KATHLEEN M. PECHACEK, Employee, v. HEALTHEAST/ST. JOHN’S HOSP., SELF-INSURED/SPECIALTY RISK SERVS., INC., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 25, 2011
PRACTICE & PROCEDURE - REOPENING RECORD. Where the judge had found the employee to be permanently and totally disabled and the record had closed in the matter on November 5, 2010, where the judge had declined to reopen the record upon the employer’s subsequent showing that the employee had returned to work on November 29, 2010, and where the employer had requested that its brief on appeal also be considered a petition to vacate the judge’s findings and order, the judge did not err in declining to reopen the record, and the WCCA declined to consider the brief a petition to vacate, noting that a petition to vacate requires a formal application and that the employer was not required to pay permanent total disability benefits while the employee was working.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the judge accepted the testimony of the employee and her QRC that the employee had fully cooperated with her rehabilitation plan and had conducted a diligent job search for sixteen months, and where the judge had noted that the nurse employee was sixty years old and was competing for jobs against much younger candidates with better nursing credentials in a very difficult job market, the compensation judge’s conclusion that the employee was unlikely to find work for an indefinite period of time, and so had demonstrated permanent total disability, was not clearly erroneous and unsupported by substantial evidence.
PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; PERMANENT PARTIAL DISABILITY - KNEE; RULES CONSTRUED - MINN. R. 5223.0510. A compensation judge is responsible for determining under which category of the rules an employee’s disability falls, based on all relevant evidence; and, where expert medical interpretation of the rule pertaining to total knee arthroplasty was conflicting, the compensation judge’s adoption of a rating based on the opinion of the treating physician was supported by substantial evidence and a proper application of the permanent partial disability schedules.
Determined by: Pederson, J., Stofferahn, J., and Johnson, J.
Compensation Judge: Penny Johnson
Attorneys: Jerry W. Sisk, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent. Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, Minneapolis, MN, for the Appellant.
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge’s determination of permanent partial disability for the employee’s total knee arthroplasty and from her finding that the employee is permanently and totally disabled. We affirm.
Kathleen Pechacek, the employee, sustained an admitted injury to her right knee on or about December 2, 2002, while working as a registered nurse for the employer, St. John’s Hospital. The employer is part of the HealthEast Care System and was self-insured against workers’ compensation liability at the time of the injury. The employee was fifty-two years old at the time and was earning a weekly wage of $1,103.65.
Shortly following her injury, the employee came under the care of orthopedic surgeon Dr. Jack Drogt. On January 23, 2003, Dr. Drogt performed an arthroscopic partial medial meniscectomy on the employee’s right knee. The surgery was followed by a course of physical therapy, and the employee returned to her full work duties as an operating room nurse within a couple of months. By June, however, the employee had experienced an acute onset of discomfort, and she returned to Dr. Drogt’s office for evaluation. At that visit, Dr. Drogt administered the first of what would be many corticosteroid injections over the course of the next five years. On July 29, 2003, Dr. Drogt opined that the employee had reached maximum medical improvement [MMI] from her work injury and was entitled to a 3% whole body impairment rating under Minn. R. 5223.0510, subp. 3.B.(2). He noted also that the employee had been experiencing episodic discomfort in her knee and that she might continue to require injections in the future.
On October 13, 2003, the employee returned to Dr. Drogt regarding a nonwork-related injury to her left knee. An MRI scan revealed a tear of the posterior horn of the medial meniscus with mild osteoarthritis, and the employee underwent arthroscopic surgery for this condition on November 6, 2003.
Over the next several years, the employee maintained her job as an operating room nurse despite ongoing knee symptoms. On December 4, 2006, Dr. Drogt noted that she was being seen “for a traumatic onset of gradually increasing severe knee pain, right worse than left.” Her right knee x-rays now showed “bone-on-bone wear,” and Dr. Drogt administered another steroid injection. Later that month, he tried a series of Synvisc injections, which proved to be only moderately helpful. By May 2007, Dr. Drogt had restricted the employee to a three-day work schedule and had referred her for measurement for a custom knee brace, noting that she would more than likely require a joint replacement.
The employee’s symptoms improved over the next several months, and she was able to resume her normal work schedule. However, by December 2007 she was again reporting diminished endurance at work due to her knee pain, and Dr. Drogt reinstated her three-days-per-week schedule. The employee evidently remained on that schedule until resigning from her job with the employer in July 2008.
On July 24, 2008, the employee began working for Associated Eye Care, an eye surgery center in Stillwater. This job was also a three-days-per-week position, but it did not require any weekend or holiday hours. The employee described her duties as much lighter than those of an operating room nurse. Despite this lighter duty, the employee’s knee pain continued, and eventually, on February 17, 2009, she elected to undergo the predicted right total knee arthroplasty.
Following her arthroplasty, the employee commenced a program of physical therapy on March 3, 2009. Two weeks later she required irrigation and debridement of a superficial stitch abscess, but thereafter her physical therapy proceeded smoothly until its completion about three months later. The employer accepted liability for the employee’s surgery and began paying temporary total disability benefits. At about this same time, the employee learned that Associated Eye Care was reducing its staff and that she would not be able to return to her job. She was therefore referred to qualified rehabilitation consultant [QRC] Rebecca Cummins for a rehabilitation consultation.
QRC Cummins completed the rehabilitation consultation on March 24, 2009, and found the employee eligible for statutory rehabilitation services. Over the next couple of months, the QRC performed medical management services and some vocational rehabilitation services in anticipation of the employee’s release to work. On June 18, 2009, Dr. Drogt released the employee to sedentary duty, and the QRC obtained authorization from the employer to start placement services. A referral was made to job placement specialist Deborah Kersten, who initiated job placement services on July 7, 2009. Two months later, Dr. Drogt restricted the employee’s lifting to twenty pounds and QRC Cummins determined that a return to traditional patient-care nursing was unlikely for the employee. On that conclusion, she arranged for the employee to obtain some computer-related skills enhancement, and the employee successfully completed three computer courses.
On October 10, 2009, Dr. Drogt completed a Health Care Provider Report, in which he reported that the employee had reached MMI having sustained a 15% whole body impairment related to her total knee arthroplasty - - 8% under Minn. R. 5223.0510, subp. 3.C.(2), and an additional 7% under Minn. R. 5223.0510, subp. 3.C.(3). At an office visit two days later, the employee told Dr. Drogt that she felt comfortable and was relieved of her preoperative pain. Dr. Drogt then released her with permanent light-duty restrictions, including a twenty-pound lift/carry limit, with no stooping, squatting, or kneeling. The employer served the employee with Dr. Drogt’s MMI opinion by letter dated December 4, 2009.
On January 20, 2010, the employee filed a claim petition for permanent total disability benefits continuing from February 17, 2009, and compensation for a 15% whole body impairment, less 3% previously paid by the employer. The employer denied liability for the benefits claimed and, on March 3, 2010, discontinued temporary total disability benefits on grounds that it had been ninety days since service of Dr. Drogt’s MMI report. Meanwhile, the employee continued to search for work with the assistance of her QRC and job placement specialist, but she was unable to secure any job offers.
On October 29, 2010, QRC Cummins testified by deposition that she and placement specialist Deborah Kersten had assisted the employee in searching for work for over fifteen months. She testified that the employee had fully cooperated with her rehabilitation plan and had conducted a diligent job search. She testified that the employee had done a substantial independent job search, had followed up on every lead provided by Ms. Kersten, had never missed a meeting, and was diligent in submitting her job search logs. Given the difficult economic times that the employee encountered, the QRC had no concerns about the employee’s efforts.
Considering the employee’s physical disability, in combination with her age, education, training, and experience, Ms. Cummins was of the opinion that the employee was permanently and totally disabled. Nor did she anticipate any change in the employee’s employability in the foreseeable future. In her opinion, even in this difficult job market, had the employee been employable she would have found a job. Finally, Ms. Cummins opined that the employee’s work-related injury on December 2, 2002, was a substantial contributing factor in her overall disability.
Also testifying by deposition was vocational expert Jan Lowe, who had conducted a vocational assessment on behalf of the employer on June 2, 2010. Ms. Lowe had interviewed the employee, administered vocational testing, reviewed the employee’s rehabilitation and medical records, and conducted a labor market survey. In her opinion, the employee’s fifteen-month job search had not been sufficiently diligent in terms of the quantity of her contacts, particularly in the very tight labor market that existed during that time. Ms. Lowe testified that the job market for registered nurses had significantly eroded during 2009 and had only recently begun to show recovery. She did not believe that fifteen months was sufficient time to conclude that the employee was unemployable with her background and physical capacities. Ms. Lowe opined that work exists which the employee can do and that she is not permanently and totally disabled.
Dr. Paul Dworak, an orthopedist specializing in adult hip and knee reconstructive surgery, examined the employee and testified by deposition at the request of the employer. Dr. Dworak had examined the employee on October 5, 2007, July 11, 2008, and April 16, 2010, and had issued reports to the employer covering those exams. At the time of his last exam, the employee reported to him that she had undergone a very successful total knee replacement and had very little residual pain. Dr. Dworak believed that she was fully capable of working forty hours per week, provided that she refrain from activities that require repetitive kneeling, squatting, or stair climbing. He testified that, by “repetitive,” he meant less than ten percent of a work day. He did not believe that she required any lifting restrictions. On the issue of the employee’s permanent partial disability, Dr. Dworak assigned an 8% rating under Minn. R. 5223.0510, subp. 3.C.(2), for a total condylar arthroplasty. He explained that he interpreted the guidelines to provide for three types of knee replacement--a unicompartmental knee replacement, in which primarily the medial compartment is replaced, a total condylar knee replacement, in which all three compartments of the knee are replaced, and a patella replacement, in which only the patellofemoral compartment is replaced. Dr. Dworak testified that, because all total condylar arthroplastys include a patella replacement as part of standard orthopedic practice, the total condylar category most closely represents the employee’s condition under the rules.
Dr. Jack Drogt, the employee’s treating surgeon, also testified by deposition. He reiterated his recommended restrictions of no lifting over twenty pounds and no stooping, squatting, or kneeling. Dr. Drogt explained that this is the advice he gives all his patients who undergo joint replacement. And, because the more active a patient is the faster the joint wears out, he advises his patients to temper their activity to decrease the chance of requiring a second operation. Dr. Drogt testified also that he interpreted the permanency schedules to provide a 15% impairment rating for the employee’s total knee arthroplasty. In his opinion, total condylar arthroplasty referred to replacement of two of the three compartments of the knee, the medial compartment and the lateral compartment. He assigned an 8% rating for replacing those compartments, but, because he also replaced the patella, Dr. Drogt assigned an additional 7% for that third compartment. Contrasting the current permanency schedules with those that existed before July 1, 1993, Dr. Drogt noted that the old schedules referred to “total knee arthroplasty” while the current schedules break the surgery down to unicondylar, total condylar, and patella replacement. The old schedule, Minn. R. 5223.0170, subp. 5.B.(17), assigns a 13% rating for “total knee arthroplasty, flexion to 90 degrees, extension to 0 degrees.” Dr. Drogt concluded that “total condylar plus the patella replacement equals total knee arthroplasty in the old rating.”
The employee’s claims for benefits came on for hearing before a compensation judge on November 5, 2010. Evidence introduced at hearing included the employee’s medical and rehabilitation records, testimony from the employee, and the deposition testimony of the expert witnesses. The employee testified that, given her work restrictions, she does not believe she could work either as a floor nurse or as an operating room nurse. She testified that, after being assigned a QRC and a placement specialist, she kept in regular contact with her rehabilitation providers and followed their suggestions, in addition to taking initiative to develop her own contacts and job possibilities. She testified that, during her job search, she contacted the state Workforce Center, utilized newspapers and the internet, and engaged in networking with her nurse colleagues. She said that she followed up on job leads that were within her physical capabilities and skills and that her rehabilitation providers never indicated that she was not making a good faith effort to participate in her rehabilitation plan or a diligent search for work. The employee acknowledged that her job search initially was more selective with regard to the types of work she was applying for and was focused mostly on part-time work in the northeast suburbs of the Twin Cities. But she testified also that, as her capabilities increased, her work search came to include full-time jobs as well. At the time of trial, some sixteen months after starting her job search, the employee had received no job offers.
In a findings and order issued November 24, 2010, the compensation judge found that the employee’s job search had been diligent and of sufficient scope and duration to establish that she was likely to be disabled for an indefinite period of time. She concluded that the employee had been permanently and totally disabled since February 17, 2009. The judge also determined that the employee was entitled to compensation for a 14.44% permanent partial disability related to her total knee arthroplasty, by combining the ratings for a total condylar arthroplasty and a patella replacement arthroplasty.
On December 9, 2010, the employer filed with the compensation judge a motion to reconsider the findings and order. The employer asserted that, after the record had been closed on November 5, 2010, the employee had obtained a full-time job at the University of Minnesota, demonstrating that she, in fact, was not permanently and totally disabled. The judge declined to reopen the record, and the employer has appealed the findings and order.
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 (2010). 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).
1. Post-Hearing Exhibit
The record in this matter closed at the conclusion of the hearing on November 5, 2010. The employer attached as an exhibit to its appellate brief a copy of a motion, affidavit, and rehabilitation progress report that it had submitted to the compensation judge on December 9, 2010. In its motion to the judge, the employer requested that the judge reconsider her findings and order on the issue of permanent total disability, in view of the employee’s evident return to work on November 29, 2010. The judge declined to reopen the record and the employer now asks this court to consider the post-hearing evidence that the judge declined to receive. The employer argues that, in the interest of justice, this court should consider this newly acquired evidence. We decline to do so.
This court’s review on appeal from the findings and order of a compensation judge is limited to evidence submitted at the hearing. See Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986). In very limited circumstances, the interest of justice may require that this court remand an issue to the compensation judge for reconsideration. Horan v. Blake Constr., 453 N.W.2d 52, 42 W.C.D. 791 (Minn. 1990). Here, however, where the judge decided the issues based on the record before her, the judge was not required to accept post-hearing evidence that essentially would lead to a new trial on an issue already litigated, and we will not order her to do so. The parties are entitled to some finality to their litigation.
The employer also requests that we consider its brief on appeal as a petition to vacate the judge’s findings and order under Minn. Stat. § 176.461. We decline to do so. Minn. R. 9800.1100 requires a formal application, together with appropriate documentation, to set aside an award. Here, neither party briefed or argued this case under Minn. Stat. § 176.461. We decline to consider the employer’s request as a petition to vacate the award. If, as the employer alleges, the employee has returned to work, the employer is not required to pay permanent total disability benefits at the same time.
2. Permanent Total Disability
An employee is totally disabled “if his 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 insubstantial income.” Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). Total disability is permanent if it is likely to exist “for an indefinite period.” Cavanaugh v. Frederick Willys, Inc., 361 N.W.2d 49, 50, 37 W.C.D. 383, 384 (Minn. 1985). Total disability “is primarily dependent upon the employee’s ability to find and hold a job, not his physical condition.” Schulte, 278 Minn. at 83, 153 N.W.2d at 134, 24 W.C.D. at 295. Having made findings earlier as to the employee’s physical restrictions, her age, education, and basic employment history, the compensation judge concluded at finding 18 as follows:
The employee’s job search was diligent and of sufficient scope and duration to establish she is likely to be disabled for an indefinite period of time. While it is certainly possible the job market will continue to improve so that eventually she would be able to find a job, it is more likely she will continue not to be hired because of her physical limitations and the availability of younger and more qualified applicants. Experts are hopeful that the current slight increase in job openings will continue to increase, but the prediction is far from certain and the availability of nursing jobs is only one factor affecting the employee’s employability. The employee is permanently and totally disabled. Her physical limitations caused by the work injury in combination with her age, training, and experience and the apparent unavailability of suitable work in her community results in her permanent and total disability.
The employer contends that this conclusion is unsupported by substantial evidence, in that (1) the mere fact that the employee has been unsuccessful in her job search does not mean that the employee is permanently and totally disabled, (2) the employee’s job search was self-limited to only part-time work, (3) the vocational experts agree that the employee’s job search was taking place during a recession, when competition for jobs was fierce, (4) there is no evidence that the employee’s knee replacement compromised her ability to compete in the job market for available employment, (5) job searches in a recessionary market, particularly where the scope of the job search has been limited, take longer than fifteen months, and (6) neither the vocational nor the medical experts have testified that the employee is incapable of working because of her injury or restrictions. We are not persuaded.
Although it has both a medical and a vocational component, cf. McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983), the question of whether an employee has met the burden of proving permanent total disability is ultimately a question of fact for the compensation judge. See Atkinson v. Goodhue County Co-op Elec. Ass’n, 55 W.C.D. 150, 160 (W.C.C.A. 1996), citing McClish, 336 N.W.2d at 541, 36 W.C.D. at 138. We acknowledge that there is evidence of record which, if accepted by the compensation judge, would support a result different from that reached by the judge. The issue before this court, however, is not whether a different conclusion could be reached. Rather, the issue on appeal is whether the factual findings are “clearly erroneous and unsupported by substantial evidence in view of the entire records as submitted.” Minn. Stat. § 176.421, subd. 1.
The compensation judge accepted the testimony of the employee and QRC Cummins that the employee fully cooperated with her rehabilitation plan and conducted a diligent job search throughout the period in question. The judge found Dr. Drogt’s permanent activity restrictions to be reasonable, and she concluded that the employee was capable of performing the lighter aspects of nursing duties. However, while acknowledging that the employee had excellent transferrable skills and presented herself well, the judge noted also that the employee is sixty years old, competing for jobs against younger candidates and candidates with four-year nursing degrees. The judge concluded that a sixteen-month period of job search was sufficient to establish that the employee was likely to be disabled for an indefinite period of time. In her memorandum the judge stated, “Predictions concerning the future job market are simply predictions, not the current reality . . . The employee need not show that future employment is impossible. She needs to show her total disability is likely to persist for an indefinite period of time.” Considering the record as a whole, including the medical records, the expert medical testimony, the employee’s testimony, and the expert vocational testimony, we cannot say that the evidence was insufficient, as a matter of law, to establish permanent total disability. Because the judge’s conclusion was not unreasonable, we must affirm it. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Permanent Partial Disability
The permanent partial disability rules at issue in this case are contained in Minnesota Rules 5223.0510, which reads in part as follows:
5223.0510 Musculoskeletal Schedule; Knee and Lower Leg.
Subpart 1. General. For permanent partial impairment to the knee and lower leg, disability of the whole body is as provided in subparts 2 to 4. The percent of whole body disability under this part may not exceed the percent of whole body disability for amputation of the leg at the knee under part 5223.0550. Each mutually exclusive impairing condition must be rated separately and the ratings must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is represented by a category designated as exclusive under subpart 2, it must be rated by that category only and that rating may not be combined with a rating under any other category of this part for that impairing condition.
If an impairing condition is represented by a category designated as combinable under subpart 3, it must be rated under that category and under the appropriate categories describing loss of function under subpart 4. The ratings obtained must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is not represented by a category designated either exclusive or combinable, it must be rated only under the appropriate categories describing loss of function under subpart 4.
* * *
Subp. 3. Combinable categories.
(1) unicondylar, seven percent;
(2) total condylar, eight percent;
(3) patella replacement, seven percent.
The employee claimed to have sustained a permanent partial disability of 15% of the whole body, reduced to 14.44% under the combining formula, relying on the opinion of Dr. Drogt. Dr. Drogt opined that it was necessary to select more than one category under the permanency rules to appropriately compensate the employee for her total knee arthroplasty. In his view, Minn. R. 5223.0510, subp. 3.C., the category for “arthroplasty,” which he defined as the replacement of all three compartments of the knee, did not provide a subcategory describing a total knee replacement. Therefore, in his opinion, it was necessary to combine the 8% rating assigned to the replacement of the medial and lateral condyles, with the 7% rating assigned to a patella replacement, the third compartment of the knee. Dr. Paul Dworak, the employer’s IME, disagreed. Dr. Dworak testified that a patella replacement is standard procedure during a total condylar arthroplasty and is included in the 8% rating provided by the schedules.
The compensation judge adopted the view of Dr. Drogt. At finding 20, the judge stated, in part, “The two ratings under subpart 3 of Minn. R. part 5223.0510 may be combined. The patella replacement rating is not a lesser included category of a total condylar replacement. These are distinct procedures that can be performed separately or together and represent distinct impairments.” The employer argues that the compensation judge has misapplied the permanency rules and, consequently, has overcompensated the employee for her disability. To accept Dr. Drogt’s theory, it contends, “the employee gets a rating for a total arthroplasty (which, in the U.S. includes a patella replacement) and another percentage rating for patella replacement within the same category and subpart.” This, the employer argues, is contrary to the plain reading of Minn. R. 5223.0510, subpart 1. That rule, it contends, allows categories found within subpart 3 of the rule to be combined with categories describing loss of function under subpart 4 but does not allow for a combination of ratings within subpart 3 itself. Dr. Drogt’s assertion, it contends, that ratings within the lettered category of Minn. R. 5223.0510, subp.3.C. - - specifically numbers (2) and (3) - - may be combined, is an improper interpretation and application of the rule. We are not persuaded.
We note first that a compensation judge is responsible for determining under which category an employee’s disability falls, based on all relevant evidence, including objective medical findings. Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992). The judge in this case rejected the employer and Dr. Dworak’s argument that a total condylar arthroplasty, under the rules, is equivalent to a total knee arthroplasty. Instead, she accepted Dr. Drogt’s explanation that there are three possible components of a knee replacement. According to Dr. Drogt, the total condylar replacement rating only covers two portions of the knee - - the medial and lateral compartments. By adding the patella replacement rating, he explains, all three compartments of the employee’s surgery are addressed.
In Ransom v. Ford Motor Co., slip op. (W.C.C.A. Apr. 21, 1999), this court allowed ratings under subpart 3 of section 5223.0510 to be combined where doing so does not represent double compensation. We stated there,
While it may not expressly provide authority for combining with each other the ratings provided for under subpart 3 of the rule, Minn. R. 5223.0510, subp. 1, does not expressly prohibit a combination of the ratings provided for under subpart 3. The guiding principle with regard to combining permanency ratings remains that described in Minn. R. 5223.0300, subps. 3.B. and 3.D. - - i.e., “the disability determination shall not be based on the cumulation of lesser included categories,” and “[i]f more than one category is necessary to represent all of the mutually exclusive impairing conditions resulting from an injury, categories shall be selected to avoid double recovery for any part of the condition.”
Ransom at p. 5.
In this case, the medical evidence is conflicting and the rules do not clearly provide a rating for total knee arthroplasty. We conclude that the compensation judge’s adoption of the rating provided by Dr. Drogt has adequate support and a proper application of the permanent partial disability schedules. Accordingly, we affirm. Minn. Stat. § 176.421, subd. 1(3); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
 See Minn. R. 5223.0510, subp. 3.C.(2) and (3).
 See Hough v. Independent Sch. Dist. #115, 58 W.C.D. 213 (W.C.C.A. 1998); see also Pelkey v. Carleton College, slip op. (W.C.C.A. Aug. 13, 1995).
 See also Zinniel v. Sharpe Mfg. Co., slip op. (W.C.C.A. Sept. 15, 1989), citing McClish, 336 N.W.2d 538, 36 W.C.D. 133; Tyge v. Sawmill Creek Lumber, slip op. (W.C.C.A. Jan. 17, 1991), citing McClish at 541, 36 W.C.D. at 138; Thomas v. Oscar J. Boldt Constr., 41 W.C.D. 441, 443 (W.C.C.A. 1988).
 The employer also cites to this court’s decision in Price v. City of Minneapolis, slip op. (W.C.C.A. Oct. 2, 2006), as holding that the rules contemplate a rating of 8% for a total knee arthroplasty. This court’s reference to that rating was merely incidental to its opinion. Issues on appeal in Price did not include the appropriate rating under the rules for a total knee arthroplasty. In that case, the judge properly determined that a meniscectomy is a lesser included category of a total knee arthroplasty.
 We note that the AMA Guides to the Evaluation of Physical Impairment, Fourth Edition incorporated by reference in the permanent partial disability schedules, provides a 15% whole-person impairment rating for a total knee arthroplasty with a good result.