RICHARD D. CHRISTENSEN, Employee/Cross-Appellant, v. MORRISON WELL CO., INC., and AUTO-OWNERS INS., Employer-Insurer/Appellants, and MAYO CLINIC, MINNESOTA DEP’T OF HUMAN SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 11, 2009
WAGES - CALCULATION. Where the employee was paid on an hourly basis and had worked for 16 days before he was injured, it was not error for the compensation judge to use the employee’s actual earnings in determining the weekly wage on date of injury.
PERMANENT PARTIAL DISABILITY - HAND. Substantial evidence supports the compensation judge’s determination that permanent partial disability for loss of function to the hand was best determined by applying the schedule for amputation of the ring and little fingers.
PERMANENT PARTIAL DISABILTY - DEPRESSION. Substantial evidence supports the compensation judge’s finding that the employee was entitled to an award of permanent partial disability for depression that had been caused by the work injury.
PERMANENT PARTIAL DISABILITY - WEBER. Substantial evidence supports the compensation judge’s determination that a Weber rating was appropriate for the employee’s loss of function due to a circulatory disorder [Raynaud’s phenomenon] in his hand.
PERMANENT PARTIAL DISABILITY - BRAIN. Substantial evidence supports the compensation judge’s determination that the employee failed to establish permanent partial disability to the brain from an alleged hypoxic injury resulting in cognitive dysfunction.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee was permanently totally disabled where the employee’s disability from his work injury, in combination with his education, work history, and cognitive ability precluded the employee from gainful employment.
MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s conclusion that the employee’s surgery was reasonable and necessary.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gary P. Mesna
Attorneys: Donaldson V. Lawhead and Brandon V. Lawhead, Lawhead Law Offices, Austin, MN, for the Cross-Appellant. Karen R. Swanton, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from findings made by the compensation judge with respect to the employee’s work injury of April 11, 2005, including a determination of permanent total disability, awards of permanent partial disability for various conditions, and a finding that surgery in January 2008 was reasonable and necessary. The employee has cross-appealed the compensation judge’s determination of the weekly wage on the date of injury, his denial of the employee’s claim for permanent partial disability for cognitive dysfunction due to a hypoxic brain injury, and his finding as to the extent of permanent partial disability of the left hand. We affirm.
Richard Christensen, the employee, sustained an injury on April 11, 2005, while working for Morrison Well Company. His left hand was caught and crushed in well drilling equipment.
After receiving emergency medical care, the employee was transferred to Mayo Clinic and hospitalized at St. Mary’s Hospital, where he came under the care of Dr. David Dennison, an orthopedist specializing in hand care. The employee’s little finger had been partially amputated in the accident and the purpose of the surgery on April 11 was to complete the amputation at the proximal phalanx and to attempt to return circulation to the ring finger. Attempts to save the ring finger were unsuccessful and it was amputated at the proximal phalanx about a week later.
The employee has continued to treat with Dr. Dennison since that time and has had additional surgeries. Dr. Dennison did extensive surgery in November of 2005 when he revised scar contractures, revised the amputations, and performed neurectomies. In November of 2006, the employee had surgery for a neuroma on the ulnar nerve in the left hand. On January 15, 2008, Dr. Dennison performed a neuroma excision, Z-plasty, and revisions of the little finger amputation.
The employee also received follow up care at Albert Lea Medical Center, primarily from Dr. Gary Lamson, a family physician. The employee was assessed with depression on April 27, 2005, and was treated with medication. The employee was also referred for psychological counseling and saw Dr. Kathleen Laurin in August 2005. The employee was also seen by Dr. Lamson for spasms and discoloration in the ulnar aspect of his hand. Dr. Lamson concluded the employee had Raynaud’s phenomenon and treated the employee with medication.
The employee has not returned to work since his injury. The employer and its insurer, Auto-Owners Insurance, paid the employee 104 weeks of temporary total disability benefits. The employee has also received rehabilitation assistance from QRC John Peterson. The employee was released to return to work with restrictions by Dr. Dennison in July 2007, but was taken off work again prior to the January 2008 surgery. The employee had not been released to return to work as of the date of the hearing.
The employee filed his initial claim petition in July 2006; it was followed by a number of amendments. The employee’s claims were heard by Compensation Judge Gary P. Mesna on April 25 and August 8, 2008. A number of issues were presented to the compensation judge, including weekly wage on the date of injury, whether certain conditions were related to the work injury and the permanent partial disability from those conditions, whether the employee was permanently totally disabled, and whether the surgery performed in January 2008 was reasonable and necessary. The compensation judge made findings on all of these issues and all of his findings were appealed by the employer and insurer or cross-appealed by the employee.
1. Weekly Wage
The employee was hired by Dennis Morrison, one of two owners of Morrison Well Company, and he began working on March 16, 2005. The payroll records show that the employee was paid $10.00 an hour with an overtime rate of $15.00 an hour. In the 16 days he worked before the injury, the employee earned $1,592.50, resulting in a daily wage of $99.53. The compensation judge multiplied that amount by 5 to arrive at a weekly wage of $497.65 on the date of injury. Since temporary total disability benefits had been paid on the basis of a weekly wage of $525.00, the compensation judge found an overpayment of benefits and awarded a credit to the employer and insurer. The employee has cross-appealed this issue.
The employee argued at the hearing and argues again on appeal that his weekly wage should be based on his “probable future earning capacity” and not his actual “slow season” earnings. The employee claims that he was promised full-time year-round employment by Mr. Morrison and was told that in the summer he would be working significant overtime. Because of this anticipated future employment and the income which would follow, the employee contends that the work injury of April 11 should have been considered to have been at the beginning of his employment and the wages he had earned to that point are therefore not truly reflective of his actual earning capacity. At the hearing, the QRC provided information he had obtained from a website maintained by the State of Minnesota purporting to show a median hourly wage of $20.38 for well drillers in Minnesota. According to the employee, these figures should have been used in computing his wage and would have resulted in a weekly wage of $1,155.95. The employee claims his wage loss benefits should have been based on this wage.
The employee argues this approach is required by this court’s decision in Wright v. Robert Flemal d/b/a Robo Roofing, 48 W.C.D. 551 (W.C.C.A. 1993). In Wright, the employee was working as a roofer when he was injured. He had been on the job only a few hours, was to be paid on a piecework basis, and had never worked as a roofer before. The court affirmed the compensation judge’s use of testimony from a QRC as to the wage of a beginning non-union roofer in setting the employee’s weekly wage.
There is no language in Wright to suggest that the court’s holding or the compensation judge’s decision was based on the employee’s anticipated future earning potential as a roofer. Testimony from the QRC was used to determine the weekly wage because of the practical difficulty of determining a wage for an employee who had not yet earned anything when he was hurt. Those unique facts do not exist in the present case and Wright does not provide authority for ignoring the employee’s actual wages at Morrison Well Company.
Even if we were to accept Wright as authority for the present case, the evidence does not support use of the QRC’s information because the employee was not a well driller. Mr. Morrison testified that the employee was hired to be a helper and that he did not have the knowledge or experience to be a well driller. The employee’s duties were to assist the employer’s only full-time year-round well driller. Accordingly, there is no basis for concluding that the employee was capable of an hourly wage of $20.38 working for Morrison Well Company. Further, there was no evidence that any employee at Morrison earned anything close to this hourly wage. The median wage of well drillers in Minnesota is not relevant to the employee’s claim and the compensation judge properly refused to base the employee’s weekly wage on the suggested figures.
Finally, the employee argues that, in any event, his wage should be adjusted so that he is compensated for his lunch breaks. The employer’s bookkeeper, Linda Bakken, testified that employees were not paid for a half hour of the time on the job each day, reflecting an unpaid half hour lunch break. The employee testified that he was not able to take those breaks because of the demands of the work and that as a result he should be compensated for the half hour he was docked for the break each day. His testimony, however, was contradicted by Ms. Bakken who stated that when she was preparing the payroll and had asked the employee specifically about lunch breaks, he had told her that he took a half hour lunch everyday. The compensation judge clearly accepted the testimony of Ms. Bakken over that of the employee.
The employee has also cross-appealed the compensation judge’s determination that the employer and insurer are entitled to a credit for the overpayment of temporary total disability benefits because of the use of a higher wage than that found by the compensation judge. The cross-appeal on overpayment was based solely on the employee’s position that a higher weekly wage was appropriate and we need not consider this issue further.
2. Permanent Partial Disability - Left Hand
Dr. Jeffrey Husband, an orthopedic examiner for the employer and insurer, concluded that the employee’s permanent partial disability for loss of use of the hand was to be rated under Minn. R. 5223.0540. In his opinion, the employee was entitled to 5.5% for amputation of the ring finger under subp. 1.N.(1), and 5.5% for amputation of the little finger under subp. 1. O.(1). The employer and insurer paid the permanent partial rated by Dr. Husband. At the hearing, the employee claimed he should have been paid 25% of the whole body for the loss of function of his hand, relying on a Weber rating provided by Dr. Dennison. The compensation judge accepted the conclusions of Dr. Husband on this issue and the employee has cross-appealed his determination.
The employee argues that the evidence clearly demonstrated a loss of function to the left hand greater than that provided by the rules for amputation of two fingers. The employee contends that the scheduled rating does not compensate him for his loss of grip strength and for the nerve pain in his hand. According to the employee, the compensation judge erred in disregarding Dr. Dennison’s Weber rating and in stating that permanent partial disability of the hand must be rated under Minn. R. 5223.0480, subp. 4. The employee argues that this section applies only to loss of range of motion and is not applicable to the present case and that, as a result, a Weber rating must be utilized to adequately compensate the employee for his loss of function. We disagree.
A Weber rating is used only when the employee’s condition is not covered by the disability schedule. It is not used to supplement the rating for a condition which is covered because the rating from the schedule is felt to be inadequate. Clasen v. Pro Floor Inc., No. WC07-242 (W.C.C.A. March, 25, 2008). In the present case, Dr. Husband concluded that the employee’s impairment was covered in the schedule by rule 5223.0540. While that section does not use the phrase “loss of function,” the section clearly intends to provide an assessment of the impairment which results from the loss of two fingers. With respect to the loss of grip strength mentioned by the employee, Dr. Husband testified that “I expect his grip strength to be diminished, part of his decreased grip strength is due to the fact that he has lost two digits.” Dr. Robert Wengler, who evaluated the employee at the request of his attorney, agreed with Dr. Husband’s assessment of permanent partial disability. Dr. Wengler also stated that the employee’s loss of function should be rated under rule 5223.0540 and concluded that Dr. Husband’s rating was correct. There is no basis for the application of Weber to this claim.
Determination of permanent partial disability is a question of fact to be determined by the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987); Gluba v. Bitzan-Ohren Masonry, 64 W.C.D. 42 (W.C.C.A. 2003). We find substantial evidence in support of the compensation judge’s decision on this issue.
3. Permanent Partial Disability - Depression
The nurse at the Albert Lea Medical Center who saw the employee on April 27, 2005, for a dressing change, assessed the employee as having situational depression related to his work injury and placed him on antidepressant medication. The employee was continued on medications and saw Dr. Kathleen Laurin for therapy on August 31, 2005. The employee saw Dr. Laurin on seven occasions, last seeing her in the spring of 2006 just before she left the Austin Medical Center. He did not have additional therapy until he saw Dr. Craig Helbok in October 2006. He saw Dr. Helbok twice. The employee has been continued on antidepressant medication since April 2005.
Health care providers who have considered the question have all agreed that the employee has depression and that his work injury is a substantial contributing factor in that diagnosis. The issue is whether the employee is entitled to permanent partial disability for his depression. In her report of May 31, 2006, Dr. Laurin concluded the employee has a whole body disability of 20%, referring to Minn. R. 5223.0360, subp. 7.D.(2). The compensation judge adopted Dr. Laurin’s opinion and the employer and insurer appeal.
The employer and insurer argue on appeal that it is premature to rate the employee as having any permanent partial disability for depression because he has not been determined to be at maximum medical improvement [MMI] from his work injury. In response, we would agree with the employee that this defense is raised for the first time on appeal and was not considered by the compensation judge. As a result, this court will not consider this defense in depth. Malinoski v. North American Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989); Myers v. Minnesota Vikings Football Club, 67 W.C.D. 389 (W.C.C.A. 2007). We reject the argument that, although MMI was not mentioned at the hearing, it was somehow an implied issue.
We note, however, that the position of the employer and insurer is not supported by the statute. Minn. Stats. § 176.021, subd. 3a, and 176.101, subd. 2a, require permanent partial disability to be paid after temporary total disability ceases. There is no statutory language requiring that MMI be reached before permanent partial disability is paid.
The employer and insurer also argue that an award of permanent partial disability for the employee’s depression is premature because either, with different medication or through additional therapy, there would be substantial improvement in the employee’s condition so as either to reduce or eliminate any permanent partial disability. The employer and insurer cite to the opinions of Dr. Thomas Gratzer.
Dr. Gratzer, a board-certified psychiatrist, evaluated the employee on behalf of the employer and insurer on October 3, 2006, prepared a report of that date, and provided deposition testimony for the hearing. Dr. Gratzer diagnosed the employee as having “major depressive disorder, recurrent, moderate with anxiety” and he concluded this condition was related to the April 2005 work injury. It was his opinion, however, that the employee’s condition was “highly treatable” and that if the employee were taken off Cymbalta and placed back on his initial medication, Lexapro, “his major depression will resolve.”
In his memorandum, the compensation judge noted that he was rejecting Dr. Gratzer’s opinion that the employee’s depression was not a permanent condition. The compensation judge found Dr. Gratzer’s opinion that switching the employee to Lexapro would improve his condition to be speculative. “And even if the employee improves somewhat, it is doubtful that the emotional condition would entirely resolve, considering the seriousness of the injury, the on-going pain, the difficulty the employee has had adapting, the low cognitive level, and the inability to work. It has been almost 3 ½ years since the work injury.”
The employee was evaluated by a psychologist, Dr. Norman Cohen, at the request of the employee’s attorney, on May 10, 2007. In his report and in his deposition, Dr. Cohen set out his disagreement with Dr. Gratzer’s conclusion. Dr. Cohen diagnosed “major depression and post traumatic stress disorder.” It was his opinion that the condition would not resolve and that the employee was entitled to a rating of permanent partial disability for his psychological impairment. The compensation judge stated he was persuaded by Dr. Cohen’s opinion and by the opinion of Dr. Laurin as to the extent of that impairment.
The compensation judge awarded the employee 20% permanent partial disability for his depression utilizing Minn. R. 5223.0360, subp. 7.D.(2) as rated by Dr. Laurin. The employer and insurer argue that the compensation judge erred as a matter of law in making this award.
The employer and insurer contend that the rule is limited by its plain language to those cases involving organic brain injury and since no such injury exists here, use of the rule is inappropriate. The employer and insurer also suggest that permanent partial disability for depression is not awardable citing to Berkow v. Polaris Industries, slip op. (W.C.C.A. Jan. 29, 1999).
In Makowsky v. St. Mary’s Med. Ctr., 62 W.C.D. 409 (W.C.C.A. 2002), this court made clear that an employee is entitled to a rating of permanent partial disability under Weber for an impairment due to depression. In arriving at that rating, the compensation judge is to use the most similar description of the condition found in the permanency rules. In Norman v. Diamond Risk Corp., No. WC04-280 (W.C.C.A. Feb. 25, 2005), this court stated that rule 5223.0360, subp. 7, was the section of the rules that would be used in arriving at a rating of permanent partial disability for depression.
Although the compensation judge did not specifically state that he was awarding permanent partial disability for depression under section 5223.0360, subp. 7.D.(2), because it was the most similar provision in the rules as part of a Weber rating, we conclude that remand for clarification on this point is not necessary. The compensation judge’s award is affirmed.
4. Permanent Partial Disability - Raynaud’s Phenomenon
Beginning with his appointment at Albert Lea Medical Center on July 20, 2005, the employee complained of purplish discoloration and pain in his left hand. Discoloration and coolness to touch were noted on examination at that time. When medication was not successful in resolving the symptoms, Dr. Lamson recommended an arterial doppler study. The procedure, which was done on October 7, 2005, showed “mild to moderate atherosclerotic vascular disease in the left axillary artery brachial and ulnar arteries with less than 50% diameter reduction.” Dr. Lamson placed the employee on Norvasc. The employee has been on medication for this condition since that time.
Dr. Husband, on behalf of the employer and insurer, concluded that the employee likely had Raynaud’s phenomenon related to his work injury of April 2005. Dr. Husband stated in his report that “this type of injury can alter the regulation of blood flow to the hand. With cold exposure, such injuries may have vasoconstriction leading to impaired blood flow.” It was Dr. Husband’s conclusion, however, that he was not able to provide a rating of permanent partial disability for this condition because an appropriate vascular study would need to be done.
Dr. Lamson, in his report of March 11, 2008, stated “I have been providing regular care for Mr. Christensen since his April 11, 2005 injury to his left upper extremity. I believe Mr. Christensen has Raynaud’s phenomena as a result of that accident in that he continues to have problems with his left hand turning blue and becoming painful with exposure to cooler temperatures such as simply pulling a bottle of soft drink out of a cooler.” He assessed permanent partial disability for this condition under Minn. R. 5223.0580, subp. 5, for a rating of 20%. Dr. Dennison, in his deposition, stated that this rating was reasonable. Dr. Dennison also agreed that the employee has “an element of vasospasm or some abnormalities in circulation of the hand. I think it would be considered similar to Raynaud’s, but whether or not it has all the exact characteristics of it is not clear to me.”
The compensation judge accepted the opinion of Dr. Dennison. In his memorandum on this issue, the compensation judge stated, “the functional impairment to the employee’s hand is the same whether it is called Raynaud’s or something similar. He still has impaired circulation in the hand causing discoloration and pain, regardless of what it is called.” The compensation judge awarded permanent partial disability of 20% under Weber and referred to section 5223.0580, subp. 5.C., as the closest category in the schedule. The employer and insurer have appealed this determination.
The employer and insurer argue that Dr. Dennison’s opinion was vague and not delivered with the requisite degree of medical certainty. They urge acceptance of Dr. Husband’s opinion that further testing is necessary before permanent partial disability can be rated for the employee’s condition.
Dr. Dennison’s hesitancy in rating the employee’s Raynaud’s phenomenon was apparently due to the structure of section 5223.0580, subp. 5, which establishes a rating for permanent partial disability based on the ambient temperature at which this phenomenon occurs. Different ratings result if the symptoms occur at 32, 39, 50, or 68 degrees Fahrenheit. There are no tests in the medical records which document the precise temperature when the employee’s symptoms occur. However, the records have numerous references to various healthcare providers observing the employee’s symptoms in different conditions. Dr. Lamson, the employee’s treating doctor, who saw the employee on numerous occasions, concluded that the most appropriate category in the schedule was under subp. 5.C., which provides “symptoms occur when exposed to an ambient temperature of less than 50 degrees.” His opinion provides substantial evidence for the compensation judge’s determination on this point.
5. Permanent Partial Disability - Hypoxic Brain Injury
The employee claimed 40% permanent partial disability for cognitive dysfunction under Minn. R. 5223.0360, subp. 7.C.(3). The employee alleged that an overdose of narcotic pain medication led to an incident at St. Mary’s Hospital on April 12, 2005, in which he stopped breathing. The cessation of breathing led to oxygen deprivation, resulting in a hypoxic brain injury. The hypoxia caused impairment in cognitive ability reflected in neuropsychological testing. Support for the employee’s claim was provided by Dr. Cohen.
The compensation judge denied the employee’s claim, concluding that the employee failed to establish that he had a permanent brain injury from the April 12 incident. The employee has cross-appealed this issue.
The incident to which the employee refers is noted in the Mayo Clinic records which indicate that while the employee was at St. Mary’s on April 12, he was found to be non-responsive at 8:10 A.M. and in need of intubation for assisted ventilation. The most contemporaneous record appears to be a CPR emergency team report prepared on April 12. The report indicates the employee was not conscious but was not “pulseless.” The employee argues that he was not observed between 7:10 A.M. when he received medication and 8:10 A.M. when he was discovered to be unconscious. The implication was that he was not breathing for a significant period of time causing a loss of oxygen to the brain. There is no evidence, however, to support an assertion that he was not observed for this period of time and Dr. Dennison in his deposition specifically disagreed with this statement.
Follow up care on April 12 was provided by Dr. Daniel Brown, identified as being in critical care medicine. Dr. Brown stated in his history that the employee was found on rounds to be “unresponsive and apneic.” In the discharge summary of April 16 prepared by Dr. Dennison, it is reported “the patient did have an episode of respiratory distress and near apnea. This was recognized immediately and he was resuscitated without difficulty.”
At the hearing, the employee’s spouse testified to drastic changes in the employee’s demeanor before and after the incident. When she visited him on the evening of April 11, he was alert and responsive. She received a telephone call from Dr. Dennison on the morning of April 12 describing the incident and telling her it was not known yet if the employee had sustained any brain damage. When she saw the employee next, he was lethargic and unresponsive. According to Mrs. Christensen, the employee has never returned to his pre-injury level of mental functioning. While the employee points to this “before and after” testimony as evidence of his claimed hypoxic injury, the question for the compensation judge and for this court is whether there is a preponderance of medical evidence which would support the claim.
The Mayo Clinic records refer to the April 12 incident as hypoxia, but none of the employee’s physicians at Mayo stated that there had been any resultant injury to the employee. Dr. Dennison, in his deposition, stated that the employee had not stopped breathing; he described the employee’s breathing when he was discovered on April 12 as “kind of a loud snoring.” There was no testimony by Dr. Dennison about any telephone conversation with Mrs. Christensen. The employee’s claim was based on Dr. Cohen’s opinion. He found evidence of brain injury in testing that showed cognitive dysfunction. The evidence of cognitive dysfunction as shown in the testing is not dispositive on this issue because, as the compensation judge pointed out in his memorandum, the employee’s “previous low functioning level is even lower now because of depression, medications, and chronic pain.” Further, Dr. Beniak, Dr. Gratzer, and Dr. Wengler were all of the opinion that the employee did not sustain a hypoxic brain injury resulting in permanent impairment.
The compensation judge’s determination on this issue is supported by substantial evidence.
6. Permanent Total Disability
The compensation judge determined that the employee was permanently totally disabled as of the date of injury. The employer and insurer have appealed this finding.
On appeal, the employer and insurer state a number of reasons why the compensation judge erred in making this finding. First, they argue it is premature to find the employee to be permanently and totally disabled because he has not yet been determined to be at maximum medical improvement. Secondly, it is premature to find permanent total disability because the employee has not completed medical treatments which would improve his condition. Further, the employee’s failure to obtain treatment is said to be the equivalent of refusing medical treatment and as a result the employee’s claim for permanent total disability benefits should have been barred. Finally, it is claimed that appropriate job search as part of a rehabilitation plan would return the employee to work.
We have already determined that this court will not consider the defense of MMI in this case since MMI was not raised as an issue before the compensation judge. We note further that the employer and insurer cite to no authority for its argument that MMI is a condition precedent for permanent total disability and we find no statutory language which does so.
In arguing that the employee has engaged in a “passive refusal of reasonable treatment” which would bar an award of permanent total disability benefits, the employer and insurer refer to the employee’s treatment or lack of treatment for his depression. The employer and insurer rely on the opinion of Dr. Gratzer that therapy or a change in medication has a “high probability” of reducing or eliminating the employee’s disability. We have already considered this argument in the context of permanent partial disability for the employee’s depression. The compensation judge concluded that changing medication or providing psychotherapy would not eliminate the employee’s depression. The compensation judge rejected Dr. Gratzer’s opinion in favor of the opinions set out by Dr. Cohen and Dr. Laurin. The cases cited by the employer and insurer dealing with refusal of treatment involved situations in which the employee failed to follow treatment programs set out by a treating physician. We find no evidence in the record that the employee has failed to comply with treatment recommendations from his doctors.
We turn then to the question of whether substantial evidence supports the compensation judge’s determination that the employee is permanently totally disabled from a vocational standpoint. An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, education, training, and experience, and the type of work available in the community, causes the employee to be unable to secure to anything more than sporadic employment resulting in insubstantial income. Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133, 24 W.C.D. 290. 295 (1967). Minn. Stat. § 176.101, subd. 5.
In concluding that the employee was permanently totally disabled, the compensation judge stated “there are numerous barriers, in addition to the physical disability, to returning the employee to gainful employment. The biggest obstacles are his low cognitive level, depression with anxiety symptoms, low education level, few transferable skills, and perceived memory loss.” We find substantial evidence to support the compensation judge’s determination that the employee’s numerous barriers to employment have rendered him permanently totally disabled.
The first barrier to employment for the employee is the physical restrictions on his left hand. The compensation judge found the employee needed to avoid heavy lifting, strong gripping, vibration, repetitive use of the hand, and exposure to cold. Those restrictions come from a functional capacities evaluation done at the Mayo Clinic in May 2006. Dr. K. A. Bengston, physical medicine and rehabilitation at the Mayo Clinic, stated in his report of July 16, 2007, that the employee was not to grip or lift more than 10 pounds with the left hand.
The QRC testified at the hearing as to the practical difficulties in employment with those restrictions. Essentially, the employee is limited to one-handed work and most jobs are designed to be done with two hands. Jobs such as assemblers, a possibility mentioned by the independent vocational examiner, may require only one hand to press a button, but two hands are needed to feed material and unload product. The QRC was unable to identify any job possibilities for the employee given the restrictions to his left hand.
A second barrier is the employee’s depression, a barrier which the compensation judge found to be significant. In her report of May 31, 2006, Dr. Laurin referred to the employee’s symptoms of difficulty in understanding and controlling his emotions and his symptoms of negative and ruminative thinking. She stated, “these symptoms affect his life to a significant degree, including his feelings of self-worth, relationships with friends and family, and daily functioning.” Dr. Norman Cohen testified in his deposition that the employee will require “life-long use of medication and continuing psychotherapy likely on an intermittent basis.”
An additional barrier is the employee’s low cognitive functioning. Dr. Cohen tested the employee and found the employee’s performance IQ to be 76. Dr. Cohen even recommended a power of attorney for the employee so that someone could monitor his financial decisions. Dr. Laurin commented that the employee would be limited in his ability to learn new information and skills. Dr. Thomas Beniak, who performed testing at the request of the employer and insurer, found the employee to have a verbal IQ of 76, a performance IQ of 90, and full scale IQ of 82. Dr. Beniak concluded however that the employee had “excellent practical problem solving abilities and judgment” and was competent to manage his own affairs.
The employee’s education and work history are also significant barriers to employment. The employee completed the 9th grade and does not have a GED. His QRC concluded that it was not feasible for the employee to obtain his GED, given his depression and cognitive limitations. The employee’s school transcript shows grades primarily at a D or F level before he dropped out of school. The employee’s previous employment consisted of driving semis for 17 years as an over-the-road driver for a company owned by his father, working for some years as a laborer in building and welding truck trailers, and working for about a year in framing houses. The employee lives in Alden, a town of about 600 people in southeastern Minnesota. Albert Lea and Austin are less than 30 miles away; Mankato is about 45 miles away.
L. David Russell provided expert vocational testimony on behalf of the employer and insurer at the hearing. It was his opinion that the employee was capable of two-handed work at a medium exertional level. Given those restrictions, Mr. Russell identified a number of jobs which he believed the employee could do and which were available in southeastern Minnesota. It was Mr. Russell’s further opinion that the employee was not permanently and totally disabled because a more effective job search would lead to appropriate employment. The compensation judge did not accept Mr. Russell’s conclusions, finding that his suggestions for further rehabilitation would not be any more successful than the rehabilitation efforts of the QRC to the date of the hearing. We can not say, on the basis of the record before us, that the compensation judge erred in his conclusions.
Determining whether an employee has met the burden of proving permanent total disability, is ultimately a question of fact for the compensation judge. Koschak v. Reserve Mining Co., No. WC04-168 (W.C.C.A. Oct. 26, 2004); Jotblad v. City of St. Paul, No. WC06-274 (W.C.C.A. June 11, 2007). Finding substantial evidence in support of the compensation judge’s finding on this issue, we affirm.
7. January 2008 Surgery
On January 15, 2008, Dr. Dennison performed surgery on the employee’s left hand. The procedure was identified by Dr. Dennison as “1. Exploration of the palm with resection of the radial digital nerve neuroma to the ring finger with intermuscular placement of the neuroma. 2. Fifth metacarpal revision amputation with palmar Z-plasty.” The employer and insurer denied payment for this surgery on the grounds that the surgery was not reasonable and necessary. The compensation judge awarded the surgery. The employer and insurer have appealed this issue.
The employer and insurer’s position was based on the opinion of Dr. Jeffrey Husband, who testified that the surgery was not reasonable and necessary. His rationale was that treating the neuroma did not have a likelihood of success, meaning elimination of the employee’s pain, and that the neuroma was likely to grow back. Dr. Dennison testified that “you really can’t prevent the neuroma from coming back, but we try to place it in a position such that it’s less painful.” This procedure would increase the functioning of the hand according to Dr. Dennison and the employee testified at the hearing as to relief in his symptoms.
The compensation judge accepted the opinion of Dr. Dennison on this issue. The court will generally affirm a compensation judge’s choice among divergent medical opinions, so long as the opinion relied upon had adequate foundation. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003). The decision of the compensation judge on this issue is affirmed.
 Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
 The compensation judge’s decision refers to section 5223.0590, rather than 5223.0580. This is an obvious transcription error and is not relevant to the issues on appeal.
 Hypoxia is a reduction of oxygen supply to tissue below physiological levels. Dorland’s Illustrated Medical Dictionary, 869 (29th ed. 2000).