SCOTT G. MATYKIEWICZ, Employee, v. DENNY HECKER’S ROSEDALE DODGE and FARM BUREAU MUT. INS. CO., Employer-Insurer/Appellants, and GENERAL TIRE CO. and LIBERTY MUT. INS. CO., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 18, 2010
APPORTIONMENT - PERMANENT PARTIAL DISABILITY. Where the employee’s condition met all the requirements for a 22% whole body rating prior to the employee’s 2003 work injury, and where the employee’s preexisting disability was clearly evidenced in medical records made prior to that injury, the compensation judge erred in awarding the employee permanent partial disability benefits based on the difference between the employee’s current 22% whole body impairment and a rating of 20% of the back assigned prior to the 2003 injury. Under the circumstances of this case, there was no causal connection between the employee’s 22% whole body impairment and the 2003 work injury.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Respondent Employee. Thomas L. Cummings, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Appellants. Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent Employer and Insurer.
DEBRA A. WILSON, Judge
Denny Hecker’s Rosedale Dodge and its insurer appeal from the compensation judge’s decision as to the extent of the employee’s preexisting permanent partial disability, arguing that the judge failed to follow this court’s instructions on remand and that the judge’s decision is also unsupported by the record. We reverse.
For purposes of this appeal, the relevant facts may be briefly stated. The employee sustained work-related low back injuries in 1977 and 1978, leading to extensive diagnostic testing and treatment, including L4-5 laminectomies in 1979 and 1982. In 1991, he sustained another low back injury, with a different employer. Claims for these injuries were the subject of various proceedings and settlement agreements, and all claims for these injuries, except claims for medical expenses, were ultimately settled. At some point the employee was apparently paid benefits, due to the first two injuries, for a 20% permanent partial disability of the back.
On September 17, 2003, the employee sustained yet another work-related injury to his low back, this time while employed by Denny’s Hecker’s Rosedale Dodge [the employer]. The matter came on for hearing before Compensation Judge Cheryl LeClair-Sommer in November of 2008 for resolution of various issues. In her January 5, 2009, decision, the compensation judge concluded, in part, that the employee’s September 17, 2003, injury had permanently aggravated the employee’s preexisting condition. On appeal, this court affirmed the judge’s decision to this effect.
The compensation judge also concluded that the employee had a 22% whole body impairment related to his low back condition, under the current permanent partial disability schedules, and that the employer and insurer were liable for the difference between that rating and the 20% rating of the back assigned to the employee’s condition after his first two work injuries. As to this issue, we reversed and remanded the matter to the judge for reconsideration. In her decision on remand, the judge employed much the same analysis and reached essentially the same conclusion. The employer and insurer appeal.
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 (2008). 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 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).
For purposes of our analysis here, it is undisputed that the employee’s current low back condition merits a 22% whole body rating pursuant to Minn. R. 5223.0390, subp. 4.D., 4.D.(2), 4.D.(3), and 4.D.(4), which provide as follows:
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 with the addition of as many of subitems (1) to (4) as apply, but each may be used only once:
(1) if chronic radicular pain or radicular paresthesia persist despite treatment, add three percent;
(2) if a surgery other than a fusion performed as part of the treatment, add two percent, if surgery included a fusion, the rating is as provided in subpart 5;
(3) for additional surgery, other than a fusion, regardless of the number of additional surgeries, add two percent, if the additional surgery included a fusion, the rating is as provided in subpart 5;
(4) additional concurrent lesion on contralateral side at the same level or on either side at other level, which meets all of the criteria of this item or item E, add nine percent.
In her first decision on apportionment pursuant to Minn. Stat. § 176.101, subd. 4a, the compensation judge took the 20% of the back rating previously assigned to the employee’s condition following his first two work injuries and converted it to a whole body rating using the table contained in Minn. R. 5223.0315, arriving at a 14.2% whole body rating. The judge then concluded that the employer and insurer were liable for the difference between that 14.2% rating and the employee’s current 22% rating. On appeal, this court reversed the judge’s decision and remanded the matter for reconsideration, explaining as follows:
We conclude that the matter must be remanded for reconsideration and further findings. Rosedale Dodge and its insurer specifically argued, at hearing below, that the employee’s level of permanent partial disability is no greater now than it was prior to the 2003 injury, and they offered medical records, including scan and surgical reports, sufficient to allow the judge to make that determination. It appears, however, that the judge neglected to consider their argument in this regard, instead simply using the prior 20% rating as if the fact of the prior rating by itself established the extent of the employee’s preexisting impairment. The issue, however, is not what rating may have been assigned to the employee’s preexisting condition prior to the 2003 injury, or even the rating for which the employee received payment. In fact, the rating applicable to the employee’s 1977 and 1978 injuries is not necessarily determinative. Rather, the issue is the actual extent of the employee’s permanent impairment - - from whatever source - - prior to the injury for which apportionment is at issue. See Settlemire v. Innsbruck Health Care Ctr., No. WC08-244 (W.C.C.A. May 18, 2009).
Slip op. at 9 (emphasis in original) (footnote omitted). We further clarified the question for consideration on remand as follows:
If, as Rosedale Dodge and its insurer allege, the employee’s preexisting condition would warrant a 22% whole body rating under the rules, no permanent partial disability benefits are payable. In this regard, the issue may fairly be characterized as one of causation, as much as apportionment. The compensation judge may in her discretion allow the parties to submit additional arguments on this issue.
Slip op. at 10 (emphasis added) (footnote omitted).
At the hearing on remand, the parties offered conflicting arguments as to what we intended by our decision. No additional evidence was offered.
The compensation judge issued her decision on remand on April 19, 2010. In that decision, the judge concluded that the rating previously assigned to the employee’s preexisting condition - - 20% of the back - - most accurately represented the level of the employee’s preexisting impairment. In her memorandum, the judge explained that she found it inappropriate to rate the employee’s preexisting condition using a whole body rating under the current schedules, in part because the current schedules allow ratings based solely on surgical procedures. This, according to the judge, would, “in some circumstances, contravene the requirement that the prior disability must cause impairment” and “must be clearly evidenced in a medical report or record ‘made prior to the current personal injury.’”
We can only conclude that the compensation judge misunderstood the point of our prior decision. Again, the question comes down to causation. If all of the elements now warranting a 22% whole body rating were also present prior to the employee’s 2003 work injury, the 2003 work injury cannot be said to have contributed to the claimed permanent partial disability. And this is true whether or not the 2003 work injury triggered additional subjective symptoms and increased restrictions, because, while these factors may be relevant to responsibility for wage loss and treatment, they do not by themselves provide grounds for permanent partial disability benefits. Rather, permanent partial disability awards are to be based on the permanent partial disability schedules. In other words, not all permanent aggravations result in additional ratable permanent partial disability. Furthermore, as we noted before, portions of the employee’s current 22% rating are due exclusively to surgical procedures performed in 1979 and 1982. We fail to see how the employer and insurer can be held responsible for any part of the ratable permanent impairment resulting solely from procedures performed more than two decades before the employee’s 2003 work injury. Application of the compensation judge’s analysis would risk that result.
We previously remanded the matter to the compensation judge because, in general, the extent of permanent partial disability is a question of fact. See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). At oral argument, the employee asked this court to remand the matter yet again in the event we were to reverse the judge’s most recent decision. However, the employee also conceded that his condition met all of the requirements for a 22% whole body rating prior to the 2003 work injury. And it is clear that the employee was in fact “disabled” by his preexisting condition within the meaning of Minn. Stat. § 176.101, subd. 4a, and Beck v. Dick & Jane’s Price Rebel, 40 W.C.D. 254 ( W.C.C.A. 1987). Because the employee’s ratable impairment has not changed, the entire 22% whole body impairment is “attributable only to the preexisting impairment,” within the meaning of Minn. Stat. § 176.104, subd. 4a. Therefore, in accordance with our prior decision, because “the employee’s preexisting condition would warrant a 22% whole body rating under the rules, no permanent partial disability benefits are payable.” Causation has not been established and, given our prior instructions, the compensation judge was not free to conclude otherwise. See Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 39 W.C.D. 880 (Minn. 1987). The judge’s decision is reversed.
 Further information about this case may be found in our prior decision, Matykiewicz v. General Tire Co., No. WC09-108 (W.C.C.A. July 21, 2009).
 The judge did, however, correct an arithmetic error pointed out by this court in our earlier decision.
 Minn. Stat. § 176.101, subd. 4a, provides:
Preexisting condition or disability; apportionment. (a) If a personal injury results in a disability which is attributable in part to a preexisting disability that arises from a congenital condition or is the result of a traumatic injury or incident, whether or not compensable under this chapter, the compensation payable for the permanent partial disability pursuant to this section shall be reduced by the proportion of the disability which is attributable only to the preexisting disability. An apportionment of a permanent partial disability under this subdivision shall be made only if the preexisting disability is clearly evidenced in a medical report or record made prior to the current personal injury. Evidence of a copy of the medical report or record upon which apportionment is based shall be made available to the employee by the employer at the time compensation for the permanent partial disability is begun.
 But see Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1991).
 There is virtually no evidence to the contrary. Evidence on this issue includes preexisting scan and surgical reports, other medical records, and the deposition testimony of Dr. Paul Wicklund, who went through the pertinent rating categories element by element. We would also note here that Dr. Robert Wengler apparently based his apportionment opinion on the assumption that the employee’s previous 20% of the back rating was an established fact. Dr. Wengler was not asked to independently rate the employee’s preexisting impairment, either under pre-1984 law or the current rules.
 In fact, the employee’s restrictions increased only slightly following the 2003 injury. His preexisting restrictions included limits on lifting, bending, twisting, and prolonged bending or standing.