CHRIS M. PRIGLMEIER, Employee/Appellant, v. STELLAR CONCRETE & MASONRY and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer, and STELLAR CONCRETE & MASONRY and CONSTITUTION SERVS. GROUP/BERKLEY RISK ADM=RS CO., Employer-Insurer/Cross-Appellants, and MN DEP=T OF HUMAN SERVS. and INSTITUTE FOR LOW BACK & NECK CARE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 25, 2005

 

No. WC04-228

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where, for two years following his 2000 work injury, the employee was subject to no work restrictions, missed no work time, and sought no further medical treatment, and where the judge=s decision was otherwise supported not only by a medical opinion but also by the testimony of the employee and other medical records in evidence, the compensation judge=s conclusion, in reliance on the medical opinion, that the employee=s 2000 work injury was not a substantial contributing factor in the employee=s physical condition following his 2002 work injury was not clearly erroneous and unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE; EVIDENCE - ADMISSION; PRACTICE & PROCEDURE - REMAND.  Where the employee submitted into evidence the records from his chiropractic provider but where his exhibit summarizing the related outstanding expenses did not include the actual bills, where it was unclear whether this failure occurred because of some oversight by the employee or because of some misunderstanding at trial, and where the judge ostensibly based her denial of payment for the treatment expenses on the absence of the actual billings and did not address either the reasonableness and necessity of the treatment or the merits of the employer/insurer=s defenses under the treatment parameters, the compensation judge=s denial of payment for the treatment expenses was reversed, and the issue was remanded to the compensation judge for further consideration and findings.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s QRC testified that the employee fully cooperated with rehabilitation efforts during the period in question, where, although he did not search for other work, the employee did attempt the full-time job offered by the employer and did request amendments to his rehabilitation plan to allow a second surgical opinion and exploration of alternative job goals, and where the proposed amendments to the rehabilitation plan were rejected by the employer/insurer, the compensation judge=s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence.

 

JOB SEARCH; TEMPORARY TOTAL DISABILITY.  Where, having been fully advised that rehabilitation services had been suspended, the employee evidently did not submit a single job application anywhere once he had stopped working for the employer, the compensation judge=s denial of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee was without rehabilitation assistance during the period at issue.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was clear from the record that the judge=s permanency rating was supported by the opinions of at least three doctors, the compensation judge=s award of compensation for a 7% whole body impairment instead of for a 12% whole body impairment was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the judge did not specify in her opinion which doctor=s opinion she was relying upon.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where the employee=s treating doctor had testified that the employee had not reached MMI, where that doctor had recommended a facet injection as a treatment less invasive than fusion or the installation of an artificial disc, where the employer/insurer had not authorized the facet injection until just before trial, where at least one other doctor had opined that the  employee remained a surgical candidate, and where even the independent medical examiner had conceded that the facet injection Amay obviate the need for surgical intervention,@ the compensation judge=s conclusion that the employee was not yet at MMI was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that there remained some uncertainty as to whether or not the proposed facet injection might result in significant lasting improvement in the employee=s condition.

 

Affirmed in part, reversed in part, and remanded

 

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

Compensation Judge: Kathleen Behounek

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s October 24, 2000, work injury is not a substantial contributing factor in the employee=s disability subsequent to the November 5, 2002, work injury; from the judge=s denial of outstanding treatment expenses at Integracare/Williams Clinic; from her denial of temporary total disability benefits from December 3, 2003, through the date of hearing; and from her denial of his claim to compensation for a 12% whole body impairment.  The employer and Constitution Services Group/Berkley Risk Administrators Company cross appeal from the judge=s award of temporary total disability benefits from June 20, 2003, through December 2, 2003; from the judge=s award of further rehabilitation benefits; and from her conclusion that the employee has not reached maximum medical improvement from his work injury of November 5, 2002.  We reverse and remand for reconsideration and further findings the judge=s denial of payment for the treatment expenses at Integracare/Williams Clinic, and we affirm on all other issues.

 

BACKGROUND

 

Chris Priglmeier [the employee] resides with his wife and three children in Rice, Minnesota, a community located about ten miles north of St. Cloud.  He was born on March 31, 1965, and is a 1983 graduate of Sauk Rapids/Rice High School.  He has had no additional formal education.  The employee=s employment history has included work as a laborer for a wood trim manufacturer, work opening and closing pools for a swimming pool company, general construction work, and work as a cement finisher.  The employee began working for Stellar Concrete & Masonry [the employer] as a cement finisher in 1999.  He had experienced no reported injuries or treatment to his low back prior to starting work for the employer.

 

On October 24, 2000, the employee sustained an injury to his low back while removing asphalt at a job site in Hibbing, Minnesota.  On the date of the injury, the employee was thirty-five years old, and the employer was insured against workers= compensation liability by Lumbermen=s Underwriting Alliance [Lumbermen=s].  The employee reported the incident to his foreman but did not miss any time at work.  Two days later, on October 26, 2000, the employee sought medical treatment with Dr. Basil LeBlanc at St. Cloud Medical Group.  The employee told Dr. LeBlanc about lifting heavy pieces of asphalt over the past few days, and he complained to the doctor of discomfort in his mid lumbar region.  Dr. LeBlanc diagnosed a lumbar strain, prescribed Celebrex, and released the employee to work without restrictions.  The employee subsequently continued to have mild low back complaints, and he did self-limit his job activities, but he continued also to work as a cement finisher, missed no work time, and sought no further treatment for low back pain for over two years.

 

In the late summer of 2002, the employee started experiencing pain in his right hip when he would try to bend down.  On November 5, 2002, that pain was very severe, and the employee was unable to continue working.  The following day, he was seen by Dr. Steven Danielson, who diagnosed low back pain with a possible radicular component and ordered an MRI scan of the lumbar spine.  On November 12, 2002, the employee reviewed his MRI scan with Dr. Philip Bachman, who described the findings as Ascant@ and revealing only a contained disc herniation at L5-S1.  Dr. Bachman diagnosed discogenic pain with right radicular symptoms and recommended a Medrol Dose Pak and physical therapy.  On November 5, 2002, the employer had been self-insured against workers= compensation liability, with claims administered by Berkley Risk Administrators Co. [Berkley].

 

On November 19, 2002, the employee began treating at Integracare/Williams Clinic [Integracare].  His primary treating doctor at Integracare was chiropractor Dr. Michael Balfanz, although he was occasionally treated also by medical doctor, Dr. Mark Halstrom.  Treatment was initially provided on a regular and frequent basis into February 2003 and thereafter on a less frequent and as-needed basis. Treatment included massage, physical therapy, and manipulation.

 

On December 4, 2002, the employee underwent a rehabilitation consultation with qualified rehabilitation consultant Tod Paulson.  Mr. Paulson found the employee to be eligible for rehabilitation services and prepared a rehabilitation plan calling for a return to work with the date-of-injury employer at employment consistent with physical restrictions identified by the treating physician.

 

On that same date, December 4, 2002, Dr. Balfanz released the employee to work half days effective December 9, 2002.  The doctor recommended that the employee take several ten- to fifteen-minute breaks in the drive down to the job site,^[1] depending upon pain.  He restricted the employee from bending at the waist, from lifting over fifteen pounds, and from sitting for longer than thirty minutes.  On December 10, 2002, Dr. Balfanz modified those restrictions to allow for a three-day work schedule of eight-hour days on Mondays, Wednesdays, and Fridays, so that the employee could rest on Tuesdays and Thursdays.

 

The employee underwent a neurosurgical consultation with Dr. Thomas Falloon on December 18, 2002.  After obtaining a history from the employee, performing a physical examination, and reviewing the November 7, 2002, lumbar MRI scan, Dr. Falloon diagnosed Aback pain and right lower extremity radiculopathy in the S1 distribution,@ together with Alumbar spondylosis with degenerative disk disease, a small central disk herniation, and bilateral facet arthropathy at L5-S1 resulting in lateral canal stenosis.@  Dr. Falloon concluded that, if his symptoms should persist despite conservative care, the employee would be a candidate for either a right L5-S1 microlumbar discectomy or an L5-S1 lumbar fusion.  Whether the employee underwent surgery or not, Dr. Falloon was of the opinion that working as a concrete finisher would be problematic for the employee.

 

Following the consultation with Dr. Falloon, the employee continued with his conservative treatment regimen at Integracare, and the employer continued to provide temporary accommodated employment with the goal of providing a permanent position for the employee within his restrictions.  On February 10, 2003, the employee reported to Dr. Balfanz that, although his leg pain continued to minimize, he still had low back pain even working under restrictions.  The employee suggested that he may want to obtain a second surgical opinion.  By April 8, 2003, Dr. Balfanz reported that the employee continued to have ongoing residuals associated with his work-related injuries but that he had reached maximum medical improvement [MMI].

 

The employee underwent a Functional Capacities Evaluation [FCE] at Northern Star Physical Therapy on April 14 and 15, 2003.  The examiner noted that the employee had more difficulty with static positions (standing, sitting, and sitting with bending) than he did with activities that involved moving.  The FCE report indicated that the employee could lift or carry up to twenty-five pounds occasionally and that he could stand occasionally and sit frequently (although standing and sitting would increase his radicular symptoms), so long as he was allowed position changes as needed.

 

In June of 2003, the employer offered the employee a full-time job at its Shakopee facility, located about ninety-eight miles from the employee=s home.  The job itself, assistant equipment manager, was economically and physically suitable for the employee.  The job involved a number of different responsibilities and contemplated the company=s providing additional training to the employee as necessary.  By June 20, 2003, however, the employee found it difficult to perform the job physically because of the long drive to and from work, and he advised Field Operations Manager Harry Hearn that he couldn=t tolerate the pain anymore and quit the job.

 

In a letter to the employee=s attorney on June 26, 2003, Dr. Balfanz rated the employee=s work-related permanent impairment at 10% of the whole body.  With respect to the employee=s drive to work, Dr. Balfanz stated,

 

[The employee=s] office of employment is located in the South Twin Cities area.  This distance results in a 1.5 to two hour drive one way. The prolonged sitting in a vehicle and then sitting at work has been problematic for him.  Taking into consideration the FCE performed on 4-14 and 4-15-2003 time limits have been placed on his sitting.  The FCE allowed for three to five hours of sitting per day.  Because [the employee=s] drives, round trip, can last up to four hours it would prohibit him from sitting through the rest of the day per the FCE.

 

On July 16, 2003, Mr. Hearn wrote to Mr. Paulson expressing his disappointment with the employee=s position regarding the employment opportunity created for him by the employer.  He indicated that, while he was aware of the employee=s ongoing back symptoms, he was unaware that the drive to work was causing the employee a problem Auntil yesterday.@  Mr. Hearn expressed a willingness to consider further modifications to the job, including allowing the employee to perform a portion of the work from home via facsimile and laptop computer, which the company would provide. Mr. Hearn stated that the employer was prepared to support the employee in every way possible, and he requested a meeting with the employee and Mr. Paulson to discuss the issues.

 

On July 18, 2003, the employee and Mr. Paulson prepared an amendment to the rehabilitation plan, requesting that the employee be provided with a second surgical consultation.  The reason given for the amendment was that the employee had to discontinue his current return to work plan due to increased back pain.

 

As a follow-up to Mr. Hearn=s letter of July 16, 2003, the employee, Mr. Paulson, and Mr. Hearn met in St. Cloud on July 24, 2003, to discuss the employee=s employment status.  The employee evidently reaffirmed his position that he was unable to make the daily commute to and from work, and Mr. Hearn continued to express a willingness to work with the employee in providing an accommodated work site.  In a summary letter to the employee on July 29, 2003, Mr. Hearn reiterated the employer=s willingness to consider additional changes and modifications to assist the employee.  However, he requested a response from the employee as to whether he was committed to staying with the employer or continued to feel as though he needed to explore other options.

 

On August 5, 2003, the employee returned to Dr. Balfanz=s office to discuss his ongoing low back and right leg pain.  The employee reported to Dr. Balfanz that sitting in his vehicle for over fifteen minutes irritated his back and caused or increased his right leg pain.  In a report to the employee=s attorney on August 6, 2003, Dr. Balfanz restricted the employee from sitting for more than fifteen minutes.  He concluded that the employee=s 1.5- to 2-hour commute to work would be outside his restrictions.

 

On August 7, 2003, the employee was examined at the request of the employer by orthopedist Dr. Jack Drogt.  In a report issued August 25, 2003, Dr. Drogt concluded that the employee had a history of a work-related injury on November 5, 2002, Awith lumbosacral strain and sprain with minimal degenerative disc disease at L5-S1 and no evidence for neural impingement.@  Dr. Drogt related the employee=s condition to the injury of November 5, 2002, and concluded that the incident at work on October 24, 2000, was noncontributory.  The doctor rated the employee=s permanent whole body impairment at 7% and concluded that the employee had reached MMI.  He did not believe that the employee was a surgical candidate, nor that the employee required further medical treatment or chiropractic care.  Dr. Drogt released the employee to work full time with a thirty-five pound lift-and-carry restriction.  He did not believe that the employee required any restrictions on his driving.  Dr. Drogt=s report and MMI opinion were served on the employee on September 2, 2003.

 

On September 29, 2003, Mr. Paulson and the employee prepared a second amendment to the rehabilitation plan.  The employee proposed that the plan be changed to allow identification of suitable alternative job goals and a return to work in a different job with a different employer.  On October 2, 2003, the employer responded with a request to terminate rehabilitation benefits on grounds that the employee had refused a suitable offer of employment with the date-of-injury employer.  The employee responded to the employer=s request by contending that the job offered by the employer was not Asuitable@ because the employee was unable to physically tolerate the 196-mile daily commute to work.

 

On October 24, 2003, the employee filed a claim petition, seeking payment of temporary total and permanent partial disability benefits, outstanding medical bills, attorney fees, and a second medical opinion regarding the necessity of surgery.

 

On October 30, 2003, after becoming frustrated with the lack of treatment options and the employer=s failure to authorize further treatment for his low back condition, the employee sought treatment with Dr. Richard Salib at the Institute for Low Back and Neck Care.  Dr. Salib examined the employee and obtained a second MRI scan the following  day.  On November 10, 2003, Dr. Salib reported that the new MRI scan had shown no significant change.  He concluded that the employee Astill has a small central bulging of the disc at L5-S1, no real nerve root compression, and he has no significant radicular pain right now.@  As treatment options, Dr. Salib suggested a facet joint injection with possible radio frequency block or, if that did not work, a fusion or a disc implant or more physical therapy.  On November 21, 2003, Dr. Salib recommended further, as part of the employee=s treatment for his central disc herniation at L5-S1, that the employee not drive more than twenty-five miles each way for work.

 

An administrative conference on the employer=s request to terminate the employee=s rehabilitation plan was held on November 21, 2003.  In a Decision and Order issued November 26, 2003, the employer=s request was denied, and the employer filed a request for formal hearing.  In light of the employer=s request for a hearing, Mr. Paulson placed the employee=s rehabilitation plan on hold, pending authorization for further services.  The employee was advised of these developments.

 

On January 5, 2004, the employee was examined at the request of his attorney by orthopedist Dr. Robert Wengler.  Dr. Wengler diagnosed degenerative disc disease at the L5-S1 level, with contained central herniation, associated congenital central stenosis, and symptomatic segmental instability.  He considered the employee to be a candidate for a stabilization procedure and recommended an anterior discectomy and interbody fusion.  Dr. Wengler related the employee=s back difficulties to both the injury of October 24, 2000, and the injury of November 5, 2002, and he rated the employee=s permanent whole body impairment at 12% under Minn. R. 5223.0390, subp. 4D(1).

 

In February 2004, Dr. Drogt was asked to review the employee=s MRI scan from October 31, 2003, as well as the records of Drs. Salib and Wengler.  In a report issued February 26, 2004, Dr. Drogt stated that this additional information did not cause him to change any of the opinions he had expressed in his report of August 25, 2003.  Dr. Drogt stated, however, that, if the employee remained symptomatic and was indeed unable to return to work, variable selective injections, as suggested by Dr. Salib, might be of benefit and might obviate the need for surgery.

 

Lumbermen=s arranged for the employee to be examined by orthopedist Dr. Paul Wicklund on March 5, 2004.  In a report issued on that same date, Dr. Wicklund diagnosed congenital lumbar central spinal stenosis with degenerative disk bulging, relating the employee=s condition solely to the injury of November 5, 2002.  He did not recommend surgery, but he felt that medical treatment was still necessary because of the underlying congenital spinal stenosis and the work injury of November 5, 2002.  Dr. Wicklund placed no restrictions on the employee=s ability to drive, and he concluded that the employee had reached MMI with a 7% whole body impairment.

 

Dr. Salib testified by deposition on April 29, 2004.  His diagnosis was that the employee had a contained central disc herniation at the L5-S1 level superimposed on a congenitally small spinal canal.  He did not believe that there was a consistent radicular component to the employee=s pain.  From a surgical standpoint, Dr. Salib reiterated his recommendation of a facet nerve block or, alternatively, a spinal fusion.  He did not believe the employee had reached MMI.

 

The employee=s claim petition and employer/Berkley=s request for formal hearing were consolidated and heard by a compensation judge on May 12, 2004.  The primary issue at trial was whether the employee was entitled to temporary total disability benefits continuing from June 20, 2003.  Sub-issues included whether the employee had refused work that was consistent with a rehabilitation plan; whether he had reached MMI; and whether he had conducted a reasonable and diligent job search.  Also at issue were the extent of the employee=s permanent partial disability and his entitlement to further rehabilitation services, to payment of outstanding medical expenses, and to reimbursement of out-of-pocket expenses and medical mileage.  In addition, the judge was also asked to determine the significance, if any, of the employee=s injury of October 24, 2000.

 

In a findings and order issued July 6, 2004, the judge concluded that the employee=s decision to terminate his employment in June of 2003 was reasonable, based upon the increased low back symptoms that he was experiencing from prolonged sitting during his daily commute to and from work.  The judge also found that the employee fully cooperated with his QRC and rehabilitation plan until December 3, 2003, but that, subsequent to suspension of rehabilitation services at that time, he did not conduct a reasonable and diligent search for work.  Therefore, the judge awarded temporary total disability benefits from June 20, 2003, through December 2, 2003, but denied those benefits from December 3, 2003, through the date of the hearing.  The judge also concluded that the employee had not reached MMI and had sustained a permanent impairment of 7% of the whole body.  She found that the employee=s injury of October 24, 2000, was a temporary strain and not a substantial contributing factor in the employee=s disability after November 5, 2002.  Last, the judge denied the outstanding claim for treatment expenses at Integracare and related medical mileage expenses.  The employee appeals, and the employer/Berkley cross appeals.

 

STANDARD OF REVIEW

 

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 (2004).  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  The October 24, 2000, Injury

 

The compensation judge determined that the employee sustained an injury to his low back on October 24, 2000, but that that injury was only a temporary strain and not a substantially contributing factor in the employee=s disability and need for medical treatment and rehabilitation services subsequent to the employee=s November 5, 2002, injury.  The employee contends that the judge erred in relying upon the opinion of Dr. Salib in drawing this conclusion, in that Dr. Salib had incorrectly assumed that the employee did not self-limit his activities and did not continue to suffer from symptoms after October 24, 2000.  He argues that Dr. Salib=s opinion is inconsistent with the judge=s finding that the employee Acontinued to have mild low back complaints after the injury and self-limited his job activities.@  Because Dr. Salib=s opinion is based upon Aa substantially inaccurate factual foundation,@ he contends, it does not constitute substantial support for the causation finding.  We are not persuaded.

 

We note first of all that the judge=s decision on this issue was based only in part on the opinion of Dr. Salib.  The judge also relied on the employee=s testimony and on the record of the employee=s October 26, 2000, visit with Dr. LeBlanc.  Dr. LeBlanc noted that the employee=s area of back discomfort was in the mid lumbar region.  He reported no abnormalities on physical examination and assigned no work restrictions.  The employee did not miss any work time and sought no further medical treatment for two years.  With respect to Dr. Salib=s testimony, we note  that Dr. Salib=s deposition was taken by counsel for the employee and that the doctor was provided with a detailed hypothetical that included the employee=s history that he was never completely symptom-free following the first injury.  The doctor=s opinion was based on that hypothetical, on his review of the employee=s medical records, and on his physical examination of the employee.  Based on this complete history, Dr. Salib concluded that the employee=s injury in October 2000 had basically healed.  In the context of Dr. Salib>s entire deposition testimony, we find no foundational deficiency in his expert opinion, and we conclude that the judge was entitled to rely upon it.

 

Because there is substantial evidence in the record to support the compensation judge=s findings that the employee=s work injury of October 24, 2000, was not a substantially contributing cause of the employee=s back problems and limitations following the November 2002 injury, we affirm.

 

2.  The Medical Bills with Integracare

 

At the hearing, counsel for the employee asserted, AWe=re also claiming certain outstanding medical bills.  We have a schedule that=s been circulated with supporting bills.  I=ve offered an itemization or will be offering an itemization summary as an exhibit.@  A summary of the employee=s outstanding medical expenses exists in evidence as Petitioner=s Exhibit J.  Integracare is there listed as having an outstanding balance of $4,716.00.  In response to the employee=s counsel=s offer of this evidence, counsel for Berkley stated, AWe also assert that the chiropractic bill represents passive treatment in violation of the Statutory Treatment Parameters.  No approval was ever sought or granted for ongoing passive treatment beyond the Statutory Parameters.@  At Findings 23 through 25, the compensation judge concluded as follows:

 

23.  The employee seeks reimbursement of outstanding treatment expenses at Williams/Integracare Clinic.  The self-insured employer objected to the treatment expenses as excessive and beyond the Treatment Parameters.  The bills for treatment at Williams/Integracare Clinic were not offered into evidence.

 

24.  Any outstanding balance for treatment expenses incurred by the employee at Williams/Integracare Clinic are denied.

 

25.  The employee is entitled to reimbursement of prescription expenses, job search mileage of $30.24 and medical mileage expenses, other than expenses related to treatment at Williams/Integracare Clinic.

 

On appeal, the employee contends that the only stated basis for the judge=s denial of the outstanding medical expenses with Integracare, together with related mileage, is the judge=s statement in Finding 23 that the bills were not offered into evidence.  The employee contends that this is not correct, in that a summary of his medical bills was offered and admitted into evidence as Exhibit J.  The employee further contends that, prior to the hearing, a copy of the entire exhibit, including a detailed itemization of the Integracare bill, was filed with the court and served on all parties.  The compensation judge=s denial of the medical expenses, he asserts, was apparently based upon some neglect to see the Integracare billing records in the exhibits.  The employer/Berkley asserts that, while there may have been Asome confusion as to whether or not the judge reviewed the itemized bill of the Williams Chiropractic Clinic, it is clear that the records of that provider were in evidence and there is no indication that the judge did not review those records.@  It contends that there is ample support in the record for the judge=s determination that the treatment at Integracare Awas neither reasonable nor necessary, in addition to the fact that it was beyond the treatment parameters.@  We conclude that this issue must be remanded to the compensation judge.

 

An employee has the burden of proving that his or her claimed medical expenses were reasonable, necessary, and causally related to his or her work injury.  See, e.g., Adkins v. University Health Care Ctr., 405 N.W.2d 233, 39 W.C.D. 898 (Minn. 1987).  Here, although the employee evidently filed his proposed exhibit summarizing his outstanding medical expenses prior to trial, it does not appear that the actual outstanding bills themselves were offered into evidence at the hearing.  Whether this occurred because of some oversight by the employee or because of some misunderstanding at trial we are unable to say.  At any rate, regardless of why it occurred, we cannot determine from the record why the judge concluded that this apparent failure was necessarily fatal to the employee=s claim on the issue.  The Integracare treatment records, if not the actual billings for that treatment, were clearly in evidence, and, although Berkley has argued that the record amply supports the judge=s denial of the treatment charges on other grounds, the judge made no factual findings upon which this court can review the basis for her denial.  The judge did not address the reasonableness or necessity of the treatment or the merits of the employer/Berkley=s defenses under the treatment parameters.

 

Under the circumstances presented here, we reverse Findings 23, 24, and that portion of 25 related to this issue, together with Order 2, and we remand this issue to the compensation judge for further consideration and findings.  At her discretion, the judge may accept additional argument from the parties as to whether Petitioner=s Exhibit J was understood to include the actual billing statements filed with the court.

 

3.  Temporary Total Disability Benefits June 20, 2003, through December 2, 2003

 

In awarding temporary total disability benefits to the employee from June 20 to December 2, 2003, the compensation judge concluded initially that it was reasonable for the employee to terminate his employment with the employer in June 2003.  The employer/Berkley contends that there is no evidentiary basis for this finding by the judge.  It argues that all of the medical reports that limited the employee=s driving were generated after he quit his position and were based on his subjective complaints.  Furthermore, it argues, even after the employee left the job the employer was willing to explore changes to the job to address the employee=s concerns.  The employee=s unwillingness to cooperate with the employer in developing a suitable job, it argues, does not show a good faith effort to participate in the rehabilitation plan and constitutes good cause to terminate temporary total disability benefits under Minnesota Statutes ' 176.101, subdivision 1(i), and Minnesota Statutes ' 176.102, subdivision 13.  We are not persuaded.

 

It is clear from her findings that the compensation judge accepted the employee=s testimony that his low back symptoms increased with the lengthy commute to and from work, but her decision is supported by more than that testimony.  And, although Drs. Balfanz and Salib may have specifically addressed the employee=s driving restrictions only after the employee quit his job, there are numerous references to the employee=s difficulty with the drive in other Integracare records as well as in the rehabilitation records.  Moreover, the FCE also references the employee=s difficulty with static positions.  The judge=s conclusion that the employee=s commute to work aggravated his low back symptoms is amply supported by the record.

 

While it appears from the record that the employer did do everything possible to meet its obligations to the employee, it was not unreasonable for the judge to conclude that proposed modifications to the job by the employer still did not adequately address the barrier of the hundred-mile commute.  As the judge noted in her memorandum, Athe employee made a bona fide effort to work in the modified job for a number of months before concluding that the commute was intolerable.@  The employee was having difficulty with the commute even when he was working only three days per week and receiving regular treatment at Integracare.  By June, the employee was no longer treating with Dr. Balfanz on a regular basis and was scheduled to work full-time.  Considering the record as a whole, we find ample and substantial evidence in support of the judge=s determination that the employee=s decision to terminate his employment in June 2003 was reasonable.

 

The employer contends also that, in light of the employee=s admitted failure to conduct a job search after June 20, 2003, or to follow up with the employer after receiving the July 29, 2003, letter from Mr. Hearn, Ait is difficult to understand the basis for the Judge=s determination that the Employee cooperated with the QRC and the Rehabilitation Plan between June 20, 2003 and December 2, 2003.@  We are not persuaded.

 

At Finding 9, the compensation judge found that, after June 2003, the employee continued to work with his QRC and fully cooperated with the rehabilitation plan.  When an employee has a QRC, the question as to the employee=s good-faith availability for work is not so much whether the employee makes a reasonable and diligent search for work, but rather whether the employee cooperates with rehabilitation assistance.  See, e.g., Schreiner v. Alexander Constr., 48 W.C.D. 469, 476 (W.C.C.A. 1993); Bauer v Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).  Contrary to the employer=s assertions, we find no evidence in the record to suggest the employee did not cooperate with his rehabilitation plan.  At trial, Mr. Paulson testified that the employee=s level of cooperation on a scale of one to ten was a ten.  He added as only a Abit of a caveat@ that the employee became very focused upon his need to deal with his problem medically and the insurance administrator=s unwillingness to authorize an additional surgical opinion.  Absent any other evidence suggesting any failure to cooperate with the QRC, we cannot construe the employee=s concern with his medical condition to constitute Anoncooperation.@

 

While it is true that the employee did not conduct a job search during the period in question, the employee did attempt the full-time job offered by the employer, and he did request amendments to his rehabilitation plan to allow a second surgical opinion and exploration of alternative job goals.  The proposed amendments were rejected by the employer.  Under the facts of this case, we cannot conclude that it was unreasonable for the judge to award temporary total disability benefits from June 20, 2003, through December 2, 2003.  Therefore, we affirm that award.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

4.  Temporary Total Disability Benefits December 3, 2003, through Date of Hearing

 

With respect to the employee=s claim for temporary total disability benefits after December 2, 2003, the compensation judge concluded at Finding 12 that A[t]he preponderance of the evidence fails to show that the employee conducted a reasonable and diligent search for work within his restrictions from December 2, 2003, when rehabilitation services were suspended.@  The employee contends that his job search efforts after December 2, 2003, must be evaluated in light of all of the facts and circumstances of the case.  See Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988).  He contends that he made a good-faith effort to cooperate with his rehabilitation plan and that his efforts in this regard were corroborated by the testimony of Mr. Paulson.  Moreover, he argues, especially where rehabilitation services have been suspended by the employer, the issue of whether or not an employee has sought work with reasonable diligence must be viewed within the context of the scope of rehabilitation assistance that is being provided by the employer and insurer.  See Hunter v. Crawford Door Sales, slip op. (W.C.C.A. Aug. 4, 1993); Sellner v. B. F. Goodrich Co., 39 W.C.D. 463 (W.C.C.A. 1986).  Here, he argues, where essentially no job search assistance was being provided, and given his background solely in physical labor, it was futile for him to seek job openings within his physical restrictions by himself.  We are not persuaded.

 

The determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  The burden of proving an adequate job search is on the employee.  Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954.  A[E]ven where rehabilitation assistance is not provided, the employee must still make a reasonably diligent effort to find employment as best he can on his own.@  Mattson v. State, Dep't of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992), rev=d on other grounds, 494 N.W.2d 884, 48 W.C.D. 84 (1993).  Here, the employee had been fully advised that rehabilitation services were suspended in December.  As noted by the employer/Berkley in its response brief, there is no evidence that the employee submitted a single job application anywhere once he had stopped working for the employer.  After that date, his job seeking efforts consisted of no more than a few conversations with friends and family members.  While it certainly would have been preferable for the employee to have had rehabilitation assistance during the period at issue, the record supports the judge=s conclusion that the employee did not prove his continued eligibility for temporary total disability benefits by making a reasonably diligent search for employment.  Where evidence is conflicting or more than one inference may reasonably be drawn from it, the findings of the compensation judge are to be upheld.  Redgate, 421 N.W.2d at 734, 40 W.C.D. at 957, citing Hengemuhle, 358 N.W.2d at 60.  Accordingly, the judge=s finding that the employee did not conduct a reasonable and diligent search for work within his restrictions after December 2, 2003, is affirmed.

 

5.  Extent of Permanent Partial Disability

 

At Finding 17, the compensation judge determined that the employee=s current condition warrants a 7% whole body impairment rating pursuant to Minn. R. 5223.0390, subp. 3C(1).^[2]  The employee contends that it is clear from the medical records that he satisfies the requirements for a 12% rating under Minn. R. 5223.0390, subp. 4D(1),^[3] and that the judge=s  rating is unsupported by substantial evidence, in that she gave no explanation as to which medical opinion she was accepting and why.  We are not persuaded.

 

At his deposition on April 29, 2004, Dr. Salib testified that he had reviewed the employee=s MRI scans of November 7, 2002, and October 31, 2003, as well as the reports of independent medical examiner Dr. Wicklund and the detailed hypothetical given to Dr. Wengler.  Dr. Salib concluded that the employee has a contained central disc herniation at the L5-S1 level.  He testified that the employee should be rated for a single level disc protrusion,^[4] noting also that the employee had had some radicular pain in the past but that that had subsided.  He stated that A[i]t does not appear that at least the radicular component of the pain has been a permanent problem.@  Similarly, at his deposition on May 6, 2004, Dr. Drogt testified that the employee qualified for a 7% whole body impairment under the permanent partial disability schedules, and, in his report of March 5, 2004, Dr. Wicklund agreed with that rating.

 

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).  Although permanency ratings offered by physicians may assist the judge in making this determination, such medical opinions are not binding.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983).  In the end, 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).  Here, although the judge did not specify which doctor=s opinion she was relying upon, it is clear from the record that the judge=s determination of a 7% rating is supported by the opinions of Drs. Salib, Drogt, and Wicklund and so by substantial evidence.  We therefore affirm that award.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

6.  Maximum Medical Improvement

 

At finding 14, the compensation judge concluded that ADr. Salib, along with the independent medical examiners, recommends several treatment options for the employee, including facet injections and surgery.@  She then concluded, at finding 15, that the employee has not reached MMI from his work-related injury of November 5, 2002.  Maximum medical improvement is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@  Minn. Stat. ' 176.011, subd. 25.  The employer/Berkley served the employee with Dr. Drogt=s MMI opinion on September 2, 2003, and contends that, although Dr. Salib has recommended a facet joint injection, there is no evidence that that proposed treatment would lead to any significant improvement in the employee=s condition.  Citing as authority Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), the employer/Berkley contends that the fact that an employee may require additional medical treatment is not a basis for precluding a finding of maximum medical improvement.  We are not persuaded that the judge=s finding is unsupported by the evidence.

 

Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little improvement.@  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  The question for this court is whether substantial evidence supports a conclusion that there is medical proof that the employee=s condition was neither stable nor unlikely to show significant improvement as of the date of hearing.  Competent medical opinion would constitute evidence sufficient for such proof.  In this case, the compensation judge was in a position to choose between competent medical opinions on both sides of the issue, a task that we have said is uniquely within the province of a compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985); Rauen v. Park Nicollet Med. Ctr., 63 W.C.D. 198 (W.C.C.A. 2002).

 

In this case, Dr. Salib clearly testified that the employee had not reached MMI, and he recommended a facet injection as the least invasive form of treatment for the employee.  Other treatments discussed included a fusion of the disc or an artificial disc procedure.  Dr. Wengler also testified that the employee was a surgical candidate.  Although there is apparently some uncertainty as to whether or not the proposed facet injection might result in significant lasting improvement in the employee=s condition, we do note that even Dr. Drogt, who opined that the employee was already at MMI, opined also in his February 2004 report that facet injections Amay obviate the need for surgical intervention.@  While evidence that significant improvement may be anticipated is not as substantial as we might like, under the circumstances of this case, where the employee had only recently, just prior to trial, been given authorization to obtain the recommended facet injection, we cannot say that the judge=s MMI decision is unreasonable in light of the record as a whole.  Accordingly, we affirm.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.