The City of St. Paul, self-insured employer, seeks appellate review under the substantial evidence standard^[1] to challenge Compensation Judge Nancy Olson’s findings that (1) the employee sustained a 10% permanent partial disability rating related to his low back condition, (2) the employee sustained a 20% permanent partial disability rating related to his psychological condition, and (3) the employee is permanently and totally disabled.

In November of 1999, George M. Pfoser was hired by the City of St. Paul, a self-insured employer, as a street maintenance laborer.  During his employment with the City of St. Paul, the employee suffered two work injuries.  The first injury occurred on June 18, 2002.  The second injury occurred on December 13, 2005.  The employee’s two injuries have physical, as well as psychological components.

On June 18, 2002, the employee injured his low back while attempting to stop a 60 pound roller from falling out of a truck.  Initially, the employee received three chiropractic treatments and was evaluated at the Regions Hospital emergency room.  A few weeks later, the employee was re-evaluated at Regions Hospital by a physician’s assistant who assessed the employee’s low back pain and recommended physical therapy with medications.  The employee was given weight restrictions on lifting, pushing, and pulling.  The employee was also restricted from bending, twisting, or squatting.  On July 11, 2002, the employee began physical therapy treatment.  The employee returned to Regions Hospital for a follow-up examination with Dr. Ralph Bovard.  Dr. Bovard diagnosed a left side musculoligamentous low back strain with no radicular symptoms.  Dr. Bovard increased the employee’s weight restrictions to no lifting, pushing, or pulling over 10 pounds.  The employee continued physical therapy.

The employee returned to see Dr. Bovard reporting ongoing pain that interfered with normal daily activities.  Dr. Bovard noted left-sided low back pain at L4-5, S1 and recommended an MRI of the lumbar spine.  The employee’s physical restrictions remained in place.  On August 22, 2002, the employee underwent an MRI to the lumbar spine.  The MRI revealed mild degenerative disc disease at the L1-2 and L4-5 levels, broad based disc bulging at the L3-4, L4-5, and L5-S1 levels, minimal caudal neural foraminal narrowing at L4-5 more prominent on the left, and mild right caudal neural foraminal narrowing at L5-S1.  Dr. Michael McGrail reviewed the MRI and concluded that the employee was not a candidate for surgery, but was a candidate for physical rehabilitation and therefore recommended a physical rehabilitation program.  Dr. McGrail decreased the employee’s weight restrictions to no lifting, pushing, or pulling over 20 pounds.

The employee participated in a rehabilitation program with Physician’s Neck & Back Clinic from August 28, 2002, through December 12, 2002.  After completion of the program and following the recommended restrictions, the employee continued to be symptomatic.  He returned to see Dr. Bovard on December 31, 2002.  Dr. Bovard diagnosed the low back pain as chronic pain and ordered sacroiliac joint injections.  The injections provided minimal relief, and the employee continued to report low back discomfort in the left sacroiliac region that was further aggravated by sitting or driving for more than one hour.  Dr. Bovard referred the employee to Dr. John Stark for an orthopedic evaluation and to Dr. Richard Timming for a physical medicine and rehabilitation consultation.  At the orthopedic evaluation, Dr. Stark discussed with the employee why physical therapy would not benefit him and further discussed the possibility of treating the symptoms by sacroiliac fusion.  A bone scan performed on April 2, 2003, was read as normal.

After an evaluation on April 29, 2003, Dr. Timming diagnosed chronic low back pain and left sacroiliac dysfunction with coccygeal pain, deconditioning syndrome, and possible psychological factors contributing to his physical problems.  Dr. Timming recommended a pain clinic and a biomechanical rehabilitation program with chiropractor Jim Brandt D.C.  The employee participated in the chiropractic rehabilitation program from August 2, 2003, through September 8, 2003.  He reported improvement at the end of the program, but later reported an increase of lower back pain.  Dr. Peter Marshall at Regions Hospital suggested that the employee continue with physical therapy.  By December 23, 2003, Dr. Bovard found the employee at maximum medical improvement [MMI] with 0% permanent partial disability but with physical restrictions.

The employee returned to Dr. Marshall at HealthPartners Riverside Occupational and Environmental Medicine Clinic, on January 9, 2004, reporting improvement especially when wearing a SI belt.  The employee returned again on February 2, 2004, after a flare-up of symptoms from bending forward while making signs during an attempt to return to work on January 28, 2004.  By March 2, 2004, the employee was discharged from the physical therapy program and instructed to continue therapy with a home exercise program.  At the time of discharge, the employee was not able to sit in a moving vehicle for more than one hour.  With these limitations, the expectation was to return the employee to restricted work with the City of St. Paul sometime in April of 2004.

Dr. Marshall noted psychological factors of frustration, stress, and anxiety, secondary to his chronic pain that could affect the employee’s ability to focus on his self-care program of strengthening and stabilizing and could contribute to his delayed recovery.  Dr. Marshall referred the employee to psychologist Dr. Ronald Wutchiett for a consultation on March 1, 2004.  At the psychological consultation the employee expressed frustration with not being able to perform his regular job and not being able to participate in physical activities he had enjoyed before his injury.  Dr. Wutchiett determined that the employee’s frustration and anxiety could be managed by short-term individual counseling.  At Dr. Wutchiett’s recommendation, the employee participated in one session, but declined further counseling.

The employee returned to work in April 2004 with restrictions of avoiding jarring activity and limiting continuous sitting to 30 minutes.  The employee periodically returned to Dr. Marshall for follow-up treatment for the next year, while he continued to work within his restrictions.  By November 10, 2004, the employee was able to perform heavy physical work such as shoveling and lifting without significant difficulty, but he still experienced increased sacroiliac joint pain after sitting more than 20 to 30 minutes.

On December 10, 2004, Dr. Marshall changed the employee’s restrictions to limiting continuous sitting for more than one hour and avoiding excessive jarring activities.  On April 29, 2005, the employee reported being able to drive snowplows eight to twelve hours a day, having more soreness in the sacroiliac joint afterward, but being able to recover from these symptoms.  Dr. Marshall released the employee to work without restrictions and referred the employee to Dr. Gloria Peterson at Physician’s Neck and Back Clinic.

The employee was evaluated by Dr. Gloria Peterson at Physician’s Neck and Back Clinic on August 2, 2005.  The employee was now working his regular job without physical restrictions from his doctor, but was reporting ongoing pain.  The employee underwent another lumbar spine MRI.  The August 20, 2005, MRI revealed degenerative changes without significant nerve impingement.  The employee enrolled in a rehabilitation program and participated in the program through November 17, 2005.  On November 22, 2005, Dr. Peterson found the employee had reached MMI with no permanent impairment.  Dr. Peterson discontinued the employee’s rehabilitation program after providing instruction in a home program.  The employee testified at hearing that he had fully recovered from his June 2002 work injury and was able to perform his regular job with no restrictions.

On December 13, 2005, the employee sustained an admitted work-related injury in a motor vehicle accident.  The employee was about to exit his work truck, which was parked on the shoulder of a city road, when the work truck was hit from behind by another vehicle.  The employee was taken to the emergency department at Regions Hospital by emergency medical services.  He reported pain in his neck, upper back, and shoulder blade.  X-ray films taken were normal.  The employee was prescribed medication and released from the hospital, but was taken off work until after a recheck.  On December 19, 2005, the employee treated with Dr. Marshall, who diagnosed neck pain, myofascial pain and stiffness, exacerbation of chronic low back pain, and SI joint dysfunction.  Dr. Marshall prescribed medication, gave the employee restrictions of no lifting over ten pounds, minimize neck flexion and rotation, and no jarring or forceful push and pull motions.  Dr. Marshall referred the employee to physical therapy rehabilitation.  On December 23, 2005, the employee reported ongoing neck, low back, and SI joint pain to Dr. Marshall, who noted acute cervical strain and stiffness with no neurologic symptoms and no indication for surgical evaluation or MRI.  The doctor also noted the exacerbation of chronic low back pain and SI joint dysfunction.  The City of St. Paul was not initially able to provide work within the employee’s restrictions.

The healing progress during the time the employee participated in physical therapy was slow.  At a January 31, 2006, appointment with Dr. Marshall, the employee reported increased pain, trouble sleeping, and a strong frustration and anxiety about not working and about his overall physical condition.  These symptoms and conditions were all present after the completion of the employee’s January 2006 physical therapy program and after a documented improvement in the employee’s range of motion.  Dr. Marshall recommended that the employee work with a Qualified Rehabilitation Consultant (QRC), obtain a MRI and CT scan of the cervical spine, and referred the employee for aquatic physical therapy, which the employee did from January 31, 2006, through March 30, 2006.

The February 1, 2006, MRI revealed mild to moderate multi-level disc degeneration, mild posterior annular bulging at C6-7 and C5-6 with mild central stenosis but no cord flattening, possible small foraminal herniated nucleous pulposus with left C7 nerve root impingement, and moderate right C6-7 and right C5-6 foraminal stenosis.  The February 2, 2006, CT scan indicated bilateral small posterolateral and foraminal disc herniations, left greater than right, with neural impingement at C6-7, and a small right paracentral herniated nucleous pulposus at C5-6 contacting but not compressing the ventral cord.  On February 6, 2006, the employee underwent a neurological evaluation with Dr. Ansar Ahmed.  Dr. Ahmed noted that there were indications of psychological factors affecting physical complaints and found the employee had degenerative changes with no clinical evidence of nerve impingement.

From March through June 2006, the employee underwent additional physical therapy and participated in a rehabilitation program.  On April 19, 2006, Dr. Marshall referred the employee to Dr. Timming for a physical medicine and rehabilitation consultation and for a second opinion regarding rehabilitation.  Dr. Marshall also referred the employee to Dr. Wutchiett for a second psychological evaluation.  At the psychological evaluation on May 1, 2006, the employee reported being frustrated with his ongoing pain and worried about his ability to return to work and his ability to be physically active.  Dr. Wutchiett noted that the employee may downplay psychological distress out of concern that his condition will be attributed to psychological factors instead of physical problems.  Dr. Wutchiett once again recommended short-term individual counseling.

Dr. Timming evaluated the employee on May 26, 2006, and assessed chronic neck pain, chronic low back pain, deconditioning, stress, anxiety, occupational impairment, and left shoulder pain with probable impingement.  Dr. Timming recommended that the employee continue physical therapy and work hardening.  He did not change the employee’s physical restrictions.  The employee underwent an MRI of the left shoulder and an EMG of the left arm.  Dr. Timming reviewed the MRI and found mild subacromial bursal inflammation, tendinosis, and fraying of the anterior labrum.  He also reviewed the EMG and found the results consistent with carpal tunnel syndrome.  These findings were not correlated to his work injuries. Dr. Timming referred the employee for an orthopedic evaluation with Dr. Marshall, who recommended ongoing restrictions, pool therapy, and low impact modalities.

In September 2006, Dr. Bovard recommended that the employee be evaluated by a neurosurgeon, Dr. Mark Larkins.  An October 3, 2006, CT scan indicated multi-level degenerative changes at L4-5 and L5-S1 with mild bilateral neural foraminal narrowing.  An October 4, 2006, left upper extremity EMG indicated mild chronic non-progressive left C8 radiculopathy.  Dr. Larkins did not make a specific diagnosis, and suggested acupuncture or Botox injections.

The employee returned to Dr. Timming on October 20, 2006, reporting improvement in his overall condition.  He discussed with Dr. Timmings the offer of part-time modified work by the City of St. Paul.  Dr. Timming released the employee to work three days a week, four hours per day, with no lifting, carrying, pushing, or pulling over 40 pounds.  The employee was to change positions as needed.  The employee underwent a course of acupuncture for six weeks.  He reported some improvement with the treatment but the work activities aggravated his overall condition.  In November 2006, the employee was laid off until spring.^[2]

On January 26, 2007, the employee was evaluated for a work hardening conditioning program.  A chiropractic consultation and treatment were recommended before the program started.  The employee showed some improvement in core strength, endurance, and tolerance to activity.  The employee had also developed abdominal contractions which were observed by the therapist.  The employee attempted to return to his regular job as part of an on-site trial on June 4, 2007, but he could not tolerate the work activities.  He reported increased symptoms to Dr. Timming, who assessed chronic pain, noted psychological factors, and found de-conditioning and weakness of core trunk stabilizers.  Dr. Timming continued to restrict the employee from lifting more than 20 to 25 pounds and recommended trigger point injections.

The employee again participated in a physical therapy program from August 6, 2007, through September 21, 2007.  Dr. Timming then referred the employee to the Mayo Spine Clinic, but the referral was denied.  Additional trigger point injections were performed on November 27 and December 4, 2007.  Trigger point injections did not provide the anticipated relief.

The employee was referred to Impact Physical Therapy for an outpatient physical therapy program on January 2, 2008, by Dr. Mark Agre.  Dr. Agre recommended a pain management program at the Phoenix Center.  Dr. Matthew Monsein met with the employee at the Phoenix Center for a pain management evaluation.  Dr. Monsein assessed chronic pain with depression and recommended that the employee consider the pain rehabilitation program when there were no interventional options.  The employee completed the Phoenix Center Pain program in March 2008.  The employee fully participated in the program and learned various pain management techniques.  He was assigned restrictions of sitting 2-5 hours, standing 1-4 hours, and walking 1-4 hours in an eight hour day with frequent changes of position; avoiding squatting, crawling, and climbing; occasional bending/stooping, crouching, kneeling, balancing, pushing, and pulling; occasional lift and carry to 10 pounds; no forward neck flexion for extended period of time; and occasional flexion and rotation of the neck.  Dr. Timming indicated that the employee should be restricted to a four hour day.  The employee continued with follow up aftercare at the Phoenix Center through May 26, 2008.

On August 4, 2008, the employee attempted to return to work for two hours per day.  On August 25, 2008, Dr. Timming recommended restricting the employee’s work activities to two to three hours per day, two days per week, until the employer provided ergonomic equipment.  During this period, Dr. Timming assessed the employee with a 10% permanent partial disability rating for his low back under Minn. R. 5223.0390, subp. 3.C.(2), and a 13% permanent partial disability rating for his neck under Minn. R. 5223.0370, subp. 4.E.(1).

On September 18, 2008, the employee was evaluated by psychologist Dr. C. Alan Steed.  Dr. Steed diagnosed the employee with a mood disorder due to chronic pain.  The employee treated with Dr. Steed on two occasions, in October 2008 and in November 2008.  The employee stopped physical therapy in November 2008 after finding no improvement to his chronic pain condition and further experiencing abdominal spasms.  Recommendations for additional tests and a neurological evaluation were denied.

On February 11, 2009, Dr. Timming released the employee to work under Dr. Monsein’s restrictions from March 2008 but modified the restrictions to include a gradual increase in work hours to meet an eight hour work day.  In April 2009, the employee received trigger point injections that provided temporary relief.  Dr. Timming noted that he would not recommend additional trigger point injections.

In May 2009, the employee was evaluated by psychologist Jacqueline Moeller, Psy.D., L.P., at the Courage Center.  Dr. Moeller diagnosed chronic pain, depression, and anxiety and recommended psychotherapy to help with the employee’s grief process due to loss of function and loss of career.  After eight sessions, the employee reported cathartic benefit but no reduction in depressive or anxiety symptoms.  Dr. Moeller opined that the employee’s progressive decrease in emotional and personality function mirrored his progressive physical and occupational functioning.  She diagnosed a pain disorder associated with psychological factors and a general medical condition; major depressive disorder, single episode, moderate; and anxiety disorder not otherwise specified.  Psychometric testing indicated that the employee’s depressive symptoms had increased.^[3]  Dr. Moeller also noted that before the employee’s injury, he relied significantly on his physical abilities to function and to compensate for his learning disabilities and/or cognitive impairments.  Specifically, Dr. Moeller stated “that the patient’s onset of depressive symptoms began 4-6 months following the injury of June 18, 2002, and that these symptoms worsened over time.”  She believed that the employee’s anxiety and depression worsened due to his increasing awareness that his physical condition would not change, and opined that any job placement be in a low stimulus environment with frequent breaks.

Dr. Moeller initially rated the permanent partial disability for the employee’s psychological condition under a Weber rating^[4] related to Minn. R. 5223.0360, subp. 7.D.(3).  She later changed her opinion to a Weber rating related to Minn. R. 5223.0360, subp. 7.D.(2), which provides a 20% permanency rating for an organic brain dysfunction resulting in a mild emotional disturbance which is present at all times but with which the employee can live independently and relate to others.

On July 15, 2009, the employee was evaluated by Dr. Nolan Segal at the employer’s request.  Dr. Segal diagnosed multi-level degenerative disc disease of the cervical, thoracic, and lumbar spine; full range of motion of the lumbar spine; and some limited range of motion in the cervical spine.  Dr. Segal opined that the employee had reached MMI as of October 30, 2008, with permanent restrictions.  Permanent restrictions included avoiding repetitive bending, lifting and twisting, and no lifting or carrying over twenty pounds.  Dr. Segal recommended no further treatment other than an active home exercise program.  Dr. Segal assigned a 13% permanent partial disability rating for the employee’s neck condition and a 0% rating for the employee’s lumbar spine condition.

On November 10, 2010, the employee was seen by Dr. Thomas Gratzer for a psychiatric evaluation on behalf of the self-insured employer.  Dr. Gratzer diagnosed a pain disorder associated with psychological factors and a general medical condition; adjustment disorder with mixed anxiety and depressed mood; mixed personality traits; and a developmental learning disorder.  Dr. Gratzer opined that the employee’s pain complaints showed functional overlay.  Dr. Gratzer further concluded that the employee’s adjustment disorder was not attributable to the employee’s work injuries and was not an impairing condition.  He found the employee to be at MMI with no restrictions, and no need for further psychiatric treatment.

In March 2006, the employee began working with QRC Mary Thayer.  The initial rehabilitation plan for the employee in April 2006 indicated that his vocational goal was to return to work for the employer in a medically appropriate position.  The employee had initial restrictions of no lifting over 20 pounds, minimized neck flexion, and no operating large equipment with jarring vibration.  The employer could not accommodate those restrictions.  In October 2006, the employee returned to work part time with restrictions, working four hours per day, three days per week.  In November 2006, the employee was laid off until spring.  In March 2007, the vocational goal was still to have the employee return to work for the employer.  In June 2007, as part of a work hardening program, the employee attempted to return to work in his regular job with the employer in an on-site trial.  The employee was only able to work for a short time before experiencing an increase in symptoms, and he stopped working after attempting to work on four different days.  On July 7, 2007, the employee was offered a light duty temporary position with the employer.  Despite accommodations, the employee experienced an increase in his low back and neck symptoms while working.  Dr. Timming took the employee off of work in August 2007 to focus on therapy.

Vocational testing in October 2007 indicated the employee had low average general intellectual ability, but the examiner noted that the employee had physical limitations and a learning disability, and concluded that the employee might be permanently and totally disabled.  Job search activities were approved, and a job placement plan and agreement was completed on December 14, 2007, which targeted positions including property maintenance management, route sales/service representative, and security positions.  The employee’s job search was placed on hold in order for the employee to participate in a pain management program in February 2008 and for exploration of retraining options in April 2008.  After evaluations at two community colleges, which indicated that the employee was not likely to successfully complete a full degree program, the QRC determined that retraining was not an option for the employee.  The job search began again in July 2008, looking specifically at security positions.  On July 31, 2008, the employee was offered a light duty office position with the employer.  The employee began working on August 4, 2008, two hours per day, five days per week.  On the first day, the employee experienced increased symptoms after working 45 minutes.  The next day the employee met with his QRC and his manager about adjusting his work station.  On August 25, 2008, Dr. Timming limited the employee to working two to three hours per day, two days per week until additional ergonomic changes were made.  The employee reported increased pain on August 28, 2008, and Dr. Timming took the employee off work pending additional medical testing.  The employee was released to work on February 11, 2009, with permanent restrictions.  The employer did not have light duty work available at that time.

Another job placement plan and agreement was signed on March 18, 2009, targeting positions including customer service, retail sales, group home residential assistant, and job coach.  The employee met with the job placement vendor, explored the job leads, made some job contacts and had one interview.  The employee had concerns about the physical requirements of the jobs.  The QRC stated that the employee was cooperating with the job search, but that he had significant barriers, including physical capabilities, learning disability, and limited transferable skills.  The QRC noted that job search activities were no longer authorized in September 2009.  On February 16, 2010, the employee underwent a vocational assessment at the Minnesota Resource Center, which concluded that the employee was unlikely to engage in gainful employment given his pain level and his lack of transferable skills and recommended that he pursue social security disability income.  In March 2010, the QRC recommended that the employee not continue an active job search.  The employee continued to conduct a limited job search on his own.

On June 10, 2010, the employee underwent a vocational evaluation by L. David Russell at the employer’s request.  Mr. Russell reviewed the employee’s education and intelligence records and found that he was in the average category.  Given the employee’s work restrictions, he determined that the employee could perform sedentary to light duty work activities.  Mr. Russell concluded that the employee was employable within the Twin Cities area with an average wage of $12.00 per hour.  He opined that the employee’s job targets were mismatched to his employability and identified specific job opportunities for the employee, including light equipment operator, light delivery driver, school bus driver, messenger, courtesy driver, chauffeur, security guard or monitor, assembler, packager, counter clerk, and cashier as being appropriate for the employee.  Mr. Russell conducted a labor market survey and found that positions such as school bus driver, car rental shuttle driver, van driver, light delivery work, and security positions were available in the area.  Finally, he concluded that the employee did not have a learning disability, that he could attend college courses, and that he had not conducted a diligent job search.  The employee’s QRC disputed Mr. Russell’s conclusions, testifying that the employee’s job targets were not mismatched to his employability since they only explored jobs that were physically appropriate and economically suitable.  Several of the jobs listed by Mr. Russell had been considered, including security positions, cashiering, parking lot attendant, driver, and delivery positions.  The QRC testified that some of these jobs were not physically appropriate for the employee and others were explored but no positions were found.

On May 14, 2009, the employee filed a claim petition for permanent and total disability benefits from and after February 20, 2008.  The employer denied that the employee was permanently and totally disabled.  The employer also disputed the employee’s claim for 20% permanent partial disability for the employee’s psychological condition, and claimed that the 10% permanent partial disability previously paid for the employee’s low back condition was paid under a mistake of fact.  A hearing was held on November 23, 2010.  The compensation judge found that the employee sustained a 10% permanent partial disability rating related to his low back condition, that the employee sustained a 20% permanent partial disability rating related to his psychological condition, and that the employee is permanently and totally disabled from and after February 20, 2008.  The self-insured employer appeals.

The Workers’ Compensation Court of Appeal’s power to review is provided in Minn. Stat. ch. 175A and ch. 176.  In this case, the scope of review is limited to the issues raised at the hearing.  A compensation judge’s finding of fact will not be set aside on appeal unless they are unsupported by substantial evidence.  Substantial evidence supports the compensation judge’s finding if, on the entire record, the finding is supported by evidence that a reasonable mind might accept as adequate.^[5]

The employer argues that the compensation judge’s finding that the employee sustained a 10% permanent partial disability rating related to his low back condition is unsupported by substantial evidence.  We disagree.  Judge Olson’s finding of a 10% permanent partial disability, based on Dr. Timming’s report and individual medical evaluations, is supported by substantial evidence.  Judge Olson evaluated both Dr. Timming’s and Dr. Segal’s medical reports.  Dr. Segal’s report referenced individual medical evaluations that indicated a normal lumbar spine range of motion, and concluded that the employee had a 0% rating.  The judge, however, found the employee’s symptoms of pain in the lumbar spine were supported by objective clinical findings, multi-level degenerative changes documented on MRI and CT scans, and related to the 2002 and 2005 work injuries.  Based on the entire record, the judge found the permanent partial disability and causation opinions by Dr. Timming to be reasonable, credible, and more persuasive than Dr. Segal’s opinions.  The judge rejected Dr. Segal’s medical opinion that the employee did not have a permanent partial disability to his low back condition.  The choice between conflicting medical experts generally rests with the compensation judge.^[6]  The history documented in the medical records and the individual evaluations that addressed a decreased range of motion, muscle tightness and radiographic abnormalities on scans support the compensation judge’s findings that award a 10% permanency rating under Minn. R. 5223.0390, subp. 3.C.(2).

The employer also argues that the compensation judge’s finding that the employee sustained a 20% permanent partial disability related the employee’s psychological condition is not supported by substantial evidence and should be reversed.  The judge based her finding on Dr. Moeller’s opinion that the employee sustained a 20% permanent partial disability rather than a 0% rating based on Dr. Gratzer’s opinion.  Dr. Moeller was of the opinion that a Weber rating using Minn. R. 5223.0360, subp. 7.D.(2) to measure the impairment of function from the employee’s chronic pain with mixed anxiety and mood disorder was appropriate.  The employer claims that the use of a Weber rating is not appropriate because the impairment represented by the rating requires a mild emotional disturbance be present at all times, pointing out that the employee testified that he had fully recovered following the 2002 injury.

The employer argues that Dr. Moeller’s opinion that the employee has had ongoing problems with depression and anxiety since the first injury is contrary to the employee’s testimony.  The employee testified that before his second injury he had fully recovered and was able to perform his regular job with no restrictions.  By April 29, 2005, the employee reported being able to drive snowplows eight to twelve hours a day, having more soreness in the sacroiliac joint afterward, but being able to recover from these symptoms.  The gradual release to full time heavy labor without physical restrictions was not without back pain.  The timing and circumstances of the employee’s return to full time work while managing his back pain were considered by the employee to be a full recovery before the second injury.  The medical records document a continued anxiety and pain component up to November 2005.

Judge Olson found the employee had no history of serious psychological problems predating his work injuries.  In 2006, Dr. Ahmed found degenerative changes with no clinical evidence of nerve impingement, but further noted that psychological factors were affecting the employee’s physical complaints.  After the second injury, the employee’s chronic pain restricted his activities causing high levels of frustration, worry, anxiety and depression.  The uncontrollable fluctuations of frustration, worry, anxiety and depression were constant disruptions that affected his emotional state.  Although the employee’s condition did improve after 2002 and he was able to work, he still treated under a physical therapy program through November 2005.  A short-term improvement in the employee’s physical and mental condition does not negate the psychologist’s opinion that the employee’s overall depression had worsened over time.  Dr. Moeller was discussing a broader time frame which included the 2005 injury and the employee’s ongoing depression after that date.  The employee’s overall psychological condition is a part of the chronic pain syndrome.  The history of increases and decreases of the employee’s depressive state is a constant element to be reconciled with his chronic pain.  The emotional disturbance is documented by medical observation and psychometric testing.

Dr. Moeller’s opinion was predicated on different factual assumptions as to whether the employee’s psychological symptoms of his condition were permanent and constant.  The emotional disturbance ascribed were uncontrollable fluctuations of his emotional state.  The fluctuations present a pattern of behavior documented in the employee’s psychological tests and in medical records that could be controlled but not resolved.  The opinions of Dr. Gratzer were based on a view of the facts, contrary to Judge Olson’s factual findings, that the psychological problems were temporary and would resolve.  The judge rejected Dr. Gratzer’s opinion that the employee’s psychological problems were unrelated to the work injuries.  She accepted the diagnosis of the treating psychologist and adopted her restrictions.  We cannot conclude that the compensation judge clearly erred in accepting Dr. Moeller’s opinions over Dr. Gratzer’s opinions.  The disability rating given by Judge Olson is based on cumulative evidence that defines the nature and extent of the employee’s psychological condition.  Based on the evidence as a whole, Judge Olson found the rating appears to most closely approximate the psychological condition of the employee post injury.  Substantial evidence, including medical records and expert medical opinions, supports Judge Olson’s award of a 20% permanency rating under the Weber rating using Minn. R. 5223.0360, subp. 7.D.(2).

The employer also claims that the compensation judge’s finding that the employee is permanently and totally disabled is unsupported by substantial evidence.  The employer argues that the employee is capable of working within his restrictions, has no psychological significant limitations, is not limited by his learning disabilities, did not make a good faith effort to return to work, did not conduct a diligent job search, and did not adequately explore retraining.  The employee was 43 years old on the date of the hearing.  Judge Olson found the question of permanent total disability to be a very difficult issue given the employee’s young age.  The compensation judge determined, however, that as a result of physical and psychological effects of the employee’s work-related injury in combination with his training, experience, as well as the type of work available in his community, the employee was permanently and totally disabled.^[7]

In 1997, the employee took a series of tests as part of an educational evaluation.  The results of the tests were compared with the employee’s previous reading and writing scores and interpreted to be evidence of a learning disability.  The learning disability limited the employee’s career choices to predominately physical jobs that paid $794.21^[8] at the time of the 2005 injury.  Before the work injuries, the learning disability did not affect the employee’s ability to find a job within his physical capabilities.  When the employee was not working, he enjoyed an active lifestyle.  After the work injuries, the learning disability became a complicating factor in a series of setbacks from the loss of his job and the lack of success in the employee’s job search.  The employee could no longer perform the physical functions of his regular job with the employer without significant pain and was restricted to seeking employment in light duty work with a low stimulus environment.  The employee testified to what the judge determined to be good faith attempts to return to work in very light duty limited hour positions.  None of these attempts were successful.  The compensation judge found the combination of the employee’s physical limitations related to the injuries, his learning disability, and the chronic pain which was aggravated when performing very light duty positions, stymied his efforts to seek employment.

The employee’s QRC, Mary Thayer, offered the opinion that the employee was not competitively employable.  A contrary opinion was offered by L. David Russell who opined that the employee was employable in the competitive labor market.  The compensation judge did not accept Mr. Russell’s opinion as credible given her determination that the employee made a number of good faith attempts to return to his job in a modified position and was unsuccessful.  The compensation judge concluded that the potential employers listed by Mr. Russell would be unlikely to modify a job to the extent that the employer already tried.  The employer challenges the job search as insufficient to support the finding of total disability.  We disagree.  The employee testified that he tried to look for work, but his restrictions limited what he could do, and that he, his family, and two job vendors had run out of ideas of what type of work he could perform.  The QRC testified that the employee had cooperated with his rehabilitation plan and that his job search was reasonably diligent in his limited labor market.  The compensation judge relied on this testimony and determined that the job search was sufficient and that the employee was unlikely to find competitive employment.  Evidence supporting these findings includes the employee’s testimony, vocational assessments, the vocational opinion of the employee’s QRC, and the medical opinions of the treating physicians and psychologist.  As the employee’s psychologist noted, the employee’s “anxiety, depression, and chronic pain are so intertwined as to be inseparable.”  The employee’s depression was a factor inhibiting his success in rehabilitation as he hoped to recover and return to his regular job.  The judge found the employee’s physical condition in combination with the psychological condition, learning disability, training, experience, and lack of success in job search, to be evidence of permanent total disability.

Permanent total disability is not solely a reflection of the employee’s physical condition but is primarily dependent upon the employee’s ability to find and hold employment.^[9]  Jobs available beyond the jobs held by the employee at the City of St. Paul would require additional skills and/or physical modifications to perform the functions of the job.  The line of argument that the employee could perform sedentary to light duty work activities is contrary to the evidence presented.  Judge Olson found the employee credible when he testified he could not perform the modified jobs offered by the employer after the 2005 injury.  Retraining or returning to school was explored and rejected given the employee’s learning disability and chronic pain syndrome.

Judge Olson evaluated all the evidence and found this case presented a rare and unique set of facts where an employee of this age is found to be permanently and totally disabled.  We conclude the evidence in this case was sufficient to support the compensation judge’s findings.  We affirm the compensation judge’s findings and order.