OLIVER A. BRANCH III, Employee/Appellant, v. STROUT PLASTICS and ACE-USA/GALLAGHER BASSETT SERVS., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, COMPREHENSIVE THERAPY, ASPEN MED. GROUP, SOUTHDALE CHIROPRACTIC, and PHYSICIANS= DIAGNOSTICS & REHAB. (PDR), Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 14, 2005

 

No. WC04-344

 

HEADNOTES

 

JOB SEARCH - SUBSTANTIAL EVIDENCE; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee contacted only about twenty-five employers over claimed benefits periods totaling about fourteen months, where entries in the employee=s job search logs were not corroborated by the audit of a business investigator, where the employee=s follow-up on leads with a temporary employment agency was not diligent, and where the employee had rejected rehabilitation assistance, the compensation judge=s conclusion that the employee did not conduct a reasonable and diligent job search during the benefits periods at issue was not clearly erroneous and unsupported by substantial evidence, and the judge=s denial of temporary total disability benefits on that basis was affirmed.

 

CAUSATION - TEMPORARY AGGRAVATION.  Where the employee had a long history of preexisting neck and low back injury, where there was expert medical opinion that the employee no longer had any objective abnormal physical findings and had sustained no new injury to his neck on the date alleged, where there was other expert medical opinion that the employee had essentially full range of motion in both his neck and low back and demonstrated no significant abnormalities on MRI scans, the compensation judge=s conclusion that the employee=s neck and low back injuries were temporary and had fully resolved by the date of a third medical expert=s finding that the employee had full range of motion in all planes of his lumbar and cervical spine was not clearly erroneous and unsupported by substantial evidence.

 

PRACTICE & PROCEDURE - REMAND; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the only definitive evidence of earnings by the employee as a result of self-employment selling Avon products during the two-month post-injury period at issue reflected earnings of $22.80 in commissions on the sale of four items, where the court had affirmed a finding that the employee was not involved in a reasonable and diligent search for work during that period, and where the employee=s purported claim for temporary partial disability benefits alternative to his claim for temporary total benefits during the period was not formally pled and was not asserted until late in the hearing, the compensation judge=s failure to address the purported alternative claim was not error warranting remand of the issue.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was supported by expert medical opinion and not otherwise unreasonable in light of the evidence, the compensation judge=s denial of permanent partial disability benefits related to the employee=s temporary work injury was not clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - MEDICAL TREATMENT.  Where none of the employee=s arguments with regard to certain  subsidiary medical and rehabilitation benefits fully contemplated the judge=s affirmed conclusion, in reliance on medical evidence, that the employee=s condition was fully resolved, the compensation judge=s denial of subsidiary benefits subsequent to the date of resolution was not clearly erroneous and unsupported by substantial evidence, pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), and derivative cases.

 

Affirmed.

 

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

Compensation Judge:  Bradley J. Behr

 

Attorneys:  Eric R. Lee, Milavetz, Gallop & Milavetz, Coon Rapids, MN, for Appellant.  Mary E. Kohl and Steven E. Sullivan, Johnson & Condon, Minneapolis, MN, for Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that the employee=s September 6, 2002, work injury was temporary and had resolved by July 29, 2003, and from several related findings of the judge.  We affirm.

 

BACKGROUND

 

The neck- and low back-related medical history of Oliver A. Branch, III, is long and complex and has involved the examinations and treatment of over a dozen doctors.  In February of 1986, Mr. Branch sustained injuries to his neck and his low back as a result of a motor vehicle accident.  About five months later, in July of 1986, Dr. Charles Grudem rated Mr. Branch=s related permanent partial disability at 5% relative to the neck and 5% relative to the low back.  About seven years later, in February of 1993, Mr. Branch was evaluated by orthopedic surgeon Dr. Daniel Gaither at the request of a county attorney regarding Mr. Branch=s complaints of pain in his neck, back, and left shoulder and numbness and tingling in his hands, legs, and toes that Mr. Branch reported having experienced ever since being kicked by a prison guard in September of 1989.  X-rays revealed only a small bony fragment near the C4 vertebra, and on March 12, 1993, Dr. Gaither diagnosed cervical and low back sprain and migraine headaches, without any significant disability relating to the reported prison-guard assault.  About nine years later, in May of 2002, Mr. Branch was seen by Dr. David Pautz for complaints of neck and left shoulder pain, which Mr. Branch related to lifting that he had recently done at work, noting also that his 1986 motor vehicle accident had resulted in permanent neck disability.

 

On September 6, 2002, Mr. Branch reinjured his neck and low back when he attempted to move a large barrel of ink in the course of his work as a printer=s helper with Strout Plastics.  Mr. Branch [the employee] was forty-five years old on that date and was earning a weekly wage of $748.32, including his wage for concurrent part-time work that he was performing with another employer, Caribou Coffee.  Strout Plastics [the employer] and its insurer accepted liability for the low back injury and paid initial treatment expenses and wage loss benefits.  The employee was initially treated first by Dr. Kevin O=Connell, who diagnosed lumbar strain and prescribed medication and exercises, and then by chiropractors Dr. Cheryl Meagher and Dr. Dean Evans, who subsequently referred him for pain medication to his regular healthcare clinic.  At his clinic, on September 25, 2002, the employee saw internal medicine specialist Dr. Lou Salet, to whom he complained of neck pain in addition to his low back pain, which he now indicated was radiating down his buttocks bilaterally.  Dr. Salet ordered cervical and lumbar MRI scans, prescribed ibuprofen and Vicodin, and referred the employee for evaluation by orthopedic surgeon Dr. John Sherman.

 

On October 7, 2002, on referral from Dr. Evans, the employee saw osteopath Dr. Ronald Tarrel, who noted that the employee had Aa past medical history significant for previous neck and back injury way back in 1986@ although he had Anot had problems in that regard for several years.@  Relating the employee=s symptoms to the employee=s work injury on September 6, 2002, Dr. Tarrel diagnosed a cervical sprain with possible radiculopathy on the right, a lumbar sprain with possible L5 radiculopathy, and associated headache, and he ordered MRI scans of the cervical and lumbar spines.  On October 9, 2002, the employee was terminated by the employer, evidently on grounds that he had allegedly misrepresented his educational background, but he continued to work at Caribou Coffee, and the employer and insurer paid temporary partial disability benefits.  On October 16, 2002, the employee underwent the ordered MRI scans of his neck and low back, which were read to reveal mild C5-6 degenerative disc disease and disc desiccation and bulge at L5-S1, respectively, and Dr. Tarrel referred the employee for comprehensive physical therapy.

 

On November 29, 2002, Qualified Rehabilitation Consultant Josie P. Hardy wrote to the insurer, reporting that she had met with the employee two days earlier for the purpose of a rehabilitation consultation.  QRC Hardy concluded that the employee was an eligible employee for rehabilitation services, but she reported that the employee had declined to sign at that initial meeting a Rights and Responsibilities of the Injured Worker form and medical authorization and professional consent forms.  Cervical and lumbar x-rays a few days later, on December 2, 2002, revealed, respectively, straightening of the neck with spondylosis changes at C5-6 and four normal-appearing lumbar vertebrae, with the fifth incorporated into the sacrum.  In a report to the insurer a week later, on December 9, 2002, Dr. Evans indicated that the employee had made progressive improvement in his subjective complaints and clinical findings, that he had been able to work progressively longer hours at his job, and that he had done this in recent days without the use of prescribed pain medication.  The employee had still not signed the required rehabilitation forms by January 16, 2003, however, and on January 28, 2003, the employer and insurer filed a notice of intention to discontinue [NOID] the employee=s temporary partial disability benefits on January 23, 2003, alleging that the employee had not signed medical authorizations as requested, had failed to cooperate with rehabilitation efforts, had failed to work the number of hours authorized by his doctor, and was working below his earning capacity and not conducting a reasonable and diligent job search.  On February 3, 2003, QRC Hardy reported to counsel for the employer and insurer that the employee had dismissed her services, Aas he does not believe that he needs rehabilitation services at this time.@  On February 14, 2003, the employee=s employment with Caribou Coffee was also terminated, for his allegedly violating a manager=s policy regarding free drinks during a work shift.

 

On February 19, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Thomas Raih, who concluded that the employee had not sustained any new injury to his neck on September 6, 2002, the degenerative changes evident on his October 16, 2002, MRI scan having been preexisting.  Dr. Raih concluded further that, at the time of the examination, the employee exhibited normal motion of the neck and back, normal neurologic function and reflexes, and otherwise normal objective physical findings.  It was Dr. Raih=s further opinion that any work-injury-related aggravations on September 6, 2002, had resolved by the end of December of 2002, that the employee had reached maximum medical improvement [MMI] from any such aggravations without any permanent partial disability, and that any medical treatment for such aggravations was no longer reasonable and necessary.  On February 20, 2003, an administrative conference was held to consider the employer and insurer=s January 28, 2003, NOID, pursuant to which a compensation judge approved discontinuance of the employee=s temporary partial disability benefits effective February 14, 2003, based on the fact that the employee was not working after that date.  See Parson v. Holman Erection Co., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988) (an employee is not eligible for temporary partial disability benefits unless he is working at a wage loss).  Dr. Raih=s report opining that the employee had reached MMI was served on the employee on March 4, 2003.

 

On March 6, 2003, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from February 15, 2003, to undetermined permanent partial disability and medical benefits, and to a consultation with Physicians= Diagnostic & Rehabilitation [PDR]Ball consequent to his work injuries on September 6, 2002.  On March 12, 2003, Dr. Tarrel issued a report of work ability and a health care provider report, on which he indicated in part that the employee was restricted to working no more than three days a week at light duty, and on March 18, 2003, he indicated that the employee was not yet at MMI.

 

On March 21, 2003, investigator Jeff Sullivan, of Heartland Business Intelligence, mailed to counsel for the employer and insurer a report of an audit that he had conducted of a list of fifty-two contacts and applications for employment that the employee had alleged to have made in January and February  2003.  Of those fifty-two alleged contacts, the employee had alleged having made actual application to twenty-eight, and of the apparently fifteen of those alleged twenty-eight applications that Mr. Sullivan had investigated, Mr. Sullivan reported that he was able to confirm only two actual applications, six being inconclusive and seven being expressly refuted by the prospective employer.  Mr. Sullivan concluded in his report that (1) the employee did not seek employment on all days possible during the audited period, (2) the employee did not submit applications or resumes to businesses that were either accepting applications or resumes at the time of the contact or always accepted applications or resumes, and (3) a significant number of businessesBnineteen of twenty-twoBrefuted some or all of the information that was provided by the employee on his job search logs.

 

On March 24, 2003, the employee was examined by orthopedic surgeon Dr. John Sherman, to whom he complained of multiple pains in his neck, left shoulder, low back, left eye, abdomen, and upper back.  Dr. Sherman noted on the employee=s MRI scans some minimal disc degeneration in both the cervical and lumbar spine, but he identified no neural impingement, and he referred the employee for an aggressive physical therapy program such as PDR, recommending also that the employee discontinue use of Vicodin and indicating that A[t]he quicker he can reactivate himself, the better off he will be.@  On April 8, 2003, the employee commenced treatment with Dr. Sunanda Apte-Kakade at PDR, who reported that the employee Ahad previous back pain or neck injury as a result of a motor vehicle accident in 1985" and Astates he did not fully recover from that injury.@  The employee also indicated to Dr. Apte-Kakade that he was currently doing light duty work full time as a sales representative for Avon, subject to Dr. Tarrel=s restrictions against lifting more than twenty pounds and against working more than three days a week.

 

On April 24, 2003, the employer and insurer filed a petition for discontinuance of all of the employee=s workers= compensation benefits, on grounds (1) that the employee no longer had physical work restrictions related to his work injury, (2) that the employee had failed to conduct a diligent job search, (3) that the employee had failed to cooperate with rehabilitation efforts, (4) that the employee had reached MMI pursuant to the March 4, 2003, service of Dr. Raih=s report to that effect, and (5) that the employee had been terminated by both the employer and Caribou Coffee for misconduct.

 

On July 29, 2003, Dr. Apte-Kakade completed a discharge report regarding the employee=s rehabilitation program, noting that the employee had obtained maximum benefit of the program, having Aachieved full range of motion in all planes of the lumbar and cervical spine,@ and currently had Ano deficits except for mild strength . . . , which was attributed to the pain.@  Subsequently, on a Health Care Provider Report dated August 16, 2003, Dr. Sherman indicated that the employee had achieved MMI on April 1, 2003, having sustained no permanent partial disability.  On August 19, in response to a request from the employee=s attorney for copies of chart notes and further records pertaining to the employee=s treatment with him, Dr. Apte-Kakade reported that the employee had told him that Ahe does not want me to fill out these forms since I am not his primary care physician.@  On August 27, 2003, Dr. Sherman=s report indicating that the employee had reached MMI on April 1, 2003, was served on the employee.

 

On September 10, 2003, on a report of work ability, Dr. Tarrel relaxed the employee=s work restrictions to moderate-to-heavy, but he continued to restrict the employee to only two or three days of work a week.  On September 13, 2003, Dr. Terrel reevaluated the employee, concluding in part that the employee Acontinues to suffer from what is becoming a chronic cervical and lumbar sprain with known degenerative disc in both the neck and low back.@  Dr. Tarrel prescribed Vicodin, arranged for the employee to be evaluated at the MAPS Chronic Pain Clinic, and considered a functional capacity evaluation Aif necessary.@  On October 19, 2003, Dr. Tarrel rated the employee=s permanent partial disability at 7% of the whole body related to the neck under Minn. R. 5223.0370, subp. 3C(1), and 7% of the whole body related to the back under Minn. R. 5223.0390, subp. 3C(1).

 

On November 21, 2003, a gastrointestinal study ordered by Dr. John Sandgren, to whom the employee had been referred about a month earlier for abdominal symptoms, revealed a small duodenal ulcer, which Dr. Sandgren, together with the referring physician, Dr. David Pautz, attributed to the employee=s long time use of Vicodin and other anti-inflammatories for relief of his low back symptoms.  The ulcer did not, however, further physically disable the employee.

 

The employee had been the subject of some surveillance videotape in July and August of 2003, but in a report to the employee=s attorney on February 25, 2004, Dr. Tarrel indicated in part that there was Aabsolutely nothing on this video that demonstrates [the employee] performing any type of activity, which would be out of the scope of his known injuries or out of the scope of his known work restrictions.@  On March 10, 2004, Dr. Tarrel relaxed the employee=s restrictions still further, to heavy duty work.  On May 7, 2004, the employee filed an amended claim petition, alleging entitlement to temporary partial disability benefits continuing from February 14, 2003, to undetermined permanent partial disability benefits, to payment of undetermined medical expenses incurred with various providers, and to Astandard rehabilitation benefits.@

 

On August 2, 2004, the employee was examined for the employer and insurer with regard to his duodenal ulcer by internal medicine specialist Dr. Ronald Vessey, who concluded in part that the duodenal ulcer that was revealed in November 2003 was most probably due to the employee=s sustained use of non-steroidal anti-inflammatory drugs [NSAIDs] for pain related to his September 2002 work injury.  Dr. Vessey also found, however, that that ulcer Awas healed, with essentially 100% certainty, no later than 12 weeks after@ those November 2003 tests, or by March 1, 2004, the employee having gone off the NSAIDs shortly after the November 2003 tests.

 

On September 13, 2004, Dr. Raih reexamined the employee for the employer and insurer.  In his report on September 16, 2004, Dr. Raih indicated in part that A[t]he objective orthopedic and neurologic examination at this time reveals full range of motion, with a normal neurologic examination, normal reflexes, and normal sensation.@  He diagnosed a resolved lumbar strain and a resolved cervical strain related to the employee=s September 6, 2002, work injury, both of which conditions he classified as temporary injuries.  Dr. Raih reiterated his opinion that the employee had reached MMI by the date of Dr. Raih, initial evaluation, on February 3, 2003, with no permanent partial disability.  He opined further that it was his Aopinion that all treatment through and including July 29, 2003 was reasonable and necessary,@ noting that, on that date, Dr. Apte-Kakade Agave an objective evaluation of full range of motion of the lumbar spine, full range of motion of the cervical spine and strength within normal limits.@

 

The matter came on for hearing on October 13, 2004.  Issues at hearing included the following: (1) the employer and insurer=s entitlement to discontinue payment of wage loss benefits effective January 28, 2003; (2) the employee=s entitlement to wage replacement benefits from February 14, 2003, through the date of the hearing;^[1] (3) the employee=s entitlement to permanent partial disability benefits for a 7% impairment referable to his cervical spine and a 7% impairment referable to his lumbar spine; and (4) the employee=s entitlement to payment of various diagnostic, medical, and out-of-pocket rehabilitation expenses.  Evidence submitted at hearing included the surveillance videotape taken in July and August of 2003, on which the employee could be observed bending forward to ninety degrees at the waist, playing basketball, and bench-pressing and otherwise exercising with up to thirty-pound weights in each hand, contrary to his restrictions.  Also submitted by the employee into evidence at hearing were handwritten lists of about eighty-nine undated contacts with potential employers during the first few months of 2003.

 

By findings and order filed December 13, 2004, the compensation judge concluded in part that from February 14, 2003, through May 10, 2003, the employee had been unemployed subject to restrictions consequent to his work injuries and had demonstrated a reasonable and diligent search for work and so was entitled to temporary total disability benefits during that period.  The judge concluded also that from May 11, 2003, through May 31, 2003, the employee had been employed at a wage loss subject to restrictions and so was eligible for temporary partial disability benefits during that period.  The judge also concluded that the employee=s diagnostic and medical treatment from the date of his injury up through July 29, 2003, had been reasonable and necessary and was therefore compensable.  The judge concluded further, however, the following: (1) that the employee had failed to prove that he conducted a reasonable and diligent search for work after May 31, 2003: (2) that the employee=s September 2002 work injuries were only temporary aggravations of preexisting conditions and had resolved on or before July 29, 2003; (3) that the employee had reached MMI from the effects of all of his compensable conditions by August 27, 2003, with service of Dr. Sherman=s MMI report on that date; and (4) that the employee had failed to prove that ongoing abdominal pain after March 1, 2004, was related to his work-injury-related duodenal ulcer.  On those conclusions, the judge denied the employee=s claims for wage replacement benefits from June 1, 2003, to the date of hearing, for any permanent partial disability benefits as a result of his September 2002 work injuries, and for payment of any further medical or rehabilitation expenses.  The employee appeals.

 

STANDARD OF REVIEW

 

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

 

DECISION

 

1.  Temporary Total Disability Benefits After May 31, 2003

 

The compensation judge concluded in part that, based on his work injury of September 6, 2002, the employee was entitled, as claimed, to temporary total disability benefits from February 14, 2003, through May 10, 2003.  The judge found also, however, at Findings 12 and 19, that the employee failed to prove that he conducted a reasonable and diligent job search beginning June 1, 2003, and so was not entitled to the temporary total disability benefits that he had claimed for two periods subsequent to that date--June 1, 2003, through January 3, 2004, and March 7, 2004, through the date of hearing.  See Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988) (work-injured employees capable of working must make a diligent job search to establish total disability, even if MMI is not yet reached).  Additionally, the judge concluded that, for much of those latter two periods, the employee=s claim failed also based on full resolution of the employee=s work injuries by July 29, 2003, and based on expiration of ninety days post service of Dr. Sherman=s MMI report on August 27, 2003.  The employee contends that the compensation judge=s denial of benefits on any of these grounds is unsupported by substantial evidence.^[2]  We conclude that substantial evidence supports the judge=s denial of temporary total disability benefits after May 31, 2003, based on the employee=s job search alone.

 

At Employee=s Exhibit S, the employee submitted nonspecifically dated logs of alleged contacts with a total of eight potential employers during the seven-month period of claimed temporary total disability benefits from June 1, 2003, through January 3, 2004, and specifically dated logs of alleged contacts with a total of seventeen potential employers during the seven-month period of claimed temporary total disability benefits from March 7, 2004, to the date of hearing.^[3]  Exhibit S also includes substantial lists of available jobs, evidently assembled by a company called Spherion but not specifically for the employee, together with several other more detailed job listings and flyers, that were apparently furnished to the employee by his probation officer.  At Employee=s Exhibit P, the employee also submitted records of his affiliation with employment agency Masterson Personnel from March 28, 2003, through April 8, 2004.  Also submitted into evidence, however, was the testimony of investigator Jeff Sullivan, who had audited the employee=s job search logs and concluded, after contacting a substantial percentage of the employers with whom the employee had alleged contact or application, that the employee=s alleged contact with many of those listed was not to be credited.  Further, Masterson Personnel agent Peter Kraemer testified that, at all times during its affiliation with the employee, Masterson Personnel had light duty industrial work available for the employee but that he had repeatedly rejected or failed to respond to offers and had on one occasion been dismissed from a job after two months early in 2004 for not keeping up with production needs and for taking too many bathroom breaks.  Also submitted into evidence was the February 2003 report of QRC Hardy that the employee had recently rejected rehabilitation assistance.

 

In light of this evidenceBthe employee=s alleged contact with only about twenty-five employers over claimed benefits periods totaling about fourteen months, the testimony of investigator Sullivan regarding his audit of the employee=s job logs, the testimony of Mr. Kraemer regarding the employee=s affiliation with Masterson Personnel and his pursuit of work available with them, and the report of QRC Hardy that the employee had rejected rehabilitation assistance in about January of 2003Bwe cannot conclude that it was unreasonable for the compensation judge to find that the employee failed to conduct a reasonable and diligent search for employment subsequent to May 31, 2003.  Therefore we affirm the judge=s denial of temporary total disability benefits after that date.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Redgate, 421 N.W.2d 729, 40 W.C.D. 948.  In light of this affirmance of the judge=s denial of temporary total disability benefits after May 31, 2003, on a job search basis, the judge=s alternative bases for denying such benefits as of a later dateBfull resolution of the work injury by July 29, 2003, and expiration of ninety days post service of an MMI report on August 27, 2003Bare moot.

 

2.  Temporary Partial Disability Benefits After May 31, 2003

 

The compensation judge concluded that the employee was entitled, as claimed, to temporary partial disability benefits from May 11, 2003, through May 31, 2003, but that the employee=s work injury had fully resolved by July 29, 2003, and that the employee was therefore not entitled to temporary partial disability benefits from January 4, 2004, through March 6, 2004, as claimed.  See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987) (an injured employee=s entitlement to wage replacement benefits ceases upon resolution of all residual disability related to the work injury).  The employee contends that substantial evidence does not support that conclusion, relying primarily on the expert opinion of his treating osteopath, Dr. Tarrel.  Dr. Tarrel, he argues. Ahas consistently noted soft tissue dysfunction on examinations stemming from the September 6, 2002 injury@ and Ais of the opinion that the September 6, 2002, work injury was a permanent aggravation of [the employee=s] underlying degenerative disc condition because [the employee] was not limited by that degenerative condition prior to the September 6, 2002 injury.@  The employee argues further that his position Ais also supported by the fact that [the employee] was cleared for work without restriction during a pre-employment physical for [the employer].@  We are not persuaded.

 

As we have often noted, it is not this court=s function to assess whether substantial evidence might support a factual conclusion contrary to that reached by the compensation judge; the court=s function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge.  Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003).  See also Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); 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@).  In this case, there is ample evidence, including expert medical opinion, to support the conclusion of the judge.

 

As early as February 19, 2003, Dr. Raih indicated that the employee had no objective abnormal physical findings on examination, and he concluded that the employee had not sustained any new injury to his neck on September 6, 2002.  By March 24, 2003, the employee was complaining to Dr. Sherman of multiple pains in his neck, left shoulder, low back, right upper back, and left eye, and stress-related digestive problems, but Dr. Sherman nevertheless found essentially full range of motion in the neck and low back and no significant abnormalities on the employee=s MRI scans.  Eventually, on July 29, 2003, upon the employee=s discharge from his rehabilitation program at PDR, Dr. Apte-Kakade noted that the employee had Aachieved full range of motion in all planes of the lumbar and cervical spine.@  In a report the following year, on September 16, 2004, Dr. Raih noted that the employee had had full range of motion of the lumbar and cervical spines on July 29, 2003, that the employee had had strength within normal limits on that date, and that Aall treatment through and including@ that date had been reasonable and necessary.

 

Particularly in light of the employee=s substantial history of previous injury to his neck and low back, often acknowledged to his various doctors as continuingly problematic, we conclude that it would not have been unreasonable for the compensation judge to conclude from the above-cited medical evidence and opinion that the employee=s September 6, 2002, injury was a temporary aggravation that had resolved by the July 29, 2003, date of Dr. Apte-Kakade=s discharge report.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  Because it was not unreasonable for the judge to so conclude, we affirm the judge=s denial of temporary partial disability benefits subsequent to July 29, 2003.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Kautz, 410 N.W.2d 843, 40 W.C.D. 260.

 

The employee has claimed also that, in addition to his claim for temporary partial benefits commencing January 4, 2004, and alternative to his claims for temporary total benefits subsequent to May 31, 2003, he had asserted a claim for temporary partial disability benefits based on his earnings selling Avon products after the latter date.  He asserts that the judge failed to address that alternative claim, contending that the alternative claim should have been addressed at a minimum for the period from June 1, 2003, though July 29, 2003, the date by which the judge found the employee=s work injury to have fully resolved.  He contends that the matter should be remanded to the judge for appropriate findings and order.  We are not persuaded.

 

The only definitive evidence of Avon-based earnings by the employee during the two-month period between from June 1, 2003, through July 29, 2003, is contained in Employer=s Exhibit 10, which indicates that, over that two-month period, the employee earned $22.80 in commissions on the sale of four items.  The parties did stipulate generally at hearing, at pages 187-88 of the transcript, that the employee earned commissions totaling $488.00 in all of 2003 and that he earned commissions totaling $580.00 in all of 2004, but the stipulation pertaining to 2004 has no application to the two-month period here at issue, and the stipulation pertaining to 2003 is not specific enough to the specific two-month period at issue to constitute substantial evidence.  As we have affirmed above, the employee was not, during the period June 1, 2003, through July 29, 2003, involved in any reasonably diligent search for work.  Even if the employee had properly asserted his alternative claim for temporary partial disability benefits for the two-month period here at issueBand we=re not certain that he did^[4]--we would not be able to conclude, particularly in light of the fact that he was not actively searching for work with any reasonable diligence at the time, that an income of $22.80 for two months of potentially full-time self-employment could reasonably be considered reflective of the earning capacity of a worker who is arguably approaching full resolution of his injuries.  Therefore we will not reverse or remand the issue to the compensation judge for more express findings and order.

 

3.  Permanent Partial Disability

 

As indicated earlier, the compensation judge relied on the opinion of Dr. Raih in concluding that the employee=s September 2, 2002, work injury was a temporary rather than a permanent aggravation of a preexisting condition.  That condition had been rated a few months after the employee=s 1986 automobile accident as a 10% permanent partial disabilityB5% related to the neck and 5% related to the low back.  Without any reference to that 1986 rating, Dr. Tarrel, in his report of October 19, 2003, had rated the employee=s work-injured condition as a 14% permanent partial disabilityB7% related to the neck and 7% related to the low back.  Dr. Raih had concluded, in his reports of February 19, 2003, and September 16, 2004, that the modest degenerative changes revealed on the employee=s post-September 6, 2002, MRI scans were unrelated to any trauma sustained in the September 2002 work injury, and the compensation judge suggested in his memorandum that A[i]t is more likely that these changes were either age-related or the result of prior trauma, including the 1986 auto accident and/or the 1989 altercation with sheriff=s deputies.@  The judge further concluded that Dr. Tarrel=s contrary opinion was Abased upon an incomplete factual foundation regarding the employee=s prior injuries and medical treatment.@  The employee has argued that Dr. Tarrel made his rating fully aware of the permanent injuries that the employee had sustained to his neck and low back as results of his motor vehicle accident in 1986.  Whatever might or might not be the sufficiency of Dr. Tarrel=s foundation, however, a finding of permanent partial disability is generally one of ultimate fact for the compensation judge, short of interpreting scan or examination results in a manner inconsistent with the interpretations of medical practitioners.  Hill v. MacKay Envelope, slip op. (W.C.C.A. July 10, 1998).  We conclude that in this case the judge=s denial of permanent partial disability benefits in reliance on the opinion of Dr. Raih was not at all unreasonable, and therefore we affirm.   See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

 

4.  Medical Treatment, Equipment, and Diagnosis after July 29, 2003

 

The compensation judge denied the employee=s claims for ongoing treatment for his neck, low back, and duodenal ulcer, for weightlifting equipment generally prescribed by Dr. Tarrel, and for further treatment and evaluation at Medical Advanced Pain Specialists [MAPS].  The employee contends that, Adue to the permanent nature@ of his neck and low back injury, Dr. Tarrel has anticipated ongoing problems and flare-ups that will require ongoing treatment and exercise with the weightlifting equipment already paid for out of pocket by the employee.  He argues that, although his duodenal ulcer appears to have healed, Adoctors are still investigating additional problems . . . and no specific diagnosis or treatment plan has yet been made@ and that, Aif the . . . treatment for the ulcer condition were compensable, the aftercare and follow up on the ulcer condition should also be compensable.@  He argues finally that his neck and low back condition became chronic Abecause the Employer and Insurer were [still] denying all aspects of the Employee=s claim@ ten months after the injury and that that delay in treatment ultimately has made a referral to MAPS essential.  We are not persuaded.

 

None of the employee=s arguments with regard to these subsidiary benefits fully contemplates the compensation judge=s conclusion, in reliance on medical evidence and affirmed above, that the employee=s condition was fully resolved no later than July 29, 2003.  In light of that affirmed conclusion, we find reasonable the judge=s denial of payment of these medical and medically related expenses, and so we affirm that denial.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; cf. Ortega v. Medallion Kitchens of Minnesota, slip op. (W.C.C.A. Apr. 3, 2000) (where the court had affirmed the compensation judge=s termination of the employee=s wage replacement benefits prior to ninety days post MMI pursuant to Kautz v. Setterlin Co., based on a conclusion that the employee was without any residual disability related to his work injury, the judge=s award of a rehabilitation consultation was reversed, pursuant to Judnick v. Shalom Home West, slip op. (W.C.C.A. Aug. 4, 1995)); cf. also Kennedy v. Falls Memorial Hosp., slip op. (W.C.C.A. Sept. 9, 1998) (where the employee had been released to return to work without physical restrictions attributable to her brief work-related aggravation of her preexisting allergy, the compensation judge=s denial of a rehabilitation consultation was not clearly erroneous and unsupported by substantial evidence).

 

The compensation judge=s findings and order are affirmed in their entirety.