dr. Engasser=s restrictions of February 14, 2006, and the employee=s own activity of driving truck for Shiloh Transportation in 2000 and 2001. Mr. Sizen=s opinion that the employee=s wage loss is unrelated to the claimed work injury, it asserts, was unrebutted by the employee and should have been binding on the judge. We are not persuaded.
To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to that disability, and an actual loss of earning capacity that is causally related to the disability. See Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A. J. Chromy Constr. Co , 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). Determination of an employee=s earning capacity is a question of ultimate fact for the compensation judge. Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989). An employee=s actual post-injury wage creates a presumption of that employee=s earning capacity, but the presumption may be rebutted by evidence of the employee=s ability to earn an amount different from that actual post-injury wage. Id. at 557-58.
Here, the judge obviously rejected Mr. Sizen=s opinion that the employee could return to work as a truck driver without wage loss. It is evident that Mr. Sizen misconstrued Dr. Engasser=s restrictions following his report of February 14, 2006. Mr. Sizen acknowledged that, prior to that recent report, the employee=s FCE in 2000 and Dr. Engasser=s records had precluded the employee from returning to work as a truck driver. The judge=s memorandum suggests that he viewed Dr. Engasser=s restrictions in 2006 to be at least as restrictive as those previously recorded, if not more so. As such, it was reasonable for the judge to conclude that the employee remained precluded from returning to work as a truck driver and to reject Mr. Sizen=s testimony that the employee was voluntarily underemployed. Contrary to the employer=s assertion, the judge was not required to accept Mr. Sizen=s testimony merely because of his status as an expert witness. Cf. Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974) (although unopposed expert medical testimony may not be disregarded, such testimony is not conclusive upon the trier of fact).
The compensation judge obviously placed great weight on the fact that the employee had not been provided with rehabilitation assistance, and he considered the employee=s security guard jobs to presumptively represent his earning capacity. While it remains true that an employee=s entitlement to temporary partial disability benefits might Agenerally@ be established by a diligent job search, we have also explained that a reasonable and diligent job search is Anot a legal prerequisite to an award of temporary partial disability benefits.@ Nolan v. Sidal Realty Co., 53 W.C.D. 388, 394 (W.C.C.A. 1995) (emphasis added). Instead of being a requirement, evidence as to the extent of the employee=s job search is merely Aevidence which the compensation judge may consider in determining whether the employee=s wage loss is causally related to the work injury.@ Id., citing Johnson v. Axel Ohman, 48 W.C.D. 198 (W.C.C.A. 1992) (emphasis added).
We also note that Mr. Sizen himself found that a job as a security guard was an appropriate job for this employee. Although the employee did testify that he continued to drive truck for Shiloh Transportation after his work injury, the judge could reasonably have accepted the employee=s explanation that he was merely trying to save his business from bankruptcy. Nor does the fact that the employee drove his truck mean that the activity was within his formal physical limitations.
In light of this employee=s significant limitations, his inability to return to a career that he held for almost thirty-years, and the employer=s failure to provide rehabilitation assistance, substantial evidence supports the compensation judge=s award of temporary partial disability benefits, and we affirm.
5. Permanent Partial Disability / Medical Expenses
Having affirmed the judge=s finding of an ongoing permanent injury to the employee=s left shoulder, we also affirm Findings 13 and 14 and Orders 3 and 4, regarding permanent partial disability and medical expenses related to the left shoulder injury.
 At trial, the employee testified that it was his understanding that his policy of insurance with Zurich was a disability policy, not a workers= compensation policy, that it was his intent to file a claim only for regular disability benefits under his Zurich policy, not for workers= compensation benefits.
 Dr. Daly subsequently examined the employee also on June 9, 2004, and July 20, 2005, when he essentially reiterated conclusions that he reached in December 2000.
 In addition to his work for Shiloh Transportation, the employee evidently also worked for Jericho Trucking in a light duty capacity during a portion of 2001.
 Dr. Simonet subsequently examined the employee also on May 26, 2004, and July 25, 2005, on which dates he essentially confirmed conclusions that he had reached in April 2002.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).