The employer and insurer appeal from the compensation judge’s award of ongoing rehabilitation assistance.  The employee cross-appeals from the judge’s denial of her request for a second functional capacity evaluation.  We affirm the compensation judge’s decision on both issues.

On July 10, 2009, the employee sustained a work-related injury to her cervical spine while employed by Miltona Custom Meats [the employer].  Her weekly wage at the time was $370.74.  A few days after the injury, the employee was seen by Mark Helgeson, a physician assistant (PA), who ordered an MRI.  Based on her symptoms and the results of that scan, the employee underwent emergency discectomy and fusion surgery at C4-5 and C5-6, with instrumentation, on July 16, 2009.  The procedure was performed by Dr. Lynn Miller at St. Cloud Hospital.

The employer and insurer accepted liability for the employee’s injury and paid various workers’ compensation benefits.  The employee was unable to return to her pre-injury job due to the effects of her injury, and she began receiving rehabilitation assistance from QRC Ken Moberg in the summer of 2011.  To facilitate the development of a rehabilitation plan, QRC Moberg arranged for the employee to undergo a functional capacity evaluation [FCE], which was performed on July 14 and 15, 2011.  Records indicate that the employee underwent a trigger point injection between the two days of testing, and this fact was noted in the report from the evaluation.  PA Helgeson subsequently approved the FCE report for use in planning vocational activities.

In September of 2011, the employee obtained part-time work with Share-A-Home, working as a care attendant in a group home for disabled adults.  Her hours varied but averaged between 30 and 36 hours per week beginning in late 2012.  The employer and insurer paid the employee temporary partial disability benefits based on the employee’s actual earnings.

The employee experienced increased neck symptoms in early 2012, and an MRI scan performed in March of that year disclosed a new disc herniation at C3-4.  Dr. Miller, the employee’s original surgeon, indicated on April 5, 2012, that the employee was “to avoid any overhead lifting” or “forward lifting or ground lifting over 20 lbs.”  The employee was also advised to “watch for any new symptoms or changes and report immediately.”  According to the treatment note from that examination, QRC Moberg was present for a discussion of the employee’s condition and the new restrictions, and the employee “stat[ed] she can easily follow [the restrictions] in her current job.”

On May 29, 2012, the employee was seen, again with her QRC, by surgeon Dr. Jeffrey Gerdes, who indicated that it would be reasonable to consider another surgery, a discectomy and fusion at C3-4, with removal of the plate used in the first procedure.  The employee declined to undergo the proposed surgery and also indicated that she was not interested in either physical therapy or injections.  According to QRC Moberg’s case note following the consultation with Dr. Gerdes, the employee’s restrictions “remain[ed] unchanged.”

In October of 2012, QRC Moberg suspended placement assistance and administered vocational testing.  After completion of those tests, QRC Moberg indicated that the employee was clearly capable of successfully completing post-secondary education.

In December of 2012, the employer and insurer filed a rehabilitation request, seeking to discontinue rehabilitation assistance.  The employer and insurer prevailed at the administrative conference level, and the employee filed a request for formal hearing.  When the matter came on for hearing before a compensation judge on August 5, 2013, the parties agreed to litigate an additional issue:  whether the employee was entitled to a second FCE.  Evidence submitted at hearing included the employee’s medical and rehabilitation records and testimony by the employee and QRC Moberg.

In a decision issued on August 29, 2013, the compensation judge determined that the employee was entitled to ongoing rehabilitation assistance but that the employee did not establish the need for a second FCE.  Both parties appeal.

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).

Pursuant to Minn. Stat. § 176.102, subd. 1(b),

In the present case, the dispute centered on whether the employee could “reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.”  The employer and insurer contended that the employee’s job with Share-A-Home constituted both physically and economically suitable work, rendering further rehabilitation assistance unnecessary.  The employee contended that the job was neither physically nor economically suitable.  The compensation judge concluded that the job was physically suitable but not economically suitable, and he awarded ongoing rehabilitation assistance.  The employer and insurer contend that the judge’s decision is unsupported by substantial evidence and that the judge used the wrong standard in evaluating the employee’s entitlement to the disputed services.  We are not persuaded that the award of ongoing rehabilitation assistance is clearly erroneous or unsupported by substantial evidence.

“Suitable gainful employment” is defined as

The employer and insurer contend that the employee’s current job is suitable because the employee is working nearly full time, and her wage is “almost” the same as her pre-injury wage, supplemented by temporary partial disability payments that average about $32.00 per week.  However, as the compensation judge observed, the employee earned less than her pre-injury wage in the vast majority of her work weeks between August 28, 2011, and June 29, 2013.  She currently earns $9.40 per hour and works between 30 and 36 hours per week.  When she works 30 hours, her wage loss is $88 per week, a not insignificant difference to someone earning between $282 and $338.40 a week, on average.  We would also note that the purported average temporary partial disability payment of $32 is a deceptive indication of the employee’s actual loss of earning capacity in this case, because that average included weeks in which the employee worked overtime due to other workers’ vacations.  There is no indication in the record that such additional hours will necessarily be available in the future.

The employer and insurer also argue that the compensation judge used the wrong standard in evaluating the employee’s eligibility for continuing services, in that the judge found that “[h]er hours per week and her weekly earnings remain variable and have not equaled or exceeded her pre-injury earning on a sustained basis.”  As the employer and insurer correctly point out, an employee’s post-injury pay need not equal or exceed the pre-injury wage to render the job “suitable” employment under the rules and relevant case law; it is enough if the wage is as “close as possible.”  Still, given the disparity between the employee’s pre-injury and post-injury earnings, coupled with the QRC’s recommendation to explore additional skills training, we cannot conclude that the judge’s award of additional rehabilitation services is clearly erroneous or unsupported by substantial evidence, and we affirm on this issue.

Pursuant to Minn. R. 5221.6205, subp. 1.I(4), of the medical treatment parameters, “only one completed comprehensive FCE is indicated per injury.”  The employee underwent a two-day FCE in July of 2011.  The employee claimed entitlement to a second FCE pursuant to the departure provisions of the treatment parameters.  For purposes of the matter before us, the relevant departure provisions, contained in Minn. R. 5221.6050, subp. 8, are as follows:

The compensation judge concluded that the employee had not established grounds to depart from the rule limiting the employee to one FCE.  On appeal, the employee contends that a departure is warranted pursuant to subpart 8 and that the judge erred in concluding otherwise.  While this is a close question, we are not persuaded that the judge’s decision warrants reversal.

One of the employee’s primary arguments in support of her claim for a second FCE is that, because she underwent a trigger point injection between the two days of testing, the first FCE is fatally flawed.  As such, the argument goes, the FCE did not meet accepted standards of practice within the meaning of subp. 8.A.  However, the injection was clearly referenced in the FCE report, and there is no indication that the therapist administering the test was concerned about the effects of that treatment.  In fact the employee exhibited consistent effort and results during the two days, supporting the conclusion that the injection did not skew the test results in any appreciable way.  And, despite the reference to the trigger point injection in the FCE report, PA Helgeson approved the report for purposes of vocational activity.

Moreover, as the compensation judge noted, no physician has called the FCE into question or suggested the need for a second evaluation, and the only medical support for a second FCE came in the form of PA Helgeson’s signature on the bottom of a lengthy letter, written by the employee’s attorney, asking PA Helgeson to sign the letter if he agreed that a second FCE was appropriate.  Because PA Helgeson did not respond to the attorney’s invitation to comment, it is difficult to know, with any certainty, just what PA Helgeson’s reasoning was.  In any event, we concede that the judge could have accepted the signed letter as adequate support for a departure from the parameters.  However, all the employee’s arguments to the contrary notwithstanding, the compensation judge was not required to find this evidence adequate, and he was not required to conclude, on his own, that the FCE was unreliable for the reasons alleged.

As for the issue of a documented medical complication, it is true that the employee developed a new herniated disc at C3-4 after the 2011 FCE.  However, she has apparently not sought treatment from Dr. Miller or Dr. Gerdes since 2012, and no physician has suggested that the employee needs a new FCE for this or any other reason.  Especially given the fact that the employee is apparently not receiving any specific treatment for the new herniation, we cannot say that the judge erred in denying the employee’s claim for a departure based on a documented medical complication.^[1]

The only other departure rule arguably applicable in this case is subp. 8.E., concerning an incapacitating exacerbation.  However, the employee has apparently missed little or no time from work due to her condition, and she offered no testimony or other evidence that she has had to curtail other activities in any significant way as a result of any increased symptoms.  In fact, as the compensation judge explained, the employee’s case is fairly typical in that her subjective symptoms wax and wane depending on her level of activity.  There is simply no evidence in the record of any real “incapacity” as contemplated by the rule.

For all the reasons outlined above, we affirm the judge’s denial of a second FCE.