The compensation judge awarded temporary total disability benefits for various periods resulting from a 2005 ankle injury and a 2006 chemical exposure.  He also awarded permanent partial disability for the ankle injury.  The compensation judge determined that the wage for the 2006 injury was $1,090.34 and concluded that the employee suffered a psychological injury from the 2006 exposure which also resulted in periods of temporary total disability.  The employer and insurer appeal from these findings and awards.  The employee has requested an award from this court of penalties under Minn. Stat. § 176.225.  We affirm the compensation judge’s decision in part, remand for further proceedings, and deny the motion for penalties.

Burdette Lowe, the employee, began working for the employer, Northwest Airlines, in 1987.  In November 2005, when she sustained the first of her injuries at issue here, she was employed as a flight attendant; the parties stipulated her weekly wage was $1,090.34.

On November 2, 2005, the employee was exiting a plane, having just completed a flight for the employer to Osaka, Japan.  As she was walking to the crew bus, she caught her foot in an uneven part of the sidewalk and twisted her left ankle.  The employee testified that she was carried back to the plane and on the flight back to Detroit tried to keep ice on her ankle. In Detroit, the employee saw Dr. Deatra Young at Airport Concentra Medical Center on November 3, 2005.  Tenderness and mild left foot swelling were found on exam and an assessment was made of ankle and foot sprain.  The employee was given pain medication and restrictions on her physical activity.

The employee resides in the metropolitan Atlanta area and she saw Dr. Alfred Martin at Concentra Medical Center in Conyers on November 8 when she returned to Atlanta.  Dr. Martin’s exam was normal and he assessed a resolving left ankle strain.  He released the employee to regular activity.  The employee returned to Dr. Martin on November 10 and reported more pain in her left ankle while doing her regular activities.  The physical exam was normal but Dr. Martin placed her back on restrictions and prescribed physical therapy.  Some improvement was noted on November 14 but the employee continued to report pain.  Dr. Martin continued the treatment plan and also referred her to an orthopedist.

The employer and its insurer, Liberty Mutual Insurance Company, admitted liability and began paying workers’ compensation benefits.^[1]  The employee was off work from November 4, 2005, through December 1, 2005, when she returned to work on a light-duty basis and was assigned duties in the baggage area at the Atlanta airport.

On December 8, 2005, the employee saw Dr. Naim Shaheed at Ankle, Foot, and Leg Specialists of Dekalb in Lithonia, Georgia.  Dr. Shaheed found pain with palpation in the left foot and ankle.  He diagnosed, “Grade II ankle sprain/strain, unspecified left.”  Dr. Shaheed concluded that the employee’s injury had not received adequate care initially and he recommended additional physical therapy and use of a walker boot.  The employee was restricted to working four hours a day and two days a week.  There was no change in her situation when she returned on December 22.  On January 6, 2006, the employee told Dr. Shaheed that her ankle pain was worse.  Dr. Shaheed, however, concluded that, “clinically the condition is improving.”  Dr. Shaheed recommended an MRI and stated his opinion that the employee’s sprain should have healed by that time.

Dr. Shaheed’s notes from January 6 indicated that the employee had gone to “ER last week due to chest pains, heart attack ruled out.  Patient is stressed, had an anxiety attack.”  Records from Dekalb Medical Center reflect that the employee visited the emergency room there on December 31, 2005, with complaints of chest tightness and pain that she attributed to job stress.  The employee was also evaluated for a possible heart problem.  The conclusion reached was that the employee’s problem was anxiety.

The MRI recommended by Dr. Shaheed was done on January 12, 2006.  It was read as showing, “bright signal along the subarticular surface of the mid-portion of the tarsonavicular bone, which may represent a small osteochondral lesion.  This does not have the usual configuration of a stress fracture.”  Dr. Shaheed advised continued light-duty and physical therapy.

The employee’s light-duty assignment ended as of January 14, 2006, when she was advised by the employer that there was no work for her.  She remained off work until March 1, 2006.

An orthopedist, Dr. Paul Drouillard, evaluated the employee on behalf of the employer and insurer on February 10, 2006.  Dr. Drouillard reviewed the employee’s previous medical records, including the MRI that had recently been done.  His exam was recorded as negative.  Dr. Drouillard stated in his report that he saw, “no evidence of a work-related injury.”  His opinion was that no further treatment or restrictions were necessary.  Apparently, based on Dr. Drouillard’s report, the employer and insurer discontinued payment of further benefits to the employee for wage loss or medical treatment related to her foot and ankle injury.

The employee saw Dr. Jeanine Jones, a colleague of Dr. Shaheed, on February 16, 2006.  Dr. Jones found improvement in the employee’s condition although there continued to be mild tenderness at the left anterior fibular ligament.  Dr. Jones advised using a stabilizing brace to transition from the use of a walker boot.  Dr. Jones stated that the employee would be able to return to her pre-injury working status in two weeks.

The employee returned to work as a flight attendant for the employer on March 1, 2006.  Sometime after November 2005, the employer had reduced the wages for all flight attendants.  The employee testified that in order to earn what she had been making in November 2005, she would have to work more hours.  Unfortunately, by the time the employee was released to work, the period for bidding on flights in March had expired and the employee had to work whatever flights were available after other flight attendants had bid.  The employer and insurer claim that the employee earned an average of $751.92 per week after her return to work.

On March 15, 2006, the employee returned to see Dr. Jones, who noted that the employee had been working as a flight attendant with “minimal discomfort.”  Home therapy was recommended “to continue positive progression towards recovery.”

On April 22, 2006, the employee was on a flight that was taxiing for takeoff.  The employee was on a jump seat at the front of the cabin when she heard a pop and saw that a fire extinguisher, which was attached to the forward wall, had sprung a leak and was spraying liquid.  The employee was sprayed in the face and inhaled halon gas from the extinguisher when she removed the extinguisher from the passenger cabin. The employee testified that she had difficulty breathing and had a headache from the gas exposure but continued working on the flight. When she returned to the Atlanta area after the flight, the employee sought medical attention and saw a doctor on April 25 at Southern Regional Medical Center in Riverdale, Georgia.  She reported left-sided chest pain and tightness and was given a prescription for Teradel.

The next day, April 26, the employee saw Dr. Hari Medichetty at Pulmonary and Sleep-Medicine Associates in Riverdale, Georgia.  She complained of an intermittent dry cough and intermittent chest pain which was at a level of 4 or 5 on a 10 point scale.  Spirometry and arterial blood gas studies were done and were within normal limits.  The impression was of possible reactive airway dysfunction syndrome [RADS].  A pulmonary function test was scheduled for May 5.

After the test, the employee met with Dr. Charlotte Graham, one of Dr. Madichetty’s associates.  The employee continued to have occasional chest tightness associated with shortness of breath.  The pulmonary function test was read as showing, “mild obstructive ventilatory defect.”  Dr. Graham told the employee, “that she needs to be started on Prednisone because of continued complaints of chest tightness.  At this time, patient is refusing any type of Prednisone therapy.”  No work restrictions were given.

The employee was seen in follow up by Dr. Graham on June 8 and June 9 with no change noted except for a decrease in diffusive capacity in her pulmonary function test.  The employee was told at both visits that she needed to start Prednisone therapy but refused to do so.  The employee was taken off work by Dr. Graham as of June 12.

On June 21, 2006, the employee returned to see Dr. Graham.  She stated she had increased difficulty breathing for the past few days.  She also had a cough which she felt had improved.  It was noted that the employee was using an Albuterol inhaler and had used Prednisone for two days and then had discontinued.  Spirometry showed decreased diffusion capacity and the employee was again told to use Prednisone. Dr. Graham released the employee to return to work on June 24.

The employee also saw Dr. Jones on June 21, having completed physical therapy.  Pain was noted with palpation on the left sinus tarsi and lateral malleolus.  A new diagnosis was provided: sinus tarsitis.  A therapeutic injection was provided and Dr. Jones stated that, “patient will not regain 100% of left ankle function without pain due to severity of the initial injury.  Patient should return to 80-90% which is expected.”

The employee returned to Dr. Graham on August 9, 2006, and reported no real change in her symptoms.  She told Dr. Graham that she wanted to be referred to the Mayo Clinic.

On August 10, 2006, the employee saw a counselor, Judith Wohlheuter, at the Employee Assistance Program.  The employee completed a form providing background information and Ms. Wohlheuter made notations on the form as well.  The employee identified a number of concerns, including anxiety, stress, anger and frustration, as being the reasons she was seeking counseling.  Ms. Wohlheuter noted that on “red alert days” the employee stated she wasn’t able to walk to her car without wheezing and also said, “what’ll happen to me in 5-10 years?”  Records from subsequent visits also indicate that the employee was upset with the way the insurer was handling her workers’ compensation claim.  The counselor noted that the employee was being referred for psychiatric follow up.

The employee saw her family doctor, Dr. Kenneth Harper, on August 31, 2006.  His chart notes from that date state that the employee was in for follow up after an evaluation by a psychologist (sic).  Apparently based on a history in which the employee stated that her “depression scale showed moderate depression,”  Dr. Harper took her off work as of August 27 and diagnosed, “major depressive affective disorder single episode mild degree.”  The employee was off work from August 27 to September 9, 2006.

The employee began treating with Dr. Annamarie Paulsen, a psychiatrist, on October 17, 2006.  Dr. Paulsen noted a history of inhalation of halon gas in April and the employee’s complaint of bills related to the inhalation were not being paid.  It was also noted that the employee was taking medication only episodically and was using an inhaler for asthma.  Dr. Paulsen diagnosed major depression.  Dr. Paulsen also took the employee off work as of October 30, 2006. In a form sent to the employer on or about November 7, Dr. Paulsen stated the employee had major depression as well as signs of post traumatic stress disorder [PTSD].  She further noted that the employee was able to work only on an intermittent basis.  Dr. Paulsen commented that the employee was not taking medication, in part, because she thought she was getting better.

The employee saw Dr. Paulsen on four more occasions with the last treatment being on April 25, 2007.  In a letter dated May 9, 2007, to the employer, Dr. Paulsen stated she was treating the employee for major depression and PTSD.  She also stated, “she is unable to work now and has been unable to work since I first met her and prior to our first meeting.”

On November 15, 2006, the employee saw Dr. Clayton Cowl, a pulmonary specialist at Mayo Clinic.  Dr. Cowl diagnosed RADS as a result of her halon exposure in April 2006.  He stated that she was gradually improving from the exposure but was not yet at “maximal medical improvement.”  He prescribed an Albuterol inhaler to use as needed.  Dr. Cowl did not provide any work restrictions at the time of the consult and no subsequent medical follow up was recommended.

On December 25, 2006, the employee was working on a flight from Tokyo to Detroit.  A fire started in one of the engines and the plane had to make an unscheduled landing in Anchorage.  The employee testified that after that flight, when she was scheduled for another flight on January 14, 2007, she was unable to get on the plane because of her fear of further injury to her lungs, referring, in her testimony, to the possible necessity of using a fire extinguisher and being exposed to gas again. The employee has not worked since the December flight.

The employee’s records were reviewed on behalf of the employer and insurer by Dr. Gary Lefkof, a psychiatrist.  In his report of February 28, 2007, Dr. Lefkof concluded that the medical information did not support “consistent evidence of severe psychiatric symptomatology.”  It was his opinion that the employee was not precluded from employment.

The employee returned to see Dr. Jones for her ankle in March and April 2007.  In March, Dr. Jones provided a therapeutic injection.  Dr. Jones had no further treatment recommendations other than that the employee should use an ankle sleeve for prolonged periods of standing and activity.  The employee was also encouraged to participate in physical activity as tolerated.  Dr. Jones concluded that the employee would continue to have residual pain from arthritic changes in the ankle.

On April 30, 2007, the employee returned to Dr. Graham.  The chart notes indicate the employee was using her Albuterol inhaler but was still complaining of chest tightness. Pulmonary function testing continued to show reduced capacity.  The inhaler prescription was renewed; no work restrictions were noted.

In May 2007, the employee began treating with a psychiatrist and a social worker at Dekalb Community Service Board [CSB].  On June 11, 2007, a “to whom it may concern” letter was written in which social worker Marlene Levine and Dr. Joseph Thompson stated the employee was treated for depression and post-traumatic stress disorder and was “unable to perform her duties as a flight attendant at this time.”  A similar letter with the same conclusion was sent on December 12, 2007.  The records from CSB indicate the employee saw the social worker on a frequent basis.  At those sessions, the employee’s “current stressors” were primarily related to her pending litigation with occasional references to being unable to work as a flight attendant.  The employee continued to treat at CSB with the records ending in early 2010.

The employee came to Minnesota in August 2008 when she saw a number of doctors at the request of her attorney and at the request of the employer and insurer.

On August 25, the employer saw Dr. Robert Wengler on referral from her attorney for evaluation of her foot and ankle.  Dr. Wengler stated that the employee has chronic lateral instability of the left ankle as the result of tearing anterior talofibular ligaments in November 2005.  He concluded that this was a permanent injury given the employee’s continued symptoms and he rated 2% permanent partial disability under Minn. R. 5223.0520, subp. 2.B.(1).^[2]  Dr. Wengler believed the employee could work as a flight attendant with her ankle condition and he had no recommendations for orthopedic intervention.

On August 25, the employee also saw Dr. Beth Baker for an independent medical examination related to her lung problems.  Dr. Baker stated in her report that, in her opinion, the employee did not have RADS.  According to Dr. Baker, the symptoms the employee had after the gas exposure, which did not include eye or throat irritation, were not consistent with halon exposure.  She was also of the opinion that the pulmonary function tests were not accurate and did not establish RADS.  Dr. Baker believed that the employee was at MMI for the halon exposure no later than June 5, 2006, and that she had no need for any work restrictions after that date.

The employee saw Dr. Paul Arbisi, a psychiatrist, on August 26 at the request of her attorney.  In preparing his report, Dr. Arbisi reviewed a letter providing some information about her case from her attorney.  He also reviewed medical records and interviewed the employee.  Dr. Arbisi concluded that the employee did not meet the criteria for PTSD and did not appear to have ever done so.  Instead, he diagnosed anxiety disorder and depressive disorder related to her April 2006 work injury.  He did not believe that the 2005 work injury was a substantial contributing factor in the development of her psychological condition. Dr. Arbisi stated that the employee was disabled from working as a flight attendant, “primarily based on her fear of being unable to perform her duties because she would be reinjured if exposed to an airborne irritant such as operating a fire extinguisher.”  Dr. Arbisi recommended continued psychiatric care including the use of anti-depressants if recommended.  Dr. Arbisi ended his report by stating that the employee could return to work as a flight attendant within four to six months with appropriate psychiatric treatment, which he identified as “cognitive behaviorally-based psychotherapy.”

Dr. Thomas Gratzer, a psychiatrist, saw the employee on behalf of the employer and insurer on August 26, 2008. He reviewed the records of her medical treatment, interviewed the employee, and performed MMPI testing. Dr. Gratzer diagnosed “generalized anxiety disorder with panic attacks.  Major depression, mild, in partial to full remission.” In his opinion, the employee’s diagnosis was not related to either of her work injuries, but was instead due to stresses associated with the employer and the workers’ compensation insurer. It was his further opinion that the employee has not been disabled by her psychological diagnosis at any time after December 25, 2006.

Dr. Gratzer responded to Dr. Arbisi’s opinion in a report dated October 6, 2008.  He reiterated his opinion that the employee’s psychological condition, which he assessed as mild depressive and anxiety symptoms, were not related to her work injuries, but instead were due to other psychosocial stressors, especially the workers’ compensation claims process.  He also disagreed with Dr. Arbisi on the question of the employee’s ability to work, noting her “high level of functioning, including going to graduate school.”  Dr. Gratzer further noted that the employee was refusing psychiatric medications and “in the absence of such treatment, there are no further indications for mental health treatment.”

Dr. Bryan Russell evaluated the employee for the employer and insurer on July 15, 2009, to consider the question of permanent partial disability to the ankle.  Dr. Russell examined the employee and reviewed her medical records.  He concluded the November 2005 work injury was a temporary Grade I ankle sprain.  He attributed her pain complaints to a pre-existing diagnosis of pes planus.  His opinion was that there was no permanent partial disability to the ankle.

The employee’s claims were heard by Compensation Judge Jerome Arnold on December 17, 2009.  In his findings and order, issued January 20, 2010, the compensation judge:

The employer and insurer have appealed. The employee has filed a motion which seeks a penalty against the employer and insurer pursuant to Minn. Stat. 176.225, subd. 1(a).

The employer and insurer have not appealed the compensation judge’s award of temporary total disability benefits resulting from the November 2005 ankle injury.  However, they argue the compensation judge’s determination that the employee has sustained a 2% permanent partial disability from that injury is not supported by the evidence.

The compensation judge, in making his determination, accepted the opinion of Dr. Wengler, who applied Minn. R. 5223.0520, subp. 2.B.(1).  That section provides for 2% permanent partial disability where rupture of the medial or lateral ligament results in mild laxity of the ankle.  The employer and insurer contend that there is no evidence of any ligament rupture and point to the MRI done at the Dekalb Medical Center in January 2006.  According to their argument, Dr. Wengler provided a rating based only on the employee’s subjective pain complaints.

We note, however, that Dr. Wengler had the actual MRI for his review and, further, that the MRI report showed a “bright signal which might demonstrate an osteochondral lesion.”  Rupture is not defined in the permanency rules for the ankle and Dr. Wengler obviously concluded that the MRI met the requirements of the rule.  This question was not addressed by Dr. Russell, the IME on the ankle injury, and in the absence of any evidence to the contrary, we are unable to conclude that the compensation judge erred in his determination on this question.

The compensation judge’s award of 2% permanent partial disability for the ankle is affirmed.

There is no dispute that the employee inhaled halon gas in the fire extinguisher mishap on April 22, 2006.  On appeal, the employer and insurer challenge the compensation judge’s determination of a weekly wage on that date and his award of temporary total disability.

The parties stipulated that the employee’s wage on November 2, 2005, when she injured her ankle, was $1,090.34.  By the time the employee returned to her regular employment as a flight attendant in March 2006, the employer had reduced wages for all flight attendants.  The employee testified that her wage in November 2005 was based on working 80 hours a month.  After the wage cut, she testified that she would have had to work 100 hours a month to make the same amount.  Because the employee’s release to work occurred after the bid deadline for March flights, she was only able to take flights that had not been bid on by other attendants and she was not able to work 100 hours.  The employer and insurer argued at the hearing that the employee’s wage on April 22, 2006, was $751.97, based on her actual earnings from her return to work in March until the date of injury.  The employee argued that this figure was not an accurate measure of her earning capacity on the date of injury.  The compensation judge agreed and determined that the wage on April 22, 2006, should be the same as the wage on November 2, 2005, $1,090.34.

We conclude the compensation judge erred in this determination.  It is true that the ultimate objective of determining the weekly wage is arrive at a fair approximation of the employee’s earning capacity on the date of injury.  Johnson v. D.B. Rosenblatt, Inc., 265 Minn. 427, 122 N.W.2d 31, 22 W.C.D. 468 (1963).  However, adopting the November 2005 wage does not reflect the reduction in pay sustained by all flight attendants for the employer.  There was also some question concerning the number of hours worked by the employee after March 1, 2006, when she returned to work.  The employee testified that she meant to take it easy and get used to her duties again before increasing her hours, but that was a personal decision having nothing to do with her work injury since she had been released to return to work with no restrictions.  For these reasons we believe that simply adopting the November 2005 wage is inappropriate.  On the other hand, given the employee’s length of employment, her inability to bid on flights in March, and the brief time between her return to work and her second injury, simply using her earnings between March 1 and April 22 would not establish a fair approximation of her earning capacity.

In Sawczuk v. Special Sch. Dist. #1, 312 N.W.2d 435, 34 W.C.D. 282 (Minn. 1981), the court also dealt with a situation involving two injuries and the question of determining the wage of the second injury when the employee had been back to work for only a short period of time.  The court approved calculating the wage by determining the amount earned by the employee in the 26 weeks she actually worked before the second injury.  This method included wages earned in the brief period before the second injury as well as some of the earnings before the first injury.  While this approach may not be the only one possible in this case, we believe that this method is one which the parties and compensation judge might consider.

The records supplied by the parties on this issue do not allow this court to make a calculation and, in any event, a determination of weekly wage is more properly the province of the compensation judge.  Accordingly, we remand this matter for additional evidence and a determination.  On remand, the parties should supply the compensation judge with evidence showing the hours worked and the employee’s actual earnings from March 1, 2006, to April 22, 2006.  The compensation judge should also be provided with similar detailed information for the 26 week period before November 2, 2005. If, after doing so, the parties are unable to stipulate to a wage, arguments should be made to the compensation judge and a determination made on this issue.

The only period of temporary total disability benefits related to the gas exposure which was awarded by the compensation judge was from June 12 to July 1, 2006.  This absence was the result of Dr. Graham taking the employee off work.  The employer and insurer argue that this period was incorrect and that the employee was released to work without restrictions by Dr. Graham as of June 16, 2006.  The employee responds by referring to Dr. Graham’s note in her records indicating that the employee was released to work as of June 24, 2006.  In addition, the employee testified at the hearing that she had to wait for an available flight after her release to work and was not able to return to work on the same day she was released.  There is no evidence that the employee refused available work or delayed her return.  We find the compensation judge’s decision to be supported by substantial evidence.

The medical professionals in this case agreed that the employee suffers from depressive and anxiety disorders.  The dispute between the parties is whether the gas exposure on April 22, 2006, is a substantial contributing factor in the causation of this condition or whether, instead, the condition is due to psychosocial factors not related to her injury.^[3]  In deciding that the employee’s psychological condition was related to her work exposure, the compensation judge specifically adopted Dr. Arbisi’s opinions and rejected the opinion of Dr. Gratzer.

This court has held that in medically complex cases, including those in which the issue is the relationship between the work injury and a subsequent psychological diagnosis, a medical opinion providing the causal relationship is necessary.  Westling v. Untiedt Vegetable Farm, slip op. (W.C.C.A. Apr. 29, 2004).  The present case is one in which the compensation judge chose between competing medical opinions and, as we have said in numerous cases, this court will generally affirm a decision which is based on that choice.  Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003); Perry v. ADB Constr. Co. Inc., 68 W.C.D. 491 (W.C.C.A. 2008).

The employer and insurer contend that the compensation judge’s reliance on Dr. Arbisi’s opinion was reversible error.  They raise two arguments: first, that Dr. Arbisi’s opinion lacked adequate foundation because either he did not know, or did not fully appreciate, the extent of the employee’s anxiety due to the claims process, and second, that Dr. Arbisi was provided with an incorrect legal standard by the employee’s attorney for establishing a causal relationship.

At the hearing and in their brief on appeal, the employer and insurer highlight the complaints the employee made to various providers about the stress she was feeling from the insurer’s refusal to pay bills and from the claims and litigation process generally.  It would be a mistake, however, to conclude that these were the only stressors identified in the employee’s medical records.  The medical records also refer to stressors such as the employee’s reaction to losing a career she had enjoyed for many years and her fear of what the future might hold for her lung condition when she was currently unable to walk to her car in a parking lot without wheezing during red alert days in Atlanta.  More importantly, however, the question here is whether Dr. Arbisi was aware of the employee’s complete history, including the stress from the claims process, when he provided his opinion in this matter.

In his September 12, 2008, report, Dr. Arbisi itemized the records he reviewed in connection with his evaluation.  Those records appear to consist of all the records related to the employee’s psychological treatment.  The employer and insurer do not identify any records that were not reviewed.  Review of medical records, in combination with an interview and testing, provide adequate foundation for a medical opinion on the question of causation.  Wiggin v. Marigold Foods, No. WC04-136 (W.C.C.A. July 29, 2004); Bode v. River Valley Truck Ctr., No. WC09-132 (W.C.C.A. Sept. 22, 2009).

In requesting Dr. Arbisi’s opinion, the employee’s attorney wrote a letter in which he stated, “in workers’ compensation, causation is established if the work trauma or work disability constitutes one of the substantial aggravating factors leading to psychological dysfunction . . . .  The psychological vector of disability must stem from the physical injury or disability.”  We find this statement to be an accurate recitation of the law on this point.  Childers v. Honeywell, Inc., 505 N.W.2d 611, 49 W.C.D. 230 (Minn. 1993); Danielson v. Range Reg’l Health Servs., No. WC07-272 (W.C.C.A. June 3, 2008); Kallestad v. Old Dutch Foods, No. WC08-215 (W.C.C.A. Feb. 27, 2009).

The employer and insurer presented evidence for an alternative theory of causation for the employee’s psychological condition.  The question for this court, however, is not whether a different result was possible given the evidence presented but whether the decision that was reached by the compensation judge is supported by substantial evidence.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn, 1984).  We find substantial evidence in the well-founded opinion of Dr. Arbisi to support the compensation judge’s determination of causation.

There are a number of periods of temporary total disability for which the compensation judge awarded benefits due to the employee’s psychological impairment and which are challenged by the employer and insurer.

The compensation judge awarded benefits for this period based on Dr. Harper’s notes taking the employee off work.  The employer and insurer argue that Dr. Harper only took the employee off work through September 5, 2006.  As was true for an earlier period of disability, the employee’s claim, which was awarded by the compensation judge, was based on her inability to go back to work until there was an available flight.  We do not find this award to be error.

The compensation judge made this award based on the records from Dr. Paulsen but the employer and insurer state that her notes do not support an award past November 6, 2006.  Dr. Paulsen’s records contain a number of notes both restricting the employee from work and releasing her to work.  While the dates are sometimes contradictory, they provide support for the compensation judge’s determination for this period of time.

The employer and insurer argue that the employee was released to return to work as of December 6, 2006, and there is no evidence to support an award after that date.  Dr. Paulsen’s letter of May 9, 2007, in which she stated that the employee had been unable to work since she began treatment with Dr. Paulsen, in combination with the employee’s testimony provide substantial support for the compensation judge’s award of benefits for this period.

With regard to this period of time, the employer and insurer raise two arguments.  First, they argue that the compensation judge erred in awarding benefits when the employee did not engage in a diligent search for employment.  Secondly, they contend that the employee should have been barred from the receipt of benefits because she did not cooperate with medical treatments in refusing to take anti-depressant medication.

On the question of job search, the compensation judge found that during this time period the employee continued to provide the employer with disability slips and had a reasonable expectation of returning to work for the employer.  An employee may be excused from job search and entitled to receive temporary total disability benefits where there is a reasonable expectation of returning to work with the date of injury employer.  Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).  The question of whether the employer’s expectation is reasonable is one of fact for the compensation judge.  Yacoub v. American Nat’l Ins., slip op. (W.C.C.A. Feb. 9, 2000).  In the present case, given the employee’s history of 22 years with the employer and the evidence of a continuing relationship in that the employee continued to provide the employer with disability slips, substantial evidence supports the compensation judge’s determination on this point.

In allowing benefits to be awarded notwithstanding the employee’s refusal to take anti-depressant medication, the compensation judge cited Dotolo v. FMC Corp., 375 N.W.2d 25, 38 W.C.D. 205 (Minn. 1985) and Majerus v. Engle Fabrication Inc., slip op. (W.C.C.A. Jan. 27, 2000).  In Dotolo, the court approved the suspension of wage loss benefits because there was sufficient evidence that the recommended treatment would have resulted in significant improvement in the employee’s condition.  In Majerus, the employee’s refusal to take anti-depressants for two years was excused because “a reasonable period of time was appropriate to determine whether the employee’s pain, depression, and anger could be effectively controlled without the use of anti-depressants and/or medication” and the insurer had refused to pay for prescribed medications.  The evidence in the present case supports a finding that during the time awarded by the compensation judge there was evidence of improvement in the employee’s psychological condition despite her refusal to take anti-depressants.  The records refer to other mechanisms the employee used for dealing with her condition including reliance on her religious beliefs.  Further, the employer and insurer, from the beginning of the employee’s psychological treatment, have refused to pay for that treatment or any services connected to it.  Accordingly, we conclude that the compensation judge’s determination on this issue was not unreasonable.

The employee has filed a motion with this court seeking penalties under Minn. Stat. § 176.225, subd. 1(a), arguing that the employer and insurer’s defense on the causation of the employee’s psychological condition was “frivolous and for the purpose of delay.”  There is no merit to this motion.  The employer and insurer presented ample evidence in support of their position.  The fact that the compensation judge did not accept their position does not mean there was no basis for the defense on this case.  The motion is denied.