RICHARD A. KOSCHAK, Employee, v. RESERVE MINING CO., SELF-INSURED, Employer, and ST. MARY=S/DULUTH CLINIC, SELF-INSURED, adm=d by GALLAGHER BASSETT, Employer-Insurer/Appellants, and MEDICA by HEALTHCARE RECOVERIES, Intervenor, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 26, 2004

 

No. WC04-168

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee=s surgeon had considered the necessity of the employee=s early retirement due to his work injury, where several physicians had agreed that the employee=s low-back-related physical condition restricted him to only a few hours of very sedentary work each of only a few days each week, where the employee had most recently been totally restricted from even such work due to abdominal problems arguably related to his work injury, and where the employee was sixty-three years of age, had completed no formal education beyond a GED, and was no longer able to work at the maintenance tasks in which he had most of his employment experience, the compensation judge=s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that a vocational expert had provisionally identified a few jobs in the employee=s job market for which he might be qualified.

 

Affirmed as modified.

 

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

 

Compensation Judge: Gregory A. Bonovetz

 

Attorneys:  Patrick M. Spott, Jeremy M. Hurd, Orman, Nord & Spott Law Office, Duluth, MN, for the Appellants.  David A. Petersen,Petersen, Sage, Graves & Stockman, Duluth, MN, for the Respondent.  John R. Baumgarth, Minnesota Department of Labor and Industry, Duluth, MN, for Special Compensation Fund.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge=s conclusion that the employee is permanently and totally disabled.^[1]  We affirm as modified.

 

BACKGROUND

 

In the late 1950s, Richard Koschak ceased his formal education after the tenth grade and enlisted in the Navy, where he studied radar and eventually earned his GED.  In about January of 1962, at the age of twenty-one, he became employed at heavy labor with Reserve Mining Company in Silver Bay, Minnesota. In October of 1963, in the course of his work for Reserve Mining Company [Reserve Mining], Mr. Koschak sustained an injury to the palm and fingers of his left hand that evidently resulted in compensation for a 10% permanent partial disability of the hand.  In September of 1981, he sustained another injury in the course of that work, this to his low back.  He was hospitalized briefly subsequent to that injury and was off work until December of 1981, when he underwent a CT scan that was read to be normal.  He subsequently returned to his job with Reserve Mining, which he continued to perform until the company closed down in July of 1986 in the face of imminent bankruptcy.

 

Subsequent to the closure of Reserve Mining, Mr. Koschak became enrolled in a six-month building maintenance program at a vocational technical institute, where he studied electrical maintenance and air conditioning.  On March 27, 1987, prior to completing that program, he became employed as a maintenance engineer with St. Mary=s/Duluth Clinic, subject to no physical or functional restrictions regarding his back. Mr. Koschak worked at this job without serious physical difficulty for about the next twelve years, interrupted only by certain temporary back and left knee problems in 1992, 1993, 1994, and 1996.  During that same twelve-year period, he participated also in a host of physically intensive recreational activities, including hunting, horseback riding, boating, elk hunting, rollerblading, cross country skiing, biking, dancing, and fishing, all the while also maintaining his own property, cutting his own grass, and performing his own household chores.

 

On October 6, 1999, Mr. Koschak sustained another work-related injury in the course of his job with St. Mary=s/Duluth Clinic, when he hit his head on a pipe, jamming his spine.  On the date of this injury, Mr. Koschak [the employee] was fifty-nine years old and was earning a weekly wage of $900.66.  After emergency treatment, the employee saw his primary physician, Dr. Craig Gilbertson, who prescribed physical therapy and referred him to Nurse Practitioner Terry Granlund.  The employee complained initially of symptoms in his upper body, but within about three weeks he had begun to experience tingling radiating down into his left foot as well.  On December 1, 1999, in consultation with occupational medicine specialist Dr. Jed Downs, Nurse Granlund restricted him to light duty, prescribed physical therapy, and ordered a lumbar MRI scan.  The scan, which was conducted on December 2, 1999, was read to reveal a small disc extrusion at L4-5 and a small disc protrusion at L5-S1 without impingement on the thecal sac or nerve root, and on December 3, 1999, an epidural corticosteroid injection was ordered.  Physical therapy was terminated on December 6, 1999, Awithout significant improvement in [the employee=s] symptoms,@ and two days later the employee underwent the prescribed injection.  On December 20, 1999, Dr. Downs restricted the employee from all work and referred him for a surgical consultation, which was conducted on that same date by neurosurgeon Dr. Scott Dulebohn, who prescribed medication and ordered another MRI scan.  The scan, also conducted on that date, was read to reveal a small disc extrusion impinging on the left L5 nerve root, and on December 22, 1999, Dr. Dulebohn recommended a laminectomy at L4-5, which he performed on January 20, 2000.    On January 26, 2000, St. Mary=s/Duluth Clinic [the employer], which was self-insured against workers= compensation liability at the time, acknowledged liability for a work injury and commenced payment of benefits.

 

The history of the employee=s post-injury treatment has been lengthy and complex.  In February of 2000, while convalescing from his low back surgery, the employee began experiencing increased pain also in his neck.  Physical therapy was prescribed, and on February 28, 2000, the employee began receiving rehabilitation assistance from QRC Wende Morrell.  On March 8, 2000, Dr. Dulebohn reported that the employee was doing Aextremely well@ in his recovery from lumbar surgery, and he indicated that he had Atold [the employee] he can go ahead and shoot his gun and pull his bow and see how that goes,@ nevertheless retaining the employee=s restriction from all work. Dr. Dulebohn referred the employee to physiatrist Dr. T. Mark Seidelmann, who saw the employee on April 19, 2000.  It was Dr. Seidelmann=s opinion that the employee should remain off work, Aas he would not be able to tolerate the demands of his job including stair and ladder climbing.@  Dr. Seidelmann prescribed medication and continued physical therapy and recommended laboratory evaluation regarding the employee=s symptoms of fatigue and night sweats.  Physical therapy records indicate that the employee was continuing to describe Aworsening left posterior lower extremity shooting pain@ on May 17, 2000, and Dr. Seidelmann ordered another MRI scan.  The scan, conducted on May 26, 2000, was read to reveal degenerative changes at L3-4, L4-5, and L5-S1, post-operative changes and minimal disc bulging at L4-5, and nerve root enhancement consistent with scar formation at L5, and Dr. Seidelmann referred the employee back to Dr. Dulebohn for further evaluation.  By July 13, 2000, Dr. Seidelmann was reporting that the employee had fallen for the fourth time, apparently due to radicular problems, and that he Ahas not made any significant improvement at this time.@ Physical therapy was discontinued, and on July 26, 2000, the employee saw Dr. Dulebohn again, who continued the employee=s restriction from working and recommended trying first a series of facet blocks and then perhaps discography and possibly anterior lumbar interbody fusion.  Dr. Dulebohn suggested also on that date the possibility of early retirement for the employee if efforts to get him back to work should prove unsuccessful.

 

The recommended facet blocks were performed and apparently furnished the employee with what Dr. Dulebohn described on November 22, 2000, as Aremarkable pain relief,@ but Asignificant unusual cramping@ soon developed in the employee=s legs.  As alternative treatment, Dr. Dulebohn prescribed facet rhizotomies at L3, L4, L5, and S1, Awith no steroid injection in the future,@ and on February 14, 2001, he performed those procedures.  The rhizotomies evidently reduced the employee=s pain level slightly, and on May 1, 2001, Dr. Seidelmann released the employee to return to part-time, light-duty work, restricted to ten pounds lifting, and referred the employee back to physical therapy for pelvic stabilization and neutral spine mechanics.  Physical therapy records indicate that the employee had made no progress toward either short-term or long-term goals by July 9, 2001.

 

On September 8, 2001, the employee saw Dr. Gilbertson with complaints of significant mid-abdominal pain, which Dr. Gilbertson reported as being of Aunsure etiology.@  Dr. Gilbertson ordered a CT scan and consulted gastroenterologist Dr. Jay Bosco.  Dr. Bosco concluded that the employee Acould have some inflammatory bowel disease yet there was concern about small bowel neoplasm or lymphoma,@ but no more definitive diagnosis was apparently reached.  The employee=s condition apparently improved thereafter, and on November 2, 2001, Dr. Seidelmann relaxed the employee=s restrictions to permit the employee to work five instead of four hours a day, five days a week.  However, about two months later, on December 28, 2001, the employee slipped on some ice at work and sustained a strain of his left calf, a lateral collateral sprain of his left knee, and an exacerbation of his back pain, following which accident he was again referred for physical therapy and restricted from working.

 

On January 9, 2002, the employee was released to return again to light duty work with a ten pound lifting restriction, but he was taken back off work again for mechanical back pain on January 22, 2002, and on January 27, 2002, he was seen at an emergency room with complaints also of a recurrence of severe abdominal pain that he reportedly had experienced intermittently for several months.  The attending physician diagnosed gastritis and gas pain, medication was prescribed, and the employee was referred to Dr. Bosco.  Meanwhile, contemplating referral of the employee to a chronic pain management program, Dr. Seidelmann released the employee on February 5, 2002, to return to light duty work on February 11, 2002, restricted to three hours a day and from lifting over ten pounds ever, five pounds frequently.  On February 13, the employee saw Dr. Bosco, who diagnosed a gastric ulcer, pending a blood test, which, conducted the following day, proved negative.  On February 14, 2002, Dr. Seidelmann referred the employee back to Dr. Dulebohn for a possible facet block.  The employee=s physical therapy was terminated on March 6, 2002, for lack of progress, and a month later, on May 5, 2002, the employee was approved for social security disability benefits.  He evidently elected instead, however, to receive early retirement benefits, since those reduced benefits were higher than disability benefits less the deduction for workers= compensation payments.

 

On May 12, 2002, with his low back pain continuing, the employee underwent another lumbar MRI scan, which revealed degenerative facet osteoarthropathy at L4-5 and L5-S1 and some previously evidenced perineural L5 nerve rootlet fibrosis, but no obvious recurrent disc problem or change from the preceding MRI scan.  Three days later, on May 15, 2002, noting that the employee=s abdominal distress was increasing with his narcotics use for pain, Dr. Dulebohn continued the employee=s restriction from working and recommended a dorsal column stimulator, with a psychological work-up including an MMPI.

 

On June 12, 2002, the employee filed a claim petition, alleging entitlement to permanent total disability benefits continuing from June 3, 2002, to undetermined permanent partial disability benefits related to his neck, back, right shoulder, and left leg, and, absent a finding of permanent total disability, to retraining--all consequent to work injuries to those body parts and to his head on October 6, 1999, and December 28, 2001.

 

On August 23, 2002, the employee saw psychologist Dr. Scott Lucas for the psychological evaluation recommended by Dr. Dulebohn on May 15, 2002.  In his report on that date, Dr. Lucas stated as follows:

 

At the time of this appointment [the employee] said that he has been experiencing . . . misgivings about having the stimulator based upon his hearing of the restrictions that it would place on his physical activity.  [The employee] is an individual who is very outdoors oriented and expressed concerns about the potential that he no longer would be able to go in a boat across rough water or take his truck over rough roads or off road.  He also trains dogs with some of the local physicians and a number of them have raised some questions about actual percentage of time that the stimulator is beneficial.

 

Dr. Lucas went on to report that the employee

 

did not wish to proceed with the psychological evaluation because he does not want to pursue the spinal cord stimulator currently.  It was his choice to discontinue the evaluation and leave open the option of returning . . . . Presently, [the employee] indicated he would return to [Dr. Dulebohn] and talk more about another facet block.

 

On September 9, 2002, Dr. Dulebohn declined to refill the employee=s prescription for pain medication, concluding that, Abased on [his] psychiatric evaluation, [the employee] did not participate in the plan of care,@ that he was Anot a candidate for surgery,@ and that he was therefore at Amaximum medical improvement at this time.@  On those conclusions, Dr. Dulebohn discharged the employee from his clinic and referred him to his primary care physician.

 

On September 18, 2002, the employee was evaluated for the employer by orthopedic surgeon Dr. Richard Strand, who diagnosed degenerative disc disease and degenerative spondylosis of the cervical and lumbar spine, status post left L4-5 hemilaminectomy and disc excision. After review of the employee=s personal, medical, and social history, physical examination of the employee, and review of the employee=s medical records, Dr. Strand concluded in part that the employee Arequires restrictions the same as any other laminectomy patient,@ that he was Anot in any need of any further treatment,@ and that he, Dr. Strand, Acertainly would not recommend an implant stimulator.@  Dr. Strand concluded also that the employee=s December 28, 2001, incident was only a temporary, three-week aggravation of a basic underlying condition that had begun with a football injury in 1957 and had become substantially aggravated with the back injury of August 1981.  Dr. Strand expressly concluded that the employee was not permanently and totally disabled and that he was able to work at light duty.  It was Dr. Strand=s opinion that the employee had reached maximum medical improvement [MMI] with regard to his October 1999 cervical spine injury and his December 2001 low back strain and that the employee=s low back disc problem was not directly related to any occurrence in October 1999. Dr. Strand=s report was served on the employee on October 16, 2002.

 

On November 19, 2002, Nurse Granlund noted that the employee would be consulting about the dorsal column stimulator with Dr. Downs, who had recently prescribed that the employee be started on Neurontin and Methadone.  On December 2, 2002, Dr. Dulebohn indicated that there had been Asome confusion about information in regards to [the employee=s] stimulator work-up@ and that he was once again treating the employee.  He reiterated his recommendation of a dorsal column stimulator Aas a non drug, relatively noninvasive method of treatment for [the employee=s] residual leg pain,@ supporting Dr. Downs= prescription of Neurontin but recommending against the prescription of Methadone. In office notes on January 10, 2003, however, Dr. Downs indicated that the employee had reiterated that he Awould rather try medication as opposed to having [an] implantable device.@

 

The employee had undergone a vocational assessment on October 17, 2002, conducted by rehabilitation consultant Richard VanWagner.  According to Mr. VanWagner=s report to the employer on February 21, 2003, the assessment had included a regimen of mental and physical strength tests, a detailed review of the employee=s medical records, of his personal, military, and vocational history, of his self-reported medical history, and of his recreational and daily living activities, and a brief survey of job openings available in the employee=s job market.  In his report, Mr. VanWagner found in part the following: (1) that the employee Ais an active archer, hunter, and fisherman and conducts extensive outdoor activities,@ which Aare less now than before his 1999 injury,@ although Asome of these apparently he had slowed down before 1999, as well@; (2) that the employee Ais of average intelligence, has adequate math achievement levels for most jobs, and has good dexterity strength@; (3) that the employee Ahas not looked for work since leaving his employment at [the employer] in 2002"; and (4) that the employee Awould be able to perform various kinds of Sedentary to Light employment where he would have an opportunity to change positions and not engage in repetitive kinds of activities@Bemployment such Aas Light Delivery, Security Officer, Light Maintenance, and given his background, Supervisory positions within these areas.@  Mr. VanWagner also furnished examples of actual available jobs in these categories.  On these findings Mr. VanWagner concluded in part that the employee was Aat least employable at a wage range from $7.50 to $9.00 per hour in his current labor market@ and perhaps at even a higher wage Awith a concerted, motivated daily job search.@  Mr. VanWagner summarized as follows in support of this conclusion:

 

[The employee] is currently not working and is not looking for work, yet he leads an active lifestyle.  He continues to be an avid hunter and in 2002 has hunted game in Minnesota, North Dakota, Wyoming, and Montana.  [The employee] currently has considerable disincentive to participate in job search inasmuch as he is receiving close to $4000 per month in current combined benefits from Social Security Disability, his Reserve Mining pension, and Workers= Compensation.

 

On March 27, 2003, the employer filed a Petition for Reimbursement from the Special Compensation Fund and Petition for Contribution and Indemnity, seeking reimbursement for any share of the benefits that the employer had paid to or on behalf of the employee that might be causally related to the employee=s 1981 work injury at Reserve Mining, now in bankruptcy.  Four days later, the employee filed a medical request, seeking payment for installation of a dorsal column stimulator as recommended by Dr. Dulebohn, consequent to the employee=s work injuries on October 6, 1999, and December 28, 2001.  The employer refused to pay for the surgery, and the employee returned to light duty work with the employer on May 1, 2003, his temporary total disability benefits having been discontinued as of March 3, 2003, by an April 21, 2003, order on discontinuance, based on the fact that the employee was more than ninety days post the October 16, 2002, service of Dr. Strand=s MMI report.  On May 2, 2003, the employer served on the employee and his attorney a Notice of Intention to Discontinue the employee=s temporary total disability benefits also on grounds that the employee had been paid 104 weeks of temporary total disability benefits as of March 14, 2003, and had returned to work as of May 1, 2003.

 

The employee=s return to work was under restrictions amended by Dr. Downs to limit him to only three days of work each week and only four hours of work each of those three days.  Over the course of May and June of 2003, the employee, in addition to continuing back and leg discomfort, complained to both Dr. Downs and Dr. Gilbertson also of increasing gastrointestinal distress.  A CT scan on June 13, 2003, was read to be essentially normal, however, and on June 27, 2003, Dr. Downs pronounced the employee=s abdominal complaints to be of Aetiology undetermined.  Possibly stress related, possibly [a] pharmacologic affect of Hydrocodone.@  It was Dr. Downs= opinion that the employee=s GI distress was not specifically work related.

 

On August 7, 2003, the employee was examined by orthopedic surgeon Dr. Robert Wengler, who diagnosed a herniation of the L4-5 disc, status post surgical excision with residual back pain and sciatica, concluding in part that the employee=s injury at Reserve Mining had no causal relationship to the employee=s current injuries or disability. Dr. Wengler indicated that he was Aa little surprised at the recommendation that he be considered a candidate for a morphine pump since there are other options that appeared to me to be more viable than this salvage procedure.@  Dr. Wengler recommended a lumbar discogram to evaluate the employee=s lower three discs, noting that he considered the employee to be a possible candidate for a spinal fusion. He indicated also that he did not consider the employee to be permanently and totally disabled from sustained gainful employment, that he believed that the employee could work provided that he did not lift over ten pounds, did not engage in repetitive bending or stooping, and did not do any heavy pushing or pulling or working in positions of prolonged postural stress.

 

On August 8, 2003, Dr. Gilbertson wondered if the employee=s narcotic pain medications might be having something to do with the employee=s abdominal pain, and on August 12, 2003, Dr. Downs increased the employee=s work restriction from light duty to sedentary work.

 

On September 2, 2003, the employee was examined for the Special Compensation Fund by orthopedic surgeon Dr. Stephen Barron.  It was Dr. Barron=s opinion that the employee=s 1981 injury at Reserve Mining was a temporary injury and not a substantial contributing factor in his current disability or need for medical treatment, that the employee had sustained a 14% whole body impairment exclusive of that 1981 injury, and that he had attained MMI with respect to all of his injuries. Dr. Barron concluded also that the employee was capable of working full time with restrictions against lifting more than twenty-five pounds and against repetitive bending from the waist, these restrictions being related only to the employee=s post-1981 injuries.

 

On September 22, 2003, the employee amended his claim petition to allege entitlement to benefits stemming also from injury to his stomach and gastrointestinal system consequent to medications essential in treatment of his work-related back injuries in September 1981, October 1999, and December 2001.  By October 20, 2003, QRC Morrell was reporting that Dr. Gilbertson had stated that the more the employee worked the more medications he required and the more that affected his stomach.  However, on October 23, 2003, in a letter to the employer and insurer=s attorney, Dr. Strand rendered an opinion, based on a records review of the employee=s abdominal pain problems, that there was no evidence of any relationship between the employee=s cervical and lumbar spine problems and his gastrointestinal problems.  Dr. Strand explained in part that, while it may cause chronic constipation, narcotic use does not cause inflammatory bowel disease.

 

On November 5, 2003, the employee was seen in follow-up by Dr. Downs, who diagnosed chronic radicular pain, status post facet rhizotomy and L4-L5 hemilaminectomy.  Dr. Downs concluded that some of the problems with fecal urgency of which the employee complained might be related to the employee=s facet rhizotomies but that none of his epigastric pain was related to those rhizotomies, although that pain could be related to the employee=s ongoing use of narcotics as a pain reliever.  On that conclusion, Dr. Downs restricted the employee again from all work. On November 19, 2003, QRC Morrell reiterated that A[the employee] indicates the more he increases his activity the more medication he requires and subsequently this impacts his gastrointestinal tract. [The employee] indicates his general physician, Dr. Gilbertson, has recommended he not continue with work activity given the stomach problems he is experiencing.@

 

The matter came on for hearing on December 5, 2003, where the consolidated threshold issues were the employee=s claim petition filed June 12, 2002, the employer=s petition for contribution filed March 27, 2003, the employee=s medical request filed March 31, 2003, and the employee=s amended claim petition filed September 22, 2003. Specific issues litigated at hearing included the following: (1) whether the employee=s gastrointestinal condition had been caused or substantially aggravated by the use of medications taken to relieve the employee from the effects of his work-related back condition; (2) whether the employee had been permanently and totally disabled since the termination of his temporary total disability benefits on March 15, 2003; (3) whether the employee met the permanent partial disability threshold for permanent total disability; (4) whether the employee had sustained a work-related permanent partial disability to 14% of his whole body related to his back; (5) whether the employee had been paid for a 10% permanent partial disability of the hand based on his injury in 1963; (6) whether the employee=s loss of teeth constituted rateable permanent partial disability for permanent total disability threshold purposes; (7) whether the employee=s low back injury of September 2, 1981, was a substantial contributing cause of the employee=s need for medical care and treatment and/or loss of time from work subsequent to October 6, 1999; (8) whether the employer was entitled to contribution and/or reimbursement from the Special Compensation Fund for benefits that the employer had paid consequent to the employee=s 1981 work injury at Reserve Mining; and (9) whether authorization for the implanting of a dorsal column stimulator was appropriate.  For the first time at hearing, the employee also requested that amendment of his rehabilitation plan to include investigation of retraining be added as an issue in the event that the employee should not be found to be permanently totally disabled, but the compensation judge sustained the employer=s objection.

 

Evidence submitted at hearing included the employee=s testimony that hunting and fishing and related outdoor activities had been a nearly obsessive passion of his all of his life, that they had been severely curtailed by his work injury, and that his participation in them now was only by the very substantial and material help of his friends.  The employee testified also that the work that he had most recently been doing for the employer for ostensibly twelve hours each week comprised almost exclusively the inputting of data into a computer with one-finger typing skillsBand then only for about half the time he was at work, the other half being spent walking around to relieve his back pain.  When asked on cross examination whether he would work for twenty hours or more if he were released to do so, the employee responded AI guess I=ll have to.@  QRC Morrell testified that the work that the employee had most recently been doing was not Acompetitive employment@ and that such work did not exist elsewhere in the workforce, although she did concede on cross examination that the employee might possibly be capable of Aa very light maintenance position or possibly security.@

 

By findings and order filed March 12, 2004, the compensation judge concluded in part the following: (1) that none of the employee=s medical care or loss of time from work since October 1999 can be attributed in any way to the injury of September 1981; (2) that the employee=s abdominal/gastric complaints and their treatment are causally related to his current low back condition; (3) that the employee=s work injury of October 6, 1999, and consequent surgery have resulted in a 14% permanent partial disability of the body as a whole; (4) that the employee is also subject to a 10% permanent partial disability of the left hand, convertible to 5.4% of the body as a whole; (5) that the employee is also subject to a 4% permanent partial disability of the body as a whole related to his missing eight teeth; (6) that the employee=s total rateable permanent partial disability exceeds the minimal threshold required for permanent total disability status; (7) that the dorsal column stimulator recommended by Dr. Dulebohn was reasonable and necessary treatment for the employee=s low back injury; (8) that, in light of multiple factors including both his back-related restrictions and the debilitating effect of his abdominal/gastric condition, the employee had been permanently totally disabled since November 5, 2003; and (9) that the employee had made co-payments for medications for his back pain and/or abdominal/gastric symptoms that were causally related to his October 6, 1999, work injury.

 

On those findings, the compensation judge ordered in part (1) that the employer should pay to the employee permanent total disability benefits continuing from November 3, 2003 (sic), Aso long as his condition may warrant,@ (2) that the employer should pay to the employee $10,500.00 in compensation for a 14% permanent partial disability, (3) that the employer should reimburse the employee for any co-payments that he had made for medications prescribed for his spinal and gastric conditions, (4) that the employer should pay the expenses of implantation of the dorsal column stimulator prescribed by Dr. Dulebohn, and (5) that the employer was not entitled to contribution or reimbursement from the Special Compensation Fund, in that the September 1981 injury played no part in the employee=s current low back condition. The employer appeals from the judge=s conclusion that the employee is permanently and totally disabled.

 

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

 

The statute provides that an Ainjury which totally incapacitates an employee from working at an occupation which brings the employee an income@ qualifies an employee for permanent total disability status, provided that at least one of certain other criteria is also met, among these criteria being a threshold level of permanent partial disability.  Minn. Stat. ' 176.101, subd. 5.  Case law further defines permanent total disability as existing when the injured employee=s Aphysical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Schulte v. C. H. Peterson Constr., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).^[2]  Having made findings earlier as to the employee=s age, education, and basic employment history, the compensation judge concluded at Finding 36 as follows:

 

As a direct result of the injury of October 6, 1999 the employee is markedly limited in his physical activities. More restricting, the employee is also markedly limited in the number of hours per week he is able to perform the sedentary work.  Based on the lumbar spine injury alone the employee is restricted to 12 hours of work per week.  When coupled with the total ban on working, because of the debilitating effect on the abdominal/gastric condition the employee has been, since November 5, 2003, permanently totally disabled.

 

The self-insured employer contends that this conclusion is unsupported by substantial evidence, in that (1) no doctor or vocational expert has testified that the employee is permanently and totally disabled, (2) the employee=s own independent medical expert, Dr. Wengler, has affirmatively concluded that he did Anot consider [the employee] to be permanently and totally disabled from sustained gainful employment,@ (3) the employee himself has testified that he is capable of continued employment, (4) the employee continues to enjoy an active lifestyle as a hunter and outdoorsman, which involves activities more strenuous than the work that the employee has been doing for the employer, (5) both vocational expert Mr. VanWagner and QRC Morrell testified that there are jobs available for the employee within his job market, and (6) the employee continues to be employed and accommodated by the employer.  We are not persuaded.

 

Although it has both a medical and a vocational component, cf. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983), the question of whether an employee has met the burden of proving permanent total disability is ultimately a question of fact for the compensation judge.  See Atkinson v. Goodhue County Co-op Elec. Ass=n, 55 W.C.D. 150, 160 (W.C.C.A. 1996), citing McClish, 336 N.W.2d at 541, 36 W.C.D. at 138.^[3]  Although no medical doctor or vocational expert may have expressly opined that the employee is permanently and totally disabled from working, there remains substantial evidence in the record when viewed as a whole to support the compensation judge=s conclusion that the employee is physically and vocationally incapable of Aanything more than sporadic employment resulting in an insubstantial income.@ While it may be true that the employee=s own independent medical expert, Dr. Wengler, has expressly concluded that he did Anot consider [the employee] to be permanently and totally disabled from sustained gainful employment,@ Dr. Wengler=s opinion preceded the culmination of the employee=s abdominal pain and Dr. Downs= November 5, 2003, restriction of the employee from all work in large part consequent to it.  Nor do we find, as the employer has urged us to do, that the employee=s concession AI guess I=ll have to,@ in response to whether he would attempt to work twenty hours or more, rises to an admission of an actual ability to both find and perform sustained substantial employment as contemplated by the statute.

 

The employer has argued that the employee=s active outdoor lifestyle, including as it does substantial hunting and fishing and other sporting activities, belies the employee=s claim to being permanently and totally disabled from all work.  We would note, however, the employee=s uncontroverted testimony that he was currently physically unable to participate nearly as much in such activity as he was once accustomed to doing and as he would still passionately like to be doing and that he required substantial assistance from his friends in even his more limited participation in those activities.  It is true that Mr. VanWagner did identify a few jobs in the employee=s job market for which the employee might qualify and that QRC Morrell testified that there might Apossibly@ be Aa very light maintenance position or possibly security@ position available for the employee.  But QRC Morrell=s supposition here is very speculative at best, and Mr. VanWagner=s opinion is, again, evidence preceding the culmination of the employee=s abdominal problems.  Nor does the fact that the employee continues to be employed by the employer at what are reasonably only Amake-work@ activities  constitute a basis for concluding that the employee is not totally disabled under the statute, particularly given QRC Morrell=s conclusion that the work he does is not competitive employment in the current job market.  An employee may be found to be permanently and totally disabled even though she may retain some capacity to work, see Cavanaugh v. Frederick Willys, Inc., 361 N.W.2d 49, 37 W.C.D. 383 (Minn. 1985),^[4] and, while evidence of a diligent job search may go to the weight of an employee=s claim to permanent total disability status, a diligent job search is not an absolute prerequisite to an award of permanent total disability benefits.  See, e.g., Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879, 47 W.C.D. 136, 141-42 (Minn. 1992); Redgate v. Sroga=s Standard Serv., 421 N.W. 2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).

 

This is not a simple case, and had we been the compensation judge we might well have decided it differently. But the judge=s conclusion was not an unreasonable one, given our standard as articulated in Schulte.  Already in July of 2000, Dr. Dulebohn, the employee=s surgeon, was contemplating the practical necessity of the employee=s early retirement in the face of his re-employment difficulties.  Several physicians have concurred in concluding that the employee=s low-back-related physical condition restricts him to at most only a few hours of very sedentary work activity each of only a few days each week.  Periodically, and most recently, this restriction has been increased to a total restriction, consequent to abdominal pain that has been medically related to the employee=s treatment for his work-related low back pain.  This physical status exists in a context of the employee=s being sixty-three years of age, having completed no formal education beyond a GED, being no longer able to work at the maintenance tasks in which he has most of his employment experience, employed now only at work that his QRC has classified as noncompetitive. Although a vocational expert may have provisionally identified a few other and perhaps more competitive jobs in the employee=s labor market for which he might be qualified, it would not have been unreasonable for the compensation judge to conclude from these facts, given the employee=s additional and increasing abdominal problems, that the employee is permanently and totally disabled from Aanything more than sporadic employment resulting in an insubstantial income.@ Schulte, 278 Minn. at 83, 153 N.W.2d at 134, 24 W.C.D. at 295.  Because the compensation judge=s conclusion was not unreasonable, we must affirm it.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Because, however, the judge=s order that permanent total disability benefits commence on November 3, 2003, is inconsistent with both the medical record and the judge=s finding in Finding 36, that the employee was last restricted from all work on November 5, 2003, we modify Order 1 of the judge=s decision to provide that benefits shall commence on November 5, 2003, rather than on November 3, 2003.