The employer and insurer appeal the compensation judge’s finding that the employee had not reached maximum medical improvement and the denial of discontinuance of temporary total disability benefits.  We affirm.

On January 6, 2010, Debra L. Bankston, the employee, sustained a work-related injury, the nature and extent of which remains disputed, when she fell while working as a driver for Second Harvest Heartland, the employer, which was insured for workers’ compensation liability by American Compensation Insurance Company, the insurer.  The employee was treated for pain in her rib cage, which resolved.  In March 2010, the employee reported left leg pain and parathesis involving her left foot.  The employee was treated with medications, physical therapy, and injections.  The employee was able to continue working, driving a truck, collecting food, assembling food onto pallets, and delivering food, until October 2010 when she was no longer able to perform her job duties.  The employer was able to provide light duty work for a short period.  The employer and insurer paid temporary total disability benefits.

On March 14, 2011, the employee was evaluated by Dr. Charles V. Barton at the employer and insurer’s request.  Dr. Barton opined that the employee’s January 6, 2010, injury was a temporary aggravation that had resolved by January 12, 2010, and was not a substantial contributing factor to the employee’s current low back condition.

The employee was referred to Dr. Stefano Sinicropi at Midwest Spine Institute.  On May 10, 2011, Dr. Sinicropi evaluated the employee and recommended that she consider a three level fusion surgery and other possible forms of treatment.  He indicated that the employee would have to stop smoking for six weeks before she could undergo the surgery, and that she should wait awhile before deciding to undergo the surgery.  Dr. Sinicropi also filled out a work ability form which stated the employee’s permanent restrictions of sedentary work, no lifting over five pounds, and no bending or twisting.  The form also indicated that she was at maximum medical improvement (MMI).  On May 13, 2011, the employer and insurer served and filed a notice of MMI based on that form.  In a September 9, 2011, report, Dr. Sinicropi opined that the employee had reached MMI for conservative care, but that she should consider having a multi-level lumbar fusion surgery.

On August 15, 2011, the employer and insurer filed a notice of intention to discontinue the employee’s temporary total disability benefits on the basis that the employee had reached MMI and the statutory 90-day post-MMI period had expired as of August 10, 2011.  At that time, the employee had not yet decided if she would undergo the surgery.  An administrative conference was held on September 15, 2011, and the discontinuance request was granted.  After an October 11, 2011, appointment with Dr. Sinicropi, the employee decided to undergo the surgery.  The employee filed an objection to discontinuance, and a hearing was held on November 30, 2011.  The compensation judge found that the employee had not reached MMI and granted the employee’s objection to discontinuance of the employee’s temporary total disability benefits.  The employer and insurer appeal.

The Workers’ Compensation Court of Appeals must determine whether the findings of fact and order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.^[1]  Substantial evidence supports the findings if, in the context of the entire record, they are supported by evidence that a reasonable mind might accept as adequate.^[2]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.^[3]  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”^[4]

The employer and insurer argue that the employee’s temporary total disability benefits should be discontinued on the basis that the statutory 90-day post-MMI period had expired.  Generally, temporary total disability benefits cease 90 days after the employee has reached MMI.^[5]  Maximum medical improvement is defined as “the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability,”^[6] and “occurs upon medical proof that the employee's condition has stabilized and will likely show little further improvement.”^[7]  Whether an employee has reached MMI is not a purely medical issue, but is an issue of ultimate fact to be determined by the compensation judge after considering all relevant evidence, including medical records, medical opinions, and the employee’s testimony.^[8]

The burden of proving MMI is normally on the employer and insurer.^[9]  The employer and insurer claim that the burden of proof was on the employee at the hearing in this case, arguing that they met their burden of proof at the administrative conference and that the burden of proof then shifted to the employee on the employee’s objection to discontinuance.  We disagree.  Under Minn. Stat. § 176.238, subd. 4(d), a hearing on an objection to discontinuance is a de novo hearing, and the employer and insurer have the initial burden of proof at the time of the hearing to establish the basis for discontinuance.^[10]

Minn. R. 5221.0410, subp. 3.A.(2) lists factors that are considered as indicating that MMI has not been reached, including:

The employer and insurer argue that substantial evidence does not support the compensation judge’s finding that the employee’s condition is “progressively deteriorating,” since the employee had testified that her low back condition had not changed since her May 2011 appointment with Dr. Sinicropi.  We note that the compensation judge stated that the employee was “progressively deteriorating” in his memorandum, not in a finding, but also stated that “[f]rom and after January 6, 2010, the employee’s low back condition gradually worsened” until she decided to pursue having the proposed fusion surgery in September 2011.  The judge did not state that the employee had progressively deteriorated since May 2011.  The employee’s testimony, her medical records, and Dr. Sinicropi’s opinion support the compensation judge’s conclusion that the employee’s condition had gradually worsened from the time she was injured until the time of the hearing.

The employer and insurer claim that the compensation judge erred by considering the proposed surgery as a factor in determining MMI, arguing that there must be a final determination on a proposed surgery in order to consider the surgery as a factor in determining whether an employee is at MMI, citing this court’s decision in Gaida v. Tri City Paving.^[12]  In that case, this court affirmed a compensation judge’s finding that an employee was not at MMI where the employee had not decided whether he would undergo a proposed low back surgery.  We have previously stated that an affirmance of a compensation judge’s decision based on substantial evidence is of little precedential value.^[13]  Further, while the compensation judge in Gaida had used the phrase “final determination” in the memorandum by stating that “unless and until a final determination is made regarding surgery” the employee was at MMI, this court affirmed the compensation judge based on the medical opinions in the record.  There is no requirement that there be a “final determination” on surgery before a compensation judge may consider a proposed surgery as a factor in determining whether an employee is at MMI.

Where an employee has chosen not to have recommended surgery, the fact that surgery has been proposed may not be relevant to a compensation judge’s determination of MMI.  An employee has to show some willingness to consider surgery in order for that proposed surgery to be considered as a factor in determining MMI.^[14]  The employer and insurer argue that the employee waited until after the 90-day post-MMI period expired before pursuing the proposed surgery.  While an employee cannot unreasonably delay or refuse recommended treatment in order to prolong attainment of MMI, prospective surgery is a legitimate factor in determining MMI.^[15]  The judge found that the employee delayed her decision regarding surgery due to the nature and extent of the proposed surgery and its related risks.  Given the extent of the surgery and Dr. Sinicropi’s recommendation that the employee wait to decide about the fusion surgery, the judge could reasonably conclude that the employee’s delay in this case was reasonable.  Further, the employee has now considered the surgery recommended by Dr Sinicropi and has testified that she intends to undergo the surgery.  The judge did not err by considering the proposed surgery as a factor in determining that the employee was not at MMI.

The employer and insurer argue that the second surgical consultation was not a diagnostic evaluation and should not be considered as a factor under Minn. R. 5221.0410, subp. 3.A.(2)(b).  The employee testified at the hearing that she had decided to have the surgery because she was “in too much pain to function normally anymore.”^[16]  She testified that she would like another doctor’s opinion on surgical options but that her intent at the time of her October 2011 appointment with Dr. Sinicropi was to “discuss the surgery with him, plan the surgery and get it going.”^[17]  She also testified that Dr. Sinicropi had told her that the surgery would allow her fifty percent more function.  Whether or not the second surgical consultation would be considered a diagnostic evaluation, the compensation judge did not err by considering the employee’s willingness to consider a second opinion on proposed surgery as an indication that the employee was not yet at MMI.

Given the compensation judge’s findings regarding the employee’s condition and her intention to undergo further treatment, and Dr. Sinicropi’s opinion that the employee was only at MMI for conservative care, substantial evidence supports the compensation judge’s finding that the employee was not at MMI.  Accordingly, we affirm the judge’s finding and the continuance of the employee’s temporary total disability benefits.