JOHN SWANSON, Employee/Appellant, v. EVTAC MINING and NATIONAL UNION FIRE INS. CO./CRAWFORD and CO., Employer-Insurer, and UNUM LIFE INS. CO. OF AM., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 1, 2000

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - MEDICALLY UNABLE TO CONTINUE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s conclusion that the employee was able to work from and after April 8, 1999, and the judge=s finding that the employee failed to prove he was temporarily and totally disabled.

 

PERMANENT PARTIAL DISABILITY - CERVICAL SPINE.  Where a disc fragment was removed during surgery that was causing both spinal cord and C7 nerve root irritation, the employee=s permanency was properly rated under Minn. R. 5223.0370, subp. 4, for a herniated disc.  Substantial evidence, however, supports the conclusion that the employee failed to prove persistent chronic radicular pain or paresthesia in the distribution of a nerve root following treatment, and the denial of additional permanent partial disability for the cervical spine is affirmed.

 

PERMANENT PARTIAL DISABILITY - LUMBAR SPINE.  Substantial evidence supports the finding that the employee failed to prove he sustained a low back injury as a consequence of his admitted work injuries, and the denial of permanent partial disability for the low back.

 

Affirmed as modified.

 

Determined by: Johnson, J., Wilson, J. and Pederson, J.

Compensation Judge: Donald C. Erickson

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s denial of his claims for temporary total disability benefits from and after April 8, 1999, an additional one percent permanent partial disability for the cervical spine, and a 3.5 percent permanent partial disability for a consequential injury to the lumbar spine.  We affirm.

 

BACKGROUND

 

John Swanson, the employee, worked as a maintenance mechanic for EvTac Mining, the employer, since 1978.  On April 28, 1997, the employee sustained an admitted injury to his neck and right shoulder.  The employee was working with a large impact wrench and described gradually increasing pain, spasm and tightness over the course of the work day.  He sought treatment at the Duluth Clinic on May 2, 1997 and was diagnosed with a neck and upper back/right shoulder strain.  On May 5, 1997, Dr. Mark W. Boyce, the employee=s family physician, restricted the employee to light duty work with no lifting over 20 pounds, no climbing, and no overhead work or lifting above shoulder level.  The employer accommodated the employee=s restrictions and he continued to work full-time in a light duty capacity.

 

On July 14, 1997, Michael McKenna, a qualified rehabilitation consultant (QRC), conducted a rehabilitation consultation.  Mr. McKenna concluded the employee would benefit from medical management and vocational assistance with the goal of remaining with the employer in a full-time position within the employee=s physical restrictions.  Mr. McKenna initiated rehabilitation services and continued to provide assistance to the employee through the date of hearing.

 

While working light-duty, the employee sustained a second injury on August 11, 1997.  The employee was standing about eight feet away from a co-worker who was using a pneumatic rivet buster.  The rivet buster Aexploded@ and the piston flew out of the tool, striking the employee in the forehead just above the right eye.  He was taken by ambulance to the Virginia Regional Medical Center emergency room where he was treated for a laceration above the right eye and neck pain.  The employee was seen the following day by Dr. Boyce who noted a stiff neck, sore arms bilaterally and a persistent headache.  The doctor diagnosed a closed head injury, a right forehead abrasion and neck pain, and referred the employee for an MRI scan of the cervical spine.^[1] 

 

The scan, performed on August 20, 1997, was read by the radiologist as showing a focal prolapse of the C6-7 disc to the right, mildly compressing the spinal cord.  The C6 neural canals appeared patent.  On August 26, 1997, the employee was seen in follow-up by Dr. Michael J. DeBevec, an orthopedist at the Duluth Clinic.^[2]  An EMG completed that day was normal.  Dr. DeBevec diagnosed a prolapse of the C6-7 disc causing chronic neck aches, headaches, upper back pain, and occasional numbness of both hands.  He recommended conservative treatment and continued the employee off work.  On September 10, 1997, Dr. DeBevec reviewed the August 20, 1997 MRI scan, comparing it to a previous scan taken in 1992.  The doctor concluded that the degree of prolapse and effacement of the cervical cord at C6-7 was somewhat greater on the 1997 study.  He further noted the left C6 foramina appeared somewhat narrowed, but this did not correspond with the employee=s symptoms which were greater on the right side.

 

The employee returned to Dr. DeBevec on September 19, 1997.  The doctor observed the employee was worse, getting tingling in his finger tips with pain in the right shoulder and upper arm.  Dr. DeBevec noted findings on examination consistent with stenosis at C6-7, and diagnosed a herniated disc at C6-7 with compressive myelopathy and radiculopathy.  He noted Dr. Boyce had already referred the employee to Dr. James D. Callahan, a neurosurgeon at the Duluth Clinic, and recommended the employee proceed with surgery.

 

Dr. Callahan saw the employee on October 6, 1997.  After examining the employee and reviewing the August 20, 1997 MRI scan, Dr. Callahan concluded there was evidence of cervical myelopathy and a right C7 radiculopathy secondary to an acute C6-7 disc herniation with an extruded disc fragment.  He recommended an anterior cervical discectomy with a single-level fusion using allograft bone.  He anticipated the employee would be off work for about six weeks.

 

On October 13, 1997, QRC McKenna prepared a Rehabilitation Plan (R-2), with the goal of a gradual return to work with the employer in the employee=s previous position, under the direction of the treating doctor, making accommodations as necessary.  The plan was signed by the employee on October 15, 1997 and by an agent of the insurer on November 3, 1997.

 

The recommended surgery was performed by Dr. Callahan on October 20, 1997.  A Avery large free fragment@ was found during the surgery that was causing marked spinal cord compression and right C7 nerve root compression.  (Finding 19; Ex. B, Ex. 10: 10/22/97 discharge summary.)  The surgery initially relieved the paresthesias and numbness in the employee=s hands and arms, but he continued to have residual interscapular pain and pain into the posterior shoulders.  On December 9, 1997, the doctor noted full strength in the upper extremities and right hand, but continuing bilateral shoulder and upper back pain.  The employee was referred to physical therapy for work hardening.  Over the next month and a half, the employee reported continuing neck, upper back and shoulder pain, as well as increasing numbness and tingling in his hands and arms, right greater than left.  Dr. Callahan=s examinations, however, reflect full range of motion in the neck and full strength in the upper extremities bilaterally.  On January 28, 1998, the employee underwent a psychosocial screening as part of his work hardening.  He reported disrupted sleep on a nightly basis due to pain and discomfort, but denied any depression.  The therapist recommended biofeedback training as a means of reducing muscle tension in response to the pain tension cycle.

 

An MRI scan obtained on February 3, 1998, showed normal cervical alignment with no evidence of residual cord or nerve root compression.  On that date, Dr. Callahan noted that, radiographically, the employee had a good result from the surgery, but continued to have paresthesias in the hands, likely as a result of the cervical myelopathy.  Dr. Callahan released the employee to return to light-duty work as of February 16, 1998, with no lifting over 20 pounds, no repetitive lifting or carrying over 10 pounds, no driving over one to three hours, no walking or standing over four to six hours, no repetitive fine manipulation or pushing and pulling, and occasional bending, squatting or climbing.  The employer was able to accommodate the employee=s restrictions and he did, in fact, return to work, in a light-duty capacity, as scheduled.^[3]

 

On March 6, 1998, Dr. Skip C. Silvestrini, a physical medicine and rehabilitation specialist, saw the employee in consultation regarding his residual neck/upper back pain and hand numbness.  On examination, Dr. Silvestrini noted significant muscle guarding and tension with numerous trigger points in the neck and upper back muscles.  The doctor diagnosed post-traumatic myofascial pain, and recommended a course of physical therapy focusing on myofascial release, mobilization and strengthening.  He indicated the employee could continue to work light-duty, 40 hours a week, 8 hours a day maximum.  In follow-up on May 6, 1998, the employee reported no improvement in his symptoms.  His major complaints were persistent back pain and difficulty sleeping.  Dr. Silvestrini noted that A[s]ymptomatically he is about the same, but biomechanically he strikes me as being significantly improved.@  The doctor suspected depression, and prescribed Prozac and Clonidine for sleep.  Dr. Silvestrini also referred the employee to Center Therapy Psychology for additional biofeedback, and suggested the employee work with the psychologist on possible adjustment and fear issues.  (Ex. B, Ex. 10: 5/6/98 note.)

 

On June 17, 1998, the employee returned to Dr. Silvestrini stating he was feeling worse and experiencing more pain.  Dr. Silvestrini, however, recorded an essentially normal examination, with excellent range of motion in the shoulders and neck.  The doctor stated he could not explain the progression of the employee=s symptoms on the basis of his musculoskeletal or neurologic findings, but observed as well that the employee did not embellish his symptoms or exhibit exaggerated pain behaviors, nor was there any apparent significant psychological overlay.  Dr. Silvestrini recommended a gradual conditioning program, and continued the employee on light-duty work.

 

The employee was last seen by Dr. Silvestrini on August 19, 1998.  The employee continued to complain of increasing hand, arm, neck and back symptoms and pain.  The doctor was unable to find any objective change on examination.  Dr. Silvestrini concluded he had nothing further to offer the employee, and suggested the employee be followed by his family physician, Dr. Boyce.  He recommended continued experimentation with medications to try to improve sleep, observing that sleep deprivation could cause increased muscle tension and myofascial pain symptoms. 

 

On August 31, 1998, the employee was seen for a second opinion by Dr. Charlotte L. Roehr, a physical medicine and rehabilitation specialist at Hennepin County Medical Center (HCMC).  The employee complained of right scapular and cervical pain, pain bilaterally in the upper arms, a burning sensation in his palms, and chronic headaches.  He reported sleeping only three or four hours a night due to cervical pain.  The employee also gave a history of loss of consciousness when struck in the head on August 11, 1997, and described problems with short-term memory.  His wife also noted a change in mood.  Dr. Roehr=s assessment was myofascial pain syndrome in the neck and upper back region, a traumatic brain injury (TBI), postconcussion syndrome, and chronic headaches.  Dr. Roehr recommended the employee continue his exercise and conditioning program and suggested Paxil and/or Elavil to improve his sleep.  The doctor also suggested an MMPI and neuropsychological evaluation to assess the extent to which the employee=s symptoms were a result of a brain injury, depression or chronic pain syndrome.

 

The employee returned to Dr. Boyce on October 29, 1998.  Dr. Boyce noted the employee appeared fatigued and continued to have trouble with neck and upper extremity pain and sleep problems.  He adjusted the employee=s medications and continued the employee on light-duty restrictions.  On December 9, 1998, Dr. Boyce concluded the employee had reached MMI, and imposed permanent light-duty work restrictions of no lifting over 20 pounds infrequently, no lifting over ten pounds frequently, no overhead reaching, occasional standing, squatting or climbing, limited pushing and pulling, and a maximum 40 hour work week, eight hours a day.  He also referred the employee for neuropsychological testing and an MMPI based on Dr. Roehr=s recommendations.

 

On February 4, 1999, the employee returned to Dr. Boyce reporting a lot of neck, upperback, low back and shoulder pain.  He reported no improvement in his sleep with the new medications.  Dr. Boyce took the employee off work for two weeks, placed him on a walking and stretching program, and directed a gradual removal from his prescription medicines.  The employee returned to work in his light-duty position on February 18, 1999.  QRC McKenna noted on March 3, 1999, that the employee had not had any exacerbations since returning to work.

 

A neuropsychological evaluation was performed by Gregory J. Murrey, a clinical psychologist, on February 23 and March 2, 1999.  The employee reported difficulties with problem solving, word finding and word fluency, and general problems with memory and concentration since the August 11, 1997 injury.  During testing, Dr. Murrey noted the employee was able to comprehend and retain the instructions for the tests, task execution was precise and careful, and spontaneous conversation was appropriate and articulate.  The employee=s mood and affect was, however, somewhat dysthemic and flat, and he appeared tense and nervous during the testing session.  Dr. Murrey reported that on memory testing, the employee=s performance in all modalities and situations fell within the average range.  There was no indication of visual organization or visual perceptual deficits, nor any psychomotor deficits. There were no problems indicated with problem solving or higher level adaptive functioning, and his IQ, achievement and academic screening tests fell within average range.  Dr. Murrey concluded, however, that the employee demonstrated a Asignificant weakness@ in processing speed and a Asevere deficit@ in word fluency, which in combination Ais quite a typical presentation for persons who have suffered a left frontal brain injury.@  He commented further, however, that the employee=s cognitive presentation Amay also be influenced by his reported chronic sleep disturbance . . . along with other mild depressive symptom presentation.@  Dr. Murrey recommended follow-up by the employee=s physician to address sleep and pain disturbance as well as monitoring symptoms of depression.  He further recommended a referral to rehabilitation psychology services for cognitive retraining and supportive therapy. (Ex. E, Ex. 10: 3/25/99 report.)

 

In a meeting with the employee and his wife on March 30, 1999, Dr. Murrey advised them the employee=s memory abilities were actually intact, although likely affected by a loss of processing speed and mental flexibility apparently associated with his work injury.  Dr. Murrey further advised them Athe pain syndrome, sleep disturbance, and depressive symptoms are likely major contributing factors to the decrease in cognitive functions and . . . these need to be addressed on an ongoing basis by medical and possibly psychiatric personnel.@  (Ex. E, Ex. 10: 3/30/99 note.)

 

The employee followed-up with Dr. Boyce on April 8, 1999.  Dr. Boyce noted the results of the employee=s neuropsychological testing had returned, and concluded the Aexaminer=s impression is that [the employee] should not be working.@ (Ex. B: 4/8/99 note.)  Dr. Boyce took the employee off work and advised him to pursue permanent disability.  On April 13, 1999, Dr. Boyce wrote a letter to the employer stating: ABecause of concerns about the overall ability for degenerative process and new information, I believe that [the employee] becomes too high of a risk for additional injury.@  Dr. Boyce stated, in his opinion, the employee should not continue to work for the employer, requested the employer consider disability retirement for the employee, and encouraged the employee to apply for Social Security Disability.  (Ex. G, Ex. 8: 4/13/99 letter.)  Dr. Boyce later explained:

 

In early April of 1999, it became apparent from my interview with Mr. Swanson, his wife, and the available data from the psychologist that . . . [the employee] was at-risk of additional injury to himself and to co-workers because [of] his inability to follow through on basic safety procedures and his inability to comprehend complex instruction.  (Ex. G: 10/27/99 letter report.)

 

QRC McKenna contacted Dr. Boyce to determine whether there was any work the employee could do.  Dr. Boyce apparently suggested a non-stimulated work environment with breaks as needed.  The QRC communicated with both the employer and the insurer, and was advised by the employer that they could not accommodate Dr. Boyce=s current restrictions.  QRC McKenna then recommended a transferable skills analysis and a labor market survey to determine the employee=s employability generally in the labor market.  The insurer agreed.  (T. 139-40, 142, 156; Ex. K: 4/15/99, 5/14/99, 6/15/99.)

 

Dr. Boyce continued to opine the employee had severe functional limitations and was permanently and totally disabled from any employment based on inability to relearn occupational skills or safely perform tasks in the work environment.  (Ex. B, Ex. 10: 5/26/99; Ex. B: 6/17/99 UNUM form, 6/21/99 report, 9/30/99 note; Ex. G: 8/10/99 letter.)  QRC McKenna then recommended a reassessment by Dr. Roehr, to which the insurer agreed.  (T. 142-43, 156; Ex. K: 8/23/99.)  The employee was seen by Dr. Roehr on October 11, 1999.  The doctor noted neuropsychometric testing had been conducted that Aindeed did document the neurocognitive deficits that were consistent with a traumatic brain injury.@  Dr. Roehr concluded these changes were permanent, and the employee was unemployable at that time.  (Ex. F.)

 

On October 19, 1999, Dr. Nolan Segal, an orthopedic surgeon, performed an independent medical examination at the request of the employer and insurer.  In his report of October 26, 1999, Dr. Segal stated that, other than limited range of motion of the cervical spine, the employee had no objective findings on examination.  The doctor concluded that, from a musculoskeletal standpoint, the employee was capable of full-time employment with restrictions of no lifting or carrying over 25 pounds, occasional stooping and kneeling, avoid repetitive bending, lifting and twisting, avoid repetitive flexing and rotating of the cervical spine and overhead use of his arms, and avoid crawling, squatting and ladder climbing.

 

A neuropsychological examination was conducted by Paul S. Marshall, a licensed psychologist, on November 20, 1999, at the request of the employer and insurer.  Dr. Marshall interviewed the employee, reviewed the employee=s treatment records, and conducted an extensive battery of cognitive tests.  During the testing, Dr. Marshall noted conversation was appropriate with no indication of language difficulties or word finding problems.  Except for occasional attention lapses, the employee had no difficulty understanding, retaining and following directions.  Dr. Marshall concluded the employee had sustained a concussion on August 11, 1997, and there were apparent emotional, behavioral and cognitive changes since the August 11, 1997 incident.  In Dr. Marshall=s opinion, however, the employee=s current emotional and cognitive problems were not due to organic brain injury or dysfunction, but rather to psychological decompensation with depression under the combined stress of physical pain, chronic sleep loss and work place changes.  Dr. Marshall found no evidence of memory impairment, nor did the employee exhibit deficits in information processing (attention and memory) that would interfere with the acquisition or effective employment of knowledge and skills.  It was Dr. Marshall=s opinion, that from the standpoint of cognitive functioning, the employee was capable of full-time, competitive employment in manual labor or clerical occupations with no modifications other than those necessary to accommodate his physical limitations.  Dr. Marshall further recommended a comprehensive psychiatric evaluation to assess medication and/or psychotherapy treatment options for the employee=s depression and chronic pain.

 

The employee filed a claim petition on June 18, 1999 alleging both a neck injury and a brain injury as well as a consequential injury to the low back.  He sought temporary total disability benefits, or in the alternative, permanent total disability benefits from and after April 8, 1999, along with a 48 percent permanent partial disability due to injuries to the brain, cervical spine and lumbar spine.  The case was heard by a compensation judge at the Office of Administrative Hearings on December 17, 1999, on an expedited hardship basis.  In a Findings and Order, served and filed March 21, 2000, the compensation judge denied the employee=s claims.  The employee appeals from the denial of temporary total disability benefits, additional permanency for the cervical spine, and a 3.5 percent permanent partial disability for the lumbar spine.^[4]

 

STANDARD OF REVIEW

 

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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Temporary Total Disability / Medically Unable to Continue

 

The principal basis for the employee=s claim for temporary total disability benefits is his claim that he was medically unable to continue working after April 8, 1999, when Dr. Boyce concluded the employee was totally disabled and took him off work.  Under Minn. Stat. ' 176.101, subd. 1(e)(2):

 

[I]f temporary total disability compensation ceased because the employee returned to work . . ., it may be recommenced if the employee is medically unable to continue at a job due to the injury.

 

The issue of whether an employee was medically unable to continue working due to a personal injury is a question of fact for the compensation judge.  Rychlicki v. McGlynn Bakeries, slip op. (W.C.C.A. June 16, 1993).

 

Following his cervical surgery, the employee returned to full-time, light-duty work with the employer on February 16, 1998.  He continued to work for the employer until April 8, 1999, when Dr. Boyce took him off work.  The employee contends the compensation judge made no finding the employee was not medically unable to work as of that date, and argues the judge erroneously found the employee withdrew from the labor market and failed to conduct a diligent search for work. The parties agree the dispositive issue in this case, with regard to entitlement to temporary total disability benefits, is whether the employee was medically unable to work as of April 8, 1999, not withdrawal from the labor market or failure to conduct a job search.  Although the judge may have inappropriately emphasized these peripheral aspects of the case, we are not persuaded the judge=s denial of temporary total disability benefits was clearly erroneous or unsupported by the evidence.  Compare Mork v. HealthSystem Minn./Methodist Hosp., slip op. (W.C.C.A. Sept. 24, 1999).

 

While the compensation judge did not make an explicit finding rejecting the employee=s claim that he was medically unable to continue working after April 8, 1999, such a finding is clearly implied in his decision.  The compensation judge found the opinion of Dr. Marshall more credible and persuasive than the opinions of Dr. Murrey or Dr. Boyce.  (Finding 48.)  Dr. Marshall concluded the employee had not sustained a brain injury, and from the standpoint of cognitive functioning, was capable of full-time, competitive employment with no modifications other than those necessary to accommodate his physical limitations.  The judge concluded that Dr. Murrey=s testing, on its face and by its terms, did not support Dr. Boyce=s removal of the employee from his work with the employer, and clearly rejected Dr. Boyce=s opinion that the employee was unemployable and totally disabled from all work.  Dr. Segal concluded there was no significant change in the employee=s physical condition between March 1998 and April 1999 that would have caused the employee to become medically unable to continue with employment.  (Finding 46.)  Moreover, the employee=s return to work with the employer was monitored by QRC McKenna.  Mr. McKenna=s reports indicate the employee continued to tolerate his light-duty work.  On March 3, 1998, the QRC noted the employee had not had any exacerbations since returning to work on February 18, 1999.  The compensation judge, accordingly, found the employee failed to prove he was temporarily and totally disabled from and after April 8, 1999, commenting in his memorandum that A[a]s the employee has the ability to work, he cannot be considered to be temporarily and totally disabled.@  (Finding 59; Mem. at 12.) 

 

Where there is a conflict in the opinions of medical experts, resolution of that conflict is the function of the compensation judge, and will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  There is substantial evidence, in the record as a whole, to support the compensation judge=s determination that the employee was capable of working from and after April 8, 1999, and was not, therefore, medically unable to continue working in his job with the employer.  We, therefore, affirm the compensation judge=s denial of temporary total disability benefits to the employee on that basis.

 

Permanent Partial Disability - Cervical Spine

 

The employee also appeals the compensation judge=s denial of an additional one percent permanent partial disability for the cervical spine.  On October 7, 1998, Dr. Silvestrini completed a Health Care Provider Report.  He opined that maximum medical improvement (MMI) had been reached as of August 19, 1998, and provided a permanent partial disability rating of 13.5 percent for the employee=s cervical spine injury.  The employer made periodic payments to the employee between January 18 and May 10, 1999 based on Dr. Silvestrini=s 13.5 percent permanency rating.  Both parties now agree that Dr. Silvestrini=s rating was incorrect.

 

 The employee contends he is entitled to a 14.5 percent permanent partial disability to the body as a whole pursuant to Minn. R. 5223.0370, subp. 4.D., based on the rating provided by Dr. Boyce.  This rating includes 9 percent for a herniated disc (subp. 4.D.), plus three percent for chronic radicular pain or paresthesia, and 2.5 percent for a one-level fusion (subp. 4.D.(2) and subp. 5.A.).^[5]

 

The employer and insurer argue the employee is entitled to no more than a 10 percent permanent partial disability, based on a rating provided by Dr. Segal under Minn. R. 5223.0370, subp. 3.C. ^[6]  They contend that since Dr. Segal found no evidence of hyporeflexia or nerve root specific muscle weakness in his October 19, 1999 examination, the employee is not entitled to a permanency rating for a radicular syndrome under subp. 4.D.  We disagree.

 

In his examination on August 26, 1997, Dr. DeBevec reported a positive axial compression test with radiation of pain down to the medial border of the scapula suggesting a C6-7 herniated disc.  On September 19, 1997, Dr. DeBevec noted a +4/+5 triceps weakness corresponding to the C7 nerve root.  The employee was seen by Dr. Callahan on October 6, 1997.  On examination, the doctor noted 4+/5 right hand weakness, and decreased sensation to light touch in the index, middle and 4th fingers.  Dr. Callahan interpreted the MRI scan as showing an extruded fragment at C6-7 causing effacement of the spinal cord and neuroforaminal narrowing.  The diagnosis of a herniated disc was confirmed during the surgery on October 20, 1997 when Dr. Callahan Aremoved a disc fragment that had been causing both spinal cord and right C7 nerve root irritation.@  (Unappealed finding 19.)  On these facts, the employee was properly rated under Minn. R. 5223.0370, subp. 4.D., for a herniated disc.

 

However, the employer and insurer argue, in the alternative, that even if the employee is properly rated under subp. 4.D., he is not entitled to an additional three percent rating under subp. 4.D.(1) for persistent chronic radicular pain or paresthesia.  They assert, therefore, the employee is entitled to no more than an 11.5 percent permanent partial disability, not the 14.5 percent claimed.

 

Following the surgery, the employee reported relief of the paresthesias in his hands and arms.  On January 13 and February 3, 1998, Dr. Callahan noted objectively normal examinations with full range of motion of the neck and full strength in the upper extremities.  An MRI scan taken on February 3, 1998, showed no evidence of residual cord or nerve root compression.  On March 6, 1998, Dr. Silvestrini diagnosed post-traumatic myofascial pain.  In his June 17 and August 19, 1998 notes, Dr. Silvestrini reported essentially normal objective findings on examination, commenting he was unable to explain the progression of the employee=s symptoms on the basis of musculoskeletal or neurologic findings.  In his October 26, 1999 IME report, Dr. Segal noted no objective examination findings, and concluded that, at the time of the examination, there was no evidence of hyporeflexia or nerve root specific weakness.

 

Although there is also evidence of continuing paresthesia in the employee=s hands and arms following the surgery, the evidence is conflicting, and the judge could reasonably infer the employee failed to prove persistent chronic radicular pain or paresthesia in the distribution of a nerve root.^[7]  Minn. Stat. ' 176.421, subd. 1 (1992);  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984). We, accordingly affirm the compensation judge=s determination that the employee failed to prove entitlement to any additional permanent partial disability benefits for the cervical spine.

 

Permanent Partial Disability - Low Back

 

Finally, the employee appeals the compensation judge=s determination that the employee failed to prove he sustained work-related low back injury.  The employee argues the only evidence regarding the lumbar spine came from Dr. Boyce who opined the employee sustained a 3.5 percent permanent partial disability for the lumbar spine as a consequence of his work injuries.^[8]  We are not persuaded.

 

On May 6, 1998, the employee reported increasing lower back pain to Dr. Silvestrini.  The doctor commented, AIt would also fit that with the extension of pain into his lower back that he is getting increasing muscle tension@ as a result of myofascial strain.  However, the doctor was unable to find any trigger points which he found incongruous with his initial impression of myofascial pain.  Dr. Silvestrini also noted the employee had good lumbar flexion and had no muscle spasm or significant muscle guarding.  (Ex. B, Ex. 10: 5/6/98.)  On June 17, 1998, the employee reported to Dr. Silvestrini the onset of low back pain radiating down his legs.  On examination, the doctor noted no significant muscle tension or guarding in the lumbar paraspinal muscles. Dr. Silvestrini reported the employee had a normal examination, and commented Ait is hard to theorize that he could be getting lower extremity symptoms because of his cervical injury.@  (Ex. B., Ex. 10: 6/17/98.)  On August 19, 1998, the employee again reported increasing low back pain.  However, Dr. Silvestrini=s examination of the lumbar spine and lower extremities was essentially normal.  On August 31, 1998, Dr. Roehr similarly reported full range of motion and full strength in the lower extremities, with full range of motion in the trunk.

 

Dr. Nolan Segal specifically addressed the employee=s lumbar spine complaints in his independent medical examination.  The doctor noted full range of motion of the thoracic and lumbar spine, with complaints of tenderness in the right thoracic paraspinous musculature, but no palpable spasm, increased muscle tension or hypertonicity noted.  Dr. Segal stated that other than limited range of motion of the cervical spine, the employee had no objective examination findings and Ahe does not have any examination findings to suggest a problem with his low back or extremities.@  Based on his review of the employee=s medical records, Dr. Segal concluded the employee=s low back and leg symptoms dated back to 1992, and were not related to his admitted personal injuries.  (Ex. 3.)

 

Given this evidence, the compensation judge reasonably found the employee failed to prove he sustained a low back injury as a consequence of his admitted work injuries.  We, therefore, affirm.