LOUIS INDIHAR, Employee/Appellant, v. STATE OF MINNESOTA, DEP=T OF COMMERCE, and SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 25, 2004
PERMANENT PARTIAL DISABILITY - PSYCHOLOGICAL CONDITION. Substantial evidence, including expert medical opinion, supports the compensation judge=s findings that the employee has sustained no permanent partial disability relative to his psychological condition that developed as a result of his physical work injuries.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s findings that the employee has not sustained a 10.2% permanent partial disability as a result of his bilateral thumb injuries.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence of record, including expert vocational opinion, supports the compensation judge=s finding that the employee is not permanently totally disabled as a substantial result of his work-related injuries.
PERMANENT TOTAL DISABILITY - THRESHOLD; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 5(2). In determining whether an employee has met the statutory threshold of permanent partial disability necessary to qualify for permanent total disability, all ratable permanent impairment included in the total rating need not be related to the work injury and it need not be a factor affecting the employee=s wage loss or ability to work.
Affirmed in part, vacated in part and reversed in part.
Determined by Rykken, J, Stofferahn, J., and Pederson, J.
Compensation Judge: William R. Johnson
Attorneys: Steven Christensen, Roseville, MN, for the Appellant; M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s denial of his claim for permanent partial disability benefits claimed as a result of his psychological condition and his bilateral thumb injuries. The employee also appeals from the compensation judge=s finding that the employee is not permanently totally disabled. We affirm in part, vacate in part and reverse in part.
This appeal arises from injuries the employee, Louis Indihar, sustained to his upper extremities on November 16, 1993, and November 15, 1996, while employed by the Department of Commerce, State of Minnesota, self-insured employer. On November 16, 1993, the employee sustained admitted personal injuries in the nature of bilateral elbow, forearm and wrist problems, related to his computer work and related tasks. On November 15, 1996, the employee claimed a new injury to both thumbs, which he attributed to keyboarding, writing and turning pages, and received additional medical treatment for this condition. The employee also claimed that he had developed a psychological injury, classified as a pain disorder, as a result of his thumb and upper extremities injuries; the employer denied primary liability for the claimed thumb and psychological disorder injuries.
In November 1998, the employee filed a claim petition seeking temporary total disability benefits since January 1998 and payment of medical expenses, based on his upper extremity injuries and claimed psychological injury. He also had earlier filed a rehabilitation request for a change in QRC. On June 24, 1999, both matters were heard by a compensation judge. In a findings and order served and filed on September 10, 1999, the compensation judge found that the employee=s bilateral thumb injuries, culminating in November 1996, arose out of his employment. He also found that the employee=s psychological condition and pain disorder developed as a result of the physical problems caused by his work injuries. The compensation judge awarded temporary total disability benefits between January 1998 and March 1999, except for two months in 1998 when the judge found that the employee had not conducted a diligent job search to support his claim for temporary total disability benefits. He also granted the employee=s request for change of QRC, and awarded payment of medical expenses for psychological services. By decision of April 24, 2000, this court affirmed the findings and order of the compensation judge. Indihar v. State of Minn., Dep=t of Commerce, slip op. (W.C.C.A. Apr. 24, 2000).
In late 1999, the employee developed symptoms in both shoulders, which he claimed to be work-related, and eventually underwent arthroscopic surgery to his right shoulder. On December 3, 1999, the employer terminated the employee=s employment on the basis that he no longer was capable of performing the essential functions of his job. The employee filed a new claim petition in May 2000, seeking temporary total disability since December 3, 1999, medical benefits, permanent partial disability, and retraining, based on his bilateral upper extremity and thumb injuries, psychological condition and a claimed Gillette injury to his shoulders.
The employee=s 2000 claim petition was addressed at a hearing on January 19, 2001. In a findings and order issued on April 6, 2001, the compensation judge determined that the employee had not sustained a Gillette injury to his shoulders culminating in October 1999, that he was not entitled to a permanent partial disability rating for his thumb problems or shoulder condition, and that none of the medical expenses related to treatment of his shoulder injuries were compensable. The judge determined that the employee was temporarily totally disabled as a result of his psychological condition, and awarded benefits from December 3, 1999, through December 22, 2000. The judge also determined that the employee=s entitlement to temporary total disability benefits would cease as of December 22, 2000, at the expiration of the statutory maximum payment of such benefits allowed by Minn. Stat. ' 176.101, subd. 1(k). By decision of January 7, 2002, and by Order Amending Decision, served and filed on January 11, 2002, this court affirmed the compensation judge=s decision.
In May 2002, the employee filed a third claim petition seeking payment for permanent partial disability benefits relative to his psychological condition and bilateral thumb condition, and permanent total disability benefits continuing from December 3, 1999. The employee=s claims were addressed at a hearing on August 19, 2003. Extensive records were submitted into evidence at that hearing, including the employee=s voluminous medical records and rehabilitation records. Included were reports prepared by Ronald Larsen, the employee=s QRC, employment specialist Richard Van Wagner, Dr. Robert Wengler, orthopedist, Dr. Peter Daly, orthopedist, Dr. John Rauenhorst, psychiatrist, and J. Patrick Cronin, Ph.D., M.P.H., licensed psychologist. Testimony was presented by the employee, his QRC, Mr. Van Wagner, Dr. Rauenhorst and Dr. Cronin.
In his Findings and Order, served and filed November 4, 2003, the compensation judge denied the employee=s claims in their entirety. The judge concluded that the employee had sustained no permanent partial disability as a result of his psychological condition nor as a result of his thumb injuries. The compensation judge denied the employee=s claim for permanent total disability benefits, concluding that although the employee has been assigned permanency ratings due to nonwork-related conditions, he has not satisfied the statutory threshold for permanent total disability, 17% permanent partial disability of the whole body, because none of the employee=s permanency related to his work injuries. The judge also concluded that the employee had not proven his entitlement to permanent total disability benefits. The employee appeals.
STANDARD OF REVIEW
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 (2004). 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 the 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).
Permanent Partial Disability - Psychological Condition
The first issue before the court is whether the compensation judge=s denial of the employee=s claimed permanent partial disability for his psychological condition is supported by substantial evidence of record. The employee contends that since his psychological condition is not specifically addressed in the permanency schedules, that condition should be assigned a Weber rating of 40% whole body impairment, analogous to the rating set forth in the rules at Minn. R. 5223.0360, subp. 7D(3), as that subsection provides the Amost similar condition that is rated@ in the Workers= Compensation Permanent Partial Disability Schedules, Minn. R. 5223.0300 et seq.
Minn. Stat. ' 176.105, subd. 1 (c) provides that A[i]f an injury for which there is objective medical evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.@ In analyzing whether a Weber rating is applicable, it is helpful to consider whether the type or level of impairment sustained is included in a category in the permanency schedule and, alternatively, what rating category, or method of rating, included in the schedule most closely approximates the level of the employee=s functional impairment. See Jarvi v. City of Grand Rapids, 51 W.C.D. 36 (W.C.C.A. 1994). See also Tupa v. Farmers Co-op Elevator, slip op. (W.C.C.A. Dec. 12, 2001).
In this case, Dr. Cronin, who had provided psychological counseling since August 2002, concluded that the employee sustained a permanent partial disability relative to his psychological condition, and concluded that although the employee had not developed an organic brain disorder, he did evidence organic brain dysfunction as demonstrated by his depression and anxiety. Because the employee=s condition did not fit squarely within the criteria set forth in the permanency schedules, Dr. Cronin testified that he considered the descriptions set forth in Minn. R. 5223.0360, subp. 7D, and assigned a rating on a Weber basis, concluding that the criteria of Minn. R. 5223.0360, subp. 7D(3), which allows for a 40% rating, most closely approximated the employee=s condition and disability.
In contrast to Dr. Cronin=s assessment, Dr. Rauenhorst, who had conducted three independent psychiatric examinations of the employee between 1999 and 2003, concluded that although the employee continues to have symptoms of mild anxiety and depression, he does not have the types of emotional disturbances typically associated with a condition of organic brain dysfunction referred to in the permanency schedules. Dr. Rauenhorst found no evidence that the employee has any of the emotional disturbances listed in the permanency schedule, nor evidence that the employee requires help with or supervision of his day-to-day functioning, criteria listed in Minn. R. 5223.0360, subp. 7 (3), and concluded that the employee=s condition does not even resemble the criteria outlined in Minn. R. 5223.0360, subp. 7D(1), for a lesser, 10%, rating. Dr. Rauenhorst concluded that the employee=s pain disorder symptoms had abated and concluded that the employee=s anxiety and depression did not impair his work to any significant degree.
Quoting from the rule cited by Dr. Cronin, the compensation judge concluded that the employee did not satisfy the criteria of that rule, specifically, that he has no Aorganic brain dysfunction,@ no Aanatomic loss or alteration@ and no Aobjectively measurable neurologic deficit.@ Relying on Dr. Rauenhorst=s opinion that the employee has not shown he qualifies for a 40% permanency rating for a psychological injury, the compensation judge denied his claim.
While the factors of anatomic loss, alteration or objectively measurable neurologic deficits are required for rating a scheduled brain dysfunction injury, a Weber rating for a Amost similar@ non-scheduled condition does not require those specific criteria, since a non-scheduled injury, by definition, falls outside the schedule. See Makowsky v. St. Mary=s Medical Center, 62 W.C.D. 409 (W.C.C.A. 2002). The permanency schedule provides a point of reference, for the purpose of comparison, to ensure some objectivity and consistency in the permanency ratings made. Crain v. Riverview Healthcare Ass=n, slip op. (W.C.C.A. Nov. 9, 1998). The employee therefore need not satisfy the specific criteria of the permanency rule that Dr. Cronin referred to when he assigned a Weber rating. However, whether or not the compensation judge was correct in his analysis of the requirements of a Weber claim, the record as a whole supports the judge=s denial of a 40% rating for the employee=s psychological condition.
The issue of permanent partial disability is a question of fact to be determined by the compensation judge which must be affirmed if it is supported by substantial evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). In addition, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). The compensation judge reviewed the medical evidence, and relied upon the opinion of Dr. Rauenhorst. As we find no foundational defect in Dr. Rauenhorst=s opinion that the employee=s psychological condition is not in any way comparable to the condition covered by the permanency rule cited by Dr. Cronin, we conclude that the record as a whole adequately supports the compensation judge=s conclusion that the employee has sustained no permanent partial disability as a result of his psychological condition.
Permanent Partial Disability - Thumb Injuries
The employee appeals from the compensation judge=s denial of the employee=s claim that he has sustained a 10.2% permanent partial disability of the body as a whole, based on his bilateral thumb injuries.
In the earlier findings and order served and filed on April 6, 2001, the compensation judge found that the employee had sustained no permanent partial disability relating to his thumbs. He weighed the medical evidence, compared expert medical opinions provided at that time by Dr. Peter Daly and Dr. Matthew Putnam, and relied on Dr. Daly=s opinion that the employee had no objective abnormalities in his thumbs that would justify a permanency rating. The compensation judge accordingly denied the employee=s claim for a permanency rating of 8.5% whole body impairment. At the hearing held on August 19, 2003, the employee submitted a report from Dr. Robert Wengler, in which Dr. Wengler outlined his opinion that the employee has sustained 5.1% permanent partial disability of the whole body, relative to each thumb, for a total of 10.2%. In his findings and order, the compensation judge stated that since April 2001, Athe employee has had no treatment for this thumbs, and there is no evidence that the physical condition of his thumbs have worsened@ since then. He again relied on the opinion of Dr. Daly, rendered in August 2000, rejecting the opinion of Dr. Wengler, and again concluded that the employee has sustained no permanency due to his bilateral thumb injuries.
Where the record contains conflicting medical evidence concerning the nature of the employee=s bilateral thumb injuries, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 64 (Minn. l985). In this case, the compensation judge=s determination, that the employee has not sustained any permanent partial disability of the whole body relative to his bilateral thumb injuries, is supported by substantial evidence of record, and we therefore must affirm that finding.
We note, however, that when the compensation judge referred to the employee=s bilateral thumb and shoulder injuries in his memorandum, he stated that "indeed the Compensation Judge finds that the employee sustained no injury or permanent aggravation of either of those body parts as a result of his work for the State of Minnesota." This reference to the thumb injuries is erroneous; the employee=s bilateral thumb injuries were earlier adjudicated to be work-related. We therefore vacate that portion of the memorandum that states the employee sustained no work-related thumb injuries.
Permanent Total Disability Claim
The employee appeals from the compensation judge=s finding that he has not been permanently totally disabled since December 3, 1999, as a substantial result of his 1993 and 1996 work injuries. An employee is permanently totally disabled when Ahis physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Schulte, 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). Thus, a determination of permanent total disability has both a vocational and a medical component. McClish v. Pan-O-Gold Baking Co., 335 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). In addition, a determination of permanent total disability also requires a certain level of permanent partial disability, as outlined in Minn. Stat. ' 176.101, subd. 5.
The employee appeals from the compensation judge=s findings, on two bases. He argues that he has satisfied the statutory threshold necessary for a finding of permanent total disability status, and that he conducted a reasonably diligent job search until it was evident that any future job search would be futile due to the extent of his work-related disability.
The compensation judge found that because none of the employee=s permanency relates to his work injuries, he has not satisfied the threshold. In determining whether an employee has met the threshold, all ratable permanent impairment need not be related to the work injury and it need not be a factor affecting the employee=s wage loss or ability to work. Frankhauser v. Fabcon Inc., 57 W.C.D. at 250-52 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997); see also Makowsky v. St. Mary=s Medical Center, 62 W.C.D. at 415-19 (W.C.C.A. 2002); Shelton v. National Painting & Sandblasting, 61 W.C.D. 230, 244-45 (W.C.C.A. 2000). Because the employee was under the age of 50 at the time of his injuries, he must have a minimum of a 17% permanent partial disability rating of the whole body. See Minn. Stat. ' 176.101, subd. 5(2)(a). The compensation judge acknowledged that the employee was rated as having a 15% whole body impairment rating as a result of his GERD condition, and that he was rated as having a 3% whole body impairment rating as a result of his right knee injury he sustained while employed by Unisys. The compensation judge also referred to a 3% rating the employee=s physician had assigned relative to his shoulder condition. However, the compensation judge concluded that
While it is true that a nonwork-related permanency may be combined with a work-related permanency to satisfy the 17% threshold for permanent total disability, the Compensation Judge does not believe that the employee can satisfy the threshold with a totally nonwork-related 17% rating. Otherwise, the employee would be eligible for PTD benefits without the work injury being even a substantial contributing factor.
We conclude that this finding is legally erroneous, and reverse this portion of the judge=s finding. When assessing an employee=s claim for permanent total disability benefits, the crucial issue is not the degree of permanency an employee has sustained as a result of his work injury, but whether that injury substantially contributes to the employee=s disability from work. The statute does not specify that a portion of the permanency ratings used to meet the statutory threshold must be related to the work injury in dispute. In Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997), in which the issue was whether nonwork-related permanent partial disability may be counted toward the threshold permanency ratings, this court held that the Astatute specifies only that an employee must >have= a particular permanent partial disability rating, depending on the employee=s age and education. No particular source for that permanent partial disability is specified in any way.@ We further held that
an employee who has sufficient ratable permanent partial disability from any cause may establish entitlement to benefits for permanent total disability if he or she meets the remaining eligibility requirements--that is, if Athe employee=s physical disability . . . causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income,@ id.; see also Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967)--as long as the employee=s work-related injury is a substantial contributing cause of that disability.
Id. at 252 (emphasis in original).
In a subsequent case, Metzger v. Turck, 59 W.C.D. 229 (W.C.C.A. 1999), this court held that, in establishing the permanent partial disability thresholds for permanent total disability, Aany substantial ratable permanent partial disability will satisfy that goal, whether or not that permanent partial disability is a factor in the employee=s wage loss or inability to work.@ Metzger, 59 W.C.D. at 237; see also Wensman v. St. John=s University, slip op. (W.C.C.A., July 14, 2004).
In this case, the employee has been assigned permanency ratings of at least 21% whole body impairment, which exceed the requisite level of permanent partial disability to satisfy the statutory threshold, even though the particular permanency ratings which satisfy the threshold are unrelated to the employee=s 1993 and 1996 injuries. We therefore reverse those portions of Finding No. 3(D) and 3(E) that refer to the judge=s holding that the employee cannot satisfy the statutory threshold for permanent partial disability with a totally nonwork-related permanency rating.
That being said, however, the employee still has the burden of establishing that the physical and psychological disabilities resulting from his 1993 and 1996 work injuries substantially contribute to his inability Ato secure anything more than sporadic employment resulting in an insubstantial income. Schulte v. C.H. Peterson Constr. Co., 278 Minn. at 83, 153 N.W.2d at 133-34, 24 W.C.D. at 295. The employee argues that the medical and vocational evidence in the record clearly shows that the employee is permanently totally disabled, including opinions from the employee=s treating psychologists and physicians as well as from the employee=s QRC. The employee also argues that those opinions are consistent with decisions rendered by the Social Security Administration and the Minnesota State Retirement System, and with the compensation judge=s previous findings and order in which he determined that the employee was temporarily totally disabled after December 3, 1999, as a result of his psychological condition.
In the current findings and order, the compensation judge found that the employee had not shown that he is permanently totally disabled as a substantial result of his work injuries. In his findings and order, the judge referred to numerous factors, including the employee=s strong educational and employment background, the availability of adaptive aids to accommodate the employee=s work restrictions, and to the limited level of the employee=s job search, and concluded that the employee has not demonstrated that he is permanently totally disabled from employment. In reaching this conclusion, the compensation judge relied primarily on the opinions and testimony of the independent vocational examiner, Richard Van Wagner, who concluded that there is work available for the employee within his restrictions, that adaptive aids are available for his work, and that the employee=s job search did not sufficiently demonstrate that he is totally disabled.
Although the level of the employee=s job search was one of the factors considered by the compensation judge, a diligent job search is not a necessary prerequisite to a finding of permanent total disability, and a search is not even required where other evidence in the record establishes the disability, for example, when the medical and vocational evidence sufficiently demonstrates that a job search would be futile. See Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 879, 47 W.C.D. 136, 142 (Minn. 1992); Scott v. Southview Chevrolet Company, 267 N.W.2d 185, 188-189, 30 W.C.D. 426, 432 (Minn. 1978) (citations omitted). However, the nature of the employee=s job search goes to the evidentiary weight of his claim that he is totally disabled. See Atkinson v. Goodhue County Co-op Electric Ass=n, 55 W.C.D. 150, 160 (W.C.C.A. 1996) (citations omitted), summarily aff=d (Minn. Sept. 23, 1996).
In this case, the employee conducted a job search, initially with the assistance of a QRC and placement specialist, and on his own once rehabilitation services were suspended. It is undisputed that the employee was selective about the types of jobs he would consider, and the employee=s QRC acknowledged that there would have been more jobs available to the employee had he made more direct personal contacts with potential employers, but he also testified that the employee had cooperated with rehabilitation. Mr. Van Wagner concluded that the employee is capable of employment in the competitive labor market in the Twin Cities metropolitan area, and identified types of employment available to the employee that would be within his work restrictions with the use of adaptive aids.
The compensation judge accepted Mr. Van Wagner=s opinions, and found that Athere are jobs available in the labor market that the employee can perform with the use of readily available adaptive aids,@ and concluded that the employee has not satisfied the statutory requirements for a diligent, good faith search for work. He concluded that the employee=s work search was inadequate and tended to be Ainappropriately self-limited,@ and that the employee Aartificially restricted the range of jobs available to him.@ He concluded that the employee is not permanently totally disabled, and that the employee=s job search had not been reasonable and diligent in view of the employee=s age, education, work experience, transferrable skills and physical limitations. The compensation judge concluded that
The employee is only 51 years old. He is a graduate of the University of Minnesota with a degree in accounting. His vocational testing shows that he is both intelligent and functions at the equivalent level for a college graduate. The employee has not performed much in the way of a good faith job search. The employee=s job search efforts appear halfhearted, and he often did not follow up on job leads. He consistently underestimated his physical abilities. He apparently concentrated on sending out resumes and overlooked the importance of face-to-face contact.
(Finding No. 3(E)).
It is evident that the compensation judge also based his conclusions, at least in part, on his assessment of the employee=s credibility. Assessment of the credibility of a witness is the unique function of the trier of fact, Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), and it is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).
In view of the medical and vocational evidence in the record, we conclude that substantial evidence of record supports the compensation judge=s findings that the employee was not permanently totally disabled between December 3, 1999, and the hearing on August 19, 2003, as a substantial result of his work-related injuries. We therefore affirm that finding. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
 The facts of this case are set out more fully in this court=s previous opinions, Indihar v. State of Minn., Dept. of Commerce, slip op. (W.C.C.A. Apr. 24, 2000) and Indihar v. State of Minn., Dept. of Commerce, slip op. (W.C.C.A. Jan. 7, 2002).
 Weber v. City of Inver Grove Heights, 461 N.W.2d 981, 43 W.C.D. 471 (Minn. 1990), codified in 1992 at Minn. Stat. ' 176.105, subd. 1 (c).
 Minn. R. 5223.0360, subp. 7D, states as follows:
Subp. 7. Brain dysfunction. Signs or symptoms of organic brain dysfunction due to illness or injury must be present and persistent with anatomic loss or alteration, or objectively measurable neurologic deficit. A rating under this part is the combination as described in part 5223.0300, subpart 3, item E, of the ratings assigned by items A to I.
* * *
D. Emotional disturbances and personality changes must be substantiated by medical observation and supported by psychometric testing. These disturbances may include irritability, outbursts of rage or aggression, absence of normal emotional response, inappropriate euphoria, depression, abnormal emotional interaction with others, involuntary laughing and crying, akinetic mutism, and uncontrollable fluctuation of emotional state. Primary psychiatric disturbances, including functional overlay, shall not be rated under this part:
(1) intermittent emotional disturbance requiring intervention by a caregiver are only present under stressful situations such as losing one=s job, getting a divorce, or a death in the family, ten percent;
(2) mild emotional disturbance is present at all times but can live independently and relate to others, 20 percent;
(3) moderate emotional disturbance is present at all times and can live independently but requires some supervision on a daily basis, 40 percent.
(4) moderate to severe emotional disturbances are present at all times, and requires sheltering with some supervision of all activities, 75 percent,
(5) severe degree of emotional disturbance is present at all times and is confined to continuous supervision and protective care, 95 percent.
 Pursuant to Minn. R. 5223.0480, subp. 3(C)(4) as it applies to Minn. R. 5223.0480, subp. 1(B)(2)(a)(i).
 Minn. Stat. ' 176.101, subd. 5, starts, in part, as follows:
Subd. 5. Definition. For purposes of subdivision 4, "permanent total disability" means only:
* * *
(2) any other injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee must also meet the criteria of one of the following clauses:
(a) the employee has at least a 17 percent permanent partial disability rating of the whole body;
(b) the employee has a permanent partial disability rating of the whole body of at least 15 percent and the employee is at least 50 years old at the time of injury; or
(c) the employee has a permanent partial disability rating of the whole body of at least 13 percent and the employee is at least 55 years old at the time of the injury, and has not completed grade 12 or obtained a GED certificate.
For purposes of this clause, "totally and permanently incapacitated" means that the employee=s physical disability in combination with any one of clause (a), (b), or (c) causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Other factors not specified in clause (a), (b), or (c), including the employee=s age, education, training and experience, may only be considered in determining whether an employee is totally and permanently incapacitated after the employee meets the threshold criteria of clause (a), (b), or (c). The employee=s age, level of physical disability, or education may not be considered to the extent the factor is inconsistent with the disability, age, and education factors specified in clause (a), (b), or (c).
 The employee has been diagnosed with gastroesophageal reflux disease (GERD), for which he has undergone medical consultation, surgery and extensive voice therapy due to related voice weakness and hoarseness. The employee testified that these symptoms restrict his ability to engage in much talking without significant discomfort.
 By 2001, the employee was awarded social security disability income, effective December 3, 1999, the employee=s last date of active employment with the employer. The Minnesota State Retirement System has also determined that the employee is entitled to disability retirement benefits.