MARILYN FIDELDY, Employee/Cross-Appellant, v. DEER RIVER HEALTH CARE CTR. and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer/Appellants, and DEER RIVER HEALTH CARE CTR. and STATE FUND MUT. INS CO., Employer-Insurer, and DULUTH CLINIC, LTD., HEALTH CARE RECOVERIES/BENESIGHT, and DEER RIVER HEALTH CARE CTR., Intervenors/Medical Providers.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 7, 2002
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the compensation judge=s finding that the employee sustained a work injury to her cervical spine on August 5, 1996.
APPORTIONMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the compensation judge=s apportionment of liability between the employee=s 1996 and 1999 cervical injuries.
PERMANENT PARTIAL DISABILITY - NECK. Substantial evidence, including medical records and expert medical opinion, supported the compensation judge=s award of a 2.5 percent rather than an 11.5 percent permanency rating for the employee=s surgically-treated C6-7 condition.
Determined by Pederson, J., Rykken, J., and Wheeler, C.J.
Compensation Judge: Donald C. Erickson
STEVEN D. WHEELER, Judge
The appellant employer and insurer American/RTW appeal from the finding that the employee sustained a work injury on August 5, 1996, and from the compensation judge=s apportionment of liability between that alleged injury and the employee=s August 30, 1999 Gillette injury. The employee cross-appeals from the compensation judge=s findings regarding her entitlement to further permanent partial disability compensation.
The employee, Marilyn Fideldy, was born in 1951. The employee began working as a part-time nurse=s aide for the employer, Deer River Health Care Center in 1975. Since 1977 she has worked full time for this employer. The job involved providing personal care to nursing home residents such as assisting residents with dressing, grooming, bathing, ambulating and exercising. Additional duties included handling and disbursing linens and personal clothing, and cleaning and maintenance of medical equipment. (T. 22, 24-27; Finding 3 [unappealed].)
In December 1990 the employee began seeing a chiropractor, Dr. Scott McBride, for neck, arm and shoulder pain. She testified that her symptoms, while sporadic and intermittent, were frequently associated with certain activities both at home and at work, particularly making beds, sorting laundry and washing walls and windows at home, and transferring patients in and out of wheelchairs, reaching under beds or up into closets, and rolling patients at work. The employee treated with Tylenol and received chiropractic adjustments from Dr. McBride, who diagnosed an acute sprain/strain to the cervical spine accompanied by paraspinal myofascitis with brachial neuritis in the left arm and biceps. She apparently treated with Dr. McBride for this problem several times during December 1990 and about eight times in 1991. The employee received some further chiropractic care from Dr. McBride in 1992 and 1993 but some or all of this care appears to have been related to low back complaints. (T. 29-31Exh. 4.)
In 1995 the employee treated at the Deer River Office of the Duluth Clinic for pain in both hands and right shoulder. She was diagnosed with a probable carpal tunnel syndrome and with right shoulder and upper back strain. She was provided with a wrist splint but did not notice significant improvement and was not treated further for carpal tunnel problems. (T. 32-33; Exh. A.)
On August 12, 1996 the employee returned to the Duluth Clinic seeking treatment for a severe stiff neck, primarily on the left side, which made it painful for her to move her shoulder and neck, and which had started five days earlier. She told the doctor that she had occasionally experienced similar symptoms in the past but that they had usually been of limited duration, while the symptoms this time had persisted. She testified that the onset of this pain occurred while she was reaching under a desk at work to plug in a phone cord. The employee was treated with an intramuscular injection of Norflex and a prescription for oral Norflex, and advised to return in a few days should the symptoms fail to improve. (T. 33-34; Exh. A.)
The employee returned to the Duluth Clinic on August 15, 1996 where she was seen by Dr. Thomas E. Howard, M.D. She reported that her neck pain was decreased after the Norflex injection but her left shoulder pain continued to persist. Dr. Howard diagnosed a cervical strain and supraspinatus strain. He performed a trigger point injection with Marcaine and Xylocaine, advised the employee to use ice, and referred her to physical therapy. (Exh. A.)
On August 20, 1996 the employee was seen at the Duluth Clinic and reported less pain in movement and temporary improvement with the trigger point injection. Dr. Howard continued her in physical therapy and placed restrictions on her physical activity including no lifting over ten pounds, and no bending or stooping for the next week. The employee was advised to return in a week in follow-up. She returned on August 26, 1996 and reported that she continued to have pain down her arm and left side, pain with bending of the neck, and numbness in the first, second, third and part of the fourth fingers on the left. Dr. Howard continued the lifting restrictions and referred the employee for a neurology evaluation. (Exh. A.)
The employee was seen for neurology evaluation by Dr. Holt at the Duluth Clinic, who considered her findings to be consistent with reflex sympathetic dystrophy. Dr. Howard also consulted with another neurologist at the Duluth Clinic, Dr. Mark Young, who then saw the employee for a second neurological opinion. On September 16, 1996 Dr. Howard saw the employee and noted that Dr. Young had examined the employee and was of the opinion that her symptoms were consistent with a possible cervical radiculopathy. Dr. Howard continued the employee on restrictions now limiting lifting to 5 pounds and denying overhead work, stooping or bending. The employee was advised to continue home traction which had been recommended by Dr. Young and to return in 10 to 14 days. Dr. Howard noted that should the employee=s symptoms persist an MRI
should be done to confirm the diagnosis of radiculopathy. (Exh. A.)
On September 20, 1996 the employee tripped and fell in her bathroom at home and experienced an increase in the soreness and pain in her neck, which had been stable up to that time. She was seen by Dr. Howard on September 25, 1996. Dr. Howard arranged for an MRI scan to be performed for the employee=s neck and suggested that, if the results were positive, the employee should be seen by a neurosurgeon due to the protracted length of her symptoms. (T. 37-39; Exh. A.)
The MRI scan was performed on September 26, 1996 and was read as showing disc herniations from C3-4 through C6-7, with the largest being a right-sided herniation at C4-5 causing significant impingement on the spinal cord. The radiologist also considered it likely that low signal at gradient echo scanning indicated fibrosis accompanied the herniations. (Exh. D.)
The employee was seen by a neurosurgeon, Dr. William A. Himango, M.D., on October 1, 1996. Dr. Himango considered that her symptoms and examination findings were most consistent with a C6 radiculopathy on the left. He noted that there were some marking and labeling errors on the MRI scan which called into question the level and side of the disc extrusion read as being at C4-5, and recommended a repeat MRI scan. (Exh. C.)
According to the employee=s testimony, the increase in symptoms she experienced as a result of the fall at home had been temporary and her symptoms had returned to the same level as before she fell by the time she saw Dr. Himango on October 1, 1996. (T. 39-40.)
The repeat MRI scan of the employee=s cervical spine was performed on October 1, 1996. It was read as showing a congenitally small spinal canal with varying degrees of prolapses and disc bulges from C3 through C7. At the C3-4 level a mild central protrusion of the disc slightly flattened the anterior aspect of the spinal cord. At C4-5 there was a modest central prolapsed disc herniation which compressed the spinal cord but did not appear to affect the nerve rootlets and neural foramina. At C5-6 there was a disc herniation centrally and to the right, compressing the spinal cord to the right of the midline and compressing the medial portion of the sixth nerve rootlets. At C6-7 a diffuse bulging was present, slightly more right-sided than left-sided and causing mild to moderate anterior flattening of the spinal cord. (Exh. D.)
Dr. Himango reviewed the employee=s repeat MRI scan on October 3, 1996. He considered the findings on the scan to be consistent with the employee=s complaints and recommended that she undergo an anterior cervical diskectomy and fusion at the C5-6 level. The employee underwent the proposed surgery on October 10, 1996. (T. 40; Exhs. B, C..)
The employee did well following her surgery and was able to return to work for the employer in her pre-injury job and to resume her normal recreational activities. She described her neck symptoms over the next few years following the 1996 surgery as Avery tolerable@ and testified that she had neck aches, primarily left-sided, only about once a week and no longer experienced pain, numbness or tingling in her left arm. (T. 41-44.)
On March 27, 1997, Dr. Jed Downs, an associate of Dr. Himango, rated the employee=s permanent partial disability at 11.5 percent pursuant to Minn.R. 5223.0370, subps. 4D (9 percent) and 5 (2.5 percent). (Exh. C.)
The employee, the employer, and the employer=s workers= compensation insurer, American Compensation Insurance Company, administered by RTW, Inc. (AAmerican/RTW@), entered into a stipulation for a to-date settlement of the employee=s claims arising from an alleged August 5, 1996 work injury. The employee=s permanent partial disability claims were closed out up to the level of an 11.5 percent whole-body permanent partial disability. As part of the stipulation, the employer and insurer American/RTW also reserved their right to assert a primary liability defense with respect to subsequent benefits. The stipulation was embodied in an Award on Stipulation, served and filed on November 10, 1997. (Finding 14 [unappealed].)
In the summer of 1999 the employee experienced an increase in neck symptoms and also had pain in her right shoulder and upper arm. The employee associated this pain with certain work duties she had recently been performing moving patients and furniture to temporary rooms at the employer=s facility during remodeling. She briefly sought treatment from her chiropractor, Dr. McBride, and when that proved ineffective, returned to the Duluth Clinic at Deer River for her neck pain in August 1999. The employee was taken off work by physicians at the Duluth Clinic on August 30, 1999, and subsequently claimed that she had sustained a Gillette injury culminating on that date. An MRI scan of the employee=s cervical spine was performed on September 5, 1999. The scan was read as similar to the employee=s previous scans in 1996, except that it showed the effects of the 1996 fusion surgery and that the small prolapsed disc at C6-7 impressed the right side of the spinal cord and medial nerve rootlet sleeve slightly more than previously. On October 18, 1999, the employee was referred for evaluation to Dr. David L. Camenga, M.D., at the Duluth Clinic=s neurology department in Duluth. (T. 44-50; Exhs. A, D.)
Dr. Camenga saw the employee on November 18, 1999 and diagnosed spinal stenosis which he believed to be the result of both congenital and occupational factors. No radicular symptoms were elicited on examination and the doctor did not believe the employee to be an appropriate surgical candidate at that time. Dr. Camenga did, however, recommend that the employee significantly limit lifting and consider a change in activity from that of a nursing assistant to some other kind of work. (Exh. C.)
The employee continued conservative treatment for her neck symptoms at the Duluth Clinic in Deer River. She was treated with physical therapy and medications. In December 1999 the employee returned to work for the employer as a part-time ward clerk, which required less strenuous physical activity than her prior job as a nursing assistant. The employee was able to tolerate the duties and work within her restrictions. The employee received the same hourly rate as she had in her nursing assistant job. (T. 53-60; Exh. A.)
On January 25, 2000 the employee was seen by Dr. Nolan M. Segal, M.D., an orthopedic surgeon, for examination on behalf of the employer and insurer State Fund Mutual Insurance Company, which provided the employer=s workers= compensation coverage as of the date of the alleged 1999 Gillette injury. Dr. Segal found no objective evidence of nerve root irritation or radiculopathy. He diagnosed a long-standing multilevel degenerative disease with limited range of motion of the cervical spine, with no evidence of neurologic deficit, and did not consider the employee=s work activities a substantial contributing cause of her disability and need for medical care. He considered the employee to have been permanently partially disabled to the extent of 12.5 percent subsequent to the 1996 surgery but prior to August 30, 1999. This rating was based on Minn.R. 5223.0370, subps. 4C(2) and 5A. Dr. Segal did not believe that the employee had any further permanent partial disability as of the date of his examination. (Exh. 4.)
On February 3, 2000 the employee told her doctor=s physician=s assistant that her symptoms had improved since the change of job duties. On March 7, 2000 Dr. Howard again saw the employee and recommended neurosurgical consultation because of lack of improvement after several months of conservative treatment. (Exh. A.)
The employee was examined on April 1, 2000 by Dr. Starzinski, M.D., a neurologist, on behalf of the employer and American Compensation/RTW. Dr. Starzinski diagnosed a musculoskeletal strain syndrome involving the right upper extremity and trapezius muscle groups, with superimposed suggestion of carpal tunnel syndrome. He attributed the musculoskeletal syndrome to the effects of chronic degenerative arthritis and opined that the employee=s work activities Adid not play a substantial role in the genesis or perpetuation of this syndrome.@ (Exh. 2.)
On April 4, 2000 the employee saw Dr. Mark E. Glazier, M.D., at the Duluth Clinic=s neurosurgery department. Dr. Glazier recorded that the employee had symptoms of neck pain, right shoulder pain, proximal arm pain, and paresthesias into the right hand, as well as findings on MRI of multilevel cervical spondylosis and a central and right-sided C6-7 disc herniation. He discussed options of surgery or continuing conservative treatment. The employee opted for continuing conservative treatment at that time. (Exh. C.)
However, when the employee returned to Dr. Howard in May 2000, she showed a greater interest in further surgery, as she had not been improving. The employee returned to Dr. Glazier on June 27, 2000 and the doctor recorded that she had continued to experience right radicular arm pain, paresthesias in the C7 distribution, and posterior right arm pain. She expressed the wish to proceed with surgery, and underwent an anterior cervical diskectomy and fusion at C6-7 on June 28, 2000. On February 5, 2001 the employee was authorized to return to work under her previous restrictions, and returned to her job as a ward clerk for the employer. (T. 63-64; Exhs. A, B, C.)
In a letter dated November 29, 2000, Dr. Glazier opined that the employee=s work activities since 1996 had substantially contributed to the changes in her prolapsed disc at C6-7 and to her need for surgical treatment. He rated the employee=s permanent partial disability from the C6-7 disc at 11.5 percent, consisting of 9 percent under Minn.R. 5223.0370, subp. 4D(4), and 2.5 percent under subpart 5 of the same rule. He considered this permanency to be in addition to the employee=s permanent partial disability stemming from her 1996 work injury and initial surgery. (Exh. C.)
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings 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) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id.
A. 1996 Work Injury
The compensation judge found that the employee sustained a work injury to her cervical back on August 5, 1996. The appellant employer and its insurer, American/RTW, contend that this finding was unsupported by substantial evidence. They point out that the principal evidence for a specific injury on that date was the employee=s testimony, and that the injury was not reported by the employee until October 4, 1996. They further contend that there is insufficient support in the medical records to support the finding of a specific work injury on or about August 5, 1996, and argue that the employee=s slip and fall at home on September 20, 1996, together with her prior history of treatment for neck and shoulder pain in 1990, suggests a non-work cause for the employee=s cervical disc herniations and resultant surgery in 1996.
Given the specific evidence in this case it is implicit from the findings that the compensation judge found the employee=s testimony, both as to the onset of her 1996 symptoms and as to the nature and duration of her increased symptoms following her slip and fall at home, to be credible. We note that the compensation judge could reasonably find that the medical records were reasonably consistent with the employee=s account, and there is no clear inconsistency such as would definitely contradict the judge=s findings on what is, in essence, a question of witness credibility. Assessment of witness credibility is the unique function of the trier of fact. Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988); Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn 1989). We conclude that the compensation judge=s finding that the employee sustained a work injury on August 5, 1996 was adequately supported, and must accordingly be affirmed.
In unappealed findings, the compensation judge found that the employee had sustained a Gillette injury on August 30, 1999. (Finding 20.) The judge apportioned liability for the employee=s disability and need for medical treatment following this 1999 Gillette injury 2/3 to the August 5, 1996 injury and 1/3 to the 1999 Gillette injury. The employer and insurer American/RTW, on the risk for the 1996 injury, appeal from the apportionment of liability. The employer and insurer State Fund did not appeal the compensation judge=s decision.
The appellants, employer and its insurer American/RTW, first point out in their brief that the compensation judge erred in apportioning liability in a manner not proposed by any medical expert. It is well‑settled that equitable apportionment is not purely a medical question, but is a question of ultimate fact for the compensation judge to determine based upon all of the evidence submitted. It is not necessarily error for a compensation judge to render an apportionment decision different from the medical opinions of record. Ringena v. Ramsey Action Programs, 40 W.C.D. 880, 883 (W.C.C.A. 1987), summarily aff'd. (Minn. Mar. 28, 1988); Miller v. Contracting Servs., Inc., slip op. (W.C.C.A. Apr. 22, 1992).
Equitable apportionment is not to be based on any precise formula but on all the facts and circumstances of the case. Goetz v. Bulk Commodity Carriers, 303 Minn. 197, 200, 226 N.W.2d 888, 891, 27 W.C.D. 797, 800 (1975). Factors to be considered in determining equitable apportionment include the nature and severity of the initial injury, the employee=s symptoms following the initial injury and up to the occurrence of the second injury, and the nature and severity of the second injury. Id. The appellants argue that an application of these factors support the conclusion that no liability should have been apportioned against the 1996 injury. They point out that following the 1996 injury the employee was off work for a relatively short time after her fusion surgery and was able to resume her former work and non-work activities without significant restriction and with minimal medical care or symptomology, but was off work for a longer period following her 1999 injury and has since been restricted from her former work duties and many of her former non-work recreational activities.
We note, on the other hand, that there was evidence which could be taken to indicate that the 1996 injury was a significant causal factor to the employee=s present disability. In particular, the 1996 MRI scans revealed that the disc herniation at the C6-7 level which required surgical treatment following the 1999 Gillette injury was already present, although at that time largely asymptomatic. The radiologist who performed the 1999 MRI scan compared the scan with the prior 1996 scans and noted that the herniation at C6-7 was then impressing the right side of the spinal cord and the medial nerve rootlet Aslightly more than previously.@ Dr. Glazier, who performed the employee=s surgery following the 1999 injury, opined in a letter dated February 7, 2001 that Aan individual who has a previously operated level is more prone at levels above and below the level to have degenerative changes occur, and her previous surgery [at C5-6] may have accelerated some of these processes.@ These factors are supportive of a finding placing the greater share of the responsibility for the employee=s recent disability on the 1996 injury.
In cases where the record would in fact support almost any number of apportionment determinations, we will not substitute our judgment for that of the compensation judge. Giem v. Robert Giem Trucking, 46 W.C.D. 409, 418 (W.C.C.A. 1992). The compensation judge=s decision is affirmed.
C. Permanent Partial Disability
The employee was paid permanent partial disability compensation for an 11.5 percent permanent partial disability under the terms of the 1996 stipulation with the employer and insurer RTW. The compensation judge awarded the employee compensation for an additional 2.5 percent permanent partial disability attributable to the 1999 Gillette injury. The employee appeals, arguing that the judge erred in failing to instead award compensation for an additional 11.5 percent permanent partial disability consistent with the opinion of Dr. Glazier.
A compensation judge=s finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987). As trier of fact, a compensation judge is responsible for determining the degree of disability after considering all evidence and relevant legal factors in a case. Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983); see Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992). Accordingly, medical testimony is considered helpful but not dispositive on the issue of disability. Id.; see Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989) (determination of degree of permanency rests with compensation judge, not member of medical profession).
The permanency schedule applicable in this case provides, in pertinent part, as follows:
5223.0370 Musculoskeletal Schedule; Cervical Spine
* * *
Subp. 4. Radicular syndromes.
* * *
D. Radicular pain or paresthesia, with or without cervical pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the upper extremity, on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a cervical nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination, nine percent with the addition of as many of subitems (1) to (4) as apply, but each may be used only once:
(1) if chronic radicular pain or paresthesia persist despite treatment, add three percent;
(2) if a surgery other than a fusion performed as part of the treatment, add two percent, if surgery included a fusion, the rating is as provided in subpart 5;
(3) for additional surgery, other than a fusion, regardless of the number of additional surgeries, add two percent, if the additional surgery included a fusion, the rating is as provided in subpart 5;
(4) additional concurrent lesion on contralateral side at the same level or on either side at any level, which meets all of the criteria of this item or item E, add nine percent.
* * *
Subp. 5. Fusion.
A. Fusion, as defined in part 5223.0310, subpart 29, at one level performed as part or all of the surgical treatment of a cervical pain or radicular syndrome, add 2.5 percent to the otherwise appropriate category in subpart 3 or 4.
B. Fusion at multiple levels performed as part or all of the surgical treatment of a cervical pain or radicular syndrome, add five percent to the otherwise appropriate category in subpart 3 or 4.
The compensation judge=s finding of an additional 2.5 percent permanent partial disability was based on subpart 5B of the rule, which provides for a 5 percent rather than a 2.5 percent rating where fusion surgery was performed at multiple cervical levels as part of the treatment of the employee=s cervical pain or radicular syndrome. The judge reasonably concluded that, after the fusion surgery at C6-7 in 2000, the employee was entitled to a rating of 5 percent under this section, or 2.5 percent more than she had been rated under this section following her fusion surgery at C5-6 in 1996, as she had now undergone fusion surgery at two cervical levels as part of the treatment of her cervical pain. The employee does not take exception to this portion of the rating found by the compensation judge.
It is clear from the findings and memorandum, however, that the compensation judge found it inappropriate to rate the employee with a further 9 percent permanent partial disability for the C6-7 prolapsed disc under section 4D(4). We conclude that substantial evidence supports the judge=s determination that the application of this section was not warranted. Specifically, we note that while the prolapsed disc at C6-7 is undeniably a Aconcurrent lesion . . . on either side at any other level@ to the C5-6 disc rated in 1996, the rule also requires that the lesion Ameets all of the criteria of this item,@ including correlation of the imaging findings with neurological examination findings. In order to show entitlement to a specific permanent partial disability rating, the employee must prove each element of the scheduled disability. Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott-Host Int=l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)).
Here, the evidence was equivocal as to whether the employee=s C6-7 lesion correlated with any neurological examination findings of radiculopathy. Dr. Camenga, who examined the employee in November 1999, did not find indication of radicular symptoms on examination of the employee. Similarly, Dr. Segal, who examined the employee in January 2000, found Ano evidence of neurologic deficit.@ Dr. Segal opined that the employee had no additional permanent partial disability at that time beyond that arising from her 1996 C5-6 injury and surgery. Dr. Starzinski, who examined the employee on April 1, 2000, also recorded an essentially normal neurologic examination.
While there was some evidence supporting a contrary conclusion, the compensation judge was entitled to accept the opinions of Dr. Camenga and Dr. Segal over those of Dr. Glazier with respect to the employee=s radicular findings and permanency rating. We see no clear evidence of a worsening of the employee=s symptoms or condition between the dates of their examinations and the employee=s surgery in June 2000; in fact, the employee=s testimony and the medical records for that period reflect that the employee=s condition had neither improved nor worsened, but remained essentially unchanged. The medical opinions apparently relied upon by the judge were, therefore, not defective in their foundation. This court must affirm findings based on the compensation judge=s choice among divergent medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The finding that the employee sustained only an additional 2.5 percent permanent partial disability is affirmed.
 The text of these rules is set out in full later in this opinion in the discussion of this court=s decision on the issue of the employee=s cross-appeal.