DEBORAH A. CUSTER, Employee, v. I.S.D. NO. 2154, SELF-INSURED/BERKLEY RISK ADM=RS, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 28, 2007
REHABILITATION - RETRAINING. Where the employee returned to work with the employer, but was precluded from performing her previous part-time work with the second employer for whom she had worked at the time of her injury due to her physical work restrictions, and where the record contains a labor market survey, vocational reports and testimony that reflect that the proposed retraining could provide the employee with an economic status as close as possible to her pre-injury status, substantial evidence supports the compensation judge=s findings that the Poole factors had been met and the compensation judge=s related award of a retraining program.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent. Kathleen M. Daly, Rider Bennett, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals the compensation judge=s award of retraining benefits. We affirm.
On March 1, 2004, Deborah A. Custer, the employee, sustained an admitted low back injury when she slipped and fell while working as a junior high school art teacher for Independent School District No. 2154, the self-insured employer. At that time, the employee also worked at a second job on the evening shift for Fingerhut Corporation, at a position in the billing department which involved talking to customers on the telephone. At the time of her injury, the employee worked weekday evenings for Fingerhut, from 4:00 p.m until 9:00 p.m, and also worked on Saturdays, working approximately 25 hours per week for Fingerhut.
Following her March 2004 injury, the employee underwent conservative medical treatment overseen by Dr. R. Scott Douglass in the occupational medicine department of the Virginia Clinic. She underwent physical therapy and a lumbar epidural steroid injection, and eventually was diagnosed as having a lumbosacral strain, with lumbar disc disease at the L4-5 and L5-S1 levels and with sacral and regional hip pain and spasm. Dr. Douglass assigned physical work restrictions on the amount of lifting, standing, sitting, twisting and bending the employee could perform, and by April 28, 2004, released the employee to return to work at her teaching position. Dr. Douglass limited the employee to a 40-hour work week, and concluded that her work at her second job would entail too many hours of work each day and would be Atoo static an activity@ with little opportunity to stand, walk and change positions.
Shortly after the employee=s injury, the self-insured employer provided disability case management services to the employee through Carol Anderson, qualified rehabilitation consultant (QRC), and eventually requested that Ms. Anderson provide rehabilitation assistance to the employee as her QRC. The employer limited the rehabilitation services to medical management throughout 2004, due to the employee=s continued physical work restrictions. The rehabilitation plan focused on a goal of returning the employee to her pre-injury employment.
By April 29, 2004, the employee returned to work at her teaching position; the employer accommodated the employee=s need to lie down during breaks to relieve her low back pain. Following her return to work, the employer paid the employee temporary partial disability benefits, based on her reduced earnings resulting from her inability to return to her part-time job at Fingerhut. According to Dr. Douglass=s chart note of May 27, 2004, the employee reported that her back, hip and leg pain persisted, and that she had very limited tolerances for sitting, standing or walking. The employee advised Dr. Douglass that she was able to tolerate working only because she was able to lie down during a morning and an afternoon break.
The employee also advised Dr. Douglass that she wanted to try returning to work at Fingerhut, even though she was unsure she would be able to tolerate the amount of sitting required of that job. On June 2 and June 3, 2004, the employee returned to work at Fingerhut. That position required the employee to wear a headset and use a computer, and was a fast-paced job that allowed the employee to sit or stand, but did not allow walking around or leaving the workstation. The employee was only able to work a few hours each day due to her increased back pain resulting from static sitting or standing. On June 4, 2004, Dr. Douglass took her off work from the job at Fingerhut, stating that the employee was Aunable to tolerate static sitting or standing activity required in work at FingerHut.@
Following an examination on June 21, 2004, and throughout his later examinations in 2004-2006, Dr. Douglass advised that the employee was unable to continue to perform the Fingerhut work. In his chart note of July 21, 2004, he stated that:
WORK STATUS: [The employee] is off work for the summer from her usual job as a teacher for the Eveleth Gilbert Junior High School. She remains disabled from being able to do her work at her second job at FingerHut, which involves static sitting. I think she is capable of doing light work activity with lifting/carrying, pushing/pulling up to 10 lb. occasionally with no repeated bending, twisting or work in awkward positions. She needs to be able to sit and stand and walk and change positions frequently as needed. She also needs to be able to lay down for 30 to 45 minutes every few hours during the day.
In August 2004, the employee consulted Dr. Scott Dulebohn for a neurosurgical evaluation. He concluded that she would benefit from continued conservative therapy and that, if the employee later considered surgery, she would need to consider a post-discogram CT for diagnostic purposes. He commented that A[w]ith surgery, she might be able to get back to a medium-type position but [her] overall prognosis [is] guarded. As long as she is doing well and she can live with her pain, there is no reason to do anything.@
The employee has continued to work as a teacher for the employer since her return to work in April 2004. Although she had worked on a full-time basis at the time of her injury, her hours were cut back to 3/4 time during the 2004 -2005 school year due to budget cuts in the school district. After that school year, however, the employee was able to return to work on a full-time basis by transferring from the junior high school to the senior high school, replacing a retiring full-time high school art instructor.
By November 23, 2004, Dr. Douglass concluded that the employee had reached maximum medical improvement, and assigned a 10% permanent partial disability rating under Minn. R. 5223.0390, subp. 3C(2), due to her low back condition. Dr. Douglass outlined the physical work restrictions he recommended for the employee, stating that,
[The employee] continues to be released to work with [a] primarily sedentary classification of work with ability to get up and move around on a frequent basis as needed. Lifting/carrying, pushing/pulling limited to 10 lb. maximum only occasionally. No climbing ladders. No repeated bending or twisting or working in awkward positions. She needs to be able to sit and stand and walk and change positions frequently as needed, probably 30 minutes tolerance for static position of sitting. No lifting from below her knees. I think her restrictions are indefinite and should be considered permanent.
Dr. Douglass also limited the employee to a maximum of seven hours of work per day, five days per week.
The employee consulted Dr. Douglass four times in 2005, reporting continued low back and bilateral leg pain. Upon his recommendation, the employee underwent additional physical therapy. On March 28, 2006, at a follow-up examination with Dr. Douglass, the employee reported Aconsiderable pain and discomfort in her lower back@ that flared up with increased activity. Dr. Douglass recommended the same physical work restrictions. According to his chart note, the employee and her QRC discussed the proposed retraining plan with Dr. Douglass; he advised that, in his opinion, the employee would be able to try attending classes in the Duluth-Superior area. He suggested that she could consider standing in the back of the classrooms or use a standing table, and could rest her back between classes by lying down in the back of her van.
On March 11, 2005, the employee was examined by Dr. Paul Cederberg at the employer=s request. Dr. Cederberg determined that as a result of her injury, the employee had a 9% permanent partial disability rating under Minn. R. 5223.0390, subp. 4D. He concluded that she would be able to perform full-time work with restrictions of no lifting over 35 pounds, standing or sitting as tolerated, but should avoid repetitive bending and twisting of her low back. Dr. Cederberg later concluded that the employee could perform her part-time job at Fingerhut within these restrictions. He advised that, in his opinion, she could avoid the static sitting at her Fingerhut job by merely standing and stretching at her desk.
The employer paid permanency benefits to the employee based on the 9% rating assigned by Dr. Cederberg. The employer had paid temporary partial disability benefits following the employee=s return to her teaching job in April 2004, but by April 6, 2005, based on Dr. Cederberg=s report, the employer filed a Notice of Intention to Discontinue Benefits (NOID). The employer contended that the employee=s work restrictions did not preclude her from working at her second job with Fingerhut, and, therefore, her ongoing wage loss was unrelated to her work injury of March 1, 2004. An administrative conference held to address the discontinuance issue, and, by order of May 13, 2005, a compensation judge determined that reasonable grounds existed for the employer to discontinue the employee=s benefits.
The employee objected to the discontinuance of temporary partial disability; her entitlement to ongoing temporary partial disability benefits was addressed at a hearing on September 9, 2005. The compensation judge found that the employee was permanently restricted from performing her job at Fingerhut as a substantial result of her work-related injury, and therefore her earning capacity had been diminished at least to the extent of her lost earnings at Fingerhut. The judge determined that the employee was entitled to temporary partial disability benefits from and after April 6, 2005. By decision served and filed May 2, 2006, this court concluded that substantial evidence supported the compensation judge=s finding and affirmed that decision. Custer v. I.S.D. No. 2154, WC05-278 (W.C.C.A. May 2, 2006).
The employee has continued to work with her QRC since March 2004. Although by November 2004 the parties apparently discussed the viability of the employee conducting a job search for work to replace the employee=s Fingerhut position, the employer and QRC did not include a job search as part of the rehabilitation plan, again due to Dr. Douglass=s restriction to work hours of a maximum of seven hours per work day, five days per week.
In December 2004, the employee filed a claim petition, requesting retraining, and in January 2005, filed a rehabilitation request for retraining. By March 2005, the employee=s QRC also developed a rehabilitation plan amendment, proposing the exploration of retraining. On March 16, 2005, an administrative conference was held to address the rehabilitation issue. At that conference, the parties agreed that the employee=s rehabilitation plan would be modified to allow the QRC to investigate a retraining program. The parties specifically agreed that a retraining program to be explored was for a Master=s Degree program in Fine Arts from the University of Wisconsin at Superior. In conjunction with that agreement, the employee underwent vocational testing and the QRC conducted a labor market survey, in order to further research the proposed retraining plan. The QRC developed a retraining plan, and on June 24, 2005, the employee filed a rehabilitation request for approval of the proposed retraining plan. The plan anticipated that the employee could complete her course work primarily during the summer months, when she was not teaching. The employer objected to that plan.
A hearing to address the retraining claim was held on April 25, 2006, before a compensation judge at the Office of Administrative Hearings. The judge issued a Findings and Order on June 16, 2006, in which he awarded the employee=s request for retraining to obtain a Master=s of Arts Degree in fine arts. He concluded that the employee had an impaired earning capacity causally related to her work injury as it relates to the second employment she held at the time of her work injury at Fingerhut Corporation. The judge accepted Dr. Douglass=s assessment of the employee=s permanent physical restrictions. He concluded that, because the employee=s restrictions precluded her from returning to that part-time position at Fingerhut, her economic status related to her Fingerhut position was not as close as possible to that which she would have enjoyed without her disability and injury, and therefore that she was entitled to proceed with the proposed retraining plan. In response to the employer=s concerns that the employee would be physically unable to complete the retraining program, the judge concluded that the employee had demonstrated her ability and interest to complete the proposed retraining, explaining as follows:
The employee=s ability to succeed has been brought into question due to her physical limitations as set forth by Dr. Douglas[s] in that substantial travel to classes is involved and that the classroom setting might not be consistent with the employee=s need to avoid static sitting and standing. While employee=s physical impairments place barriers to her completing the retraining, the Court adopts the testimony of the employee that she believes she will be able to overcome such barriers. Given the employee=s background of leaving high school in the 10th grade and years later attending Bemidji State University obtaining her degree in 5 years while parenting three children and working part-time as a cosmetologist, home health care aid, and factory sewer and upon graduation obtaining employment with the employer school district, the Court finds the employee deserves an opportunity to succeed and that the employee will obtain the necessary 30 credits for her Master of Fine Arts degree well within the seven year limitation.
(Memo., p. 7.)
The compensation judge also concluded that the employee had sustained a 10% whole body disability as a result of her low back injury, and awarded payment of benefits based on that rating. The self-insured employer appeals from the awards of retraining benefits and permanent partial disability benefits.
Claim for Retraining Benefits
The self-insured employer argues that the compensation judge erred by awarding retraining, and seeks reversal of that award. The self-insured employer does not contest the employee=s entitlement to rehabilitation assistance, but it appeals from the award of retraining benefits. The employer argues that the employee is not entitled to retraining because her pre-injury economic status has been restored by virtue of her teaching salary increases that have gone into effect since her 2004 injury. The employer argues that because the employee=s post-injury weekly wages exceed that which she earned on the date of injury, her current economic status exceeds that which she had at the time of her injury and she has sustained no loss of earning capacity. The employer also argues that, even if the employee would be deemed to be entitled to retraining benefits, the retraining plan submitted by the employee is not appropriate.
Retraining an injured worker in another occupation may be appropriate if the retraining Awill materially assist the employee in restoring his impaired capacity to earn a livelihood.@ Norby v. Arctic Enters., Inc., 305 Minn. 519, 521, 232 N.W.2d 773, 775, 28 W.C.D. 48, 50 (1975). ARetraining is to be given equal consideration with other rehabilitation services, and proposed for approval if other considered services are not likely to lead to suitable gainful employment.@ Minn. R. 5220.0750, subp. 1. Pursuant to Minn. Stat. ' 176.102, subd. 1(b),
Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability. Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.
AThe purpose of retraining is to return the employee to suitable gainful employment through a formal course of study.@ Minn. R. 5220.0750, subp. 1. ASuitable gainful employment@ is employment that is reasonably attainable and Aoffers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability.@ Minn. R. 5220.0100, subp. 34.
The employer argues that the employee sustained no loss of her earning capacity as a substantial result of her injury. From the employer=s perspective, the pertinent issue is whether the employee has the ability to match her level of earnings at the time of injury. As the compensation judge noted at Finding No. 15, the employee=s annualized earnings during the 2005-2006 school year alone exceeded her combined date of injury earnings at both the Fingerhut and art teacher position. The employer argues that the employee=s post-injury wages as a teacher are Apresumptively representative of her post-injury earning capacity,@ and that because those current wages exceed the wages she earned on the date of injury, and as a matter of law, she has not suffered a loss of earning capacity. We disagree.
A loss of earning capacity is not synonymous with a loss of actual earnings. See Jerabek v. Teleprompter Corporation, 255 N.W.2d 377, 29 W.C.D. 612 (Minn 1977), and Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C. D. 282 (Minn. 1994). Even though her earnings from teaching have steadily increased over the years, in accordance with the employer=s contract with teaching staff, the employee=s injury-related restrictions have resulted in an overall loss of earning capacity. The future opportunity the employee has lost as a result of her work injury is her employment at her previous part-time position with Fingerhut, where she earned $159.22 per week, or approximately $8,280.00 per year. Because her work restrictions preclude her from returning to work at Fingerhut, and restrict her from working beyond five days per week for more than seven hours per day, the employee no longer is able to supplement her income with that part-time employment. To replace the lost earning capacity from the Fingerhut position, the employee requested retraining for advancement in her position as an art teacher. Under the school district contract schedules, upon completion of an approved Master of Arts degree the employee would receive an increase in pay which would assist in restoring her pre-injury economic status. Under these circumstances, the compensation judge reasonably concluded that the employee is entitled to retraining benefits to restore her lost earning capacity.
The employer also argues that even if the employee is determined to be legally entitled to training, the proposed retraining plan is inappropriate under the analysis of Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989), a decision that set forth relevant considerations for determining whether a proposed retraining plan is appropriate. When retraining is proposed, relevant considerations include:
(1) the reasonableness of retraining as compared to returning to work with employer or other job placement activities, (2) the likelihood that employee has the ability and interest to succeed in a formal course of study in a school, (3) whether retraining is likely to result in reasonably attainable employment, and (4) whether retraining is likely to produce an economic status as close as possible to that which the employee would have enjoyed without disability.
In addition, an employee=s Aage, education, previous work history, interests, and skills@ are relevant in determining whether employment qualifies as suitable gainful employment. Id. Generally, the propriety of a proposed retraining plan is a fact issue for the compensation judge, and this court must affirm the compensation judge=s determination where the judge=s application of the Poole factors is supported by substantial evidence. Anderson v. Metropolitan Mech. Contractors, slip op. (W.C.C.A. Oct. 19, 1999).
Addressing the initial factor articulated in Poole, the compensation judge concluded that the employee has shown that retraining is an appropriate option to return her as closely as possible to the economic status she would have enjoyed but for her injury, because she is permanently precluded from returning to both of the jobs she held at the time of her injury and is precluded from performing any type of work which requires her to be on her feet for any periods of time. He noted that the rehabilitation plan had never required the employee to undertake a job search for additional employment to restore her impaired earning capacity, due to her permanent physical work restrictions, and that a job search was not particularly feasible in view of the employee=s work hour limitations. He concluded that even if a job search would be feasible for work during the summer months between school sessions, the Aemployee=s lost earning capacity from the second position she maintained prior to her injury in conjunction with her employment as an art teacher cannot be regained by working a couple months during the summer at whatever work she might be able to find within her substantial work restrictions.@ The judge considered the testimony of the employee=s QRC and that of the employer=s independent vocational expert, and concluded that retraining was a reasonable option compared to returning to work with employer or other job placement activities. The record as a whole adequately supports that conclusion.
In reference to the second factor outlined in the Poole decision, there is no dispute that the employee has the academic capability and interest to successfully complete the proposed retraining program, based on her educational background and testing results. The employer argues, however, that the employee lacks the physical ability to complete the proposed retraining program, specifically, that she will be unable to tolerate the approximately 95-mile one-way commute between her home and the University of Minnesota at Duluth. The employer argues that the length of the commute alone exceeds the physical limitations imposed by Dr. Douglass, and that the employee=s course work will require long periods of sitting, which the employee testified she cannot do.
The employer also argues that the employee=s treating physician never formally reviewed the retraining plan to see if it would be physically suitable. Dr. Douglass, however, evidently discussed the proposed retraining program with the employee and her QRC, and commented on the employee=s physical capacity to pursue studies in the Duluth/Superior area. He and suggested practical accommodations such as taking breaks, standing while in the classroom as opposed to sitting, and taking classes during the summer months when the employee was not teaching at the high school. The compensation judge recognized these potential physical barriers, and concluded that the Aphysical demands on the employee=s low back condition in traveling from her residence to the Duluth-Superior area and attending classes are troubling.@ The compensation judge, however, found the employee and Dr. Douglass to be credible in their beliefs that the employee would be able to complete the program and the related travel necessary to commute to school, especially because she could complete the program over a seven-year period of time. Substantial evidence in the record supports the compensation judge=s finding that the employee has the ability, from both an academic and physical standpoint, to succeed in the retraining program.
Each retraining case is analyzed on its own facts to determine the plan that will most realistically result in a return to suitable gainful employment, a third factor listed in Poole. See Anderson v. Ford Motor Co., 46 W.C.D. 24, 30 (W.C.C.A. 1991); Stone v. General Office Prods., slip op. (W.C.C.A. Aug. 13, 1998); McCann v. Sysco/Continental, slip op. (W.C.C.A. Dec. 2, 1993); Kostreba v. Stay Clean Janitorial, slip op. (W.C.C.A. July 31, 1990). The labor market survey, the QRC=s testimony and testimony presented by the employer=s superintendent provided information to the compensation judge on the employee=s future salary potential. The compensation judge could reasonably conclude that the employee could realistically anticipate an increased salary upon completion of her degree.
The compensation judge also addressed the issue of whether the proposed retraining plan was likely to produce an economic status as close as possible to that which the employee would have enjoyed without disability, the fourth consideration set out in the Poole decision. As noted above, the record contains testimony from the QRC, the independent vocational expert and the superintendent of the employer=s school district concerning the proposed degree program and the employer=s salary schedule for teachers with various levels of experience and education. Testimony from all these witnesses reflected the increased salary payable to the employee if she attains her master=s degree in fine arts. The judge concluded that the increased earnings resulting from the employee=s advanced education would provide the employee with an economic status as close as possible to that which she would have enjoyed but for the work injury, a conclusion that is amply supported by the evidence in the record.
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. 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. In view of the substantial evidence in the record that supports the compensation judge=s award of the retraining program, including the employee=s testimony, expert vocational opinions, rehabilitation records and medical records, we affirm the compensation judge=s approval of the proposed retraining plan. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
Claim for Permanent Partial Disability Benefits
The self-insured employer appeals from the compensation judge=s award of additional permanency benefits beyond those it earlier paid to the employee. Based on Dr. Cederberg=s assessment in March 2005, the employer earlier paid the employee benefits based on a rating of 9% permanent partial disability to the whole body. At the hearing, the employee claimed entitlement to payment of benefits based on a 10% rating, as assigned by her treating physician, Dr. Douglass, in November 2004. Whereas Dr. Cederberg assigned a 9% rating listed under the portion of the rules that refers to Aradicular syndromes,@ Dr. Douglass assigned a 10% rating under Minn. R. 5223.0390, subp. 3C(2), a section of the rules that refers to Alumbar pain syndrome.@
The compensation judge found that the employee had sustained 10% permanent partial disability of the whole body as a result of her work injury, relying on the rating assigned by Dr. Douglass and rejecting Dr. Cederberg=s opinion that the employee had sustained 9% permanent partial disability of the whole body. The judge concluded that the rating assigned by Dr. Douglass was consistent with the employee=s medical condition, her findings on examination and her MRI scan. The self-insured employer contends the compensation judge's award of permanent partial disability benefits is not supported by substantial evidence. We disagree.
To be entitled to permanent partial disability under the permanency schedule, the employee must prove each element of the assigned rating. Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott-Host Int'l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)). Dr. Douglass opined the employee met the criteria necessary for a 10 percent permanent partial disability rating for the lumbar spine. Dr. Douglass=s recorded examination findings, as well as her findings on x-ray and MRI scan, document the employee=s persistent lower back pain; lumbar spasm; radicular leg pain and numbness in her toes bilaterally; reduced range of motion; limited forward flexion; and loss of normal lumber lordosis. These findings are sufficient to meet the criteria of the permanent partial disability schedules, and the compensation judge could reasonably find the employee met the criteria for the assigned permanent partial disability ratings.
On appeal, the employer argues that, on both issues - - retraining and permanent partial disability benefits - - the records in evidence support a contrary result than the conclusions reached by the compensation judge. The question for this court is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge. It is the role of this court to 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. 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). In this case, substantial evidence, including medical records, rehabilitation records and witness testimony, supports the compensation judge=s findings that as a substantial result of the employee=s March 2004 injury, she is restricted from returning to the part-time position she held at Fingerhut at the time of her injury, that she has sustained a loss of her earning capacity and therefore is entitled to retraining benefits, and that her injury resulted in a 10% permanent partial disability of the whole body. We therefore affirm the compensation judge=s findings and order in their entirety.
 The employer calculated that the employee earned a combined weekly wage on the date of injury of $1,219.12, based on $1,059.90 per week from the employer school district and $159.22 per week from Fingerhut.
 That agreement was memorialized by the commissioner=s representative who presided at the conference, in an order on agreement issued pursuant to Minn. Stat. ' 176.106, filed March 16, 2006.
 The employer earlier paid benefits based on a 9% permanency rating.
 In the findings and order, the compensation judge stated that the employee=s teaching salary during the 2005-2006 school year was scheduled to be $42,298.00 and for the 2006-2007 year she was scheduled to receive $46,055.00. These figures were reported by the employer=s superintendent of schools during his hearing testimony, although the superintendent also testified about pending ratification of the teachers= collective bargaining agreement which would result in salary increases. Even absent those pending increases, the employee=s teaching salary during the 2005-2006 school year alone exceeded her combined earnings at the time of her injury.
 For example, under the contract schedule in effect during the 2006-2007 school year, the employee=s salary would have been increased to $52,160.00, if by then she had obtained an approved Master of Arts degree.
 Dr. Cederberg assigned a rating of 9% permanent partial disability of the whole body, under Minn. R. 5223.0390, subp. 4D, which provides, in part, as follows:
5223.0390. Musculoskeletal Schedule; Lumbar Spine
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Subp. 4. Radicular syndromes.
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D. Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the lower extremity, 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, nine percent . . . .
 Minn. R. 5223.0390, subp. 3C(2), provides, in part, as follows:
5223.0390. Musculoskeletal Schedule; Lumbar Spine
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Subp. 3. Lumbar pain syndrome.
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C. Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part;
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(2) multiple vertebral levels, ten percent.