NANCY C. WINTERS, Employee, v. DOUGLAS CO. HOSP., SELF-INSURED/RSKCO, Employer/Appellant, and CENTER FOR DIAGNOSTIC IMAGING and ALEXANDRIA ORTHOPAEDIC ASSOCS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 23, 2002
MEDICAL TREATMENT & EXPENSE - REFUSAL OF TREATMENT. Substantial evidence supported the compensation judge=s decision that it was not unreasonable for the employee to refuse total hip replacement surgery, given the major nature of the procedure, the seriousness of the potential complications, the pain and significant scarring related to the operation, and the employee=s prior experience of nausea after other surgeries.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the testimony of the employee=s QRC, supported the compensation judge=s decision that the employee is permanently and totally disabled as a result of her work-related hip condition.
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony and some expert opinion, supported the compensation judge=s decision that the employee=s right shoulder and right knee conditions were work-related.
PERMANENT PARTIAL DISABILITY - HIP. Where the employee=s physician admittedly failed to do passive range of motion testing, the compensation judge erred in awarding permanent partial disability benefits under schedules specifically directed at restricted passive range of motion, and, under the unusual circumstances of this case, remand was necessary to allow the parties to submit additional evidence.
Affirmed in part, reversed in part, and remanded.
Determined by Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Kathleen Behounek.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decisions as to the reasonableness of the employee=s refusal of total hip replacement surgery, whether the employee is permanently and totally disabled, the nature and extent of the employee=s work injuries, the extent of the employee=s permanent partial disability, and the admissibility of certain evidence. We reverse the award of permanent partial disability benefits and remand the matter for further proceedings consistent with this opinion. The remainder of the judge=s decision is affirmed.
The employee is a registered nurse who began working for Douglas County Hospital [the employer] in about 1977. In 1983, she injured her left shoulder at work, and she ultimately underwent left shoulder surgery in 1988. Shortly before the surgery, she apparently injured her right shoulder while lifting a patient. In 1994 or 1995, after injuring her left shoulder again, the employee was placed on restrictions that precluded lifting and therefore much direct patient care. As a result, she was assigned to work solely as a Apre-admitting@ nurse, taking patient information and history pertinent to upcoming scheduled surgeries.
On June 18, 1999, the employee slipped on some water at work, falling and landing on her right hip with her right leg straight out in front of her. Although she allegedly experienced severe right hip pain from the fall, she finished her shift and then began a planned three-week family vacation the following day.
On July 13, 1999, just prior to her scheduled return to work, the employee sought medical treatment from Dr. Thomas Hegstad for pain in the right hip and buttocks. Dr. Hegstad referred her for a consultation with orthopedist Jefferson Brand, to whom she complained of right hip as well as right shoulder and right knee pain. Hip x-rays ordered by Dr. Brand showed a Aright congenitally subluxed hip and severe [degenerative joint disease].@ Right shoulder and right knee x-rays were apparently negative. The employee attempted a modified job for about two weeks but was then taken off work entirely by Dr. Brand on July 30, 1999. At the same time, Dr. Brand indicated to the employee that total hip replacement was the only viable treatment. The employee, however, was reluctant to undergo the procedure and wanted to pursue alternative treatment options. Dr. Brand subsequently referred the employee to Dr. Richard Kyle for a second opinion. Dr. Kyle also recommended total hip replacement surgery.
In September of 2000, the employee underwent MRI scans on her right shoulder and right knee. The shoulder MRI disclosed bursitis but no torn rotator cuff. The knee MRI showed moderate degenerative changes in the patellofemoral compartments.
The employee eventually scheduled but then cancelled hip replacement surgery three times, and she was ultimately diagnosed as having a phobia concerning the procedure. She started, but did not complete, counseling to overcome the phobia. Over time, her treating physicians became concerned about her narcotic pain medication usage, and the employee attempted to cut back. Opinions vary as to whether the employee has a chemical dependency problem related to her prescription medication.
The employee remained off work and began receiving rehabilitation assistance from QRC John Richardson in March of 2001. In April and May of 2001, for a period of about six weeks, the employee attempted to work for the employer on a two-hour-per-day basis, performing pre-admitting duties by telephone from her home. It was hoped that the employee would be able to increase her hours over time. The employer provided the employee with a separate telephone line and a fax machine to aid her in the work, but the employee=s request for a recliner was denied. Due to her family situation, the employee set up her work area in the lower level of her home, which meant that she had to negotiate stairs to do the work. QRC Richardson was skeptical from the outset about the viability of the plan, due in part to what he characterized as a resistant and Apassive-aggressive@ attitude on the employee=s part. The QRC characterized the employer=s attitude, in contrast, as extremely cooperative.
The employee testified that she had to sit upright to do the pre-admitting telephone calls and that the work increased her hip symptoms, causing her to need more medication for pain relief. In mid April of 2001, Dr. Hegstad refused the employee=s request to take her off work and also refused to prescribe a chair lift to take her up and down the stairs at home, but he agreed to a referral for physical therapy for knee and shoulder pain. Two weeks later, the employee again asked Dr. Hegstad to take her off work but, after talking to the employee=s physical therapist, Dr. Hegstad again refused. Several weeks after that, on May 24, 2001, the employee returned to see Dr. Brand, and, at that point, Dr. Brand took the employee off work. On that same date, Dr. Hegstad wrote a response to a letter from the employee=s QRC, in which Dr. Hegstad indicated that the employee was neither physically nor emotionally capable of increasing her work hours at that time.
Rehabilitation services ended in early June 2001, and, shortly thereafter, the employee underwent a psychological evaluation by Michael Appleman, at the request of her attorney. Mr. Appleman diagnosed Aanxiety disorder and panic attacks secondary to thoughts of surgery,@ and he concluded that the employee was not able to undergo the total hip replacement procedure. He did recommend chemical dependency treatment for what he perceived as the employee=s narcotic dependence. Mr. Appleman=s license as a psychologist was apparently revoked about six months later.
The employee was examined by Dr. Robert Wengler on July 17, 2001. Dr. Wengler concluded that the employee needed a total hip replacement and that the benefits of the procedure far outweighed the risks given the severity of the employee=s condition. Dr. Wengler also rendered an opinion on permanent partial disability. Noting that he did not actually examine the employee=s right hip because the employee would not tolerate passive motion of the hip joint, Dr. Wengler nevertheless assigned the employee permanency ratings totaling 15% under permanency rules relating to restricted passive range of motion. He also concluded that the employee had no ratable permanent partial disability relative to her right shoulder or right knee.
On July 24, 2001, the employer terminated the employee from her employment.
The employee was examined by Dr. Paul Arbisi, a licensed psychologist, on September 10, 2001, on behalf of the employer. Dr. Arbisi concluded that the employee could reasonably be expected to overcome her phobia concerning surgery with treatment including relaxation and desensitization, which would allow her to undergo the operation. He also concluded that, ideally, the treatment should be provided by a doctoral-level psychologist near the employee=s home in Osakis. Dr. Arbisi=s report indicates that the employee exhibited a great deal of suspicion during his examination, asking to record the examination and insisting on copying her answers to the MMPI for fear that the doctor would change them. The employee exhibited similar suspicions in her dealings with the employer.
On January 4, 2002, the matter came on for hearing before a compensation judge for resolution of the employee=s claim for permanent total disability benefits, permanent partial disability benefits, and various medical expense benefits allegedly related to the employee=s June 18, 1999, slip and fall at work. Underlying issues included the nature and extent of the injuries, including claimed injuries to the employee=s right shoulder, right knee, and back, in addition to her right hip; whether the employee=s refusal of the recommended total hip replacement was reasonable; and the extent of permanent partial disability relative to the employee=s admitted right hip injury. Evidence included the testimony of the employee and of Dr. Arbisi; the deposition testimony of the employer=s employee health nurse service coordinator, of Dr. Wengler, and of QRC Richardson; and the employee=s extensive medical records. Records relating to past injuries and surgical treatment included those pertaining to the employee=s surgery, as a small child, for a congenital hip condition; the employee=s left shoulder surgery in 1988; and an appendectomy in 1992.
Following the hearing, the employer filed a motion to reopen the record in order to submit evidence concerning Mr. Appleman=s license revocation, as well as a newspaper article and death certificates concerning two knee surgery patients at the employer, Douglas County Hospital. The employee objected to the motion.
The compensation judge issued her decision on April 30, 2002. In that decision, the judge granted the employer=s motion to reopen the record and admitted some, but not all, of the employer=s new evidence. With regard to the substantive issues, the compensation judge concluded that the employee=s right shoulder and right knee conditions, but not her back condition, were causally related to the June 18, 1999, work incident; that it was not unreasonable for the employee to refuse the proposed total hip replacement surgery; that the employee was permanently and totally disabled as claimed; and that the employee was entitled to benefits for a 15% whole body rating, relative to her hip condition, in accordance with the opinion of Dr. Wengler. The employer appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.
1. Refusal of Surgery
All physicians offering opinions on the subject have indicated that a total hip replacement is the only treatment likely to relieve the pain and disability caused by the employee=s severe degenerative joint disease in her right hip. The operation has a relatively high success rate, and serious complications do not appear to be common. Dr. Wengler, the employee=s own medical examiner, has indicated that the benefits of the procedure far outweigh the risks, given the seriousness of the employee=s hip condition, which Dr. Wengler has described as Abone on bone.@ On appeal, the employer contends that the compensation judge erred in concluding that it was not unreasonable of the employee to refuse to undergo the procedure and that, because the refusal was in fact unreasonable, the employee=s disability cannot be considered attributable to the work injury. The employer also contends that the compensation judge analyzed the issue under the wrong standard. We find no basis to reverse the judge=s finding on this issue.
It is the general rule that an employee=s unreasonable refusal to submit [to] corrective surgery justifies the commission in suspending the payment of benefits on the theory the disability is then attributable to the employee and not to the employer. The test of reasonableness is based on a variety of factors, including the danger attendant upon the operation, the prospect of success, and the pain and discomfort which may result.
Reese v. Preston Mktg. Ass=n, 274 Minn. 150, 152, 142 N.W.2d 721, 722-23, 23 W.C.D. 810, 813 (1966). AWhether refusal of treatment is reasonable requires a >weighing of the probability of the treatment=s successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant.=@ Dotolo v. FMC Corp., 375 N.W.2d 25, 28, 38 W.C.D. 205, 208 (Minn. 1985), quoting 1A. Larson, The Law of Workmen=s Compensation' 13.22(b) (1985).
Weighing the risk against probable benefit is most difficult in cases involving surgery, and, as noted by Larson, most courts will not disturb a decision by a hearing judge finding that a refusal of surgery was reasonable since the Aquestion is a complex fact judgment involving a multitude of variables.@ Larson, ' 13.22(f). Various factors may be considered including, the age and health of the employee; whether the procedure is considered major surgery and the seriousness of the surgery; the danger attendant on the surgery, including whether the surgery involves a risk of life; the likelihood of and/or seriousness of possible complications; medical expert opinion on the likely outcome or success of the surgery; the likelihood of improvement of the employee=s medical condition and/or the employee=s ability to return to work; the probability of failure, or lack of improvement; the pain and discomfort that may result; and the success or failure of prior surgeries, particularly prior difficulties with surgery or prior failed surgeries.
McShane v. Hudson Foods, Inc., 55 W.C.D. 455, 460-61 (W.C.C.A. 1996) (footnote omitted).
The employee in the present case was 44 years old as of the date of hearing, meaning that she is virtually certain to need a second total hip replacement during her lifetime. According to Dr. Wengler, the procedure entails a five-day hospital stay and pain levels sufficient to necessitate the use of a morphine pump for several of those days. Dr. Wengler also testified that the procedure is Aright up there with the most aggressive invasive procedure that we offer people,@ explaining,
Nobody wants to have surgery and if I ever have to have this operation I am going to be sweating bullets too. It=s a painful procedure, it=s a risky procedure, the only thing you can do is get back to the risk benefit ratio and if somebody says I cannot spend the rest of my life like this I am going to have this done, then you have it done, it is just that simple.
Risks include blood clots and particularly post-surgical infection, which in severe cases can necessitate removal of the artificial hip. In her career as a nurse, the employee has seen a number of bad outcomes from the proposed procedure. With regard to the employee=s personal experience with surgery, medical records reflect complaints of post-surgical nausea and vomiting.
The compensation judge concluded that the surgery was likely to significantly improve the employee=s quality of life and ability to function, but she found the employee=s refusal reasonable, explaining in her memorandum as follows:
The compensation judge finds that the employee=s fears of surgery are not irrational. The risks of surgery are real. The potential for significant complications from the surgery are real. The prospect of the employee suffering from the surgery itself, as well as during the recuperation period is real. Although the chance of complications from surgery was shown to be slight, the employee is aware from firsthand experience that patients do experience complications from surgery, and specifically hip replacement surgery. She also faces the fact that if she undergoes the procedure, she will most likely need it again. She has previously experienced adverse effects from surgery, and she fears similar results with this surgery. The employee=s concerns regarding the proposed surgery are factually based and therefore are not unreasonable or irrational.
We do not agree with the employer that the compensation judge Aconfused the employee=s subjective fears of surgery with the more objective medical standards@ set out in case law. Rather, after considering case law criteria, the judge in effect concluded that the employee=s refusal of total hip replacement surgery was objectively reasonable as based on the real risks of pain, potential complications, and the need to have the surgery yet again, at some later date. The fact that total hip replacement may not carry Arisks beyond that of any major surgery@ (emphasis added), as the employer alleges, is not the point.
Given the major nature of the procedure, the severity of the potential risks, including infection and blood clots, and the fact that the procedure virtually always causes pain and significant scarring, the compensation judge could reasonably conclude that it was reasonable for the employee to refuse the procedure -- that is, that the relatively low probability of complications was outweighed by the severity of those potential complications and the attendant pain of the operation itself. Consideration of the employee=s phobia is not even necessary to the analysis under these particular circumstances.
Because the compensation judge=s decision on this issue is supported by evidence that a reasonable mind might accept as adequate, we affirm her decision.
2. Permanent Total Disability
The employer also contends that, the issue of surgery aside, substantial evidence does not support the judge=s decision that the employee is permanently and totally disabled as a result of her work injury. In support of this argument, the employer notes that Dr. Hegstad never indicated that the employee was totally disabled, that Dr. Brand did not explain why he took the employee off work in May of 2001, and that QRC Richardson=s testimony supports the conclusion that the employee did not make a good faith effort to participate in reasonable vocational rehabilitation efforts. The employer=s arguments are not without merit, and the compensation judge could perhaps have rejected the employee=s permanent total disability claim on these grounds. However, the issue on appeal is not whether the compensation judge could have reached some other result but whether the record as a whole reasonably supports the decision actually reached by the judge. We conclude that it does.
It is undisputed that the employee=s work-related hip condition causes severe pain and substantially limits the employee=s ability to get around. The employee needs crutches to ambulate, and it is difficult for her to drive, both because of the hip condition itself and because of her resulting narcotic usage. The employer may be correct in contending that the employee was not whole-heartedly cooperative with her attempt at in-home, part-time pre-admitting nurse work. However, all parties considered the job to be a temporary trial, and there is no good evidence that the employer would have made the job permanent or that the employer would now hire the employee back, having terminated her in July of 2001. In addition, QRC Richardson testified that the two-hour-a-day job was not competitive gainful employment and that it produced only insubstantial income, in reality resembling sheltered work, and there is no evidence that the employee=s treating physicians expected to increase her hours any time in the near future, given her condition. QRC Richardson also testified that there were a number of factors, beyond the employee=s attitude, that caused the work attempt to fail, that there was no point in providing the employee with any additional vocational rehabilitation services, and that he had intended to recommend discontinuing rehabilitation efforts even before Dr. Brand removed the employee from work.
We are well aware of the fact that the employee is young and highly skilled, with more than two decades of experience as a registered nurse. However, it was not unreasonable for the compensation judge to conclude that the employee has no reasonable vocational potential given the severity of her disability. As such, we conclude that the record as a whole supports the compensation judge=s decision that the employee is permanently and totally disabled within the meaning of Minn. Stat. ' 176.101, subd. 5, and pertinent case law, e.g., Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).
3. Nature of the Work Injuries
The employer=s liability for the employee=s hip condition is uncontested. The compensation judge also found that the employee=s right shoulder and right knee conditions were caused or aggravated by her June 18, 1999, work-related fall, that the employee has restrictions on her activities as a result of those conditions, and that medical expenses related to those conditions, specifically, the September 2000 MRI scans, were compensable. The employer contends that substantial evidence does not support the judge=s findings as to liability for the employee=s right knee and shoulder conditions. We affirm.
It is true, as the employer points out, that the employee did not mention right knee or shoulder symptoms when she filled out the accident report at work following her fall, and Dr. Hegstad=s treatment notes from July 13, 1999, the date of the employee=s first treatment post-injury, contain no references to knee or shoulder pain. However, the notes of Dr. Brand, whom the employee also saw on July 13, 1999, read in part as follows:
7-13-99 -- FU: Nancy presents today after a fall on June 18, 1999, that she slipped and fell on her buttocks with her right leg extended straight in a restroom at Douglas County Hospital. Apparently the floor was wet and she got her slacks wet after the fall. She fell directly onto her tail bone and she now has right SI joint pain. Her right shoulder hurts her as well. This is the opposite shoulder than the one she had surgery on. She has had chronic knee pain in her left knee and now her right knee hurts her as well after the fall.
As far as her failure to report knee and shoulder pain in the employer accident report, the employee suggested that while her right hip and groin pain was severe immediately after the fall, her knee and shoulder did not really begin to bother her until she arrived home after her shift. In addition, several doctors, including Dr. Mark Fischer, the employer=s own medical expert, have indicated that the employee=s right shoulder condition is aggravated by the crutch use necessitated by her hip condition. Finally, contrary to the employer=s assertion, the compensation judge=s finding regarding the employee=s need for restrictions relative to her right knee and shoulder is supported by the testimony of Dr. Wengler.
The evidence as to medical causation is not extensive, but we find the record minimally adequate to support the compensation judge=s decision as to liability for the employee=s right shoulder and right knee conditions. We therefore affirm that decision and the award of treatment expenses for the shoulder and knee MRI scans.
4. Permanent Partial Disability
The employee claimed benefits for permanent partial disability, related to her right hip condition, in accordance with the ratings assigned by Dr. Wengler. The compensation judge agreed, concluding that the employee had a total of 15% permanent partial disability, due to her hip condition, as claimed. The employer appeals and, after reviewing the evidence in light of the applicable permanent partial disability schedules, we conclude that the compensation judge=s decision must be reversed and the matter remanded.
The relevant permanent partial disability rules, cited by Dr. Wengler and apparently adopted by the compensation judge, are those contained in Minn. R. 5223.0500, the musculoskeletal schedule for the hip and leg. The specific rules at issue read as follows:
Subp. 4. Categories describing loss of function. Function of the hip is measured by the available passive range of motion in three arcs: flexion or extension, abduction or adduction, and rotation. Examination with goniometer is performed to determine the limits of passive range of motion in each arc.
* * *
A. Extent of range of flexion or extension:
* * *
(2) extension is limited to between zero and 19 degrees flexion, that is, there is a flexion contracture, and flexion is:
(a) to greater than 90 degrees, zero percent;
(b) limited to between 61 degrees and 90 degrees, two percent;
(c) limited to between 31 degrees and 60 degrees, four percent;
(d) limited to less than 31 degrees, six percent;
* * *
B. Extent of range of abduction or adduction:
* * *
(2) adduction is limited to between zero degrees and 20 degrees abduction and abduction is:
(a) to greater than 20 degrees, one percent;
(b) limited to between one degree and 20 degrees, two percent;
(c) limited to between zero degrees and 20 degrees adduction, that is, there is an adduction contracture, five percent.
* * *
C. Extent of range of rotation:
* * *
(4) external rotation is limited to between zero degrees and 20 degrees internal rotation, that is, there is an internal rotation contracture, and internal rotation is:
(a) to greater than 20 degrees, two percent;
(b) limited to between zero degrees and 20 degrees, four percent.
(Emphasis added.) Dr. Wengler based his ratings on his conclusion that the employee has no useful motion relative to her right hip. The compensation judge was evidently persuaded, noting that A[t]here is no indication in the medical evidence that the employee=s pain and lack of mobility in the hip is due to anything other than organic pain@ related to the employee=s severe end-stage arthritis. The problem is, however, that Dr. Wengler admittedly did not conduct any passive range of motion testing due to the employee=s pain, and it is restricted passive range of motion, not active range of motion, that is specifically required by the rules to support the listed ratings. We are not so concerned here by the fact that Dr. Wengler did not use a goniometer as by the fact that testing simply was not done.
The permanent partial disability rules were promulgated to provide some objectivity and uniformity in the rating of permanent partial disability. See, e.g., Minn. Stat. ' 176.105, subd. 1 (A[d]isability ratings under the schedule for permanent partial disability must be based on objective medical evidence@). While there is objective medical evidence that the employee has a serious condition, there is no objective medical evidence that the condition has caused the kind of passive range of motion limitation contemplated by the rules, and the rules strongly suggest that loss of active range of motion, without loss of passive range of motion, is not intended to qualify for any of the ratings at issue. It may well be, as Dr. Wengler suggests, that the rules make little sense, because passive range of motion is not necessarily the equivalent of useful range of motion. However, the legislature charged the commissioner with promulgating the permanent partial disability schedules, and it is not for this court to effectively nullify a central requirement of the rules at issue. We would also note, in passing, that Dr. Wengler=s conclusion that the employee has no useful hip motion at all would seem to be inconsistent with the fact that she is able to sit and sometimes even drives. Also, range of motion testing by Dr. Fischer, while again limited by the employee=s pain complaints, would lead to a somewhat different total permanent partial disability rating than that assigned by Dr. Wengler, a fact that suggests that the employee=s Auseful@ range of motion, as characterized by Dr. Wengler, varies.
This is a difficult case. The employee has a serious, objectively verified hip condition. While it is understandable that no physician would be eager to do the kind of range of motion testing contemplated by the rules, the record provides no good basis to assume that the employee qualifies for the most significant available permanent partial disability ratings relative to lack of passive range of motion, as reported by Dr. Wengler. Yet, at the same time, the employer essentially conceded at hearing that the employee is entitled to some rating for her hip condition. Under these unusual circumstances, we deem it necessary to reverse the judge=s decision on this issue and remand the matter for further proceedings to determine an appropriate permanent partial disability rating. In order to arrive at a reasonable decision, the judge may allow the parties to obtain and submit additional evidence concerning how the elements of any particular claimed rating category have been or should be deemed to have been satisfied.
5. Evidentiary Rulings
The employer argues that the judge either erred in her rulings or failed to make the necessary rulings concerning the evidence submitted in connection with the employer=s post-hearing motion to reopen the record. We see no reason to consider the merits of this argument. The employer does not ask for a remand, to allow the judge to reconsider any of the issues in light of the evidence in question, nor does the employer contend that consideration of the evidence would lead us, as a reviewing court, to change our decision as to any of the issues on appeal. There being no practical purpose to the employer=s appeal of this issue, we will not consider the matter further.
 The employee=s work injury aggravated the preexisting, congenital condition for which the employee had surgery as a child. There is no dispute, however, that the work injury is a substantial contributing cause of the employee=s current hip condition.
 While the employer may be correct in noting that medical records do not bear out the employee=s claims of extreme nausea, nausea is, nevertheless, noted.
 The employer appealed from the compensation judge=s permanent partial disability decision, but the employer makes no argument that the employee is disqualified from receiving permanent total disability benefits for failure to meet the permanent partial disability threshold specified by Minn. Stat. ' 176.101, subd. 5(2). As such, in that the employer failed to raise the threshold as an issue, permanent total disability benefits are payable pursuant to the compensation judge=s decision on the issue, as affirmed.
 Minn. R. 5223.0500, subp. 2A, provides as follows:
A. Painful organic syndrome, as defined in part 5223.0310, subpart 40, not elsewhere specified and substantiated by appropriate, consistent, and reproducible clinical or medical imaging findings which results in persistent limitation of active range of motion or persistent deviation of gait but no limitation of passive range of motion, zero percent.
(Emphasis added.) As defined in Minn. R. 5223.0310, subp. 40, Apainful organic syndrome
means a musculoskeletal condition characterized by pain with use of the affected member which limits the voluntary active range of motion, without any limitation of forced passive range of motion, and attributed to a lesion in the soft tissues, that is, capsule, ligament, tendon, fascia, and muscle, and defined by a set of clinical findings.
(Emphasis added.) We do not intend to suggest that the employee has Apainful organic syndrome,@ in that her condition is not attributable to a soft tissue injury; rather, the cited rules provide additional evidence that it is loss of passive range of motion that the rules were intended to provide compensation for, because it is passive range of motion that is objectively measurable.
 The employer argued at that time that the employee should receive the 8% rating applicable in cases where the employee has undergone total hip replacement surgery. See Minn. R. 5223.0500, subp. 2B.