Eveleth Mines and St. Paul Travelers Insurance Company appeal the compensation judge’s finding that the employee is not permanently and totally disabled, and the judge’s award of attorney fees under Gruber v. Independent Sch. Dist. #625, 57 W.C.D. 284 (W.C.C.A. 1997).  The court affirms the finding that the employee is not permanently and totally disabled but reverses the award of Gruber fees.

Jack L. Kaufman, the employee, sustained a personal injury on December 21, 1980, while working for Eveleth Mines, the employer.  The employer and St. Paul Travelers Insurance Company admitted liability for the employee’s injury.  The employee’s weekly wage was $389.88.

The employee was hospitalized following his injury.  The diagnosis was a basilar skull fracture, hemotympanum on the left and cervical and low back injuries.  Following initial treatment, the employee continued to receive treatment for post-spinal headaches, left hearing loss and his spinal injuries.  The employee’s low back symptoms were substantially relieved by extensive physical therapy.  Following conservative treatment, the employee underwent an anterior cervical discectomy at C6-7 in April 1984.  In 1986, the employee suffered a single generalized grand mal seizure.  He was prescribed medication and has been free of seizure problems since 1986.

Dr. Allan P. Ingenito examined the employee in July 1988 at the request of the employer and insurer.  The doctor opined there was no reason the employee could not return to work, at least on a part-time basis, gradually increasing his level of activity.  Dr. Ingenito believed a work-hardening program would be appropriate, starting at three to four hours a day in a non-stressful, light-duty job, gradually increasing the physical and temporal demands over six months.  The doctor also recommended evaluation at a pain clinic because, in his opinion, the employee’s psychological status was significantly contributing to his continued symptoms and disability.  (Resp. Ex. 3-10.)

The employee had returned to work for the employer for a short period of time in April 1981, but the noise and vibration made the job difficult for the employee.  Thereafter, the employee did not work except for several months of work hardening and a six to eight month period in 1984-1985 when he sold gambling devices such as pull-tabs.  The employee stated the driving and time on his feet were too much for his low back and neck and he left the job.  In 1993, the employee applied for Social Security disability benefits which were denied.  In September 2001, the employee became 62 years old and began receiving Social Security retirement benefits.

The insurer commenced payment of temporary total disability benefits in 1980 and continued to make payments nearly continuously through the date of the hearing.  In May 2004, the employer and insurer filed a petition seeking a determination that the employee was permanently and totally disabled, entitling the insurer to reduce the amount of the employee’s weekly disability benefit by his Social Security retirement benefit.  See Minn. Stat. § 176.101, subd. 4 (1980).  The employer and insurer contended, applying the Social Security offset provisions, that the employee had received an overpayment of benefits in excess of $22,000.00.  In the petition, the employer and insurer stated that upon learning of the employee’s receipt of Social Security benefits, they commenced taking the statutory offset, plus a credit of 20 percent for an overpayment under Minn. Stat. § 176.179.

In March 2005, the employee filed a rehabilitation request seeking a rehabilitation consultation.  By a Decision and Order, served and filed May 18, 2005, Compensation Judge Penny Johnson determined the employee was entitled to a rehabilitation consultation.  On June 1, 2005, Kim Eisenhuth, a qualified rehabilitation consultant, (QRC), met with the employee for a rehabilitation consultation.  Following that interview, Ms. Eisenhuth concluded the employee was eligible for rehabilitation services and then developed a rehabilitation plan with the goal of a return to work with a different employer.  The QRC testified that with some skill enhancement, perhaps in the field of computers, the employee would have a wide variety of full and part-time jobs available to him.

Dr. Paul Cederberg, an orthopedic surgeon, examined the employee on July 5, 2005, at the request of the employer and insurer.  The doctor diagnosed a basilar skull fracture with left ear hearing loss, cervical strain and cervical disc syndrome at C6-7, lumbar spine superimposed on presumed lumbar degenerative disc disease and history of closed-head injury with loss of taste, smell and balance.  Dr. Cederberg opined the employee had a 10-pound lifting restriction on a frequent basis with no more than 20 pounds of lifting occasionally.  Based upon the employee’s medical condition and his subjective complaints, the doctor opined the employee was functionally disabled from sustained gainful employment.

L. David Russell performed a vocational evaluation of the employee on June 7, 2005.  Mr. Russell obtained an employment history from the employee, administered vocational tests and reviewed the employee’s medical records.  Mr. Russell further noted the employee had participated in rehabilitation efforts in the 1980s that were unsuccessful.  Mr. Russell reported the employee was then 65 years of age which he stated is a significant adverse vocational factor.  Mr. Russell further stated the employee tested in the average to low average range but with low verbal reasoning skills.  An aptitude test, however, showed strength in spacial relations, mechanical reasoning and manual speed and dexterity.  Mr. Russell concluded the employee has been permanently and totally disabled from substantial gainful employment since at least September 2001.

The employee testified that after he left his job selling gambling devices, he was unemployed for approximately 17 years.  Commencing in the summer of 2004, the employee secured several jobs.  He mowed the lawn at Omar Chain Saw Sales, cleaned up after special events at the Airway Inn, and set up for bingo at the VFW on a weekly basis for several months.  The employee also volunteered at a nursing home taking patients on shopping trips.  The employee testified he generally followed a 10 pound lifting restriction although he occasionally would lift more than that.  The employee stated sitting and standing were a problem as was prolonged walking.

Following a hearing, the compensation judge determined a finding of permanent total disability was premature pending a job search by the employee with the assistance of a QRC.  Accordingly, the compensation judge denied the employer and insurer’s petition to find the employee permanently and totally disabled.  The compensation judge further concluded the employee’s attorney was entitled to fees under Gruber v. Independent School Dist. #625, 57 W.C.D. 284 (W.C.C.A. 1997).  The employer and insurer appeal.

It is a basic tenet of workers’ compensation law that the substantive rights of the employer and employee are fixed by the law in effect on the date of the controlling event.  Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (1987).  The employee was injured in 1980 and has not sustained any subsequent work injuries.  Minn. Stat. § 176.101, subd. 5 (1980) defines total disability as “any other injury which totally incapacitates the employee from working at an occupation which brings him an income.”  In Schulte v. C. H. Peterson Constr. Co., 153 N.W.2d 130, 278 Minn. 79, 24 W.C.D. 290 (1967), the Minnesota Supreme Court stated, “a person is totally disabled if his physical condition, in combination with his age, training and experience, and the type of work available in his community, cause him to be unable to secure anything more than sporadic employment resulting in insubstantial income.”  Minn. Stat. § 176.101, subd. 4 (1980), provided that after an employee had been paid $25,000.00 in permanent total disability benefits, the amount of the weekly compensation benefits being paid by the employer shall be reduced by the amount of any old age and survivor insurance benefits received by the employee.^[1]

The compensation judge concluded a finding of a permanent total disability was premature pending a job search by the employee with the assistance of a rehabilitation consultant.  The appellants argue this finding is manifestly contrary to the evidence.  The employer and insurer argue the compensation judge’s decision was based on the testimony of Kim Eisenhuth which, the they contend, lacked foundation and was speculative.  The appellants contend Ms. Eisenhuth did not perform any vocational testing or a labor market survey.  Further, the appellant’s argue, Ms. Eisenhuth’s testimony that jobs are available for the employee was vague, speculative and lacked any substantive explanation about any specific job in the labor market area.  We are not persuaded.

Expert opinion is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” and the “witness [is] qualified as an expert by knowledge, skill, experience, training or education.”  Minn. R. Evid. 702; Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757 (Minn. 1998).  The knowledge requirement may be satisfied by either formal education or sufficient occupational experience.  Kastner v. Wermerskirschen, 295 Minn. 391, 205 N.W.2d 336 (1973).

There is no dispute Ms. Eisenhuth is a licensed qualified rehabilitation consultant with education, training and experience in the field.  The appellants argue, however, Ms. Eisenhuth’s opinions were without foundation because she lacked sufficient information to form a valid opinion.  Specifically, they contend the QRC’s failure to review the employee’s medical records together with her failure to perform any vocational testing and a labor market survey disqualify her from testifying as an expert.  We disagree.  While it does not appear Ms. Eisenhuth reviewed the employee’s medical records, she obtained a medical history from the employee and the employee described his tolerance for various activities such as sitting, standing, and walking.  In her initial consultation report, the QRC recommended the employee’s work restrictions be clarified.

Although Ms. Eisenhuth did not perform any vocational testing or a labor market survey, we can not conclude, in this case, such a failure renders her opinions without foundation.  The QRC testified she has done job placement in the Hibbing area and is familiar with the labor market.  She further testified she discussed the employee’s case with a job placement specialist in her office and concluded there were job opportunities available to the employee.  Certainly, vocational testing and a labor market survey would be relevant evidence.  In this case, however, we cannot conclude the QRC’s failure to obtain such evidence renders her testimony without foundation.  Rather, the lack of testing and a labor market survey goes to the weight to be afforded the opinions rather than their admissibility.  Compare Drew v. Kohls’, 55 W.C.D. 40 (W.C.C.A. 1996).

The appellant argues the employee’s admitted physical limitations are consistent with Dr. Cederberg’s opinion that the employee does not have the physical ability to perform sustained, gainful employment.  They further argue the employee has very limited transferrable skills and has not been gainfully employed for more than 17 years.  Finally, the employee is more than 65 years of age which they contend is also a significant handicap to employment.  The appellants also assert the opinions of Mr. Russell are more consistent with the facts than those of Ms. Eisenhuth.  The reality of the situation, the appellants argue, is that the employee is permanently and totally disabled and the compensation judge erred in finding otherwise.  We are not persuaded.  While there certainly is evidence of record which would support a different result in this case, it is not this court’s function to assess whether substantial evidence might support a factual conclusion contrary to that reached by the compensation judge.  Whether this court might view the evidence differently is not the point.  Rather, the question is whether the findings of the compensation judge are supported by evidence that a reasonable mind could accept as adequate.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  In this case, we conclude there is substantial evidence to support the findings of the compensation judge.

The employee was released to return to work with restrictions by Dr. Ingenito.  While Dr. Cederberg opined the employee was totally disabled from sustained, gainful employment, the compensation judge did not accept his opinion.  It is the compensation judge’s responsibility as a trier of fact to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).  The compensation judge accepted the vocational opinion of QRC Eisenhuth that, despite significant barriers to employment, there is a reasonable prospect the employee can obtain employment with appropriate specialized job placement services.  Given these facts, the compensation judge could reasonably conclude it is premature to find the employee permanently and totally disabled.  The compensation judge’s findings are supported by substantial evidence of record, and the decision is accordingly affirmed.

The compensation judge found the employee’s attorney is entitled to reasonable attorney fees in the nature of a Gruber fee.  The employer and insurer appeal this finding arguing there is a benefit flowing to the employee from which a contingent fee may be paid.  The employee responds that because this case does not raise the issue of entitlement to new benefits, no monetary benefits are available from which to pay a contingent fee.  Thus, the employee argues, a Gruber fee is appropriate.  Further, the employee contends Gruber fees are necessary to avoid further economic hardship to the employee.

In Gruber v. Independent Sch. Dist. #625, 57 W.C.D. 284 (W.C.C.A. 1997), the self-insured employer sought to discontinue temporary total disability benefits on the ground that the employee had fully recovered from his work injuries.  The employer further sought reimbursement of wage loss benefits paid, alleging the employee had received those benefits in bad faith.  The employee prevailed on the reimbursement claim.  In holding the employee’s attorney was entitled to an hourly fee for representation of the employee on bad faith issue, this court held,

The Gruber decision has been limited by this court to cases in which the employee prevailed in an action to defend against an allegation of a bad faith receipt of benefits.  See Wesley v. Wise Way Motor Freight, slip op. (W.C.C.A. Nov. 8, 2000).  In their petition, the appellants did not contend the employee received benefits in bad faith.  Rather, they contended the employee was permanently and totally disabled, entitling the insurer to reduce the compensation benefit by the employee’s Social Security benefit.  This court has also limited the application of Gruber to those cases where the contingency fee available, if any, was insufficient to reasonably compensate the employee’s attorney for the time expended in defending the bad faith issue.  See Johnson v. Apple Valley Health Care Center, 63 W.C.D. 434 (W.C.C.A. 2003).  The employee is receiving temporary total disability benefits.  Thus, there is a stream of benefits from which the employee’s attorney may receive an attorney fee.  See Moe v. Didd, Inc., slip op. (W.C.C.A. Mar. 14, 2001).  There is no claim here that the contingency fee available is insufficient to reasonably compensate the employee’s attorney.

In Barry v. Northern States Power Co., slip op. (W.C.C.A. May 8, 2000), the self-insured employer filed a petition to have the employee declared permanently and totally disabled as of December 31, 1991.  The employee began receiving Social Security disability benefits on May 29, 1992, and the employer contended that by reason of the offset provision contained in Minn. Stat. § 176.101, sub. 4, the employee had received an overpayment of benefits.  A compensation judge found the employee had been permanently and totally disabled since May 29, 1992, and neither party appealed that decision.  Thereafter, the employee’s attorney sought hourly fees to be paid by the employer pursuant to Gruber.  Following a hearing on the fee petition, the compensation judge denied the employee’s claim for Gruber fees.  The employee appealed contending the holding in Gruber should be extended to the present matter because the efforts of the employee’s attorney did not result in any additional payment of workers’ compensation benefits to the employee.  This court declined to extend Gruber to the facts of the case because the employee was receiving a stream of benefits from which attorney fees could be deducted. 
This court similarly declines to extend Gruber to the facts of this case.  The compensation judge’s finding that the employee is entitled to an attorney fee under Gruber v. Independent School District #625, is reversed.