The employer and the insurer, Selective Insurance Group, appeal from the compensation judge’s findings that the employee’s 2003 work injury remained a substantial contributing factor in the employee’s disability and need for treatment and from the finding that the employee was not at maximum medical improvement (MMI) for the 2003 injury.  The employee cross appeals from the findings that the employee did not sustain a Gillette^[1] injury in 2011, from the conclusion that the employee did not engage in a reasonably diligent job search and was not entitled to temporary total disability benefits, and from the determination that attorney fees under Minn. Stat. § 176.191 were not payable.  We affirm.

James Polfliet was injured on September 24, 2003, while he was working for Northern Lights Distributing as a food product salesman.  Mr. Polfliet had worked for his employer and its predecessor for more than 30 years.  The workers’ compensation insurer for the employer at the time of the 2003 injury was Selective Insurance Group (Selective).

After a hearing in 2010, a compensation judge issued findings and order in which she determined that the employee injured his low back in the 2003 work injury, and that the injury “significantly aggravated the preexisting degenerative condition in the employee’s lumbar spine.”  The compensation judge further concluded surgery performed by Dr. Richard Salib in June 2009 was reasonable and was related to the 2003 work injury.  The compensation judge’s decision was affirmed by this court.^[2]

In her 2010 findings, the compensation judge found Dr. Salib’s diagnosis of the employee’s low back condition before the surgery was “a disc bulge at L4-5 with compression of the L4 and L5 nerve roots, resulting in foraminal stenosis on the right at L4-5.”  The surgery performed by Dr. Salib in June 2009 was a decompression of the L4-5 nerve root as well as a medial laminotomy and facetectomy.  Dr. Salib also inserted an “X-Stop” implant to stabilize the L4-5 level.

Before his surgery, the employee had extreme pain in his right knee and foot with occasional pain in his low back.  Mr. Polfliet had immediate relief from the surgery and was able to return to his regular job in August 2009.  Dr. Salib released the employee from his care in 2009 and allowed Mr. Polfliet to work without restrictions.  Dr. Salib also concluded that the employee was at maximum medical improvement at that time.

Mr. Polfliet testified that he began having more symptoms, primarily in his right leg, in April or May 2011.  He noted the increased symptoms particularly after doing a lot of driving.  In his work as a salesman, Mr. Polfliet typically drove 200 miles a day.  As time went on, he began having more pain in his low back as well.  He saw his family doctor who provided a prescription for oxycodone and in July 2011 Mr. Polfliet returned to Dr. Salib.

Dr. Salib placed driving restrictions on Mr. Polfliet, recommended injections, and considered additional surgery to be a possibility.  A CT myelogram done in October showed a foraminal disc herniation at L4-5 on the right and also showed disc disease with stenosis and impingement on the L5 disc.  In February 2012, Mr. Polfliet stopped working because his employer could not accommodate the increased restrictions given by Dr. Salib at that time.

At the hearing, Mr. Polfliet testified that he had numerous contacts about possible employment in his community of Renville since he had lived there many years.  He checked with some of those contacts after he stopped working but concluded that he would not be able to physically handle the work that might be available.  The employee had no vocational rehabilitation assistance but did visit the work center in Willmar.  The employee testified that since he stopped working, he has been caring for his wife who has been diagnosed and treated for a very serious medical condition.  He has been providing daily care, performing household tasks, and transporting her to numerous medical appointments.

In November 2011, Dr. Salib wrote a report in which he stated that the employee’s symptoms were due to progressive degeneration over time, aggravated by the 2003 work injury.  In December 2011, he wrote another report in which he stated that the employee’s symptoms were due to a Gillette injury that culminated as of July 8, 2011, when he saw the employee.  The workers’ compensation insurer for the employer at that time was Nationwide Mutual Insurance Company (Nationwide).

Dr. Mark Friedland evaluated Mr. Polfliet for Selective in November 2012.  His opinion was that the employee’s current disability and need for treatment was no longer due in substantial part to the 2003 work injury, but was instead the result of a July 2011 Gillette injury.

Dr. Anthony Bottini saw the employee on behalf of Nationwide in December 2012.  His opinion was that the employee did not have a Gillette injury in July 2011 and his current condition was the result of a progressive degenerative condition in the lumbar spine.

Dr. Salib provided a deposition in October 2013 in which he reiterated his opinion that the employee’s current condition was the result of a 2011 Gillette injury.

The employee’s claim petition was heard by Compensation Judge Kathleen Behounek on December 6, 2013; her findings and order was issued February 6, 2014.  Findings relevant to the present appeal and cross-appeal were that:  1) the preponderance of the evidence failed to establish a Gillette injury in 2011; 2) the 2003 work injury remained a “substantial contributing factor in the employee’s low back condition, need for restrictions and treatment expenses since February 2012”; 3) the employee was not at maximum medical improvement from the 2003 injury; 4) the employee had not conducted a reasonably diligent job search and was not entitled to temporary total disability benefits; 5) an award of attorney fees under Minn. Stat. § 176.191 was not appropriate because the case was not primarily a dispute between the insurers.  A timely appeal by Selective and a timely cross-appeal by the employee were filed with this court.

The compensation judge adopted Dr. Bottini’s opinion that there was no Gillette injury.  The employee has cross-appealed this finding and argues in his brief that the compensation judge’s decision is not supported by substantial evidence.

In her memorandum, the compensation judge noted that neither Dr. Salib nor Dr. Friedland, both of whom had concluded that the employee had a Gillette injury in July 2011, had explained how the employee’s work activity had led to the herniated disc diagnosed in 2012 by Dr. Salib.  The employee argues that the compensation judge placed an impermissible burden on the employee because it is not necessary for the employee to show the connection between specific work activity and the work injury.  Steffen v. Target Stores, 517 N.W.2d 578, 50 W.C.D. 463 (Minn. 1994).

This argument misconstrues the nature of the compensation judge’s discussion in her memorandum.  Steffen requires that the employee establish a causal connection between ordinary work activity and the injury in order to prove a Gillette injury.  Establishing a Gillette injury depends primarily on medical evidence.  Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).

The compensation judge in this case was given competing medical opinions on the issue of causation and needed to accept an opinion and reject an opinion or opinions.  Her discussion in the memorandum set forth her rationale for making that choice.  She concluded that the medical opinions supporting a Gillette injury did not provide an explanation making a causal connection between the employee’s work activity and his increased symptoms and did not explain why the employee’s symptoms continued to worsen even after he stopped working.  We see no indication that the compensation judge applied an improper legal standard in reaching her conclusions.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D.364 (Minn. 1985); Marcheani v. Buffalo Dry Cleaners & Launderers, No. WC13-5621 (W.C.C.A. Mar. 24, 2014).

The compensation judge’s finding on this issue is affirmed.

The compensation judge determined the 2003 work injury continued to be a significant contributing factor in the employee’s continued disability.  Selective has appealed this determination and argues that there is no medical opinion which supports the compensation judge’s decision.

There are three medical opinions on causation as to the employee’s current difficulties in evidence.  Dr. Friedland, the IME for Selective, was of the opinion that the cause was a Gillette injury culminating in July 2011.  Dr. Salib provided two different opinions on this issue.  In his November 2011 report, he placed responsibility for the employee’s condition on the 2003 injury, and about a month later, he stated the employee’s condition was due to a Gillette injury.

Dr. Bottini, the IME for Nationwide, generated a report on causation on January 22, 2013, after his evaluation of the employee.  Dr. Bottini disagreed with the idea of a Gillette injury because he did not accept that the current problems were the result of the L4-5 herniated disc, but instead concluded that the primary problem was stenosis that Dr. Bottini considered to be a continuation of the employee’s long-standing progressive degenerative process.  Dr. Bottini stated further “Mr. Polfliet’s current symptoms are secondary to progressive degenerative change likely present over the past 30 years, possibly aggravated by his work injury.”

As we noted previously, the compensation judge was given competing medical opinions on causation:  a Gillette injury or a progressive degenerative condition.  The compensation judge had determined in 2010 that the employee’s degenerative condition had been substantially aggravated by the 2003 injury and had necessitated the surgery done in 2009.  That finding and Dr. Bottini’s opinion provide substantial evidence which supports the compensation judge’s decision on this issue.

Selective has appealed the compensation judge’s determination that the employee has not reached maximum medical improvement with regard to the 2003 injury.  Most of the argument in Selective’s brief restates their position that the 2003 injury is not related to the employee’s current disability.  However, it is also argued that there is no evidentiary support for the compensation judge’s decision on this point.

Dr. Bottini stated in his January 23, 2013, report that the employee had not reached MMI from his present low back disability.  Although Dr. Salib did not address the question of MMI specifically, he has recommended further treatment for Mr. Polfliet including the option of further surgery.  The need for further treatment may be considered in determining whether MMI has been reached for an injury.  Trboyevich v. Potlatch Corp., No. WC04-150 (W.C.C.A. Oct. 12. 2004.)

We conclude substantial evidence supports the compensation judge’s decision on this issue.

The compensation judge concluded that the employee had failed to make a reasonably diligent search for work between February 2012 when he stopped working and the date of the hearing.  Accordingly, the compensation judge denied the employee’s claim for temporary total disability benefits.

The employee has cross-appealed this determination and makes two arguments.  First, he contends that he did not retire and remove himself from the labor market.  Second, the employee argues that the evidence shows he made a reasonably diligent job search.

As to the first question, we note that the insurers argued that the employee had withdrawn from the labor market in their presentations at the hearing.  The compensation judge made a specific finding that the employee had rebutted any statutory presumption that he had retired and was entitled to rehabilitation assistance.  That finding was appealed by Selective, but was not argued in its brief, and, as a result, the appeal on that finding is waived and will not be addressed further.  Minn. R. 9800.0900, subp. 1.

The second argument made by the employee is that the job search he made was reasonable under all of the facts and circumstances of this case.  It is pointed out that Mr. Polfliet lives in a small town of about 1,200 people with limited employment opportunities.  We would add that Mr. Polfliet’s age, 63 years old on the date of hearing, and his significant restrictions make reemployment difficult at best.

However, the evidence is also clear that, other than making one visit to the work center in Willmar, the employee has not made any significant effort to find any employment within his restrictions.  There was no vocational testimony that any job search by the employee would be fruitless.  Instead of making any sort of sustained job search, he has chosen to spend his time tending to his wife’s care and medical treatment.  While that choice was understandable, receipt of temporary total disability benefits is dependent on a diligent job search.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  The evidence here supports the compensation judge’s finding that there was not a reasonable, diligent job search, and the compensation judge’s denial of temporary total disability benefits is affirmed.

A fee for an employee’s attorney will be assessed under Minn. Stat. § 176.191 where the “sole issue of real importance is whether there should be apportionment between the insurers of liability for compensation to which the employee was clearly entitled.”  Patnode v. Lyons’s Food Prods., Inc., 251 N.W.2d 692, 693, 29 W.C.D. 392, 394 (Minn. 1977).  Determination of whether the primary dispute is between insurers is a question of fact for the compensation judge.  Keck v. Indep. Sch. Dist. #877, No. WC13-5545 (W.C.C.A. Aug. 1, 2013).

The evidence in the record supports the compensation judge’s conclusion that the primary dispute in this matter was not between the insurers.  The parties disputed the existence of a Gillette injury in 2011, whether the 2003 injury continued to be a substantial contributing factor in the employee’s ongoing disability or was instead the result of a progressive degenerative condition, and whether the employee was entitled to temporary total disability benefits.  This evidence of multiple issues not related to an apportionment between insurers provides substantial evidence supporting the decision of the compensation judge on this issue.