KEITH MATHISTAD, Employee/Cross-Appellant, v. CALDWELL PACKING/PM WINDOM and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 1, 2006
PERMANENT PARTIAL DISABILITY - BACK. Where it was supported by sufficiently founded and reasoned expert medical opinion and was not otherwise unreasonable in light of the evidence, the compensation judge=s award of permanent partial disability compensation for the employee=s lumbar and cervical injuries was not clearly erroneous and unsupported by substantial evidence, notwithstanding the judge=s failure either to indicate expressly that his opinion was stated within as reasonable degree of medical certainty or to expressly relate causally the employee=s condition to his work injury.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where the judge=s award of permanent partial disability compensation for injury to the employee=s neck, in reliance on expert medical opinion, had been affirmed, the compensation judge=s conclusion that a recommended cervical discogram was reasonable and necessary in further diagnosis of the condition for which permanency benefits had been awarded was not clearly erroneous and unsupported by substantial evidence.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. Where the employee had continued to work for ten months without any related time off after his work-related neck injury, where, as of the date he quit his job, no treating or other doctor had ever restricted him entirely from working, and where the decision was supported by expert medical opinion, the compensation judge=s conclusion that the employee was physically capable of working and was not entitled to temporary total disability benefits subsequent to quitting his job without a reasonably diligent job search was not clearly erroneous and unsupported by substantial evidence, particularly in light of the absence of any expert vocational testimony regarding the job market and the employee=s acknowledgment that he was offered a lighter duty job by the employer but did not even attempt to perform it.
WAGES - IRREGULAR. Where the employee=s earnings during each of two of the twenty-six weeks preceding his work injury were over $150 less than the $437.64 average for the full twenty-six weeks, but where it was also true that his earnings during each of four of the other twenty-four weeks at issue were over $100 more than that straight average, the compensation judge=s decision to base the employee=s average weekly wage on the full twenty-six-week period was not clearly erroneous and unsupported by substantial evidence.
Determined by Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Gary M. Hall
Attorneys: Denise D. Lemmon, Lemmon & Associates, Eagan, MN, for the Cross-Appellant. Randee S. Held, Law Offices of Bakken & Robinson, St. Paul, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of permanent partial disability benefits and of payment for a cervical discogram, and the employee cross-appeals from the judge=s denial of temporary total disability benefits and his calculation of the employee=s average weekly wage. We affirm.
On July 30, 2001, Keith Mathistad sustained a personal injury to his low back in the course of his work as a journeyman laborer with Caldwell Packing/PM Windom [the employer]. Mr. Mathistad [the employee] was forty-two years old on that date and was earning a weekly wage of $452.80. The employer and insurer admitted liability for the injury, and the employee was evidently off work and paid benefits for a brief period immediately afterward. On August 2, 2001, the employee commenced about a six-week program of chiropractic treatment with Dr. Brian Hedman, subsequent to which, on September 24, 2001, he underwent a lumbar MRI scan, which was read to reveal degenerative disc disease at L5-S1, with a broad-based disc protrusion Avery slightly@ deflecting the left S1 nerve root sheath. On October 3, 2001, orthopedist Dr. James Donohue diagnosed lumbar strain with evidence of degenerative disc disease and normal neurological findings, and he released the employee to return to work with restrictions against repetitive bending, lifting, and twisting, against lifting over twenty-five pounds, and against handling animals. On January 2, 2002, upon the employee=s completion of about three months of physical therapy and rehabilitation, Dr. Donohue released the employee to return to work restricted to Aactivities as tolerated.@ On March 29, 2002, Dr. Donohue released the employee to A[r]eturn to regular work today,@ again Aas tolerated.@ On April 18, 2002, the employee was examined, apparently for the insurance company, by orthopedist Dr. Wynn Kearney, who concurred with a diagnosis of lumbar strain with evidence of degenerative disc disease and osteoarthritis. Dr. Kearney also found appropriate a forty-pound lifting restriction that he understood to be in place, advising no other treatment and finding no indication for surgical intervention.
The employee=s work with the employer was varied, very physical, and arguably dangerous, and subsequent to his 2001 injury he sustained numerous other injuries, including a June 4, 2003, injury to his neck, upper back, mid back, low back, and left shoulder, a February 27, 2004, injury to his face, neck, and low back, and a June 10, 2004, injury to his scalp, neck, shoulders, ribs, and low back. Although the employer and insurer admitted liability for all of these injuries and apparently paid all of the employee=s related treatment expenses, including expenses of further treatment with Dr. Hedman, none of the post 2001 injuries apparently resulted in any compensable time off work. Nevertheless, complaining of continuing pain particularly in his neck and upper extremities, on April 11, 2005, the employee voluntarily terminated his employment with the employer. He was subsequently offered a lighter duty job by the employer, but he declined to attempt the job, because it was performed in the cold and he Adidn=t believe I could take the cold and movement in my shoulders and neck.@ The employee has not been employed since quitting his job with the employer.
On June 8, 2005, the employee was examined by orthopedist Dr. Gene Swanson with regard to residual pain that he was having in his neck and down the full length of his left arm. Dr. Swanson=s impression was of apparent cervical radiculopathy, with probable C6 nerve root involvement, and he ordered an MRI scan of the employee=s cervical spine. The scan, which was conducted on June 16, 2005, was read generally to reveal multilevel facet arthropathy, most prominently at C5-6 on the left, together with mild foraminal stenosis at C3-4, C4-5, and C5-6, with some mild cord contact and flattening at the latter two of those levels, respectively. Upon follow-up with the employee on June 23, 2005, Dr. Swanson noted that the possible compression of the C6 nerve root on the left Adoesn=t really appear to be a disc protrusion as much as it is some foraminal narrowing and some degenerative change at the C5-6 level secondary to facet arthropathy.@ Toward further diagnosis, Dr. Swanson ordered an EMG of the left upper extremity, Ato see whether there is any evidence objectively . . . of a significant radiculopathy.@
On June 28, 2005, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from April 11, 2005, intermittent temporary partial disability benefits beginning February 27, 2004, retraining benefits, unspecified permanent partial disability benefits, and medical benefits Ato be determined.@ The claim was based on specific work injuries on July 30, 2001, June 4, 2003, January 16, 2004, February 27, 2004, June 10, 2004, and January 5, 2005, and a Gillette-type injury to the Awhole body@ on April 11, 2005.
On July 7, 2005, the employee underwent the EMG ordered by Dr. Swanson, which was evidently read to be normal. In a follow-up report to the employee=s QRC on July 22, 2005, Dr. Swanson indicated that, although the employee had been unwilling to attempt a return to his previous occupation level out of fear of reinjury, the doctor had not been able to identify any specific pathology or defect traceable to the employee=s work injury. He indicated that, while he would not consider the employee a candidate for a return to heavy work with the employer, he did suspect the employee to be Aroughly in the same condition now as he was when he was first employed in this industry.@ On that basis, the doctor concluded, A[the employee] is not really qualified for specific restrictions or limitations regarding his employment.@ With that, Dr. Swanson indicated that A[n]o further medical treatment is recommended at this time.@
On July 28, 2005, the employee was examined at the request of his attorney by orthopedic surgeon Dr. Robert Wengler, whose consultation report and letter to the employee=s attorney on that date indicate that his evaluation of the employee=s case was based on a detailed medical and work history, a physical examination of the employee, and a review of the employee=s radiological and other medical records, including review of a hard copy of at least the employee=s cervical MRI scan. Dr. Wengler focused in his report on the employee=s lower back injury in July 2001 and his neck injury in June 2004, concluding that the latter was Aultimately responsible for [the employee=s] not being able to continue work@ and that each of the two injuries was ratable as a 12% whole-body impairment under the Minnesota Rules. The neck injury he rated under Minnesota Rules 5223.0370, subparts 4D and 4D(1), which provide for that rating for certain chronic cervical radicular pain or paresthesia persisting despite treatment, and the low back injury he rated under Minnesota Rules 5223.0390, subparts 4D and 4D(1), which provide for that rating for certain chronic lumbar radicular pain or paresthesia persisting despite treatment. See Minn. R. 5223.0370, subps. 4D and 4D(1), and Minn. R. 5223.0390, subps. 4D and 4D(1). Dr. Wengler further concluded that the employee was temporarily disabled from all work but was expected to return eventually to lighter employment. He recommended that the employee undergo a cervical discogram Ato evaluate him for a possible treatable lesion,@ noting that the employee was Ainterested in his treatment options and would like to have these clearly defined before he begins a job search.@
On October 19, 2005, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Rajan Jhanjee. The employee related to Dr. Jhanjee a history of multiple work injuries over the course of eight years of work with the employer, including his low back injury in July 2001, an unspecified injury in June 2003, a fracture/smashed-finger injury to his left hand in January 2004, a neck injury in February 2004, a head injury with left arm numbness and tingling in June 2004, a right big toe injury in January 2005, and another unspecified injury in May 2005. As current symptoms, the employee reported low back pain without leg symptoms, which he claimed he had been experiencing ever since his 2001 injury, and intermittent neck pain, which he claimed he had been experiencing ever since his February 2004 injury, together with some left forearm pain with intermittent tingling. Upon physical examination and a lengthy review of the employee=s medical records, Dr. Jhanjee diagnosed a Adegenerative condition of his cervical spine, particularly at the C5-6 level,@ which he concluded was Anot caused by any particular injuries from work.@ Dr. Jhanjee also diagnosed a multilevel degenerative condition in the employee=s lumbosacral spine, particularly at the L5-S1 level, again not caused by any particular injury at work. Dr. Jhanjee found no material condition of the left shoulder.
With regard to issues here still in litigation, Dr. Jhanjee opined that the musculoskeletal strain of the lumbosacral spine that the employee had sustained on July 30, 2001, was temporary in nature and that the employee had reached maximum medical improvement with regard to it on March 29, 2002, with a 0% permanent partial disability, pursuant to the opinion of Dr. Donohue on that date. Similarly, Dr. Jhanjee opined that the musculoligamentous strain of the neck, upper back, mid back, low back, and left shoulder that the employee sustained on June 4, 2003, was also temporary in nature and would have resolved by the middle or end of July 2003. Also similarly, Dr. Jhanjee concluded that the neck, upper back, lower back, and left shoulder injuries sustained by the employee in February 2004 and June 2004 were also temporary in nature, having all fully resolved by the end of July 2004. The doctor did not think that the employee had sustained any Gillette-type injury to his neck or back on April 11, 2005, as the employee had alleged, he did not believe that the employee had sustained any permanent partial disability with respect to any of his work injuries, and he did not believe that the employee required any permanent work restrictions with regard to those injuries. The doctor concluded further that the employee had reached maximum medical improvement with regard to the last of his injuries by the beginning of April 2005. He agreed with restrictions said to have been imposed on the employee by Dr. Swanson on August 12, 2005, including restrictions against lifting over forty pounds, but he indicated expressly that A[t]hese restrictions are not related to any injuries sustained at work.@ Finally, Dr. Jhanjee opined that most of the employee=s treatment to date had been reasonable, necessary, and causally related to his work injuries, but he concluded also that the employee was no longer in need of any further treatment related to those injuries. Dr. Jhanjee=s report was served on the employee on November 4, 2005.
On November 10, 2005, the employee testified by deposition, in part expressly that he had not conducted any search for employment since quitting his job with the employer on April 11, 2005. The matter came on for hearing before a compensation judge on January 5, 2006. At the hearing, the employee withdrew his claim related to any Gillette-type injury on April 11, 2005, together with his claim for intermittent temporary partial disability benefits. Issues at hearing included the following: (1) the employee=s average weekly wage on February 27, 2004, the date of the third of four work injuries at issue; (2) whether the employee had been temporarily totally disabled continuing from April 12, 2005; (3) whether the employee had conducted a reasonably diligent job search since that date; (4) the employee=s entitlement to payment for the cervical discogram recommended by Dr. Wengler; (5) the employee=s entitlement to permanent partial disability benefits for 12% whole-body impairments to both his cervical and his lumbar spine, and (6) whether the employee had reached maximum medical improvement [MMI]. The employee stipulated at hearing to service of MMI on November 4, 2005. In his hearing testimony he qualified his deposition admission as to job search, testifying that he had Alooked at the papers to see if there=s anything in there@ and Abeen to farmers to see if I could drive truck or something like that there but then all the bouncing in the fields there=s no way I could put up with that.@ When asked if he had actually asked those farmers for work, the employee replied, AThey asked me.@
By findings and order filed March 13, 2006, the compensation judge concluded in part that the employee=s injuries on July 30, 2001, June 4, 2003, February 27, 2004, and June 10, 2004, were all permanent aggravations of pre-existing cervical and lumbar conditions and remained substantial contributing factors in the employee=s ongoing cervical and/or low back conditions. Pursuant to that conclusion, the judge awarded payment of permanent partial disability benefits for 12% whole-body impairments to both the employee=s cervical spine and his lumbar spine. The judge also concluded that the cervical discogram recommended by Dr. Wengler was reasonable, and he awarded payment for that evaluation, specifying that the employee was not at maximum medical improvement pending the results of that evaluation. Notwithstanding these findings of permanent ongoing disability, however, the judge concluded further that the employee was not physically unable to return to some light duty activities and yet had not performed a reasonably diligent job search since quitting his job on April 11, 2005. On that basis the judge denied the employee=s claim to temporary total disability benefits. Further, the judge concluded that the employee=s average weekly wage on February 27, 2004, should be calculated based on his wages over the full twenty-six-week period preceding his work injury on that date, rather than over only twenty-four of those weeks, as had been advocated by the employee on grounds that his wages during two of those weeks were not representative of his pre-injury earning capacity. The employer and insurer appeal from the judge=s awards of permanent partial disability benefits and the discogram, and the employee cross-appeals from the judge=s denial of temporary total disability benefits and from the judge=s calculation of the employee=s average weekly wage on February 27, 2004.
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. Permanent Partial Disability
At Finding 7, the compensation judge concluded, based on the opinion of Dr. Wengler, that the employee was subject to both a 12% whole-body impairment related to his cervical spine and a 12% whole-body impairment related to his lumbar spine. The employer and insurer contend on appeal that, among the several doctors who treated or examined the employee, including orthopedists Dr. Swanson and Dr. Kearney, independent examiner Dr. Wengler was the only physician to opine that the employee had sustained any permanent partial disability. Moreover, they argue, Dr. Wengler did not issue that opinion Abased upon a reasonable degree of medical certainty, or with adequate foundation or sufficient and detailed reasoning.@ Further still, they argue, there is Ano medical opinion by Dr. Wengler that the [employee=s] work injuries caused any aggravation, either of a permanent or temporary nature, of any previous conditions, or degenerative conditions,@ and Athere is no basis for the Compensation Judge=s Findings that permanent aggravations were sustained.@ We are not persuaded.
Notwithstanding the fact that the employee was apparently not physically disabled from returning to his job subsequent to any but the first of his work injuries, and only briefly after that, the record is replete with testimonial and other evidence that the employee=s lumbar and cervical conditions continued to plague him subsequent to his first low back injury in July 2001 and his first neck injury in June 2003. There is, moreover, substantial evidence in the MRI reports of September 24, 2001, and June 16, 2005, together with the record of the employee=s medical treatment in general, that the employee is reasonably subject to the elements required for lumbar and cervical ratings under Minnesota Rules 5223.0390, subparts 4D and 4D(1), and 5223.0370, subparts 4D and 4D(1), particularly given the opinion of Dr. Wengler. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). Although the report in which Dr. Wengler=s states his opinion is, we grant, relatively brief, we cannot conclude that it is either insufficiently founded or insufficiently reasoned to serve as a basis for the compensation judge=s decision. Cf., Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact); Mauer v. Big Lake American Legion, slip op. (May 6, 1997) (AThere is no requirement in the law that a causation opinion be supported by diagnostic tests or measurable objective findings; the truth of an expert opinion >need not be capable of demonstration.= Pommeranz v. State, Dep=t of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 177 (Minn. 1977).@) Nor will we conclude that Dr. Wengler=s opinion must be disqualified either because it does not expressly relate the employee=s condition causally to his work injury or because it is not expressly issued Awithin a reasonable degree of medical certainty.@ Under the facts of this case and the context of Dr. Wengler=s examination, we will infer those elements of opinion. Because it is supported by expert medical opinion and is not otherwise unreasonable in light of the evidence, we affirm the compensation judge=s award of permanent partial disability benefits for both the employee=s lumbar injury and his cervical injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Payment for the Discogram
At Finding 5, the compensation judge concluded that Dr. Wengler=s recommendation of a cervical discogram was reasonable, and he subsequently ordered it approved. The employer and insurer argue on appeal that, even in recommending the discogram, Dr. Wengler Adoes not indicate on what basis it is needed, or what it would be expected to show, other than that >[the employee] is interested in surgical options for his neck complaints=,@ having never made any recommendation or indication that surgical options are necessary. We are not persuaded. We have already affirmed the compensation judge=s award of permanent partial disability benefits in reliance on the opinion of Dr. Wengler. Half of those benefits were in compensation for permanent injury to the employee=s neck, shown by MRI scan to include facet arthropathy and foraminal stenosis with spinal cord contact and described in the applied rule as resulting in radicular pain or paresthesia with objective radicular findings on imaging that correlate with neurological findings. Given this scan and these findings, it was not unreasonable for Dr. Wengler to anticipate a possible surgical treatment, nor was it unreasonable for the compensation judge to rely on Dr. Wengler=s medical opinion in that regard. See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73. Therefore we affirm the judge=s award of the discogram at issue. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Temporary Total Disability
At Finding 6, the compensation judge found that the employee was not physically disabled from all work, that he had not performed a reasonably diligent job search, and that he was therefore not entitled to temporary total disability benefits. In his memorandum, the judge explained that, while he found the employee to be a generally credible witness as to the nature and extent of his various injuries, he found the employee=s testimony regarding his job search efforts unpersuasive, that those efforts Adid not satisfy even minimal levels of adequacy.@ By analogy with several precedent cases, the employee contends on cross-appeal that he was not required to make a reasonably diligent search for work during the period at issue, in light of his physical condition in combination with his vocational circumstances. We are not persuaded.
As a general rule, employees capable of working must make a diligent job search in order to establish total disability. See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). We grant that this rule pertains only to employees Acapable of working,@ not to cases in which a job search would be futile. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978). A reasonably diligent job search is not an absolute prerequisite for benefits, and the fact that an employee has not sought postinjury employment goes only to the evidentiary weight of his assertion that he is totally disabled. Id. In this case, however, there is ample evidence that the employee was capable of at least some work. However difficult it may have been for him, the employee had continued to work for nearly two years subsequent to his initial, June 2003, neck injury without any related time off and for fully ten months without any related time off subsequent to the June 2004 neck injury that Dr. Wengler, upon his single independent medical examination, found Aultimately responsible for his not being able to continue work.@ Notably, no doctor, including any of his treating physicians, had ever restricted the employee entirely from working as of the date he quit his job with the employer. Given such evidence, it was not unreasonable for the compensation judge to conclude that the weight of the evidence required the employee to conduct a reasonably diligent search for alternative employment in order to demonstrate total disability. This is true particularly in light of Dr. Jhanjee=s October 2005 opinion that the employee was physically capable of working within the restrictions, in light of the absence of any expert vocational testimony regarding the employee=s job market, and in light of the employee=s acknowledgment that he was offered a lighter duty job by the employer but did not even attempt to perform it. See Redgate, 421 N.W.2d at 34, 40 W.C.D. at 956 (in determining whether an injured employee=s job search has been reasonable under all the facts and circumstances, a judge may consider, in addition to expert testimony regarding the employee=s labor market, whether the employer has undertaken to provide work). Because it was supported by expert medical opinion and was not otherwise unreasonable, we affirm the compensation judge=s denial of the employee=s claim for temporary total disability benefits continuing from April 11, 2005. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
4. Average Weekly Wage
At Finding 8, the compensation judge concluded, with regard to the employee=s average weekly wage on February 27, 2004, that Athere is insufficient evidence to support the exclusion of the two weeks with the lowest earnings from the 26 week average weekly wage calculation.@ The employee contends on cross-appeal that his wages during the two weeks at issue were Asignificantly@ lower than those during the other twenty-four weeks preceding his work injury and that therefore those two paychecks Ado not reasonably represent [the employee=s] earning capacity at the time of injury.@ He argues that during one of the two weeks at issue he was restricted from working to his full capacity due to a severe work-related crush injury to his left hand and that during the other of the two weeks he was struggling with gastrointestinal troubles. Therefore, he goes on, calculation of his weekly wage using only the other twenty-four weeks of pay would be more consistent with the court=s stated goal of arriving at Aa fair approximation of [the employee=s] probable future earning power which has been impaired or destroyed because of the injury.@ Bradley v. Vic=s Welding, 405 N.W.2d 243, 245-46, 39 W.C.D. 921, 924 (Minn. 1987), quoting Knotz v. Viking Carpet, 361 N.W.2d 872, 874 (Minn. 1985), quoting Sawczuk v. Special School Dist. No. 1, 312 N.W.2d 435, 437-38 (Minn. 1981). We are not persuaded.
We grant that the employee=s earnings during each of the two weeks here at issue were over $150 less than the straight $437.64 average for the twenty-six weeks as was adopted by the judge as the employee=s weekly wage. But it is also true that his earnings during each of four of the other twenty-four weeks at issue were over, or almost over, $100 more than that straight average. Indeed, the employee=s weekly wage varied widely over the course of the full twenty-six week period, and we conclude that it was not at all unreasonable for the judge to elect to calculate the employee=s wage by simply taking the average of the twenty-six weeks prior to the injury, as most simply provided for under the statute. See Minn. Stat. ' 176.011, subds. 3 and 18. Because the judge=s decision was not unreasonable and was in accordance with the statute, we will not reverse it on the basis of possible case law-based alternatives that may have been available to the judge. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 According to the employee=s testimony at hearing.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 We do not find these restrictions as documented by Dr. Swanson evident in the record.
 Minnesota Rules 5223.0390, subparts 4D and 4D(1), provide for a total 12% rating where there is
[r]adicular pain or paresthesia . . . with objective radicular findings . . . on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a lumbar nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination . . . if chronic radicular pain or radicular paresthesia persist despite treatment.
Minnesota Rules 5223.0370, subparts 4D and 4D(1), provide for an identical total 12% rating where there are identical conditions at a cervical level of the spine.
 $249.95 at January 31, 2004, and $277.90 at December 13, 2003, on Employee=s Exhibit O.
 $540.74 at February 28, 2004, $537.19 at September 27, 2003, $573.70 at September 20, 2003, and $556.43 at September 6, 2003, on Employee=s Exhibit O.