LARRY D. LAND, Employee/Appellant, v. WASHINGTON CO. SHERIFF=S DEP=T, SELF-INSURED/ALEXSIS-RSKCo., Employer, and PRIMARY BEHAVIORAL HEALTH CLINIC, Intervenor, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 23, 2003

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where there was expert medical opinion and other medical evidence of record to support the judge=s decision, the compensation judge=s conclusion that the employee had been only temporarily injured by paint fumes at work was not clearly erroneous and unsupported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; RULES CONSTRUED - Minn. R. 5223.0070, subp. 1.A.(3)(b).  Where the employee=s MRI scan was not Aspecifically positive@ for a herniated disc, and where the judge=s conclusion was not otherwise unreasonable, the compensation judge=s conclusion that the employee was subject to only a 10.5% permanent partial disability related to his low back, pursuant to Minn. R. 5223.0070, subp. 1.A.(3)(b), was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Where there was evidence that the employee=s condition pre-dated all of his work injuries, and where the judge=s decision was supported by expert medical opinion, the compensation judge=s conclusion that the employee=s sexual dysfunction was unrelated to his exposure to mercury at work was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where it was supported by expert medical opinion, the compensation judge=s conclusion that the employee=s incontinence  was unrelated to his low back work injury was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - OCCUPATIONAL DISEASE.  Where it was supported by expert medical opinion, the compensation judge=s conclusion that the employee=s asthmatic condition was unrelated to the employee=s workplace exposure to dust and fiberglass was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - GILLETTE INJURY.  Where the employee=s claim to a Gillette-type injury was unsupported by either the employee=s own testimony or the medical record, the compensation judge=s conclusion that the employee did not sustain a Gillette-type injury on the date alleged was not clearly erroneous and unsupported by substantial evidence.

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee had not conducted a reasonably diligent search for work, and where the judge reasonably concluded that such a search would not be futile, the compensation judge=s conclusion that the employee was not permanently and totally disabled was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  Peggy A. Brenden.

 

Attorneys:  The appellant-employee appeared pro se.  Jeffrey B. Nelson, Erstad & Riemer, Bloomington, MN, for Respondent.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The pro se employee appeals from the compensation judge=s denial of his claim for permanent total disability benefits, permanent partial disability benefits, and certain medical and out-of-pocket expenses.  We affirm.

 

BACKGROUND

 

On March 7, 1984, Larry D. Land began working as a correctional officer for the Washington County Sheriff=s Department.  Shortly before commencing work with the department [the employer], Mr. Land [the employee] underwent pre-employment physical and psychological examinations, both of which he passed, notwithstanding the fact that he had a significant history of health problems, including a diagnosis of spinal meningitis in the early 1960s and a variety of symptoms allegedly related to exposure to chemical pollutants in his drinking water while ranching in Colorado in 1972.

 

On August 25, 1984, the employee was involved in a serious bicycle accident, unrelated to his employment, in which he sustained a closed-head injury and a fractured right clavicle.  According to records from Bethesda Hospital, where the employee was hospitalized through August 30, 1984, the employee was rendered unconscious for about forty-five minutes.  He was re-hospitalized several days later at Fairview Hospital because of increasingly bizarre behavior, subsequently attributed to steroid psychosis related to steroid medication that had been prescribed to treat his closed-head injury.  On September 13, 1984, treating psychiatrist Dr. Kevin Kavaney reported that the employee was free of any Apsychiatric illness@ stemming from the closed-head injury.

 

The employee was subsequently followed on a fairly regular basis for his closed-head injury by Group Health neurologist Dr. David Webster.  The employee complained to Dr. Webster of intermittent symptoms of dizziness, confusion, and headache, to which the doctor responded with a trial of various medications.  On May 23, 1985, the employee was seen also by Dr. Dean Ericksen, to whom he reported that he was concerned about lead poisoning consequent to a five-week exposure to a painting project at work.  Dr. Ericksen ordered blood work, which later revealed a normal blood lead level.  On August 2, 1985, the employee returned to Dr. Webster, complaining that he was still having difficulty thinking as fast and as clearly as he had before his head injury and was becoming discouraged that almost a year after his accident his symptoms did not seem to be significantly improving.  Dr. Webster concluded that the employee was continuing to show some residuals of his closed-head injury.  The employee returned also to see Dr. Kavaney, on September 5, 1985, to whom he reported that he had experienced a lot of difficulties since his accident, including trouble with his balance, headaches, and, Amost profoundly,@ his short-term memory.  Dr. Kavaney diagnosed A[c]losed head injury with psychiatric sequelae, paranoia, at times, also a fair amount of recent memory difficulties that can greatly interfer[e] with his personal and professional life.@

 

Over the next several years, the employee continued to be seen by Drs. Kavaney and Webster for cognitive disturbances, a mild expressive aphasia, a mild right hemiparesis, some impulsivity, paranoid ideation, severe headaches, and symptoms of disequilibrium.  In a report to the employee=s attorney on April 28, 1987, Dr. Kavaney diagnosed Aa closed head injury with atypical or mixed organic brain syndrome.@  He stated that A[t]his latter diagnosis includes the emotional reaction to a change in one=s thinking and perception of the world around them.  [The employee=s] awareness of his own impairment has left him more vigilant, more anxious, feeling more vulnerable than prior to his accident.@  About a week later, Dr. Webster, also responding to the employee=s attorney, opined that, A[u]sing the Workers= Compensation . . . Permanent Partial Disability Schedule as a guide,@ the employee=s symptoms warranted a 20% permanent partial disability rating under Minn. R. 5223.0060, subp. 8.C.(1).^[1]

 

On December 1, 1988, the employee complained to his family physician, Dr. Frank Petrovic, of a seventeen-year history of joint pain related Ato poisoning with phosphate that he suffered at that time.@  An x-ray of the right knee on that date showed chondrocalcinosis.  About ten months later,  the employee was referred to rheumatologist Dr. Daniel Hathaway for evaluation.  Dr. Hathaway also reported that the employee dated Aall of his complaints back to 1972 when he was exposed to organic phosphate in his drinking water.@  On September 20, 1989, the employee reported to Dr. Hathaway that he was experiencing low back pain, with flare-ups lasting several weeks.  He also mentioned Achronic problems in his neck and upper shoulders and throughout his bones, primarily meaning the upper  arms and upper legs.@  After a complete workup, Dr. Hathaway, on October 11, 1989, reported that A[r]heumatologically his diffuse complaints would best be described by the term fibrositis.  However, when examined he did not really have the typical trigger point tenderness. . . .  [The employee] comes as close to the d[iagnosis] of psychogenic rheumatism as anyone I have ever seen.@

 

The employee=s various claims for workers= compensation benefits stem essentially from three distinct events at work, detailed below:  (1) an episode of exposure to paint fumes in February 1990; (2) a low back injury on December 18, 1990; and (3) an episode of exposure to fiberglass insulation in November 1992.  The employee continued to work for the employer until September 29, 1998, on which date he contends that he sustained a Gillette-type^[2] injury related to the residual effects of those three earlier incidents.

 

On or about February 1, 1990, and continuing for about a month thereafter, the inside of the jail where the employee worked was being painted with an industrial enamel paint.  During the course of the painting project, no effective ventilating system was set up, and vapors from the yellow paint used in the project entered the employee=s work area.  The employee and his co-workers were exposed to fumes and particles of paint throughout their work shifts, and they noticed a yellow color on tissue after coughing or sneezing.  During the painting job, the employee worked in the jail roughly forty hours a week.  The Material Safety Data Sheet [MSDS] for the paint used identified mineral spirits, hi boil naphtha, and xylene as hazardous ingredients in the paint.  Under the category of AHealth Hazard Data,@ it was noted that overexposure could cause Airritation of eyes and respiratory tract; headache, dizziness and nausea@ and that A[r]eports have shown repeated and prolonged occupational overexposure to solvents can result in permanent brain and skin damage.@  A urine sample subsequently provided by the employee on December 17, 1990, was read as showing a slightly elevated mercury level.  Several weeks later, the employee supplied a paint chip sample for laboratory analysis, which, according to the test results, revealed a Adetectable@ level of mercury.^[3]

 

In his later testimony, the employee asserted that the exposure to the paint fumes caused him to become physically ill and to essentially experience the entire set of symptoms listed on the MSDS.  He testified that he experienced irritation of his eyes, nose, throat, and lungs, nausea, tightness in his chest, headaches, shaking/trembling, loss of balance, aphasia, learning disability, irritability, and memory problems.  He testified also that he complained to his employer about the fumes and then, receiving no satisfactory response, reported the matter to OSHA.  The employer was evidently cited by OSHA for certain safety violations relating to the painting project.  Contending, however, that the employee was not injured as a result of the exposure, the employer denied primary liability for workers= compensation benefits related to this event.

 

On December 18, 1990, the employee sustained an injury to his low back while lifting a box of books at work.  The employee saw Dr. Gregory Steeber on January 10, 1991, and a lumbar CT scan was obtained on January 18, 1991.  The radiologist interpreting the CT scan stated that it showed Aa medium sized herniated disc, probably a free fragment in the right recess pushing the right S1 root posteriorly.@  The employee was hospitalized the following week and was treated for five days with physical therapy, traction, and medications.  The employer admitted liability for the employee=s back injury and paid some limited temporary total disability benefits, expenses incurred for medical treatment, and compensation for a 10.5% permanent partial disability of the body as a whole.^[4]  The employer denied, however, that the employee=s low back injury has resulted in any disability affecting the employee=s employability with the employer, or in the general labor market, after September 29, 1998.

 

On or about November 1, 1992, the employee was assigned to work in the employer=s new jail facility.  The interior portion of the jail was still under construction, and workers were wrapping pipes with fiberglass insulation.  The employee testified that fiberglass dust could be seen in the air where he worked and that within days of beginning work at the new facility he began to experience difficulty breathing.  On November 26, 1992, the employee was seen in urgent care for a cough and breathing complaints.  He was eventually diagnosed with asthma and has claimed that this condition is related to his exposure to fiberglass dust at the new facility.  The employer has denied primary liability for the employee=s asthmatic condition.

 

On December 26, 1991, the employee filed a claim petition, seeking various benefits related to his low back injury of December 18, 1990, and to a permanent brain injury and a Apsychological/emotional reaction@ to the exposure to paint fumes on or about February 5, 1990.  Following a series of amendments, orders striking from the calendar, and refilings, the matter was eventually heard by Compensation Judge Peggy A. Brenden on November 6, 7, and 8, 2002.^[5]  Issues identified by the compensation judge and agreed upon the parties included the following:

 

1.Did the employee sustain a compensable work injury in the nature of organic brain dysfunction on or about February 1, 1990 as a result of exposure to paint in the workplace?

 

(a)What was the nature and extent of the injury?

 

(b)What, if any, permanent partial disability did the employee sustain as a result of the injury?

 

2.What level of permanent partial disability did the employee sustain as a result of his admitted work-related low back injury on December 18, 1990?

 

(a)What is the employee=s permanent partial disability rating due specifically to his low back?

 

(b)What, if any, permanent partial disability has the employee sustained as a result of incontinence and/or sexual dysfunction attributable to his low back injury?

 

3.Did the employee sustain a compensable work injury in the nature of work-related asthma on November 19, 1992?

 

4.Did the employee sustain a compensable work injury on September 29, 1998 in the nature of work-related asthma, a permanent aggravation of his low back condition and/or organic brain dysfunction?

 

5.Has the employee been permanently totally disabled from January 2, 1999 through the present and continuing as a result of the work-related injuries alleged?

 

Evidence introduced at trial included, in part, the employee=s extensive medical records, live testimony from the employee and the parties= vocational experts, and deposition testimony from nine separate medical providers and examiners.^[6]

 

The record closed in this matter on December 16, 2002, and on January 8, 2003, the compensation judge issued a Findings and Order in which she found that the employee=s exposure to paint fumes in February 1990 had resulted in a temporary injury in the nature of eye, nose, throat, and lung irritation, as well as headaches and nausea; that the employee had sustained a 10.5% permanent partial disability to the body as a whole due to his low back injury of December 18, 1990; that the employee=s claimed sexual dysfunction and incontinence were not causally related to any of the work injuries at issue; that the employee=s exposure to fiberglass in November of 1992 was not a substantial contributing factor in the employee=s asthmatic condition; that the employee did not sustain a Gillette injury on September 29, 1998; and that the employee is not permanently and totally disabled.  The employee appeals.

 

STANDARD OF REVIEW

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1(3) (1992).  If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm.  This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court; thus, it is irrelevant whether different conclusions than those found by the compensation judge could also be reached on the evidence.  Substantial evidence supports the findings if, in the context of the record as a whole, they Aare 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 the evidence conflicts or more than once inference may reasonably be drawn from the evidence, the findings must 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).  Factfindings may not be disturbed, even though this 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.

 

 

RECORD ON APPEAL

 

The pro se employee contends on appeal that the compensation judge=s findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.  The record submitted to the judge in this case is extensive.  On appeal, however, in his Appellant Brief, Addendum Brief, or Reply Brief, the employee fails to reference the record as submitted to the judge.  Instead, the employee=s briefs reference a six-volume appendix of documents, evidently consisting of sworn affidavits, articles, and other materials identified as Exhibits L-100 through L-699.  In addition to the six-volume appendix, the employee has attached other documents to his briefs, some of which were included in the record before the judge, some of which were not.  Consequently, the employee=s references to his appendix and to exhibit numbers that do not correspond to the record before the judge have made it difficult for the court to follow his arguments.

 

At oral argument in this matter, the court explained to the employee that the Workers= Compensation Court of Appeals has no authority to consider documents that were not offered and received as evidence at the trial before the compensation judge.^[7]  We explained that, because they were not part of the record before the judge, we could not consider the employee=s appendix and certain other documents attached to his briefs.  Minn. Stat. ' 176.421, subd. 6; Gollop v. Gollop, 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986).  Therefore, this court has only considered evidence contained within the record before the compensation judge.

 

We would also note here that an issue raised for the first time in a party=s appellant brief is beyond the scope of the court=s review on appeal.  Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992).  In his briefs, the employee appears to argue that the presumption of an occupational disease found in Minn. Stat. ' 176.011, subd. 15(b), is applicable to this case.  This claim by the employee was neither litigated nor listed as an issue in the judge=s Findings and Order.  Therefore, it will not be addressed by this court.

 

DECISION

 

It appears that the employee=s major contentions on appeal are as follows:  (1) the judge=s decision was not based on all facts and evidence available to the court; (2) the judge=s factual findings are incomplete and fail to address the facts of the injuries or to recognize all of the doctors in the case; and (3) the judge did not address or recognize in her decision  the employer=s alleged negligence and wrongdoing.

 

We disagree with the employee=s allegation that the judge=s decision was not based on all facts and evidence available.  The issue here is not what evidence was available, but what evidence was identified by the parties and offered at trial.  Here, a pre-trial conference was held on November 4, 2002, at which exhibits were identified and the elements of the employee=s claims were laid out.  The judge eventually based her decision on the issues and exhibits agreed upon at the pre-trial and on the testimony and additional exhibits received at trial.  We have already discussed the problem of the employee=s desire to introduce additional evidence on appeal.  In his brief, the employee acknowledges that various documents were not offered into evidence, and witnesses he believed would have been helpful to his case were not called to testify.  This evidence obviously was not available for consideration by the compensation judge and, thus, is not subject to review by this court.  The employee essentially wants this court to retry his case and to consider additional evidence at the same time.  This we cannot do.  AWhether the evidence is documentary or oral, it is not the function of a reviewing court to try the facts anew.@  Courtney by Higden v. City of Orono, 463 N.W.2d 514, 517 n. 2, 43 W.C.D. 571, 575 n. 2 (Minn. 1990).

 

The employee next argues that the judge=s factual findings are incomplete and do not fully address the facts of his injuries or recognize all of the doctors in the case.  Again, we do not agree.  The record in this matter is extensive.  The compensation judge issued factual findings on each of the issues identified at trial by the parties.^[8]  Her factual findings are supported by numerous references to the evidentiary record.  Her decision also includes a memorandum further explaining the basis for her decision.  The fact that the judge did not recite all of the evidence favoring the employee=s position in her Findings and Order does not establish that that evidence was overlooked.  See Rothwell v. Minn. Dep=t of Nat=l Resources, slip op. (W.C.C.A. Dec. 6, 1993).  A compensation judge is not required to relate or discuss every piece of evidence introduced at the hearing.  Braun v. St. John=s Univ., slip op. (W.C.C.A July 20, 1992).  Particularly in this case, such a task would have been essentially impossible.

 

With regard to the employer=s alleged negligence or wrongdoing, we must emphasize that issues of an employee=s entitlement to, and an employer=s liability for, workers= compensation benefits are generally decided without reference to fault or negligence of either party.  Cf. Minn. Stat. ' 176.021, subd. 1 (AEvery employer is liable for compensation according to the provisions of this chapter and is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence@ (emphasis added)).  To the extent that the employee=s arguments in this case are premised on the fault or negligence of the employer or OSHA citations that were evidently issued, the employee=s arguments are misplaced.

 

The remaining issues for our consideration are whether substantial evidence in the record supports the following findings of the compensation judge:  (1)  that the employee=s exposure to paint fumes on or about February 1, 1990, resulted in only a temporary injury; (2) that the employee sustained a 10.5% permanent partial disability of the whole body related to his low back injury of December 18, 1990; (3) that the employee=s sexual dysfunction is not causally related to any of the work injuries at issue; (4) that the employee=s incontinence is not causally related to any of the work injuries at issue; (5) that the employee=s exposure to fiberglass in the workplace was not a substantial contributing factor in his diagnosed asthmatic condition; (6) that the employee did not sustain a Gillette injury on September 29, 1998; and (7) that the employee is not permanently and totally disabled.

 

Before addressing those issues, we would first note that it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  In the present case, the issues identified above revolve substantially around the judge=s resolution of such conflicts.  We reiterate that it is not this court=s function to assess whether substantial evidence might support a conclusion contrary to that reached by the compensation judge; our function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge.  See Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@).

 

1.  Temporary Injury on February 1, 1990

 

At Finding 12, the compensation judge determined that the employee=s exposure to paint fumes on or about February 1, 1990, and thereafter resulted in a temporary injury in the nature of eye, nose, throat, and lung irritation, headaches, and nausea.  She concluded that the temporary injury lasted during the period of the exposure, from on or about February 1, 1990, through early March 1990.  She therefore concluded, at Finding 13, that the employee had not sustained any permanent injury or permanent partial disability as a result of the February 1, 1990, work injury.

 

On appeal, the employee contends that he was subjected to repeated and prolonged overexposure and overspray without adequate ventilation or precautions taken for his safety.  The employee asserts that within the first fifteen minutes of reporting to work he suffered every sign and symptom of illness identified on the Material Safety Data Sheets for the paint in question and that the exposure lasted up to ten hours a day for thirty days.  The employee argues that the compensation judge failed to mention that repeated and prolonged overexposure to solvents can result in permanent brain and skin damage.  Nor, he asserts, did she mention that the paint in this case also Acontained Ultra Toxic Levels of Mercury.@  The employee asserts that prior to February 1990 he was clear and free of any psychological injuries and functioning well at his place of employment.  Since 1990, he claims he has developed a multiple chemical sensitivity syndrome, in which he reacts to gas fumes, solvents, and other chemicals.  He asserts that there is a clear temporal relationship between his subsequent symptoms and his overexposure to toxic chemicals at work.  In support of his claims that he sustained a permanent brain injury related to this toxic exposure, the employee relies, in part, on the medical reports of psychologist Dr. John Patrick Cronin and on his deposition testimony taken April 25, 2001.  In a report dated April 14, 1998, Dr. Cronin opined that the employee=s Acurrent set of problems@ were directly and causally related to his exposure to toxins experienced while working for the employer.  In a report dated September 10, 1999, Dr. Cronin opined that the employee had sustained a 40% permanent partial disability to the body as a whole, with half of that disability attributed to the paint exposure.  The doctor indicated that, following the paint exposure in 1990, the employee=s injuries became Airreversible and progressive.@  The employee contends that, given the temporal relationship between his numerous symptoms and his toxic exposure at work, and considering the opinions of Dr. Cronin, the compensation judge clearly erred in finding that the exposures in February of 1990 caused only a temporary injury.  We are not persuaded.

 

Contrary to the employee=s assertion, it is clear from the judge=s findings that the judge considered the employee=s evidence on the nature of this injury.  At Finding 8, the judge referenced the MSDS of the paint that was used and the health hazard caused by overexposure to this type of paint.  The judge also acknowledged evidence suggesting that the paint used contained 37 parts per billion of mercury.  At Findings 9, 10, and 11, the judge accepted the employee=s testimony that the painting project lasted approximately thirty days, and that the employee worked in the jail roughly forty hours a week during that period of time.  The judge also accepted the employee=s testimony that the work area was poorly ventilated and that he and other co-workers were exposed to the fumes and particles of paint throughout their work shifts.  She noted that the employee experienced a number of physical symptoms related to the painting project.  In her memorandum, however, the judge explained the basis for her finding that the injury was only temporary, offering numerous citations to the medical record in support of her decision.  The judge evidently did not accept the employee=s view that his exposure to paint fumes amounted to Aprolonged occupational overexposure.@  She stated that the employee=s Aexposure was not long enough or intense enough to produce the deficits he claims.  Nor, are many of the symptoms alleged associated with paint exposure.@  The judge noted that she relied upon the testimony of Drs. Rauenhorst, Shronts, and Gedan, as well as the October 9, 1992, report of toxicologist Dr. Samuel Hall who stated as follows:

 

While disorientation and memory problems have been associated with solvent exposure, the condition under which this occurs are typically chronic and intense, such as with solvent abuse through repeated purposeful inhalation.  An exposure such as [the employee=s] might result in these symptoms temporarily, however, it is difficult to support the notion that his symptoms at this point are related to a solvent exposure in 1990.  In addition, the disorientation would not be expected to be so episodic and so predictably resolved, as [the employee] describes them to be.

 

The judge also stated that Athere are other reasonable explanations - unrelated to work - that account for [the employee=s] problems.@  In this regard, the judge noted that she relied upon office notes of Drs. Webster and Kavaney in 1985, as well as Dr. Rauenhorst=s deposition testimony.  She also relied upon a report from Dr. Hall, dated November 3, 1992, in which Dr. Hall stated as follows:

In summary, his complaints during and shortly after his paint exposure in February of 1990 could be consistent with solvent exposure.  However, his persistent complaints, and a short-term solvent exposure two and a half years ago, are more difficult to associate with one another.  While it is understood that he has a history of closed head trauma with mild organic brain disorder, and is therefore, somewhat atypical, there is no evidence to support chronic persistent complaints such as [the employee] describes as associated with short-term solvent exposures.  While mercury poisoning was considered as an alternative explanation, there is no documentation of excessive levels of mercury in the paint or in the environment where the exposure took place.  His one barely elevated urine mercury value was obtained in December of 1990, considerably long after the February, 1990 paint exposure, and is therefore, unlikely to be associated with it.

 

Finally, the compensation judge noted that the only expert opinion linking the employee=s ongoing cognitive and emotional difficulties to the February 1990 work injury was Dr. John Patrick Cronin, a psychologist.  As was her prerogative, the judge did not find Dr. Cronin=s causation opinions compelling.  She noted that Dr. Cronin had no significant experience or training in toxicology and had no demonstrated expertise in identifying potential toxic causes of cognitive deficits.

 

We conclude that there is ample evidence in the record, including the numerous materials referenced by the compensation judge, to support the judge=s determination that the employee=s paint exposure on or about February 1, 1990, resulted in a temporary injury lasting only about a month.  Accordingly, the judge=s determination in this regard is affirmed.  Because we have affirmed her finding of a temporary injury, we also affirm the judge=s determination at Finding 13, that the employee=s injury did not result in any permanent partial disability.^[9]

 

2.  Low Back Injury - Permanent Partial Disability

 

On January 18, 1991, following the employee=s low back injury, the employee underwent a CT scan that was interpreted by the radiologist as showing Aa medium sized herniated disc, possibly a free fragment in the right recess pushing the right S1 root posteriorly.@  On January 24, 1992, the employee was examined by occupational medicine specialist Dr. Donald Garland.  Dr. Garland=s initial impression was Alumbar strains and probably a lumbosacral disc injury and disc herniation with a right S1 radiculopathy.@

 

 

 

On May 5, 1992, the employee was examined at the request of the employer by orthopedist Dr. Larry Stern.  Based upon his physical examination and review of the employee=s medical records, including the January 18, 1991, CT scan, Dr. Stern concluded that the employee had suffered a herniated lumbar disc at the L5-S1 level, without any signs of active radiculopathy on examination.  At that time, Dr. Stern rated the employee=s permanent partial disability at 9% of the body as a whole under Minn. R. 5223.0070, subp. 1.B.(1)(a).^[10]

 

On May 26, 1992, Dr. Garland referred the employee for an MRI of the lumbar spine.  The radiologist reviewing the MRI concluded that the herniated disc noted on the previous CT scan was no longer evident.  He explained that,

 

It is likely that the large central and right sided mass lesion represented an epidural hematoma rather than a free fragment disc herniation since the former are noted to resorb in most cases while free fragment extruded disc herniations are unlikely to resorb without surgical intervention.

 

In a report to the employee=s attorney dated June 5, 1992, Dr. Garland rated the employee=s permanent partial disability at 10.5% of the whole body under Minn. R. 5223.0070, subp. 1.A.(3)(b), for healed lumbar strains and sprains, with demonstrable degenerative changes at multiple vertebral levels.^[11]  He also rated an additional 14% of the whole body for a Adisc herniation or protrusion@ at L5-S1 with residual objective neurologic findings under Minn. R. 5223.0070, subp. 1.B.(1)(b).^[12]  Dr. Garland explained that the employee=s residual neurologic abnormality was the absent right ankle reflex and that the employee also had sensory loss laterally at his right foot, which was Aconsistent with . . . a residual right S1 radiculopathy.@^[13]

 

The employee was examined again by Dr. Larry Stern on May 8, 1996.  With this examination, Dr. Stern also reviewed the 1992 MRI scan and concluded, in a report on that same date, that the employee Adoes not now, nor did he have, a herniated lumbar disc.@  Dr. Stern reported also that he did not find any active radiculopathy involving the employee=s right leg, and therefore he rated the employee=s permanency at 10.5% for a healed sprain/strain associated with demonstrable degenerative changes at multiple vertebral levels.

 

On March 14, 1997, the employee was referred by his attorney for an evaluation by neurologist Dr. Steven Trobiani.  In a report issued on that date, Dr. Trobiani concluded that the employee was Asuffering from a lumbar discogenic pain syndrome consequent to disc injuries at the L2-3, L3-4 and L4-5 levels as well as a disc herniation at the L5-S1 level.@  The doctor concluded that Athe disc herniation at L5-S1 is also producing ongoing evidence of right L5 and S1 radiculopathy.@  Consequently, Dr. Trobiani concurred in the ratings offered by Dr. Garland and reiterated his opinions in a later report issued April 5, 2002.

 

The employer arranged for the employee to be examined by neurologist Dr. Joel Gedan on July 29, 2002.  Following a physical examination and review of the employee=s medical records, Dr. Gedan opined that the employee did not have a herniated lumbar disc.  In his subsequent deposition testimony on October 28, 2002, Dr. Gedan opined that what the doctors had interpreted to be a disc herniation on CT scan in 1991 was more likely an epidural hematoma, a blood clot around the nerve.  He explained that

 

[t]he blood clot will reabsorb, and that=s the main reason we know it wasn=t a disc.  The original CT scan talks about a free fragment.  Those don=t disappear.  They can=t go back into the disc.  They are not gone on subsequent studies, so it has to be something that can disappear on its own.  That=s why after the MRI was obtained, it was felt that the original diagnosis of an extruded disc herniation on the right side at L5-S1 probably was incorrect.  It couldn=t disappear on its own.

Dr. Gedan concluded that a 10.5% rating was appropriate, for the employee=s low back pain and degenerative changes at multiple levels. 

 

At Finding 15, the compensation judge determined that the employee had sustained a 10.5% permanent partial disability to the body as a whole in accordance with Minn. R. 5223.0070, subp. 1.A.(3)(b).  In arriving at this decision, the judge noted that she had relied upon the report of the employee=s MRI scan conducted at the Center for Diagnostic Imaging on May 26, 1992, and upon Dr. Stern=s and Dr. Gedan=s testimony that the employee did not sustain a herniated lumbar disc on December 18, 1990.

 

A compensation judge is responsible for determining under which rating category an employee=s disability falls, based on all relevant evidence, including objective medical findings.  Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992).  In order to receive a permanent partial disability rating, the employee must prove each element of the scheduled disability.  Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriot-Host Int=l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)).  A compensation judge=s finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  Because the employee=s MRI scan was not Aspecifically positive@ for a herniated disc, and because substantial evidence in the record otherwise supports the judge=s conclusion, we affirm the judge=s determination that the employee is subject to only a 10.5% permanent partial disability related to his low back.

 

3.  Sexual Dysfunction - Causation

 

The employee contends that the compensation judge erred when she concluded that his impaired sexual functioning is not causally related to any of the work injuries at issue.  The employee asserts that prior to 1990 various episodes of impotence were intermittent and temporary in nature.  He claims that, since 1990, after his exposure to xylene, urethane, and mercury and his subsequent low back injury, his sexual ability has declined to the point of total and irreversible impotency.  The employee asserts that, because of his overexposure to mercury, his body produces insufficient amounts of testosterone.  He argues that the compensation judge failed to consider or even to acknowledge the medical opinions and permanent partial disability ratings of Dr. Steven Trobiani and Dr. Kevin Billups that support his claim.  In a report dated April 5, 2002, Dr. Trobiani stated that the employee=s impotence Awas most likely consequent to lumbar pain . . . [and] a probable cauda equina syndrome.@  He opined that the employee qualified for a 20% permanent partial disability to the body as a whole.^[14]  On January 22, 1999, Dr. Billups also offered a 20% rating, indicating that A10% of this erectile dysfunction disability was substantially caused by the combination of his back injury and exposure to paint fumes in 1990.@^[15]  We are not persuaded.

 

In her finding on the issue of the employee=s sexual functioning, the judge noted that the medical records clearly indicate that the employee=s difficulties pre-date all of the work injuries at issue.  It is also apparent that the judge adopted the opinions of urologist Dr. James Meyer, an expert in issues of impotence.  Dr. Meyer diagnosed the employee=s condition as psychogenic impotence, with additional contributing factors such as age and the employee=s prescribed anti-hypertensive and mood stabilizing medications.  Dr. Meyer did not believe that either the employee=s exposure to paint fumes or his low back injury played any role in the employee=s impotence.  Dr. Meyer testified that the cause of a decreased level of testosterone is idiopathic and not related to any toxic exposure.  He also testified that degenerative disc disease is an extremely remote cause of impotence and that in his more than twenty-five years of practice he had never seen a case of impotence secondary to exposure to paint fumes or mercury.

 

The compensation judge relied on the opinions of Dr. Meyer rather than on the opinions of Dr. Trobiani and Dr. Billups, and her decision to do so is entitled to our deference.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Accordingly, the judge=s decision on this issue is affirmed.

 

4.  Incontinence - Causation

 

At Finding 17, the compensation judge found that Athe preponderance of evidence fails to establish that [the employee=s] incontinence is causally related to any of the work injuries at issue in this case.@  The employee contends that the judge should have accepted the expert opinion of Dr. Trobiani, who opined that the employee=s incontinence was consequent to his work injury of December 18, 1990, and qualified him for a 15% permanent partial disability to the body as a whole.^[16]  We are not persuaded.

 

In arriving at her determination on this issue, the judge noted that on April 5, 2002, Dr. Trobiani opined the employee=s Abladder incontinence was possibly due to involvement of sacral nerve roots due to the disc herniation at L5-S1@ (emphasis added).  On the other hand, Dr. Gedan, who examined the employee at the request of the employer on July 29, 2002, opined that there was no causal connection between the employee=s low back injury of December 18, 1990, and his complaints of either sexual dysfunction or incontinence.  At his deposition, Dr. Gedan testified that sexual impotence or incontinence related to a back injury is Ausually very obvious because there is clinical involvement of multiple nerve roots.@  He stated,

 

A single nerve root injury or what we call a radiculopathy, which occurs very often, is almost never associated--I say almost never because it actually is practically never because it just doesn=t happen.  The mechanism, the pathology, and the physiology just isn=t there to cause impotence or bladder dysfunction.

 

The compensation judge stated that she found Dr. Gedan=s opinion on this issue more compelling than the opinion of Dr. Trobiani.

 

Finding that Dr. Gedan=s opinions constitute substantial evidence supportive of the judge=s decision on this issue, we affirm.

 

5.  Occupational Asthma

 

At Finding 24, the compensation judge determined that A[t]he preponderance of the evidence fails to establish [that the employee=s] November 1992 exposure to fiberglass in the workplace was a substantial contributing factor in his asthma.@  The employee contends that, prior to November of 1992, he had never been diagnosed with asthma.  In fact, he asserts, pulmonary function studies obtained at the request of the employer=s examiner, Dr. Shronts, on April 6, 1992, were interpreted as normal.  The employee argues that, as a result of exposure to dust and fiberglass in the workplace, he developed an infection that led to bronchitis and pneumonia and eventually to his diagnosis of asthma in January of 1993.  In support of these contentions, the employee relies upon the deposition testimony of toxicologist Dr. Vincent Garry taken on May 3, 2000.  Dr. Garry essentially testified that all of the employee=s exposures at work, including exposures to paints and fiberglass, contributed to the employee=s development of an asthmatic condition.  He opined that the employee=s exposures to solvents that include epoxies, together with his exposure to the fiberglass, Amade the soil@ for the infectious kind of a process that developed in him and eventually caused his asthma.  The employee asserts that his condition gradually worsened over the years, and, that, according to occupational medicine specialist Dr. Barbara Gibson, he has sustained a 53% permanent partial disability of the body as a whole related to the condition.^[17]  We are not persuaded.

 

In her findings, the compensation judge noted that she relied upon the opinions expressed by Dr. Gibson and Dr. Ronald Vessey.  On June 5, 1998, Dr. Gibson was requested to provide a disability rating for the employee=s Awork-related asthma.@  It was following that evaluation, at which she had assumed the work-relatedness of the employee=s condition had already been established, that Dr. Gibson opined that the employee had a 53% permanent partial disability of the body as a whole.  However, when the employee=s attorney subsequently asked Dr. Gibson for an opinion on the work-relatedness of the employee=s asthma, she stated, on July 31, 1998, AI am unable to state that Mr. Land=s asthma is work-related.@  In a more detailed report dated August 28, 1998, Dr. Gibson thoroughly reviewed the employee=s medical history, including his history of a dusty work environment prior to his diagnosis of asthma.  The doctor stated,

 

[the employee] developed Ainfiltrates@ which he attributes to the dusty workplace and attributes to being the cause of his subsequent asthma.  Of note, the infiltrates were infectious in nature, responded well to antibiotic treatment and likely were the direct cause of his subsequent asthma.  He is convinced, however, that the dust caused the infiltrates which caused the pneumonia which caused the asthma.

 

Dr. Gibson disagreed with the employee and maintained her opinion that there was no evidence of work-related asthma in this case.

 

On June 27, 2002, Dr. Vessey performed an examination and reviewed the employee=s extensive medical records at the request of the employer. In a deposition taken on October 24, 2002, Dr. Vessey diagnosed Amild adult onset asthma@ related to acute infectious pneumonia in November of 1992.  He opined that he saw no evidence of any pattern of acute occupational asthma related to the employee=s work.  He did not believe that the employee=s exposure to paints, mercury, or fiberglass substantially contributed to his diagnosed asthmatic condition.

 

In Golob v. Buckingham Hotel, the Minnesota Supreme Court stated,

 

Until the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact.  Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the factfinder was obliged to accept the opinion of one and discard the opinion of the other.  The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.

 

244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955) (quoted in Ruether v. State, 445 N.W.2d 475, 478-79, 42 W.C.D. 1118, 1123-24 (Minn. 1990)).

 

In this case, although the medical experts addressed the employee=s asthmatic condition as it related to all of the employee=s workplace exposures, the only issue that was litigated before the compensation judge was whether the November 1992 exposure to fiberglass was a substantial contributing factor in that asthma.  It was the compensation judge=s responsibility to weigh the evidence, and it was her prerogative to choose between the conflicting opinions that were offered.  Finding no basis to substitute our judgment for the compensation judge=s, and finding that her decision is supported by the opinions of Drs. Gibson and Vessey, we affirm.

 

6.  Gillette Injury - September 29, 1998

 

At Finding 25, the compensation judge determined that the evidence did not establish that the employee sustained a Gillette injury on September 29, 1998.  She noted that the employee=s testimony does not support the finding of a September 29, 1998, Gillette injury and that there was no medical evidence to support such a claim either.  Other than noting that September 29, 1998, was the date on which he stopped working for the employer, the employee offered no argument that he sustained an injury on that date.  Therefore, the judge=s finding that the employee did not sustain an injury on September 29, 1998, is affirmed.

 

7.  Permanent Total Disability

 

At Finding 29, the compensation judge concluded that the preponderance of the evidence failed to establish that the employee is permanently and totally disabled.  In support of this finding, the judge determined at Finding 26 that the employee was medically able to work.  She noted that A[e]very doctor who has offered an opinion in this case on [the employee=s] ability to work has indicated that he is capable of sustained gainful employment.@  At Finding 27, the judge accepted the testimony of the employer=s vocational expert, David Berdahl, that a search for work would not be futile in this case.  Lastly, at Finding 28, the judge found that the employee has not looked for work since leaving his job with the employer.  On appeal, the employee contends that the judge=s statement in Finding 26, regarding Aevery doctor=s opinion@ about his ability to work, is Atotally erroneous.@  He contends that Dr. Kathryn Lilley, Dr. John Patrick Cronin, Dr. Steven Trobiani, and Dr. Kevin Kavaney, as well as QRC Michael Stern, have Aall listed Mr. Land as totally and permanently disabled.@^[18]  We are not persuaded.

 

An employee is permanently and totally disabled Aif his physical condition, in combination with his age, training, experience, and the type of work available in the community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  Moreover, generally speaking, Aemployees who are capable of work must make a diligent job search to establish total disability.@  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).

 

In this case, the judge reasonably concluded that the employee is medically able to work.  Finding also that a search for employment would not be futile, the judge reasonably concluded that there was insufficient evidence to support the employee=s claim for permanent total disability.  We have carefully reviewed the record, including the expert vocational testimony and the nine medical depositions offered at trial.  Because there exists substantial evidence in the record to support the judge=s conclusion that the employee is medically able to work, that a search for work would not be futile, and that the employee has not looked for work since leaving his job with the employer on September 29, 1998, the judge=s determination that the employee has failed to establish that he is permanently and totally disabled is affirmed.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

We have fully and carefully considered the entire record in this case.  The issues presented to this court are based on factual disputes and not principles of law.  Having viewed this record in its entirety, we cannot conclude that a mistake has been made.  Accordingly, the decision of the compensation judge is affirmed in its entirety.