DALE L. MEWHORTER, Employee/Appellant, v. CLEAN SOILS MINN. and MINNESOTA ARP/BERKLEY ADM'RS, Employer-Insurer, and MINNEAPOLIS RADIOLOGY ASSOCS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 10, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REFUSAL OF TREATMENT.  Substantial evidence does not support the compensation judge=s finding that the employee=s refusal of recommended medical care was unreasonable where there was no medical evidence that the recommended procedure would significantly reduce the employee=s disability, especially in view of the employee=s other medical conditions.

 

PERMANENT TOTAL DISABILITY; PRACTICE & PROCEDURE - REMAND.  Given the reversal of the compensation judge=s finding that the employee had unreasonably refused medical treatment, the compensation judge=s finding that the employee was not permanently and totally disabled is vacated and remanded.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding that the employee=s hypertension and impotence were not causally related to his work injury.

 

Affirmed in part, reversed in part, and vacated and remanded in part.

 

Determined by: Rykken, J., Johnson, J., and Wheeler, C.J.

Compensation Judge: Joan G. Hallock

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s finding that he failed to cooperate with recommended medical care and from the judge=s denial of permanent total disability benefits.  The employee also appeals from the compensation judge=s determination that his diagnoses of hypertension and impotence are not causally related to his work injury of September 24, 1996.  We affirm in part, reverse in part, vacate in part and remand in part.

 

BACKGROUND

 

Dale Mewhorter, the employee, commenced working on a full-time basis for the employer, Clean Soils Minnesota, on or about September 23, 1996; he had worked on a part-time or contract basis for Clean Soils prior to that date.  On September 24, 1996, the employee sustained injuries to his head, neck, and shoulders when he fell off a semi-trailer truck.  At the time of his injury, the employee was 47 years old and earned an average weekly wage of $480.00.

 

The employee was born in 1949, left school after the seventh grade, and had no formal job training.  He worked as a truck driver his entire career.  Since the employee cannot read or write, and recognizes only a few written words, he relied on family members to assist him with bills, logs, job applications and other paperwork.

 

On September 24, 1996, the employee arrived at a site to pick up a loaded trailer, hooked his truck to the trailer, and noted that a hydraulic hose was improperly situated on top of the trailer.  The employee climbed up on the fuel tank, scaled the truck frame, and reached to grab the hose to properly hook it up to the truck.  As he grabbed for the hose, he slipped and fell backwards off the truck, landing on his head, neck, and shoulders.  A heavy valve at the end of the hose fell down and hit him on the side of his head. 

 

Due to neck and head pain, the employee reported to the emergency room at Regions Hospital on September 25, 1996.  X-rays taken of his right hand, arm and shoulder were negative.  An MRI of the employee=s facial bones and orbit was negative.  An MRI scan of the cervical spine indicated a very large central disc herniation at the C3-4 level, a large paracentral disc herniation on the right at the C5-6 interspace level, increased soft tissue posterior to the C4 vertebral body most likely from herniated disc material from the C4 interspace, and mild spondylosis at the C6 level.  The MRI also indicated impingement of the spinal cord, possible cord contusion, and edema.  X-rays of the cervical spine indicated marked hypertrophic changes at the C5, C6 and C7 interspace levels.  The employee was also diagnosed with radiculopathy in his right arm and hand. 

 

On September 28, 1996, the employee underwent surgery in the nature of an anterior cervical discectomy and fusion at the C3-C4 level, and an anterior foraminotomy at the C5-C6 level, with autologous bone grafts.  The employee=s neck pain, bilateral shoulder pain, radiation into both arms, and numbness and weakness in his right hand and arm persisted.  A repeat MRI scan taken on November 1, 1996, indicated recurrent disc herniation at the C3-4 level, a small midline disc herniation at the C4-5 level, foraminal stenosis at the C5-6 level, and a mild disc bulge at the C6-7 level.  On November 8, 1996, the employee underwent a second neck surgery, in the nature of an anterior cervical discectomy and fusion at the C5-6 level, with bone graft, cervical plate and screws. 

 

Post-operatively the employee continued to experience neck pain and headaches.  The employee underwent a neurological consultation with Dr. Walter Bailey on December 3, 1996.  The employee=s pain continued in his neck, both shoulders, arms and head.  Cervical spine x-rays taken on December 18, 1996, showed a collapse and slight forward movement of the graft at C3-4, which Dr. Setti Rengachary opined might account for some of the employee=s symptoms.  (Pet. Ex. A.)  An MRI scan  of the cervical spine on January 7, 1997, indicated stenosis and indentation of the spinal cord in at least three disc levels.

 

The employee continued to undergo extensive medical treatment related to his injury.  His headaches persisted; a CT scan of his head taken on January 17, 1997, indicated no evidence of intracranial hemorrhage.  Dr. Rengachary recommended a cervical myelogram for further evaluation.  On February 11, 1997, the employee underwent an examination for high blood pressure (hypertension) and was prescribed beta blocker medication.  The employee asserts that he had never been diagnosed with high blood pressure prior to this injury.^[1]

 

The employee=s right arm pain persisted.  X-rays taken on February 14, 1997, indicated satisfactory surgery results but for an extrusion at one level in the cervical spine.  Dr. Rengachary recommended a myelogram to review that defect.  The employee refused a myelogram, and instead expressed his wishes to treat conservatively.^[2]  The employee feared the myelogram procedure, as he recalled that one of his cousins had died as a result of a myelogram a number of years earlier.  Dr. Rengachary referred the employee for physical therapy and pool therapy; he attempted six sessions of pool therapy, but noted no improvement in the mobilization of his shoulders.

 

Medical records from Regions Hospital indicate that the employee=s bilateral shoulder, upper back and neck pain persisted, including radicular pain in his arms.  Dr. Rengachary referred the employee for evaluation of his high blood pressure as a possible cause of his headaches.  By March 3, 1997, the employee complained to Dr. Pillai Kamalesh that even though his blood pressure medication helped normalize his blood pressure levels, the medication caused him to feel Abuzzed or spacey@ and Adrugged out.@  However, the employee also found that his headaches returned when he did not take the blood pressure medication.  Following an examination on April 9, 1997, Dr. Rengachary reported that, AGiven the severity of hypertension, one might wonder whether he has renal artery stenosis secondary to the trauma that he had four months ago.@  (Pet. Ex. A.)

 

Following an orthopedic consultation on March 26, 1997, Dr. Desiree Kempcke recommended that the employee undergo a manipulation to both shoulders under general anesthesia, to treat his Afrozen shoulder,@ diagnosed as adhesive capsulitis.   Other doctors continued to recommend this procedure to the employee.

 

By April 28, 1997, the employee reported to Dr. Jeremy Holtzman that he was noticing symptoms of impotence which seemed to be more pronounced with the blood pressure medication.  On that date, Dr. Holtzman opined that the employee=s headaches may be secondary to his hypertension and his impotence most likely was secondary to his anti-hypertensive treatment.

 

On May 1, 1997, the employee was referred for an evaluation of his headaches which had persisted ever since his injury and first surgery in September 1996.  He was also seen in May 1997 by an ophthalmologist due to his blurred vision and photophobia during the previous five months. The employee=s medical records are replete with indications of medication he was prescribed for high blood pressure, chronic pain, and sleep assistance.  The employee continued to treat for his hypertension and was referred in July 1997 to the Sister Kenny Institute at Abbott Northwestern Hospital for a pain management and rehabilitation evaluation.

 

On October 23, 1997, Dr. John Bowar at Sister Kenny Institute examined the employee.  Dr. Bowar diagnosed a chronic pain syndrome, and recommended continued pain medication, pool exercise therapy, a TENS unit to assist with headaches and x-rays and right shoulder and hip x-rays to determine whether skeletal alignment was also contributing to his symptoms.  At a follow-up appointment with Dr. Bowar in January 1998, the employee reported that the pool exercise program actually increased his muscle spasms.  Dr. Bowar prescribed Soma due to poor sleep and advised the employee that further evaluation for a pain program should be considered.  Dr. Bowar also specifically stated that the employee would never be able to return to driving heavy equipment with his current arm function.  At a follow-up appointment in February 1998, Dr. Bowar recommended that the employee consider a pain program.  Dr. Bowar also stated that he found it understandable that the employee was Atotally against any type of manipulative approach.@  (Pet. Ex. C.)

 

At Dr. Bowar=s referral, the employee underwent an orthopedic examination with Dr. Paul Yellin on January 20, 1998.  X-rays noted an osteophytic spur in the hip area; Dr. Yellin determined that total hip replacement would be the only way to improve the hip pathology, but that such would be difficult as the employee would be unable to tolerate bed rest in a supine position due to his neck and shoulder pain. 

 

The employee was first examined at the Mayo Clinic on February 27, 1998.  Dr. Bruce Evans, neurologist, recommended that a chronic pain program would be best for the employee.  At a July 1998 appointment at Mayo Clinic, Dr. Steven Sabers, Mayo Spine Center, diagnosed chronic right neck pain, neck and right upper extremity pain, right hip region discomfort, likely adhesive capsulitis in the right shoulder, hypertension, and complex regional pain syndrome type II.  Dr. Sabers recommended an MRI and x-rays of the cervical spine, an EMG of the right arm, a neurosurgery consultation, pain clinic consultation and possible nerve block.  He also suggested a general medical evaluation to evaluate vision complaints and hypertension treatment.  According to Dr. Sabers= notes, the employee was Aagainst@ an evaluation in the pain rehabilitation program. 

 

In 1998, the employee received acupuncture treatment for neck, headaches and upper bilateral extremity symptoms.  The employee testified that these treatments provided relief and aided movement of his arms and shoulder area.  (T. 111-112, 116.)  In September 1998, Dr. W. Richard Marsh examined the employee, and determined that a myelogram could clarify the condition of the employee=s cervical spine, although Dr. Marsh was unsure whether a reoperation would be advisable.  Dr. Sabers also examined the employee on September 18, 1998, and stated in his chart note that a pain clinic and medical evaluation at Mayo Clinic did not proceed as the insurer refused to pay for the same.  Dr. Sabers encouraged the employee to pursue the CT myelogram.  The employee finally consented to a myelogram and reported to the hospital for the procedure, but did not proceed due to complications in the scheduling of Dr. Marsh, apparent miscommunications at Mayo Clinic and misunderstandings about procedures and techniques.

 

By February 2, 1999, Dr. Joan Ireland wrote that arguably the employee=s chronic pain and blood pressure were related to his work injury and that his erectile dysfunction is Amore likely than not related.@  Dr. Ireland also stated that the employee=s need Ato be on narcotics to control his pain would severely limit his ability to function in any occupation.  I do not see Mr. Mewhorter being able to return to work without a significant change in his health status.@  (Pet. Ex. A.)

 

The employee underwent a functional capacities evaluation at Regions Medical Center on March 8, 1999.  While lifting during the evaluation, he noted a slipping sensation in his neck, accompanied by a sharp pain in his neck and arms.  He was prescribed medication for pain and muscle spasm control; the evaluation was not completed due to the employee=s worsened symptoms.

 

The employee has not returned to work since his injury.  The employer paid him temporary total disability benefits until September 21, 1998, for a total of 104 weeks, the statutory maximum allowed by Minn. Stat. ' 176.101, subd. 1(k).  Upon expiration of those benefits, the employer and insurer paid the employee periodic permanent partial disability benefits based upon a permanency rating of 17.5% whole body impairment.  The employer and insurer also paid for medical expenses related to medical treatment for the employee=s neck and shoulder, but denied liability for the employee=s medical treatment related to hypertension and impotence. 

 

The employer and insurer also provided initial rehabilitation assistance to the employee, in the form of medical management.  Steven M. Kurenitz, QRC, conducted an initial rehabilitation consultation with the employee on December 26, 1996, and continued to work with the employee, primarily providing medical management.  The rehabilitation records refer to the employee=s frustration with his medical treatment and the lack of a definitive diagnosis.  As early as May 23, 1997, Mr. Kurenitz reported that the employee did not wish to go through with any manipulations of his frozen shoulder adhesions until his headaches were addressed.  By May 14, 1998, after monitoring the employee=s medical treatment, Mr. Kurenitz provided his opinion concerning the employee=s prospects for future employment:

 

At this time, per all the medical information on Mr. Mewhorter from the multiple physicians who have treated him for his frozen shoulders, headaches, hip and leg problems, high blood pressure, chronic pain concerns, along with Mr. Mewhorter having a seventh grade education (with reading and writing deficiencies) and his entire work history as a laborer/truck driver, he would have a very questionable prognosis in job search.  His lack of transferable skills, along with the above noted variables, would strongly suggest that he is not employable or placeable in a competitive work environment.

 

(Pet. Ex. H, QRC report of 5/14/98.)

 

On July 7, 1998, the employee filed a claim petition asserting entitlement to permanent total disability benefits commencing May 14, 1998.  On July 28, 1998, the employee filed a medical request for payment of outstanding medical expenses related to treatment for hypertension.  Following an administrative conference at the Office of Administrative Hearings, a compensation judge issued a Decision and Order pursuant to Minn. Stat. ' 176.06, determining that the employee=s hypertension was causally related to the employee=s injury, and ordering payment for hypertension medication.  The employer and insurer appealed this decision, and requested a formal hearing.

 

The employee=s claim petition and the employer and insurer=s request for formal hearing were consolidated and both were heard by a compensation judge at the Office of Administrative Hearings on March 17, 1999.  One additional issue addressed at hearing was the employee=s claim for medical treatment for his impotence, which he contended was related to the medication required for hypertension.  The compensation judge found that the employee failed to cooperate with recommended medical care and that the employee was not permanently totally disabled as of the date of the hearing.  The compensation judge also determined that the employee=s hypertension and impotence are not causally related to his work injury of September 24, 1996, and therefore denied payment for medical expenses related to treatment for those conditions.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, "they 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, "unless 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).

 

DECISION

 

Failure to Cooperate With Recommended Medical Care

 

The compensation judge determined that the employee failed to cooperate with recommended medical care.  She stated that Athe employee should follow the many recommendations for shoulder manipulation.  There is a consensus that this procedure would help the employee, and it has been recommended by several doctors.  The risks of the procedure are said to be minimal.@  (Finding 26.)  Although the employee declined to undergo both a myelogram and a shoulder manipulation under general anesthesia, the compensation judge referred solely to the shoulder manipulation in her Findings and Order and Memorandum, and made no determination that the employee=s refusal to undergo the myelogram was unreasonable.

 

In her memorandum, the compensation judge stated that this recommended treatment for the employee=s shoulders Ahas the potential to improve@ the employee=s condition and Ais of minimal risk to the employee.@  The compensation judge refers to the opinion of Dr. Mark Engasser, the employer/insurer=s medical expert, that Athe employee=s functional condition and medical condition might improve if the employee underwent the recommended treatment.@  The compensation judge also referred to the opinions rendered by Steven Kurenitz, QRC, and John Hjelmeland, the employer/insurer=s vocational expert, commenting that they both Aagree that additional treatment might improve the employee=s vocational standing and employability.@  The judge concluded that the employee is unlikely to improve without this additional medical care and treatment, that he is not yet at MMI, and has conducted no job search.  The judge focused on the employee=s refusal to help himself, and stated that A[h]e simply does not meet the criteria for permanent total disability at this time.@  (Memo. p. 6.)

 

The employee contends that the compensation judge=s findings regarding noncompliance with recommended treatment are clearly erroneous.  We agree.

 

Workers= compensation benefits may be suspended if an employee refuses reasonable medical treatment.  Majerus v. Engle Fabrication, Inc., slip op. (W.C.C.A. Jan. 27, 2000) (citing Dotolo v. FMC Corp., 375 N.W.2d 25, 28, 38 W.C.D. 205, 208 (Minn. 1985), and Reese v. Preston Mktg. Ass=n, 274 Minn. 150, 142 N.W.2d 721, 23 W.C.D. 810 (1966)).  In Reese, the supreme court stated,

 

It is the general rule that an employee=s unreasonable refusal to submit corrective surgery justifies the commission in suspending the payment of benefits on the theory the disability is then attributable to the employee and not to the employer.  The test of reasonableness is based on a variety factors, including the danger attendant upon the operation, the prospect of success, and the pain and discomfort which may result.

 

Reese, 142 N.W.2d at 722-23, 23 W.C.D. at 813.  In Dotolo, the supreme court stated that A[w]hether refusal of treatment is reasonable requires >weighing of the probability of the treatment=s successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant.=  1A. Larson, The Law of Workmen=s Compensation, ' 13.22(b) (1985).@  Dotolo, 375 N.W.2d at 28, 38 W.C.D. at 208.  The employer and insurer bear the burden of proving unreasonable refusal of treatment.  Daggett v. Nobles Indus., slip op. (W.C.C.A. June 24, 1992).

 

Our supreme court further addressed this issue in Rauma v. Paper Calmenson & Co., 286 Minn. 17, 174 N.W.2d 244, 25 W.C.D. 83 (1970), a case in which an employee injured his back, had been recommended surgery, and experts indicated that chances for success were high.  The supreme court there determined that although the medical expert stated that chances of success were high, the employee had experienced a failed first operation and therefore his objection to a proposed second surgery was reasonable.  Accord Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43,  35 W.C.D. 523, 529 (Minn. 1983) (Aan injured employee cannot be forced to undergo major surgery and . . . evidence of the employee=s vocational potential which assumes such surgery is irrelevant@).  See also Dudansky v. L.H. Sault Constr. Co., 244 Minn. 369, 70 N.W.2d 114, 18 W.C.D. 286 (1955); McShane v. Hudson Foods, Inc., 55 W.C.D. 455 (W.C.C.A. 1996); Daggett,  slip op. (W.C.C.A. June 24, 1995).

 

The compensation judge predicated her denial of permanent total disability benefits on the employee=s failure to cooperate with recommended medical care.  She stated that Athe employee=s physical disability is not yet stable and he has failed to take appropriate steps to try to improve his condition.@  The employee has undergone extensive medical treatment since his injury in September 1996.  His medical treatment was initially conducted at Regions Hospital in St. Paul, Minnesota.  Thereafter, he was referred to Abbott-Northwestern Hospital for evaluation at its pain clinic, and was referred to the Mayo Clinic for further recommendations and treatment.  The employee has also undergone independent consultations at the request of his physicians, and underwent medical examinations with Drs. Mark Engasser, Ronald Vessey and James Meyer at the request of the employer and insurer.  As early as January 17, 1997, almost four months post injury, the employee=s physician recommended a cervical myelogram following by CT scan, to evaluate whether additional neck surgery was warranted.  The employee expressed reluctance to undergo a myelogram, finally agreed to undergo the procedure, but ultimately did not go forward with a myelogram.  The employee asserted that he received conflicting information from his physician and medical staff about the procedures involved; based on these inconsistencies and his underlying fear of the procedure, he declined to undergo a myelogram.

 

The compensation judge=s Findings and Order and Memorandum refer generally to the employee=s failure to cooperate with Arecommended medical care,@ but only specifically refer to the employee=s failure to follow through with recommendations for shoulder manipulation.  We therefore must review whether substantial evidence of record supports the compensation judge=s determination that the employee=s refusal to undergo the recommended shoulder manipulation was unreasonable.

 

According to the employee=s testimony, he was advised by an orthopedist that a shoulder manipulation under general anesthesia could result in a broken arm.  (T. 123-24, 167; Pet. Ex. A, medical report of 3/26/97.)  The employee=s medical records are replete with references to his continued severe pain; he was fearful that this shoulder manipulation and potential broken arm could sharply increase his pain level.  (T. 158-59.)  The employee had already undergone two unsuccessful neck surgeries following his work-related injury.  In spite of these surgeries, the employee still reported ongoing pain.  (T. 103-06.)  According to Dr. John Bowar, Chronic Pain Management Clinic, Abbott Northwestern Hospital, the employee had developed a chronic pain syndrome and his refusal to submit to this manipulation was Aunderstandable.@  (Pet. Ex. C, report of 10/23/97.)

 

To determine whether the record supports the compensation judge=s conclusion concerning reasonableness of the employee=s refusal to undergo the shoulder manipulation procedure, we must apply the balancing test set forth in Dotolo, 375 N.W.2d at 28, 38 W.C.D. at 208, to the evidence of record.  In this case, we must therefore compare the probability that the shoulder manipulation procedure will successfully reduce the employee=s disability by a significant amount, against the risks of the treatment.  There is no medical evidence in the record that the shoulder manipulation procedure would significantly reduce the employee=s disability, especially in view of his other medical conditions.  Furthermore, an orthopedist advised the employee that he faced the risk of sustaining a broken arm from this procedure.

 

This comparison, made in view of the entire evidence of record, does not support the compensation judge=s finding that the employee unreasonably failed to cooperate with recommended medical treatment.  We cannot say, under the circumstances of this case, that the employer and insurer have met their burden of establishing an unreasonable refusal of medical treatment likely to result in significant improvement of the employee=s condition, as required by Dotolo.  See Majerus, slip op. (W.C.C.A. Jan. 27, 2000).  In view of the employee=s basis for refusing the recommended procedure, and in view of the record as a whole, we find that his refusal to undergo a shoulder manipulation and the corresponding general anesthesia was reasonable.  We therefore reverse the compensation judge=s Finding No. 26, that the employee has failed to cooperate with recommended medical care.

 

Permanent Total Disability Claim

 

The compensation judge found that the employee is not permanently totally disabled as of the date of hearing.  She listed the factors she considered in arriving at this determination, stating as follows:

 

A decision regarding permanent total disability requires a review of the employee=s physical disability in combination with the employee=s age, education, training, and experience.  In this case, the employee=s physical disability is not yet stable and he has failed to take appropriate steps to try to improve his condition.  He is currently 50 years old, has a 7th grade education, has no training to speak of, and has worked as a truck driver his entire adult life.  Those expressing an opinion have determined that the employee cannot return to driving a truck, but no vocational rehabilitation has been done.  Considering all of these factors the employee is not permanently totally disabled as defined by Chapter 176.  The employee is entitled to renew his claim for permanent total disability benefits from the date of hearing forward should circumstances warrant.

 

(Finding 27.)  As outlined in Minn. Stat. ' 176.101, subd. 5, Atotally and permanently incapacitated@ means that the employee has sustained a requisite level of permanent partial disability, and the employee=s Aphysical disability in combination with [the required level of permanent partial disability of the body as whole] causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@^[3]  A person is totally disabled if his physical condition, in combination with his age, training, experience and the type of work available in his community causes him to be unable to secure employment.  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).

 

The compensation judge=s denial of permanent total disability status was based primarily on the employee=s refusal to undergo medical treatment, specifically, refusal to undergo the shoulder manipulation.  As we have decided that the employee=s refusal of medical treatment was reasonable under the particular circumstances of this case, the employee=s failure to undergo those medical procedures cannot serve as a basis for denial of permanent total disability status.  We therefore must review the other factors addressed by the compensation in arriving at her determination that the employee is not permanently totally disabled.

 

We first note that there is minimal medical evidence of record indicating that the employee=s functional capabilities would substantially improve even if he followed through with the  recommended medical treatment.  Dr. Engasser stated that A[i]n terms of this patient=s past medical history, the likelihood of improvement of Mr. Mewhorter=s medical or vocational condition relative to the recommended treatment [myelogram, shoulder manipulation and physical therapy] is only fair.@  (Resp. Ex. 9.)  Dr. Engasser also stated that the employee had Aobvious underlying anatomic abnormality now that he is status post two cervical surgeries which should also significantly contribute to his inability to function.@  (Resp. Ex. 9.)

 

The facts outlined in the record strongly indicate that the employee would have great difficulty securing anything more than Asporadic employment resulting in insubstantial income.@  Minn. Stat. ' 176.101, subd. 5, regardless of whether he underwent the recommended shoulder manipulation.  The employee has been unable to return to work since his injury on September 24, 1996.  The employee=s QRC opined that numerous factors Astrongly@ suggested that the employee was not employable or placeable in a competitive environment.  The employee=s QRC, Steve Kurenitz testified that he continued to provide medical management for the employee through at least March 3, 1999, the latest rehabilitation report in the record, but that the employer and insurer never requested him to involve the employee in job search or job placement.  (T. 70-71.)  Mr. Kurenitz testified that he had not commenced job search with the employee as he had no set of assigned physical work restrictions and the employee had not reached some Amedical point of reasonable stability.@  (T. 96.)   The QRC listed what he considered to be impediments to returning the employee to the labor market and he referred to the employee=s seventh grade education; testing results which illustrate deficiencies with reading, writing, spelling, and math;^[4] work history limited to working as a laborer and driver; no current driver=s license; at least one felony conviction which would preclude the employee from positions which require bonding and licensing; and visual presentation, with frozen shoulders and holding his right arm in a guarded position.  In light of those factors, Mr. Kurenitz testified that Agiven those variables, I would not find him employable.@  (T. 76.)

 

An alternative vocational opinion was propounded by John Hjelmeland, who  conducted a vocational evaluation of the employee on February 23, 1997,  at the request of the employer and insurer.  In his report and testimony at hearing, Mr. Hjelmeland outlined his opinion concerning the employee=s vocational liabilities and his transferrable skills and vocational assets.  He discussed the same liabilities outlined by Mr. Kurenitz.  He also outlined the employee=s vocational assets, such as more than 20 years of work experience, ability to work well independently, being a dependable and reliable worker who performs quality work, good attendance record, and a strong interest in mechanical and skills trades.  Mr. Hjelmeland testified that he believes the employee is not permanently precluded from sustaining employment in the current labor market.  Mr. Hjelmeland testified that, in his opinion, the employee=s refusals to proceed with manipulation of his frozen shoulders or the myelogram have had a Asignificant impact@ on the employee=s ability to become employed, since the outcome of those medical treatments could not yet be considered.  (T. 20.) 

 

In view of the employee=s current physical condition, Mr. Hjelmeland researched and located three areas where the employee could work - - parking lot attendant, security guard and surveillance system monitor.  In view of the employee=s felony history, he would not qualify for the surveillance and security guard positions, leaving the sole recommended position as that of a parking lot attendant.  In Mr. Hjelmeland=s opinion, such a position would be available in the Twin Cities market.  As to the effect of the employee=s limited math skills on his ability to work as a parking lot attendant, Mr. Hjelmeland testified that automated cashier equipment would calculate parking fees and change for the employee.  Based on the record, however, the employee still faces obstacles to maintaining that job including continued pain in his neck and shoulders, incapacitation of his dominant right hand, limited mathematical and reading skills, no driver=s license, inability to drive while taking prescribed narcotic medication, and location of his residence three to four miles from the nearest bus line.

 

Mr. Hjelmeland agreed that even if the employee held a driver=s license, he would not recommend that he drive while under the influence of prescribed narcotic medication.  (T. 224.)  Mr. Hjelmeland admitted that he was unaware of certain medical information which significantly related to the employee=s future employability.  For example, he did not take into consideration the effect of the employee=s blurred vision on his employability, as he had not noted references to vision problems in the employee=s medical records.  (T. 224.)  At the time of the hearing, Mr. Hjelmeland had not reviewed more recent medical records, including the February 2, 1999 report of Dr. John Ireland, the employee=s treating physician, and the addendum report of Dr. Engasser, dated March 12, 1999, in which Dr. Engasser recommended against physical therapy, shoulder manipulation or an EMG until after a CT/myelogram had been performed.  Mr. Hjelmeland was also unaware that the employee agreed to and did undergo an EMG, contrary to his understanding of the facts.

 

The employer and insurer also argue that since the employee has not participated in a vocational rehabilitation plan or engaged in a job search, it is premature to determine the employee=s vocational ability and permanent total disability status; the employer and insurer also acknowledge that a job search may not be absolutely necessary to establish permanent total disability status.  This court has determined that a job search is not required to establish permanent total disability where the evidence demonstrates that a job search would be futile.  Atkinson v. Goodhue County Co-op Electric Assoc., 55 W.C.D. 150, 160 (W.C.C.A. 1996) summarily aff=d, (Minn. Sept. 20, 1996); see also McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983).

 

We are well aware that a finding on the issue of permanent total disability is one of fact, and as such, the compensation judge=s determination must be affirmed if it is supported by substantial evidence and is not clearly erroneous.  Hengemuhle, 358 N.W.2d 54, 60; Minn. Stat. ' 176.421, subd. 1(3).  Based upon this court=s standard of review, we are extremely reluctant to overturn a compensation judge=s factual findings; however, that standard of review also requires the court to Aremain cognizant of its own responsibility to exercise good judgment in reviewing what the evidence will reasonably sustain.@  Harvala v. Noeske Lumber, 44 W.C.D. 118, 123 (W.C.C.A. 1990) (citing Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240), summarily aff=d, (Minn. Jan. 30, 1991).  In this instance, we vacate the compensation judge=s determination that the employee is not permanently totally disabled as of the date of the hearing, because we do not believe that the evidence will sustain the compensation judge=s conclusion concerning the employee=s permanent total disability status.

 

In this case, the compensation judge based her determination of the employee=s disability status on various factors, including the employee=s background, education, employment history, lack of vocational rehabilitation, and his medical condition and disability.  (Finding No. 27) However, when evaluating those factors, the compensation judge emphasized the employee=s refusal to undergo a shoulder manipulation procedure.  Since we have reversed the compensation judge=s finding that the employee=s refusal to undergo the shoulder manipulation was unreasonable, and since the compensation judge made no finding as to whether the record shows if successful results from shoulder manipulation would likely have any significant impact on the employee=s ability to return to sustained gainful employment, we therefore vacate the compensation judge=s denial of the employee=s claim for permanent total disability benefits.

 

We remand this issue to the compensation judge, for a determination as to whether substantial evidence of record, absent the employee=s refusal to undergo a shoulder manipulation, supports her initial determination that the employee is not permanently totally disabled.

 

Employee=s Claim for Payment of Medical Expenses Related to Hypertension and Impotence

 

The compensation judge denied the employee=s claim for payment of medical expenses related to his hypertension and impotence, determining that neither is causally related to the employee=s September 24, 1996 work injury.  We find that adequate evidence of record supports the compensation judge=s determinations, and therefore affirm.

 

The employee argues that he was never diagnosed with hypertension prior to his work injury in September 1996.  In fact, he testified that he took a U.S. Department of Transportation-required examination two days before his injury, which indicated normal blood pressure level.  A report from that examination was not in the record, however, as the employer has discontinued business and that record was apparently destroyed. 

 

The employee bases his claim on the medical records of both Drs. Rengachary and Ireland, Regions Hospital.  The employee was first evaluated for high blood pressure in March 1997.  On April 9, 1997, Dr. Rengachary stated that Agiven the severity of the hypertension, one might wonder whether he has renal artery stenosis secondary to the trauma that he had four months ago.@  The employee was prescribed medication to treat his hypertension through medication.  On November 12, 1997, Dr. Ireland noted that the employee=s hypertension is exacerbated by chronic pain.  By letter of December 4, 1997, Dr. Ireland wrote that

 

at this time, I feel that the patient=s hypertension is definitely linked to his pain and the adrenaline surge that he gets when he is frustrated with access to medical care through the system.  Mr. Mewhorter=s pain in his neck and shoulder per information from physicians treating him for his accident is secondary to complications from his accident and I believe that the patient=s hypertension is secondary to the pain and the frustration that he is currently having with the system.

 

(Finding No. 11; Pet. Ex. A.)

 

The employer and insurer, however, argue that there is no causal relationship between the employee=s hypertension and his work injury.  At their request, the employee was examined by Dr. Ronald Vessey on January 22, 1999.  At that time, the employee=s blood pressure was markedly elevated.  Dr. Vessey opined that the employee Ahas a clear-cut pattern of hypertensive retinopathy suggesting that his hypertension has been present for a long time in a persistent fashion.@  Dr. Vessey opined that the employee=s hypertension was primary idiopathic adult onset hypertension.  (Resp. Ex. 5; Depo. Ex. 3.)

 

We note that 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).  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).

 

Whereas it is true that the employee does appear to have substantial evidence supporting his claim that his hypertension is causally related to his work injury, and that this is a very close issue, it is this court=s role to determine whether substantial evidence supports the compensation judge=s determination and the judge=s choice between conflicts in medical expert opinions.  As there is support for the compensation judge=s determination, even in view of the conflicting evidence, we must affirm the compensation judge=s determination that the employee=s hypertension is not causally related to his work injury of September 24, 1996.

 

The employee also claims that his impotence related back to his work-related injury of September 24, 1996.  He testified that he had no such symptoms prior to his work.  He first reported these symptoms to Dr. Holtzman on April 28, 1997.  On February 2, 1999, Dr. Joan Ireland wrote that

 

Mr. Mewhorter also has a history of erectile dysfunction which began after his accident.  Prior to his accident he had normal erections without difficulty.  The patient was seen by Urology in October of 1997.  Potential etiologies for Mr. Mewhorter=s erectile dysfunction include side effects from the medications used to control his blood pressures, chronic pain which is directly related to the patient=s accident, as well as possible neurologic injury to his spinal cord, although this has not been clearly documented.  I would argue that the chronic pain and blood pressure are related to Mr. Mewhorter=s accident and therefore the impotence is more likely than not related to Mr. Mewhorter=s accident.

 

(Pet. Ex. A.)

 

Dr. James J. Meyer, who conducted a urological examination on the employee on February 24, 1999, found no causal connection.  The employee provided a history to Dr. Meyer that by one year post injury and following both operations, he was able to obtain only a very partial erection.  The employee tried injection therapy six to eight times as prescribed by Dr. Gleich, a urologist, but found that the results were erratic.  Dr. Meyer noted that the employee had not been tested for impotence, had not tried Viagra, has had no nocturnal penile tumescent studies, nor serum testosterone testing.  Based on this information, Dr. Meyer determined that the employee=s complaints were purely subjective and had not been documented.  He also believed that the employee=s sexual dysfunction is very treatable.  As to the causation, Dr. Meyer listed numerous factors as being potential contributors to the employee=s sexual dysfunction: hypertension, antihypertensive medication (Clonidine), cigarette smoking, age and complicating personality issues.

 

The evidence points strongly to the causal relationship between the employee=s hypertension and related medication and his impotence.  However, the compensation judge determined that Athe employee has had no objective testing to determine whether he has a medically diagnosed sexual dysfunction.@  (Finding No. 25.)  The judge also noted that medical opinions indicated that the employee=s impotency is likely related to hypertension medication, and that because Athe claim that hypertension is work-related has failed, the claim that impotency is work-related also fails.@  (Memo. p. 6.)

 

As we have affirmed the denial of causal relationship between the employee=s hypertension and his September 24, 1996 injury, we must therefore affirm the compensation judge=s denial of causal relationship between the employee=s impotence and his work injury.