The employer and insurer appeal from the compensation judge’s findings that the employee has physical restrictions as a result of his October 2, 2007, personal injury; that the employee did not unreasonably refuse the employer’s June 13, 2008, job offer; and that the employee’s lack of an outside job search does not bar the receipt of temporary total disability benefits.  The employer and insurer also appeal the judge’s award of payment for a functional capacities evaluation.  We affirm.

Richard D. Hopkins, the employee, worked as a diesel mechanic for Road Equipment Parts Center, the employer, repairing semi tractors and trailers.  On October 2, 2007, the employee was removing a clutch pedal assembly from a semi truck, wedged underneath the steering wheel of the cab, between the seat and the pedals.  While pulling on the clutch pedal he felt a pop or pull in the low back with an immediate onset of low back pain.  The employer and insurer admitted liability for a personal injury in the nature of a lumbar strain/sprain.

The employee was seen at Now Care Medical Center the following day.  A lumbar strain was assessed.  He was given ibuprofen and was released to return to work with light-duty restrictions.  The employee returned for follow-up on October 8.  On examination, Dr. Michael Cowen noted tenderness to palpation along the right paraspinal musculature and midline spine with limited range of motion.  The doctor assessed an acute lumbosacral strain, prescribed a different anti-inflammatory medication and a muscle relaxant, and provided work restrictions.  Dr. Cowen observed the employee was going to work each day but was sent home by the employer because of his restrictions.  In follow-up on October 15, the employee reported no improvement and was having spasms with pain and tightness in the back.  He was referred for physical therapy and was again released with work restrictions.  On October 29, the employee was taken off work and referred to Dr. William Lohman, an occupational medicine specialist.

When seen by Dr. Lohman on November 7, the employee reported constant low back pain, rating the pain as 8 out of 10, and stated he was having considerable difficulty sleeping due to spasms in his back during the night.  On examination, Dr. Lohman noted spasm and tenderness in the paralumbar muscles and tenderness over the lumbar spine with moderate limitation of motion due to pain.  Dr. Lohman assessed mechanical low back pain due to soft tissue injury, continued physical therapy, and prescribed a muscle relaxant and Vicodin as needed for severe pain.  The doctor provided restrictions of no lifting over 20 pounds and no repetitive or sustained bending.  Dr. Lohman noted the employer would not accommodate restrictions and the employee had been off work since the injury.

The employee completed 22 physical therapy sessions and was seen in follow-up by Dr. Lohman on November 28 and December 19, 2007.  The employee continued to experience significant back pain, particularly with lifting activities.  The employee’s restrictions were continued with maximum lifting increased to 35 pounds.  Physical therapy was discontinued and the employee was referred for an MRI scan.  The scan, completed on December 24, 2007 showed Scheuermann-like changes with multi-level disc dehydration and degeneration.

In December 2007, the employer’s insurance carrier, EMC Insurance Companies, referred the case to CorVel Corporation for a rehabilitation consultation.  Aaron Schenck, a qualified rehabilitation consultant (QRC) with CorVel, concluded the employee was eligible for rehabilitation services.  A Rehabilitation Plan was prepared on January 2, 2008, with the goal of a return to work with the date-of-injury employer, full duty, pending medical clearance.  The QRC noted the employee had been released to work with restrictions, but the employer would not allow a return to work until the employee was released without restrictions.

On January 14, 2008, the employee was seen by Dr. Sherief Mikhail on referral from Dr. Lohman.  The employee continued to complain of intermittent low back pain with radicular-type symptoms in the left leg.  He stated his pain remained about the same, but intensified at night and worsened with physical activity.  On examination, there was point tenderness on palpation of the lumbosacral region, point tenderness and muscle tautness along the left lumbosacral region, tenderness along the left SI joint and left piriformis muscle, and reduced lumbar range of motion.  Dr. Mikhail assessed regional low back pain with deconditioning syndrome and recommended the MedX back rehabilitation program.  The doctor prescribed an anti-inflammatory, a muscle relaxant, and medications for pain relief.  The employee’s work restrictions were continued and case management was discussed with the employee and QRC Schenck.

The employee was seen in follow-up on February 7, February 28, and March 24, 2008.  Dr. Mikhail noted gradual improvement, but the employee continued to have left-sided back pain with involuntary muscle tautness and point tenderness in the left lumbosacral region.  The employee’s MedX rehabilitation program, medications and work restrictions were continued.  In his February 28, 2008, progress note, Mr. Schenck reported that, even when the employee was ready to return to full duty work, Dr. Mikhail suggested a progressive return to work, starting with working Monday and Wednesday the first week, increasing to Monday, Wednesday, Friday the second week and adding one day per week up to full time.  Mr. Schenk stated he discussed the possibility of a gradual return to work with the employer’s human resources manager who indicated a week of progressive work might be possible but it was unlikely the employer would accommodate more than that.

The employee returned to see Dr. Mikhail on April 17, 2008.  The employee continued to describe, on average, pain he rated as 3 to 4 out of 10.  His examination was unchanged.  The doctor noted the employee had reached a plateau with MedX and the program was discontinued.  The employee’s medications and work restrictions were continued.  In addition, the employee was to have a one-week at-home trial of H-wave electrical stimulation for the reduction of pain.  Dr. Mikhail stated a trial of on-the-job work conditioning was discussed if the H-wave unit reduced the employee’s discomfort to a 1 to 2 out of 10 level on a consistent basis.  In his April 17 progress note, QRC Schenck observed that both Dr. Mikhail and the therapist believed the employee was experiencing significant inflammation in the low back during physical activities, and, because of this, Dr. Mikhail did not want to release the employee to full duty.  QRC Schenck stated that a return to transitional work as discussed previously would be addressed at the employee’s next appointment, and if, the employee could not tolerate a return to work, Dr. Mikhail indicated a functional capacities evaluation (FCE) would be needed to establish permanent restrictions.

When seen on May 5, 2008, the employee continued to complain of discomfort rated at a 3 to 4 out of 10 and his examination remained unchanged.  Dr. Mikhail continued the employee’s medications and H-wave electrical stimulation.  The doctor ordered an FCE that was scheduled for May 28-30, 2008, and provided new work restrictions of occasional lift/carry and push/pull up to 50 pounds, occasional bending, twisting/turning, and kneeling/squatting, and frequent rotation of activities and positions.  QRC Schenck reported the H-wave unit provided temporary relief, but because the employee’s symptoms were returning to a level in the range of 5 out of 10 with activity, Dr. Mikhail did not feel comfortable releasing the employee to return to work even on a transitional basis without first obtaining an FCE.

The employee was examined by Dr. Jeffrey Nipper, an orthopedic surgeon, on May 30, 2008, at the request of the employer and insurer.  The doctor noted a normal neurologic examination and normal range of motion in the thoracolumbar region.  Dr. Nipper concluded the employee had residual subjective complaints without objective findings, had 0% permanent partial disability, had reached maximum medical improvement (MMI), and needed no work restrictions or limitations.  In his June 12, 2008, report QRC Schenck stated the insurer requested the FCE be cancelled.

On June 13, 2008, the employer’s human resource manager prepared a letter to the employee, advising the employee that, according to Dr. Nipper, he had reached MMI.  The letter further stated that Dr. Nipper

The employee testified that, although the focus of his rehabilitation plan remained a return to full duty work with the employer, he began an outside job search following his deposition on August 18, 2008.  He obtained employment with Auto Zone as a part-time counter person beginning on October 20.

The employee was last seen by Dr. Mikhail in follow-up on September 9, 2008.  The employee continued to rate his pain at 3 to 4 out of 10, and described the pain as intermittent to somewhat constant.  He was using the H-wave electrical stimulation twice a day, but had run out of his medications which were re-prescribed.  On exam, the doctor noted there continued to be involuntary muscle tautness and point tenderness in the lumbosacral region, left somewhat worse than right.  Dr. Mikhail again recommended an FCE to delineate a set of permanent restrictions for the employee, and continued the employee’s previous work restrictions.

The employer and insurer filed a Notice of Intention to Discontinue temporary total disability benefits (NOID) on June 17, 2008, based on Dr. Nipper’s report, asserting the employee had no physical restrictions and no permanent partial disability as a result of the personal injury, and that the employee had unreasonably refused a suitable job offer.  An administrative conference was held on July 15, 2008, following which the request to discontinue benefits was denied.  In the interim, on July 9, 2008, the employee filed a Medical Request seeking approval for an FCE as recommended by Dr. Mikhail.^[1]

A hearing was held before a compensation judge on October 31, 2008.  The compensation judge issued a Findings and Order on December 1, 2008, finding the employee continued to have physical restrictions, and that the employee was not barred from receipt of temporary total disability benefits based either on a failure to seek outside employment or an unreasonable refusal of a suitable job offer.  The judge also awarded payment for the requested FCE.  The employer and insurer appeal.

An employee is not entitled to temporary total disability if he or she is able to return to work without restrictions "having suffered no residual disability from his work injury."  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  The issue of whether the employee has any residual disability and is able to return to work without restrictions is a question of fact for the compensation judge to determine.  Hoy v. Employment Plus, slip op. (W.C.C.A. Sept. 3, 2003).  In this case, the compensation judge rejected Dr. Nipper’s opinion that the employee had no functional disability and needed no work restrictions and found persuasive Dr. Mikhail’s assessment of the employee’s condition and the doctor’s imposition of ongoing work restrictions.

The employer and insurer contend the compensation judge improperly relied upon Dr. Mikhail’s opinion.  They assert, first, that Dr. Mikhail’s examinations have been normal and there is no objective basis for his assignment of work restrictions.  In fact, Dr. Mikhail’s examination notes reflect symptoms of pain with persistent involuntary muscle tightness or tautness and point tenderness in the lumbosacral region.  “Objective clinical findings” include muscle spasm or involuntary muscle tightness in the paralumbar muscles.  See Minn. R. 5223.0390, subp. 3.B.; Minn. R. 5223.0020, subp. 30 (1992).

The appellants further contend that in April 2008 Dr. Mikhail released the employee for a trial of on-the-job work conditioning.  The appellants maintain Dr. Mikhail changed his mind at the employee’s May visit, recommending an FCE instead, although the condition precedent set for an FCE - - an attempt at transitional work - - had not been met.  This abrupt change in the doctor’s assessment of the employee’s condition and his recommendations, they argue, renders Dr. Mikhail’s opinion regarding physical restrictions not credible and lacking in foundation.  We disagree.

Dr. Mikhail’s chart notes and QRC Schenk’s progress notes clearly indicate that, as of the April 17, 2008, visit, the employee was to proceed with an at-home trial of H-wave electrical stimulation.  If the H-wave unit reduced the employee’s discomfort to a 1 to 2 out of 10 level on a consistent basis, a trial of on-the-job work conditioning would be discussed.  Dr. Mikhail did not change the employee’s restrictions or release the employee to transitional work in April.  When seen on May 5, 2008, the employee continued to complain of discomfort rated at a 3 to 4 out of 10 and his examination remained unchanged.  Dr. Mikhail provided new work restrictions of occasional lift/carry and push/pull up to 50 pounds, occasional bending, twisting/turning, and kneeling/squatting, and frequent rotation of activities and positions and ordered an FCE that was scheduled for May 28-30, 2008.  QRC Schenck reported the H-wave unit provided temporary relief, but because the employee’s symptoms were returning to a level in the range of 5 out of 10 with activity, Dr. Mikhail did not feel comfortable releasing the employee to return to work even on a transitional basis without first obtaining an FCE.

Finally, the employer and insurer argue the employee was not a credible witness and that Dr. Mikhail’s opinion lacks foundation as it is based on an inaccurate reporting of symptoms by the employee.  The compensation judge listened to the employee’s testimony, including cross-examination, and found the employee’s description of his ongoing symptoms credible.  Credibility determinations are for the compensation judge.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839‑40, 41 W.C.D. 79, 82 (Minn. 1988).  We find nothing in the record compelling us to overturn the compensation judge’s acceptance of the employee’s testimony.

While Dr. Nipper opined the employee had recovered from his injury with no need for work restrictions, Dr. Mikhail consistently imposed work restrictions based on his examinations of the employee.  The compensation judge found Dr. Mikhail’s records more compelling.  A compensation judge’s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by substantial evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The testimony of the employee and the records of Dr. Mikhail provide sufficient support for the compensation judge’s finding that the employee continues to have physical restrictions related to his personal injury.  We affirm.

The employer and insurer assert the employee unreasonably refused the employer’s job offer of June 13, 2008, and is barred from receipt of temporary total disability benefits pursuant to Minn. Stat. § 176.101, subd. 1(i).^[2]  The compensation judge disagreed, concluding that, while the offer appeared to be made in good faith, the offer was vague, was based on Dr. Nipper’s release to return to work without restrictions, and was not clearly within the restrictions provided by Dr. Mikhail.

The employer’s job offer was prepared within two weeks of Dr. Nipper’s examination of the employee.  The June 13, 2008, offer was clearly premised on Dr. Nipper’s opinion that the employee had “no functional impairments or other abnormalities keeping [him] from working” and the doctor’s release of the employee to full work duties without any restrictions.  (Resp. Ex. 2.)  All of the employee’s doctors and his QRC repeatedly noted the employer would not allow a return to work unless the employee was released to work without restrictions.

We have affirmed the compensation judge’s determination that the employee continued to have physical restrictions as established by Dr. Mikhail.  At the time of the job offer, these restrictions consisted of occasional lifting/carrying and pushing/pulling up to 50 pounds, occasional bending, twisting/turning, and kneeling/squatting, and frequent rotation of activities and positions.  The employee testified his job involved heavy lifting from 5 to 150 pounds, by himself.  Additionally, the job involved maneuvering into awkward positions, bending and twisting.  While the job offer stated the employer would “ease [the employee] back into [his] workload by starting with smaller, less demanding tasks” and “gradually build [his] work assignments up to expectation over a few weeks time,” there was no evidence the full duty return to work offered by the employer would accommodate the employee’s restrictions or a gradual return to work as previously suggested by Dr. Mikhail.

The rehabilitation plan in effect at the time provided for a return to work with the date-of-injury employer, full duty, pending medical clearance.  The offer was sent neither to the employee’s QRC nor to Dr. Mikhail and there is no evidence the job was within the employee’s physical restrictions as defined by Dr. Mikhail.  There is substantial evidence to support the compensation judge’s determination that the offer was not clearly within the employee’s restrictions and was not consistent with the rehabilitation plan.  We, accordingly, affirm.

The employer and insurer argue the employee is not entitled to temporary total disability benefits as he was released to work with restrictions from June 18 through September 16, 2008, but failed to conduct a job search until sometime after August 18, 2008.  We are not persuaded.

A rehabilitation plan was in place and the employee received rehabilitation assistance during the period at issue.  In such circumstances, this court has repeatedly stated that the issue is not so much whether the employee searched for work but whether the employee made a good faith effort to cooperate with rehabilitation efforts.  See, e.g., Boeder v. State, Dep’t of Natural Resources, 63 W.C.D. 634 (W.C.C.A. 2003); Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).  When rehabilitation services commenced in January 2008, the rehabilitation plan called for a return to work, full duty, with the date-of-injury employer.  QRC Schenck testified the goal of rehabilitation remained a return to work with the pre-injury employer as of the date of hearing.  There was no evidence that an outside job search was ever required as part of the rehabilitation plan or that the employee did not cooperate with the plan.  Nor is there any indication the employer or insurer requested modification of the rehabilitation plan to include an outside job search.  The employee, nonetheless, began a job search on his own in August 2008, and obtained work as a counter person at Auto Zone, a parts supply store, beginning on October 20, 2008.

The evidence supports the compensation judge’s finding that the employee’s lack of an outside job search prior to August 18, 2008, did not bar receipt of temporary total disability benefits from June 17 through September 16, 2008, and we affirm.

The appellants assert an FCE is not warranted and the compensation judge erred in ordering the employer and insurer to pay for one.  They argue the compensation judge should have accepted Dr. Nipper’s opinion that the employee does not have physical restrictions and that Dr. Mikhail’s opinions lack foundation.  We have addressed these contentions previously and have affirmed the compensation judge’s acceptance of Dr. Mikhail’s opinions regarding the employee’s medical condition and need for restrictions.

The employer and insurer contend that an FCE is not appropriate under a cost benefits analysis, asserting the employee’s MedX program included assessment of the employee’s physical capabilities, and that the employee is currently working rendering an FCE unnecessary.  The employee’s Auto Zone job is part-time with a wage of $8.40 per hour.  He was earning considerably more as a diesel mechanic and has repeatedly stated he hopes to return to such work.  The purpose of the FCE is to evaluate the employee’s physical capabilities and establish permanent work restrictions for the employee to guide his return to work.  The compensation judge concluded, accepting the recommendation of Dr. Mikhail, that given the heavy duty nature of the work performed by the employee for the employer, an FCE was reasonable and necessary.  There is substantial evidence to support this finding, and we must, therefore, affirm.