The employer and insurer appeal from the compensation judge’s decision as to primary liability, the nature of the employee’s injury, the employee’s weekly wage, and the employee’s entitlement to wage loss benefits.  The employee cross-appeals from the judge’s decision as to the extent of the employee’s permanent partial disability.  We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.

The employee began working as a salesperson for Upper Lakes Foods, Inc. [the employer], in 2005.  In the course of this job, the employee would travel from his home in Duluth to call on customers in the area of Bayfield and Ashland, Wisconsin, typically driving about three and a half hours a day, five days a week.^[1]  He worked as many as 70 hours a week in the busy summer months and less than 50 hours a week in the winter.

On December 24, 2008, the employee was attending a family gathering when the folding chair on which he was sitting snapped, and he struck his neck on the back of the chair as the chair collapsed.  He testified that he experienced immediate sharp neck pain and saw stars.  He continued to experience neck symptoms subsequent to the incident but delayed seeking treatment because he assumed the injury to be minor.  However, by February 2009, he had begun experiencing severe headaches, and his neck pain was making it difficult to turn his head to drive, so he sought treatment from Dr. Bruce Knutson, his usual family physician.

The employee was seen by Dr. Knutson on February 11, 2009.  According to the record from that visit, the employee described the incident when the chair collapsed and indicated that his pain had waxed and waned a bit but that it had become worse in the last week, extending across the top of his shoulders into his anterior chest.  Dr. Knutson ordered an MRI scan and prescribed medication.  However, the employee did not undergo the recommended MRI at that time.

The employee continued to perform his usual job into the spring and summer of 2009, but his symptoms allegedly worsened over time.  He testified that the road he took to Bayfield was extremely rough and that his muscle spasms increased and pain began radiating into his left arm.  He used a neck pillow while driving, which helped, but his symptoms continued to worsen.  The employee therefore returned to his primary care clinic on September 1, 2009, where he was seen by Dr. Elizabeth Raduege,^[2] who advised him to undergo the cervical MRI.

The employee underwent the MRI scan the following day, September 2, 2009.  According to the radiologist’s report, the scan showed multilevel degenerative changes with “severe and central canal and neural foraminal narrowing at the [C5-C6] level from a large posterior disc osteophyte complex.”^[3]  The employee informed the employer that he would need to see a neurosurgeon.  About two weeks later, on September 18, 2009, the employee was terminated from his employment.

On October 16, 2009, the employee underwent surgery, performed by Dr. Edison McDaniels, in the nature of a C5-6 microdiscectomy with instrumented arthrodesis.  On follow up with Dr. McDaniels on December 2, 2009, the employee reported that both his arm pain and his neck pain had resolved, and Dr. McDaniels released the employee to resume his usual activities without restrictions.  The following month, in January 2010, the employee commenced classes at Lake Superior College, working toward a two-year degree in supervisory management.

On March 10, 2010, the employee was seen by nurse practitioner Patricia Peterson, who apparently worked with Dr. McDaniels.  The treatment record from that visit indicates that the employee was doing well but had intermittent cervical stiffness that worsened with too much activity.  The employee was advised that he could continue to increase his level of activity and that, from a neurological standpoint, he was free to work without any restrictions.  Four months later, in July of 2010, the employee was still complaining of stiffness and aching in his neck, mostly up high in the base of the skull, and physical therapy was ordered to evaluate and address these symptoms.

Continuing pain and limited range of motion were noted again in a September 8, 2010, record of the nurse practitioner, who observed, “This may be as good as his neck gets at this point.”  X-rays taken on that date showed a moderate narrowing of C7-T1.  The employee was referred back to Dr. Knutson for evaluation of his request for a TENS unit, which the employee ultimately found helpful in relieving his symptoms.

On September 22, 2010, the employee was evaluated by Dr. William Fleeson for an independent medical examination, at the request of the employee’s attorney.  Dr. Fleeson noted decreased reflexes and grip and pinch strength, muscle spasms in the employee’s neck and upper back area, decreased range of motion, arm muscle atrophy, and pain on lifting.  After his exam and his review of the employee’s records, Dr. Fleeson reported that the employee’s driving for work in February 2009 through late August 2009 had aggravated the employee’s symptoms and accelerated his condition.  Dr. Fleeson also concluded that the employee had a 23.5% whole body impairment related to his cervical condition and that he should observe permanent restrictions on turning and flexing his neck, driving on rough surfaces, lifting, pushing/pulling, and working with arms outstretched or above shoulder level.

The employee underwent a cervical CT scan in October 2010, which was read to show loss of disc height at C7-T1.^[4]  Dr. Knutson noted that the employee had chronic pain throughout the posterior neck down to the upper scapular region.  The employee was prescribed narcotic pain medication and required to sign a pain contract.

The employee completed his schooling in May 2011, searched for work, and found a sales job in July 2011, with Quality Boneless Beef Co., Inc.  He earned less than he had earned with the employer, but the Quality Boneless Beef job required much less driving.

In March of 2012, the employer and insurer had the employee evaluated by Dr. Loren Vorlicky.  Dr Vorlicky concluded that the employee should observe permanent lifting restrictions and that his condition warranted a 12.5% whole body impairment rating.  He also concluded, however, that the employee’s work activities did not “aggravate or accelerate his cervical spine condition to the point where he needed surgical management.”

The employee claimed entitlement to various benefits as a result of an alleged Gillette injury^[5] caused by his employment activities, and the matter came on for hearing before a compensation judge on November 8, 2012.  The employer and insurer denied primary liability, and numerous other issues were disputed as well.^[6]  In a decision issued on December 24, 2012, the compensation judge concluded, in relevant part, that the employee had sustained a Gillette injury to his cervical spine effective September 4, 2009, that the employee’s weekly wage on the date of injury was $904.97, that the employee had a 12.5% whole body impairment due to his cervical condition, and that the employee was entitled to wage loss benefits for various periods.  Both parties appeal.^[7]

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 (2012).  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, 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 evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

Two physicians offered opinions on the issue of causation.  Dr. Fleeson, the employee’s independent examiner, concluded that the employee’s driving along bumpy roads for work aggravated the employee’s neck symptoms and accelerated the employee’s need for treatment.  Dr. Vorlicky, the employer and insurer’s independent expert, disagreed, concluding that the employee’s work activities did not substantially contribute to the employee’s neck condition or need for treatment.  The compensation judge expressly adopted the opinion of Dr Fleeson, explaining in his memorandum as follows:

The employer and insurer contend that the judge’s decision is unsupported by substantial evidence because Dr. Fleeson’s reports constitute the “lone bit” of evidence suggesting a relationship between the employee’s work activities and the employee’s cervical condition.  And it was erroneous for the judge to rely on Dr. Fleeson’s opinion, the employer and insurer maintain, for a variety of reasons.^[8]  For example, the employer and insurer note that Dr. Fleeson vacillated in how he described the employee’s accuracy as a historian, Dr. Fleeson apparently failed to review all of the records related to the employee’s treatment of his neck condition, and Dr. Fleeson purportedly showed no “appreciation of the employee’s activities away from work.”^[9]  These and the remainder of the employer and insurer’s arguments on this issue are unpersuasive.  Dr. Fleeson examined the employee and read a number of the relevant medical records.  He testified by deposition, and both parties had an opportunity to question him in detail.  All of the employer and insurer’s arguments notwithstanding, this is a typical dispute in which the compensation judge accepted one doctor’s opinion over another’s.  Dr. Fleeson and Dr. Vorlicky agreed that the C5-6 herniation likely occurred when the employee’s chair collapsed, but this agreement does nothing to undercut Dr. Fleeson’s opinion that the employee’s subsequent driving on a bad road for hours, five days a week, aggravated and accelerated the employee’s disability and need for treatment.  We affirm.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).

The employee sought benefits for a 23.5% whole body impairment related to his cervical condition, pursuant to Minn. R. 5223.0370, subp. 4.D.,^[10] 4.D.(4),^[11] 4.D.(1),^[12] and subp. 5.A.^[13]  In support of his claim, the employee submitted the opinion of Dr. Fleeson, who explained the basis for his rating in his deposition testimony.  Dr. Vorlicky, the employer and insurer’s expert, rated the employee’s impairment at 12.5%, pursuant to Minn. R. 5223.0370, subp. 4.C.(2) and subp. 5.A.^[14]  The compensation judge found the employee to have permanent partial disability of 12.5% under the rules cited by Dr. Vorlicky.^[15]

The employee contends that the record does not support the judge’s finding of 12.5% as opposed to 23.5% permanent partial disability.  The employer and insurer contend that the compensation judge erred by failing to make findings as to the specific nature of the employee’s work injury.  The medical records would likely support more than one conclusion as to the extent of the employee’s permanent impairment, but the compensation judge offered no explanation for his decision.  The expert who assigned the 12.5% rating (Dr. Vorlicky) did not explain his rating, either, or why he declined to rate the employee’s condition under the rules applied by Dr. Fleeson or suggested by the employee.  We would also note that resolution of the permanent partial disability dispute may hinge at least in part on the question of how many cervical levels were aggravated or injured by the employee’s work activity, and the compensation judge made no finding as to the specific nature of the employee’s cervical injury or symptoms.  A finding of permanent partial disability is one of ultimate fact and is not strictly dependent on medical opinion.  See, e.g., Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  Given all these circumstances, we reverse the judge’s decision and remand the matter for further findings as to the nature of the work injury and the judge’s rationale for whatever permanency rating he assigns to the employee’s work-related condition.  The judge should include in his analysis his conclusions as to the employee’s claim for ratings at levels adjacent to C5-6.

Pursuant to Minn. Stat. § 176.011, subd. 18,

The compensation judge found the employee’s weekly wage to be $904.97, as alleged by the employee.  On appeal, the employer and insurer contend that the compensation judge erred by including the bonuses and vacation pay.  We are not persuaded by the employer and insurer’s argument as to the bonuses, in that it is reasonably inferable that the bonuses were substantially earned in the pertinent 26-week pre-injury period. ^[16]  We agree, however, that the judge erred in including the disputed vacation pay.

The record indicates that the employee was credited with two weeks vacation every January 1 and that he was eligible to take the vacation immediately.  However, in this case, the employee received the one week vacation pay as severance, following his termination, after the date of his injury.  Had the employee actually taken the week’s vacation prior to his injury, those paid vacation days would have been treated the same as paid work days for purposes of calculating the employee’s daily wage pursuant to Minn. Stat. § 176.011, subd. 3.  Employees were not, as a rule, entitled to carry accrued vacation over from one year to the next, and there is no evidence that employees could elect to be paid for unused vacation.  Allowing the employee to add the severance pay he received following the injury to his other earnings under these circumstances would effectively give the employee double payment for one week, unfairly exaggerating his loss of earning capacity causally related to the injury.  See e.g., Bradley v. Vic’s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987).  We therefore reverse the judge’s inclusion of vacation pay in the employee’s weekly wage.

The compensation judge awarded the employee temporary total disability benefits for the periods September 18, 2009, to January 10, 2010, and May 11, 2011, through July 11, 2011 - - periods in which the employee was unemployed and not in school following his termination by the employer.  The compensation judge also awarded the employee temporary partial disability benefits beginning July 11, 2011, based on his earnings as a salesperson with Quality Boneless Beef.  The employer and insurer appeal, contending that the employee was released to work without restrictions and also made no job search for part of the period in question and that the employee’s eventual purported need for restrictions was related to a cervical level not affected by the employee’s work activities or injury.  We are not persuaded.

The employee was terminated by the employer on September 18, 2009, and made no immediate job search as he was awaiting surgery, which was performed a few weeks later on October 16, 2009.  He testified that he did not search for work immediately following surgery because he was recovering from the procedure and taking narcotics and muscle relaxants.  Dr. McDaniels, the employee’s surgeon, indicated on December 2, 2009, that the employee could resume his usual activities without restrictions on that date.  However, it is evident that the employee was still recovering and that physicians recognized that he was not yet back to full capacity at that time.  As late as March of 2010, Dr. McDaniels’ nurse practitioner advised the employee that he could continue to increase his activities, and the employee continued to complain of problems with decreased range of motion and pain thereafter.  We would also note that both Dr. Fleeson and the employer and insurer’s examiner, Dr. Vorlicky, have indicated that the employee should observe permanent restrictions related to his neck condition.

The record also clearly supports the conclusion that the employee conducted a diligent job search after leaving school on May 11, 2011, resulting in a full-time job within his restrictions with Quality Boneless Beef.  See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Contrary to the employer and insurer’s suggestion, the employee’s entitlement to wage loss benefits does not depend on a finding that the employee was physically unable to perform his pre-injury job.  The employer terminated the employee, and a job that is no longer available has little relevance to the employee’s entitlement to wage loss benefits.  See, e.g., Serra v. Hanna Mining Co., 65 W.C.D. 532 (W.C.C.A. 2005); Tottenham v. Eaton Shar-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).  Finally, we see no evidence establishing that the employee’s need for restrictions is due to some cervical disc condition unrelated to the employee’s work injury.^[17]  The judge’s award of wage loss benefits is therefore affirmed.