AUGUSTIN ORTEGA, Employee, v. MEDALLION KITCHENS OF MINN. and TRAVELERS INS. CO., Employer-Insurer/Appellants, and ALLINA HEALTH/ABBOT NORTHWESTERN HOSP., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 3, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Where it was based on his assessment of the credibility of witnesses and supported by expert medical opinion, the compensation judge=s finding of primary liability for a work-related head injury was not clearly erroneous and unsupported by substantial evidence.

 

JOB SEARCH - SUBSTANTIAL EVIDENCE.  The reasonable diligence of a job search is dependent on Aall the facts and circumstances@ of the case.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989), quoting Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988).  Where the employee had no income or vehicle due to loss of his job with the employer, where neither rehabilitation assistance nor payment for prescribed medication for his chronic headaches were provided by the employer, and where the employee was subject to substantial language difficulties, the compensation judge=s conclusion that the employee=s job search was sufficiently diligent so as not to preclude an award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence, although the employee made only twelve contacts with potential employers over the six-month period at issue.

 

TEMPORARY BENEFITS - FULLY RECOVERED.   Where the employee=s treating neurologist had found the employee to have attained MMI and his symptoms to have Alargely resolved@ on June 3, 1999, and where the neurologist had released the employee to return to work without restrictions on that same date, the compensation judge=s termination of benefits on that date pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), based ostensibly on the doctor=s unrestricted medical release to work on that date, was not clearly erroneous and unsupported by substantial evidence under the statute.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where it was not unreasonable to conclude that employee eventually benefitted at least somewhat by the medical treatment at issue once prescribed medication was being funded by an agency other than the employer and insurer, who had denied coverage, and where it was not unreasonable to conclude that physical therapy for the employee=s neck pain, concurrent with treatment for his headaches, was referable to his work-related head injury, the compensation judge=s award of payment for the medical expenses at issue was not clearly erroneous and unsupported by substantial evidence.

 

REHABILITATION - CONSULTATION.  Where the court had affirmed the compensation judge=s termination of the employee=s wage replacement benefits prior to ninety days post MMI pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), based on an apparent conclusion that the employee was without any residual disability related to his work injury, the judge=s award of a rehabilitation consultation was reversed, pursuant to the defense of complete recovery identified in Judnick v. Shalom Home West, slip op. (W.C.C.A. Aug. 4, 1995).

 

Affirmed in part and reversed in part.

 

Determined by Pederson, J., Wilson, J. and Rykken, J.

Compensation Judge:  William R. Johnson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's conclusion that the employee sustained a work-related head injury and, alternatively, from the judge=s award of temporary total disability benefits, payment of certain medical expenses, and a rehabilitation consultation.  We reverse the award of the rehabilitation consultation and affirm as to all other issues.

 

BACKGROUND

 

In August of 1998, Augustin Ortega was employed as a forklift operator at Medallion Kitchens of Minnesota [the employer].  Mr. Ortega [the employee] was thirty-seven years old at the time and was earning a weekly wage of $527.42.  His use of English was and remains rough, English being his third language after Spanish and a Native American dialect.  On the morning of Wednesday August 5, 1998, the employee=s supervisor noticed that the right side of the employee=s face was disfigured and arranged for him to be taken to a hospital emergency room by the employer=s human resources assistant.  At the emergency room, the triage nurse reported the following history: Apt noticed R sided facial droop last [night], has cont to get worse, now weakness and numbness of R side of face, unable to blink R eye, also [complains of headache] behind head and over for[e]head, hand grasps equal and strong, denies leg weakness, denies [shortness of breath].@  The emergency room discharge form identifies Aposs[ible] stroke@ as the employee=s chief complaint.  The employee underwent a CT scan of the brain, which was read to reveal Ano evidence of intracranial hemorrhage@ and A[d]ense calcification in the right supraclinoid region, [which] could represent a small aneurysm@ but A[n]o etiology for facial weakness.@  The physician on duty, Dr. Laurie Drill-Mellum, reported that the employee=s headache was Anot significant for him@ and diagnosed ABell=s Palsy,@ with an A[i]ncidental finding of intracerebral calcification.@  She instructed the employee to follow up with Dr. Barbara Steadman and to undergo an MRI scan as soon as possible.

 

The employee next came to work five days later, on Monday, August 10, 1998.  On that date, he was sent home for not having a physician=s permission slip to return to work, apparently after filling out an employer=s AUnsafe Conditions Form.@  On the form, he indicated that, on August 4, 1998, because his foot was wet as a result of his stepping in a puddle of water, he had fallen from his forklift to the floor and had hit the right side of his head and his ear on a stack of pallets.  The following day, August 11, 1998, the employee saw a physician at the Lakeview Clinic,^[1] who noted the following history:

 

[The employee] was seen about one week ago by Dr. Drill Mellum for Bell=s palsy. Patient was treated with one week course of Famvir.  Patient has not really noticed any change in his right facial paralysis.  He puts an eye patch over his right eye at night.  Occasionally bites the inside of his right cheek when he is chewing food.  It is interesting now that the patient states that all of a sudden he remembers that he hit his head at work one day prior to the onset of his symptoms.  I have advised him that head trauma would not be related to the onset of Bell=s palsy which his symptoms are quite classic for.

 

Findings on examination included facial droop and the inability to voluntarily close the right eyelid.  The employee was released to return to work without restrictions as of August 12, 1998, but evidently did not do so, apparently due to continuing headaches.  On August 13, 1998, the employee underwent an MRI scan of his brain.  The radiologist=s report lists A[h]eadaches@ as the reason for the exam.  The scan was read to reveal findings consistent with a small aneurysm, with no evidence of leaking blood or other abnormality.  The radiologist recommended an angiogram Afor further evaluation of this finding.@

 

On August 14, 1998, the employee was examined by neurologist Dr. Frederick Strobl.  In-processing documentation indicates that the employee=s present symptoms were of Bell=s palsy, Asevere headachesBconstant,@ and inner ear pain.  Dr. Strobl reported that the employee had fallen at work on August 4, 1998, and Ahit the right side of his head on his ear.@  He noted that the employee=s CT and MRI scans had suggested the presence of a small calcified aneurysm.  On examination, Dr. Strobl also noted that the employee had Ablood in his right external auditory canal and it appears swollen.@  On these findings, and noting that the employee had been having headaches, Dr. Strobl diagnosed A[c]losed head trauma,@ and A[p]robable right basilar skull fracture with hemotympanum,@ acknowledging that neither of the employee=s scans had actually verified such a fracture.  On that diagnosis, and noting again Awhat appears to be an incidental aneurysm,@ Dr. Strobl referred the employee to neurosurgeon Dr. Edward Hames.

 

Dr. Hames examined the employee on that same date, August 14, 1998.  Dr. Hames reported a similar condition and accident history as that reported by Dr. Strobl, noting specifically the following detail:

 

The injury occurred about 11:00 AM.  By 1:00, he began noting increasing headaches bifrontally and over the right temporal area and increasing dryness of the right eye.  When he returned home that evening, his fiancé noted there was increasing eye irritation and mild weakness of the right face.  When he awoke on Wednesday morning, he clearly had a substantial right facial palsy and subsequently was seen in the emergency room.

 

Dr. Hames indicated that the employee=s CT scan had demonstrated no intracranial pathology but the possibility of a small aneurysm that subsequently appeared verified by the employee=s MRI scan.  Noting that the employee had throbbing, pounding bifrontal headaches and a mildly decreased amount of hearing in the right ear, Dr. Hames reiterated Dr. Strobl=s diagnosis of right hemotympanum consistent with a basilar skull fracture.  After a neurological examination revealed Aright peripheral seventh weakness@ and an ear examination revealed a tear in the tympanic membrane and hemotympanum behind that tear, together with a mild hearing loss, Dr. Hames diagnosed a post-traumatic basilar skull fracture with subsequent right facial weakness, and he ordered a CT scan of the skull base and temporal bone.

 

The CT scan was conducted on August 19, 1998.  Although irregular in several ways, the scan was not definitive of a basilar skull fracture, and, by a notice to the employee dated August 21, 1998, the insurer denied liability for the employee=s condition.  On August 25, 1998, Dr. Steadman wrote to the insurer, requesting that it reconsider its denial of liability.  In her letter, Dr. Steadman indicated that, when she had seen him a week after his symptoms began, the employee Awas complaining of a severe right-sided headache which is not typically seen with Bell=s palsy.@  She suggested that the employee had not reported his injury at the emergency room Abecause he was unaware of any significance.@  Dr. Steadman reiterated that Dr. Strobl had subsequently noticed blood in the employee=s right ear and had concluded that the employee had probably suffered a basilar skull fracture to which the employee=s right-sided facial weakness might be secondary.  Dr. Steadman concluded in her letter that, in her opinion, the employee=s disability Ais clearly work related.@  On August 27, 1998, notwithstanding the nondefinitive nature of the employee=s CT scan, Dr. Hames wrote to Dr. Strobl opining that the employee Ahas sustained a basilar skull fracture with no fracture extension into the anatomical regions of the facial nerve itself.@^[2]

 

In treatment notes dated September 15, 1998, Dr. Steadman reiterated her diagnosis of a work-related head injury, suggesting that that injury had caused both a basilar skull fracture Aand secondary right 7^th nerve impingement.@  She noted that the Bell=s palsy-like symptoms seemed to be slowly resolving but that the employee still did not feel that he could return to work yet because of his inability to close his right eye.  On October 21, 1998, the employee filed a Claim Petition, alleging entitlement to temporary total disability compensation continuing from August 11, 1998, based on an Ainjury to head@ related to his work for the employer on August 4, 1998.

 

On October 22, 1998, the employee was examined by neurosurgeon Dr. Andrew Smith.   In his treatment notes, Dr. Smith indicated that the employee=s current complaints included persistent headache, together with some decreased hearing.  Upon examination, Dr. Smith reported the Apresumption@ that the employee had a history of petrous bone fracture and associated right facial paresis, with the possibility of some decreased hearing Athat I think needs to be fully evaluated.@  On examination Dr. Smith found Aslightly reduced hearing@ and Aa small amount of dried blood along the external auditory canal, probably a residual of the basilar skull fracture,@ but no apparent blood behind the tympanic membrane, which appeared to be intact.  Dr. Smith recommended an ear-nose-and-throat evaluation and further consultation for the employee=s Achronic post traumatic headaches.@  On November 3, 1998, the employee was examined by ear, nose, and throat specialist Dr. Gregory Jones for assessment of Arecent head trauma@ and Aright temple bone fracture.@  Upon examination, Dr. Jones noted that the employee=s tympanic membranes appeared mildly sclerotic and that he had mild to minimal facial weakness with A[n]ear complete closure [sic] of the right eye.@  On those findings, Dr. Jones diagnosed A[h]ead injury,@ prescribed medication, and recommended a social services agency for coverage assistance.

 

On November 6, 1998, the employee called Dr. Steadman, complaining of continuing persistent headaches and his inability to fill his pain medication prescription for lack of money.  Three days later, the employer and insurer answered the employee=s claim petition, affirmatively asserting that the employee=s alleged disability and need for medical treatment were solely the result of significant nonwork-related disease processes or superseding intervening injuries and/or nonwork-related activities.

 

On January 14, 1999, the employee was examined for the employer and insurer by neurologist Dr. Bruce Van Dyne.  Dr. Van Dyne diagnosed an A[a]lleged work-related incident of 8/4/98 which appears to have resulted in a mild closed head injury,@ but he found no documented basilar skull fracture or any other skull or brain injury.  Dr. Van Dyne also diagnosed an A[i]diopathic Bell=s palsy unrelated to the 8/4/98 work incident,@ together with A[n]onspecific headaches,@ which he considered A[unlikely to] represent a post-traumatic vascular headache syndrome.@  Dr. Van Dyne indicated that A[a]ny effects of the injury itself were limited to the momentary occurrence of the incident with no continuing manifestations of that incident beyond that date and no permanent residual as a result of that incident.@  As evidence that no fracture had occurred, Dr. Van Dyne noted that the employee did not sustain any immediate loss of consciousness or other cognitive impairment, that he was able to immediately resume work, and that his medical records did not document any early report of or symptoms of a traumatic head injury.  The doctor concluded that the employee was capable of full-time employment without physical restrictions and that any treatment or diagnostic evaluation aside from his initial emergency room evaluation and CT scans of his head and petrous bones was unrelated to any work injury of August 4, 1998.   He concluded that the employee had reached maximum medical improvement [MMI] from any work injury that he had sustained, that his headaches were unrelated to such an injury, that he required no further medication or treatment for such an injury, that there was a significant Afunctional@ component with regard to his complaints, and that his work injury had not resulted in any ratable permanent partial disability.

 

On January 29, 1999, the employee was examined for further management of his headache by neurologist Dr. Soren Ryberg, who noted that the employee was accompanied that day by his brother, Awho helped translate at times.@  Dr. Ryberg reported that the employee was injured at work on August 4, 1998, when he slipped from a forklift and that he was initially diagnosed as having Bell=s palsy.  Having not yet completed his review of the employee=s records, Dr. Ryberg reported that the employee Athen had a CT scan of the head and was found to have a skull fracture.  I do not have a copy of that report.  I assume it was probably a basilar skull fracture.@  Having reported also that the employee had had a constant and severe headache, he opined after neurologic examination that A[t]he focal tenderness of the right hemicranium correlates well with [the employee=s] symptoms and the injury as described.@  When the employee returned for follow-up on February 19, 1999, Dr. Ryberg noted, in addition to Aquite a bit of tenderness over the right temporal region,@ that A[t]he neck is tender,@ characterizing the employee=s symptoms as Aunchanged.@  He noted also that the employee had not gotten his pain prescriptions filled because A[h]e did not have the money, and the work comp insurer is apparently not paying.@  Dr. Ryberg gave the employee a month=s supply of medication, restricted him from working more than four hours a day and lifting over ten pounds, and referred him for physical therapy.

 

When he saw the employee again on March 3, 1999, Dr. Ryberg found the employee=s Aclinical status is about the same@ and that MMI had not been reached.  On March 4, 1999, the employee commenced physical therapy Awith a diagnosis of head and neck pain@ that was reported Aconstant since a work injury on 8/4/98.@  The report recounts that the employee had sustained his condition with the slip and fall from the forklift and that Ait was finally diagnosed that he had a fracture of the skull which has caused him these headaches and neck problems.@  The employee=s problem was defined as A[c]onstant headache and right upper neck pain secondary to skull fracture suffered on 8/4/98.@

 

On April 5, 1999, Dr. Ryberg, responding to queries of the employee=s attorney, explained that the initial emergency room diagnosis of Bell=s palsy was incorrect because A[a] Bell=s palsy is a facial weakness that develops spontaneously,@ whereas A[t]he [employee] suffered a traumatic injury to the facial nerve.@  He noted also that A[t]he most limiting problem at this time for the [employee] are his headaches@ and that it was Atoo early to state whether or not the [employee] has a permanent disability.@  In treatment notes for April 15, 1999, Dr. Ryberg indicated that the employee=s headaches had diminished considerably and that he Awould like to try working without restrictions.@  While indicating expressly that MMI still had not been attained, Dr. Ryberg released the employee Ato try working without restrictions,@ referring him Afor about two weeks of work conditioning, which should also help him get to the point where he is able to work without restrictions by the time he might actually have to start a job.@  When he saw the employee again on April 29, 1999, Dr. Ryberg noted that the employee was Ahaving a little more problem with headache@ subjectively and had Asome tenderness in the right mastoid and occipital region@ objectively on examination.  Nevertheless, Dr. Ryberg released the employee again on that date to work without any restrictions, indicating again that the employee had not yet attained MMI and noting that the employee had Ahad to get some money from a church in order to buy@ his prescribed pain medication.  In a treatment note on a follow-up examination of the employee on June 3, 1999, Dr. Ryberg reiterated his release to work without restrictions, indicating now that the employee=s A[s]ymptoms have largely resolved.  I think MMI has been attained.@

 

On June 30, 1999, the employer=s former human resources assistant, Pamela Green, who had driven the employee to the emergency room on August 4, 1998, testified by deposition.  Ms. Green testified in part that the employee had not complained, either on the way to the hospital or on the way home from the hospital, of any injury that he had sustained the previous day at work.  On July 8, 1999, Dr. Van Dyne also testified by deposition.  Dr. Van Dyne reiterated conclusions he had drawn on examination of the employee on January 14, 1999, to the effect that the employee had not exhibited symptoms of a traumatic head or nerve injury at the time of his examination, noting also that he had examined the employee=s ears and found both the external ear canals and the tympanic membranes normal.

 

The matter came on for hearing on July 9, 1999.  Issues at hearing included whether the employee had sustained a work-related head injury on August 4, 1998, and, if so, whether the employee had been temporarily totally disabled by that injury since August 11, 1998, whether certain  medical care by various providers was reasonable and necessary treatment for that injury, and whether the employee was entitled to a rehabilitation consultation as a result of that injury.  The parties stipulated at hearing that the employee was briefly employed with an employer other than the employer for a two-week period at the end of December 1998.  At hearing, the employee testified that he had no history of chronic headaches prior to August 4, 1998, that he fell on that date and injured his head at work as claimed, and that ever since that time he continues to suffer from debilitating headaches and an inability to concentrate.  The employee also introduced job search logs at the hearing, documenting contacts with twelve potential employers between January 11, 1999, and June 13, 1999.  By Findings and Order filed September 7, 1999, the compensation judge concluded in part that the employee had suffered the work injury claimed and that as a result of that injury he was entitled to temporary total disability benefits from August 11 to December 11, 1998, and from December 28, 1998, to June, 3, 1999; to payment of the medical expenses claimed exclusive of those for treatment for the employee=s aneurysm; and to a rehabilitation consultation.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

Primary Liability

 

In Finding 3, the compensation judge concluded that the employee had proven a closed head injury at work on August 4, 1998.  In that same finding, the judge indicated that, in so finding, he had adopted the opinion of Dr. Hames, that the employee has symptoms consistent with a basilar skull fracture with no fracture extension into the facial nerve itself, together with the testimony of the employee, as to his fall at work on the date at issue.  The employer and insurer suggest that the judge=s decision was apparently based also on conclusions that the employee had symptoms consistent with trauma, had an immediate complaint of headaches, and had, as noted by Dr. Hames, a tear in his tympanic membrane and hemotympanum behind that tear.  The employer and insurer contend that these conclusions are contrary to the medical evidence. We are not persuaded.

 

At the very outset of his explanatory Memorandum, the compensation judge acknowledges that the Akey issue in this case revolves around the employee=s credibility.@  The judge goes on to state that he did find Athat the employee is a credible witness and that the nature of the injury does corroborate his story about a fall at work just prior to his being seen for a partial facial paralysis.@  The assessment of a witness's credibility is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  It is apparent from the transcript of the hearing that the compensation judge listened to substantial testimony contrary to the employee=s version of events^[3] and nevertheless opted to accept the employee=s version.  This was the compensation judge=s unique prerogative.  See id.  Regardless of what might have been the precise medical consequences of the fall, the employee=s claim and the judge=s finding that the employee fell and injured his head at work on August 4, 1998, is substantially supported by the testimony of the employee.

 

The compensation judge=s reliance on the expert medical opinion of Dr. Hames is also entitled to substantial deference under the law, in that a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Having affirmed above the threshold fact that the employee injured himself by falling at work on August 4, 1998, we find no evidence that any material facts premising Dr. Hames=s opinion were false or were, for that matter, materially different from the facts premising Dr. Van Dyne=s contrary opinion.^[4]  Nor do we find it unreasonable that the judge should have accepted medical opinion that the employee=s symptoms on August 5, 1998, as recounted in records described above, were reasonably identifiable as symptoms of fracture-caused nerve damage, even absent radiological evidence of such fracture.  Moreover, there does exist evidence that the employee was complaining of headaches immediately after his credited fall, not only in the employee=s own histories to several physicians of record and to the judge at hearing but also in the short-hand records at the emergency room itself, as noted by the compensation judge.  Further, the evidence of blood in and around the employee=s ear, as reported by at least three different examining physicians, albeit differently observed, is sufficient support for the judge=s crediting of Dr. Hames=s diagnoses, including that of a torn tympanic membrane.

 

Dr. Hames=s opinion that the employee=s headaches, his principal disabling condition, were related to his fall at work on August 4, 1998, is in keeping with the opinions of several other medical specialists, lending that reliance still further support.  The employer and insurer contend that those several supportive opinions are essentially parrots of each other.  However, we note that not only does it appear that the employee in most instances personally recounted that mechanism of injury to each of those supporting experts but also, in each of those instances, the opining expert was in a position not merely to accept a previous physician=s diagnosis but to consider the credibility of such a diagnosis in light of his own examination findings vis a vis the asserted mechanism of injury.  The fact that none of the supporting physicians apparently had any great difficulty attaching the employee=s symptoms and condition to a traumatic mechanism of injury is further support for the compensation judge=s reliance on the opinion of Dr. Hames.  It is apparently uncontested even by the employer and insurer=s expert, Dr. Van Dyne, that Bell=s palsy is an idiopathic dysfunction and not one normally induced by trauma.  Nor did the employee apparently have any history of Bell=s palsy prior to his fall at work.  In that the judge=s decision in this case was initially founded in his unique perspective for the assessment of the credibility of witnesses, in that it was further supported by properly founded and corroborated expert medical opinion, and in that that decision was not otherwise unreasonable, we affirm the compensation judge=s finding of primary liability on the part of the employer and insurer.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Temporary Total Disability

 

In Finding 5, the compensation judge found that the employee was entitled to temporary total disability benefits from August 11 through December 11, 1998, and from December 28, 1998, through June 3, 1999.  The award for the earlier period was not appealed from.  With regard to the latter period, the employer and insurer contend that, even if he did sustain the work injury alleged, the employee is not entitled to the benefits at issue, because he did not conduct a diligent job search during that time and because he was released to work without restrictions as of April 15, 1999.  We are not persuaded.

 

At hearing, the employee introduced into evidence job logs documenting contacts with only twelve potential employers over the nearly six-month period of benefits here at issue.  The number of job contacts is but one factor, however, in determining the reasonableness of an employee=s job search; in making that determination, a compensation judge is to consider the reasonableness of the search Aunder all the facts and circumstances@ of the case.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989), quoting Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988). In finding that the employee=s job search in this case was sufficient, the compensation judge concluded in Finding 5 that,

 

[w]hile his work search was not extensive, it at least indicates to the Compensation Judge that [the employee] was trying to find work.  Since he had no income at this point, it hardly appears that he would have been doing otherwise.  He was unable, due to lack of funds, to get the Amitriptyline prescription filled initially . . . .

 

In his Memorandum, the judge added that he had Ataken into account the employee=s lack of funds and transportation and the fact that the employee was not provided with any vocational assistance.@  The determination of whether an employee has performed a sufficiently diligent job search to permit an award of benefits has been held to be a factual question for resolution by the compensation judge, and A[i]t is not for this Court to second guess th[at] factual determination.@  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983).  Although a contrary conclusion might also have been affirmable, and given also the employee=s evident language difficulties, we cannot conclude that the judge was unreasonable in finding that the employee=s job search from December 28, 1998, to June 3, 1999, was sufficiently diligent so as not to preclude an award of temporary total disability benefits in light of all the facts and circumstances of this case.

 

Near the end of Finding 5, the compensation judge stated also as follows:

 

[B]y March of 1999 [the employee] reported his headaches were getting a little better.  On April 15, 1999, the employee was released to work by Dr. Soren A. Ryberg, but only after two weeks of conditioning.  Ultimately by June of 1999 Dr. Ryberg released the employee without any restrictions and at that point the employee=s claim for wage loss benefits ended.  Kautz v. Setterlin Corp., [410 N.W. 2d 843, 40] W.C.D. [206] ([Minn.] 198[7]).

 

(Emphasis added.)  In the case cited by the compensation judge, the supreme court indicated that an employee is not entitled to temporary total disability benefits through ninety days post-MMI Awhere the employee is found medically able to return to work without restrictions, having suffered no residual disability.@  Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).  Subsequent to the court=s decision in Kautz, this rule has been essentially codified in the statute, which provides more simply that A[t]emporary total disability compensation shall cease if the employee has been released to work without any physical restrictions caused by the work injury.@  Minn. Stat. ' 176.101, subd. 1(h).  The employer and insurer contend that substantial evidence does not support the compensation judge=s termination of benefits on June 3, 1999, instead of on April 15 or, at the latest, April 29, 1999.  We disagree.

 

On April 15, 1999, Dr. Ryberg noted that, although the employee=s symptoms and findings had improved, they nevertheless persisted, and MMI had not been attained.  He released the employee to try working without restrictions in conjunction with a two-week conditioning program to Ahelp him get to the point where he is able to work without restrictions.@  Although Dr. Ryberg=s office note two weeks later reported AI am again writing no restrictions at this time,@ the doctor again reported that the employee=s symptoms persisted, again provided medication, and again concluded that AMMI has not been attained.@  However, on June 3, 1999, Dr. Ryberg=s unrestricted release to work was accompanied by a declaration that the employee had reached MMI and a conclusion that his A[s]ymptoms have largely resolved.@  Evidently the compensation judge interpreted Dr. Ryberg=s notes to conclude that June 3, 1999, was ultimately the date upon which the employee was Amedically able to return to work without restrictions, having suffered no residual disability@ attributable to his work injury.  Dr. Ryberg=s notes could be viewed as somewhat equivocal, and we conclude that the compensation judge=s determination was not unreasonable under the statute.

 

Because the judge=s conclusions as to the employee=s job search and full release to work without restrictions on June 3, 1999, were not unreasonable, we affirm the compensation judge=s award of temporary total disability benefits through that date.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Medical Treatment

 

In Finding 9, the compensation judge found that, except for treatment related to the employee=s aneurysm, all medical treatment for which the employee sought payment was reasonable and necessary treatment for his work injury.  The employer and insurer contend that both the employee=s medical treatment with Dr. Ryberg and his physical therapy at Abbot Northwestern Hospital were not reasonable and necessary, in that there is no evidence that Dr. Ryberg=s treatment was beneficial and in that the physical therapy at issue was to the employee=s neck, not to his work-related head injury.  We are not persuaded.

 

It is clear that, when he first sought treatment with neurologist Dr. Ryberg, the employee was seeking relief particularly from the headaches that we have here affirmed as being causally related to the employee=s August 4, 1998, work injury.  Therefore it was not at all unreasonable for the employee to commence the treatment at least for diagnostic purposes.  To the extent that Dr. Ryberg=s initial treatment may appear to have been relatively ineffective, at least part of the burden for the treatment=s ineffectiveness must be borne by the employer and insurer, who refused to pay for the medication that Dr. Ryberg was prescribing.  Moreover, when he evidently eventually located alternative means of paying for the medication prescribed by Dr. Ryberg, the employee=s symptoms did apparently improve substantially, until by June 3, 1999, they had Alargely resolved.@

 

With regard to the employer and insurer=s contention that physical therapy to the employee=s neck should have been found noncompensable, it is clear from several of Dr. Ryberg=s own medical records beginning at least as of February 19, 1999, as well as from records of the employee=s eventual physical therapy, that treatment experts were directly implicating the employee=s neck pain in the predominantly head pain that was being attributed to his August 1998 work injury.  Given these express records of treatment experts attributing neck symptoms to the employee=s work injury, and given the specifically basilar location of the head fracture that was part of the employee=s diagnosis, it would not have been unreasonable for the compensation judge to find treatment of the neck, rendered as it was so simultaneously with head treatment, compensable.

 

In the end, it would not be unreasonable to conclude that employee did benefit eventually at least somewhat by Dr. Ryberg=s treatment once physical therapy and funding for the prescribed medication were in place.  Nor would it be unreasonable to conclude that treatment for the employee=s neck pain, concurrent with treatment for his headaches, was referable to his work injury and so compensable.  Therefore, we affirm the compensation judge=s award of treatment expenses exclusive of expenses directly associated with treatment of the employee=s cerebral aneurysm.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Rehabilitation Consultation

 

In Finding 10, the compensation judge concluded that A[b]ecause the employee has established primary liability in this case the employer has to provide a rehabilitation consultation,@ adding, AHowever, since the Compensation Judge has also found the employee has been released without restrictions, it appears dubious that such a consultation will serve much purpose.@  Citing case law, the employer and insurer contend that a finding of primary liability does not by itself mandate a rehabilitation consultation and that, moreover, an employee who has fully recovered from his disability is in fact not entitled to a rehabilitation consultation.  We agree.

 

In Judnick v. Shalom Home West, slip op. (W.C.C.A. Aug. 4, 1995), we indicated that, whereas an employer and insurer may not defeat a request for a rehabilitation consultation by simply arguing that rehabilitation services are not vocationally necessary, certain other more threshold defenses are available, including an assertion that the employee has recovered completely from the work injury.  See also Kennedy v. Falls Memorial Hosp., slip op. (W.C.C.A. Sept. 9, 1998); cf. West v. RIE Coatings, Inc., slip op. (W.C.C.A. May 20, 1997) (where the judge=s finding of entitlement to benefits for a temporary injury was vacated as premature, so was the finding of entitlement to a rehabilitation consultation).  As indicated above, it is apparent that the compensation judge found the employee to have no longer any residual disability related to his work injury as of June 3, 1999, the same date as that on which he reached MMI, and therefore was not entitled to wage replacement even for ninety days after MMI.  In that we have affirmed that conclusion, we reverse on the same basis the judge=s award of a rehabilitation consultation, pursuant to the defense of complete recovery as identified in Judnick.