The employer and insurer appeal from the compensation judge’s finding that the employee has been permanently and totally disabled since April 18, 2005, and that the employee’s March 25, 2003, personal injury is a substantial contributing cause of that disability.  We affirm as modified.

Darryl R. Krueger, the employee, began working as a salesman for Ritter Agri Sales, Inc., in January 1998.  The employee sold and serviced chemical hose sprayers and sprayer parts.  On March 25, 2003, while working at the top of a boom sprayer, the employee fell approximately twelve feet from a ladder onto a cement floor, landing on his buttocks and left elbow.  The employer and insurer admitted liability for a personal injury.  On that date, the employee’s weekly wage with the employer was $607.02.

The employee was seen by Dr. Thomas Koehnen at the Trimont Clinic on the day of the injury.  The doctor recorded significant pain when trying to stand up straight, difficulty with ambulation and lower leg weakness.  Dr. Koehnen referred the employee to Fairmont Orthopedics & Sports Medicine for immediate orthopedic evaluation and to Dr. Gregory Thompson, a neurosurgeon.  An MRI scan on March 25, 2003, showed grade 1 spondylolisthesis at L5-S1 with bilateral spondylolysis.  On April 2, 2003, the employee was examined by Dr. Thompson.  The doctor diagnosed severe acute low back pain and traumatic spondylolysis of L5 on the right, and prescribed conservative treatment including medication, physical therapy and light-duty work.  The employee continued to perform his job with the employer following his work injury with modifications.

The employee returned to Dr. Thompson on May 21, 2003, complaining of low back and mid-thoracic pain and spasm.  The doctor’s diagnosis was chronic progressive low back pain.  On July 2, 2003, Dr. Thompson noted the employee’s low back pain was slowly improving and the majority of his pain was now in the mid-thoracic spine in and around the T8 region.  A July 14, 2003, MRI scan of the thoracic spine showed disc space narrowing and dehydration at T9-10.  Dr. Thompson additionally noted a lesion at T5-6 dorsal and to the left side.  The doctor concluded the employee’s thoracic pain was musculoskeletal in nature.

The employee returned to see Dr. Thompson on August 11, 2003, reporting persistent low back and severe mid-thoracic pain.  The employee stated he had been unable to return to full-duty employment and reported that any bending or lifting at work incapacitated him.  Dr. Thompson referred the employee to Medical Advanced Pain Specialists (MAPS) for evaluation and treatment.  The employee subsequently underwent thoracic trigger point injections at MAPS.

Dr. Joel Gedan, a neurologist, examined the employee in January 2004 at the request of the employer and insurer.  The employee complained of severe mid and low back pain.  Dr. Gedan diagnosed a grade 1 spondylolisthesis of L5 on S1 with a possible spondylolysis with a pars defect at L5 secondary to the March 25, 2003, personal injury.  Dr. Gedan found no objective findings consistent with the employee’s thoracic spine complaints and concluded the employee’s mid back complaints were not causally related to the work injury of March 25, 2003.  The doctor rated a 15% permanent partial disability for the employee’s lumbar spine condition and provided restrictions relating to the low back of no repetitive bending, twisting, or turning at the waist and occasional lifting of up to 25 pounds.

The employee returned to Dr. Thompson in May 2004, stating his pain had not improved with the trigger-point injections.  The employee described mid-thoracic pain extending into the lumbosacral junction and described numbness and loss of control in his hands and feet.  Dr. Thompson diagnosed severe chronic pain without significant improvement.  On July 27, 2004, Dr. Thompson recommended evaluation at the Fairview Pain Management Clinic.

In October 2004, the employee was evaluated at Fairview-University Medical Center for his chronic low back and thoracic pain.  The doctor diagnosed a chronic pain syndrome and recommended the Fairview pain management program, which the employee commenced.  In December 2004, the employee was seen by Barbara St. Marie, CNP, who followed the employee through his treatment at the Fairview pain clinic.  Ms. St. Marie recommended a repeat thoracic MRI scan which showed a desiccated disc at T6-7 with a tiny central herniation mid and slightly to the left and multi-level degenerative disc changes in the mid and lower thoracic spine.

The employee was examined by Dr. Mark Larkins, a neurosurgeon, in February 2005 at the request of the employer and insurer.  Dr. Larkins concluded the radiographic findings were consistent with an L5 spondylolysis pars defect.  The doctor diagnosed a complex pain syndrome centering around the employee’s coccyx and lumbar spine, and opined the March 25, 2003, injury was a prolonged temporary aggravation of an underlying congenital pars defect.  Dr. Larkins provided work restrictions related to the low back of avoid working at heights, avoid repetitive lifting and bending, and avoid lifting over 20 pounds.

In March 2005, the employee was referred by the Fairview pain clinic to Dr. Paul Tuite, a neurologist, for evaluation of his muscle spasms.  The doctor diagnosed dystonic spasm^[1] with pain syndrome, but found no neurologic basis for the employee’s condition.  Dr. Tuite noted the employee’s “speech impairment which varies from grunting to repetitive type palilalic speech.” (Resp. Ex. 18.)  On April 11, 2005, Ms. St. Marie reported the employee’s back spasms were so severe his participation in the pain program was terminated.  She opined it was not then possible for the employee to continue working.  The employee terminated his employment with the employer effective April 18, 2005, and did not thereafter look for other employment.

Ms. St. Marie referred the employee to Dr. Dennis Dykstra at the Fairview-University Medical Center.  The employee was seen on May 23, 2005, and was referred by Dr. Dykstra to physical therapy for thoracic myofascial evaluation and treatment.  On August 15, 2005, Dr. Dykstra referred the employee to Dr. Mark Stuckey, a pain specialist at the clinic.  The employee saw Dr. Stuckey on October 25, 2005, reporting mid and low back pain with severe, episodic muscle spasms and tic-like movements of the head and neck associated with a stuttering-type of speech.  The employee reported the more activity he engaged in the more severe the spasms became.  In a report dated February 9, 2006, Dr. Stuckey concluded the employee sustained a cervical spinal cord injury on March 25, 2003, and rated a 58.5% whole body permanent partial disability.^[2]  Dr. Stuckey opined the employee was, at that point in time, totally disabled from any work because of his ongoing spasms and neurologic symptoms.  In addition, the doctor stated, the medication prescribed to control the employee’s symptoms and pain had side effects that made it difficult for the employee to function in a work environment.  Accordingly, Dr. Stuckey concluded the employee was completely disabled from any gainful type of employment.

Dr. Larkins reexamined the employee on December 13, 2005.  The doctor noted the February 2005 evaluation focused on the low back and the employee’s cervical complaints, reiterating it was his opinion the employee had not sustained a cervical injury related to the March 25, 2003, injury.  Dr. Larkins noted the primary locale of the employee’s pain appeared to have moved into the thoracic spine whereas the employee had minimal thoracic complaints in February 2005.  On examination, the employee reported severe pain to palpation at T6 which the doctor noted was somewhat different from his first examination when the tenderness was at T12.  The doctor additionally reported the employee “has this startling speech problem where he just grunts and lets out what appear to be involuntary sounds.”  (Resp. Ex. 4.)  He observed the development of the speech condition was profound since his last examination.  Dr. Larkins also noted  the employee had diminished hearing on the right and was basically deaf in that ear.  The doctor again opined the March 2003 injury caused a temporary aggravation of a congenital L5 pars defect and a coccygeal contusion that had, by that time, resolved.  Dr. Larkins opined the employee had sustained no permanent disability, required no restrictions, and had  not been totally disabled since April 18, 2005, as a result of the personal injury.  Dr. Larkins noted the employee had no thoracic complaints until approximately two months after the March 2003 fall, and based upon the delay in the onset of symptoms and the changing location and nature of the symptoms, opined the employee’s thoracic complaints were not related to the March 2003 injury.

Dr. Richard Galbraith, a neurologist, examined the employee in May 2006 at the request of the employer and insurer.  With respect to the March 23, 2003, injury, the doctor diagnosed a lumber sprain and contusion of the left hip and low back, all of which resolved after six weeks.  Dr. Galbraith noted, based on the medical records, the employee did not complain of mid back pain until six weeks after the injury and concluded the mid back pain was not related to the personal injury.  The doctor opined the employee sustained no permanent disability, had no restrictions, and was not permanently and totally disabled by reason of the March 2003 work injury.

At the time of his injury, the employee resided in Welcome, Minnesota, located west of Fairmont, Minnesota.  For most of his life, the employee was actively engaged in farming on the family farm.  Prior to his personal injury, the employee raised corn and soybeans on 150 acres he rented from his mother and his aunt.  In about 1990, the employee took over his father’s business selling seed corn and soybeans for Golden Harvest Seed.  The employee ordered the seed on-line, the seed was delivered to and stored at his farm, and was then sold and delivered to local farmers.  Prior to his injury, the employee also sold corn-burning fireplaces, furnaces and boilers.  The employee purchased the inventory and then resold the items.  The employee left the employ of the employer in April 2005, but continued his self-employment and farming.

Ms. Jan Lowe, a qualified rehabilitation consultant, performed a vocational evaluation  of the employee in January 2006 at the request of the employer and insurer.  Ms. Lowe interviewed the employee, administered vocational tests, and reviewed the relevant medical records.  Based on the employee’s work-related restrictions and physical capacities, as defined by Dr. Gedan and Dr. Larkins, Ms. Lowe opined the employee was employable and was not permanently and totally disabled.  She stated the employee had demonstrated sales ability based on his work history and the level of gross income generated in his self-employment activities.  Ms. Lowe opined the employee had an earning capacity of at least $30,000.00 per year and stated there were a number of jobs the employee could do, available in his geographic area, including sales and management positions.

Ms. Cathrine Tuff, a qualified rehabilitation consultant, conducted a vocational evaluation on behalf of the employee in January 2006 and her deposition was taken in May 2006.  Ms. Tuff interviewed the employee and reviewed medical records that she concluded demonstrated an ongoing chronic pain syndrome unresponsive to treatment.  Ms. Tuff noted the employee was then 52 years of age and resided on a 150 acre farm that he rented from his mother and his aunt.  Ms. Tuff concluded the employee was not capable of sustained employment because he was not physically capable of functioning on a long-term basis at a level which would keep him competitively employed.

The employee filed a claim petition seeking temporary partial, permanent total, and permanent partial disability benefits and payment of medical expenses.  Following a hearing, the compensation judge found the employee sustained a permanent injury to the lumbar and thoracic spines as a result of the March 25, 2003, incident,^[3] and awarded a 15% permanent partial disability relative to the lumbar spine and a 5% permanent partial disability relative to the thoracic spine.  The compensation judge further concluded the employee’s self-employment had never been profitable and did not demonstrate an ability to perform sustained gainful employment, and found the employee was permanently and totally disabled effective April 18, 2005, as a result of the March 2003 personal injury.  The employer and insurer appealed the compensation judge’s decision.

In a decision served and filed August 29, 2007, this court affirmed the finding of permanent injury to the lumbar and thoracic spines and the finding of a 5% permanency relative to the thoracic spine.^[4]  The court, however, reversed the compensation judge’s finding that the employee’s March 2003 personal injury caused spasms and tics that caused the employee’s stuttering based on a lack of medical evidence to support the finding.  Additionally, the court noted the compensation judge made no finding regarding what restrictions or limitations, if any, were attributable to the employee’s thoracic and lumbar spine condition and stated the court could not, accordingly, determine what the work injury contributed to the employee’s inability to work, if anything.  The court further concluded the issue of whether the employee’s self-employment was anything more than sporadic employment resulting in an insubstantial income remained  unresolved, thus, the court could not determine whether substantial evidence supported the finding that the employee was permanently and totally disabled.  Accordingly, the court remanded the case to the compensation judge for further findings.

The compensation judge conducted a second hearing on April 4, 2008.  The employee, Cathrine Tuff, and Jan Lowe testified at the hearing.  The compensation judge received into evidence additional medical records, the deposition of Dr. Stuckey taken March 26, 2008, the employee’s 2006 and 2007 tax returns, 2005 through 2008 farm bank account statements, and business records from LDJ Manufacturing and Golden Harvest Seed.

Following the first hearing on August 16, 2006, the employee continued to receive physical therapy in Fairmont, two to three times per week, as ordered by Dr. Dykstra.  An October 2006 evaluation report indicated the employee continued to experience persistent, intense pain in the mid-thoracic region and his activities of daily living were severely limited due to dystonia, muscle spasms and pain.  Michael Kern, the therapist, noted the employee recently had been placed on Methadone for pain.  In February 2007, Mr. Kern noted the focus of therapy was primarily on the lumbar and thoracic areas.  He observed an attempt was made to decrease physical therapy to one time a week, but it had not gone well.  In June 2007, the employee was being seen once every two weeks and the therapist noted the employee’s muscle spasms had decreased in frequency, intensity, and length of duration, but his mid-thoracic pain was unchanged.  The employee experienced a gradual increase in  his symptoms, and therapy was increased to once a week by the end of July.  As of December 5, 2007, the employee was again being seen every one to two weeks for treatment to the mid-back and lumbar spine.

A second deposition of Dr. Stuckey was taken on March 26, 2008.  The doctor testified he last examined the employee on September 19, 2006.  The doctor again opined the employee had a dystonia due to a spinal cord injury involving the cervical spine, and opined the employee’s thoracic and low back injuries were disabling.  He noted persistent difficulty controlling the employee’s thoracic pain, and stated the medications the employee was taking had significant side effects, including sleepiness, grogginess, and cognitive impairment.  Dr. Stuckey further testified the employee’s thoracic and lumbar injuries alone contributed significantly to his disability, and opined the employee’s symptoms have been of such severity and duration that the employee was incapable of sustained gainful employment.

As of the date of the second hearing, the employee was 54 years old.  He stated he is currently taking Methadone for pain and Zanaflex, a muscle relaxant.  He testified he continues to have muscle spasms and is in constant pain and that the primary area affected is the middle of his back.  The employee testified Dr. Stuckey remains his treating physician and continues to renew his prescriptions, although he has not seen Dr. Stuckey since September 2006.  The employee testified he generally sits for a little while or walks for a while, pacing around the house.  He stated he cannot stand or sit comfortably, but is always moving somehow and can never do anything for very long.  The employee testified he no longer does any long-term driving and even as a passenger needs to take intermittent rests and stretch to relieve his symptoms.  The employee testified the therapy has lessened his back spasms, but stated he still has continual pain.  He stated he is able to sleep only a couple of hours at a time and then is awakened by back spasms; he never feels rested and always feels fatigued.  The employee does not believe he is able to work on a sustained basis.

After leaving the employ of Ritter Agri Sales in April 2005, the employee continued to farm and sell seed and corn-burning furnaces and boilers.  The employee testified he stopped selling seed for Golden Harvest at the end of 2006 and as of the date of the hearing, he owed Golden Harvest in excess of $20,000.00.  The employee testified he continued to sell corn stoves in 2006, but had not been a dealer since the end of 2006 and was not marketing his remaining inventory.  The employee testified he continued to farm the 150 acre family farm, “technically,” but since 2006 has had to hire everything out because he can no longer do the physical work himself.

Statements from the employee’s Midwest Bank farm account from 2005 through January 2008 and the employee’s 2006 and 2007 tax returns were introduced at the second hearing.  The employee testified all monies from farming and his other businesses were deposited in the farm account.  In the years 2006 and 2007, the employee and his spouse filed a joint tax return.  Each tax return contained a Schedule F - Profit or Loss from Farming.  In 2006, Schedule F reflected gross income of $114,293.00 and expenses of $134,066.00 for a net loss of $19,773.00.  In 2006, the employee testified he cashed four IRA accounts totaling $21,140.00 which he used to pay living expenses.  In 2007, Schedule F reflected gross income of $73,901.00 and expenses of $67,653.00, for a net profit of $6,248.00.^[5]

Ms. Tuff reviewed additional medical records, Dr. Stuckey’s 2008 deposition, the employee’s 2006 and 2007 tax returns, and a labor market survey prepared by an associate of Ms. Jan Lowe.  In addition, Ms. Tuff was present in the courtroom for the employee’s testimony at the second hearing.  Based upon that background, Ms. Tuff again testified the employee was permanently and totally disabled.  She stated the employment the employee had was not what she would consider competitive, sustained or gainful employment, but was sporadic.  Ms. Tuff stated by sustained she meant the employee’s ability to get up and go to work on a daily basis and continue to do so day after day.  Ms. Tuff testified the employee would have difficulty obtaining sustained, gainful employment because of his speech problems, muscle spasms, medications, and his level of pain.

Jan Lowe testified she reviewed the employee’s tax records and bank statements, obtained an updated labor market survey for the Welcome/Fairmont area in March 2008, and heard the employee testify at the second hearing.  She stated she found a pattern of job openings in the area  that met the employee’s vocational and physical qualifications, both in 2006 and 2008, based on the work-related restrictions provided by Dr. Gedan and Dr. Larkin.  Ms. Lowe again opined the employee was not permanently and totally disabled because he was physically able to perform light work and because he demonstrated an ability to generate high levels of gross revenues in farming, seed corn, and furnace operations.

Following the hearing, the compensation judge issued a findings and order on remand.  The judge found that as a result of his work-related lumbar and thoracic injuries, the employee has trouble bending and lifting and is specifically subject to restrictions as a result of his lumbar and thoracic spine injuries of no lifting over 20 pounds and avoiding repetitive lifting and bending and working at heights.  In addition, the judge found the employee cannot stay in one position long and must constantly change positions from sitting to standing to lying down to walking or pacing.  He also has trouble concentrating because of the medication he takes for the pain and lack of sleep.

In addition to the restrictions from the employee’s work injuries, the judge found the employee has non-work medical conditions that contribute to his disability including deafness in one ear, cervical spine problems, numbness and tingling in his hands, and dystonic spasms which cause the employee to stutter when he talks.  The judge found the employee had been permanently and totally disabled since April 18, 2005, and that the disability resulting from his work-related injury to the thoracic and lumbar spines was a substantial contributing cause of the employee’s inability to work.

The judge further found that after April 18, 2005, the employee continued to operate several side businesses for several years, including running the family farm and the sale of seed and corn furnaces and boilers.  The judge found that since the previous hearing, the employee had stopped selling corn stoves because the market dried up, and had stopped selling seed because of his physical condition, but continued to operate the farm, albeit entirely on paper because he could no longer do the physical work himself.  The judge found the employee’s self-employment “has not been very profitable.  In fact, only in 2007 was a profit reported for tax purposes and that profit was only $6,248 for the year.”  (Finding 14.)   The judge found the employee’s self-employment activities were nothing more than sporadic employment resulting in an insubstantial income.  Accordingly, the compensation judge ordered the employer and insurer to pay permanent total disability benefits to the employee from and after April 18, 2005.  The employer and insurer again appeal.

The employer and insurer contend that substantial evidence does not support the compensation judge’s determination that the employee is permanently and totally disabled as a result of the March 25, 2003, work injury.  Specifically, the appellants contend the judge erred in finding permanent and total disability based upon the opinions of Dr. Larkins and Dr. Stuckey.

The compensation judge found the employee was unable to work, stating that Dr. Larkins and Dr. Stuckey agreed the employee was unable to perform sustained, gainful employment as a result of his combination of disabilities.  (Finding 9, Mem. at 4-5.)  Dr. Larkins, in his December 13, 2005, report, opined the employee’s thoracic region complaints were not causally related to the work injury of March 25, 2003, and that the employee’s work-related injury was a temporary aggravation of an L5 pars defect and coccygeal contusion that had, by that time, resolved.  The compensation judge rejected Dr. Larkins causation opinion, finding the employee suffered permanent injury to the thoracic and lumbar spines as a result of the March 2003 personal injury, a finding this court previously affirmed.  Dr. Larkins, based on his conclusions regarding the nature of the employee’s personal injury, stated “with specific regard to the injury sustained on March 25, 2003,” he did not believe the employee had been temporarily and totally disabled from employment from April 18, 2005, to the present.  Dr. Larkins went on to state, however, that “[a]t this point, it would appear [the employee] has more of a complex pain syndrome,” and that,

It is well established that an employee need not prove that the work-related injury was the sole cause of the disability.  It is only necessary to show that the injury was an appreciable or substantial contributing cause.  Salmon v. Wheelabrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987), citing Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964).^[6]  The question is, then, whether there is substantial evidence to support the compensation judge’s finding that the  employee’s lumbar and thoracic spine injury was a substantial contributing cause of his disability and inability to work.  The employer and insurer argue the judge erroneously relied on the opinion of Dr. Stuckey.  They assert that at no time since Dr. Stuckey’s opinions were specifically rejected by this court, did the doctor opine the employee was permanently and totally disabled because of the admitted thoracic and low back injury of March 25, 2003.  Rather, the appellants argue the primary cause of any inability to work is the result of the non-work related dystonia and its sequela.

Medically, this is a very complex case.  There is no dispute the employee injured his lumbar spine on March 25, 2003.  As a result of that injury, the employee sustained whole body disability under Minn. R. 5223.0390, subp. 2.B.(3), for a vertebral fracture involving the posterior elements with x-ray evidence of dislocation and reduction is not normal.  As the result of his lumbar spine injury, the employee has restrictions of no lifting over 25 pounds and avoidance of repetitive  bending and lifting.

More contentious is the question of the nature and extent of the employee’s thoracic spine injury.  In the 2006 findings and order, the compensation judge found the 2003 personal injury resulted in an injury to the employee’s thoracic spine.  The compensation judge found, in 2006, that the employee had a 5% permanent partial disability of the thoracic spine for radicular pain in the thoracic area with persistent objective findings including involuntary muscle tightness and spasm in the paradorsal muscles and a thoracic abnormality on MRI scan.  At the 2006 hearing, the employee claimed a number of other symptoms resulted from his personal injury, including spasms and verbal tics related to his thoracic injury, and claimed permanent partial disability for a variety of functional impairments.  The compensation judge denied most of the claims for permanent partial disability, but found that the symptoms from the work injury included, “spasms and tics into the thoracic area that caused stuttering” (Finding 11, 2006 Findings and Order).  The only medical opinion supporting the compensation judge’s finding that these symptoms were related to the work injury came from Dr. Stuckey.

Dr. Stuckey’s opinion, as set forth in his March 2006 deposition, is that thoracic spasms are the result of dystonia and the dystonia is the result of a spinal cord injury which occurred when the employee fell off the ladder.  In his 2006 findings and order, the compensation judge found the employee did not sustain a spinal cord injury (Finding 13).  This finding was not appealed.  On appeal, this court pointed out the inconsistencies in the compensation judge’s decision and remanded the case for further consideration.  See Krueger v. Ritter Agri Sales, Inc., No. WC07-103 (W.C.C.A. Aug. 29, 2007).

On remand, the compensation judge again found the employee permanently and totally disabled and found the lumbar and thoracic disability resulting from the work to be a substantial contributing cause of the employee’s inability to work (Finding 9).  In his memorandum, the compensation judge noted “the employee is experiencing significant pain, he needs to change position frequently, he must be able to lie down at times, and the medicines that he takes for treatment of the pain carry significant side effects such as sleepiness, grogginess, trouble thinking,  and cognitive impairment.”  (Mem. at 5.)  These symptoms, the compensation judge concluded, were caused by the work-related lumbar and thoracic injuries.  That is, the compensation judge concluded that the employee’s symptoms and disability resulting solely from the work injury, exclusive of the dystonia, are a substantial contributing cause of the employee’s inability to work.  On appeal, the employer and insurer again assert this finding is unsupported by substantial evidence.  While we acknowledge the merit of these arguments, we must conclude the compensation judge’s finding is at least minimally supported by substantial evidence.

Records from the Fairmont Medical Center reflect a diagnosis of chronic low back pain.  The physical therapy records from St. James Rehabilitation Center document continued treatment for thoracic muscle pain and spasm.  At the 2008 hearing, the employee testified that he is comfortable lifting only up to 10 pounds and avoids bending down to pick things up off the floor.  He further testified he has continuing pain from back spasms and stated the pain medication causes cognitive side effects.  The employee testified he fatigues easily requiring him to rest periodically during the day.  At Dr. Stuckey’s second deposition in 2008, the doctor specifically noted the employee had a documented thoracic injury, with spasms and pain, and he opined the employee’s thoracic and low back injuries were disabling.  The doctor testified his opinion that the employee sustained a cervical spinal cord injury was not inconsistent with his opinion that the thoracic and low back injury were disabling.  Dr. Stuckey stated it was possible to have concurrent injuries in different areas which would aggravate each other and be additive in their presentation.  Dr. Stuckey noted persistent difficulty controlling the employee’s thoracic pain and stated the medication the employee was taking had significant side effects, including sleepiness, grogginess, and cognitive impairment.  Dr. Stuckey opined the employee’s symptoms have been of such severity and duration that the employee is incapable of any sustained gainful employment.

The employee testified about the effect of the personal injuries on his ability to function and the compensation judge found the employee’s testimony to be credible.  It is not the role of this court to make an evaluation of the credibility and probative value of a witness’s testimony.  Rather, that is the function of the fact finder.  Tews v. Geo. A. Hormel & Company, 430 N.W.2d 178, 41 W.C.D. 410 (Minn. 1988).  We acknowledge Dr. Stuckey’s testimony does not clearly and definitively distinguish between the effects of the employee’s thoracic injury and his dystonia and the effect of each on the employee’s overall disability.  Nonetheless, we conclude a fair reading of Dr. Stuckey’s 2008 deposition testimony provides minimally adequate evidentiary support for the compensation judge’s decision that the 2003 personal injury is a substantial and contributing cause of the employee’s inability to work.

The employer and insurer further assert that Dr. Stuckey agreed that a functional capacities evaluation (FCE) would be helpful for the employee, and that such a recommendation is inconsistent with permanent total disability.  While Dr. Stuckey agreed that FCEs can be useful and can help elucidate issues and problems in a work environment, a careful reading of the deposition indicates that Dr. Stuckey did not, in fact, “recommend” an FCE in the employee’s case.  (Ex. C (08) at 50-51, 509-61.)

It is the responsibility of the compensation judge to determine the weight and credibility to be given to expert testimony, and to chose among conflicting medical opinions.  The trier of fact’s choice must be upheld by this court so long as there is adequate foundation for the opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Although the evidence is not overwhelming, we cannot say the judge’s decision is manifestly contrary to the evidence, and conclude there is adequate support in the evidence as a whole for the determination that the employee’s work-related thoracic and lumbar injuries are a substantial contributing cause of the employee’s total disability.  We must, accordingly, affirm.

The concept of total disability is not, however, merely a reflection of the employee’s physical condition, but is primarily dependent upon the employee’s ability to find and hold employment.  McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983); Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).  If the services the injured employee can perform are so limited in quality, quantity or dependability that a market for them does not exist, the employee is permanently disabled.  Berg v. Sadler, 235 Minn. 214, 50 N.W.2d 266, 23 W.C.D. 436 (1957).

As a general rule, testimony by an employment expert that an employee is not capable of gainful employment constitutes sufficient evidence to sustain a finding of permanent total disability.  See McClish at 542, 36 W.C.D. at 139.  In this case, the compensation judge relied on the opinion of Ms. Tuff.  The appellants contend, however, that Ms. Tuff’s opinion lacked foundation and the compensation judge erred in giving her opinion any credibility or weight.  Ms. Tuff interviewed the employee in 2006, as did Ms. Lowe.  She reviewed the employee’s treatment records in 2006 and again in 2008, the reports of Drs. Gedan and Larkins, the reports and both depositions of Dr. Stuckey, the employee’s 2006 and 2007 tax returns, her own previous testimony and that of Jan Lowe, and the 2008 Labor Market Survey prepared by an associate of Ms. Lowe.  She was also present during the second hearing and listened to the employee’s testimony.  The employer and insurer made no objection to Ms. Tuff’s competence as a vocational expert and, as a general rule, this level of knowledge about the subject matter is sufficient to establish adequate foundation for an expert opinion.  Ms. Tuff testified, based upon this information, that she did not believe the employee had what she would consider competitive employment, and in her opinion, the employee was not capable of sustained, gainful employment.  The compensation judge was free to accept Ms. Tuff’s opinion, and we find no basis for reversal in his reliance on Ms. Tuff’s testimony.

The employer and insurer further contend that the compensation judge clearly overlooked the vocational testimony of Ms. Jan Lowe.  They contend that Ms. Lowe was the only vocational expert to perform a labor market survey and that this survey showed there were job openings in the employee’s geographic area that the employee could do that would result in an income for the employee.  We first note the labor market survey prepared by Ms. Lowe was premised on work restrictions provided by Dr. Gedan and Dr. Larkins that related only to the low back and, in Dr. Larkins case, on his second report in which he opined that - - with respect to the employee’s low back work-related injury only - - the employee did not need restrictions.  These restrictions are not consistent with the extent of the injury and the restrictions found by the compensation judge.  Moreover, when questioned on cross-examination, Ms. Lowe acknowledged that nearly all of the jobs listed in the survey would not be appropriate if the employee had a 20 pound lifting restriction as ultimately found by the compensation judge.

Finally, in this case, the employee was engaged in various self-employment activities during the time in which he is claiming permanent total disability.  To establish permanent total disability an employee must establish that the work injury “totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.”  Totally and permanently incapacitated means the employee, as a result of his disability is “unable to secure anything more than sporadic employment resulting in an insubstantial income.”  Minn. Stat. § 176.101, subd. 5; McClish, id.; Schulte, id.  On remand, the compensation judge found the employee’s self-employment had not been profitable, and that the income generated was insubstantial.

The employer and insurer argue that the bank statements from the employee’s Bank Midwest farm account document very high deposits representing “successful earnings” from 2005 through 2008, and assert this evidence was “completely overlooked” by the judge.^[7]  They assert the employee failed to provide any testimony or evidence to refute these significant earnings.  We disagree.  The compensation judge clearly considered the employer and insurer’s argument, stating in his memorandum:

The employer and insurer argued at trial, and argue again on appeal, that the employee’s total bank deposits are substantial and are inconsistent with the employee’s reported income, demonstrating higher earnings than claimed.  When asked about the difference between total annual deposits into the farm bank account and his reported gross income for tax purposes, the employee stated that deposits included loans and some deposits were monies received  from farmers for seed.  The employee explained that Golden Harvest Seed extends credit when seed is ordered, and some of the monies received were simply passed through the farm account, from which he wrote checks to Golden Harvest Seed, and later to the dealer that took over his seed territory, to pay his customers’ accounts.  The employee testified his tax returns, specifically Schedule F - Profit or Loss from Farming, accurately reflected his actual income and expenses from his farming, seed business, and corn stove sales.  Ms. Lowe, on cross-examination, agreed that money that simply passed through an account, “money in/money out,” would not be income or revenues if no profit was earned on it.  Deposits into a bank account do not necessarily equate with earnings or income, and there is no basis in the record to simply assume, as argued by the employer and insurer, that all deposits into the employee’s farm account represented “earnings.”  This court’s review on appeal is limited to a determination of whether the compensation judge’s findings are “clearly erroneous and unsupported by substantial evidence in the record as a whole.”  Minn. Stat. § 176. 421, subd, 1(3).  The compensation judge found the employee credible, and on the issue of his earnings was free to accept the employee’s explanation for the difference between total deposits to his bank account and his self-employment income.  Compare, e.g., Berdugo v. AER Servs., Inc., 58 W.C.D. 560 (W.C.C.A. 1998); Gillespie v. Wesi/Johnson Screens, slip op. (W.C.C.A. June 13, 1996).

We do not, however, agree with the compensation judge’s award of permanent total disability effective April 18, 2005.  Whether an employee earns a profit from his self-employment is a factor to be considered in determining whether the employee is permanently and totally disabled.  It is not, however, determinative.  In this case, the compensation judge found, and the evidence establishes, that, following termination of his employment with the employer, the employee continued to operate several side business for several years.  (Finding 13.)  The employee testified he purchased and sold LDJ corn boilers and furnaces through 2006.  The employee did have earnings from the sale of the corn boilers and furnaces in 2005 and 2006, but ended up with unsold, obsolete inventory because the market dried up.  The employee has not purchased any corn stoves for sale since October 2006 and testified he is no longer a dealer.  The employee also maintained his Golden Harvest territory and continued the seed sales business into 2006.  The employee gave up his territory sometime after the August 16, 2006, hearing and is no longer involved in the business.  The employee testified he stopped selling seed because of his stuttering problem and because he could not do the physical work involved.  The Golden Harvest Seed business records show no sales or shipments of seed to the employee after July 31, 2006.  The 2007 tax return shows no seed or stove sales, and income solely from the sale of harvested grain from the farming operation.  Both the reported income and expenses are noticeably less than they were the previous year.  The employee continues to operate the farm because, he said, “I live there and it’s been the family farm forever.”  (T. at 46, Apr. 4, 2008, hearing.)  He testified that his involvement is basically paper work, and he has had to hire out all of the farm labor since 2006.

In this case, the employee’s business activities through about October 2006, whether or not profitable for tax purposes, demonstrate employment that was more than sporadic.^[8]  As the compensation judge noted in his memorandum, however, since then:

We conclude that the evidence as a whole does support a finding that the employee is now permanently and totally disabled, but modify the effective date of permanent total disability to November 1, 2006, by which time it appears the employee had, more or less, discontinued his  business activities other than the family farm.  There is substantial evidence to support the compensation judge’s finding that the employee’s farm income was insubstantial and his employment sporadic at that point.