As found by the ALJ:
While Claimant's initial injury, a foot fracture, seemed relatively straightforward, in fact the unforeseen complications that resulted were at the time life threatening, terrifying to Claimant and his family, and had a lifelong impact. The fracture with complicating DVT [deep vein thrombosis] and pulmonary emboli have all resolved, but Claimant takes anticoagulants to prevent a recurrence and deals with the disabling effects of post phlebitic syndrome in his left lower extremity. ${ }^{1}$
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[^0]: ${ }^{1}$ Award, p. 12.
The employee is 54 years of age. Prior to his January 4, 2010, injury, he was able to work and function normally. The employee was self-employed as a farmer for thirteen years, until 1994. He subsequently worked at a tractor repair facility, replacing clutches and other parts and handling 50-100 pounds of weight. For two years he was employed as a school janitor. He later performed landscaping work, involving planting and laying sod, and drove a concrete truck. At the time of the accident, the employee had worked for five years as a delivery driver and yard man at employer's lumber yard. His job involved loading trucks, delivering loads to work sites, and unloading them. He was also responsible for cleaning up the lumber yard, including straightening lumber piles. The employee has never had a sedentary job.
The employee testified that since his January 4, 2010, injury he has been unable to work on any normal basis "because my legs swell if I'm up on them too much and I get short of breath just walking a short distance, I get really short winded." ${ }^{2}$ He further testified that when he tries to be active "if I'm up on my legs a whole lot one day trying to do something all day long . . . the next day I'm in the chair all day because my feet and legs are swollen, and they hurt so bad." ${ }^{3}$
The employee misses being employed; he would prefer to be working because he likes being active. He has a high school education, cannot type and has no computer skills. On April 5, 2012, the employee told Dr. Armbruster, a general practitioner, "I can't play with my kids no more like I used to. I use to play ball with my kids, I use to play church softball, I can't do the work like I used to."4 On May 6, 2013, vocational rehabilitation expert James England noted that employee "was pleasant and cooperative but seemed tired and depressed. He admitted that he is really down about losing his home and his ability to support himself and his family."5
In December, 2014, the employee tried to help a neighbor get his crops out. He had to stop because "that killed my legs, they were hurting. I had a knot on my left knee from doing it on my legs. I just did it for about a week, and that's all I could do." ${ }^{6}$ It took employee about three or four days to recuperate from this effort. He told his neighbor he could no longer help him.
The employee cannot stand for more than thirty to forty-five minutes to an hour before his feet and legs begin to swell. He is unable to sit for more than about an hour before he starts to feel uncomfortable. There is no activity he can do for more than an hour before his legs begin to swell. If he drives, he has to stop about every hour and thirty minutes to get out of the car and walk around. He can ride a riding lawn mower for only a short time before his feet get cramped up.
The employee spends about twenty minutes each morning feeding rabbits and chickens at his home. He helps his wife with housework by putting dishes in the dishwasher and sweeping the floor. He checks e-mail and pays bills. For the remainder of a typical day, he sits and reclines with his leg elevated, reading and watching TV. The employee attends church but has to sit down during the service after about fifteen minutes. He tries to elevate his leg if there is room enough to do so. The employee acknowledged he
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[^0]: ${ }_{3}^{2} Transcript 29.
{ }^{3} Id.
{ }^{4} Id. 25.
{ }^{5} Id. 621.
{ }^{6}$ Id. 32.
may be up on his feet all day once a week to perform work such as repairing a rabbit cage or small carpentry work around the house. He stated "If I'm up on my legs a whole lot one day trying to do something all day long...then the next day I'm in the chair all day because my feet and legs are swollen and they hurt a lot."7
The employee takes Coumadin, a blood thinner to address his postphlebitic syndrome. The ALJ found employee's ongoing anticoagulation therapy reasonable and supported by the medical evidence. ${ }^{8} He is expected to need anticoagulation therapy for the rest of his life. { }^{9}$
The ALJ summarizes the evidence in support of a conclusion that the employee is not permanently and totally disabled as follows:
- Dr. Rao's independent medical examination resulting in a work release without restrictions as of March 15, 2011.
- Dr. Mankowitz's finding that the employee reached maximum medical improvement, no longer required Coumadin, that his shortness of breath was caused by obesity and deconditioning and that he could return to work with no restrictions
- Dr. Wieman's 9\% permanent disability rating as of October 2011.
- Dr. Goldberg's opinion that the employee can work in a sedentary desk job. ${ }^{10}$
The ALJ concluded:
I find Claimant has failed to establish a right to recover permanent total disability compensation because the TTD evidence either relies on the unsupported proposition Claimant must elevate his leg consistently throughout the day, or that Claimant's bilateral foot conditions render him a total disability candidate. ${ }^{11}$
A close analysis of vocational expert James England's opinion suggests he relied on employee's advice that he was off his feet most of the day with his leg elevated. ${ }^{12}$ We agree employee's testimony indicates this is not true of every day but we do not believe an individual is employable if this is true of most days, or even of a few days per week.
Based on his testimony, employee may not be entirely compliant with reasonable medical recommendations regarding keeping his left leg elevated. As a result, he may be placing himself at some risk. In terms of employability, however, the real issue is whether an employer is likely to disregard such medical advice with respect to deciding whether or not to hire him, not the employee's decision to try to maintain some modicum of quality of life, even though risky or painful.
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[^0]: 7 Transcript 28.
8 Award, p. 10.
9 Id. 445, 500.
10 Award, p. 13.
11 Id.
12 Id. 671-672.
There is no indication that the ALJ deemed the employee not credible. We find the employee entirely credible. Employee testified that he is unable to sit or stand for prolonged periods of time without increased pain and/or swelling. ${ }^{13} \mathrm{He}$ is unable to sustain any significant level of exertion on a prolonged or consistent basis. If he is active one day he spends the next day in a chair. ${ }^{14}$ Employee's ongoing anticoagulation therapy is an obvious significant risk factor that would further discourage any potential employer, especially when all credible evidence indicates the employee is not capable of seeking employment in any field he's worked in before.
In his report of November 29, 2010, Dr. Howard Goldberg stated, "[The employee] does appear to have chronic edema in his left lower extremity consistent with Postphlebitic Syndrome. I do not think that he can return to work unless he is sedentary with his leg elevated (emphasis added)."15 On May 17, 2010, Dr. Goldberg stated "Also, it should be noted that while on blood thinners, like Coumadin, the patient would have an increased risk of bleeding should he receive a contusion or laceration."16 On March 22, 2011, Dr. Goldberg reiterated, "From our standpoint, we do have work restrictions. He could only return to work if he is able to be sedentary at his job with his left leg elevated. . ."17
To the extent employer's other medical experts suggest that the employee is not seriously injured or restricted with regard to his thrombophlebitic condition, we find their opinions are not credible.
Vocational rehabilitation expert James M. England, Jr. reviewed medical records and doctors' reports relating to the employee's work injury provided by employee's attorney prior to meeting with the employee on April 29, 2013. Mr. England noted Dr. Ann Wieman's opinion, based on x-ray findings, that issues in the employee's leg "could cause pain with ambulation on a daily, continuing basis."18
Mr. England considered the employee's description of his typical daily activities including feeding rabbits and helping fix breakfast with his wife, helping with laundry, and doing a little bit of mowing on a riding mower while taking frequent breaks. After reviewing the employee's educational background and vocational history, Mr. England concluded:
Mr. Badock is a 50-year-old gentleman with a high school education who has worked in a variety of positions in the past all of which seem to have acquired [sic] at least light and usually medium to heavy exertion. He does not have any transferable skills usable for sit-down types of work.
. . . Certainly considering the restrictions noted by several of his treaters, it does not appear that he would be able to successfully compete for or sustain any type of work activity in the open labor market. Absent continued improvement in his ability to be up on his feet and to sit without his leg elevated through most of the day, I believe he is likely to remain totally disabled from a vocational standpoint.