DENNIS J. JANSSEN, Employee/Appellant, v. VASKO RUBBISH REMOVAL, INC. and MINNESOTA ASSIGNED RISK PLAN/BERKLEY ADM'RS SERV. CO., Employer/Insurer, and SUPERIOR SERVS. and AMERICAN INT=L GROUP/CRAWFORD & CO., Employer/Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 10, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s determination that although the employee=s injuries in 1999 and 2000 arose out of and in the course of his employment with Superior Services, those injuries do not represent a substantial contributing cause of the employee=s reduction in earnings since the last injury, nor his physical restrictions and permanent partial disability.

 

PRACTICE & PROCEDURE - REMAND.  As the compensation judge made no finding on the issue of whether the employee has sustained 9% whole body impairment relative to a herniation at the L4-5 level, or whether the employee=s diagnosed herniation relates to the employee=s 1994 injury, this matter is remanded to the compensation judge for specific findings on whether the employee has sustained a 9% whole body impairment, and whether the employee=s injury of November 30, 1994, represents a substantial contributing cause of that permanency.

 

Affirmed in part and remanded in part.

 

Determined by Rykken, J., Wilson, J., Johnson, C.J.

Compensation Judge: Danny P. Kelly.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s finding that his work related injuries in 1999 and 2000 were temporary in nature and do not substantially contribute to his reduction in earnings since May 23, 2000.  The employee also argues on appeal that the compensation judge made no findings on the issue of whether the employee sustained a permanent partial disability to the extent of 9% whole body impairment as a substantial result of the employee=s November 30, 1994, injury.  We affirm in part and remand in part.

 

BACKGROUND

 

At issue on appeal is the nature of work-related injuries that Mr. Dennis Janssen, the employee, sustained to his low back in 1994, 1999, and 2000, while employed by Vasko Rubbish Removal, Inc. (Vasko) and its successor company, Superior Services (Superior).  The issue on appeal is whether those injuries substantially contributed to the employee=s wage loss since May 23, 2000, and to his claimed 9% permanent partial disability of the whole body.

 

The employee  has a history of a low back injury and medical treatment that predates 1994.  On November 1, 1985, he sustained an admitted low back injury while employed as a laborer by Fingerhut.  He underwent chiropractic and medical treatment following that injury.  The employee also testified that he sustained a low back injury while lifting dishes at Fingerhut on April 1, 1987.  A CT scan taken on June 16, 1992, showed a disc herniation at the L5-S1 vertebral level.   A dispute arose as to the level of permanent partial disability sustained by the employee as a result of his 1985 and 1987 injuries.  Pursuant to an award on stipulation served and filed June 24, 1993, the parties settled the employee=s claim for permanent partial disability benefits, relative to the 1985 injury, to the extent of 14% permanent partial disability of the body as a whole.^[1]  The employee testified that he continued working as a laborer for Fingerhut without restrictions.

 

The employee began working for Vasko as a Adriver/thrower@ in 1994.  He collected garbage from commercial and residential locations, which involved picking up and dumping garbage cans and pulling, dumping and lifting dumpsters.  On November 30, 1994, the employee sustained an admitted low back injury while working for Vasko. The employee underwent medical and chiropractic treatment following this injury.  An MRI scan performed on February 28, 1995, showed two-level degenerative disc disease with herniation at the L4-S1 and L5-S1 vertebral levels.  Vasko and its insurer, MN Assigned Risk Plan/Berkley Administrative Services Company, eventually paid the employee permanency benefits based upon a rating of 7% permanent partial disability of the body as a whole, relative to a herniated disc at the L5-S1 vertebral level.^[2]  Following his injury in 1994, the employee continued to work at Vasko as a driver/thrower.

 

At some point, Superior Services purchased Vasko, and the employee continued working for Superior Services as a driver/thrower.  The employee sustained four personal injuries while employed by Superior Services.  On May 23, 1999, the employee lifted a dumpster up a curb and experienced low back pain.  Following this injury, he obtained medical treatment from Dr. Philip Bachman, underwent physical therapy, and also received chiropractic treatment from Dr. Jeff Varner.  On November 30, 1999, the employee pulled a two-yard dumpster which he estimated weighed 500 pounds and experienced low back pain.  He was again examined by Dr. Varner and Dr. Bachman, who both diagnosed a lumbar strain.  He again underwent physical therapy and chiropractic treatment, and by January 10, 2000, Dr. Bachman released the employee to return to work without restrictions.

 

On February 18, 2000, while on his work route, the employee tripped on a 4x4 post and experienced low back pain.  Following this injury, Dr. Bachman diagnosed a lumbar strain, and released the employee to work at normal activities on February 22, without restrictions.  The employee continued to work for Superior.  His symptoms persisted, and on March 21 and April 7, 2000, he underwent lumbar facet blocks at the L5-S1 level.  The employee reported incomplete pain relief from these nerve blocks. 

 

On May 23, 2000, the employee again noted low back pain while working on his garbage route.^[3]  The record contains conflicting information about the circumstances of this injury.  According to the employee=s testimony, he injured his back while lifting a two-yard dumpster off the curb and pushing it back up to the building after dumping it.  He testified that while working on commercial routes, which he had done on May 23, 2000, he made approximately 60-80 stops, and lifted approximately 8 dumpsters to the curb in the course of his route.  The First Report of Injury dated June 5, 2000, includes a history from the employee as follows: Aafter completing normal route duty on _____ (illegible word in exhibit) May 22, my back pain became very bad and I feel I should not continue on route until it feels better.@  In Dr. Thibault=s chart notes dated May 23, 2000, there is no reference to a specific incident on May 22 or 23; instead, his notes state that the employee was examined as a follow-up to a facet injection on April 7, 2000, and that the employee=s pain symptoms persisted. 

 

After his injury on May 23, 2000, the employee was transferred to a lighter-duty position as a dispatcher, where he earned a lower wage than he had as a driver/thrower.  An MRI scan performed on May 27, 2000, showed that the employee=s prior L5-S1 herniation had regressed in size, resulting in less impingement on the S1 nerve root.  The MRI also showed Aa new more focal right-sided extruded disc herniation at L4-5 which is now producing moderate compression of the right L5 nerve root.  On the prior study there was mild subarticular impingement of the right L5 nerve root.@  Dr. Thibault diagnosed chronic low back pain secondary to Aeither the degenerative disc changes noted in the lumbar spine, particularly the right L4-5 disc herniation, or . . . the right L5-S1 facet joint, or . . . a combination of these problems collectively.@  Dr. Thibault referred the employee to Dr. Joel Shobe for a surgical consultation.  Dr. Shobe recommended against a discectomy and fusion at that point because he was not certain that such a procedure would alter the employee=s chronic low back pain.  Dr. Thibault thereafter referred the employee to Medical Advanced Pain Specialists for consideration of a radiofrequency nerve ablation of the right L5-S1 facet joint.

 

There are references in the medical records to the employee=s history that his low back symptoms never entirely resolved after his 1985 injury.  However, he testified that after his injuries between 1985 and February 2000, his low back pain Adid ... after awhile go away.@  The employee continued to work as a driver/thrower after his injuries on May 23, 1999, November 30, 1999, and February 18, 2000.  Following his May 23, 2000, injury, the employee=s doctor assigned permanent work restrictions, and he therefore has been unable to drive a garbage truck since that last  injury.  He instead was transferred to a dispatching job with Superior, which pays less than the wage he earned as a driver/thrower.  He testified that his low back pain following his May 23, 2000, injury differed from that which he experienced after his previous injuries, and that his pain has continued since that injury.  The employee also testified that whereas prior to May 23, 2000, his pain was limited to his right side, he now experiences pain in his entire low back and groin area.  He also testified that his pain prohibits him from participating in his former recreational activities.

 

On September 25, 2000, the employee filed a claim petition, asserting a claim against Fingerhut,^[4] Vasko and Superior, and alleging entitlement to temporary partial disability benefits since May 24, 2000, permanent partial disability, payment of medical expenses and retraining benefits.  Superior and its insurer, American International Group/Crawford & Company, denied primary liability for the employee=s injuries in 1999 and 2000.   All employers and insurers denied liability for the claimed benefits. 

 

On December 19, 2000, Dr. Robert Hartman examined the employee at the request of Superior Services and its insurer, American International Group/Crawford & Company.  Dr. Hartman diagnosed chronic low back pain, with Awell documented multi-level degenerative disc disease with herniated nucleus pulposus at L4-5 and L5-S1.@  Dr. Hartman concluded that the employee=s subjective complaints and objective physical examinations remained unchanged from before his 1999 and 2000 injuries.  He concluded the following:

 

Allegedly, Mr. Janssen has suffered injuries while employed by Superior Services on May 23, 1999, November 30, 1999, February 18, 2000, and May 23, 2000.  However, despite Mr. Janssen=s allegations of injuries to the lumbosacral spine, his subjective complaints, and objective physical examinations have remain[ed] unchanged from those performed over the preceding years.  That is, Mr. Janssen=s complaints and physical examinations have neither been unique or suggestive of new pathology.  Indeed, Mr. Janssen=s present subjective complaints are not supported by objective physical examination findings.  That is, Mr. Janssen=s physical examination is entirely normal.  Finally, the MRI scan performed on May 27, 2000, confirm[s] the presence of two-level degenerative disc disease as previously identified in 1995.  The L5-S1 disc herniation was actually smaller than previously noted.  Based on all of the available information, it can be stated within a reasonable degree of medical certainty, that the alleged injuries at Superior Services represent temporary aggravations of the chronic, pre-existing condition well-documented in the medical record.  That is, all of the alleged injuries represent a temporary aggravation of the chronic low back pain, and chronic right lower extremity radiculitis well-documented in the medical record.  There are no historical findings, physical examination findings, or advanced imaging findings to support new or unique injuries while employed by Superior Services.

 

Dr. Hartman concluded that each temporary aggravation in 1999 and 2000 lasted no longer than 12 weeks, and that the employee had reached maximum medical improvement with regard to all of his injuries sustained at Superior in 1999 and 2000.  Dr. Hartman also determined that the employee had sustained no permanent partial disability as a result of those injuries, and that he required no further chiropractic treatment.  He also assigned physical restrictions based on the employee=s chronic low back condition and his degenerative disc disease at L4-5 and L5-S1, stating that

 

Mr. Janssen is entitled to restrictions with regard to work activities, recreational activities and activities of daily living.  However, these restrictions are imposed as a consequence of the significant injuries which occurred on November 1, 1985, and secondarily on November 4, 1994.  However, the restrictions are not imposed as a consequence of the alleged injuries while employed by Superior Services.  The permanent restrictions are: no repetitious or continuous bending, twisting or stooping, no lifting greater than 25 pounds on a repetitious or continuous basis from floor to chest height.

 

Dr. Hartman concluded that the employee did not require supervised medical treatment for his injuries, and recommended a home exercise program, over-the-counter anti-inflammatory medications, and heat or ice Aas necessary to control his subjective complaints.@

 

On August 2, 2001, Dr. Robert Wengler examined the employee at the referral of his attorney; he had earlier examined the employee on February 16, 1993.   According to Dr. Wengler=s report, the employee advised Dr. Wengler that his Awork involved little lifting although he did on occasions have to lift the >corners= of 2-yard dumpsters to move them up onto a curbing.@  The employee reported to Dr. Wengler that he experienced an episode of low back pain and right buttock pain in late 1994-early 1995, that his acute symptoms responded to conservative treatment, that he returned to his regular job as a route man, and that he experienced a recurrence of his back and right leg pain after a Asimilar incident [that] occurred on May 23, 2000 when he lifted the corner of a dumpster up onto a curb.@  Dr. Wengler outlined his conclusions regarding the employee=s condition as follows:

 

Mr. Janssen was seen in 1993 for what was felt to be a disc herniation and rated by this office as having 14% whole body impairment on the basis of an L5-S1 disc herniation.  He subsequently extruded the L4-5 disc, an event that most likely occurred as a consequence of the May 23, 2000 lifting incident.  It would appear the 1994-5 lifting occurrence, based on the reported MRI finding, resulted in an aggravation of the L5-S1 pathology and no increase in his ratable impairment.  The May 2000 episode resulted in extrusion of the L4-5 disc.  The rated impairment resulting from this incident is defined by Rule 5223.0390 Subp. 4D.  This rule allows 9% whole body impairment.

 

Dr. Wengler assigned work restrictions of no lifting over 25 pounds, and no repetitive bending, stooping, heavy pushing or pulling.  He recommended no ongoing orthopedic management at this time.

 

A formal hearing was held in this matter on November 15, 2001.  Claims addressed at hearing included temporary partial disability benefits from May 24, 2000, through October 20, 2001, permanency benefits based on a rating of 9% whole body impairment, and payment of attorney fees pursuant to Minn. Stat. ' 176.191.  In Findings and Order served and filed January 14, 2002, the compensation judge found that the employee sustained injuries which arose out of and in the course of his employment with Superior Services on four dates: May 23, 1999, November 30, 1999, February 18, 2000 and May 23, 2000.  The compensation judge concluded that each of those injuries was temporary in nature, of a duration no longer than 12 weeks, and that the employee=s reduction in earnings since May 23, 2000, is not attributable to those injuries.  He found that the temporary aggravations did not represent substantial contributing factors to the employee=s reduction in earnings, physical restrictions or permanent partial disability, and denied the employee=s claim in its entirety.  The employee 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.

 

DECISION

 

1. Nature of Employee=s 1999 and 2000 Injuries

 

The compensation judge found that the employee=s injuries on May 23 and November 30, 1999, and February 18 and May 23, 2000, all arose out of and in the course of his employment with Superior Services, but that all were temporary aggravations of the employee=s pre-existing condition.  The compensation judge concluded that the duration of each injury ranged from approximately three days to twelve weeks, and found that none of those injuries represents a substantial contributing factor to the employee=s reduction in earnings since May 23, 2000, nor to his physical work restrictions or permanent partial disability.  The compensation judge therefore  found that the employee had failed to prove entitlement to the claimed temporary partial disability benefits and permanent partial disability benefits.

 

In his Findings and Order, the compensation judge outlined the injuries sustained by the employee, the diagnosis assigned after each injury, and his symptoms resulting from those injuries.  In reaching his conclusions, the compensation judge specifically adopted the opinion of Dr. Hartman concerning the nature of the employee=s injuries. 

 

The question of whether there was a causal relationship between the employee=s  work injuries and his lumbar spine condition and related symptoms is a question of fact. 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).  In addition, in order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).

 

The record contains conflicting opinions concerning the causation of the employee=s current condition and symptoms and his diagnosed herniations at the L4-5 and L5-S1 vertebral levels.  The record also contains conflicting references to the actual circumstances surrounding the employee=s injuries in 1999 and 2000 and the employee=s medical history.  The compensation judge points to inconsistencies in the employee=s medical records regarding his history.  For example, at Finding No. 7, the compensation concluded that the employee is not a good historian, and referred to medical records in1995 and 1996 that include no report by the employee of previous back injuries nor chronic health problems, references that the compensation judge found to be Ain stark contrast to the employee=s long history of low back pain, treatment, and ratable permanent partial disability.@  At Finding No. 12, the compensation judge refers to inconsistencies between the First Report of Injury completed after the employee=s May 23, 2000, injury and the employee=s hearing testimony.  The compensation judge did not accept the employee=s testimony about a lifting incident on May 23, 2000, as credible, and instead found that the Aemployee=s testimony conveniently provides support for Dr. Wengler=s opinion that a specific lifting incident was an acute event causing the new frank herniation at L4-5.@  The compensation judge then found that Dr. Wengler did not have adequate foundation for his opinion that the employee sustained a herniation of his L4-5 disc on May 23, 2000, while lifting at work.  Instead, the compensation judge adopted Dr. Hartman=s opinions regarding the causation of the employee=s current physical condition and symptoms.

 

"Assessment of witness credibility is the unique function of the factfinder."  Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  We therefore must rely on the compensation judge=s credibility assessment regarding the event precipitating the employee=s May 23, 2000, injury.

 

The employee argues that Dr. Hartman=s opinion lacks foundation, and that the compensation judge erred in relying on it.  Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  Following his examination of the employee on December 19, 2000,  Dr. Hartman prepared a report in which he expressed his opinion concerning the causation of the employee=s condition, outlining the history that he obtained from the employee and from the medical reports he reviewed.  That history, as described by Dr. Hartman, is generally consistent with the employee=s medical records.  Dr. Hartman concluded that the employee=s injuries in 1999 and 2000 were temporary in nature and did not relate to the employee=s current condition, wage loss and permanent partial disability, and the compensation judge found his opinion to be persuasive.  As the information contained in Dr. Hartman=s report is consistent with the evidence of record, his opinion is adequately founded, and the compensation judge did not clearly err in relying on his opinion, as a compensation judge has considerable discretion in choosing among conflicting expert opinions.  See Nord v. City of Cook, 360 N.W.2d 337, 342-343, 37 W.C.D. 364, 372-73 (Minn. 1985).^[5] 

 

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).  The compensation judge found that the employee=s injuries at Superior Services in 1999 and 2000 represented temporary aggravations of the employee=s pre-existing condition, and did not represent a substantial contributing factor to the employee=s reduction in earnings since May 23, 2000, nor to his physical work restrictions or permanent partial disability.  As the compensation judge=s conclusion is supported by substantial evidence, including the employee=s medical records, and since that conclusion is not clearly erroneous, we therefore affirm.

 

2. Separate Claim for 9% Permanent Partial Disability Rating 

 

At hearing, the employee asserted a claim for permanent partial disability benefits relative to a herniated disc at the L4-5 level, due either as a result of his May 23, 2000, injury or, alternatively, due to his November 30, 1994, injury.  That claim was addressed by counsel for the employee as follows:

 

MR. DREWSKI: Very briefly, Your Honor, it=s the employee=s position that on or about May 23, 2000, while employed at Superior Services, he suffered a low back injury.  Dr. Wengler in his deposition opined a nine percent whole body impairment as a result of that incident.  That is based on an MRI scan which shows an L4-5 herniated disk with impingement.

 

* * *

 

In the alternative, Your Honor, it=s our position that based upon Dr. Paul Yellin=s report, an independent medical evaluator, Dr. Yellin, opined a nine percent whole body impairment due to the Vasco injury of 11/30/94.  For your informational purposes, that=s based on Dr. Yellin=s diagnosis of again an L4-5 condition that Dr. Yellin describes as a contained disk herniation, although it does not extrude, nor does it impinge. 

 

(T. 7-8.)

 

In his findings and order, the compensation judge listed the following as one of the issues to be addressed:

 

Whether the employee is entitled to 9% permanent partial disability of the whole body in accordance with Minn. Rule 5223.030, subp. 4D relating to an L4-5 herniation with impingement.

 

At Order No. 1, the compensation judge denied the employee=s claim for permanent partial disability benefits.  At Finding No. 17, he concluded that the employee=s Atemporary aggravations of May 23, 1999, November 30, 1999, February 18, 2000, or May 23, 2000, . . . are not a substantial contributing factor to the employee=s reduction in earnings, physical restrictions or permanent partial disability.@  In his findings and order the compensation judge did not specifically address whether the employee is entitled to benefits based upon a rating of 9% permanent partial disability of the body as a whole, nor did he specifically address the employee=s alternative claim that he sustained permanent partial disability as a result of his injury on November 30, 1994.

 

The employee appeals, arguing that the compensation judge made no finding on the issue as to whether the 1994 work related injury at Vasko resulted in a permanent aggravation of the employee=s low back condition.  The employee argues that the compensation judge Amerely determined that Vasko was entitled to a credit, pursuant to Minn. Stat. ' 176.179, for the 7% permanency benefit which it had previously paid for the L5-S1 disc herniation.@  (Employee=s brief; emphasis added).  The employee further argues that it is still necessary to determine whether Vasko has responsibility for the employee=s current condition, including the L4-5 herniation, in the event the employee is ultimately entitled to benefits from Vasko and its insurer in excess of their credit.  Relying in his appellate brief on the expert medical opinions of Drs. Paul Yellin and Paul Wicklund, the employee argues that the 1994 work injury Aresulted in a permanent aggravation, and represented the first sign of L4-5 disc herniation.@^[6]

 

It is not clear from the compensation judge=s findings and order whether he denied each of the employee=s two alternative claims for permanency benefits.  As trier of fact, a compensation judge is responsible for determining the degree of disability after considering all evidence and relevant legal factors in a case.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983); see Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992).  Accordingly, medical testimony is considered helpful but not dispositive on the issue of disabili­ty.  Id.; see Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989) (determination of degree of permanency rests with compensation judge and not a member of medical profession).  In this case, the compensation judge adopted the opinion of Dr. Hartman, who had diagnosed the employee with a herniation at the L4-5 level, and who had concluded that the L4-5 herniation pre-existed the employee=s injuries in 1999 and 2000.  Relying on Dr. Hartman=s opinion, the compensation judge found that the employee has no physical restrictions or permanent partial disability attributable to the employee=s 1999 and 2000 injuries sustained while working at Superior.  However, the compensation judge made no finding on the issue of whether the employee has sustained 9% whole body impairment relative to a herniation at the L4-5 level, or whether the employee=s diagnosed herniation relates to the employee=s 1994 injury.  We therefore remand this matter to the compensation judge for specific findings on whether the employee has sustained a 9% whole body impairment, and whether the employee=s injury of November 30, 1994, represents a substantial contributing cause of that permanency, if any.  The compensation judge should make this determination based on the existing record.