The self-insured employer appeals from the compensation judge’s conclusion that the employee did not voluntarily retire or remove himself from the labor market and from the judge’s consequent denial of discontinuance of temporary total disability benefits and of a credit for overpayment.  We affirm.

On September 11, 2007, Leland Tollefson sustained a work-related injury to his neck when he fell into a steep gully and struck his head on some rocks while surveying a ditch in the course of his work as chief surveyor and construction inspector for Rice County.  Mr. Tollefson, the employee, was sixty-three years old on that date and was earning a weekly wage of $1,015.60.  Rice County, the employer, which was self-insured for workers’ compensation liability at the time of the injury, acknowledged liability for the injury and commenced payment of benefits.  An MRI scan on October 15, 2007, revealed a herniated disc and osteophyte complex at C6-7, together with a smaller disc/osteophyte complex at C5-6, and on November 30, 2007, the employee underwent a discectomy and fusion at the C6-7 level of his spine.  He was subsequently released to return to work on January 14, 2008, restricted from lifting over thirty pounds and from performing overhead work.  On November 6, 2008, the employee’s surgeon, Dr. McCue, submitted a Health Care Provider Report, indicating that the employee had reached maximum medical improvement (MMI) on October 29, 2008, with regard to his November 5, 2007, work injury, having sustained a 14.5% whole-body impairment.

The employee’s neck symptoms persisted over the course of the following months, and an MRI scan on March 13, 2009, revealed mild to moderate degeneration at the C5-6 level, just above the level of the employee’s C6-7 fusion.  With the employee complaining of “unbearable neck and right shoulder pain” and almost daily headaches, on March 16, 2009, Dr. McCue recommended additional surgery, and on March 20, 2009, he performed on the employee a plate removal at the C6-7 level of his previous fusion, together with a second fusion, at the C5-6 level of the employee’s spine.  The employee was released to return to work four hours a day on April 6, 2009, restricted from lifting, pushing, or pulling over ten pounds, against overhead working or reaching, and against extreme neck flexion or extension.  On June 25, 2009, the employee’s restrictions were made permanent, with no repetitive lifting of over fifty pounds, and he was released to return “as tolerated” to his job with the employer.

About two years after his neck injury, in November of 2009, the employee commenced chiropractic treatment for increasing pain in his low back that had begun months earlier.  The condition eventually resulted in left leg pain, and, following an MRI scan on January 7, 2010, which confirmed a spinal disc herniation at L2-3, the employee underwent surgical repair of the condition on April 13, 2010.  He was released to return to his job with the employer on May 6, 2010, restricted from lifting over ten pounds.  On July 19, 2010, the employee sustained a personal injury to his low back when, in the course of his work for the employer, he lost control of the truck that he was driving and drove it into a ditch.  The employee felt a sharp pain in his low back immediately after the accident, and he reported the injury the following day.  The employee was sixty-five years old at the time and was earning an average weekly wage of $1,180.00.

About two months later, on September 9, 2010, in worsening low back pain and left leg numbness, the employee contacted Dr. McCue’s office and was advised to get another MRI scan.  On September 14, 2010, he went off work and submitted in writing to Dennis Luebee, Rice County Engineer, “official notice of my retirement from the Rice County Highway Department” as of “January 7, 2011 which is the last day of the pay period for 2010.”  The employee’s MRI scan, conducted on September 15, 2010, was read to reveal a very large recurrent disc herniation at L2-3, and Dr. McCue recommended a complete discectomy and fusion.

On October 20, 2010, the employee e-mailed Keri Anderka in Rice County’s Human Resources department, asking to delay his retirement date from January 7, 2011, until after his recommended surgery.  He was told in an e-mail from Ms. Anderka that the county’s policy was that, once a letter of intent to resign has been submitted, “[a]n employee’s separation date may not be extended by using vacation, sick leave, or severance to meet the minimum notice required.”  She indicated that, if there were a doctor’s statement indicating that the employee could not work on his scheduled end date, the county would keep the scheduled end date without requiring the employee to come in, and that it was her understanding that the employee was currently medically authorized to work and was just on vacation.  The employee evidently accepted that explanation.

On October 26, 2010, the employee applied for Public Employee Retirement Association (PERA) retirement benefits, having earlier applied for Social Security retirement benefits, which he had been receiving since February 2010, when he had turned age sixty-six and so become eligible for full retirement benefits regardless of any additional earnings.  On November 15, 2010, the employee underwent the recommended fusion at the injured L2-3 level of his spine and was subsequently totally restricted from working.  On December 28, 2010, the employee was presented with a retirement gift at a meeting of the Rice County Board of Commissioners, which the employee apparently accepted.

By January 4, 2011, the employee was claiming to be ninety percent improved, and x-rays revealed pedicle screws and connecting rods to be in good position without loosening.  The employee remained, however, totally restricted from all work.  Effective February 1, 2011, the employee began receiving his PERA retirement benefits, and on February 2, 2011, the self-insured employer filed a notice of intention to discontinue (NOID) the employee’s temporary total disability benefits on grounds that the employee had retired on January 7, 2011, and had withdrawn from the labor market.  On February 23, 2011, the employee filed a rehabilitation request, seeking a rehabilitation consultation and services. An administrative conference was held on the employer’s NOID on March 14, 2011. 

On March 17, 2011, QRC Jeff Hokeness conducted a rehabilitation consultation with the employee and determined that the employee was statutorily qualified for rehabilitation services.  In his report on that date, QRC Hokeness stated that the employee had indicated as follows:

On April 1, 2011, QRC Hokeness noted that the employee had told him of the possibility of a light duty job with a local construction company that he had discovered and that he had been applying with numerous places.  Pursuant to the compensation judge’s denial of its request to discontinue benefits, the employer, on April 4, 2011, filed a formal petition to discontinue benefits and also to recover overpayment of benefits paid since the date of the employee’s retirement.  On April 6, 2011, the employee signed a rehabilitation plan to seek full-time work of a medium heavy nature, and that same day he started working part time at a wage loss doing estimating and office work with Max Johnson Trucking.  The employee was paid $15.00 per hour and worked on an as-needed basis.  The rehabilitation plan was served on the employer’s claims administrator on April 12, 2011. 

On April 15, 2011, the employee filed a claim petition, alleging entitlement to temporary partial disability benefits continuing from April 6, 2011, to undetermined medical mileage expenses, and to continuing rehabilitation assistance, all consequent to his work injuries on September 11, 2007, and July 19, 2010.  In an e-mail on April 26, 2011, the employer’s claims representative declined to sign the employee’s rehabilitation plan, pending a hearing that had been set for May 12, 2011.  In a letter to the Department of Labor and Industry on that same date, April 26, 2011, QRC Hokeness reported that the rehabilitation plan, which had apparently been filed on April 19, 2011, had been neither signed nor returned by the claims representative and that no formal objection or rehabilitation request had been filed.  On May 4, 2011, the employer’s petition to discontinue benefits and the employee’s claim petition were consolidated for purposes of hearing.

On May 10, 2011, the employee’s restrictions were relaxed to permit him to lift up to fifty pounds occasionally while avoiding walking on uneven ground, although it was noted that he was continuing to complain of lower left extremity pain.  On May 12, 2011, the employee was examined for the self-insured employer by neurosurgeon Dr. Terry Hood.  In his report on June 1, 2011, after having obtained a history from the employee and conducted a physical examination and an examination of the employee’s medical records and radiographic studies, Dr. Hood diagnosed degenerative disc disease of both the cervical and lumbar spine.  It was Dr. Hood’s conclusion that the employee’s cervical work injury of September 11, 2007, had resulted in a temporary sprain/strain injury superimposed on a pre-existing cervical radiculopathy, which temporary work injury had not resulted in any continuing restrictions.  It was Dr. Hood’s further conclusion, however, that the employee’s lumbar work injury of July 19, 2010, was a substantial contributing factor in the employee’s recurrent disc herniation on the left at L2-3 and that that injury had resulted in continuing restrictions from lifting over fifty pounds and from doing much bending, stooping, or twisting of the lumbar spine.  Dr. Hood concluded further that the employee was capable of working full time within these restrictions.  He also recommended nonwork-related cervical restrictions against performing much overhead work and against extremes of cervical range of motion.

On July 7, 2011, QRC Hokeness wrote to the employer, explaining the employee’s restrictions and inquiring into the availability of any suitable jobs for the employee.  On July 27, 2011, the employee signed an amended rehabilitation plan, which QRC Hokeness had signed the previous day.  The employee evidently told the QRC that he had already applied for work at several businesses in the Northfield area on his own and had been searching for work also in the newspaper classified ads.  On that same date, July 27, 2011, the employee began keeping a job search activity log furnished by QRC Hokeness, and the amended rehabilitation plan was apparently served on the employer’s claims representative about August 1, 2011.

On August 15, 2011, the employee was evaluated for the self-insured employer by vocational expert QRC Maureen Ziezulewicz.  Based on a record review, a history of the employee’s injuries, employment, and job search, and research on available employment for the employee, QRC Ziezulewicz concluded that the employee had retired from his job with Rice County in January of 2011.  Noting that his current hourly wage with Max Johnson Trucking was well below his established earning capacity, she concluded also that, “due to factors related to his retirement status and the current economy,” the employee would not be able to replace his established earning capacity.  Asserting further that the employee had received no job placement assistance in the five months since his rehabilitation consultation in March of that year, and noting that no job logs had been provided for her review, she indicated further that she did not think that the employee had been diligently looking for full-time work.

On August 24, 2011, evidently prior to any reply from the claims representative, and evidently on a presumption that the amended plan had been agreed to by all parties, QRC Hokeness faxed the amended rehabilitation plan to the Department of Labor and Industry.  The employee maintained his job search logs through September 6, 2011, documenting about forty-five personal and phone contacts over the forty-one-day period of the logs, which he had commenced on July 27, 2011.  His principal restrictions on September 6, 2011, were to avoid lifting over fifty pounds and to avoid walking on uneven ground.

The matter came on for hearing on September 8, 2011.  The parties stipulated at hearing that the employee was a qualified employee entitled to statutory rehabilitation benefits.  Issues at hearing included, relative to the employer’s petition to discontinue, whether the employer was entitled to discontinue the employee’s temporary total disability benefits retroactively to February 8, 2011.  Asserted grounds for that position were either that the employee (a) had effectively retired on January 7, 2011, and/or had received retirement benefits and so, under Minn. Stat. § 176.101, subd. 8, was not entitled to ongoing temporary total disability benefits, or (b) had failed to conduct a reasonable and diligent job search.  Relative to the employee’s claim petition for temporary partial disability benefits, medical mileage, and continuing rehabilitation benefits, issues included whether the employee had sustained a reduction in earning capacity as a result of his work injuries and whether he had conducted a reasonable and diligent job search.  Also at issue at the hearing was whether the employer was entitled to a credit for alleged overpayment of temporary total disability benefits paid to the employee between February 8, 2011, and April 5, 2011.

Evidence admitted at hearing included both live and deposition testimony from the employee, in part that he had no plans to retire from all work at any given age, because he wanted to work, he enjoyed working, and he needed the extra income, in part to help cover the cost of health insurance premiums for his wife.  The employee testified also that, subsequent to his September 14, 2010,  retirement letter and before November 10, 2010, he had had discussions with Mr. Luebee about coming back to work for the county even after retiring, perhaps as a summer helper.  He testified further that, ever since being released to work in March of 2011, he had looked for work by making phone calls and by talking with contractors and others about possible job openings.  He testified also that he planned to continue working as long as he was physically able to do so.  Also admitted into evidence for the judge’s consideration was post-hearing deposition testimony of QRC Hokeness, taken on September 23, 2011.  The QRC testified in part that, when he first met with the employee on March 17, 2011, the employee told him that he had already been searching for work, networking and otherwise, to see if there were any jobs available in the road construction industry.  He testified further that he had not initially deemed job placement services appropriate for the employee because the employee was soon thereafter employed with Max Johnson Trucking at a job that might become full time.  He testified that the employee had made applications online, had checked the newspaper and the Work Force Center, had looked online for jobs, had networked with people about possible job opportunities, and had generally performed a reasonable and diligent search for work and fully cooperated with all of the QRC’s rehabilitation assistance.

At the outset of his findings and order filed December 1, 2011, the compensation judge indicated expressly that he found the testimony of the employee to be credible.  The judge concluded also in part that the employee was, as a result of his work injuries, subject to restrictions.  The judge found also in part that the employee was entitled to temporary partial disability benefits continuing from April 6, 2011, through the date of hearing.  On those findings, the judge ordered the employer to pay to the employee temporary partial disability benefits from April 6, 2011, through September 8, 2011, together with statutory interest, less attorney fees as specified in a separate order.  There has been no appeal from these findings and orders.  The judge also concluded in part, however, in other findings, that, although the employee did intentionally retire from his date-of-injury position with the employer, he never intended thereby to voluntarily retire from the entire labor market.  On that conclusion, the judge denied the employer’s petition to discontinue the employee’s temporary total disability benefits and to recover an alleged overpayment.  The self-insured employer appeals.

In reviewing cases on 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.”  Minn. Stat. § 176.421, subd. 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.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.”  Id.

An employee is entitled to temporary total disability benefits when, as a result of a work-related injury, an employee’s “physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.”  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  The compensation judge found that the employee did not voluntarily retire or remove himself from the labor market and that he had conducted a diligent job search, and therefore concluded that he was entitled to temporary total disability benefits from February 8, 2011, through April 5, 2011.  The self-insured employer contends that these findings are clearly erroneous and unsupported by substantial evidence.

The employer appeals the judge’s finding that the employee did not voluntarily retire from the labor market, arguing initially that the compensation judge erred as a matter of law, in light of the fact that the employee clearly received actual PERA retirement benefits subsequent to going off work on September 14, 2010.  Doing so, the employer argues, carries with it a statutory presumption that the employee withdrew from the labor market.  In light of that presumption, the employer argues, the judge should have imposed the burden of proof on the employee to show that he did not retire, instead of on the employer to show that he did retire, which the employer asserts was the burden imposed by the judge.  The employer argues further that, even accepting the judge’s application of the burden of proof, the conclusion that the employee did not retire is unsupported by substantial evidence, in light of the employee’s interactions with the employer and in light of established case law.  We are not persuaded.

Generally, temporary total disability benefits cease at retirement.  Minn. Stat. § 176.101, subd. 8.  The statute also states:

Since the employee is receiving PERA retirement benefits, a government retirement pension, under Minn. Stat. § 176.101, subd. 8, he is presumed to have retired, but this presumption may be rebutted by a preponderance of the evidence.  See id.; see also Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 69, 40 W.C.D. 1130, 1135  (Minn. 1988).  Whether an employee intended to retire is a factual determination, and the compensation judge's determination shall not be disturbed where supported by the record.  Hollander v. Cold Spring Granite Co., 41 W.C.D. 380, 383 (W.C.C.A. 1988), summarily aff’d (Minn. Sept. 29, 1988).

This court has defined retirement as “no more than a voluntary withdrawal from the labor market which the employee intends to be permanent.”  Pfeifle v. Peterson-Biddick, 56 W.C.D. 459, 465 (W.C.C.A. 1997), summarily aff’d (Minn. May 21, 1997); see also Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A. 1991).  “The fact that the employee ‘retired’ from employment with his date-of-injury employer is not dispositive of the question of whether the employee has permanently retired from the labor market.”  Dillemuth v. Owatonna Tool Co., 59 W.C.D. 349, 357 (W.C.C.A. 1999) (citing Shaw v. Metz Baking Co./Tastee Div., slip op. (W.C.C.A. Aug. 15, 1994); Brown v. Metropolitan Transit Comm’n, slip op. at 4 n.3 (W.C.C.A. Sept. 7, 1993); Marsh v. Moore Data Mgmt., slip op. (W.C.C.A. Sept. 1, 1993); Woelfle v. Bermo, Inc., slip op. (W.C.C.A. Nov. 15, 1989)).  “Whether an employee has removed himself from the labor market is a question of fact, the resolution of which will not be disturbed on appeal unless manifestly contrary to the evidence.”  Schroeder v. Highway Servs., 403 N.W.2d 237, 238, 39 W.C.D. 723, 725 (Minn. 1987) (citing Saenger v. Liberty Carton Co., 281 N.W.2d 693, 31 W.C.D. 667 (Minn. 1979)).  Several factors are relevant to this consideration, including the employee’s expressed intent to retire or continue working; application for social security retirement benefits; evidence of a financial need for employment income, including the adequacy of a pension or other retirement income; whether the employee or the employer initiated the discussion of retirement; whether the employee sought rehabilitation assistance; and whether the employee actively sought alternative employment or was working.  Dillemuth, 59 W.C.D. at 357.

The compensation judge found that it was the employee’s “express intention not to retire from the entire labor market” and also specifically found the employee’s hearing testimony to be credible.  It is the trier of fact's responsibility to assess the credibility of a witness, and a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning‑Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260‑61 (Minn. 1990).

The judge found that the employee did not permanently retire from the labor market, considering that while the employee received PERA pension benefits, he also received rehabilitation assistance, attempted to return to work for the employer in a new position, conducted a job search, found part-time employment, and testified that he needed to work to pay for health insurance.  Further, the judge did not impose the burden of proof on the employer to show that the employee had retired, stating in his memorandum that “the employee has successfully rebutted the retirement presumption.”  Substantial evidence supports the judge’s finding that employee did not permanently retire from the labor market, and we affirm.

In the alternative, the employer argues that, even if the employee did not formally retire from the labor market, he voluntarily terminated his employment with the employer, and did not conduct a reasonably diligent search for work from February 8, 2011, through April 5, 2011, and therefore is not entitled to temporary total disability benefits during that period as awarded by the compensation judge.  We are not persuaded.

An “injured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.”  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  A diligent job search is one that is reasonable under all the facts and circumstances of the case.  Id. at 734, 40 W.C.D. at 956.  Whether an injured employee has made a reasonably diligent job search is a question of fact for the compensation judge “which must be upheld unless manifestly contrary to the evidence.”  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987).  The issue before this court is whether substantial evidence supports the compensation judge’s finding that the employee conducted an adequate job search between February 8, 2011, and April 5, 2011.

The judge found that the employee had conducted a reasonable and diligent job search, noting that the employee had attempted to return to work for the employer in a light duty capacity; that when he was released to work with restrictions he conducted a job search on his own; that he found a part-time position; and that he was receiving rehabilitation assistance.  Substantial evidence supports the compensation judge’s finding that the employee conducted a reasonably diligent job search from February 8, 2011, through April 5, 2011, and is entitled to temporary total disability benefits during that period.  Accordingly, we affirm.

Having concluded that the judge’s findings and orders were neither clearly erroneous as a matter of law nor factually unreasonable, we affirm the compensation judge’s decision in its entirety.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.