TAMARA C. CASE-BELICH, Employee/Appellant, v. ST. MARY=S MEDICAL CENTER, Self-Insured Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 22, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - EVIDENCE.  Substantial evidence supports the compensation judge=s reliance on the stipulation to the employee=s permanent total disability, entered into by the parties at hearing, in awarding permanent total disability benefits to the employee.

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence supports the compensation judge=s finding that the employee=s May 5, 1999, cervical spine injury was a substantial contributing factor in the employee=s subsequent symptoms and permanent total disability.

 

PERMANENT PARTIAL DISABILITY - EXPERT MEDICAL OPINION.   Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained 14.5% permanent partial disability of the whole body, relative to the cervical spine.

 

PERMANENT PARTIAL DISABILITY - EXPERT MEDICAL OPINION - OBJECTIVE FINDINGS - SCHEDULE.   Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained no permanent partial disability of the whole body, relative to the claimed diagnosis of reflex sympathetic dystrophy, since the employee did not satisfy the requisite objective findings set forth in the permanency schedule.

 

Affirmed.         

 

Determined by: Rykken, J., Pederson, J., and Stofferahn, J.

Compensation Judge Bradley J. Behr.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

  The self-insured employer appeals from the compensation judge=s award of permanent total disability benefits and from the judge=s award of permanent partial disability benefits relative to the employee=s cervical spine injury.  The employee appeals from the compensation judge=s denial of her claim for permanency benefits relative to a diagnosis of reflex sympathetic dystrophy.  We affirm.

 

BACKGROUND

 

On May 1, 1999, Ms. Tamara Case-Belich, the employee, was employed as a licensed practical nurse by St. Mary=s Medical Center, the self-insured employer.  On that date, the employee sustained an admitted personal injury to her cervical spine while she and three other nurses were transferring a patient.  The employee was 36 years old at the time and earned a weekly wage of $308.88.  The employee was diagnosed with a large herniated disc at the C6-7 level, and underwent surgery on May 17, 1999, in the nature of an anterior cervical discectomy and a C6-7 anterior cervical fusion, with placement of a titanium plate and screws.  The employee did not obtain good relief from this surgery, and post-surgically noted a burning sensation, a Apins and needles@ sensation, and numbness in her left arm radiating into her fingers.  Due to ongoing symptoms, the employee underwent a second surgery on August 25, 2000, for insertion of a dorsal column stimulator in an attempt to provide pain relief.  In conjunction with that implantation, the employee underwent another laminectomy at the C6-7 level.  Within six days, however, the stimulator was removed because the employee reported symptoms of burning and dysthetic pain in her right arm.  At the time of the hearing, the employee claimed to have little or no use of either arm and reported that her left leg is very weak.  The employee and her husband also testified at hearing that they have observed all the classic signs of reflex sympathetic dystrophy (RSD) on a regular basis since the employee=s second surgery in 2000.

 

Following the employee=s injury, the employer and insurer paid temporary total disability benefits for 104 weeks and medical expenses.  The employer also provided rehabilitation assistance from July 1999 until March 2001, when the rehabilitation plan was placed on hold because the employee had not yet been released to return to work.  In addition, since the employee=s surgery on August 25, 2000, the employee=s husband has provided nursing services to the employee, for which the employer has paid.  By January 2001, the employee was found to be qualified for social security disability income.  In May 2001, the employer paid permanent partial disability (PPD) benefits based on a rating of 7% relative to the cervical spine.

 

On January 25, 2001, the employee filed a claim petition alleging entitlement to permanent total disability benefits continuing from May 1, 1999.  The employee later amended her petition to include a claim for 66.48% permanent partial disability of the whole body.^[1]  In its answer   to the claim petition, filed February 23, 2001, the employer denied that the employee is entitled to permanent total disability benefits, contending that the employee=s alleged complaints relate to preexisting and/or superseding nonwork-related injuries or conditions, that the employee=s work injury was temporary in nature and that her ongoing problems are not causally related to that injury.

 

A hearing on the employee=s claim petition was held on November 27, 2001.  Issues addressed at hearing and in post-trial briefs included whether the employee is permanently totally disabled as a substantial result of her May 1, 1999, injury, and the extent of permanent partial disability, if any, sustained relative to her cervical spine and her claimed diagnosis of reflex sympathetic dystrophy.  At hearing, the parties entered into various stipulations concerning the employer=s admission of liability for a cervical spine injury, the employer=s payment of enumerated benefits, the employee=s attainment of maximum medical improvement on May 1, 2001, and the employee=s compensation rate to be utilized in the event her permanent total disability was deemed to be compensable.  In a stipulation that is the subject of controversy on appeal, the parties also purportedly stipulated that the employee is permanently totally disabled, with the employer reserving its defense that the employee=s permanent total disability status is not causally related to her May 1, 1999, injury.

 

In Findings and Order served and filed January 18, 2002, the compensation judge found that the employee=s May 1, 1999, injury substantially contributed to the employee=s pain, numbness and weakness in her upper extremities and to her stipulated permanent total disability, and awarded permanent total disability benefits to the employee.   The judge found that the employee has sustained a 14.5% permanent partial disability of the body as whole relative to her cervical spine injury and awarded benefits based on that rating.  The judge denied the employee=s claim for permanent partial disability benefits relative to a diagnosis of reflex sympathetic dystrophy, finding that the employee failed to satisfy the criteria set forth in the workers= compensation permanency schedule relative to RSD.

 

The employee appeals from the compensation judge=s denial of her claim for permanency benefits relative to reflex sympathetic dystrophy.  The employer appeals from the compensation judge=s award of permanent total disability benefits and from the judge=s award of permanency benefits relative to the employee=s cervical spine injury.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

Stipulation to Permanent Total Disability Status

 

The employer appeals from the compensation judge=s finding that the parties stipulated that the employee has been permanently totally disabled from May 1, 2001, to the date of the hearing.  In his Findings and Order, the compensation judge stated that one of the issues to be determined at the hearing was A[w]hether the employee=s 5/1/99 work injury is a substantial contributing factor to her stipulated permanent total disability.@  Findings and Order at pp. 2-3 (emphasis added).  Thereafter, the compensation judge listed seven stipulations entered into by the parties at hearing.  The stipulation giving rise to controversy on appeal states as follows:

 

6.  The employee has been permanently and totally disabled from 5/1/01 to the date of hearing.  The employer disputed whether the 5/1/99 injury substantially contributed to the employee=s permanent total disability.

 

(Stipulation No. 6, Findings and Order.)  This stipulation was made during on-the-record discussions at the outset of the hearing held on November 27, 2001.  The compensation judge and counsel for the parties discussed the employee=s claims and the employer=s position concerning those claims.  According to the hearing transcript of a portion of those discussions, the following exchange took place:

 

THE JUDGE:  All right.  Mr. Mihalek, what is the employer=s position?

 

MR. MIHALEK:   The employer=s position is that while Mrs. Belich sustained a cervical injury on 5/1/99, that the injury is not the cause of her current disabled status; that there is no definitive diagnosis of what her problem is.  However, it=s clear that she does not meet the criteria for reflex sympathetic dystrophy.  In addition, the employer denies that Mrs. Belich has the extent of permanent partial disability that was rated by Dr. Wengler or Dr. Monsein.  According to Dr. Hubbard, she does have a six percent permanent partial disability attributable to the cervical spine injury as rated under Minnesota Rules 5223.0370, Subparts 3B and 5.

 

THE JUDGE:  As I understand it, Mr. Mihalek, the employer stipulates that the employee is permanently totally disabled but deny that the work-related injury is a substantial cause.

 

MR. MIHALEK:  That is correct.

 

THE JUDGE:  And they also deny the diagnosis of RSD.

 

MR. MIHALEK:  Correct.

 

(T. 7-8.)

 

In his Findings and Order, the compensation judge found that the employee=s chronic severe pain, numbness and weakness in her upper extremities and left leg Aare the cause of the employee=s stipulated permanent total disability@ and that the employee=s May 1, 1999 injury Asubstantially contributes to pain, numbness and weakness which she experiences in her upper extremities and to her stipulated permanent total disability.@  (Emphasis added.)  The compensation judge therefore ordered payment of permanent total disability  benefits to the employee and ordered that such benefits Ashall continue as warranted by the employee=s condition.@

 

By letter dated January 22, 2002, counsel for the employer requested that the compensation judge issue an amended order stating that no permanent total disability benefits are payable at this time due to the employee=s failure to meet the 17% PPD threshold, listed in Minn. Stat. ' 176.101, subd. 5(2)(a).  The employee objected to the employer=s request for an amended order.  In a letter dated February 7, 2002, the compensation judge responded to both counsel, advising that he reviewed his notes and Findings and Order, and that he believed the Findings and Order accurately reflect the parties= stipulations at the time of hearing.  Accordingly, the judge did not issue an amended order.

 

On appeal, the employer argues that it did not stipulate to the employee=s entitlement to permanent total disability benefits.  At oral argument, the employer explained that it stipulated to the employee=s PTD status solely from a vocational perspective in order to forego the necessity for the employee=s vocational expert to testify at hearing, but that it did not stipulate that the employee had the requisite permanency rating necessary for obtaining PTD benefits.  The employer argues that in order to be eligible to receive permanent total disability benefits,  the employee must have sustained a minimum level of  percent permanent partial disability (PPD) pursuant to Minn. Stat. ' 176.101, subd. 5(2)(a).  The employer argues that the extent of the employee=s PPD remained a contested issue at hearing, that it maintained its denial that the employee had the requisite PPD rating necessary for receiving PTD benefits, and that it neither stipulated that the employee has at least a 17% rating nor waived its right to require the employee to meet her burden of proving at least a 17% permanent impairment.  The employer further contends that it was error for the compensation judge to consider that the employer waived the statutory requirement of a minimum level of permanency in order to be eligible to receive permanent total disability benefits.

 

Minn. Stat. ' 176.101, subd. 5, provides for compensation for an employee who is Atotally and permanently incapacitate[d] from working at an occupation which brings the employee an income.@  Included in the definition of permanent total disability are certain criteria an employee must meetBa defined level of permanent partial disabilityBin order to be deemed permanently totally disabled.  After an employee meets these threshold levels of permanency, other factors, such as the employee=s age, education, training and experience, are considered to determine whether an employee is permanently totally disabled.^[2]

In this case, absent a stipulation to the employee=s permanent total disability status, the statutory criteria require that the employee have at least 17% permanent partial disability of the whole body, in order to be determined permanently totally disabled. 

 

The employee argues that the legal effect of the stipulation made at hearing was a waiver of any technical defense available pursuant to Minn. Stat. ' 176.101, subd. 5(2)(a).  She also argues that stipulations are frequently made at trial to narrow the issues, and that, in this case, the employer=s stipulation to the employee=s PTD status narrowed the employee=s burden of proof to that of a causal relationship between the employee=s injury and her permanent total disability.   

 

In the instant case, counsel for the employer stipulated to the employee=s permanent total disability status.  Absent a stated reservation by the employer, a stipulation to permanent total disability encompasses all the elements of the statutory definition, including the requisite permanency thresholds and the so-called Schulte factors of an employee=s age, education, training and experience.  Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (Minn. 1967).  Absent a reservation by the employer of an essential element of the claim, the employee and compensation judge were justified in relying on the stipulation as meaning exactly what it said.  Therefore the only issue remaining relative to the employee=s claim for PTD benefits was the causation issue.  After learning that the employer stipulated to the employee=s PTD status, the employee=s attorney correctly focused on the causal relationship issue and not on proving the elements of eligibility for permanent total disability benefits.

 

The compensation judge referred to the employee=s Astipulated permanent total disability@ in three separate sections of his Findings and OrderBin the list of stipulations, the list of issues, and in his specific findings.  There can be no doubt that the compensation judge understood that the employer stipulated to the employee=s permanent total disability subject to proof of causation.  Parties commonly enter into stipulations prior to or at hearing, in order to confirm agreements reached, to limit the scope of issues addressed at hearing, or for other tactical reasons.  As an appellate court, we will not second guess the plain and unambiguous language used by the parties. 

 

Based upon the discussions held at the outset of the hearing, as recorded in the transcript, it was reasonable for the judge to interpret the stipulation to mean that the employer agreed that the employee is permanently totally disabled.  The transcript contains no mention of the minimum level of permanent partial disability required of this employee to prove PTD status.  The parties=s post-trial briefs contain no reference to the required permanency thresholds. The stipulation was clear and unambiguous.  Based upon the record before us, therefore, we cannot conclude that the compensation judge=s reliance on the employer=s stipulation to the employee=s permanent total disability status is clearly erroneous.  We conclude that the judge properly relied upon that stipulation in awarding permanent total disability benefits to the employee, and therefore affirm that award.

 

Causation of Employee=s Permanent Total Disability

 

The employer appeals from the compensation judge=s finding that the employee is

permanently totally disabled as a result of her May 1, 1999, injury.  The compensation judge found that the employee has continued to experience radicular left arm pain and paresthesia since her 1999 fusion surgery, and has experienced chronic severe pain, numbness and weakness affecting both upper extremities and left leg since her implantation surgery in August 2000.  He found that the employee=s work injury was a substantial contributing cause of these symptoms, and that these symptoms have caused the employee=s permanent total disability.

 

In the opinion of Dr. Robert Wengler, who examined the employee at her attorney=s referral, the employee=s condition Ais almost certainly secondary to a cervical myelopathy associated with the disc herniation(s) or a complication of their treatment.  In his report of September 24, 2001, Dr. Monsein, who had treated the employee at the referral of Dr. T. Mark Seidelman, physiatrist, stated that he considered the employee to be extremely disabled, from a functional standpoint.  He based this on the employee=s severe inability to perform even the simplest tasks, and concluded that the employee would not be Aable to return to any type of gainful employment certainly on a sustained basis.@  He also stated that A[i]t is my opinion within a reasonable degree of medical certainty that the work-related injury of 5/1/99, as well as subsequent surgeries, are significant contributing factors to her current problem.@  

 

The employer contends that no causal relationship exists, relying on the opinion of Dr. Jack Hubbard, who examined the employee on May 2001 at the employer=s request.  He agreed that the employee=s May 1999 injury resulted in a herniated cervical disc that was successfully treated by surgery, and also concluded that the employee has experienced myofascial trigger point pathology.  However, Dr. Hubbard felt that it was unclear as to the origin of the employee=s decrease in functioning and her severe total body pain.  He determined that the employee=s May 1999 injury was not a substantial contributing factor in causing the employee=s current disability, nor did the placement of the neurostimulator electrodes result in her current medical condition.  Dr. Hubbard concluded that the 1999 fusion surgery had been successful, citing the fact that the employee=s left arm symptoms initially improved, and that her post-surgical scans had demonstrated no organic cause of the employee=s ongoing arm and leg pain. 

 

The compensation judge rejected Dr. Hubbard=s medical opinion, explaining in his memorandum as follows:

 

The compensation judge has carefully considered all of the medical records as well as the testimony of the employee, her spouse and Dr. Hubbard.  The preponderance of the medical evidence does not support Dr. Hubbard=s opinion that the employee=s cervical injury resolved following successful surgery and that all of the employee=s ensuing symptoms, disability and, presumably  her need for treatment, were unrelated to the work injury.  At a minimum the preponderance of the evidence indicates that the employee suffers from a disabling chronic pain syndrome and that the injury of 5/1/99 was a substantial contributing factor to this condition and the resultant permanent total disability.

 

AThe trier of fact=s choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence.@  Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).  We will not overturn the judge=s decision on grounds that he rejected Dr. Hubbard=s opinion.  In addition, as stated by the supreme court in Kelly v. C.M.I. Refrigeration, 231 N.W.2d 490, 491, 27 W.C.D. 951, 952 (Minn. 1975):

 

[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, causal relation in determining compensable injury or disease will have to remain in the province of the trier of fact.  Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and discard the opinion of the other.

 

(citing Golob v. Buckingham Hotel, 244 Minn. 301, 69 N.W.2d 636, 18 W.C.D. 275 (1955)).

 

We conclude that the testimony of record, together with the records of the employee=s treating physicians, including Dr. Monsein, and the report of Dr. Wengler, constitute evidence sufficiently substantial to support the judge=s conclusion that the employee=s May 1, 1999, cervical spine injury was a substantial contributing factor in the employee=s subsequent symptoms and permanent total disability.  Therefore we affirm the compensation judge=s decision concerning the causal relationship between the employee=s May 1999 injury and her permanent total disability.

 

Permanent Partial Disability - Cervical Spine

 

The compensation judge found that the employee has sustained a 14.5% permanent partial disability to the body as a whole relative to her cervical spine injury.  The employer appeals, arguing that the compensation judge erred in finding that the employee had sustained any permanent partial disability as a result of her cervical spine injury beyond the 6% rating assigned by Dr. Hubbard.

Conflicting medical evidence exists concerning the employee=s level of permanency relative to her cervical spine injury.  Dr. Wengler diagnosed the employee as having a single-level cervical disc herniation, treated surgically with fusion and with persistent symptoms.  Both he and Dr. Monsein determined that the employee=s pain symptoms were attributable in part to a cervical myelopathy.  Dr. Wengler assigned permanency ratings totaling 14.5%, pursuant to Minn. R. 5223.0370, subp. 4D (9%), 4D(1) (3%), and subpart 5A (2.5%).

 

In Dr. Hubbard=s opinion, the employee sustained a total of 6% permanent partial disability of the whole body.  He agreed with Dr. Wengler=s rating attributable to the employee=s cervical fusion surgery (2.5%), and also assigned 3.5% for muscular trigger points, pursuant to Minn. R. 5223.0370, subp. 3B, but disputed the additional permanency assigned by Dr. Wengler.

 

In his memorandum, the compensation judge outlines the permanency ratings assigned by Drs. Wengler and Hubbard, and differentiates between the two.  He outlines the basis for the 9% and 2.5% ratings, based upon the employee=s herniation, which she clearly sustained on May 1, 1999, and the fusion surgery she underwent to treat the herniation.  As to the additional 3% assigned by Dr. Wengler, based on persistent chronic radicular pain, paresthesia or myelopathic symptoms, the judge found the opinion of Dr. Wengler to be more persuasive with respect to the employee=s post-surgical left arm symptoms.  The judge relied upon the employee=s testimony and the opinions of Dr. Monsein and Dr. Wengler, that her condition and continued radicular pain and paresthesia meet the criteria for the additional 3% rating assigned pursuant to Minn. R. 5223.0370, subp. 4D(1).

 

The compensation judge could reasonably rely upon Dr. Wengler=s opinion, that the employee sustained a total of 14.5% permanent partial disability of the whole body related to her 1999 work injury, despite other expert opinion to the contrary.  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  Substantial evidence supports the compensation judge=s finding that the employee sustained 14.5% permanent partial disability of the whole body, relative to her cervical spine, and we therefore affirm.

 

Permanent Partial Disability - Reflex Sympathetic Dystrophy

 

The compensation judge found that the employee sustained no permanent partial disability to the body as a whole relative to her diagnosis of reflex sympathetic dystrophy.  Under the permanent partial disability schedules pertaining to RSD, an employee must prove that at least five of eight enumerated conditions persist concurrently in an affected  member in order to qualify for a permanency rating in that member.  Those conditions, required by Minn. R. 5223.0410, subp. 7, and 5223.0420, subp. 6, are comprised of the following:

 

. . .edema, local skin color changes of red or purple, osteoporosis in underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulation, reduced passive range of motion in contiguous or contained joints, local alternation of skin texture of smooth or shiny, or typical findings of reflex sympathetic dystrophy on bone scan.

 

To obtain a permanent partial disability rating, the employee must show that each element set forth in the relevant schedule is met.  Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (W.C.C.A. 1987); Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987).  See

Kump v. Hillcrest Healthcare Ctr., slip op. (W.C.C.A.  Nov. 9, 1999).  In this case, the compensation judge determined that the employee did not have the requisite objective findings set forth in the permanency schedule, despite the employee=s own testimony and the testimony of the employee=s husband as to the symptoms that they had observed.  The compensation judge found various isolated notes concerning the conditions listed in the permanency schedule, and concluded that the employee has not satisfied the criteria of the relevant permanency categories regarding RSD.  Although the compensation judge concluded that Athe most likely diagnosis of the employee=s severe and debilitating symptoms is RSD or complex regional pain disorder,@ he determined that the employee had not satisfied the criteria of the relevant PPD categories regarding RSD, and therefore denied the employee=s claim for PPD benefits, explaining as follows:

 

It is true that the employee=s physicians have documented reduction in her range of motion and that there are isolated notes regarding swelling, temperature abnormality and sweaty hands.  For the most part, however, the employee=s treating doctors have indicated that they did not observe any of the eight specific RSD criteria at the time of their exams.  The compensation judge was unable to identify a single examination note which contained documentation of five of the eight criteria.

 

                                                                            * * *

 

While it appears probable that this [RSD] is the correct diagnosis for the employee=s condition, the language of the PPD schedule is unambiguous.  In order to qualify for permanent partial disability rating the employee must prove by a preponderance of the evidence that five of the eight listed conditions persist concurrently in the affected member.  After reviewing all of the medical records the compensation judge finds that the employee has not satisfied the criteria of the relevant PPD categories regarding RSD.  Her claim for PPD benefits must, accordingly, be denied.

 

The question before this court is whether there is substantial evidence in the record to support the compensation judge=s determination and whether his findings concerning permanency are not clearly erroneous.  The employee=s medical records lack documentation of five of the eight specific RSD criteria, persisting concurrently upon examination, but the record contains conflicting medical opinions concerning the employee=s permanency ratings.  Dr. Hubbard, who conducted an independent medical examination at the request of the employer,  reviewed the employee=s medical records and found no determination by any treating physician that the employee has manifested at least five of the eight requisite objective findings on a persistent, concurrent basis.  He concluded that the employee had not developed reflex sympathetic dystrophy and therefore had sustained no permanent partial disability attributable to her upper and lower extremities.  In contrast, Dr. Wengler assigned permanency ratings relative to a diagnosis of RSD, in both upper extremities and her left lower extremity, totaling 80%.^[3]  Dr. Monsein assigned a rating of 90%.^[4]

 

The language of the Department of Labor and Industry Disability Schedules, Minn. R. 5223.0410, subp. 7, and 5223.0420, subp. 6, is unambiguous and requires persistent concurrent findings on examination.  Based upon our review of the medical records, we conclude that the compensation judge reasonably concluded that the employee has not satisfied the requisite criteria, and therefore that the employee is precluded from an award of permanency benefits relative to an RSD condition.   As that finding is supported by substantial evidence and is not clearly erroneous, we affirm.