DAVID HOODIE, Employee/Respondent, v. WELLS CONCRETE, INC. and CCMSI, Employer-Insurer/Appellants.

The employer and insurer appeal from a compensation judge’s findings and order awarding the employee permanent total disability (PTD) benefits and ordering the employer and insurer to pay for a revision fusion surgery of the employee’s low back.  We affirm.

The employee, David Hoodie, was born in 1970 and is presently 53 years old.  He lives six miles outside of St. Hilaire, Minnesota, a town of about 500 people.  The employee described the job market in his town as “not good.”  (T. 68.)  The closest city, Thief River Falls, is about 12 miles away.  The closest city with significant population, Grand Forks, North Dakota, is 50 miles away.  He did not graduate from high school, although he did obtain a GED.  His prior employment includes heavy work such as farming, truck driving, and rice harvesting.  He also has skills in rough and finish carpentry.  The employee is a self-taught mechanic, but he lacks any certification to work in that field.  He testified that he has learned to fix just about anything.  He ran his own truck driving business for three years, although his wife did all the business paperwork.  Other than texting on a cell phone, he has no experience with or ability to use computers, a keyboard, or email.  He has never worked in an office setting.

The employee worked for the employer, Wells Concrete, as an operator of heavy-haul and ready-mix trucks.  The work was very physically demanding, including regular lifting of up to 150 pounds and climbing up to and down from the small cab of ready-mix trucks.  He worked full time, including up to 60 hours per week during the busier summer months.  He had no physical restrictions prior to beginning his employment with the employer.  He had occasional aches and pains from the demands of the job but did not miss time from work.  On May 9, 2019, the employee injured his low back while standing for four hours, bent forward, inside a concrete drum using a jackhammer to remove dried concrete from the inside of the drum.

The employee began receiving chiropractic care for low back pain from Dr. Steven Keogh of Altra Care in Thief River Falls on May 13, 2019.  Dr. Keogh limited the employee to a maximum workday of 8 hours, with lifting restricted to 25 pounds occasionally, pushing and pulling up to 30 pounds, sitting to 30 minutes continually, standing to 60 minutes continually, and using stairs, stooping, kneeling, and overhead to 25 percent of the workday.  Although the employee continued to work, the employer did not follow these restrictions.

The employee began to experience radicular symptoms down his right leg but continued to work.  He underwent an open scan MRI on June 28, 2019, which revealed a broad-based disc bulge at L4-5 with moderate to severe spinal canal stenosis, left greater than right, as well as mild to moderate left foraminal stenosis at L5-S1.  Because the employee’s symptoms did not improve and in light of the radicular symptoms and MRI findings, Dr. Keough stopped chiropractic treatment on July 22, 2019, and referred him to Dr. Hamid Abbasi of Tri-State Brain and Spine.

Dr. Abbasi first examined the employee on July 24, 2019.  Physical therapy started shortly thereafter per Dr. Abbasi’s recommendation.  On August 6, 2019, the employee was taken off work by his physical therapist.  On August 12, 2019, the employee had an epidural steroid injection (ESI) ordered by Dr. Abbasi.

When the employee failed to improve with physical therapy, Dr. Abbasi ordered a discogram and post-discogram CT scan on September 16, 2019.  The discogram, performed the next day, was positive for L4-S1 degenerative disc disease, disc extrusion, and foraminal stenosis.  Based upon those results, Dr. Abbasi recommended an L4-S1 interbody fusion.  Dr. Abbasi also advised the employee to quit smoking, which he accomplished by November 1, 2019.

John Elsagher, a qualified rehabilitation counselor (QRC), met the employee on October 28, 2019.  He found the employee was qualified for statutory rehabilitation and began providing medical management with the long-term rehabilitation goal to return the employee to work with the employer.

The employee was seen for a second opinion by Dr. Alexander Drofa at Sanford Neurosurgery on November 4, 2019.  Dr. Drofa suggested an MRI, which was performed on November 8, 2019.  The MRI revealed multi-level degenerative disc disease and facet arthropathy with mild retrolisthesis of L5 on top of S1.  Dr. Drofa agreed the employee was a candidate for the fusion surgery.

The employee underwent the two-level fusion surgery by Dr. Abbasi on February 5, 2020.  Within a month, the employee’s radicular pain had resolved, but his low back pain was worse.  Dr. Abbasi recommended physical therapy and a CT scan.

On February 19, 2020, the employer notified the employee that the company was being sold and that he was no longer employed there.  QRC Elsagher changed the long-term rehabilitation goal to returning the employee to work with a new employer.  QRC Elsagher deferred starting job search efforts until the employee’s restrictions were determined and he was released to work.

The employee began physical therapy on March 4, 2020.  He attended therapy until July 2020.  He also had the recommended CT scan on June 15, 2020, and saw Dr. Abbasi the same day.  The employee continued to have significant low back pain.  Dr. Abbasi reviewed the CT scan and determined that the fusion was not complete but expected the fusion to continue to progress.

On September 21, 2020, the employee was seen again by Dr. Abbasi.  The employee reported pain, numbness, tingling, and weakness into the SI joints, right worse than left.  Objective findings confirmed SI joint difficulty and Dr. Abbasi recommended a lumbar myelogram, a CT scan of the pelvis, SI joint injections for diagnostic purposes, and more physical therapy.  The bilateral SI joint injections provided 70 percent relief.  The employee began physical therapy in October 2020.  On October 19, 2020, the employee underwent the lumbar myelogram, an SI joint CT scan, and x-rays.  Based on his review of the imagery and his examination of the employee on November 9, 2020, Dr. Abbasi diagnosed the employee with bilateral SI joint disease and recommended staged SI joint fusions, beginning with the right side.

On March 1, 2021, Dr. Marc Swiontkowski, an orthopedic surgeon with Tria Orthopedic, examined the employee for a second opinion regarding the proposed SI joint fusions.  Dr. Swiontkowski agreed with the proposed surgical plan.

At the request of the employer and its insurer, the employee saw Dr. Frederick Harris on March 3, 2021.  In his report dated March 19, 2021, Dr. Harris diagnosed the employee with a lumbar sprain/strain with chronic lumbar spondylosis, degenerative disc disease and stenosis, and right greater than left radiculopathy.  He opined that the employee had chronic low back pain and bilateral SI joint disease exacerbated by the L4-S1 fusion.  In his opinion, none of the employee’s diagnoses were related to the work injury.  He opined that the employee’s sprain/strain possibly was temporarily exacerbated by the work injury but would have resolved within six weeks to three months.  He also felt that the SI joint fusions, although unrelated to the employee’s work injury, were reasonable and necessary.  He considered various work restrictions to be appropriate, including limited bending, twisting, and lifting to 20 pounds with minimal lifting of objects from the floor, and with the ability to change positions as needed.  The employer and insurer discontinued temporary total disability (TTD) and rehabilitation benefits on April 7, 2021, based upon Dr. Harris’ opinions.

On June 2, 2021, a lumbar CT scan showed the employee’s fusion at L4-S1 as stable with at least moderate subtotal bony fusion at both levels.

The employee returned to Dr. Keogh on July 6, 2021, and received additional chiropractic care through August 2, 2021.  Dr. Keogh diagnosed the employee with lumbar radiculopathy and lumbar scoliosis.

Dr. Abbasi wrote a narrative report on July 14, 2021.  He opined that the employee suffered from L4-S1 disc disease, disc herniation, and facet disease, as well as bilateral SI joint disease.  He believed the work injury substantially caused or aggravated these conditions and led to the need for the lumbar fusion.  He also considered the proposed SI joint fusions to be related to the work injury.

On July 20, 2021, the employee’s claims for SI joint fusion surgery, TTD benefits, and ongoing statutory rehabilitation services came on for hearing before a compensation judge.  On July 28, 2021, the compensation judge issued her findings and order.  She found the employee to be a reliable and credible witness and accepted the opinions of Dr. Abbasi over those of Dr. Harris.  Consequently, she ordered the employee’s TTD and rehabilitation benefits reinstated and that the employer and insurer pay for the proposed SI joint fusion surgery.  These findings were not appealed and are the law of the case.

The employee underwent a right-sided SI joint fusion performed by Dr. Abbasi on September 29, 2021.  A month later, the employee reported some improvement but continued to have pain that he rated as six out of ten.  Dr. Abbasi referred him to physical therapy and recommended a CT scan in three months to monitor the progression of the fusion.  Physical therapy began on November 3, 2021, and by early January 2022, the employee reported a 50 percent pain improvement.  However, on January 24, 2021, the employee reported significant worsening of his symptoms.  Therapy continued intermittently through the hearing date in January 2023, with close to 100 sessions of therapy in that 15-month time frame.  The employee complained throughout the treatment of poor tolerance for activities due to severe pain in his low back and down his legs, right more than left.

The Social Security Administration found the employee disabled pursuant to their rules retroactive to August 1, 2020, with benefits starting in January 2021.^[1]

When he returned to Dr. Abbasi on February 7, 2022, the employee complained of severe low back pain and radicular pain.  He had numbness in both legs, right worse than left.  A CT scan of the right SI joint showed the hardware in good alignment.  Dr. Abbasi ordered more physical therapy and recommended investigating the employee’s ongoing radiculopathy with a lumbar CT myelogram.  He advised the employee to remain off work.

The employee had excellent relief from bilateral SI joint injections on March 7, 2022.  On referral from Dr. Abbasi, on March 21, 2022, the employee saw Dr. Samual Lindemeier of Essentia Health Orthopedics to determine if the hip joint itself was causing the employee’s symptoms.  Dr. Lindemeier concluded that the hip joint was not the source of the employee’s pain since x-rays showed only mild osteoarthritis of the right hip.  Instead, he felt that the pain generator was likely the SI joint.  The employee then underwent a lumbar CT myelogram on April 4, 2022.  The fusion hardware was in good alignment, but the scan showed multilevel degenerative spondylosis and degenerative disc disease resulting in moderate stenosis at L2-3 and L3-4.

The employee underwent additional SI joint injections on the right on April 7, 2022.  On May 7, 2022, the employee reported to Dr. Abbasi that he received significant relief from the injections.  Due to the severity of the employee’s symptoms, Dr. Abbasi continued to preclude the employee from working.  Because the employee was also reporting left-sided symptoms, Dr. Abbasi recommended bilateral injections for therapeutic and diagnostic purposes.  The injections were performed on June 13, 2022.  The employee reported complete relief on the left and 80 percent relief on the right.  The procedures were repeated on July 11 and August 8, 2022, and the employee reported 90 percent relief from both injections on each side.

In August 2022, the employee filed an amended claim petition asserting an underpayment of TTD benefits due to an alleged miscalculation of his weekly wage and claiming PTD benefits.

On August 22, 2022, the employee returned to Dr. Abbasi with severe pain on the right side and intractable low back pain.  Given the symptoms and the results of the SI joint injections, Dr. Abbasi recommended left SI joint fusion and continued the employee’s restrictions.

Because he had mostly right-sided symptoms, but Dr. Abbasi had recommended a left-sided SI joint fusion, the employee sought a second opinion and was seen by P.A. Joanna Breding of Sanford Neurosurgery on September 8, 2022.  She recommended that before meeting with a neurosurgeon, he undergo a repeat MRI and EMG.  An MRI performed on September 20, 2022, showed an L4-S1 fusion without complication and mild multi-level degenerative disc disease and facet arthropathy.  The employee underwent an EMG on October 6, 2022, at Noran Neurological Clinic. The EMG revealed left peroneal motor neuropathy of unclear significance.  There was no evidence of lumbar radiculopathy, although it could not be ruled out.

The employer and insurer completed a notice of benefit payment form on September 23, 2022, stating that 20 percent minimal ascertainable permanent partial disability (PPD) had been paid to the employee by September 15, 2022.  The form also noted that the employee received the statutory maximum of 130 weeks of TTD benefits by January 19, 2022.  Shortly thereafter, the parties entered into a stipulation for settlement which resolved the dispute over the weekly wage and the claim for underpaid TTD benefits.^[2]

On October 5, 2022, the employee was reevaluated by Dr. Harris at the request of the employer and insurer.  Dr. Harris issued his report on November 9, 2022.  He recommended a CT scan of the lumbar spine and pelvis to rule out possible pseudoarthrosis from L4-S1 and to evaluate possible pseudoarthrosis of the right SI joint.  He also recommended another lumbar MRI scan to rule out disc herniation or other causes of right lumbar radiculopathy.  Dr. Harris did not think the employee would benefit from a left SI joint fusion.  He considered the employee capable of working under restrictions on lifting, bending, twisting, and repetitive motions, with lifting limited to 50 pounds.

On November 7, 2022, the employee returned to see P.A. Breding.  The employee showed decreased range of motion and SI joint tenderness, right greater than left.  A CT myelogram showed severe bilateral foraminal stenosis at L5-S1, moderate bilateral foraminal stenosis at L4-5 and a mild disc bulge at L3-4.  On November 22, 2022, P.A. Breding referred the employee to Dr. Karthik Madhavan of Sanford Neurosurgery.  The employee had complaints of ongoing pain since the L4-S1 fusion and later SI joint fusion.  The employee reported that SI joint injections temporarily relieved his pain.  Dr. Madhavan determined that the pain generators were most likely the L5-S1 nerve roots, which are close to the SI injection site.  Dr. Madhavan determined the lumbar fusion was not robust, although all the hardware was in place.  He felt that there was ongoing compression at L5-S1 and L4-5 on the right.  The employee testified that to his understanding, Dr. Madhavan had recommended revising the lumbar and right SI joint fusions including complete replacement of all hardware.

Following an inquiry from the employer and insurer, QRC Elsagher reported that because the employee was restricted from all employment and had been so for most of the previous two years, no vocational testing or job search was underway.    He stated that he would commence vocational testing whenever the employee was about to be released to work.  He also opined that the employee was trending to PTD status, but since further treatment had been recommended, he would hold off on making such a determination.  He noted that he would have considered the employee to be permanently and totally disabled months earlier but for the ongoing care and the possibility that it might improve the employee’s functioning.  In his hearing testimony, QRC Elsagher reiterated these opinions.  Furthermore, he testified that, taking into account the employee’s skills, his date-of-injury wage of over $1,000 per week, his place of residence, and hypothetical release to work with light duty restrictions, for which no jobs were locally available, the employee would need vocational testing, a job placement plan, interest assessments, and other vocational work-up before a job search could begin with any expectation of success. 

On November 29, 2022, the employee met Lori Magoffin for a vocational evaluation at the employer and insurer’s request.  Ms. Magoffin reviewed the employee’s medical records and rehabilitation records and considered the labor market within a 50-mile radius of the employee’s home.  She did not conduct a full labor market survey due to time constraints.  She opined that, based upon the restrictions given by Dr. Harris, the employee was employable within 50 miles of his home.  She therefore did not believe the employee was permanently and totally disabled, noting that QRC Elsagher had not offered such an opinion either.  In her view, the employee had transferable skills that would allow him to work in a supervisory capacity or in light construction, and because his doctors were expecting improvement with further care, he might later have even fewer restrictions, increasing his employability.  A placement specialist, who assisted in Ms. Magoffin’s labor market review, identified 18 jobs in the labor market, but did not consider whether the potential employers could accommodate the employee’s restrictions or whether the employee had sufficient training to obtain the identified jobs.  Ms. Magoffin suggested that with additional computer skills, the employee would be even more employable, including for remote work.  Finally, she felt that without a job search, job development, or vocational testing, it was premature to consider the employee permanently and totally disabled.  She conceded that if the employee’s restrictions were more significant than those offered by Dr. Harris, he might not be able to perform any of the jobs identified in the labor market review.  Similarly, if he could not pass a commercial license examination, he would be precluded from some of the identified driving jobs.  She agreed that the employee would likely need to undergo vocational testing, a functional capacity evaluation, and computer training before he would be employable.  She acknowledged that the employer and insurer never requested that QRC Elsagher begin vocational testing, training, or other assistance.

On January 9, 2023, the employee saw Dr. Timothy Garvey at Twin Cities Spine for a third surgical opinion.  The employee reported that after his first surgery, he had six months of complete relief before the pain slowly recurred until the symptoms were almost the same as before the first surgery.  He had pain at the low back, buttocks, thighs, and legs, right greater than left, and a burning sensation in his toes.  After the SI fusion, he had four to six weeks of partial intermittent relief before the hip pain returned.  Dr. Garvey noted decreased sensitivity of the right leg.  He reviewed the CT scans of 2019 and 2022 and the MRI of 2022 and diagnosed the employee with low back pain with radiculopathy and possible L4-S1 pseudoarthrosis.  Dr. Garvey recommended a transforaminal epidural injection at L5-S1 on the right, concluding that the employee most likely had L5 radiculopathy and that his SI joint was not the pain generator.  Because conservative care had not helped and given that there was no convincing fusion on the imaging, Dr. Garvey suggested an L5-S1 decompression and foraminotomy as well as an L4-S1 revision of the fusion, with new instrumentation if the implants were loose.  The employee testified that he understood Dr. Garvey would decide whether to revise the right SI joint fusion only after the surgery began, and that a left SI joint fusion was not recommended.  Dr. Garvey also deferred restrictions to the employee’s family doctor but that the employee should stay at a light to medium level on a long-term basis.

On January 10, 2023, Dr. Abbasi continued to recommend a left SI joint fusion.  He did agree, however, with the recommendation for the L5-S1 transforaminal injection.

On January 25, 2023, the employee underwent the L5-S1 transforaminal epidural injection at Sanford Health.  The next day he reported 99 percent relief for all his symptoms, including his back and bilateral leg pain.  On January 30, 2023, the employee sat in a car for a 300-mile drive to St. Paul for his workers’ compensation hearing.  The relief he experienced from the injection began to subside after that car ride, and by the next day, after a poor night of rest in a hotel without a recliner, it was gone.  His pain “hasn’t let up since.”  (T. 61.)

Dr. Harris issued a supplemental report on January 27, 2023, after a review of additional medical records.  Dr. Harris stated that his opinions remained unchanged and that the employee would not benefit from additional surgical intervention including either a left SI joint fusion or a revision of his lumbar fusion.  The only objective findings he noted were decreased sensation in an L5 distribution, right greater than left, and limited lumbar spine motion.  In his opinion, these objective findings would not warrant an additional lumbar fusion.  He did, however, consider it reasonable for the employee to undergo a right L5-S1 diagnostic and therapeutic transforaminal injection.

The employee’s claims for PTD benefits and approval of a revision of the fusion surgery came on for hearing on January 31, 2023.  The employee testified that his pain in his low back is constant, averaging four to five on a ten-point scale.  His most significant pain is down his right leg, which he rated as an eight on average and a ten at its worst.  He rated his left leg pain at one to five, varying day-to-day.  He engages in daily therapy exercise at home without improvement.  He testified that activities that increase his symptoms include standing, walking, and driving.  He can stand for five to ten minutes, walk for an hour, and drive for an hour on average.  He sleeps poorly due to his pain, getting at best three hours, and only in a recliner.  He requires medication for depression, which he relates to his pain and inability to engage in work and recreational activities.^[3]  He likes hunting, fishing, and camping and he used to do these things together with his 12-year-old son, but now, due to his pain, he “[c]an’t even play catch with him.”  (T. 45.)  The employee testified that he would like to return to working but does not feel capable of doing so now given his symptoms.  One reason he wants to try the proposed surgery is to be able to do things again, including working.

The compensation judge issued her findings and order on February 27, 2023.  She found that the employee has been permanently and totally disabled since September 7, 2019, and that the proposed L4-S1 revision fusion surgery is reasonable and necessary.

On March 22, 2023, the employer and insurer moved for an amended findings and order, alleging that when Dr. Garvey saw the employee on a telehealth visit after the hearing, his treatment note expressed opinions that were contrary to the testimony of the employee and his QRC.  The request asked the compensation judge to reopen the record for additional testimony or to issue amended findings based upon newly discovered evidence.  The employee objected to the motion.  The compensation judge denied the motion, concluding that evidence that did not exist at the time of the hearing was not a basis for reopening the record or amending the findings and order.  The employer and insurer appeal the award of benefits, approval of the proposed surgery, and the denial of the motion to amend.

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 argue: (1) that substantial evidence does not support the compensation judge’s finding that the employee is permanently and totally disabled and that the compensation judge erred as a matter of law in concluding the employee is permanently and totally disabled, (2) that substantial evidence does not support the compensation judge’s finding that the proposed surgery is reasonable and necessary, and (3) that the compensation judge erred as a matter of law in failing to reopen the record or amend her findings and order.  We are not persuaded.

PTD is defined as an injury “which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income ... .”  Minn. Stat. § 176.101, subd. 5(2).  Totally and permanently incapacitated means that the employee’s disability prevents securing “anything more than sporadic employment resulting in an insubstantial income.”  Id.  In making a PTD determination, the court must consider the criteria of age and permanent partial disability, in conjunction with factors such as the employee’s education, training, and experience.  Id.

The possibility that the employee might return to employment following additional medical care or vocational training does not preclude a finding of PTD.  Dekeyrel v. Metro. Mech. Contractors, 76 W.C.D. 877 (W.C.C.A. 2016).  Generally, a determination of PTD status is upheld so long as the employee’s work-related condition, medically and vocationally, is likely to exist for “an indefinite period of time.”  Harrison v. Cleaning Concepts, Inc., 526 N.W.2d 46, 48, 51 W.C.D. 545, 548 (Minn. 1994).

The employer and insurer first argue that substantial evidence does not support a finding that the employee is permanently and totally disabled.  The record shows, however, that the employee has not worked since August 2019,^[4] and remains restricted from work by Dr. Abbasi.  He has no high school diploma, although he does have a GED.  He has no computer skills and lives in a very rural part of the state with limited job opportunities.  His past work experience consists entirely of heavy labor.  The two vocational experts agree that before the employee can work in many of the jobs that might be available to him under light work restrictions, he will require additional training.  He has fully cooperated with his treating providers and his QRC.  Recovery from the revision lumbar fusion will take about a year before the employee could be released to any type of work.  Even then, there remains uncertainty.  The employee’s testimony, which the compensation judge found credible, shows he has severe pain in his low back and down his right leg, can only engage in minimal activity, and sleeps poorly.  The compensation judge’s conclusion that the employee is permanently and totally disabled – that is, he is unable to work now and for the foreseeable and indefinite future – is well supported by substantial evidence in the record.

The employer and insurer point to several factors that mitigate against a finding of PTD.  These include the employee’s relatively young age, work ethic, innate intelligence, and self-taught skills in mechanics and carpentry, the hope that he will have fewer restrictions in the future if his revision lumbar fusion proves successful, and the fact that no expert – medical or vocational – directly opined that he was permanently and totally disabled.  The employer and insurer assert that the employee told Ms. Magoffin that he planned to move to Grand Rapids, Minnesota, a larger community with more job opportunities, but later testified that he was not planning such a move.  Further, the employer and insurer argue that because the employee no longer treats with Dr. Abbasi and has no intent to return to him, that physician’s opinion about work ability has no significance.

The employer and insurer argue that the compensation judge should not have found the employee a credible witness because he was a “zealous advocate for his own claim.”  We do not find this argument persuasive.  See Ibrahim v. Presbyterian Homes and Servs., WC19-6326 (W.C.C.A. Dec. 29, 2020); see also Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  Similarly, the employer and insurer’s argument that Dr. Harris’ opinions were more persuasive than those of Drs. Garvey, Abbasi, and Madhavan is not compelling.  The compensation judge is to resolve conflicts between competing medical expert opinions and may choose all or parts of any expert’s opinion as long as the opinion has sufficient foundation.^[5]  See Ruether v. Mankato State Univ., 455 N.W. 2d 475, 478 (Minn. 1990) (citing Fryhling v. Acrometal Products, Inc., 269 N.W.2d 744, 747 (Minn.1978) and Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639 (1955));  Erickson v. Qwest Corp., 79 W.C.D. 659, 665 (W.C.C.A. 2019); Moore v. Big Timber Wood-Premier Res., 73 W.C.D. 157, 168-69 (W.C.C.A. 2013).  Regardless of whether the employee returns to Dr. Abbasi, his opinion had sufficient foundation.  We also note that Dr. Garvey deferred to Dr. Abbasi’s workability opinion and expressed only a “long-term” opinion about the employee’s work limitations into the future.

The evidence in this case could have sustained a different finding, based in part on some or all of the factors raised by the employer and insurer.  But our role is not to reweigh the evidence, but to determine whether the compensation judge’s findings are supported by substantial evidence.  Hengemuhle, 358 N.W.2d at 60-61, 37 W.C.D. at 239-40.

The employer and insurer next argue that the finding that the employee is entitled to PTD benefits is contrary to law.  Specifically, they argue that only in the rarest of cases may PTD benefits be granted absent a job search.  While a job search is generally required for an employee to prove entitlement to any wage loss disability benefits, including PTD benefits, it is not mandatory.  See Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987).  The lack of a job search goes to the weight of the employee’s claim for PTD benefits.  Lueck v. Main Motors Co., slip op. (W.C.C.A. Jan. 26, 1995) (“a diligent job search is not an absolute prerequisite to an award of total disability benefits … .”).  In some circumstances, cooperation with rehabilitation services may be considered more compelling than a job search when considering entitlement to wage loss benefits.  Lual v. Quality Pork Processors, slip op. (W.C.C.A. Jan. 20, 2012) (citing Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989)).

In this matter, the vocational testimony from both experts, particularly the QRC, combined with the employee’s testimony and treating doctors’ opinions, provide ample evidence for the compensation judge to find that the employee has been precluded from working since August 2019.  This leads to the inevitable conclusion that a job search, from August 2019 onward, would have been futile.  See Hanson v. Schlies Floor Covering, Inc., No. WC20-6351 (W.C.C.A. Sept. 23, 2020) (job search not needed when futile). 

The employer and insurer further contend that a finding of PTD under these facts essentially undercuts the 130-week maximum that the statute allows for TTD benefits,^[6] making that statutory limit on wage loss benefits meaningless.  We disagree.  The statutory maximum number of weeks of TTD benefits applies regardless of, and independently of, when and whether an employee may be able to prove entitlement to PTD benefits.   

Under the totality of the circumstances, we conclude the compensation judge did not err as a matter of law in concluding that the employee is entitled to PTD benefits.  Once the employee undergoes the revision of his lumbar fusion, he may be no longer permanently and totally disabled.  But because that possibility is uncertain, and the employee’s current inability to work is expected to last an indefinite period of time, the determination of PTD status is well supported in both fact and law.

The employer and insurer argue that substantial evidence fails to support the compensation judge’s finding that the proposed revision of the employee’s lumbar fusion is reasonable and necessary.  The argument is two-fold.  First, the employer and insurer argue that the award both of surgery and PTD benefits is inconsistent, asserting that if the surgery might help him gain function, then he must not be permanently and totally disabled, and that if he is entitled to PTD benefits, then there is no reason for an award of surgery that might improve his function.  We disagree.  The employer and insurer are obligated to provide medical care that is reasonable and necessary to cure and relieve the effects of the work injury.  Minn. Stat. § 176.135, subd. 1.  An injured employee’s work ability neither compels nor precludes additional medical care, surgical or otherwise.

Second, the employer and insurer argue that the opinion of Dr. Harris, who opined that no additional surgery was needed, is more persuasive than the opinions of Drs. Garvey and Madhaven, who opined that a revision of the fusion surgery was necessary given a likely pseudoarthrosis condition.  They contend that Dr. Garvey’s opinion was erroneously based upon a positive result from the transforaminal injection, asserting the employee did not actually have a good result from that injection.  Again, we are not persuaded.

As already noted, the compensation judge may choose between competing well-founded opinions.  Further, Dr. Garvey’s opinion does not suffer from the defect claimed by the employer and insurer.  The employee in fact received 99 percent relief from the transforaminal injection, which supports Dr. Garvey’s view that he has pseudoarthrosis and that a revision surgery is appropriate.^[7]  The positive effects from the injection only dissipated after the employee drove 300 miles, over several hours, from his home in far north Minnesota to St. Paul for his workers’ compensation hearing.  Substantial evidence supports the compensation judge’s finding that the surgery is reasonable, necessary, and causally related to the work injury.

Finally, the employer and insurer argue the compensation judge erred as a matter of law in failing to reopen the record and take additional evidence or to issue amended findings.  We disagree.

We recognize that the compensation judge retained jurisdiction at the time of the employer and insurer’s motion.  Minn. R. 1420.3150 (compensation judge has jurisdiction to issue amended findings until an appeal is filed or the appeal period lapses).  We conclude that the evidence offered by the employer and insurer in support of their motion is insufficient to demonstrate that the compensation judge abused her discretion by denying the motion.

At the post-hearing telehealth visit with the employee on February 20, 2023, Dr. Garvey noted that the employee understood that failure to have good temporary relief from a transforaminal injection is a negative predictor for the outcome of the fusion surgery, but also indicated that he did not have the results from the provider about the injection the employee had received at Sanford Health on January 25, 2023.  He also stated that with or without the surgery, he would recommend light to medium duty capacity for the employee on a long-term basis.  He continued to believe that the employee likely had pseudoarthrosis of the SI joint, but he would not recommend any revision of the SI fusion at the same time as the revision of the low back fusion.  And he continued to believe that the employee’s medical evidence and history supported the diagnosis of pseudoarthrosis of the low back and the need for fusion surgery.

As noted above, the employee testified at the hearing that he had obtained a good result from the transforaminal injection – 99 percent relief – and only had those effects wear off after a very long car ride to St. Paul.  That the effect of the injection would be temporary was understood, as the procedure was conducted to determine if the proposed surgery was warranted and possibly rule out the SI joint as the pain generator.^[8]  Further, Dr. Garvey’s opinions stated in the post-hearing note are not substantively different from those in his prior assessment, already admitted into evidence.  Because the new evidence is essentially duplicative of what was already before the compensation judge, the denial of the motion to amend did not constitute an abuse of the compensation judge’s discretion.^[9]  See Cici v. Methodist Hosp., 63 W.C.D. 421, 426 (W.C.C.A. 2003).

For the foregoing reasons, we affirm.