DARLA VANDENBERG, Employee, v. INDEPENDENT SCH. DIST. #518, WORTHINGTON, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS, Employer/Appellant, and MEDICARE PART A/NORIDIAN ADMIN. SERVS., TWIN CITIES ANESTHESIA, and GRAVON CHIROPRACTIC, Intervenors, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 23, 2005

 

No. WC04-257

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was reasonably supported by expert medical and vocational opinion and the testimony of the employee and was not otherwise unreasonable either medically or vocationally, the compensation judge=s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY - BACK; PERMANENT PARTIAL DISABILITY - COMBINED RATINGS.  A rating of permanent partial disability is one of ultimate fact for a compensation judge, and, given especially that the two conditions were here treated in two different surgeries separated by seven years, the compensation judge=s award based on a combination of ratings for both disc herniation and spinal stenosis on grounds that those two conditions were separate and distinct problems both contributing to the employee=s level of disability and functional impairment was not clearly erroneous and unsupported by substantial evidence.

 

INTERVENORS; PRACTICE & PROCEDURE - REMAND.  Where it could not be determined from the record whether or not the potential intervenor had had proper opportunity to assert its claim in a timely fashion, and where the potential intervenor=s motion to intervene was filed two days after the record closed in the matter and so left the employer without proper opportunity to consider and assert its defenses, the compensation judge=s finding and order awarding reimbursement to the potential intervenor were vacated and remanded to the compensation judge for rehearing and redetermination upon proper notice and opportunity for the parties to prepare their cases.

 

Affirmed in part and vacated and remanded in part.

 

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

Compensation Judge: Ronald E. Erickson

 

Attorneys: Mark W. Shepherd, Von Holtum, Malters & Shepherd, Worthington, MN, for the Respondent.  Leslie M. Altman, Rider Bennett, Minneapolis, MN, for the Appellant.  William A. Bierman, Jr., St. Paul, MN, for the Special Compensation Fund.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge's awards of compensation for permanent total disability and permanent partial disability to the employee and of reimbursement to an intervenor.  We affirm the awards of permanent total and permanent partial disability benefits, and we vacate and remand the award to the intervenor.

 

BACKGROUND

 

On September 15, 1988, Darla Vandenberg sustained an injury to her low back as she assisted in the transfer of a disabled student from a wheelchair to a bath in a residential educational facility in the course of her work as a practical nursing unit coordinator with Independent School District #518/Worthington.  Ms. Vandenberg [the employee] was forty years old on that date and was earning a weekly wage of $377.00, and Independent School District #518/Worthington [the employer] was self-insured against workers= compensation liability.  The employee was evidently off work for about two weeks following her injury and then returned, only to discover severe pain developing in her legs, more severe on the left than on the right.  She was eventually examined on January 23, 1989, by orthopedist Dr. Richard Nice, who hospitalized the employee for further diagnostic studies.  A lumbar myelogram and CT scan were positive for an L3-4 disc injury, and Dr. Nice ordered a week of traction, prescribed medication, and apparently restricted the employee from working again until May 1, 1989, when she was released to return to work part time in a supervisory capacity with no lifting.  By June 1, 1989, she had returned to working eight hours a day, and on June 5, 1989, Dr. Nice certified that she had reached maximum medical improvement [MMI] on May 25, 1989.  Later in June 1989, the employee went to work as a camp nurse at Camp Courage, but she subsequently developed leg pain that compelled her to leave the camp on about July 20, 1989.  She saw Dr. Nice again on several occasions in July and August of 1989, and on August 24, 1989, he recommended an MRI scan.  The scan revealed additional problems at L4-5 and L5-S1, and on September 5, 1989, the employee underwent laminectomies with disc excisions at those levels.  Left knee and leg and low back pain eventually returned, however, and in December 1989 the employee also underwent at least one lumbar epidural block.

 

On April 12, 1990, the employee underwent an independent medical examination by orthopedist Dr. R. Wynn Kearney, Jr.  In his report on June 15, 1990, Dr. Kearney concluded in part that the employee=s September 15, 1988, work injury was a substantial contributing factor in the employee=s low back condition and ultimate need for surgery.  Dr. Kearney concluded further that the employee was subject to a total permanent partial disability of 16% of the whole body, pursuant to Minnesota Rules 5223.0070, subparts 1B(2)(b) and 1B(5), which, respectively, rate surgical repair of a herniated disc at one lumbar level at 11% and concurrent repair of a second disc at an adjacent level at 5%.  Dr. Kearney concluded also that the employee was capable of working subject to substantial bending and lifting restrictions, though no longer as an LPN.  It was Dr. Kearney=s opinion that, because the employee=s condition appeared to be stable, she might reasonably be considered to be at MMI, but he nevertheless concluded her prognosis for further improvement to be favorable if she were to be successful in a weight control program and if she should successfully complete treatment at a back care center.  It was, however, his opinion that chiropractic treatment was neither reasonable nor medically indicated.  The employer eventually admitted liability for the employee=s surgery and paid permanency benefits, although, for reasons not in evidence, only for an 11% impairment rather than for the total 16% impairment rated by Dr. Kearney.^[1]

 

The employee had made some initial improvement in May of 1990, but by June 21, 1990, she was doing poorly again, and Dr. Nice decided to try another lumbar epidural block.  Eventually the employee undertook volunteer activities at the Southwest Minnesota Mental Health Program, as work-hardening and to improve her clerical skills, and by January of 1991 she was released to return to up to twenty hours of work a week at a sedentary job.  Seven months later, however, on August 21, 1991, the employer filed a Petition to Discontinue Benefits on grounds that the employee had failed to cooperate with rehabilitation assistance and had failed to conduct a reasonably diligent search for work.  A few weeks later, on September 11, 1991, the employee accepted a job working three and a half hours a day four days a week as an administrative secretary at the First Covenant Church in Worthington, for which she was evidently paid initially $4.50 and eventually $5.75 an hour.  The employee=s hours at this job were apparently expanded eventually to four hours a day five days a week.  In an office note for November 21, 1991, Dr. Nice opined that the employee was capable of no more than four hours of work a day, that it was very unlikely that there would be any change in her condition or restrictions in the foreseeable future, and that her searching for work additional to the four hours a day that she was working at First Covenant Church would be foolhardy.  By an unappealed decision issued December 4, 1991, the employer=s August 21, 1991, petition to discontinue benefits was denied.

 

On November 24, 1992, the employee underwent another MRI scan of her lumbar spine.  The scan was reported to be Asuboptimal@ because of the employee=s size but was read to reveal a small amount of scar at the L4-5 laminectomy site without definite impingement upon the spinal canal, together with degenerative changes at L3-4 and L4-5 and less prominently at L5-S1, with no evident focal herniation or other impingement on the canal.  On December 14, 1992, the employee was examined by physiatrist Dr. Susan Assam, who advised the employee that returning to work as a nurse was not a reasonable goal, concluding that a chronic pain program might benefit her in improving her life function and enjoyment in life.  On January 4, 1993, on referral from Dr. Assan, the employee underwent a psychological evaluation by psychologist Dr. William Fergusson, who concluded that the employee was depressed and that, Aeven if returning to nursing seems unrea[]listic, she may need to be encouraged to consider other sedentary jobs that afford her more social interaction.@  On January 29, 1993, Dr. Assam concluded that the employee=s restrictions should remain unchanged and that four hours of work a day was probably appropriate.  The employee did attempt an additional half-time job in the summer of that year, with the American Lutheran Church, but after about two months she discontinued that work on grounds that she could not physically handle the fatigue and pain of the extra hours.

 

On August 17, 1995, the employee was examined by orthopedic surgeon Dr. John Stark, complaining of continuing bilateral low back, buttock, and leg pain.  Dr. Stark diagnosed lumbar radiculopathy at L4-5 on the left and apparently at L5 on the right, probably due to lateral recess stenosis or similar residual nerve root compression syndrome, and ordered a CT myelogram.  The scan was conducted on August 28, 1995, and was read to reveal multilevel degenerative lumbar spondylosis, with specifically a central disc herniation at L5-S1 without direct neural compression, severe bony foraminal stenosis at L5-S1, L4-5, and L3-4, and facet degeneration and asymmetry at L3-4 downward.  The reading radiologist noted that there appeared to be some worsening of the L3-4 foraminal stenosis compared to a 1990 examination.  A lumbar myelography on that same date was read to reveal in part an extra-dural defect at L3-4 and L4-5 on the left side, suggestive of a posterolateral disc protrusion and/or spurs causing L4 impingement, together with marked derangement of the L3-4 and L4-5 discs, with bilateral L5 neural flattening at the L4-5 level.  On that same date, in light of those radiological findings, Dr. Stark recommended surgery in part to repair what he considered the Asignificant central herniation at L5-S1.@

 

On September 28, 1995, the employee was examined for the employer by orthopedic surgeon Dr. Paul Cederberg, who diagnosed, in addition to severe exogenous obesity, degenerative disc disease of the lumbar spine, with bilateral lumbar spinal stenosis at L5-S1, L4-5, and L3-4, which he related to the employee=s September 1988 work injury.  Dr. Cederberg concluded, however, that the employee was capable of working more than four hours a day and, although she might be helped by it, that she was not a good surgical candidate due to her large size, pain behavior, and depression.

 

On February 5, 1996, Dr. Stark diagnosed chronic back and leg pain due to lumbar disc disease, and on February 15, 1996, on a pre-op diagnosis of severe bilateral lower extremity pain due to Aa mix of lesions including foraminal stenosis, lateral recess stenosis and herniated disk,@ he performed a central complex decompression with right-side foraminotomy at L5-S1, together with right-side micro decompressions at L4-5 and L3-4.  Upon follow-up on February 29, 1996, Dr. Stark reported that the employee was reporting Agreat improvement of back and leg pain@ and that A[s]he believes that she will be able to lose weight now because of the resolution of her back and leg pain.@  On that date Dr. Stark evidently released the employee to return to working up to four hours a day, with occasional bending, stooping, squatting, and lifting up to twenty-five pounds, and the employee returned to her job at First Covenant Church.  On April 11, 1996, Compensation Judge William Johnson issued Findings and Order determining that the February 1996 surgery had been reasonable and necessary to cure or relieve the effects of the employee=s work injury of September 15, 1988, and there was no appeal from that decision of Judge Johnson.

 

From 1996 to 2001, the employee=s low back symptoms evidently began to gradually worsen, and the employee, who has been severely overweight for most of her life, also began to experience increasing knee pain, particularly on the right side.  On January 15, 2001, the employee commenced treatment with chiropractor Dr. Janine Bremer for lower back pain that radiated into her legs and especially into her right knee.  On March 20, 2001, the employee applied for Social Security Disability benefits, which she was subsequently granted retroactive to March 2000, having been found to have been disabled under Social Security rules as of August 29, 1998.^[2]  In the later spring of 2001, the employee evidently found her back and leg pain increasing to where she became unable to keep her normal work shifts.  On May 13, 2001, the employee evidently quit her job at the First Covenant Church, and on June 19, 2001, the employer served a Notice of Intention to Discontinue temporary partial disability benefits on grounds that the employee was no longer working.

 

The condition of the employee=s right knee apparently continued to deteriorate subsequent to her leaving work, and on July 12, 2001, orthopedist Dr. Franklin Alvine recommended a total right knee arthroplasty.  Nearly a year later, on June 3, 2002, orthopedist Dr. Gregory Alvine performed that procedure for the employee.  On the date of her surgery, the employee, who stands five feet seven inches tall, weighed three hundred forty-four pounds.  Near the end of July 2002, about six weeks after her surgery, the employee evidently volunteered to fill in for a week for her vacationing replacement at First Covenant Church, but after two days she discontinued that work due to recurrent back pain.

 

In August of 2002, the employee returned to Dr. Bremer to recommence chiropractic treatment for symptoms in her low back, upper leg, buttock, and eventually neck.  On November 26, 2002, about half a year after her knee surgery, the employee returned to see Dr. Stark, for the first time since her 1996 surgery, regarding her low back pain, in addition to bilateral leg pain.  Dr. Stark ordered a lumbar MRI scan, which was read to reveal significant disc space narrowing at L3-4 and L4-5, moderate disc dehydration and chronic foraminal stenosis at L5-S1, and mild central stenosis due to disc bulging and facet hypertrophy at L2-3 and L3-4.  On the basis of that scan, on December 12, 2002, Dr. Stark diagnosed foraminal stenosis at L4-5, in addition to rotary listhesis and recurrent lateral recess stenosis, and ordered a diagnostic injection into the L4 nerve root, which was conducted on January 6, 2003.  On January 9, 2003, the employee reported excellent relief from the injection and requested a second on the opposite side.  This was ordered but ultimately postponed when the employee reported on January 13, 2003, that her left leg pain had returned.  Ultimately the employee underwent two more injections, on January 16 and January 20, 2003, but these were in the end ineffective, and on January 28, 2003, Dr. Stark recommended fusion surgery conditioned on the employee=s losing fifty pounds over the next three months.

 

On March 28, 2003, the employee filed a claim petition, alleging entitlement to permanent total disability benefits continuing from May 4, 2001, together with unspecified medical expenses incurred for treatment with Dr. Stark and Dr. Bremer, consequent to her work injury on September 15, 1988.

 

On April 22, 2003, the employee called Dr. Stark=s office, complaining of radicular back and bilateral leg pain, depressed over having not lost the required weight, and requesting referral back to her chiropractor.  An appointment was scheduled with Dr. Stark, who, on May 20, 2003, scheduled the employee for a right L4-5 micro-decompression and foraminotomy, her weight still precluding fusion as an option.

 

On July 3, 2003, the employee was examined for the employer by orthopedic surgeon Dr. Robert Barnett.  After reviewing the employee=s medical records, obtaining a history from her, and conducting a physical examination, Dr. Barnett diagnosed multiple level disc degeneration and degenerative spondylosis of the lumbar spine, with intractable back and leg pain, together with morbid obesity.  It was Dr. Barnett=s opinion that the employee=s current low back condition and need for surgery in 1989 were both causally related to her September 1988 work injury as well as to her morbid obesity.  Dr. Barnett concluded that the employee was able to perform sedentary work, however, perhaps four to six hours a day, subject to permanent restrictions against bending, twisting, stooping, squatting, or crawling, against lifting or carrying more than fifteen pounds, and provided that she were permitted limited intervals of standing and walking at ten to fifteen minute intervals.  Dr. Barnett concluded also that the limited decompression recommended by Dr. Stark was Aa reasonable, if not necessary, approach@ to the employee=s problems, concluding that A[i]t may not have any significant relief of back pain and may, in fact, have an aggravating effect on back pain.@  It was Dr. Barnett=s opinion that MMI should not be assigned until about one year following the prescribed surgical procedure and that that procedure was unlikely to have any impact at all on the employee=s work restrictions.

 

On July 7, 2003, Dr. Stark performed the scheduled L4-5 decompression and foraminotomy.  About half a year later, on January 23, 2004, still weighing three hundred thirty pounds, the employee saw Dr. Gregory Alvine again, this time regarding left knee pain.  Dr. Alvine diagnosed left knee degenerative joint disease and recommended a total left knee arthroplasty, and on March 16, 2004, he performed that procedure.  A month later, on April 15, 2004, the  employee was seen in follow-up by Dr. Stark, who concluded in part that she was permanently and totally disabled Abecause of her mix of severe medical problems.@  On May 18, 2004, Dr. Stark testified by deposition, in part reiterating his opinion that the employee was permanently totally disabled from working at all, even four hours a day, since at least as early as November 26, 2002.  Dr. Stark testified also that, in his opinion, pursuant to Minnesota Rules 5223.0070, subpart 1.C.(2), the employee was subject to an 18% permanent partial disability of the whole body based on her spinal stenosis, in addition to the 11% whole body disability for which she had already been compensated.  It was Dr. Stark=s further opinion that, in addition to the employee=s 1988 work injury, the employee=s work duties at First Covenant Church between 1996 and 2001 were a substantial contributing factor in her need for surgery in 1996, in her total disability since 2001, and in her need for surgery in 2003.

 

On May 24, 2004, Dr. Barnett also testified by deposition, in part that the September 1988 work injury was a significant contributing cause of the employee=s current low back condition.  Dr. Barnett testified also, however, that the employee was nevertheless capable of doing sedentary to light duty work for from four to six hours a day, provided that she has opportunity to change her position frequently and subject to restrictions against sustained or repetitive bending, squatting, and lifting weights over twenty pounds.  This opinion was rendered without taking into account the employee=s subjective complaints of back pain, which Dr. Barnett acknowledged, might reflect pain that was severe enough to be disabling in and of itself.  In assessing the employee=s permanent partial disability, Dr. Barnett assigned a total 10% whole-body impairment in addition to the 11% rating for which the employee had already been compensated under Minnesota Rules 5223.0070, subpart 1B(2)(b), for a surgically treated herniated lumbar disc.  The additional 10% rating was comprised of a 5% rating under Minnesota Rules 5223.0070, subpart 1B(5), for a second herniated disc treated concurrently at an adjacent level, evidently one of those treated in 1989, and a 5% rating under Minnesota Rules 5223.0070, subpart 1B(3), for a recurrent herniated disc, evidently that treated in 1996, occurring at a vertebral level previously treated with surgery.  With regard to the employee=s 2003 surgery, having been asked to assume that the employee was released post surgery to return to work within restrictions, Dr. Barnett opined that the 2003 surgery was Acertainly reasonable and necessary for relief of [the employee=s] leg pain@ although he personally would not have recommended it.  Dr. Barnett did not offer, nor was he invited to offer, a permanency rating related specifically or solely to the surgery performed by Dr. Stark in 2003.  In a letter written the following day to the employer=s attorney, Dr. Barnett also rendered an opinion that the employee would have reached MMI with regard to her July 2003 decompression surgery on about January 1, 2004, on which date she would also have been able to return to work Awithin the previously described restrictions of activities and hours.@

 

The matter came on for hearing on May 27, 2004.  Issues at hearing included the employee=s entitlement to permanent total and permanent partial disability benefits, together with certain medical expenses and the potential claims of several intervenors.  Near the beginning of the hearing, the employer=s attorney stated as follows:

 

With respect to the medical claims, Your Honor, our position is that that the surgery and based upon Dr. Barnett=s opinion is compensable, but that the chiropractic treatment expense is not, because it's not - - it was not necessary and reasonable treatment in the opinion of Dr. Barnett.

Though there are - - and I think it=s been indicated that various providers, including the chiropractor and apparently Blue Cross/Blue Shield, were put on notice recently, it=s also been indicated that both of those entities intend to intervene.

And I guess my position is (inaudible) based on 176.361, since they=ve been put on notice, presumably were advised that there was a hearing today on the claim, I think they=re under an obligation to appear at trial to assert their claims and substantiate them.  And because they=re not here, it=s my position that those claims ought to be precluded, as I say, 176.361.

 

(Sic.)  The employee testified at the hearing that she lived in an apartment complex and was able, with the help of various carts, to do basic housecleaning chores in her apartment, including dusting, cleaning showers and sinks, and washing clothes, that she does her own grocery shopping on a motorized cart, that she cares for her cats, including lifting sixteen-pound containers of cat litter, and that such tasks are not substantially different in their strenuousness from the work that she had done at First Covenant Church.  She indicated that, subsequent to her surgery, she had returned briefly to work at that employer on a volunteer basis but that the work was triggering muscle spasms again and she discontinued the effort.  She conceded that she had never tried to return to that job again, and, responding to a question as to whether she had looked for any other work, she stated, AWell, I check the newspaper every day, and I dream about jobs,@ citing as examples a Red Cross director job that had come open and a position for a Girl Scout program director, stating about the latter, AI=d just love to do that, but I can=t.@  She testified that she continues to have pain in her low back as well as occasional pain down the outside of her legs from the buttocks to the knees, that her back pain is present twenty-four hours a day seven days a week, and that that pain increases with activity.

 

Also testifying at hearing, for the employee, was the employee=s former QRC, Gwen Hendrickson, who had provided rehabilitation assistance to the employee from September 1990 to February 1992 and from January 1993 to August 1993.  QRC Hendrickson acknowledged in her testimony that, prior to being retained by and meeting with the employee about a week earlier in preparation for her current testimony, she had last been in contact with and seen the employee in 1993, when she had closed her file after determining that the employee had returned to work within restrictions as manifested by her employment with First Covenant Church.  QRC Hendrickson acknowledged also that, although she is a nurse with twenty-three years of experience as a QRC, she did not consider herself a vocational expert, had not conducted vocational testing or a labor market survey, and intended to speak to issues of the employee=s medical and not necessarily vocational employability.  With her testimony thus conditioned, QRC Hendrickson rendered an opinion that the employee was not employable even within Dr. Barnett=s restrictions and that the jobs identified by the employer=s vocational expert, who also testified at the hearing, would not fit within the employee=s medical restrictions.

 

Also testifying at hearing, for the employer, was QRC Michael Kahnke.  Mr. Kahnke indicated that he had seven years of experience as a QRC and seven years as a placement specialist and that, having conducted both an evaluation of the employee and her transferrable skills and a labor market survey, he had concluded that the employee was capable of returning to her position at First Covenant Church or of working at any of several other jobs in her community, including jobs as a health clerk, a customer service representative, an office receptionist, or a bookkeeper.  It was Mr. Kahnke=s opinion, therefore, that the employee was not permanently totally disabled, that she had not conducted a reasonably diligent job search since leaving her job with First Covenant Church in May of 2001, and that, based on the physical restrictions to which she was subject at the time, she was not incapable of working at the time she left that job.  QRC Kahnke did concede, however, that, particularly in light of how unusually accommodating First Covenant Church had been with her, if the employee was actually incapable of continuing in her work for that employer due to her pain, she would probably not be able to work for any other employer either.

 

At the close of the hearing, the parties agreed to submit their final arguments in writing, and the compensation judge agreed to leave the record open through June 7, 2004, for them to do so.   The judge=s eventual findings and order indicate that the record closed on June 8, 2004, upon receipt of briefs from all attorneys.  A motion to intervene was subsequently filed by third party payor Medica Health Plans [Medica] on June 10, 2004.  No objection to that motion was subsequently filed.  Notwithstanding the employer=s attorney=s assertions at the start of the hearing of her understanding that various providers had been Aput on notice recently@ and were Aintend[ing] to intervene,@ we find no evidence in the record as to when, or even whether, Medica in particular may have been served with proper Notice of Right to Intervene.  In his findings and order filed July 29, 2004, the compensation judge concluded in an unappealed finding that the decompression surgery performed by Dr. Stark on July 7, 2003, was reasonable and necessary to cure or relieve the effects of her work injury on September 15, 1988.  In other findings, the judge concluded also that the employee had been permanently and totally disabled since May 13, 2001, as a result of that work injury, that the employee had also sustained a permanent partial disability to 39% of her whole body as a result of that work injury, and that, except for amounts paid to Gravon=s Natural Chiropractic, Medica was entitled to reimbursement for sums that it had paid on behalf of the employee, even though it had not appeared at the hearing.  The employer 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.  Permanent Total Disability

 

At Finding 15, the compensation judge found that the employee has been permanently and totally disabled since May 13, 2001, as a result of her work injury of September 15, 1988.  It is well established that an employee may be found permanently totally disabled only Aif his physical 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).^[3]  A determination of permanent total disability therefore has both a medical and a vocational component, see McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983).  The self-insured employer contends that, in drawing his conclusion, the compensation judge was Ablatantly ignoring the evidence that was produced at hearing@ and that there is no substantial evidence, either medical or vocational, to support the judge=s decision.

 

With regard to the medical evidence, the employer argues as follows: (1) that Dr. Stark released the employee to work with restrictions after her surgery in 1996; (2) that those same restrictions remained applicable when the employee ceased working at First Covenant Church on May 13, 2001; (3) that in the interim the employee sought treatment primarily for a nonwork-related right knee condition, not for her work-related low back condition; (4) that when Dr. Stark eventually restricted the employee totally on April 14, 2004, he did not make his restrictions retroactive; (5) that on that same date the employee was recovering from recent right knee replacement and Dr. Stark himself was anticipating her functional improvement; (6) that the option of fusion surgery if the employee loses some weight constitutes another potential for improvement; and (7) that, in the end, ADr. Stark only restricted the employee totally . . . from work on April 14, 2004, in an opinion issued for purpose[s] of litigation.@  We are not persuaded that the judge=s conclusion is unsupported by the medical evidence.

 

We note initially that we disagree with the employer=s assertion that, as stated in its Reply Brief, Aalthough the Employee claimed at hearing that she is now completely restricted from work, Judge Erickson specifically rejected that claim, instead adopting the opinion of Dr. [Robert] Barnett that the Employee remains able to work subject to restrictions@ (underscoring added).  This statement is contrary not only to the judge=s clear determination on its face but also to the specific language of the judge=s decision.  There is no reference anywhere to the opinion of Dr. Barnett in the findings and orders proper of the judge=s decision, and in his memorandum the judge states clearly that, while he Aessentially@ agrees with Dr. Barnett=s restrictions, he expressly Adisagrees with Dr. Barnett=s conclusion that [the employee] can work.@  This is expressly a rejection - - certainly not an adoption - - of an opinion Athat the Employee remains able to work.@

 

With regard to the employer=s other arguments regarding the medical evidence, we do not find dispositive the fact that the employee=s formal restrictions permitted her to work immediately subsequent to her 1996 surgery and even after she ceased working at First Covenant Church in May of 2001.  Nor does the fact that she may have sought treatment primarily for a nonwork-related knee condition in the interim in any way imply that her low back condition does not remain a substantial contributing factor in her overall physical disability.  Nor is it dispositive that Dr. Stark=s eventual total restrictions were not issued retroactive to May 13, 2001.  The employee is subject to several different and serious disabilities, and, where the judge=s determination is reasonable in light of the total evidence, as here it appears to us to be, the date on which permanent total disability commences is a question of fact for the compensation judge.  See Christensen v. Whirlpool, 41 W.C.D. 1047, 149 (W.C.C.A. 1989).  Finally, we see no merit in the argument that Dr. Stark=s opinion totally restricting the employee from work might have been Aissued for purpose[s] of litigation.@  Many if not most of the formal expert opinions rendered in cases before us are issued for the purposes of litigation, and we usually uphold a trier of fact's choice between experts whose testimony conflicts unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Dr. Stark=s opinion does not appear to us to have been based on any false factual premises, and we conclude that the compensation judge=s decision was not unreasonable in light of that opinion in particular and the medical records in general.

 

With regard to the vocational evidence, the employer argues as follows: (1) that, according to case law, the concept of total disability depends even more on the employee=s ability to find and hold a job than it does on the employee=s physical condition; (2) that the employee must therefore show that she has made a reasonable and diligent job search in order to be entitled to benefits; (3) that the employee has done little to search for work since she voluntarily terminated her employment with First Covenant Church;  (4) that the employee has even declined a job with the Girl Scouts out of hand, without discussing it with her medical providers, without consulting with her QRC, without requesting any job modifications, and without even giving the job a try; (5) that QRC Kahnke, who testified for the employer, has opined, after meeting with the employee, analyzing her transferable skills, and conducting a labor market survey, that the employee has significant transferable skills and is qualified for several jobs available in her labor market; and (6) that QRC Hendrickson, who acknowledged that she saw the employee only once after 1993, that she performed neither an analysis of the employee=s transferable skills nor a labor market survey, and that she has no expertise as a vocational expert, is essentially without sufficient professional expertise and foundation to have rendered a reliable opinion that the employee is permanently and totally disabled.  The employer=s arguments have merit, and this is a difficult issue, but we are not persuaded that the judge=s decision must be reversed on grounds of the vocational evidence, notwithstanding the fact that QRC Hendrickson essentially disqualified herself on this issue.

 

In his decision on the permanent total disability issue, the compensation judge appears, as particularly evident in Findings 9 through 14, to have relied principally on the medical record, the opinion of Dr. Stark, and the testimony of the employee as to her physical condition and capacity for activity.  The judge does not reference expressly either the opinion of QRC Hendrickson or the opinion of QRC Kahnke.  We acknowledge that an employee=s entitlement to compensation for total disability ultimately depends more on the issue of the employee=s ability to find and hold a job than it does on the employee=s medical condition, see McClish, 336 N.W.2d at 542, 36 W.C.D. at 139, and that, unless factors such as age, physical condition, training, and experience indicate that the employee is incapable of obtaining anything but sporadic work with insubstantial income, an employee must normally prove total disability by demonstrating the unavailability of suitable work after a diligent search, see Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  Moreover, we acknowledge also that the employee may not have searched for work very diligently since she voluntarily terminated her employment with First Covenant Church in May of 2001.  We note, however, that a diligent search for work is not a prerequisite to a finding of total disability if the job search would be futile, and only injured workers who are capable of work are required to affirmatively seek employment as a prerequisite to obtaining total disability benefits.  See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 431-33 (Minn. 1978).  Failure to seek post-injury employment goes only to the evidentiary weight of the employee=s claim of total disability, id., and whether an employee has met the burden of proving permanent total disability is a question of ultimate fact for the factfinder, 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.  In this case, in light not only of the opinion of Dr. Stark but also of the testimony of the employee and of QRC Kahnke, it was not unreasonable for the compensation judge to conclude that any further search by the employee for employment subsequent to her work for First Covenant Church would have been futile.

 

In addition to her severe low back condition, the employee suffers from diabetes, has now undergone total knee replacement in both knees, and apparently continues to weigh well over three hundred pounds, despite attempts to lose weight.  The employee testified that, by the time she left her job with First Covenant Church, she had gradually had to reduce her work days from five down to two or three each week and had with increased frequency found herself unable to complete her normal work shift, due to her back pain.  She testified also that her condition frequently required her to go down into the church youth room and to lie down on a table for periods during her regular work hours in order to relieve some of her pain and that her supervisor at the church was repeatedly and generously accommodating to such needs.  Indeed, the employer=s vocational expert, QRC Kahnke, testified that if the employee were found to be physically unable to perform her very light duty job at First Covenant Church, with all of its accommodations, she would probably not be able to perform any other job either.  The employee testified that she was physically unable to continue to perform that job on the day she quit, that she subsequently returned briefly to try the job again on a voluntary basis, but that she simply was unable to continue.  The compensation judge evidently credited that testimony.  Moreover, since that time, the employee, who must use a cart for otherwise simple chores such as grocery shopping and getting from location to location in her apartment building, has now undergone a second total knee replacement, further evidence of the physical strain under which she lives.  In light of this evidence, it was not unreasonable for the compensation judge to conclude that, even absent formal restrictions at the time, the employee was totally disabled at the time that she quit her job at First Covenant Church.  See Brening v. Roto-Press, Inc., 306 Minn. 562, 563, 237 N.W.2d 383, 385, 28 W.C.D. 225, 226 (Minn. 1975) (the employee is the person most familiar with the severity of her symptoms and the limitations her back places upon her physical activities, and her testimony alone is sufficient to support a finding of total disability, even in the face of contrary medical opinion); see also Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Further, in light of evidence of subsequent additional disability, and particularly in light of QRC Kahnke=s testimony that if the employee could not do the church job she could probably not perform any other job either, it was also not unreasonable for the compensation judge to conclude that any search for work in the employee=s Worthington area job market subsequent to the church job would have been futile and that the employee=s total disability has been permanent since the day she left First Covenant Church.

 

Because it was reasonably supported by expert opinion and not unreasonable otherwise, we affirm the compensation judge=s conclusion that the employee has been permanently and totally disabled as a result of her September 15, 1988, work injury since May 13, 2001.  See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73; Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Permanent Partial Disability

 

Prior to the hearing, the employee had been paid compensation for an 11% permanent partial disability of the whole body, based on a herniated disc surgically repaired in 1989 and apparently pursuant at least in part to Dr. Kearney=s opinion for the employer that the employee was entitled already at that time to compensation for a 16% whole body impairment.  In his deposition on May 24, 2004, Dr. Barnett assigned, beyond that 11% rating for which compensation had already been paid, an additional 10% rating - - 5% under Minnesota Rules 5223.0070, subp. 1B(5), for the second herniated disc at an adjacent level treated concurrently in 1989, and 5% under Minnesota Rules 5223.0070, subp. 1B(3), for the recurrent herniated disc surgically treated in 1996.  Having opined at his deposition that the 2003 surgery was Acertainly reasonable and necessary for relief of [the employee=s] leg pain@ but that he - - Dr. Barnett - - would nevertheless not have recommended that surgery, Dr. Barnett did not offer, and was not invited to offer, a permanency rating specifically related to the surgery performed by Dr. Stark in 2003.  Dr. Barnett=s total permanency rating therefore, based as it was solely on the employee=s 1989 and 1996 surgeries, was 21%.  Dr. Stark, in his deposition on May 18, 2004, did assign a rating to his 2003 surgery - - an additional 18%, for stenosis under Minnesota Rule 5223.0070, subp. 1.C.(2).  Dr. Stark did not offer, and was not invited to offer, a permanency rating specifically related to the earlier surgeries, except to agree that the 18% would be Ain addition@ to the 11% previously paid for Aat least one or both of the prior surgeries.@  Dr. Stark=s total permanency rating therefore, based as it was solely on the 2003 surgery and the repair of one disc in 1989, was 29%.

 

At Findings 18 and 19, the compensation judge concluded that the employee was subject to a total permanent partial disability of 39% of her whole body - - apparently a combination of the previously paid 11% plus Dr. Stark=s additional 18% rating for stenosis and Dr. Barnett=s additional 10% rating for disc herniation.  The employer contends that Dr. Stark=s 29% rating and Dr. Barnett=s 21% rating should have been construed as two alternative ratings instead of factored together into a combined rating and that combining the two ratings constituted the sort of Astacking@ that is Aonly allowed to compensate separate and distinct functional impairments.@  Italics in brief, citing Dixon v. Twin City Commercial Flooring, 52 W.C.D. 432 (W.C.C.A. 1995).  AIt is clear from their testimony,@ the employer argues, Athat [Dr. Stark and Dr. Barnett] were both rating the employee for the same functional impairment.@  The employer argues that there is no medical support for an award of compensation under both ratings and that awarding compensation under both ratings would result in the sort of double recovery for the employee that the supreme court has expressly indicated, in Deschampe v. Arrowhead Tree Serv., 428 N.W.2d 795 41 W.C.D. 200 (Minn. 1988), must be avoided.  We are not persuaded.

 

We are not at all convinced that there is even arguable evidence, much less that it is Aclear@ from their testimony, that Dr. Stark and Dr. Barnett were both rating the employee for the same functional impairment.  The context of Dr. Stark=s testimony was clearly and expressly the disability implications of the employee=s 2003 surgery alone, a surgery for which the sole preoperative diagnosis was Aspinal stenosis/lateral recess stenosis.@  The context of Dr. Barnett=s testimony, on the other hand, was all about the employee=s 1989 and 1996 surgeries - - and so, inevitably, about the employee=s functional impairment fully seven years prior to the employee=s 2003 surgery.  The 1989 surgery involved disc repair at two levels.  We acknowledge that the 1996 surgery did apparently address some stenosis problems in addition to disc herniation, but the procedure was described by even Dr. Barnett, at his deposition, as a decompression Aand discectomy,@ and it was intended to relieve symptoms that Dr. Stark described, in an August 17, 1995, letter to Dr. John Mork, as Aexactly the same as they were before [the 1989] surgery.@  The employee initially saw Agreat improvement@ in her symptomatic impairment following the 1996 surgery, returning thereafter to work for five more years at First Covenant Church.  In light of this evidence, it would have been entirely reasonable for the compensation judge to conclude that the employee was entitled to compensation for a 21% whole-body impairment fully seven years before her 2003 surgery, based solely upon her functional impairment at the time of  her 1996 surgery, and that she was entitled to an additional 18% rating as a consequence of the impairment for which she underwent further surgery in 2003.

 

A rating of permanent partial disability is one of ultimate fact for a compensation judge, subject to our substantial evidence standard on factual review.  See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  Given especially their treatment in two different surgeries separated by seven years, we conclude that it was not unreasonable for the compensation judge to conclude, as stated in the judge=s memorandum, that the employee=s disc herniation and her spinal stenosis are Aseparate and distinct problems@ which Aboth contribute to the employee=s level of disability and functional impairment.@  Because that conclusion was not unreasonable, we affirm the compensation judge=s conclusion that the employee is subject to a total permanent partial disability of 39% of her whole body, subject to statutory reductions, as a result of her work injury of September 15, 1988.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

3.  Medica=s Intervention Award

 

The compensation judge awarded reimbursement to Medica Health Plan [Medica] for reimbursement that it had in turn paid to Dr. Stark, to Suburban Radiologic Consultants, to Fairview University, to Twin Cities Anesthesia, and to Allina Clinic.  Medica had also paid for treatment of the employee at Gravon=s Natural Chiropractic, but the judge denied reimbursement for that payment.  Although, as found by the judge at Finding 23, Medica had itself intervened in this matter, Twin Cities Anesthesia and Gravon Chiropractic, along with Medicare Part A/Noridian Administrative Services, were the only intervenors named on the judge=s findings and order.  Arguing that Medica neither appeared at the hearing nor made arrangements with the parties to waive its appearance, the employer contends that the judge=s award to Medica for its reimbursements was in direct contravention of explicit language in Minn. Stat. ' 176.361.  That statute provides in part that,  A[u]nless a stipulation has been signed and filed or the intervenor=s right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pretrial conferences, administrative conferences, and the hearing@ and that A[f]ailure to appear shall result in the denial of the claim for reimbursement.@  Minn. Stat. ' 176.361, subd. 4.  The employer contends that no evidence was introduced at hearing with respect to Medica=s interest about the treatment for which Medica had paid.

 

The posture of the litigation of any potential intervenor=s claim by Medica was complicated at the time of hearing of this matter.  It may be inferable, from the statements of the employer=s attorney at the start of the hearing and from the fact that Medica ultimately did file a Motion to Intervene, that Medica had received some sort of notice of its right to intervene shortly prior to the date of hearing - - May 27, 2004.  Medica filed its Motion to Intervene on June 10, 2004--fourteen days after the date of hearing and two days after the close of the record for this proceeding.  It is clear from the specifics of Finding 23 that the compensation judge considered the content of Medica=s motion although it was filed two days after close of the record.  Ostensibly the compensation judge should perhaps not have considered Medica=s motion two days after the record closed, but Minn. Stat. ' 176.361, subd. 2(a), provides that a potential intevenor has up to sixty days to apply for intervention from the date it is first served with notice of its right to intervene, and Medica may well have appeared to have filed its motion to intervene even more promptly than is required under the statute.  To that extent, it was perhaps not unreasonable for the compensation judge to try to resolve the issue in the manner in which he did.  Contrary to the arguments of the employee in her brief, however, the employer=s concession at hearing as to the reasonableness and necessity of Dr. Stark=s surgery does not necessarily embrace all of the several medical bills that Medica paid on behalf of the employee, and the filing of Medica=s motion to intervene subsequent to the close of the record did not permit the employer to properly assess and potentially contest the intervenor=s entire interest and claim.

 

Given that we cannot determine from the record whether or not Medica had proper opportunity to assert its claim in a timely fashion, and in that the post-close filing of its claim left the employer without proper opportunity to consider and assert its defenses, we vacate the judge=s Finding 23 and Order 7 and remand the unresolved intervention issues  to the compensation judge for rehearing and redetermination upon proper notice and opportunity for the parties to prepare their cases.