The self-insured employer appeals from the compensation judge’s decision that the employee is permanently totally disabled and is entitled to permanent partial disability benefits for a consequential psychological injury.  We affirm.

The employee began work for Five County Mental Health [the employer] in 2006.  She worked part time as a secretary.  She left her previous job at a bank because of problems she was experiencing related to degenerative disc disease of the cervical spine.

On December 30, 2008, the employee slipped and fell near her car, landing with her back against a curb.  The self-insured employer admitted that the employee fell on that date and did not dispute that the fall arose out of and in the course of the employee’s employment.^[1]

The employee was off work from December 31, 2008, until January 6, 2009.  When she returned to work on January 6, 2009, she completed a first report of injury, but she did not immediately seek medical treatment, and she continued to work in her part-time secretarial position.  The employee was self-medicating for low back pain at this point by increasing her dosage of Vicodin, which she was already taking for neck problems.  She first treated for low back pain on August 20, 2009, when she saw Dr. Stephen Winselman for “ongoing neck and back and lumbar pain to a moderate-to-marked severity.”  The doctor ordered MRIs of the cervical, thoracic, and lumbar spine.  The lumbar scan showed scoliosis and degenerative changes.

The employee treated with Dr. Winselman again on September 9, 2009, but he did not reference the employee’s fall at work until September 16, 2009.  The employee denied having low back pain prior to that fall.  On September 16, Dr. Winselman apparently took the employee off work, and her employment with the employer ended when she exhausted her accumulated sick leave at the end of September.  The employee has not worked since that time.

The employee continued to treat with Dr. Winselman and was diagnosed with osteoarthritis of the lumbar spine.  Dr. Winselman referred her to an orthopedist, Dr. Amir Mehbod, who examined her on October 22, 2009, and recorded that the employee had experienced progressively increasing back pain since falling in December of 2008.  He opined that the employee was unable to work at that time and that she was not a candidate for surgery.

The employee underwent physical therapy and took medications for her low back symptoms.  In November of 2009, she was examined by Dr. D. M. Van Norstrand as part of a Social Security disability determination.  He diagnosed the employee as suffering from cervical and lumbar pain, with radiculopathy, lupus, osteopenia, and chronic pain syndrome.

Dr. Rajan Jhanjee conducted an independent medical examination of the employee at the request of the employer.  In his report of September 1, 2010, he diagnosed degenerative changes in the employee’s cervical and lumbar spine, but he opined that the employee did not sustain an injury on December 30, 2008, because the fall was not mentioned in medical records until September of 2009.

On March 8, 2011, Dr. Winselman opined that the employee had injured her back when she fell in 2008.  He also completed a physical residual functional capacity questionnaire, in which he recommended that the employee observe significant restrictions, and he opined that the employee was incapable of even “low stress” jobs.  He also indicated that the employee’s prognosis was “poor for recovery.”

John Cronin, Ph.D., conducted a chronic pain evaluation on May 20, 2011.  In his report of June 21, 2011, he diagnosed the employee as suffering from chronic pain syndrome with depression.  It was his opinion that the employee’s current symptoms were directly and causally related to her 2008 work-related injury.  He recommended that she consider psychotropic treatment options and continue individual psychotherapy, stating that the “purpose of ongoing care and treatment is to shield her mental health status from worsening and attempt to protect her current quality of life from further deterioration.”  He also rated her as having a 25% whole body impairment for her psychological condition.

The employee was examined by Dr. Mark Engasser on July 11, 2011, on a referral from her attorney.  Dr. Engasser diagnosed myoligamentous strains of the cervical and lumbar spine and also cervical and lumbar degenerative disc disease.  It was his opinion that the employee had sustained a temporary injury to the cervical spine but a permanent injury to the lumbar spine in the 2008 fall.  He assigned a 7% whole body rating for the employee’s lumbar condition, and he recommended restrictions of lifting no more than 24 pounds and only occasional bending, stooping, squatting, and lifting, with no specific limitation on sitting or standing “as long as she could change positions frequently.”

On February 16, 2012, Paul Arbisi, Ph.D., L.P., conducted an independent psychological evaluation.  He found that the employee did not satisfy the diagnostic criteria for major depressive disorder at that time, although she had been diagnosed with depression in 2007.  He further opined that there was no evidence that the 2008 work injury resulted in any exacerbation or worsening of either pain disorder due to psychological factors or major depressive disorder.  He stressed a lack of a “temporal relationship” between any psychological/psychiatric symptoms and the work injury, in that the employee did not treat for depression for 17 months after that injury.

The employee underwent an independent vocational evaluation by Maureen Ziezulewicz, QRC, on April 10, 2012.  Relying on the restrictions recommended by Dr. Engasser, Ms. Ziezulewicz opined that the employee was not permanently totally disabled.

Jan Lowe, QRC, conducted a vocational assessment on July 11, 2012.  She noted that the employee’s treating doctor, Dr. Winselman, had not released the employee to work after September of 2009.  It was Ms. Lowe’s opinion that,

The case proceeded to hearing, and, in findings and order filed on November 9, 2012, the compensation judge found, in part, that the employee had sustained a personal injury on December 30, 2008, in the nature of a permanent lumbar back injury resulting in chronic pain syndrome; that, as a result of that injury, the employee developed a consequential mental injury in the nature of ongoing depression; that the employee had a 7% whole body impairment as a result of the lumbar injury and a 25% whole body impairment as a result of the mental injury; that the employee was permanently totally disabled; and that the work injury and the consequential injury were substantial contributing causes of the employee’s permanent total disability.  The employer appeals.

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).

“An employee is totally disabled if his physical condition, in combination with his age, training, and experience, and the work available to him in his community, causes him to be unable to secure anything more than sporadic employment resulting in 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 employer contends that the award for permanent total disability is based on mistakes in the judge’s findings.^[2]  The specific mistakes alleged, however, are either misstatements by the employer as to the judge’s findings, are not critical to the judge’s ultimate conclusions, or are findings that are supported by the employee’s testimony, the first report of injury, and the opinions of Ms. Lowe and Dr. Cronin.  The employer also contends that the finding of permanent total disability “is unsupported by the evidence because the Employee did not present competent evidence of either a job search or that a job search would be futile.”  We are not persuaded.

The employer argues that a diligent job search is an essential element of permanent total disability benefit entitlement, that it “was established that the Employee was released to work based on restrictions outlined by Dr. Engasser,” and that the employee did not provide evidence of a job search or that a job search would be futile.  However, Dr. Engasser was not the employee’s treating doctor but rather was an independent medical examiner to whom the employee was referred by her attorney.  As such, Dr. Engasser was not in a position to “release” the employee to return to work.  And, while the restrictions he recommended are less restrictive than those recommended by Dr. Winselman, the judge’s findings and memorandum suggest that he accepted the restrictions of Dr. Winselman over those of Dr. Engasser.  The employer does not argue that any facts assumed by Dr. Winselman in rendering his opinions were not supported by the evidence.  The judge’s choice of expert opinions is therefore upheld, and Dr. Winselman’s opinions provide substantial evidence to support a finding of permanent total disability.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

Jan Lowe’s report also provides evidence to support the judge’s finding of permanent total disability.  According to Ms. Lowe, given the effects of the employee’s pain disorder, “she is not currently employable,” even accepting the restrictions set by Dr. Engasser.  Further, Ms. Lowe stated, “In order to be hireable, Ms. Larson will need the ability to do a successful job search.  She will need to be able to present her skills and abilities to a potential employer, something she is not currently able to do.”  (Emphasis added)  Ms. Lowe was essentially saying that a job search at this time would be futile.

Ms. Lowe also stated that, “[i]f Ms. Larson is not able to successfully address her pain disorder and develop job readiness, she will be permanently and totally disabled from employment.”  The only expert to recommend treatment of the employee’s chronic pain disorder and depression was Dr. Cronin, and he stated very clearly that the purpose of ongoing care and treatment “is to shield her mental health status from worsening and attempt to protect her current quality of life from further deterioration.”

The records of Dr. Winselman, Ms. Lowe, and Dr. Cronin provide substantial evidence to support the judge’s findings that a job search would be futile and that the employee is permanently totally disabled.  We therefore affirm those findings.

The employer contends that the judge’s finding of a consequential injury in the nature of ongoing depression and the award of benefits for a 25% whole body impairment for that condition are erroneous as a matter of law and unsupported by the evidence.  As part of this argument, the employer appears to be contending that a consequential psychological injury could not occur where the initial physical injury was not severe enough to require treatment, work restrictions, or time off work for the first nine months following the injury.  We are not persuaded.

The employee testified that she worked with increasing pain after the work injury but did not seek treatment until she “couldn’t stand it no more,” because she did not want to lose her job.  The judge expressly found her explanation to be credible.  Assessment of a witness’s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

The compensation judge also specifically accepted the opinion of Dr. Cronin over that of Dr. Arbisi, in part because Dr. Arbisi’s opinion was largely based on the fact that the employee failed to seek treatment for many months after the injury.  Dr. Cronin diagnosed chronic pain syndrome and depression.  The judge concluded that Dr. Cronin’s opinions were supported by the employee’s medical records.  The employer points to no facts assumed by Dr. Cronin that are not supported by the evidence.  Therefore, pursuant to Nord, we affirm the judge’s choice between expert opinions.

Secondly, the employer argues that a 25% whole body impairment rating for the consequential injury is without support in the record, where there is no evidence that the employee has a permanent psychological condition and where the employee’s condition did not meet the criteria of Minn. R. 5223.0360, subp. 7.D.  Again, we are not persuaded.

The employer maintains that there is uncontroverted evidence that the employee’s condition is treatable and “the employee’s own doctors acknowledge that she can expect to have relief.”  While Dr. Cronin did state that “a reduction in psychological symptoms will likely assist in her rehabilitation and recovery,” he also stated, when recommending treatment, that “the purpose of ongoing care and treatment is to shield her mental health status from worsening.”  It is therefore reasonably inferable that Dr. Cronin does not expect any substantial improvement in the employee’s condition.  Dr. Cronin’s report, when read in its entirety, including his rating for permanent impairment, provides substantial evidence to support the judge’s finding of a permanent psychological condition.

Minn. R. 5223.0360, subp. 7.D., is the section of the rules used in rating permanency resulting from depression.  Norman v. Diamond Risk Corp., No. WC04-280 (W.C.C.A. Feb. 25, 2005).  The judge accepted the opinion of Dr. Cronin that the employee falls between the category for mild emotional disturbance, rated at 20%, and moderate emotional disturbance, rated at 40%, as found in Minn. R. 5223.0360, subp. 7.D.,^[3] and that an appropriate rating would be 25%.  This rating was made pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).  Contrary to the employer’s argument, the fact that there is no evidence to substantiate disturbances such as irritability, outbursts, absence of normal emotional responses, inappropriate euphoria, etc., is not determinative, in that the purpose of Weber ratings is to allow compensation for permanent impairments that do not satisfy the specific requirements of any rating category.  Makowsky v. St. Mary’s Medical Ctr., 62 W.C.D. 409 (W.C.C.A. 2002).

According to Dr. Cronin’s report, the employee reported a sense of loss of self-worth, lack of energy, constant physical pain, frustration, and increased pain levels throughout the day.  The tests that he administered revealed that the employee had feelings of hopelessness about the future and nervousness or shakiness inside, that the employee cried easily, and that she felt blue, sadness, depression, anxiety and fear.  Dr. Cronin further reported that the MMPI-2 revealed intermittent confusion in the employee’s thought process, a tendency to become preoccupied with physical malfunctioning, subjective depression, social anxiety, general malaise, and somatic complaints.  This evidence substantially supports the judge’s finding of a 25% whole body impairment related to the employee’s consequential mental injury, and we affirm.