JOAN E. HURST, Employee/Respondent, v. CALEDONIA HAULERS, INC., and COTTINGHAM & BUTLER CLAIM SERVS., INC., Employer-Insurer/Appellants, and BLUECROSS BLUESHIELD OF MN, Intervenor.

The employer and insurer appeal from the compensation judge’s determination that the employee suffered a permanent aggravation of her underlying preexisting mental health diagnoses, and from the award of wage loss and medical benefits to the employee.  We affirm.

The employee, Joan Hurst, had a history of working in a number of physically demanding jobs.  She has been a waitress, nursing assistant, construction worker, and truck driver.  On March 26, 2019, the employee began working for the employer, Caledonia Haulers, Inc., as a commercial semi-tractor trailer driver.  At that time, she had diagnoses of chronic neck, back, and hip pain, fibromyalgia, anxiety, depression, and attention deficit hyperactive disorder (ADHD), all of which she treated for over the years.  Despite her medical issues, the employee was always able to work.  In the year prior to her work injuries, the employee had minimal mental health care.  In December 2018 and February 2019, she was seen by Dr. Bruce Seileni for chronic ADHD and insomnia.  She described herself as moody and irritable.  She was prescribed a mood stabilizer and a stimulant and was considered stable and capable of working despite her symptoms.  The employee also treated at Abbe Center on March 13, 2019, describing anger, anxiety, worries and irritability, for which she was prescribed medications but not therapy.

The employee was involved in two work-related collisions in 2019.  On May 11, 2019, the employee was driving a semi-tractor trailer on a divided highway traveling at highway speed.  A passenger vehicle turned into a median crossing, and, rather than stopping, continued into the employee’s travel lane.  The employee testified that she had almost no time to react.  She applied her brakes but struck the other vehicle, followed by a secondary impact.  The other vehicle was wedged into the right front wheel well of her semi-tractor trailer.  The employee witnessed as emergency personnel pulled the other driver out of the car.  She was declared dead at the scene.  The employee described that accident as having “done her in,” noting that she “watched them cover that lady up.”  (T. 50.)  She also described seeing the deceased driver’s husband arrive at the scene, learn of his wife’s death, and suffer a heart attack.

On cross examination, the employee stated that she did not suffer any physical injuries from the May 2019 collision.  She previously told Dr. Joseph Burgarino, the employer and insurer’s medical expert, that the May 2019 collision resulted in her being tossed about inside the cab of her semi-tractor trailer during the double-impact collision.  On June 4, 2019, she saw her family doctor, Dr. Ann Soenen, for complaints of back and hip pain, although she did not mention the collision as a cause to the doctor.

The employee returned to work soon after the May 11, 2019, collision.  She testified that she was afraid that if she did not get back behind the wheel she might never do so again.  She also testified that she was the sole financial support of her family.  After returning to work, she struggled when she saw other vehicles pull into medians in divided highways.

On June 10, 2019, only 30 days later, the employee was involved in a second collision.  She was driving her semi-tractor trailer down a long hill on a divided highway at highway speed.  She saw a car ahead in a median crossing.  The car remained stopped.  Although the driver of the other car had plenty of opportunity to proceed before the employee’s semi-tractor trailer drew nearer, it did not do so.  When the employee’s semi-tractor trailer reached the bottom of the hill and approached the median, the car pulled out in front of the semi-tractor trailer.  The employee’s semi-tractor trailer threw the car into a rock wall, while the semi-tractor trailer continued through the median toward oncoming traffic before the employee was able to bring it to a stop.  The employee told Dr. Burgarino that during the June 2019 collision she felt helpless and unable to avoid the collision and that the collision was very traumatizing as she thought she might have killed another person.

The day following the June collision, the employee was examined by Dr. Soenen.  The employee described being tossed about in the cab, forward and backwards, in the June collision.  She hit the dashboard with her right knee and right shoulder, and hit her chest and abdomen on the steering wheel.  She was stiff, sore, and had a headache.  The employee described difficulty walking and lifting, as well as right knee pain. She had ongoing right knee and right shoulder pain, upper and lower back pain, and bilateral hip pain, right more than left, and leg numbness.  She told her doctor that her pain was worse following the June collision.  The employee was very emotional at this visit, describing her mindset as “not right.”  Dr. Soenen prescribed muscle relaxers, ordered trigger point injections of her back, hips, and shoulders, and sent the employee to be x-rayed.  She also provided the employee with a psychiatric referral.  Later, Dr. Soenen wrote a brief note stating that it was unclear how long the employee’s underlying physical conditions had been aggravated by the June 10, 2019, incident.  The employee underwent the recommended injections from June 12 through July 8, 2019.

The employee took two weeks off work after the June collision, as she was not feeling right, was not comfortable driving, and had no desire to do anything or go anywhere.  On June 24, 2019, Dr. Soenen wrote a note stating that the employee could return to work without restrictions, although she would not be allowed to drive a stick shift vehicle.  Dr. Soenen also noted on this date that the employee still needed to be seen by a psychiatrist.

The employee saw Dr. Karina Adair of Adair Chiropractic on June 24, 2019.  The employee told Dr. Adair that her symptoms began years ago and did not mention the collisions.  She told the doctor that she was suffering from upper back, neck, and right shoulder pain, among other things.  The employee saw Dr. Adair again for treatment on June 28, July 1, and July 8, 2019.  The employee described this care as helpful.^[1]

On July 9, 2019, Dr. Kristin Gisselman examined the employee and noted that she was having trouble driving following the two collisions, particularly due to anxiety.  Dr. Gisselman also recommended that the employee receive psychiatric care.

The employee underwent a psychological examination by Dr. Luke Hansen on July 17, 2019.  He noted that she previously treated with him in 2015-16 but had managed adequately since.  She has continued to treat with Dr. Hansen weekly and bi-weekly since July 2019.  She described increased depression, anxiety, and irritability since the two collisions, with crying spells and feelings of guilt.  Dr. Hansen described the employee’s depression and ADHD symptoms as worse since the two collisions.  She described herself as being more angry, more depressed, withdrawn from her family, not doing much, not caring about or wanting to participate in the holidays, and going to her bedroom and staying there when she was not at work.  She described her life before the work injuries as being centered around her children.  Since the two collisions, the employee dwells on how her children would react if she were to die, and these thoughts are debilitating to her.  Dr. Hansen’s notes also reflected other stressors in the employee’s life, both before and after the work injuries.  He diagnosed post-traumatic stress disorder (PTSD), ADHD, depression, and anxiety.

The employee testified that at the initial visit with Dr. Hansen, he verbally took her off work.  (T. 56.)  The employee also testified that Dr. Hansen wrote a note in July, but it was never received by the employer.  (T. 56.)  Dr. Hansen’s July 24, 2019, chart note indicated that the employee tried to return to work after the June collision, but was now unable to continue driving a semi-tractor trailer and could not get in to see a psychiatrist for many months.

On August 3, 2019, the employee was seen by Dr. Joseph Burgarino at the request of the employer and insurer, for a neuro-psychiatric and neurological examination limited to only the second collision.  At the time of the report, Dr. Burgarino had only reviewed a small number of medical records encompassing June 11, 2019, through July 9, 2019.  In his August 18, 2019, report, Dr. Burgarino described the employee’s psychological care up to that point as being reasonable and necessary, and stated she suffered from an adjustment disorder with anxiety and depression.  He opined that her preexisting mental condition had not been aggravated by the June 2019 collision.  He also described the June 2019 collision as having temporarily aggravated a PTSD diagnosis, although he did not explain the source of the PTSD diagnosis.  He said this aggravation resolved as of July 10, 2019, one month post-collision.  From a physical perspective, he stated that the employee told him she suffered no physical injuries in the June 2019 collision.  Nevertheless, he diagnosed a transient benign cervical, thoracic, and trapezial myofascial ligamentous strain caused by that collision that had also resolved within one month of the injury.

The employee received psychiatric care on September 25, 2019, when she saw Laura Roemo, SPRT, at the Abbe Center.  The employee told the provider that she suffered from anxiety and PTSD symptoms, flashbacks, nightmares, and was unable to complete tasks.

On September 18, 2019, Dr. Hansen wrote a note indicating that the employee should remain off work for the balance of the calendar year due to her PTSD.  (Ex. F.)  On October 10, 2019, the employee was fired from her job with the employer for refusing to return to work.  (Ex. 11.)  She testified that she will never drive a semi-tractor trailer again regardless.  On December 19, 2019, Dr. Hansen wrote that the employee should remain off work through May 2020.  (Ex. F.)

The employee did not work after Dr. Hansen restricted her from working in July 2019.  However, due to her financial circumstances, the employee started looking for work in January 2020, and found a job as a delivery driver.  Her job was to pick up medications at a pharmacy using her own car and drop off the medications at a nursing home.  She agreed that the number of hours she worked was based upon demand and that there were fewer hours available in light of the COVID-19 pandemic.  She worked as a delivery driver until September 1, 2020, when she got into a verbal altercation with her supervisor and was fired.  The employee described getting into verbal altercations often since the collisions.  Her medications were not helping, she could not sleep well, and she felt angry all the time.  Within days, the employee got a new job.  The employee’s earnings fluctuated due to the hours available, at times earning less than she did driving for the employer.

Dr. Hansen wrote a report dated September 10, 2020, describing the employee as suffering from PTSD, major depressive disorder, and ADHD.  Dr. Hansen noted that before the work injuries, the employee was “someone who took great pride in being a strong person, and one of few women to drive the types of trucks she drove.  If she felt physically, cognitively, and emotionally capable of driving truck again, I have no doubt that she would be doing so.”  (Ex. G.)  Dr. Hansen went on to say, “it is my strong clinical opinion that [the employee] has PTSD because of the incidents while truck driving on 5/11/2019 and 6/10/2019.  Furthermore, it is evident that her preexisting difficulties with major depressive disorder and ADHD has been exacerbated by the trauma she has experienced.  I do believe that she was incapable of working as a commercial truck driver from 6/11/2019 to 6/24/2019 and 7/8/2019 and continues to be unable to do so.”  (Ex. G.)

The employee’s attorney had her examined by Dr. Michael Keller for a psychological evaluation.  Dr. Keller wrote his report October 21, 2020, after having reviewed numerous medical records dating back to 2011.  Dr. Keller diagnosed chronic PTSD that he opined to be a consequence of both collisions “in concert with one another.”  (Ex. M.)  He also diagnosed the employee as having a history of ongoing diagnoses of major depressive disorder, anxiety disorder, and ADHD.  He opined that all three of these diagnoses were exacerbated and aggravated by the consecutive collisions, giving detailed reasons for his opinions, and noting that this was further supported by Dr. Hansen’s observations.  He concluded that the employee needed ongoing care for all of her mental health conditions.  Dr. Keller also noted that a 20 percent permanent partial disability (PPD) rating was appropriate pursuant to Weber^[2] under Minn. R. 5223.0360, subp. 7(D)(2).

The employee returned to Dr. Burgarino at the request of the employer and insurer for opinions regarding both collisions.  He reviewed over 1,200 pages of medical records for this examination and issued his second report on November 25, 2020.  He detailed that the employee reported persistent nightmares (five times a week), flashbacks, hyperactivity, isolation, and avoidance.  Dr. Burgarino stated that the employee suffered from ADHD, major depressive disorder, dysthymia/persistent depressive disorder, and generalized anxiety disorder, however these conditions were neither caused nor aggravated by either of the collisions.  He diagnosed the employee with PTSD, which was caused by both collisions, although the aggravation from the June collision had been temporary.  Dr. Burgarino believed the treatment the employee had received for her PTSD had been reasonable and necessary, but suboptimal.  He stated that she needed better medical management and better psychotherapeutic treatments, specifically for PTSD.  He advised against any semi-tractor trailer driving and stated that it was too soon to tell whether the employee was at maximum medical improvement or whether she would have a PPD rating.  Based on this report, the employer and insurer admitted liability for the employee’s PTSD diagnosis related to the May 2019 collision and agreed to pay the medical bills related to the employee’s PTSD after May 11, 2019.

The remainder of the employee’s claims were heard by a compensation judge on December 29, 2020.  The issues presented were whether the employee had sustained permanent aggravations to her low back, right knee, right hip, and right shoulder conditions as a result of the June 10, 2019, collision; whether she suffered an aggravation of her preexisting depression, anxiety, and ADHD as a result of either or both collisions; whether she was temporarily and totally disabled from July 13, 2019, to January 30, 2020; whether the employee has been intermittently temporarily and partially disabled since January 31, 2020; and whether certain medical care was compensable as a result of one or both collisions.  The employee also claimed entitlement to a vocational rehabilitation consultation and services.  The employee did not claim PPD benefits, despite Dr. Keller's assessment.

The compensation judge issued her Findings and Order on January 27, 2021.  She found the employee did not sustain any permanent aggravation to her back, knee, hip, or shoulder as a result of the June 10, 2019, collision, and that the medical care rendered after July 10, 2019, for those conditions was not causally related to the work injuries.  The compensation judge also found that the employee did sustain a permanent aggravation of preexisting depression, anxiety, and ADHD as a result of both collisions, and that the employee was entitled to the wage loss benefits claimed.  She found that the employee’s treatment for PTSD, depression, anxiety, and ADHD was reasonable, necessary, and causally related to both collisions and awarded payment for that treatment.  The compensation judge also awarded the employee’s claim for a vocational rehabilitation consultation.  The employer and insurer 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(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).

The employer and insurer make several arguments on appeal.  First, they assert the compensation judge erred in admitting into evidence the medical opinions from Drs. Soenen, Hansen, and Keller.  Second, they argue that by finding that the employee suffered a work-related aggravation of her preexisting mental health conditions, the compensation judge improperly awarded a mental/mental claim.  Third, they alternatively argue that substantial evidence does not support the finding that the collisions aggravated the employee’s preexisting mental health conditions.  Fourth, the employer and insurer assert that substantial evidence does not support the award of wage loss or medical benefits.^[3]

The employer and insurer assert that the opinions of Dr. Soenen and Dr. Hansen lack foundation because there were inaccurate or incomplete facts contained in the letters sent to the doctors by the employee’s attorney, and because neither doctor described any review of the employee’s medical records.  Furthermore, the employer and insurer argue that Dr. Soenen gave no explanation of her “cryptic opinions,” and that the employee’s attorney improperly implied that by simply signing her notes, her opinion would be accepted.  They further argue that Dr. Hansen did not review certain relevant medical records from Unity Point or from Abbe Center.

Both Dr. Soenen and Dr. Hansen were treating doctors of the employee.  The foundation of their opinions was established not only by the medical records that they had reviewed from other providers, but more importantly, from the care that they personally provided.  Both doctors treated and examined the employee on numerous occasions both before and after the two collisions and had sufficient foundation to render an opinion.  See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017) (an expert’s opinion does not require perfect foundation, merely adequate foundation).

The employer and insurer also assert that the opinion of Dr. Keller lacks foundation because the facts he assumed and relied upon were not supported by the evidence.  He stated that the employee had no prior mental health problems, but later stated that she had preexisting depression and ADHD.  He referred to the employee’s preexisting mental health conditions as “well managed” even though the employee received mental health care just months ahead of the first collision.  This, they argue, put the doctor’s credibility at issue.  They also argue that Dr. Keller inaccurately assumed that the employee had no prior orthopedic conditions.  The employer and insurer also assert that compensation judge denied them the opportunity to explain their foundational objections to Dr. Keller's opinion at the hearing.

A review of the record below does not support the employer and insurer’s argument that the compensation judge committed error by denying the employer and insurer an opportunity to explain their foundational objections to Dr. Keller’s opinions.  At no point did the compensation judge preclude the employer and insurer's attorney from explaining his objections to Dr. Keller's opinion, and the record reveals no attempt by the employer and insurer’s attorney to provide further explanation.  No error was committed by the compensation judge.

With respect to the employer and insurer’s arguments regarding the foundation of Dr. Keller’s opinions, these issues go to weight and not foundation.  See Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996); see also Mundy v. Am. Red Cross, slip op. (W.C.C.A. Aug. 29, 2000).  Dr. Keller's opinion was well supported.  Although at one point, he stated that the employee had no prior mental health diagnosis, his opinion demonstrated his knowledge that the employee had a preexisting mental health condition, even opining that the preexisting mental health conditions were aggravated by the work injuries.  He also stated the preexisting conditions were “well managed.”  The employer and insurer point to the fact that the employee was treating for the mental health condition just a few months before the two collisions, suggesting the employee’s conditions were not well managed.  We disagree.  The employee was seen for mental health care on three occasions over the six months prior to the first collision, which demonstrates that there was some level of management of her mental health conditions.  Whether the conditions were being well managed or poorly managed is an issue of opinion.  Dr. Keller’s opinion was that the conditions were well managed and substantial evidence supports his opinion.  Prior to the two collisions, the employee was able to work, at sometimes very strenuous jobs, and she was not regularly seeing mental health providers.  Yet, after the two collisions, she was unable to work for months, was no longer able to drive a semi-tractor trailer on a permanent basis, and began a weekly, and later bi-weekly, course of mental health care that continued through the time of the hearing.  Dr. Keller’s opinion is also consistent with the records of Dr. Hansen, where he noted the employee was getting along reasonably well from a mental health perspective in the years prior to the two collisions.

The opinions of Dr. Soenen, Dr. Hansen, and Dr. Keller have adequate foundation.  The compensation judge’s admission into evidence and reliance on those opinions do not constitute error.

The employer and insurer argue that the compensation judge, in awarding benefits for the aggravation of the employee’s underlying mental conditions of ADHD, depression and anxiety, granted a non-compensable mental/mental claim.  We disagree.

Under Minnesota law, a mental injury caused by a mental stimulus is not a compensable work injury.  Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981) (there are essentially four type of work injuries: (1) physical/physical, physical stimulus resulting in physical injury; (2) physical/mental, physical stimulus resulting in mental injury; (3) mental/physical, mental stimulus resulting in physical injury; and (4) mental/mental, mental stimulus resulting in mental injury).  The only exception to this framework is for cases involving mental stimuli causing PTSD.  See Laws of Minn. 2013, Chap. 70, Art. 2, § 1 (amending Minn. Stat. § 176.011, subd. 15).  Minn. Stat. § 176.011, subd. 16 states, in part, “[p]hysical stimulus resulting in mental injury … shall remain compensable.”  In Lockwood, when first presented with a mental/mental claim, the supreme court stated, “[t]he salient issue presented is whether a mental injury caused by job-related mental stress without physical trauma is compensable under our workers’ compensation act.”  Lockwood, 312 N.W.2d at 926, 34 W.C.D. at 309 (emphasis added).  Based on both statute and case law, therefore, other than PTSD injuries, a mental health injury is a noncompensable mental/mental claim if there is no physical stimulus or trauma.

The employer and insurer argue that the employee suffered no physical injuries in the first collision, and that she told Dr. Burgarino that she suffered no physical injuries in the second collision.  Without such physical injuries, they assert, her claims for an aggravation of preexisting mental health conditions are limited to mental injury caused by mental stimuli and, therefore, are not legally compensable claims.  This argument is not supported by the facts or by the law.

The employee’s injuries occurred during two consecutive vehicle collisions with a resulting physical impact.  The employee was an occupant in an involved vehicle, not a mere witness to the collisions.  The employee’s injuries did not arise from solely mental stimuli.  Moreover, the evidence shows the employee did, in fact, suffer physical injury.  She was examined by doctors and treated for physical injuries after both collisions.  Further, Dr. Burgarino, relying on the employee’s medical records, opined that she suffered a temporary aggravation of her preexisting physical injuries from the June collision.  Contrary to the arguments of the employer and insurer, a permanent physical injury is not required for mental injury compensability.  Mitchell v. White Castle Sys., Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980); Russell v. Opportunity Partners, Inc., No. WC06-109 (W.C.C.A. Sept. 18, 2006).  We reject the employer and insurer’s argument that the employee must prove that the aggravation of the mental conditions must be a direct result of only the physical injuries.  The statute states that physical stimulus, not physical injury, is required for compensability of mental injuries.  Minn. Stat. § 176.011, subd. 16.  Both Dr. Keller and Dr. Hansen opined that the collisions, which were physical stimuli, caused the aggravation of the employee’s preexisting mental health conditions.  This evidence supports the findings of the compensation judge on this issue, and we affirm.

The employer and insurer argue that even if the employee’s claim for an aggravation of preexisting mental health conditions is legally compensable, substantial evidence does not support the compensation judge’s finding that the employee aggravated her preexisting mental health condition.

The employer and insurer rely upon Dr. Burgarino’s opinions that neither the May 2019 nor June 2019 collisions aggravated the employee’s preexisting mental health conditions.  They argue that the opinions of Dr. Hansen and Dr. Keller, that the two collisions combined aggravated the employee’s preexisting mental health conditions, should not have been relied upon because, they assert, the May collision did not involve a physical injury and cannot support a mental claim and neither doctor opined that the June collision alone caused the aggravation.

As we explained above, we reject the assertion that the May collision amounts to a mental/mental claim.  Furthermore, the compensation judge was presented with two well-founded opinions that both the May and June collisions, occurring in close proximity to each other, caused an aggravation to the employee’s preexisting mental conditions.  The choice of the compensation judge between competing, well-founded medical opinions is typically undisturbed on appeal.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The employer and insurer also argue that the compensation judge erred in determining that the employee’s preexisting mental health conditions were “permanently” aggravated by the work injuries because no doctor expressed an opinion regarding a permanent aggravation.  However, evidence in the record does support the compensation judge’s conclusion.  Neither Dr. Keller nor Dr. Hansen approved a return to semi-tractor trailer driving on a permanent basis,^[4] the employee testified that she could never return to that vocation, Dr. Keller provided a PPD rating from the injuries, and the employee continued to treat for the injuries through the date of the hearing.  We affirm the compensation judge on this issue.

The employer and insurer argue that substantial evidence does not support the award of wage loss or medical benefits.  We disagree.

The employer and insurer argue that the employee was not entitled to temporary total disability benefits because she had no physical limitations, did not conduct a reasonable job search, and withdrew from the labor market.  Yet, the employee did not look for work because she was precluded from working by Dr. Hansen through the end of 2019.  Dr. Hansen then extended the work restriction through May 2020.  During the time frame of May 2019 through late 2020, the employee only had Dr. Hansen’s “no work” restriction to consider.  Moreover, rather than withdraw from the labor market, the employee sought out work, obtained a job, and began working even before she was released to look for work by Dr. Hansen, and without any vocational rehabilitation assistance.  While the compensation judge did not make findings regarding the issues of job search or withdrawal from the labor market, substantial evidence supports the award.

The employer and insurer also argue that the employee should not receive temporary partial disability (TPD) benefits because her subsequent employment provided insufficient wages due to the economy rather than her work injuries.  An employee’s wage is presumed to reflect her earning capacity.  Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976).  The employee is permanently precluded from engaging in commercial semi-tractor trailer driving and she found jobs within that restriction.  Whether those jobs were lower paying due to factors including the COVID-19 pandemic is immaterial to this presumption.  To rebut the earning capacity presumption, the employer and insurer bears the burden of proof.  Malloy v. Hokanson Plumbing, slip op. (W.C.C.A. Mar. 19, 1992).  As the employer and insurer offered no evidence that the employee could have obtained higher paying work outside of the commercial semi-tractor trailer driving industry, the award of TPD benefits is affirmed.

Finally, the employer and insurer argue that the compensation judge’s award of medical benefits for the employee’s physical conditions is not supported by substantial evidence because the employee testified that she was not hurt at all in the first collision and because she told Dr. Burgarino that she was not hurt in the second collision.  Yet, the evidence shows that the employee suffered some physical impact during both collisions and sought medical care after both.  Even more, Dr. Burgarino relied upon those facts to support his opinion that the employee suffered a transient benign cervical, thoracic, and trapezial myofascial ligamentous strain as a result of the June collision and that the medical care the employer received after the June collision through July 10, 2019, was related to that injury.  Substantial evidence supports the compensation judge’s award of medical benefits for physical care rendered through July 10, 2019.