BARBARA CHILDERS, Employee/Appellant, v. HONEYWELL, INC., SELF-INSURED, Employer/Cross-Appellant, and MINNESOTA PHYSICAL MEDICINE, P.A., and ALBERT MCCAFFREY, QRC, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 10, 2002

 

HEADNOTES

 

WAGES - SELF-EMPLOYMENT; CALCULATION OF BENEFITS.  Where it was apparently only out of courtesy and evidentiary efficiency that the employee agreed to the employer=s suggestion that she submit only abbreviated tax records of business expenses instead of the complete tax records that she had intended to submit, and where the compensation judge had denied a depreciation deduction in calculating the employee=s post-injury wage due to insufficient factual support for the deduction, the issue of the employee=s post-injury wage was remanded to the compensation judge for redetermination after consideration of the employee=s complete tax records.

 

REHABILITATION - COOPERATION.  An injured employee has no affirmative obligation to request rehabilitation services, and, particularly in that the employer had apparently agreed to the suspension of rehabilitation services early in the period, the judge=s finding that the employee had no rehabilitation assistance during the benefits period at issue would not be reversed simply based on the employee=s failure to affirmatively request renewal of services when her earnings at her real estate business began to dip.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE; TEMPORARY PARTIAL DISABILITY.  Particularly where the employee is self-employed post-injury, hourly wage is not necessarily an index of post injury weekly earning capacity, nor are actual wages at post-injury self-employment to be denied the rebuttable presumption that they represent an employee=s earning capacity.  Where the employee=s annual income at her full-time real estate business had gradually increased for five years before following a reverse trend for the three years at issue, where that job well accommodated the employee=s physical restrictions and was one that the employee evidently liked and worked hard at, and where that work had been found by a compensation judge in an earlier proceeding to be suitable post-injury employment for the employee, the compensation judge=s conclusion that the employee=s actual earnings at her real estate job reflected her earning capacity was not clearly erroneous and unsupported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY - OBJECTIVE FINDINGS.  Where there were minimal but sufficient references to objective examination findings in the records of three treating physicians, including findings of significant muscle spasm and asymmetrical and/or absent lower extremity reflexes, the compensation judge=s rating of the employee=s low back permanent partial disability under a category requiring objective neurologic finding was not clearly erroneous and unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Where the treatment expenses at issue were all medically related rather than chiropractic, where the employer had not raised the treatment parameters as a defense before the compensation judge and the judge had made no reference to them in her findings and order, and where the need for the treatment at issue was affirmed by at least two medical doctors and a psychologist, the employer=s reliance on chiropractic case law and on rules in the treatment parameters was misplaced, and the compensation judge=s award of payment of the medical expenses at issue as reasonable and necessary was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed in part and remanded.

 

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

Compensation Judge:  Peggy A. Brenden.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's preclusion of depreciation expenses in the calculation of the employee=s business expenses in the determination of the employee=s post-injury earning capacity.  The self-insured employer cross appeals from the judge=s conclusion that the employee=s actual earnings at self-employment accurately reflect her earning capacity, from the judge=s award of permanent partial disability benefits, and from the judge=s award of various medical expenses.  We remand for reconsideration the judge=s preclusion of depreciation expenses, and we affirm the judge=s decision in all other respects.^[1]

 

BACKGROUND

 

On November 28, 1990, Barbara Childers sustained a work-related low back injury and consequent depression in the course of her work as a senior property administrator with Honeywell, Inc. [the employer].  Ms. Childers [the employee] was forty-four years old on that date and was earning a weekly wage of $454.61.  The employee was seen by Dr. Gary Good, who referred her to neurologist Dr. Steven Noran, who upon examination found the employee to have a Aclinical picture of an acute lumbosacral sprain/strain syndrome with components of lumbar radiculopathy.@  Dr. Noran noted in that regard that the absence of bilateral ankle reflexes Ameans that she could have a central disc herniation,@ but X-rays and a CT scan on December 6, 1990, appeared essentially normal.  The employee=s pain continued, however, and on January 9, 1991, Dr. Noran noted Amarked spasm of the paraspinous lumbar muscles@ and ordered an MRI scan.  The MRI revealed a disc herniation at L5-S1, but it was read to reveal no evidence of any nerve compression.  On May 21, 1991, Dr. Noran reported that the employee had ongoing low back pain that was Aradiating into the left leg.@  In that same month the employee was laid off by the employer and commenced vocational rehabilitation with QRC Albert McCaffrey.  Dr. Noran=s examination of the employee=s low back on September 11, 1991, revealed spasm in the employee=s low back, but on February 10, 1992, he continued to find the employee to be Awithout clear-cut evidence for radiculopathy.@  On March 4, 1992, the employee reached maximum medical improvement [MMI] with regard to her low back injury.^[2]  Finally, on November 24, 1992, Dr. Noran diagnosed the employee=s low back condition in part as a A[c]hronic low back injury with lumbar disc herniation and sprain/strain,@ assigning to that condition a permanent partial disability rating of 14% of the whole body.

 

In February of 1993, the employee commenced work as a real estate agent, eventually working between forty and seventy hours a week at that profession.  The employee=s annual gross receipts from her real estate work increased annually for the first few years,^[3] and on June 22, 1995, she reached MMI with regard to her depression injury.^[4]  In a report dated November 30, 1995, QRC McCaffrey indicated,

 

Overall, it is this consultant=s opinion that [the employee] continues to make a good faith effort to do the most sensible and safe (medically and vocationally speaking) return to work planning that she finds available for her at present - primarily in the area of real estate sales at Edina Realty.  However, [the employee] continues to be open to the possibility of further possible vocational retraining options in the future.

 

By an addendum to that report dated January 18, 1996, QRC McCaffrey reiterated that Athe vocational direction of Real Estate Sales would appear to be the most medically and vocationally appropriate return to work rehab goal, at this point in time.@  The employer ultimately placed the employee=s rehabilitation assistance on hold,^[5] while continuing to pay the employee temporary partial disability benefits.^[6]   By findings and order filed in this matter on March 13, 1996, it was determined that the employee had made a reasonably diligent search for post-injury work, that her employment as a real estate agent during the benefits period February 18, 1993, through December 31, 1994, had been suitable employment for her, and that her actual earnings during that period had reflected her actual ability to earn.  These conclusions were affirmed by an unappealed decision of this court issued December 3, 1996.

 

The employee=s annual real estate income continued to increase each year through 1997, in which year her net earnings from that work actually exceeded for the first time her earnings in the year of her work injury.^[7]  In 1998, however, her net earnings began a three-year decline, which eventually reached in 2000 a five-year low before apparently heading for a rebound in 2001.^[8]  In the context of that decline, the employee began experiencing renewed low back pain, which in turn apparently increased her depression.  On June 30, 1999, she underwent another lumbar MRI scan, which revealed her disc herniation at L5-S1 but again no evidence of any nerve root impingement.  On August 23, 1999, Dr. Robert Jacoby, an associate at Dr. Noran=s clinic, reported that he had done a repeat MRI scan of the employee=s back, which had revealed the disc herniation at L5-S1 to be still not directly impinging on a nerve root but its Adisc material lying contiguous with the ventral aspect of the thecal sac.@

 

 On November 28, 2000, the employer=s claims administrator, Katie Rud, wrote to the employee, asserting that temporary partial disability benefits were being discontinued on grounds that the employee was underemployed, that her earning capacity exceeded her actual earnings, that her job was unsuitable, and that she had withdrawn from the competitive job market.  Ms. Rud indicated also that she had assigned QRC Lynne Meckstroth to assist the employee in finding other employment.  In reply to Ms. Rud=s letter of November 28, 2000, the employee apparently contacted Ms. Rud and informed her that QRC McCaffrey was already assigned to her case.  Mr. McCaffrey=s records indicate that Ms. Rud then called Mr. McCaffery on November 29, 2000, apparently authorizing continuation of his work with the employee.  On December 13, 2000, correcting an earlier conclusion, Dr. Jacoby wrote to Ms. Rud to indicate that the herniation he observed on his August 1999 MRI was not, in his opinion, a Anew disc herniation@ after all but was instead one Arelated to the old accident that she had back in 1990.@

 

An R-2 Rehabilitation Plan was evidently signed by the employee and her QRC on January 17, 2001, but was not promptly delivered to the employer=s claims administrator, and on February 9, 2001, a Notice of Intention to Discontinue benefits was served on the employee, indicating that benefits had been terminated as of December 31, 1998.  On March 11, 2001, Mr. McCaffrey reported to Ms. Rud that, A[p]er your request (11/29/00)@ he had Aproceeded with reactivization of Ms. Barbara Childers= rehabilitation file@ (emphasis added).  In that same report, Mr. McCaffrey indicated that it was his opinion that the employee Acurrently is continuing to follow up with her overall rehabilitation processes in a smart, committed, and cooperative manner.@

 

On March 29, 2001, the employee was examined by physiatrist Dr. Karen Ryan, who noted the employee=s history of a November 1990 work injury, of subsequent depression, and of that depression=s relationship to the physical injury.  Dr. Ryan=s diagnosis was of low back pain and degenerative disc disease, with Afindings of significant muscle spasm, weak back extensors, asymmetrical LE reflexes, meralgia paresthetica, and, from [the employee=s] history, . . . intermittent SI/pelvic dysfunction with loss of alignment.@  On that diagnosis, Dr. Ryan recommended a health club exercise program with pool activities and released the employee to continue to work within restrictions, adding that Athe duties of a realtor do offer her a needed variety of quite light duty activities@ and that A[t]he walking she does, as well as the opportunity to sit and stand, practically ad lib, are also beneficial.@

 

On March 30, 2001, the employee filed an Objection to Discontinuance, contending that she was entitled to temporary partial disability benefits beginning with and continuing from the calendar year 1999, together with reimbursement for underpayment of earlier benefits, based apparently on inaccurate deduction of business expenses for calendar years 1993 through 1996 and 1998.  On May 10, 2001, the employee also filed a claim petition, which she amended on June 13, 2001, claiming entitlement to payment of certain medical expenses and to compensation for an impairment to 14% of her whole body, based on her November 1990 work injury.

 

The employee saw Dr. Ryan again in April and in May 2001, as her symptoms continued to deteriorate.  On May 31, 2001, Dr. Ryan indicated that the employee=s Acurrent exacerbation appears to be related not only to the increased sitting she has had to do, for evaluation and job search activities, but also to the stress she is under because of increased time demands in her schedule,@ noting that A[h]er increased pain has further disrupted her sleep, and she is again reporting depression,@ for which the doctor prescribed Zoloft.

 

On June 25, 2001, the employee was examined for the employer by neurologist Dr. Daniel Randa, who concluded in part that there were Ano objective deficits to correlate with [the employee=s] subjective pain complaints.@  Dr. Randa indicated that he found Ano evidence that [the employee] required additional medical care in the fall of 2000 for a work-related injury dating back to 1990@ and that medical intervention at that time had been unnecessary.  It was Dr. Randa =s opinion also that the employee required no specific restrictions, that A[s]he should simply use good judgment with respect to lifting and bending as she has over the last 10 years.@  Finally, Dr. Randa concluded also that the employee=s permanent partial disability should be rated at 9% of the whole body, based on Minn. R. 5223.0070, subpart 1(B)(1)(a), which provides for such a rating for a single herniated disc, not surgically treated, with resolution of objective neurological findings.  The following day, on June 26, 2001, the employer filed its answer to the employee=s amended claim petition, affirmatively alleging that the employee had fully recovered from her work injuries and that her current claim for medical expenses Ais for a non[]work[-]related condition, lacks medical support, is in violation of the treatment parameters and is premature.@

 

On June 27, 2001, the employee underwent an MMPI evaluation by psychologist Gary Donaldson.  Mr. Donaldson, who had previously evaluated the employee in 1992, reported that the most recent MMPI had revealed the employee to be even more depressed than she had been nine years earlier, when she had last taken the test.  Mr. Donaldson concluded that the employee was Awell suited to the work of a realtor,@ although A[s]he probably needs to seek some additional psychotherapy to deal with her depression.@  On July 5, 2001, Dr. Ryan referred the employee to a psychiatrist John Curran, concerned over the employee=s Acontinued reports of depressed mood and anxiety, her apparently minimal response to Zoloft and . . . the report of more significant depression on [the] recent MMPI.@

 

On about July 10, 2001, the employee was interviewed for the employer by psychiatrist Dr. Keith Hartman.  Dr. Hartman diagnosed dysthymia, which he indicated was a common condition that here presented no major vocational handicap to the employee=s work as a realtor.  He found Dr. Ryan=s prescription of Zoloft for the employee=s depression reasonable but ineffective.  On October 3, 2001, QRC McCaffrey issued what was apparently his final report to the employer=s claims administrator.  In that report, Mr. McCaffrey indicated that the employee Acontinues to respond in an appropriate and creative manner with her ancillary job search efforts,@ even while Acontinu[ing] to experience a multitude of medical problems@ in pressing forward simultaneously with full-time work activities.

 

On October 15, 2001, Dr. Ryan issued a report to the employee=s attorney, in which she opined in part the following: (1) that the employee=s November 1990 work injury continued to be a substantial contributing factor in the employee=s ongoing, chronic pain; (2) that the employee was subject to permanent restrictions against prolonged static positions, either sitting or standing, against repetitive lifting, bending, or twisting, against more than occasional stair climbing, and against lifting over fifteen pounds; (3) that the employee continued to require medication and treatment; (4) that the employee was not yet at maximum medical improvement, although her permanent partial disability rating was unlikely to decrease with any anticipated improvement in function; and (5) that the employee was subject to a minimum permanent partial disability of 14% of the whole body related to her low back, based on a single surgically untreated and unresolved herniated disc, Awith persistent neurologic findings of asymmetrical patellar reflexes and absent ankle reflexes.@

 

On October 17, 2001, testimony was taken from Edina Realty=s sales manager, Vickie Gay.  Ms. Gay testified that the employee ranks between thirty-second and thirty-seventh among from fifty-eight to sixty-five agents working out of her office.  She testified also that, under normal contracts, such as the employee=s, a real estate agent shares her commissions with the realty office fifty/fifty until those commissions exceed $24,900 in a calendar year, at which point the agent normally begins keeping ninety percent of the commissions.  Ms. Gay suggested that a major reason why the employee only once or twice exceeded the threshold of $24,900 in commissions in her eight years as a realtor is the fact that the geographical area in which she worksBher Afarm area@--is an area of below-average home prices, prices averaging only about $140,000 each as opposed to the $220,000 agency-wide average.  She testified that it is Avery difficult@ for an agent to break into sales in a higher-priced neighborhood in which she is not already a familiar resident of the community.  Ms. Gay also testified that, if the employee had been putting in seventy hours a week at her real estate work, as the employee has said that she sometimes does, she would expect the employee=s income to be significantly higher than it is.  She testified also, however, that income in the real estate business fluctuates broadly, that nearly every agent at some point in time has a really bad year and at another point in time a really good year, independent of whether the current market happens to be a buyer=s market or a seller=s market, and that A[t]here just doesn=t seem to be any rhyme or reason for it.@  Ms. Gay indicated that the employee was one of the most regular in attending office meetings and that she belonged in that category of agents who work very hard but don=t necessarily make a lot of money at the job.

 

On November 16, 2001, the employee=s attorney obtained a report from psychiatrist Dr. Curran, who had by then examined the employee on three occasions.  Dr. Curran diagnosed chronic pain due to the employee=s work-related lumbar injury on November 28, 1990, together with Adepression secondary to the stress of working full time and simultaneously performing a job search, as mandated by her workers= compensation carrier.@  Dr. Curran emphasized that the employee Ahas learned pain management, that is, she knows what aggravates or mitigates the pain.  However, she is unable to practice what she has learned since, because of her precarious financial situation, she has to both work and search.@  Dr. Curran indicated that his Aonly restriction [on the employee=s activities] is that she cease performing a job search.  Such activities have not prevented her engaging in her chosen profession full time, but without a doubt aggravate her mental and physical suffering unnecessarily.@

 

On November 28, 2001, the employee was evaluated for the employer by vocational expert L. David Russell.  Mr. Russell concluded that

 

[t]here appears little need for the type of medical case management seen[,] as the employee has workable restrictions in the clerical and sales fields for which she is qualified.  She has a very attainable and below average pre-injury wage, a better than average education, a skilled work history, and resides in a strong and sustained job market.

 

In his report, Mr. Russell listed ten job areas that he found the employee particularly suited for, A[g]iven her age, education, work history, transferable skills, locale, and physical restrictions.@  The highest paying of these was real estate agent, with an average hourly wage of $24.08, and the lowest paying was retail sales clerk, with an average hourly wage of $9.97.  Mr. Russell concluded that the employee=s current earning capacity was conservatively $11.05 an hour.  Mr. Russell did not indicate definitively whether or not he believed real estate work to be suitable employment for the employee, but he did conclude that, given the employee=s evident preference to remain in the real estate work at which her income appeared to be declining, Arehabilitation may not hold the answer for this situation.@  As an alternative to further job search in determining the employee=s earning capacity in this situation, Mr. Russell recommended averaging the low and the mean wage for the occupation, which he indicated would result in a conservative earning capacity of $17.02, which, he noted, Aof course far exceeds [the employee=s] pre-injury wage.@  On December 4, 2001, following a labor market survey related to the suitable job alternatives that he had listed in his report a week earlier, Mr. Russell reported good availability of alternative work for the employee, with starting wages ranging from $9.00 to $11.00 an hour.

 

The matter came on for hearing on December 5, 2001, on which date the employee was fifty-five years old.  Issues at hearing included the following:  (1) the employee=s entitlement to temporary partial disability benefits for calendar years 1999 and 2000; (2) the proper treatment of depreciation expenses in the calculation of the employee=s earning capacity for calendar years 1993-1996 and 1998; (3) the employee=s compensable permanent partial disability; and (4) the compensability of certain treatment, medication, medical mileage, and health club membership expenses claimed by the employee.

 

By findings and order filed December 26, 2001, the compensation judge concluded in part, in Findings 5 and 8 respectively, that A[t]he preponderance of evidence fails to establish the employee=s depreciation expense for calendar years 1993-1996, 1998-2000 is deductible in the calculation of the employee=s post injury average weekly wage@ and that A[t]he employee=s actual earnings from 1993 through calendar year 2000Bless business expenses acknowledged by the employerBaccurately measure the employee=s earning capacity.@  The judge concluded further, in Findings 7 and 9, respectively, that the employee had had no professional rehabilitation assistance from April 1993 until late November 2000 and that she had sustained a 14% whole body impairment related to her low back due to her November 1990 work injury.  The judge also concluded, in Findings 10, 11, 12, 13, and 14, that the medical expenses submitted by the employee for payment were reasonable and necessary expenses causally related to her 1990 work injury.  On these bases the compensation judge ordered the employer to compensate the employee for an underpayment of temporary partial disability benefits for 1993 through 1996 and for 1998, with A[e]xpenses acknowledged by the employer@ to be deducted from actual gross earnings to arrive at the employee=s earning capacity, and to pay the employee temporary partial benefits for 1999 and 2000 based on the same calculation method.  The judge also ordered the employer to pay the permanency benefits and medical expenses claimed by the employee.  The employee appeals Ainsofar as these orders allow the employer to determine the amount of business expenses and to exclude depreciation.@  The employer cross-appeals (1) from the judge=s conclusion that the employee had no rehabilitation assistance from April 1993 until November 2000, (2) from the judge=s determination that the employee=s post-injury earning capacity at her self-employment should be based on her actual earnings, (3) from the judge=s award of permanent partial disability benefits, and (4) from the judge=s awards of medical expenses.

 

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

 

1.  Deductibility of Depreciation Expenses from the Employee=s Post-Injury Wage

 

At Finding 5, the compensation judge found that Athe preponderance of evidence fails to establish [that] the employee=s depreciation expense for calendar years 1993-1996, 1998-2000 is deductible in the calculation of the employee=s post-injury average weekly wage.@  The judge explained in her memorandum as follows:

 

Case law would appear, generally, to support the employee=s position.  (Brantl v. Kendrick Electric, WCCA, 3/18/98)  However, certain facts must be present to apply the case law relied on by the employee.  In this case, the requisite facts are not contained in the record.  There is no evidence in the record identifying the assets being depreciated in the years at issue.  It is unclear why the unidentified assets were important in the employee=s real estate work.  There is also no evidence regarding the depreciation method used.  I have no accounting statements, depreciation schedules or expert testimony explaining the employee=s depreciation position.

 

On appeal, the employee contends that the deductibility of depreciation expense in calculating a post-injury wage is first of all a legal issue, not a factual one.  Further, she contends, any evidentiary insufficiency related to that issue is due only to the fact that she was persuaded by the employer off the record on the morning of the hearing--and only for the sake of evidentiary economy--to offer into evidence as proof of her business expenses only the abbreviated tax records being proffered by the employer instead of the complete tax records that she was prepared to offer and had, in fact, already provisionally handed to the judge.  The more complete returns that she was prepared to offer, she maintains, included the complete depreciation schedules themselves, instead of just the ultimate business expense figures that merely reflected her depreciation expenses.  The employee contends that she agreed to this substitution only in reliance on the employer=s representation that it did not intend to contest the employee=s right to depreciation on a factual basis.  We agree that the applicability of depreciation in calculating an employee=s post-injury wage is a legal issue, not a factual one, and, pursuant especially to certain demurrers made by the employer at oral argument, we conclude that the employee is entitled to a remand of the issue for limited reconsideration by the compensation judge.

 

As the compensation judge suggested in her memorandum, case law indicates that depreciation expenses may be applicable in determining post-injury wages in self-employment cases such as this.  See, e.g., Dahlblom v. Carlson Masonry, slip op. (W.C.C.A. Feb. 8, 1993) (depreciation on an employee=s substantial capital investments in his post-injury self-employment may be deducted from the employee=s Adraw@ from the business in determining the employee=s personal post-injury earnings for workers= compensation purposes); Brantl v. Kendrick Elec., Inc., slip op. (W.C.C.A. Mar. 18, 1998), citing Hamilton v. GMW Trucking, 42 W.C.D. 257, 262-63 (W.C.C.A. 1989) (Ain the final analysis the depreciation method is the most fair and reasonable method of arriving at earning capacity for a self-employed person where it is impossible to identify with precision either the useful life or prospective salvage value of equipment which will eventually wear out and be required to be replaced@).  Moreover, tax returns may be a proper measure of an employee=s post-injury earnings in such cases.  Brantl.  Depreciation expenses may only be appropriate, however, Aprovided there is evidence that the amount claimed is an accurate reflection of depreciation.@  Id.  The compensation judge apparently found insufficient evidence in this regard, but it appears that the employee might not fairly be entirely responsible for that insufficiency in this case.

 

On the morning of the hearing, prior to going on the record, the employee=s attorney evidently^[9] handed to the compensation judge complete copies of the employee=s tax returns for the calendar years 1993 through 2000, marked as Petitioner=s Exhibit E.  The employer=s attorney apparently suggested that, for the sake of economy, the employee submit only the AProfit and Loss from Business@ schedules from those returnsBonly the Schedule CsBwhich the employer had prepared to submit as an exhibit in its own behalf.  According to her affidavit, the employee=s attorney

 

asked [the employer=s attorney] to stipulate that the expenses claimed by the employee on her Schedule C=s were all related to the operation of the employee=s business, including the depreciation.  He [the employer=s attorney] agreed that he did not dispute that [the employee=s] claimed expenses were legitimate business expenses, and in reliance thereon, I agreed to allow him to substitute his abbreviated tax records for the complete tax records I originally submitted.

 

That substitution was certified on the record by the judge as being one Aby agreement of the parties.@  Subsequently, at oral argument before this court, the employer=s attorney conceded that he had no quarrel with the legitimacy of the employee=s depreciation deduction as a proper factor in her annual earnings for taxation purposes, and he conceded also that the issue before us was primarily a legal one.  He emphasized, however, that he continued to contest that same tax-oriented deduction as a proper factor in calculation of a post-injury wage for workers= compensation purposes.  He suggested also, however, that both he and the employee=s attorney may have been uncertain as to the consequences of the evidentiary substitution at the time that they agreed to it.

 

We conclude that there was at least some uncertainty as to what was being stipulated to in the referenced substitution of evidence, that the stipulation appears to have been one intended for mere evidentiary efficiency and courtesy, and that neither party appears to have intended by it to concede anything material regarding the issue before us.  To use such a stipulation as a basis for reversal on the presumption that the full tax returns would have satisfied all of the evidentiary requirements of case law would constitute, we believe, an unfair windfall for the employee.  At the same time, to use such a stipulation as a basis for affirming denial of benefits, when that stipulation was initiated by the employer and consented to by the employee apparently only out of courtesy even as she had better evidence prepared for submission, would constitute an unfair windfall for the employer.  Therefore we remand the issue to the compensation judge for redetermination after consideration of the complete tax records originally intended for submission by the employee.  On remand, the judge should not consider any evidence not submitted at hearing other than the complete tax records originally intended for submission.

 

2.  Post-Injury Rehabilitation Assistance

 

Presumably to the extent that it may bear on any job search issue, the compensation judge concluded at Finding 7 that the employee had no rehabilitation assistance from April 1993 until late November 2000.  On cross-appeal, the employer concedes that QRC McCaffrey was not actively assisting the employee during that period, but it contends that the employee had been awarded the services of Mr. McCaffrey in 1995 and had failed to utilize them and that even in 1999, when her gross weekly earnings were only $279.00, well below her date-of-injury weekly wage, the A[e]mployee made no effort to obtain a QRC.@  Asserting that A[t]here is a significant difference between not having professional vocational rehabilitation resources available to you and choosing not to utilize those vocational resources,@ the employer requests that Finding 7 be reversed.  We are not persuaded.

 

We note at the outset that, while an employee has an affirmative right under the statute to request rehabilitation assistance, and while an employer has an obligation to furnish such assistance Aupon request of the employee, the employer, or the commissioner,@ Minn. Stat. ' 176.102, subd. 4(a), an employee has no obligation to request rehabilitation assistance under the statute.  An employee=s obligation with regard to returning to work, in order to prove entitlement to wage replacement benefits, is simply to make a showing of a causal relationship between her work-related disability and any post-injury reduction in her earnings.  See, e.g., Krotzer v. Browning Ferris/Woodlake Sanitation, 459 N.W.2d 509, 512, 43 W.C.D. 254, 259 (Minn. 1990) (it is the employee's burden to establish a diminution in earning capacity causally related to the disability, in order to demonstrate entitlement to wage replacement benefits).  To the extent that professional rehabilitation may be of assistance to an injured employee in conducting a more efficient post injury job search, it may be in the employee=s own best interests to obtain such assistance,^[10] particularly where the employee is unemployed or only partially employed,^[11] but it is not an injured employee=s obligation to request such assistance.  Indeed, the statute permits a rehabilitation plan to be suspended at the employee=s own request, where it appears that the employee is not likely to benefit from further rehabilitation services.^[12]  See Minn. Stat. ' 176.102, subd. 8(e).  In this case, the employer offered no contest to, and apparently agreed to, the suspension of services during the period at issue, and we will not reverse the judge=s finding based on the employee=s failure to affirmatively request the services that were simply, and accurately, found to be nonexistent.  Noting that the employer had as much or more to gain than the employee by reactivation of rehabilitation services during the period in question, and finding the judge=s conclusion not otherwise unreasonable, we affirm the compensation judge=s conclusion that the employee had no professional rehabilitation assistance during the period in question.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

3.  Post-Injury Earning Capacity

 

At Finding 8, the compensation judge concluded that the employee=s actual earnings from her self-employment from 1993 through 2000, minus business expenses, have accurately reflected the employee=s earning capacity during that period.  The employer contends that A[s]elf-employment is a removal from competitive employment@ and that A[t]here is nothing in the Workers= Compensation Act or the case law interpreting the [Act] to suggest that self-employment earnings are presumed [to be] an accurate measure of an Employee=s earning capacity.@  The employer argues that self-employment entails neither a diligent job search nor competition with other job seekers, both of which, the employer contends, are threshold criteria to the legal presumption that actual earnings represent earning capacity, see Noll v. Ceco Corp., 42 W.C.D. 553, 557 (W.C.C.A. 1989), which the employer argues does not here apply.^[13]  The employer suggests that Athe significant threshold consideration is whether the Employee has sought alternatives@ to her real estate work, arguing that the

 

[e]mployee has great aptitudes, great transferable skills and numerous alternatives available to her, but has failed to perform a diligent job search.  Instead, she has gone through the motions to perform a job search because she feels her benefits are at risk, not because she wishes to seek alternative employment.

 

(Emphasis added.)  The employer suggests that any reduction in the employee=s actual earnings relative to her date-of-injury wage is in this case related not to her work-related disability but to Apoor performance on the job.@  We are not persuaded.

 

We would note initially that the employer has repeatedly emphasized the employee=s claim to having sometimes worked as many as seventy hours a week, apparently intending by that emphasis to minimize and then highlight the employee=s average post-injury hourly wage.  The issue before us on temporary partial disability claims such as this, however, is not the employee=s post-injury hourly wage but the employee=s post-injury weekly earning capacity as it compares with the employee=s pre-injury weekly wage.  That the employee may have chosen sometimes to work seventy hours a week in hopes of maximizing her income from her still relatively young post-injury profession (ultimately thereby actually minimizing the employer=s compensation burden in the process) should certainly not be used to argue against her claim.  Again, the issue before us is the employee=s post-injury weekly earning capacity, not her hourly wage.

 

With regard to the employer=s argument that A[s]elf-employment is a removal from competitive employment,@ we note that this court has already indicated that A[t]here is no basis for excluding self-employment per se in determining whether an employee is gainfully employed for purposes of entitlement to temporary partial disability benefits.@  Maher v. Edward Kraemer & Sons, 48 W.C.D. 598, 602 n.2 (W.C.C.A. 1993), citing Dahlblom. See Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987) (although an employer is not obligated to subsidize an employee indefinitely where the employee undertakes a career of his own choosing for which he may be ill-suited, an employee who is in good faith training himself for a suitable career of his own choosing need not sacrifice long-range ambitions and seize any short-range work open to him).

 

By Amended Findings and Order filed in this case on March 21, 1996, it has been determined that the Aemployee=s employment in real estate sales . . . is suitable employment when considering the employee=s lack of formal schooling, lack of rehabilitation assistance (includes lack of vocational assistance); and as combined with the effects of employee=s personal injury, both physical and psychological (a depression).@  Once an injured employee is working again post injury, self-employment included, the employee=s actual earnings are presumptively representative of his earning capacity, absent an affirmative showing to the contrary by the employer.  See, again, Noll, 42 W.C.D. at 557.  Accordingly, the compensation judge in that 1996 proceeding also found that A[t]he employee=s earnings . . . in the sale of real estate reflect[] employee=s actual ability to earn for the period February 18, 1993 through December 1994.@  These 1996 findings are res judicata as to the suitability of the employee=s job and as to the employee=s earning capacity at least through the end of calendar year 1994.  In the three succeeding calendar years, 1995, 1996, and 1997, the employee=s sales and earnings continued to increase, as they had since 1993, until in 1997 her income actually exceeded her date-of-injury income.  There is no reason to conclude from the record that real estate sales was any less suitable work for the employee, or that her actual earnings at that work were any less reflective of her earning capacity, by the end of 1997 than they were at the end of 1994.  The employer=s only challenge on appeal, therefore, is to the presumption that the employee=s actual earnings during the three years 1998 through 2000 continued to represent her earning capacity, without diminishment for Apoor performance on the job.@  We conclude that there is substantial evidence to support the compensation judge=s conclusion that they did represent her earning capacity.

 

The judge=s decision is amply supported in the records and opinions of QRC McCaffrey, physiatrist Dr. Karen Ryan, psychologist Gary Donaldson, psychiatrist Dr. John Curran, even the employer=s vocational expert L. David Russell, and especially sales manager Vickie Gay.  Only Drs. Randa and Hartman expressed opinions totally unsupportive of the result reached by the compensation judge.  QRC McCaffrey repeatedly found real estate work both vocationally and medically appropriate for the employee, and as late as October 3, 2001, in his final report, he found the employee Aappropriate and creative@ in her rehabilitation efforts.  Psychologist Donaldson had also found the employee Awell suited to the work of a realtor only a few months earlier, and as late as October 15, 2001, Dr. Ryan found the employee=s psychological as well as physical disabilities continuingly related to her November 1990 work injury, having implied that these conditions were only further exacerbated by the employee=s perceived obligation to search for alternative work to satisfy workers= compensation requirements.  Dr. Curran=s opinions also express support for the employee=s work within her Achosen profession@ and advise against further job search activities.  Even Mr. Russell listed real estate work among ten recommended areas of work for the employee, identifying it as the potentially highest income-producing area among those ten.  Most persuasive in its support of the judge=s decision, however, is the testimony of sales manager Gay, who indicated very clearly that the employee was not far at all, if any, below average in her commitment and productivity in the real estate field, and who testified from a certainly knowledgeable vantage point as to the normalcy of dramatic fluctuations in a realtor=s income, such as that that the employee had experienced during the benefits period at issue.

 

An employee's actual earnings are presumed to be a fair measure of the employee's current earning capacity, absent a showing by the employer and insurer of "something more than a theoretical possibility of a [different] position or wage."  Patterson v. Denny's Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989), citing Einberger v. 3M Co., 41 W.C.D. 727, n.14 (W.C.C.A. 1989); Serra v. Hanna Mining Co., slip op. (W.C.C.A. Feb. 2, 1989); see also Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993); Grieco v. Minnesota Natural Foods, 48 W.C.D. 174 (W.C.C.A. 1992); Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).  In this case, the employee=s annual income, as indicated by the compensation judge, was gradually increasing each year from 1993 through 1997.  The employee was working full time at a job that well accommodated her physical restrictions, particularly by permitting her flexible hours and flexible physical activities, a job that she apparently liked, that by all accounts of her agency she worked very hard at, and that had also been found by a compensation judge in an earlier proceeding to be suitable post-injury employment for her.  Notwithstanding the opinions of Mr. Russell, we conclude that the employer has not, in light of all of the evidence available, made a showing of an option clearly promising of more income for the employee sufficient to warrant reversal.  Therefore, finding it also not otherwise unreasonable, we affirm the compensation judge=s conclusion that the employee=s actual earnings reflect her earning capacity.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

4. Permanent Partial Disability

 

The compensation judge awarded the employee compensation for a work-related 14% whole-body impairment, pursuant to Minnesota Rules 5223.0070, subpart 1(B)(1)(b), which requires in part that there be Aspecific radicular pain present with objective neurological findings,@ together with radiological evidence of disc herniation.   Minn. R. 5223.0070, subp. 1(B)(1)(b).  The employer contends that a A[p]rior Court=s Finding indicated the nature of the November 28, 1990, wor[]k injury was a lumbar strain sprain@ and that, Athat Finding being the law of the case, the herniated disc rating is inappropriate and unsupportable.@  Moreover, the employer goes on, even A[i]f one assumes res judicata does not apply,@ the rule applied by the judge still requires reproducible and consistent Aobjective clinical [sic] findings@ of radiculopathy upon examination, and the record in this case does not, they argue, contain evidence of such findings.  We are not persuaded.

 

We find no A[p]rior Court=s Finding@ that the employee=s physical injury was a Alumbar strain sprain,@ and the employer does not cite either the finding to which it refers, the decision in which that finding appears, or the factfinder issuing it.  With regard to the rule=s requirement of objective examination findings,  we note minimal but sufficient references to such examination findings in the records of Dr. Noran, Dr. Jacoby, and Dr. Ryan. Conservative as he was in his diagnosis, Dr. Noran did observe upon examination in the first years after the work injury sufficient low back spasm and absence of ankle reflex to suspect them to be Acomponents of lumbar radiculopathy,@ and these findings were apparently reproduced several years later by Dr. Jacoby.  Dr. Noran=s tentativeness in diagnosing radiculopathy was apparently related to the lack of good radiological evidence that the employee=s herniation was impinging on a nerve, but his rating is supported by Dr. Jacoby=s express noting, on a repeat MRI several years later, the proximity of that same herniated disc to the vertebral thecal sac.  Dr. Ryan, also, made specific neurologic findings on examination, noting early in her treatment that the employee had Afindings of significant muscle spasm, weak back extensors, asymmetrical LE reflexes, [and] meralgia paresthetica@ and reporting at the time of her permanency opinion in October 2001 that the employee had persistent findings of Aasymmetrical patellar reflexes and absent ankle reflexes.@

 

In light of this evidence, we conclude that it was not unreasonable for the compensation judge to rely on the permanency ratings of Drs. Noran and Ryan in awarding the employee benefits for a permanent impairment to 14% of her whole body.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (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).  Therefore we affirm that award.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

5.  Medical Expenses

 

The compensation judge awarded the employee payment of all of the medical expenses that she had claimedB(1) medical treatment provided by Dr. Ryan at Minnesota Physical Medicine, PA, (2) psychiatric treatment provided by Dr. Curran, (3) medication purchased at Walgreen=s, (4) pool therapy prescribed by Dr. Ryan, and (5) out-of-pocket medical mileage expenses.  The employer contends that substantial evidence does not support the judge=s award, in light of factors for consideration of chiropractic claims, as enumerated in Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991), and Fuller v. Naegele / Shivers Trading, slip op. (W.C.C.A. Apr. 14, 1993), which the employer argues are Ainstructive.@  The employer also contends that the judge=s award is improper in light of  restrictions on treatment imposed under the treatment parameters at Minnesota Rules 5221.  The employer argues that none of the analyses outlined in the referenced case law and rules were performed by the compensation judge.  We are not persuaded.

 

The employer acknowledges that the Horst and Fuller cases pertain to chiropractic care, and we agree with the employee that the employer=s reliance on them is therefore misplaced.  Moreover, with respect to the treatment parameters, we see no evidence, either in the transcript of hearing or in the judge=s decision, that the treatment parameters were ever raised as a defense before the compensation judge.  The limits set by the treatment parameters are a defense that may be deemed waived by an employer and insurer=s failure to raise them with specificity and development before the compensation judge, see Dawson v. University of Minn., slip op. (W.C.C.A. May 6, 1999); Boryca v. Marvin Lumber & Cedar, slip op. n.3 (W.C.C.A. Nov. 10, 1999), and generally speaking an issue raised for the first time on appeal is not properly before this court and will not be addressed, see Malinoski v. North American Cable Sys., No. 470-52-8654 (W.C.C.A. Dec. 14, 1989).  As we stated in Boryca, Athe treatment parameters are complex, and they are not workable in litigation unless the parties inform the judge as to which specific rules are at issue and the judge then explains in his or her decision, with reference to the evidence, as to how the rules allow, or preclude, any given claimed treatment expense@ (emphasis in original).  Boryca, slip op.  Because the employer and insurer did not specifically raise the treatment parameters as a defense, and because the compensation judge made no reference to them in her decision, we deem the issue before us to be whether substantial evidence in the record supports the judge=s determination that the medical treatment at issue was reasonable and necessary.

 

In her memorandum, the compensation judge explained that she found Dr. Ryan=s treatment of the employee Areasonable and necessary in light of the severity of the employee=s symptoms, the employer=s refusal to facilitate the self-directed pool therapy recommended by Dr. Ryan and Dr. Ryan=s need to monitor the employee=s use of medications.@  We conclude that the judge=s decision was reasonable.  The severity of the employee=s symptoms, both physical and psychological, was attested to not only by psychologist Gary Donaldson and psychiatrist Dr. Curran but also by the employee herself, whose testimony as to her depression, her chronic problems with low back flare-ups, and her difficulty sleeping was expressly found by the judge, in her memorandum, to be credible.   See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Moreover, both Mr. Donaldson and Dr. Curran suggested that these conditions complicated each other.  In light also of the fact that the employer itself frustrated both Dr. Ryan=s reasonable intention to reduce the employee=s reliance on medication and psychotherapy by commencing exercise pool therapy, and the employee=s psychological condition by insisting on a job search in the context of full-time employment, the judge=s award of the medical care and monitoring by Dr. Ryan was not unreasonable.

 

Nor was it unreasonable for the compensation judge to conclude that Dr. Ryan=s referral to Dr. Curran was reasonable and necessary, given the employee=s adjudicated psychological disability and Dr. Ryan=s conclusion at the time she made the referral, that such a referral was warranted given the employee=s Acontinued reports of depressed mood and anxiety, her apparently minimal response to Zoloft and . . . the report of more significant depression on a recent MMPI.@  Three sessions with a psychiatrist in such circumstances is not unreasonable, nor was Dr. Ryan=s attempt to treat the employee=s documented condition with the medication purchased at Walgreen=s.  That the employee is entitled to payment of medical mileage expenses to facilitate such treatment is also not unreasonable.    Finally, the judge=s granting of the employee=s claim for the prescribed exercise pool therapy was not unreasonable either, particularly in light of alternative therapies.

 

Because it was not unreasonable, we affirm the compensation judge=s award of the medical expenses at issue.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.