JODI R. FOSSEY, Employee, v. K-MART CORP., SELF-INSURED/CAMBRIDGE INTEGRATED SERVS., Employer/Appellant, and MAYO FOUND., Intervenor, and MOWER CO. DIST. COURT, Party in Interest.

 

WORKERS' COMPENSATION COURT OF APPEALS

AUGUST 21, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge's finding that the employee's right hand tremor was causally related to her work injury.

 

PERMANENT PARTIAL DISABILITY - REFUSAL OF TREATMENT; PERMANENT PARTIAL DISABILITY - WEBER RATING.  Where the employee had reasonably refused additional medical treatment, the compensation judge's finding of permanent partial disability was not premature.  There is no requirement that a non-scheduled injury meet specific requirements of any given category for the employee to assigned a Weber rating.  Substantial evidence, including expert medical opinion, supports the compensation judge's finding that the employee was entitled to a 75 % permanent partial disability rating.

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert vocational opinion, supports the compensation judge's finding that the employee is permanently and total disabled. 

 

Affirmed.

 

Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: James R. Otto.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge's findings concerning the nature of the employee's work-related injury of June 15, 1998, from his finding that the employee has been permanently totally disabled from September 1, 1998, and from the compensation judge's award of permanent partial disability benefits relative to that injury.  We affirm.

 

BACKGROUND

 

Jodi Fossey, the employee, sustained an admitted injury on June 15, 1998, in the nature of bilateral carpal tunnel syndrome and reflex sympathetic dystrophy of the right upper extremity.  The primary disputes on appeal relate to a right hand tremor the employee developed in July 1999 and the disability and benefits the employee claims as a result of that tremor.

 

On June 15, 1998, the employee worked as a cashier for K-Mart, the self-insured employer, where she had worked both as a greeter and cashier for twenty years.  At the time of her injury, the employee was 39 years old and earned a weekly wage of $339.66.  According to the employee's medical records, she was developmentally delayed as a child and required tutoring and special education while in elementary and secondary school.  According to testimony by a representative from the employer and vocational experts, the employee was provided special accommodations throughout her employment with the employer.  She continued working after her injury until early September 1998.  She underwent carpal tunnel release surgery on her right wrist on September 10, 1998, and began a course of physical therapy thereafter.  Her pain and symptoms continued post-surgery.  Her surgeon, Dr. Russell Kooy, diagnosed possible reflex sympathetic dystrophy (RSD).  At his referral, the employee began treating at the Mayo Hand Clinic on December 7, 1998, complaining of pain in her hand and wrist radiating up into her right shoulder.  Dr. Ralph Gay diagnosed the employee with chronic regional pain syndrome type I of the right hand,^[1] recommended additional studies to see if the employee would benefit from sympathetic blocks, and prescribed Neurontin, a type of antiseizure drug.  The employee underwent a stellate ganglion injection on December 14, 1998, which reportedly improved her pain level and increased the temperature in her right upper extremity.  She received additional therapy and follow-up treatment with Dr. Gay and her prescription for Neurontin was eventually discontinued.

 

In May 1999, the employer offered the employee a position involving watering flowers with a hose.  The employee attempted that job, using her left hand, working two hours per day for less than a month.  The employee testified that her symptoms in both wrists worsened as a result of using a lever-action spray nozzle and she therefore discontinued working.

 

In June 1999, the employee was admitted to a three-week course of treatment in the Mayo Clinic Pain Rehabilitation Center with a diagnosis of right hand and arm pain, chronic right shoulder pain, complex regional pain syndrome Type I, and depressive disorder.  On July 2, 1999, the employee was prescribed Effexor, an anti-depressant or anti-anxiety medication.  Within two weeks, the employee developed a significant right hand tremor.  She reported this to Dr. Michael Gregg, her family doctor; on July 18, 1999, he discontinued her Effexor prescription.  On July 19, 1999, the employee reported to the Pain Rehabilitation Center with a pronounced shake of her right hand and wrist.  According to the pain clinic records, although the employee could control her upper arm by holding down her wrist area with her left hand, she experienced repetitious raising of her right hand, fairly rapidly, approximately 100 times per minute. The tremor did not dissipate after discontinuation of the Effexor.  The employee alleges, and her medical records bear out, that her constant tremor has rendered her right upper extremity useless for any activities.

 

The employee has undergone extensive testing to determine the cause of her right hand tremor.  Dr. Gregg's assessment on August 3, 1999, was that the tremor was Aprobably associated with the reflex sympathetic dystrophy and exacerbated or instigated by Effexor.@  She was examined by Dr. Steven Vernino, a neurologist at Mayo Clinic, on August 11, 1999.  He found the employee's tremor to be unusual in terms of the muscles involved and the amplitude and variability of frequency of the tremor.  He also found it unusual for the tremor to persist after discontinuing the medication, Effexor.  He questioned the cause of the tremor, whether it was an organic tremor or a functional one related to pain, but commented that the tremor's persistence while the employee slept evidenced an organic tremor.  He found some evidence of static encephalopathy given her developmental delay and concluded that Apossibly her response to medications or perhaps the origination of the tremor resides in the central nervous system.@

 

On August 19, 1999, at Dr. Vernino's referral, the employee was evaluated at the Mayo Clinic Movement Disorder Laboratory.  Dr. J.H. Bower concluded that the employee's findings on EMG were unusual for most tremor disorders, and that Athe lack of distractibility argues in favor [of] organicity.@  Thereafter, Dr. Vernino recommended prescription of Inderal, a type of beta blocker, to treat the employee's tremor, and, if that failed, recommended Botox injections into the employee's flexors and extensors of her right arm to weaken those muscles and dampen her tremor.  Dr. Vernino acknowledged that the Botox treatment would diminish the tremor but that the employee might be left with some wrist weakness.  The employee tried Inderal, with no benefit, but declined the Botox treatment, with concerns about potential side effects and complications.

 

By report issued from the Mayo Clinic Impairment Evaluation Center on October 11, 1999, Dr. David Haaland concluded there was no evidence of RSD, and the Mayo Clinic Motion Laboratory identified no physical cause of the employee's tremor.  Dr. Haaland noted that he had never seen a tremor like the employee's and suggested that other issues were Aplaying a role in this case,@ including psychiatric issues, and concluded that the tremor was of Aunknown etiology.@  He assigned a 2% rating for each arm, for a total of 4% permanent partial disability of the whole body, based on pain and paresthesia in her elbows and forearms, pursuant to Minn. R. 5223.0460, subp. 2D(3).

 

In May 2000, the employee was again offered a position by the employer, dusting shelves using a mitt on her left hand.  Dr. Gregg pre-approved this position for two hours per day  Aas long as it is not bothering her.@  Dr. Gregg also approved limited stocking tasks, but restricted her from repetitive work with the left hand.  The employee testified that her left wrist pain increased as a result of this task, and she discontinued working at this position.

 

The employee was again examined at the Austin Medical Center on May 24, 2000, by Dr. Gregg.  He described neuropathic pain, and stated that, AOn exam, she seems to be numb everywhere, not just in the median nerve distribution.  I do not know what is going on here.  The right upper extremity is quite sensitive to touch.@  He prescribed muscle relaxants for neuropathic pain.  The employee was re-evaluated by Dr. Gay on June 13, 2000, for continued symptoms.  He again diagnosed chronic regional pain syndrome of the right upper extremity to include the shoulder, along with mild bilateral median neuropathy in the right wrist and chronic left wrist pain.  Dr. Gay recommended further treatment, including an MRI of the left wrist and right shoulder, a repeat EMG of the left upper extremity, x-rays of the left wrist and right shoulder, and a psychology evaluation regarding the employee's chronic pain syndrome. 

 

At the request of the employer, the employee has undergone two examinations with Dr. Chris Tountas, orthopaedic surgeon, on November 4, 1998, and June 2, 2000.  After his first examination, Dr. Tountas diagnosed post decompression of the right carpal tunnel and findings indicative of mild RSD, along with continuing symptoms of left carpal tunnel syndrome.  He recommended a repeat EMG to evaluate residual or recurrent carpal tunnel syndrome, treatment with stellate ganglion blocks, and less vigorous physical therapy.  Following his examination on June 2, 2000, Dr. Tountas concluded that the employee's previously-diagnosed mild RSD had resolved.  As to the employee's tremor, he recommended additional evaluations to assess whether the tremor was functional or organic in nature.  He felt there was no organic basis for her complaints, and recommended a neurological evaluation to rule out any underlying physiological problems.  Dr. Tountas assigned a permanency rating of 3% permanent partial disability of the whole body relative to the employee's right arm, referencing Minn. R. 5223.0470, subp. 2B(3).

 

The employee was referred by her attorney for an examination by Dr. Robert Wengler, orthopaedic surgeon, on September 21, 1999.  Dr. Wengler diagnosed bilateral carpal tunnel syndrome, reflex sympathetic dystrophy of the right upper extremity, and a Aprobable@ drug induced tremor.  Dr. Wengler advised that he had not ever seen a tremor like the employee's, and concluded that the tremor was probably an idiosyncratic reaction to the use of the drug Effexor.  Dr. Wengler recommended discontinuance of the employee's medications and recommended against Botox injections, as in his opinion Botox is a toxic agent and remains a controversial treatment.  He advised no use of the employee's right upper extremity and limited use of her left upper extremity.   Dr. Wengler assigned a permanency rating of 75% permanent partial disability of the whole body relative to the employee's tremor, finding the employee's functional impairment to be equivalent to that set forth in Minn. R. 5223.0360, subp. 7E(1)(d).

 

The employee was sent by the employer for a psychiatric evaluation with Dr. John Rauenhorst on August 29, 2000.  Dr. Rauenhorst did not find a causal relationship between the employee's psychological condition and her tremor.  He concluded that the employee's tremor Awas caused by the same nervous system disorder which resulted in her borderline low I.Q., and an idiosyncratic effect of the drug Effexor.@  Dr. Rauenhorst testified that he has evaluated and treated patients with tremors and that he has seen a temporal relationship between the use of Effexor and tremors, although he has never seen a unilateral tremor resulting from the use of Effexor or other drugs.   Dr. Rauenhorst concluded that the employee's tremor is not directly related to her work injury, since the Effexor apparently was prescribed for her depression and not for her injury-related pain.

 

The employee was referred by her attorney for an evaluation by Dr. Norman Cohen, Ph.D., licensed psychologist, on October 30, 2000.  At the time of the examination, Dr. Cohen found no gross psychopathology, depression or other mood or psychiatric disturbance.  He found, however, that the employee has difficulty with performing all activities of daily living.  He commented that it was unclear from the employee's Mayo Clinic records whether she was prescribed Effexor for depression alone, for pain, or for both.  He deferred a determination of the cause of the employee's tremor to other medical experts, but stated that if the employee was prescribed Effexor for depression, it was clear that issues directly related to her work-related injury, such as pain and sleep disturbance, contributed substantially to this depression.

 

On June 7, 2001, the employee also underwent a neurological evaluation with Dr. Joel Gedan, at the request of the employer.  Dr. Gedan diagnosed the employee as having upper extremity complaints compatible with bilateral carpal tunnel syndrome, and diagnosed generalized non-anatomic pain and sensory disturbance of the left arm.  Dr. Gedan concluded that the employee's previous RSD had improved with time and treatment and that he now found no signs of RSD or other type of neuropathy or myalgia in the right upper extremity.  He felt the tremor was Aprobably organic, that is more likely than not, relates to an organic component which is related to central nervous system dysfunction.@  He concluded that the tremor is of undetermined etiology and not causally related to the use of Effexor in July 1999, concurring with Mayo Clinic physicians' diagnosis of an idiopathic right upper extremity disorder.  Dr. Gedan opined that Botox injection treatment might not be helpful due to the widespread nature of the employee's tremor, but that such injections would be safe and much less invasive than the alternatively-proposed implantation of a stimulator.  He concluded that if the employee did not choose or was not a candidate for Botox injections, then she was at MMI.

 

Dr. Gedan determined that the employee was unable to use her right arm for any purposeful or functional activity due to her tremor.  He recommended that the employee not perform repetitive activities with her left hand, including repetitive flexion, gripping and working with vibrating and power tools.  Dr. Gedan assigned a permanency rating of 3% whole body impairment^[2] relative to the employee's right wrist.  In his report he referred to a 75% permanency rating relative to the employee's upper extremities, but stressed that this permanency rating is not work-related.

 

On July 3, 2001, the employee was referred by her attorney for a neurological examination with Dr. James Allen, who concluded that the employee developed bilateral carpal tunnel syndrome as a result of her work at K-Mart and later developed a reflex sympathetic dystrophy of the right upper extremity.  Concerning the employee's tremor, Dr. Allen concluded that it was Athe constant barrage of abnormal sensory (mainly pain) and autonomic impulses which were 'shorting out' the system and causing persistence of the tremor.@  He found the tremor to be related to the employee's work injury, and provided the following opinion concerning the cause of the employee's tremor:

 

In my opinion, this definitely relates to the complications from the carpal tunnel decompression surgery that was done because of the work-related carpal tunnel syndrome.  We have begun seeing more of these peripheral movement disorders associated with occupations involving repetitive use of extremities.  Sometimes this can result in a dystonia or similar problem (e.g., writer's cramp), but other movement disorders can occur as well.  This is poorly understood as yet, but the literature has been accumulating over the past few recent years.  There is some evidence to suggest that this is a short-circuit, much like hot-wiring a car to get it started by creating a short-circuit rather than going through the usual ignition pathways.  In this case, it would be likely that the chronic pain and RSD associated with the carpal tunnel syndrome and the subsequent surgery on the right brought this about, perhaps by the pain impulses short-circuiting through the pain and autonomic fibers to the motor fibers, causing them to contract rhythmically and produce the tremor.  There are modulating areas in the brain, for example the cerebellum and basal ganglia, which modify the sensory and motor functions.  Although no one can say for certain, it may well be that Ms. Fossey had some deficiency in these central modifying areas stemming from her developmental problems, which caused no problem up until these other conditions developed.  It would certainly also be possible that the Effexor then triggered the tremor, acting as Athe final straw that broke the camel's back,@ so to speak.  Normally, one would expect that discontinuing the medication would cause the tremor to abate, but in this case, with the developmental factors and with the chronic pain and autonomic discharges barraging the central pathways, the tremor has continued to persist.  Apparently there was some question as to why the Effexor was ordered - - whether for pain or depression - - but I think that is a point of no consequence since the chronic pain that Ms. Fossey experienced from the RSD and the loss of her self-esteem from being unable to work, needing the help of others for daily activities, etc., was certainly a substantial causative factor in leading to the prescription of Effexor.

 

On October 12, 1999, the employee filed a claim petition, alleging entitlement to an underpayment of temporary total and temporary partial disability benefits and payment of permanency benefits based upon a rating of 75% permanent partial disability of the whole body relative to the employee's right upper extremity.   The employee also filed for retraining benefits.  In its answer to the employee's claim petition, the employer admitted an injury in the nature of bilateral carpal tunnel syndrome and reflex sympathetic dystrophy of the right upper extremity, but denied the employee's claims for temporary disability benefits and claimed rehabilitation and retraining benefits.  The employer filed a motion to change the employee's qualified rehabilitation assistant (QRC).  The employee later amended her claim to include permanent total disability benefits.

 

All matters were consolidated for hearing on July 17, 2001.  The issues addressed at hearing were as follows:

 

1.  The nature of the employee's personal injury of June 15, 1998 or any consequential injury.

 

2.  The extent of permanent partial disability sustained by the employee as a result of her personal injury on June 15, 1998, or any consequential injury.

 

3.  Whether the employee was entitled to rehabilitation assistance and whether such services were appropriate for the employee.

 

4.  Whether the employee was permanently totally disabled from employment as a substantial result of her June 15, 1998, injury and whether she has met the statutory threshold of permanent partial disability required for entitlement to permanent and total disability benefits.

 

In Findings and Order served and filed September 27, 2001, the compensation judge found that, as a result of her June 15, 1998, injury, the employee sustained bilateral carpal syndrome, consequential reflex sympathetic dystrophy in her right upper extremity, a permanent tremor in her right upper extremity, consequential right shoulder pain and consequential permanent left hand pain and weakness.  The compensation judge found that as a result of these injuries, the employee requires some assistance with activities of daily living itemized in Minn. R. 5223.0310, and has been permanently totally disabled since September 1, 1998.  The judge found that, at this point, the employee would not benefit from any rehabilitation services, including evaluation for retraining.  He concluded that the employee had reached maximum medical improvement from her injury, that she had sustained 75% permanent partial disability of the whole body relative to her right upper extremity, and that the employee has met the statutory threshold of permanency required by Minn. Stat. ' 176.101, subd. 5, to receive benefits for permanent total disability.  The compensation judge also referred this matter to district court for a determination of whether the appointment of a conservator or other protective arrangement is required under the provision of Minn. Stat. ' 176.525.54 to provide for the proper management of the monies awarded to the employee. The employer appeals.

 

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.

 

A[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).

 

DECISION

 

I.  Causal Relationship Between Work Injury and Right Hand Tremor

 

The employer appeals from the compensation judge's determination that the employee's right hand tremor was causally related to her injury of June 15, 1998.  The employer argues that there is no substantial evidence to establish that the tremor is related to either the employee's work activities, her bilateral carpal tunnel syndrome or her reflex sympathetic dystrophy.

 

An employee must prove her claim by a preponderance of the evidence that her work injury was at least a substantial contributing cause of her injury and resulting disability.  The burden is on the employee to prove by a fair preponderance of the evidence that the employee is entitled to workers' compensation benefits.  Fisher v. Saga Corp., 463 N.W.2d 501, 43 W.C.D. 559 (Minn. 1990).  In order to recover workers'compensation benefits, the employee must show that the work-related injury is a substantial contributing factor to his current disability.  Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992).  In this case, the employee relied upon the medical opinions of multiple physicians in support of her claim.

 

The record contains multiple and divergent medical opinions on causation of the employee's tremor.  On that basis, the employer argues that this is a rare case where, despite numerous opinions and significant and elaborate testing, there is simply no known cause for the employee's right upper extremity tremor.  However, on the issue of causation, the compensation judge accepted the opinions of Drs. Wengler, Allen and Cohen, over those of Drs. Tountas, Gedan and Rauenhorst.   Dr. Wengler concluded that the employee's tremor resulted from the use of either Neurontin or Effexor, the latter of which he believed was prescribed to control symptoms of depression related to RSD.  Dr. Allen concluded that the employee's chronic pain syndrome resulting from her carpal tunnel syndrome and RSD led to the prescription of Effexor, and that the Effexor, in effect, triggered her right arm tremor.  The employer specifically contests the foundation of Dr. Allen's opinion because he relied on a medical journal article which, the employer claims, is irrelevant since none of the patients researched in the article had clinical presentations similar to the employee in this case.  However, this argument goes to the weight to be accorded to Dr. Allen's opinion, not to the foundation of his opinion. Dr. Allen conducted a neurological examination of the employee, reviewed her extensive medical records, and is a board-certified neurologist.  His opinion, therefore, does not lack foundation.

 

Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony, and his 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, 37 W.C.D. 364 (Minn. 1985).  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).  In this case, although there are medical opinions contrary to the judge's findings, there is adequate foundation for each of the medical experts' opinions, and there is ample evidence of a causal relationship between the employee's work injury and her right hand tremor.  Accordingly, we must defer to the compensation judge's choice among the expert opinions, and affirm the compensation judge's finding that the employee's right hand tremor is causally related to her June 15, 1998 work-related injury.

 

II.  Extent of Permanent Partial Disability

 

The employer appeals from the compensation judge's finding that the employee has sustained 75% permanent partial disability of the whole body.  A compensation judge is responsible to determine under which rating 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).  A compensation judge's finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  Relying on Dr. Wengler's and Dr. Allen's opinions, the judge concluded that a 75% permanency rating most closely approximates the employee's disability involving her right upper extremity, and assigned a Weber ^[3] rating at that level.  The employer contests this assignment of permanent partial disability on two bases, first, that the assignment of permanency is premature, and, second, that the employee does not meet the criteria of the permanency schedule needed to qualify for the 75% rating.

 

The employer first contends that an assessment of permanent partial disability is premature since the employee has refused to undertake additional medical treatment which would likely result in substantial reduction of her tremor.  The employer argues that this refusal is unreasonable and justifies suspension of benefits Aon the theory the disability is then attributable to the employee and not to the employer.@  Curtis v. Cal Inland/K & C Distributing, slip op. (W.C.C.A. Mar. 13, 1995), citing Reese v. Preston Marketing Ass'n, 274 Minn. 150, 152, 142 N.W.21d 721, 722, 23 W.C.D. 810, 813 (1966).  In Reese, when referring to medical treatment refused by an employee, the supreme court stated that the Atest of reasonableness [of a refusal to undergo treatment] is based on a variety factors, including the danger attendant upon the operation, the prospect of success, and the pain and discomfort which may result.@  Reese, 142 N.W.2d at 722-23, 23 W.C.D. at 813.  In Dotolo v. FMC Corp., 375 N.W.2d 25, 28, 38 W.C.D. 205, 208 (Minn. 1985), the supreme court stated that "[w]hether refusal of treatment is reasonable requires 'weighing of the probability of the treatment's successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant.'"  1A. Larson, The Law of Workmen's Compensation, ' 13.22(b) (1985).@  The employer and insurer bear the burden of proving unreasonable refusal of treatment.  Daggett v. Nobles Indus., slip op. (W.C.C.A. June 24, 1992).

 

Applying the balancing test set forth in Dotolo, to the evidence of record, we compare the probability that the Botox treatment will successfully reduce the employee's disability by a significant amount, against the risks of that treatment.  The medical experts agree that the employee's tremor is her most disabling condition and  that calming the employee's tremor would significantly reduce her disability and increase her functional capacity.  Dr. Vernino, neurologist, suggested Botox injections to dampen the tremor.  However, the employee declined the Botox treatment, as she is concerned about the potential adverse consequences of such treatment.  Dr. Wengler expressed concern about Botox in view of the employee's history of and adverse reaction to carpal tunnel syndrome and corrective surgery, and her adverse reaction to medications.  Dr. Allen testified about his concerns with the proposed Botox treatment, that such treatment would result in a flaccid wrist and arm, and concluded that he would instead recommend alternative treatment, such as implanting an electrode in an attempt to inhibit the tremor.  Dr. Allen also concluded that the employee had undergone the standard, conventional treatments for her condition.  Dr. Gedan concluded that the Botox treatment should be considered by a specialist in that field and would be a less invasive treatment than an implanted electrode.

 

This comparison, made in view of the entire evidence of record, supports the compensation judge's assessment of permanent partial disability.  Under the circumstances of this case, we cannot say that the employer and insurer have met their burden of establishing an unreasonable refusal of medical treatment likely to result in significant improvement of the employee's condition, as required by Dotolo. See Majerus v. Engle Fabrication, slip op.(W.C.C.A. Jan. 27, 2000).  In view of the employee's basis for refusing the recommended treatment, and in view of the record as a whole, the employee's refusal to undergo the Botox treatment was reasonable, is not a failure to cooperate with recommended medical care, and therefore does not provide a basis for the employer's argument that assessment of permanent partial disability is premature.

 

The employer also argues that the employee does not meet the specific criteria necessary for a 75% permanency rating, including signs or symptoms of organic brain dysfunction and the need for some assistance with activities of daily living.  Minn. R. 5223.0360, subp. 7E(1)(d), and 5223.0310, subp. 5.  The compensation judge designated this as a Weber rating.  In Weber v.  City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), the Minnesota Supreme Court held that non-scheduled injuries resulting in functional impairment could not be excluded from coverage by the permanent partial disability schedules.  The legislature essentially codified the Weber decision in 1992 Minn. Laws 510.  Minn. Stat. ' 176.105(1)(c), states as follows:

 

If an injury for which there is objective medical evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.

 

The employer does not dispute the assignment of a Weber rating, but instead argues that this rating does not accurately reflect the level of the employee's disability.  The employer argues that the employee does not meet the criteria of the utilized portion of the permanency schedule, including the requirement that she is unable to perform activities of daily living and that she has signs or symptoms of Aorganic brain dysfunction@ due to illness or injury.   However, a Weber rating does not require an employee to meet the schedule's criteria.  As this court previously stated:

 

The purpose of a Weber rating is to approximate the functional loss suffered by the employee by comparing the disability to similar losses included in the schedule.  Since a non-scheduled injury, by definition, falls outside the schedule, there is no requirement that any particular category in the schedule be applied, or that the injury meet the specific requirements of any given category.  Rather, the permanency schedule provides a point of reference, for the purpose of comparison, to insure some objectivity and consistency in the permanency ratings made.

 

Crain v. Riverview Healthcare Ass'n, slip op. (W.C.C.A. Nov. 9, 1998).

 

Both Drs. Wengler and Allen determined that the employee sustained 75% permanent partial disability of the whole body relative to her right upper extremity, and also determined that this permanency is related to the employee's work-related carpal tunnel syndrome and complications developed from carpal tunnel surgery.  Based on the medical evidence as a whole, this rating appears to most closely approximate the functional loss sustained by the employee as a result of her work- related injury.  The compensation judge relied upon those opinions as a basis for his finding concerning the level of the employee's permanency rating, and his finding is supported by substantial evidence in the record as a whole.  We must, therefore, affirm.

 

III.  Permanent Total Disability Claim

 

The employer appeals from the compensation judge's determination that the employee is permanently totally disabled from employment as a result of her work-related injury.  The employer contends that the employee is neither vocationally nor medically permanently totally disabled.  The employer argues that a return to work and retraining have not yet been fully explored.  The employer relies on opinions of both vocational experts that because of her long-standing development disorder, she needs additional time, coaching and training to perform basic job tasks, but that she has a long history of successful employment, and her doctors agree that it is important for her to remain as independent as possible.  The employer also argues that certain adaptive measures could be taken to allow the employee to become more functional, and that the employer has employment available within the employee's restrictions.

 

The concept of Atotal disability@ depends primarily on an employee's ability to find and hold a job, and not solely on his or her physical condition.  McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983).  Under the Minnesota workers' compensation act, Atotally and permanently incapacitated@ means that the employee has sustained a requisite level of permanent partial disability, and the employee's Aphysical disability in combination with [the required level of permanent partial disability of the body as whole] causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Minn. Stat. ' 176.101, subd. 5.  A[A] person 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 an 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).

 

Review of the employee's medical records shows that she was developmentally delayed as a child and required tutoring and special education while in elementary and secondary school.  According to testimony by a representative from the employer and vocational experts, the employee was provided special accommodations throughout her employment with the employer, as a result of the employee's developmental delays and IQ.  The employee underwent a psychological assessment and an evaluation of cognitive functioning on June 29, 1999, in conjunction with her course of treatment at the Mayo Clinic Pain Rehabilitation Center.  Dr. Christopher Sletten, Ph.D.,  noted that the employee Aworked very slowly and had a limited effort guessing at items.  She did appear to have difficulty writing and there was an observed tremor.@  Dr. Sletten concluded that the employee was functioning in the mildly retarded range of intelligence, with evidence of attention/concentration difficulties.  He noted a variability in the employee's performance of a variety of memory and new learning tasks, information that he deemed quite important regarding further vocational and occupational assistance.

 

In his report of August 9, 2000, QRC John Peterson stated that he did not recommend any rehabilitation services such as job placement, return to work with K-Mart, retraining, or vocational testing until the issues with the employee's left hand are addressed, and that given her significant bilateral hand disabilities, along with her intellectual deficits, he was not optimistic that the employee would be capable of competitive employment.  In his report of March 8, 2001, vocational expert Richard Van Wagner concluded that the two jobs offered to the employee by the employer were physically and economically suitable for the employee.  He concluded that the employee had not conducted a reasonably diligent job search in the Austin, Minnesota, labor market, and that the employee would be able to engage in selected cashiering positions in that or other labor markets.  He recommended that the employee seek evaluation and employment services at a rehabilitation facility in Austin.  The compensation judge relied on QRC Peterson's testimony, as opposed to that of Mr. Van Wagner, in reaching his conclusions regarding the employee's permanent total disability status.  The compensation judge's finding that the employee is permanently totally disabled is supported by substantial evidence of record, including the QRC's opinion and other evidence of record.

 

The employer also argues that a determination of permanent total disability is premature from a medical standpoint, since the employee has refused to undertake additional medical treatment which would likely result in substantial reduction in her tremor, the employee's most disabling condition.  For the same reasons outlined in the previous section, concerning the employee's refusal to undergo recommended medical treatment, we conclude that this refusal was reasonable under the circumstances and should not serve as a basis for suspension of benefits.  We are aware of the employer's arguments that all efforts should be made on employee's behalf to return her to work and that adaptive measures and tools could be implemented to increase the employee's functional ability. However, the compensation judge's determination of the employee's permanent total disability status is supported by substantial evidence of record, including the employee's medical records, expert medical testimony and the employee's testimony, and therefore was not premature.  Accordingly, we affirm.