LANCE W. SCHMIDT, Employee/Appellant, v. CROW WING and MINN. COUNTIES INTERGOVERNMENTAL TRUST, Self-Insured Employer/Respondent, and CENTRACARE ST. CLOUD HOSP., CENTRACARE RIVER CAMPUS CLINIC, CTR. FOR DIAGNOSTIC IMAGING, BLUE CROSS BLUE SHIELD OF MINN. & BLUE PLUS, MINN. IMAGING PARTNERS, and DEP’T OF VETERANS AFFAIRS, Intervenors.

The compensation judge denied temporary total disability benefits (TTD) because the employee failed to show that he looked for work after his termination from employment in September 2015. The employee appeals the denial of TTD benefits both before and after the employee underwent surgery which was due to his work injury. Substantial evidence supports the judge’s denial of TTD benefits and we affirm.

Lance Schmidt, the employee, worked on the road crew in highway maintenance for Crow Wing County, the self-insured employer, for 26 years. The employee described his job as requiring “[a] lot of manual labor.” (T. 23.) On April 29, 2014, while at work for the employer, the employee lifted a pry bar overhead to repair a culvert and felt a snap in the neck, severe headache, and tingling of the arms and hands. He was taken off work through May 25, 2014. The self-insured employer admitted liability and paid temporary total disability benefits from April 30, 2014, to May 25, 2014, and temporary partial disability benefits to June 22, 2014. He returned to work at full wages on June 23, 2014. (Ex. 4.)

Prior to the injury, the employee had a history of cervical spine stenosis beginning in 1985 with symptoms which included neck pain, headaches, and tingling of the arms and hands. As a 21-year-old, he drove his motorcycle off the road hitting a fence, flying off and hitting the dirt face down. In 2008, he complained of constant headaches, neck pain and numbness in his upper extremities. In 2009, Ryan D. Buell, D.C., noted the ongoing symptoms and opined that the 1985 motorcycle accident could “produce long lasting effects.” (Ex. C.) In 2010, an MRI scan of the cervical spine revealed foraminal stenosis from the C3-4 to C6-7 levels of the cervical spine. The employee underwent facet joint injections. In 2013, the employee underwent another MRI scan of the cervical spine which again reported ongoing stenosis and also identified neural impingement at the left C6 nerve root. The employee underwent another series of epidural injections in the fall of 2013. On January 26, 2014, he slipped and fell backwards down steps at home. He reported neck pain and numbness in his arms and fingers. (T. 48.) The employee also smokes, suffers from hypertension, and has a history of alcohol abuse treatment.

Following the April 29, 2014, injury, the employee sought treatment with a number of physicians. He initially treated with Derreck Johnson, D.C., who assigned a 13 percent permanent partial disability (PPD) rating, of which 10 percent was due to the employee’s pre-existing condition. The employer paid 3 percent due to the April 29, 2014, injury. Dr. Johnson referred the employee to Christopher Metz, M.D., an orthopedic surgeon at Northern Orthopedics. Dr. Metz ordered an MRI scan which revealed evidence of severe neural foraminal narrowing at C5-6 to the left, C4-5 to the right, and moderate right sided neural foraminal narrowing at C3-4 which was new from the previous MRI scan. Restrictions were imposed for very light work with no lifting more than 10 pounds on February 18, 2015.

On September 24, 2015, the employer was no longer able to provide permanent employment to the employee and terminated his employment. The employee applied for Public Employees Retirement Association (PERA) disability benefits in December 2015. Within the PERA application were restrictions outlined by Dr. Metz limiting the employee to lifting no greater than 10 pounds. PERA benefits were approved in June 2016 with benefits beginning effective September 25, 2015.

Once terminated from his employment, the employee did not formally look for work. While he had asked friends and family about job opportunities, he did not complete any applications for employment, visit any workforce centers, nor interview for any position. No vocational rehabilitation for job search assistance was provided by the self-insured employer.

The employee continued to see Dr. Metz, but when conservative treatment did not provide relief for the employee, Dr. Metz referred him to a neurosurgeon, Jeffrey Gerdes, M.D. Dr. Gerdes saw the employee on March 4, 2016, diagnosed him with neural foraminal stenosis of the cervical spine, and recommended an anterior cervical discectomy and fusion surgery.

The employer retained Albert Meric, M.D., who examined the employee, reviewed multiple medical records and radiographic films, and took a history from the employee. On May 5, 2017, Dr. Meric drafted a narrative report and concluded that the employee had neck and upper extremity symptoms for years before the work injury of April 2014. He opined that the chronic neck pain and recurrent arm complaints were not caused in any way by the work injury of April 29, 2014, as they had been present since 2008 on a regular and recurring basis and are no different from what the employee had experienced in the past. He explained that the employee’s symptoms were consistent with the gradual progression of his multilevel cervical degenerative disease. Dr. Meric also opined, without regard to causation, that the surgery recommended by Dr. Gerdes was not reasonable or necessary for the treatment of chronic neck pain. He explained that the employee’s physical examination findings were “quite different than they were the last time Dr. Gerdes examined him and are also quite different since his most recent physical examination on December 22, 2016, by Dr. Porter.” (Ex. 2.) In noting minor multilevel foraminal stenosis seen on the multiple MRI studies, Dr. Meric opined that attempting surgical treatment with a multilevel anterior fusion has a “dismal outcome and would not be recommended, especially in Mr. Schmidt, who continues to smoke and appears to continue with significant alcohol consumption.” (Id.)

The employer denied further benefits and treatment as unrelated to the employee’s work injury. The employee filed a claim petition on September 22, 2016, and an amended claim petition on February 14, 2017, requesting payment of medical expenses, including surgery, additional PPD, and temporary total disability (TTD) benefits from the employee’s last day of work, September 25, 2015, and continuing.

Using his private insurance, the employee underwent a C4-C7 anterior cervical discectomy and fusion surgery on September 6, 2017, performed by Dr. Gerdes. Following surgery, the employee’s symptoms were less severe. He testified that his arm and hand numbness and tingling were minimal. Between September 6 and October 25, 2017, the employee called Dr. Gerdes’ office requesting refills of Percocet on September 13, 22, 27, and October 9, 2017. During this time, there is no indication that the employee was released to return to work or given work restrictions. At the post-surgical follow-up appointment on October 25, 2017, Dr. Gerdes recommended that the employee continue to work on weaning off his medication and restricted the employee to 20 pounds lifting. The employee reported that “he is retired, so return to work not needed.” (Ex. H.)

On November 10, 2017, Dr. Gerdes increased the employee’s lifting restriction to 40 pounds. Dr. Gerdes opined that the employee’s work-related injury was a substantial contributing factor to his subsequent symptoms and ultimate need for surgery. He further opined that the medical treatment had been reasonable, necessary, and causally related to the work injury.

At the hearing on November 21, 2017, the employee claimed entitlement to TTD benefits from September 24, 2015, PPD, and medical treatment, including surgery, as reasonable, necessary, and due to the effects of the work injury. The self-insured employer denied a causal connection between the employee’s medical treatment and his work injury. Furthermore, the employer argued that the employee was not entitled to TTD because he had not performed a diligent job search and had withdrawn from the labor market during periods when he had undergone chemical dependency treatment. Kate Schrot, a vocational expert, testified for the employer that based upon the employee’s workability reports, he was not totally disabled from working. She based her opinion on a labor market survey finding multiple jobs within the employee’s restrictions and near his home which paid between $8.30 and over $20.00 an hour with time and experience.

The judge found the April 29, 2014, work injury was a substantial contributing factor to the employee’s neck condition and subsequent disability and treatment. He awarded PPD benefits to the extent of 15 percent (less 3 percent previously paid), and medical treatment, including surgery, as reasonable, necessary, and causally related to the employee’s work injury. He denied payment of TTD benefits from September 24, 2015, to the present and continuing as the employee had failed to conduct a reasonable and diligent job search. The employee appeals the denial of TTD benefits.

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(3). 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).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

On appeal, the employee argues that the judge erred as a matter of law in denying TTD benefits both before and after surgery. Arguing that there was no evidence that the employee could work at any time post-surgery and that job search is not required if it would be futile, the employee seeks a reversal of the judge’s denial of TTD benefits.

An employee bears the burden of proving a connection between the disability from a work injury and the inability to work by showing that work within his restrictions is not available, which is generally demonstrated by conducting a reasonable and diligent job search. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). There are some exceptions to the rule. For example, if the job search is futile due to the employee’s restrictions, education, work experience, and job opportunities within his community, then a diligent job search may not be necessary. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978).

The determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve. Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989). While a lack of vocational rehabilitation services is an element considered in evaluating the diligence of a job search, it does not relieve the employee’s burden of proving a reasonable and diligent job search. See Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954; see also Mattson v. State, Dep’t of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992) (“even where rehabilitation assistance is not provided, the employee must still make a reasonably diligent effort to find employment”), rev'd on other grounds, 494 N.W.2d 884, 48 W.C.D. 84 (Minn. 1993); Barrientos v. Heartland Foods, Inc., slip op. (W.C.C.A. Jan. 27, 1995).

Here, substantial evidence supports the compensation judge’s finding that the employee did not perform a diligent job search after he was terminated from the employer. While the employee had significant restrictions, there is no medical or vocational opinion that he was totally disabled from employment. No doctor took him off work and Ms. Schrot’s testimony rebuts the employee’s claim that a job search would have been futile. She found a number of jobs within the employee’s community that he could have performed within his restrictions. The judge did not err by denying the employee’s claim for TTD benefits before the date of surgery.

In denying the employee’s TTD claim, the judge did not specifically address the period from the date of surgery until he was released to work with restrictions. The employee underwent the surgery on September 6, 2017, and Dr. Gerdes released the employee with a 20 pound lifting restriction at a follow-up appointment on October 25, 2017. At the same appointment, the employee reported that there was no need for restrictions as he had “retired.” (Ex. H.) The employee asserts that there is no evidence that he was able to work post-surgery and that there is no requirement that he conduct a job search after surgery until being medically released. While the employee was likely unable to conduct a job search immediately following the surgery, Minn. Stat. § 176.101, subd. 1(e) (2),^[1] does not allow recommencement of TTD in this situation. Recommencement of TTD benefits where an employee is medically unable to work is only allowed under Minn. Stat. § 176.101, subd. 1(e) (2), when the employee is “actively employed” at the time the employee becomes medically unable to work. Melin v. Lakehead Constructors, slip op. (W.C.C.A. Aug. 26, 2003). In this case, the employee’s TTD benefits had ceased when he returned to work in May 2014. He was paid 3 percent PPD on August 19, 2016. After his employment was terminated in September 2015, the employee has not returned to work. The employee failed to meet his burden in showing TTD benefits could be recommenced under Minn. Stat. § 176.101.

Given the record as a whole, we affirm the compensation judge’s denial of TTD benefits, including the periods before and after the employee’s September 6, 2017, surgery.

I agree with the result reached by the majority opinion.