The self-insured employer appealed and the employee cross-appealed from the compensation judge’s denial of the self-insured employer’s Petition for Adjudication of Permanent Total Disability and the judge’s determination that the employer failed to prove the employee had been permanently and totally disabled from March 1, 1997, to the date of hearing.  We affirm in part, vacate in part, and remand.

David C. Cavegn, the employee, sustained an admitted injury to the thoracic spine, culminating on July 21, 1993, while working as a heavy equipment operator for the City of St. Paul, Parks & Recreation/Forestry, the self-insured employer.  The employee was eventually unable to perform his job and ceased working for the city on February 28, 1997.  On March 1, 1997, the employer began paying permanent total disability benefits to the employee, and on February 9, 1998, began paying at the supplementary benefit rate.  The employee also applied for, and began receiving, PERA and Social Security disability benefits.

On July 29, 2008, the self-insured employer filed a Petition for Adjudication of Permanent Total Disability.  The city asserted the employee had been permanently and totally disabled since March 1, 1997, and sought reimbursement from the Special Compensation Fund for supplementary benefits paid to the employee.  The Special Compensation Fund denied the employee was permanently and totally disabled.

The employee was born on October 7, 1944.  He graduated from high school in 1962.  In the late 1960s, he completed technical school classes in machine tool processing for personal reasons.  Following high school, the employee worked as a railway switchman, cement truck driver, construction laborer, assembly line worker, forklift driver, warehouse worker, furniture deliveryman, and bartender.

In 1971, the employee began working for the City of St. Paul as a groundsman, but was laid off due to lack of funding in 1973.  He returned to employment with the city in 1975 as a tree trimmer.  In the 1980s, the employee took a city test to qualify as a machine equipment operator and was, shortly thereafter, appointed to a permanent position as a power clam operator in the Forestry department.  He was eventually assigned to the Pigs Eye Wood Recycling Center where he operated drum chippers, limb chippers, and front end loaders, in addition to the power clam.

The employee testified that, prior to July 21, 1993, his middle back had bothered him for some time, which he attributed to leaning forward to operate controls and the constant bouncing and jarring of the machines.  Eventually, one day, he just could not move any more due to the pain.  He was initially treated by Dr. Frank Gaertner, a family physician at the Arcade Clinic, who took the employee off work.  In September 1993, the city referred the employee to Dr. Vijay Eyunni at United Occupational Health.  Dr. Eyunni continued the employee off work and prescribed a work conditioning program.  The employee improved, and Dr. Eyunni released the employee to return to his regular job at the end of November 1993.

On January 4, 1995, the employee returned to Dr. Gaertner, complaining of left-sided pain radiating from the thoracic spine to the chest.  The doctor took the employee off work and referred him to Dr. John Larkin, an orthopedic surgeon, who saw the employee on February 1, 1995.  The employee stated he had had problems since his July 1993 injury, and described pain in his left ribs radiating to the middle of his thoracic spine, aggravated by lifting, bending, and pushing.  Dr. Larkin continued the employee off work and ordered an MRI scan.  The February 15, 1995, scan showed multi-level disc degeneration in the thoracic spine with a large disc herniation at T8-9 impinging on the T8 nerve root.

The employee was referred to Dr. Francis Denis at Twin Cities Spine Surgeons who, on March 5, 1997, performed an anterior decompression of the spinal cord at T8-9 with partial discectomies at T8 and T9 and a single-level fusion at T8-9 using part of the lower rib as a graft.  Following the surgery, the employee had a good recovery but continued to complain of left-sided pain at the surgical level.

Three months post-surgery, in June 1995, the city assigned a qualified rehabilitation counselor (QRC), Steven Bosch, to work with the employee.  The employee was still wearing a body brace and was unable return to his job with the city at that point.

At a follow-up appointment with Dr. Denis on August 21, 1995, x-rays showed the fusion was solid.  However, due to persistent chest and mid-back pain, a repeat MRI scan was ordered.  The August 31, 1995, scan showed a new left-sided disc herniation at T7-8 and a disc protrusion at T9-10.  Dr. Denis stated the employee had two options: continued conservative care or a second multi-level fusion.  The employee declined further surgery and, in October 1995, was referred for exercise therapy which he was to attend for twelve weeks, three times a week.

On November 9, 1995, the employee met with his QRC to discuss jobs potentially available through the city’s modified duty worker program.  A position was identified in Forestry doing field assessment activities for the Dutch Elm Disease Program and planting trees in the spring and fall.  The job would permit the employee to sit, stand, and walk at his discretion.

On November 13, exercise therapy staff contacted Dr. Denis, stating the employee was having noticeable muscle spasms along the surgical incision while exercising.  Participation in the program was suspended.  The employee was referred by the employer to Dr. Brian Krasnow, a neurologist, who saw him on January 5, 1996.  The employee described pain in the left anterior chest radiating to the left thoracic back.  He stated the pain was often so severe he could not get up and it was difficult to move.  On exam, the employee had spasms in the left chest with getting up, twisting, and turning.  Flexion and extension exacerbated the chest pain.  The doctor ordered further testing, including an MMPI.  In follow-up on February 9, 1996, Dr. Krasnow advised the employee to continue the exercise program, and approved the proposed modified job in Forestry with restrictions of no lifting or climbing.  The employee was to start part-time and work back into full-time.

The employee began working in the modified duty worker position on March 4, 1996, working half days (four hours) driving in a city pick-up truck checking residential wood piles for diseased elm.  In the week of March 18, 1996, the employee was asked to assist in the office answering phones.  The employee did not refuse the work, but told his QRC that he felt uncomfortable in an office environment and would prefer to avoid such duties.  After checking wood piles ended, the employee was sent home for a couple of weeks due to lack of work.  On April 17, 1996, the QRC stated the employee’s modified job should develop into a 40 hour week in the near future with the employee supervising and inspecting tree planting.

The employee returned to see Dr. Krasnow on April 17, 1996.  The employee told the doctor he would like to return to his old job, and Dr. Krasnow gave him permission to try it, starting 20 hours a week.  Dr. Krasnow also suggested reevalution by a surgeon.  On May 24, 1996, Dr. Krasnow noted he had talked to Dr. Denis who was not enthusiastic about a second surgical procedure.  Dr. Krasnow additionally noted the employee had returned to work operating heavy machinery, with the help of his co-workers, and was back to a 40 hour work week.  The employee was released from care, to return as necessary.

On September 16, 1996, the employee returned to see Dr. Denis reporting some pain and difficulty performing his job and stating the city had some concerns about the risk of reinjury.  On examination, the doctor noted tenderness in the thoracic spine with pain radiating to the left-side of the chest.  Dr. Denis had a long discussion about work with the employee and his QRC, and permitted the employee to continue in his regular job.  The employee was to return as needed.

In February 1997, the city expressed additional concerns about the long-term viability of the Pigs Eye job.  The employee testified that the “bosses” “told me the other employees had said I was having a hard time, which I was.”  (T. 85.)  Employment alternatives were discussed with the employee who made it clear that he preferred to remain at Pigs Eye.  The QRC reported, “His first choice would be if the City of St. Paul would ‘retire him’ but he knows this is not a realistic possibility in the near future.”  (Resp. Ex. 7, Feb. 19, 1997.)

The city referred the employee back to Dr. Denis who saw the employee on March 3, 1997.  The doctor noted the employee was experiencing more and more symptoms in his thoracic spine and anterior chest.  Based on the employee’s problems, Dr. Denis limited the employee to light work with restrictions of no lifting over 20 pounds, no continuous bending or twisting, and no operating heavy equipment.  Dr. Denis also suggested a functional capacities evaluation (FCE) might provide better insight into the employee’s actual functional capacities.

In his March 19, 1997, report, QRC Bosch stated there was no alternative work readily available in Parks & Recreation and the employee had not been working the past couple of weeks.  The QRC stated that it was his “opinion that the employee would have difficulties transitioning to a new position with the City of St. Paul, and that maintaining pace and persistence on a day-to-day basis, 40 hours a week, could be difficult for the employee.”  (Resp. Ex. 7, Mar. 19, 1997.)  An FCE was to be scheduled within the next several weeks.  The QRC also requested the employee to obtain information about PERA disability benefits.^[1]

On March 26, 1997, the city workers’ compensation administrator, a supervisor from Parks & Recreation, the QRC, and the employee met to discuss the employee’s physical status and continuing employment with the city.  The participants agreed the employee was not suited to return to alternative duties with the City of St. Paul.  The QRC and Parks & Recreation supervisor maintained the employee was “unemployable.”  Mr. Bosch explained that the employee was then 52 years old, had performed heavy, laboring activities his entire career with the city, and did not have skills that would transfer to more sedentary work.

Sometime in March or April 1997, Dr. Denis completed a PERA Medical Disability Report.  The doctor stated the employee was partially disabled and did not meet the standard for total and permanent disability as defined in Minn. Stat. § 353.01, subd. 19.^[2]  Dr. Denis indicated the employee had permanent restrictions of no lifting greater than 20 pounds and no driving heavy equipment, referring to his enclosed notes.  In May 1997, Dr. James Mankey, a medical consultant at the Minnesota Department of Health, performed a medical records review and issued a medical opinion report regarding eligibility for PERA total and permanent disability benefits.  Dr. Mankey referenced Dr. Denis’s restrictions and his opinion that the employee was partially disabled.  The doctor described the employee’s job duties as operating heavy equipment, climbing on and off equipment, cutting and loading firewood, shoveling, maintenance of equipment, and related duties.  Dr. Mankey concluded that in light of the employee’s occupation and restrictions “so stated,” the employee met the PERA criteria for total and permanent disability.  (Pet. Ex. A.)

The employee also had applied for Social Security disability benefits.  A hearing on his application was scheduled for June 3, 1998.  In response, in January 1998, QRC Bosch concluded an updated medical evaluation should be obtained.  Because Dr. Denis had released the employee from his care, the QRC referred the employee back to Dr. Larkin.  Dr. Larkin saw the employee on April 22, 1998.  The doctor noted the employee had a poor result from the fusion surgery and continued to have a lot of symptoms in his left chest.  He stated the chest pain and parathesias would probably continue to bother the employee, although, even without surgery, the pain from the thoracic discs would likely get better as the years went by.  Dr. Larkin stated the employee was disabled from his work and was unable to return to any type of laboring job.

On July 1, 1998, a Social Security administrative law judge issued a decision finding the employee eligible for Social Security disability benefits commencing February 28, 1997, based on the employee’s back disorders.  The judge recited that the employee had been “assessed as having the ability to stand or walk for 2-3 hours in an 8 hour day in 10 minute increments, sit for 2-4 hours in an 8 hour day in 10 minute increments, and lift up to 10 pounds.  (Exhibit 7F)”  At the hearing, the employee testified he was limited in his ability to perform daily living activities as he had difficulty lifting and carrying, and had to change positions constantly.  He further testified he frequently had to lie on the floor to provide relief for his back symptoms.  Also testifying at the hearing was Dr. John LaBree, an impartial medical expert called by the Social Security Administration.  Dr. LaBree agreed with the assessment of the employee’s physical capabilities.  The judge concluded the employee’s impairments were of sufficient severity as to render the employee unable to be available for work on a consistent day-to-day basis, and the employee was, therefore, disabled.^[3]

On September 22, 1998, the employee was seen by Dr. John Nichols at the Arcade Clinic, as Dr. Gaertner had retired, for complaints of chest congestion.  Dr. Nichols noted the employee was status-post thoracic back surgery.  A chest x-ray noted resection of most of the left 7th rib and obliteration of one of the thoracic disc spaces as a result of post-surgical change.  On October 27, 1999, Dr. Nichols examined the employee and completed a PERA Physician Report, Continuation Process.  Dr. Nichols provided a diagnosis of back pain status-post thoracic fusion at T8-9, and indicated there had been no significant change in the employee’s disability in the past year.  The doctor stated no further treatment was available other than analgesics for acute flares, and stated the employee was permanently disabled and was not able to work.  In a subsequent PERA Medical Disability Report dated January 25, 1999, Dr. Nichols stated that in his opinion, the employee met the standards for total and permanent disability pursuant to Minn. Stat. § 353.01, subd. 19.

QRC Bosch continued to opine through September 1999, when he last provided QRC services for the employee, that the employee was permanently and totally disabled, noting persistent symptoms in the thoracic spine and chest with periodic flare-ups, particularly in the chest area.  He further noted the employee’s activities remained quite limited, requiring frequent changes of position and lying down periodically.

Following filing of the Petition for Adjudication of Permanent Total Disability in July 2008, the self-insured employer requested an employability assessment from QRC Bosch.  Mr. Bosch reviewed the medical and vocational information in his file and interviewed the employee.  In a report dated August 28, 2008, Mr. Bosch stated his opinion that the employee was not employable had not changed.  He maintained that the employee’s heavy equipment operator and laboring skills were not transferable to any type of sedentary job, and noted the employee was now 63 years old and had not worked since February 1997.  The QRC further stated that the employee’s chest and thoracic spine bothered him on a daily basis and he had to lie down several times during the day to bring some relief.  Mr. Bosch concluded the employee did not possess the persistence and pace to engage in employment on a consistent basis and that he remained permanently and totally disabled.

In January 2009, Jan Lowe, a vocational and rehabilitation counselor, conducted a vocational assessment at the request of the Special Compensation Fund (SCF).  Ms. Lowe reviewed medical and vocational reports provided by the city and interviewed the employee.  She noted the employee currently had multiple medical problems including left knee problems, arthritis in his hands which was painful and caused difficulty grasping objects, and a deteriorating back causing difficulty remaining in one position for any period of time.  Ms. Lowe conducted a series of vocational tests which showed “widely scattered scores” ranging from less than the second percentile to the 85th percentile.  His strengths were noted to be in mechanical comprehension, form perception, problem solving, and reading.  The employee worked slowly when doing fine finger and manual dexterity tests.

Based on the work restrictions provided by Dr. Dennis in March 1997, and the results of the employee’s vocational tests, Ms. Lowe concluded that the employee would have qualified for entry-level type jobs, such as sales clerk, delivery driver, hotel desk clerk, cashier, counter clerk, and security guard.  A survey was made of job postings in the Minneapolis Star Tribune, for these kinds of jobs, from March 1997 through February 1998.  Ms. Lowe concluded the employee was employable, could have returned to light work in 1997, and was not permanently and totally disabled from all work from March 1997 to the present.

The case was heard by a compensation judge at the Office of Administrative Hearings on August 18, 2009.  In a Findings and Order, served and filed November 2, 2009, the compensation judge found the employer failed to prove that the employee had been permanently and totally disabled from March 1, 1997 to the date of hearing.  The self-insured employer appealed and the employee cross-appealed.

The self-insured employer argues that the evidence, when taken as a whole, is manifestly contrary to the compensation judge’s determination that the employer failed to prove, by a preponderance of the evidence, that the employee was not permanently and totally disabled as of March 1, 1997.  We disagree.

The employer first argues that the evidence establishes the employee has been medically unable to participate in sustained, gainful employment since March 1, 1997.  The employee has an admitted work-related medical condition.  As a result of that condition, on March 3, 1997, Dr. Denis restricted the employee to light work with no lifting over 20 pounds, no continuous bending or twisting, and no operating heavy equipment.  These restrictions precluded a return to the employee’s regular work with the employer.  However, Dr. Denis opined, in a contemporaneous PERA Medical Disability Report, that the employee was only “partially disabled” and able to work within his light-duty restrictions.  Thus, as of March 1997, at least, there is competent medical evidence that the employee’s physical disability was not, in and of itself, totally disabling.

On July 21, 1993, the date of the employee’s injury, Minn. Stat. § 176.101, subd. 5, provided that “‘totally and permanently incapacitated’ means that the employee’s physical disability, in combination with the employee’s age, education, training, and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.”  The self-insured employer argues the evidence clearly demonstrates the employee was vocationally permanently and totally disabled as of March 1, 1997.  They point out the employee was 52 years old when he stopped working, he had a high school education, having graduated in 1962, and work experience in semi-skilled and laboring-type jobs, the last 26 years with the City of St. Paul.  QRC Steven Bosch, who worked with the employee from June 1995 through September 1999, opined the employee did not have skills transferable to sedentary-type jobs, was precluded from his previous moderate to heavy-duty work, and that, given the nature of the employee’s symptoms, he was unable to perform even sedentary work on a persistent and consistent basis, and was therefore permanently and totally disabled.^[4]

While there is evidence that supports the self-insured employer’s position, the compensation judge accepted Jan Lowe’s opinion that the employee was capable, physically and vocationally, of entry-level, light-duty jobs in March 1997, and that a job search would not have been futile.  This opinion was based on Dr. Denis’s restrictions, vocational testing conducted by Ms. Lowe, an interest survey completed by the employee in 2009, and a survey of entry-level job postings in the Minneapolis Star Tribune in 1997-1998 consistent with Ms. Lowe’s analysis of the employee’s vocational potential.  It is the responsibility of the compensation judge to determine the weight and credibility to be given to expert testimony and to choose among conflicting vocational opinions.  There is adequate foundation for Ms. Lowe’s opinion in this respect, and although the evidence is not overwhelming, we conclude the evidence is adequate to support the compensation judge’s determination that the employee was not permanently and totally disabled as of March 1, 1997.

We do not agree, however, with the compensation judge’s finding that the employer failed to prove permanent and total disability “to the date of hearing.”  First, we conclude that Ms. Lowe’s opinion that the employee was not permanently and totally disabled “to the present” lacks evidentiary support.  Ms. Lowe’s survey of job postings covered only the period March 1997 through February 1998.^[5]  No evidence was submitted of similar job postings for any year thereafter.  Ms. Lowe testified she “extrapolated forward” based upon the bare assertion that these “types” or “examples” of jobs were regularly available through 2008, and based on monthly unemployment rates printed from the Minnesota Department of Employment and Economic Development web page, showing “relatively low unemployment rates” in the Twin Cities through 2008.  (SCF Ex. 3, Tr. 197.)  This simply is not sufficient to establish that suitable, competitive employment likely was available for the employee during subsequent periods.  The lack of such evidence does not necessarily establish that the employee was permanently and totally disabled, but it is not sufficient to establish that the employee was not permanently and totally disabled.

The compensation judge appears to discount medical evidence and opinions expressed as part of the employee’s applications for PERA and Social Security disability benefits, indicating that such evidence is not binding and is irrelevant with respect to workers’ compensation claims.  While we agree that the legal determination of total and permanent disability for the purpose of eligibility for PERA and Social Security benefits is not binding, the content of the medical reports and opinions submitted in support of the claims have evidentiary value and may not be disregarded solely on the basis of the context in which they were provided.

The compensation judge stated in his memorandum that it was not clear whether Dr. Denis’s 1997 Medical Disability Report was ever submitted to PERA, and specifically found that Dr. Denis’s report was not cited in Dr. Mankey’s May 20, 1997, PERA medical opinion report (finding 17).  This is clearly incorrect as Dr. Mankey not only references Dr. Denis’s report and his May 3, 1997, chart note, he specifically cites the contents of Dr. Denis’s Medical Disability Report and lists the restrictions imposed by Dr. Denis.

Additionally, the compensation judge appears to discount the opinions of Dr. Mankey, Dr. Paule, Dr. Nichols, and Dr. LaBree on the basis that their “specialty” is unknown, that they did not examine or treat the employee, or that it was not clear what standard the doctor applied in evaluating the employee’s disability status.  There is no requirement that doctors must be medical specialists,^[6] nor is there any requirement of an examination.  A medical records review can provide adequate foundation for an expert opinion.  Similarly, the lack of a separate chart note describing more fully Dr. Nichols’ examination on October 27, 1999, is not evidence that no examination occurred nor does it evidence a lack of foundation for the report.  With respect to the standards applied, the PERA medical reports specifically cite and quote the PERA standard for total and permanent disability, Minn. Stat. § 353.01, subd 19.  The Social Security decision similarly references the Social Security Act, sections 216(i) and 223.

The compensation judge also emphasized that the functional capacities evaluation suggested by Dr. Denis has not been obtained.  While the lack of an FCE at the time at which the employee stopped working is relevant, consistent with the lack of a job search at that time, there is no requirement of an FCE to establish permanent total disability, nor is the lack of one significant for later periods.  The judge also stressed the lack of treatment after March 3, 1997, finding the employee did not return to Dr. Denis or any other medical provider for treatment or evaluation of his thoracic spine and chest condition after March 3, 1997.  The employee was evaluated by Dr. Larkin on April 22, 1998, who noted a poor result from the fusion surgery, and stated the employee continued to have a lot of pain and paresthesias in the left chest that would likely continue to bother him.  In his opinion, the employee was disabled from his work and could not return to any type of laboring job.  The employee was also examined by Dr. Nichols on September 22, 1998, for chest congestion.  At that time, Dr. Nichols noted the employee was status post back surgery, and a chest x-ray showed the previous thoracotomy with resection of most of the left 7th rib and obliteration of a thoracic disc space.  Dr. Nichols also examined the employee on October 27, 1999, for the purpose of preparing a PERA Physician Report Continuation Process.  Moreover, the employee had been dismissed from Dr. Denis’s and Dr. Larkin’s care, and in his 1999 report Dr. Nichols stated no further treatment was available other than analgesics for acute flare-ups.

Nor does the judge discuss the effect of the employee’s multiple non-work medical conditions in combination with the employee’s work-related condition on his ability to work.  The employee has bilateral carpal tunnel treated with surgery, significant arthritis in both hands, chronic low back pain, ongoing problems with depression, and more recently, problems with his left knee going back at least ten years, and problems with his right eye, including a recent cataract causing near blindness.

We cannot therefore conclude that the employee’s permanent total disability was either clearly established or not established, by a preponderance of the evidence, “to the date of hearing.”

The employee argues that a job search is not a necessary prerequisite to a finding of permanent total disability^[7], and that where the employee has a QRC, the question is not so much whether the employee made a reasonable search for work, but rather whether the employee cooperated with rehabilitation assistance.  See, e.g., Freeman-Fontaine v. Michaels Stores, No. WC04-299 (June 7, 2005); Wensman v. Order of St. Benedict, 64 W.C.D. 490 (2004); Dzuik v. University of Minn., slip op. (Mar. 15, 1999).  See Minn. Stat. § 176.102, subd. 13 (all workers’ compensation benefits payable under the act may be discontinued if the employee does not make a good faith effort to cooperate with rehabilitation).  Here, the employee worked with the city, and with his QRC, whose efforts focused on returning the employee to work with the City of St. Paul.  No job search was required by the QRC or requested by the self-insured employer.  There is, in this case, no dispute the employee fully cooperated with his QRC.

We do not hold that cooperation with rehabilitation means the compensation judge must find the employee permanently and totally disabled.  We do hold, however, that it is a factor the compensation judge must consider in determining the issue.

While the compensation judge - - and the parties - - focused on the question of whether the employee was permanently totally disabled as of March 1, 1997, the question presented to the judge was whether the employee was permanently totally disabled as a substantial result of his 1993 personal injury and, if so, the date on which permanent total disability commenced.  In his memorandum, the compensation judge stated that he was “not necessarily persuaded that the employee is not permanently and totally disabled.”  We have affirmed the finding that the employer failed to prove the employee was permanently and totally disabled through February 1998.  The question remains whether the employee became permanently and totally disabled at some point thereafter.  We, accordingly, vacate that portion of finding 19, finding no permanent total disability “to the date of hearing,” and remand for reconsideration.  We acknowledge this was a difficult case, particularly in light of the less than clear evidence submitted by the parties.  On remand, additional evidence may be submitted at the discretion of the compensation judge.