Ebenezer Tower Apartments (Ebenezer) and its insurer, American Compensation Insurance Company/ RTW Inc, have appealed from the findings by the compensation judge that the employee’s work injury on March 23, 2007, was a permanent injury and that the employee’s work injury on June 26, 2003, was a temporary injury.  Ebenezer has also appealed from the compensation judge’s apportionment determination and from the award of wage loss benefits.  The employee has cross-appealed with regard to the dates of one of the periods of temporary total disability.  We affirm as modified.

Cheryl Sampson sustained her first low back injury, relevant to this appeal, on October 29, 1991, when she was working as a paramedic for Forest Lake District Memorial Hospital.  After lifting a patient to a stretcher, she had pain in her low back and down the back of both legs.  Initially, she treated with a chiropractor but had no relief from her symptoms.

The employee then saw Dr. Jon Wallestad, an orthopedist, on November 11, 1991.  Dr. Wallestad diagnosed a lumbar spine strain and recommended physical therapy.  Physical therapy helped her symptoms but they worsened again after an attempt to go back to work.  Dr. Wallestad recommended a CT scan that was done in January 1992 and which showed central disc bulges at L4-5 and L5-S1.

In January 1992, the employee transferred her care to the Institute for Low Back Care where she saw Dr. Alexander Lifson.  Dr. Lifson prescribed additional physical therapy but recommended stability and stretching exercises rather than weight training.  He advised the employee at the first appointment that she should not return to work as a paramedic because of the physical requirements of that job.  After a course of physical therapy, Dr. Lifson indicated the employee had a permanent lifting restriction of 40 pounds.

The employee also received conservative care from Dr. Harvey Aaron at Occupational Rehabilitation Center.  In July 1992, he concluded the employee had 10.5% permanent partial disability from her work injury and he also modified her restrictions to include occasional lifting of 50 pounds.

In August 1994, the employee saw Dr. Garry Banks at Midwest Spine Institute for what was described as low back and bilateral leg pain.  Physical therapy followed by a home exercise program was advised.  Dr. Banks diagnosed L4-5 and L5-S1 disc degeneration.  Medical care at Midwest Spine continued into 1996.

The employee’s 1991 work injury was admitted by her employer.  In October 1994, the employee settled her 1991 injury claims on a full, final, and complete basis, leaving open only non-chiropractic medical care.  There is no record of medical care for the low back between 1996 and 2003.

The employee went to work for Nationwide Housing Corporation [Nationwide] as a property manager in early 2003.  She had a work injury to her low back on June 26, 2003, from bending over to retrieve files from a low cabinet.  She returned for care to Midwest Spine, seeing Dr. Thomas Rieser on June 27, 2003.  Her reported symptoms at that time were low back pain with extension into her buttocks but not into her legs.  She was restricted to working 4 hours a day and was paid temporary partial disability benefits by Nationwide’s insurer.  She was treated with physical therapy and was advised to use ice and pain relievers.  Dr. Rieser also directed epidural injections which she reported helped for about a week or so.

The employee had no further treatment for this injury after November 13, 2003, and had no treatment for her low back until December of 2005.  In December 2005, she saw her family doctor for a flare-up of low back pain and he discussed conservative management of her condition with her.

The employee left the employ of Nationwide in November of 2003 and went to work for Ebenezer Social Ministries as a housing director in Ebenezer Tower Apartments in south Minneapolis.

In December 2006 or January 2007, the employee was doing sit-up exercises at home and had an increase in her low back pain.  On January 22, 2007, she treated at Advanced Spine Associates with complaints of low back, left hip, and lower extremity pain that she attributed to doing sit-ups.  The diagnoses were chronic low back pain, left SI joint irritability, and lumbar musculoligamentous strain.  Dr. Banks recommended a lumbar and pelvic MRI but the employee testified she did not follow up on this recommendation because she was not having ongoing problems.

The employee was also seen at Healing Hands Family Chiropractic Clinic on one occasion in January 2007.  She reported a history of low back pain after doing sit-ups and was given a chiropractic adjustment.  The employee received no further chiropractic care.

On Friday, March 23, 2007, the employee was helping one of the residents in the apartment tower move her belongings.  Earlier in the year, 35 units in the building had to be evacuated because of water damage.  The employee was helping residents move back in and was moving items in these units over the course of a week.  The employee noted the increase in low back pain and stated that on Saturday she could not straighten up.

The employee testified that she went to the emergency room the next day but records from Mercy Hospital indicate that she went there on Monday, March 26.  The employee complained of significant back pain radiating down her left leg and stated that she could not think of what had caused the pain.  She also stated that she had not had back pain like this for several years.  The employee had spoken with Dr. Banks on the telephone and he ordered an MRI which was done on March 26.  It was read as showing “a small, broad-based left paracentral disc protrusion” at L5-S1 which compressed the nerve root at that level.

The employee reported a March 23 work injury to her employer on March 27, identifying her low back symptoms as being due to “helping residence [sic] moving out of building and back in.”  Ebenezer’s workers’ compensation insurer accepted liability initially.

The employee treated with Dr. Banks.  He advised her at a visit on March 26 that her pain likely was due to the “small herniation at L5-S1.”  He did not recommend surgery and referred the employee for epidural injections.  He also took the employee off work.  An injection was done on April 3, 2007, and the employee reported improvement in her back pain.  The employee also received a course of physical therapy in May.

From the time of her injury the employee had been paid temporary total and temporary partial disability benefits.  Those benefits were discontinued in July 2007 when she returned to full-time work at Ebenezer with no wage loss.

In November 2007, the employee saw Dr. Sherif Roushdy at Advanced Spine when she had increased back pain after standing up from sitting.  An epidural steroid injection at L5-S1 was done in December.  On January 9, 2008, the employee slipped and fell on ice while working for Ebenezer.  She saw Dr. Roushdy on January 14 with complaints of right-sided low back pain that radiated into her right leg.  Another epidural injection was done on January 18.

In December 2007, Ebenezer denied liability for the March 2007 injury on the basis of the employee’s statements in the emergency department on March 26.  Ebenezer claimed previous payments were made under a mistake of fact.  The employee subsequently filed a claim petition seeking wage loss benefits and payment of medical expenses.  The employee was terminated by Ebenezer in February 2008, allegedly for misconduct.

The employee was evaluated on behalf of Ebenezer on January 7, 2008, by Dr. Mark Engasser.  Dr. Engasser’s opinion was that the employee did not have an injury on March 23, 2007, and that her “complaints are a natural progression of a pre-existing condition.”  He attributed responsibility for her condition to the 1991 injury and the 2003 injury, apportioning 2/3 of the liability to 1991 and 1/3 to 2003.

Dr. Mark Thomas saw the employee for Forest Lake District Memorial on June 19, 2008.  It was his opinion that the 1991 injury was permanent, that the June 2003 injury was temporary, and that the March 2007 injury was permanent.  His opinion was based in substantial part on the 2007 MRI which showed a herniated disc, the first time that finding had been noted.  He stated that the employee’s care after March 2007 was solely the responsibility of the March 23, 2007, injury.  He concluded, however, that the employee did not have any permanent partial disability from the 2007 injury.

Finally, an IME was done by Dr. Jeffrey Dick on September 4, 2008, for Nationwide.  His opinion was that there was no work injury in 2007 and that the 1991 and 2003 injuries were temporary injuries.  According to Dr. Dick, all of the employee’s problems were due to the sit-up activity in December 2006.

Dr. Roushdy’s opinion, as set forth in a report dated November 27, 2008, was that responsibility for the employee’s condition was 40% to the 1991 injury, 30% to the 2003 injury, and 30% to the 2007 injury.

The employee’s claim petition was heard by Compensation Judge Peggy Brenden on April 9, 2009.  She issued her Findings and Order on May 18, 2009.  The compensation judge determined that the employee sustained a permanent work injury on March 23, 2007, that the June 23, 2003, work injury was temporary and resolved as of November 13, 2003, and that liability for the employee’s medical expenses was to be apportioned 2/3 to the 1991 injury and 1/3 to the 2007 injury.  The compensation judge also awarded periods of temporary total and temporary partial disability benefits to be paid by the insurer at the time of the 2007 injury.  Ebenezer has appealed.  The employee has cross-appealed, stating that a clerical error exists with regard to the dates of one of the periods of temporary total disability benefits.

Ebenezer has made four arguments on appeal:

Ebenezer argues that the compensation judge erred in finding that the employee had a work injury on March 23, 2007, and in determining that the work injury was permanent.

Ebenezer argues that there was no injury on March 23, 2007, and bases its position on the emergency department records from March 26 in which the employee did not mention any work injury and indicated that she did not know where her back pain had come from.  This means, according to Ebenezer, that there was no incident at work.  There was no dispute, however, that the employee was engaged in helping residents move back into their apartments and that this work involved significant lifting and moving.  In addition, the employee reported her injury on March 27 and told the employer that her low back problems were due to the work of the preceding week. With regard to the emergency room statements, the employee testified at the hearing that “I don’t recall what I told them because I was in so much pain.”

In large part, this question is one of witness credibility.  In her memorandum, the compensation judge specifically found the employee’s testimony on this point to be credible.  Assessment of witness credibility is the “unique function of the trier of fact.”  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W2d 837, 839, 41 W.C.D. 79, 82 (Minn. 1998); Engels v. City of Delano, 65 W.C.D. 497 (W.C.C.A. 2005).  The evidence cited by Ebenezer does not provide a basis for reversing the compensation judge’s conclusion that the employee was a credible witness.

Ebenezer also argues that any low back problems the employee experienced in the spring of 2007 were the result of the sit-up activity in December 2006.  Support for the argument is said to be Dr. Bank’s recommendation for an MRI in January 2007.  The employee testified, however, that she did not follow up on that recommendation because “I wasn’t having problems.”  The compensation judge also noted the change in the MRI found after March 2007 and the changes in her work restrictions after that time.

The compensation judge’s decision on this issue was also supported by the opinions of Drs. Thomas and Roushdy.  It is true that the opinions Drs. Engasser and Dick were to the contrary, but we note that their opinions are based in large part, not on medical findings, but on their determination that the employee was not credible with regard to the March 2007 incident.  In any event, the opinions of Drs. Thomas and Roushdy had adequate foundation and constitute substantial evidence to support the compensation judge’s decision on this issue.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Sumerfelt v. Traverse Co., 64 W.C.D. 183 (W.C.C.A. 2003).

Ebenezer contends on appeal that the compensation judge erred by determining that the June 2003 injury at Nationwide was a temporary injury that resolved by November 13, 2003.  Ebenezer claims that the June 2003 injury resulted in “significant medical treatment and ongoing symptoms.”  In support it is noted that the employee felt her back was “never the same” after this injury and Dr. Engasser identified the June 2003 injury as permanent.

The question here, however, is not whether there is evidence to support a contrary finding but whether substantial evidence supports the decision which was made.  In support of the compensation judge’s finding that the June 2003 injury was temporary, we note the evidence that there was no change in the MRIs taken in May 1992 and in July 2003, that the employee was never taken off work after the 2003 injury, and that the employee had no treatment for her low back from November 2003 until December 2005.  In addition, the decision is supported by Dr. Thomas’ opinion. We find substantial evidence supports the compensation judge on this question.

The compensation judge apportioned 2/3 of the liability for the employee’s claims to the 1991 injury and 1/3 to the 2007 injury.  Ebenezer claims the compensation judge erred in this determination.  Ebenezer asserts that the compensation judge accepted part of Dr. Engasser’s opinion in fixing 2/3 of the liability against 1991 injury, but since Dr. Engasser had opined that there was no 2007 injury, an apportionment determination based on Dr. Engasser’s opinion should have placed 100% of the liability on the 1991 injury.

Ebenezer misstates the record on this point.  There is no evidence that the compensation judge adopted any part of Dr. Engasser’s opinion on apportionment.  What the compensation judge did say in the part of her memorandum devoted to “causation/primary liability/apportionment” was that “the opinions on causation and apportionment in this case are wide ranging.  Four experts have weighed in on these issues and no two experts reached the same conclusion.  I have carefully considered the opinions of the experts and have adopted parts of their opinions, but no single opinion in its entirety.”

In explaining her apportionment determination, the compensation judge referred to her consideration of the evidence in this case.  Apportionment is a question of fact and the fact finder is not required to adopt medical opinions on this issue.  Campa v. Alliant Techsystems, Inc., No. WC08-231 (W.C.C.A. Apr. 17, 2009).  The question for this court is whether substantial evidence supports that conclusion.

We have already affirmed the compensation judge’s determination that the 1991 and 2007 injuries are permanent and it is apparent that both of these injuries have contributed to the employee’s present condition.  The 1991 injury began the employee’s back problems and resulted in 10.5 percent permanent partial disability and permanent restrictions.  The 2007 injury resulted in disc herniation with nerve root impingement and the employee has had significant wage loss since that time.  We find the compensation judge’s apportionment to be consistent with this evidence and her determination is affirmed.

A.  Misconduct

Ebenezer contends that the employee should have been precluded from receiving temporary total disability benefits under Minn. Stat § 176.101, subd. 1.(e)(1), which bars the recommencement of temporary total disability benefits if an employee is terminated for misconduct.  In response, the employee argues that this defense is not available where, as here, the employer has denied primary liability and would not have recommenced temporary total disability benefits even in the absence of any alleged misconduct.

We do not address this issue because we conclude substantial evidence supports the compensation judge’s finding that the employee’s actions do not rise to the level of misconduct as contemplated by this statute.  This court has held that in order to bar temporary total disability benefits from an otherwise eligible claimant, the misconduct must constitute “willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect.”  Moon v. A Chance To Grow, Inc., 68 W.C.D. 41, 49 (W.C.C.A. 2008), quoting Tilseth v. Midwest Lumbar Co., 295 Minn. 372, 304 N.W.2d 644 (1973).

In considering the issue of misconduct, a distinction should be drawn between the two types of misconduct found in the case law.  One might be referred to as statutory misconduct, misconduct which rises to a level sufficient to apply the punitive provisions of Minn. Stat. § 176.101, subd. 1.(e)(1).  The other might be referred to as a Marsolek misconduct which suspends an employee’s right to wage loss benefits until the employee demonstrates through a diligent job search that the work related disability is a substantial contributing factor in the ongoing wage loss.  Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989).  The compensation judge’s determination that the employee’s conduct was not statutory misconduct is not an endorsement of the employee’s behavior and is not a finding that there was no misconduct on the part of the employee.  The question is whether the employee’s behavior supports the application of the statute.

Ebenezer argues the employee engaged in a “series of egregious behavior violations.”  In July 2005 she received a verbal warning about her failure to provide accurate rent statements.  In January 2006, there was a written warning about tenant complaints, some of which were anonymous, and about making negative complaints about Ebenezer.  In September 2007, when the employee was home with a sick child, she apparently allowed a “new” employee to terminate an employee and she was reprimanded.  On January 23, 2008, there was a written warning concerning the employee’s failure to conduct customer satisfaction surveys with the residents.  On February 12, 2008, the employee was terminated, apparently in part for referring to Ebenezer supervisors in disparaging terms and, in part, because of the customer satisfaction surveys addressed in January.

The compensation judge’s conclusion that this behavior is not statutory misconduct is consistent with our case law on this issue.  Hofbauer v. Made Wright Custom Cabinets, 63 W.C.D. 171 (W.C.C.A. 2003) (tardiness and absenteeism); Figgs v. Dungarvin No. WC04-241 (W.C.C.A. Dec. 9, 2004) (signing timecards with a supervisor’s name); Olenchak v. Wenzel Plumbing & Heating, 65 W.C.D. 290 (W.C.C.A. 2005) (taking a long lunch break and being late to work); Magarin v. Highland Mfg. Co., No. WC05-302 (W.C.C.A. June 21, 2006) (failure to use a safety harness); Moon v. A Chance To Grow, Inc., 68 W.C.D. 41 (W.C.C.A. 2008) (unsatisfactory work performance and poor attendance); Gustafson v. Dynamic Structural Steel, No. WC08-220 (W.C.C.A. Mar. 26, 2009) (excessive absences).

A review of these cases also demonstrates another factor in misconduct cases which is of concern in this case as well.  The employee began working for Ebenezer in December 2003 in a position with significant responsibility.  The employee testified that her performance reviews were always very favorable; testimony which was not disputed by Ebenezer’s HR vice president.  Not until after Ebenezer’s insurer denied the March 2007 work injury in December 2007 and after another work injury occurred on January 9, 2008, was it alleged by Ebenezer that the employee engaged in misconduct which required termination.  The inference which arises from these facts is not favorable for Ebenezer’s argument.  The compensation judge’s decision that the employee’s claim for temporary total disability benefits is not barred by Minn. Stat. § 176.101, subd. 1.(e)(1), is in accord with the evidence, and is affirmed.

B.  Job Search

Ebenezer argues on appeal that the employee should not have been awarded temporary total disability benefits because the employee did not engage in a diligent job search.  According to this argument, the defects in the employee’s job search were that she did not keep a job search log for the first two months and her job search was conducted primarily through the internet.

Although in one case, this court upheld a compensation judge’s factual determination that the absence of any job search logs was evidence of a lack of diligence, there is no legal requirement of job search logs in order to receive temporary total disability benefits.  The ultimate question of whether a job search was diligent is the success of that job search.  As the compensation judge pointed out, after the employee was terminated in February 2008, she found employment by mid-July 2008.  After that job proved physically inappropriate, she left it in mid-September, but was re-employed by early November.

Given the employee’s success in finding employment, the compensation judge’s determination that the employee engaged in a diligent job search is supported by substantial evidence.

C.  Clerical Error

In her cross-appeal, the employee states that the compensation judge erred in the dates of one of the periods of temporary total disability.  The compensation judge awarded temporary total disability benefits for February 18 to July 14, 2007, and, according to the employee, the period should have been February 18 to July 14, 2008.  No party disputes that an error was made and we modify the compensation judge’s decision to award temporary total disability benefits for February 18 to July 14, 2008.