The employee appeals the compensation judge’s findings regarding permanent partial disability ratings for brain dysfunction and reproductive and urinary tract dysfunction.  The employer and insurer cross-appeal the compensation judge’s findings regarding permanent partial disability ratings for brain dysfunction and vision impairment.  We affirm in part, vacate in part and remand in part.

On October 8, 2001, Thomas Nerud, the employee, sustained multiple injuries in a motor vehicle accident while working as a truck driver for Duininck Brothers, Inc, the employer, which was insured for workers’ compensation liability by GAB Robins, the insurer.  The employee, age 35 at that time, was injured when his truck collided with an oncoming train.  The parties stipulated that the employee sustained injuries to his low back, right and left knees, head, eyes, right shoulder, and urinary tract, and that he later was diagnosed with depression as a result of his injuries.  The parties have also stipulated that the employee has been permanently and totally disabled as a result of the truck-train collision; the employer and insurer have paid permanent total disability benefits since the date of the injury.

Following his injury, the employee received emergency medical treatment at Tyler Health Care Center, and was flown by helicopter to the Avera McKennan Hospital in Sioux Falls, South Dakota, where he was hospitalized for one week.  He sustained a closed head injury as a result of the truck-train collision; he had, and continues to have, complete amnesia of the collision and the hours preceding the collision, and has experienced various cognitive limitations and emotional reactions since his collision.  A CT scan performed during his hospitalization was interpreted as showing a subdural hematoma and brain contusion.^[1]  He was discharged from the hospital with the diagnoses, among other conditions, of nonsurgical subdural hematoma and cerebral contusion.

The employee received follow-up treatment with physicians at the Affiliated Medical Center in Willmar, Minnesota; he consulted Dr. Joann Neubauer, D.O., on October 19, 2001, and reported continued headaches and significant difficulty with thinking and concentration, dizziness, bladder symptoms, and low back pain, and expressed frustration with his limitations resulting from his injury.  Dr. Neubauer diagnosed the employee with a resolving subdural hematoma, and probable disc disruption on the lumbar spine.  She recommended physical and occupational therapy to assist with pain management, and also cautioned that the employee was at risk for seizures based on his radiographic results.^[2]  Dr. Neubauer also referred him for additional neurological and neuropsychiatric evaluations.

The employee’s medical records in evidence outline his continued symptoms and ongoing evaluations and testing, and also outline his mood and emotional disturbances which he has experienced following his injury.  Dr. Andrew Chang, neurologist, examined the employee on December 21, 2001, and concluded that the employee had sustained a traumatic brain injury (TBI) and recommended a formal TBI program and neuropsychiatric testing.  Robert Karol, Ph.D., L.P., conducted a neuropsychological evaluation on March 2, 2002.  At that time, the employee reported impaired concentration and short-term memory.  Dr. Karol diagnosed the employee with cognitive disorder, based on the employee’s showing of subtle cognitive inefficiencies in his functioning and lowered fine motor dexterity.  He recommended additional neurological and psychiatric assessment and treatment.

On May 30, 2002, the employee participated in an intake evaluation with Dr. George Montgomery, at the Sister Kenny Institute.  According to Dr. Montgomery’s chart note, the employee reported “a sense that he had not been receiving sufficient care and attention, with this aggravating his depression and resulting in an attempted suicide by overdose earlier” that month.  At the time of Dr. Montgomery’s evaluation, however, the employee was in the care of a psychiatrist and was receiving medication for his mood disorder, and reported feeling much more optimistic.  Dr. Montgomery diagnosed “Late Effects of Head Injury” and “Organic Brain Syndrome.”  He also commented that it “is likely the residual brain dysfunction and psychological distress-intolerance combine at times to have [the employee] experiencing a broad array of troubling inefficiencies and errors with concentration, memory, and management,” and that at the Institute he would be referred to occupational therapists for training in skills to compensate for such deficits.

Thereafter, the employee began treating with Dr. Jennine Speier, in the physical medicine and rehabilitation department of the Sister Kenny Institute, as well as with other physicians and professional staff at the Institute.  He underwent occupational therapy at the institute and performed related tasks at home.  Dr. Montgomery performed a second neuropsychological evaluation on November 11, 2002, which showed improvement in the employee’s cognitive skills.  Dr. Montgomery concluded that the employee demonstrated mild and inconsistent difficulties with concentration and learning efficiency, in addition to problems with conceptual thinking and organization, but that the employee “can be encouraged by these results which indicate that he has recovered well from his brain injury and now exhibits only very mild impairment.”

Following a re-evaluation and additional testing on March 31, 2004, Dr. Montgomery concluded that the employee’s test results gave an impression of mild residual brain dysfunction.  Dr. Montgomery referred to the employee’s periodic testing, and explained that,

The employee continues to see Dr. Speier periodically for management of his symptoms and condition related to his injuries.  In reports dated May 17, and 20, 2004, Dr. Speier outlined her opinions concerning the level of permanent partial disability the employee had sustained as a result of his October 8, 2001, injury.  (Ee Exh. E(1).)  On January 7, 2005, the employee filed a claim petition for permanent partial disability benefits under various parts of Minnesota Rules, seeking a combined 79.9% permanent partial disability of the whole body.^[3]  Specifically, the employee alleged an 80% rating under Minn. 5223.0360, subp. 7C(3) and 7D(3), based on disturbances in complex integrated cerebral function (40%) and mild emotional disturbances and personality changes (40%).  The employee also alleged entitlement to a 2% rating under Minn. R. 5223.0330, subp. 3D(2), for incomplete loss of vision with loss of adaptation to light and dark; a 2% rating under Minn. R. 5223.0510, subp. 3B(1) relative to his right knee condition; a 20% rating for organic bladder disorder under Minn. R. 5223.0600, subp. 3C; a 10% rating for penile dysfunction under Minn. Rule 5223.0600, subd. 6B; and a 7% rating relative to his low back condition under Minn. R. 5223.0390, subp. 3C(1).

On April 1, 2005, Thomas Beniak, Ph.D., licensed psychologist, examined the employee at the request of the employer and insurer, conducted various neuropsychological tests and reviewed the employee’s medical records.  In his report dated May 25, 2005, Dr. Beniak concluded that the employee had obtained a complete cognitive recovery from his traumatic brain injury.  Dr. Beniak acknowledged, however, that the employee continued to note depression, anxiety, tension and worry, for which he recommended ongoing mental health services, medication management, and adjunctive psychotherapy.  Dr. Beniak concluded that the employee had not sustained any permanent partial disability based on cerebral dysfunction, but assigned a 10% rating based on intermittent emotional disturbances.

A hearing was held before a compensation judge on April 12, 2006, to address the employee’s claim for permanent partial disability benefits.  At the hearing, the employer and insurer conceded that the employee was entitled to permanency benefits based on his right knee condition, but denied liability for the employee’s remaining claims.  In his findings and order served and filed on June 19, 2006, the compensation judge found that the employee was entitled to 20% permanent partial disability under Minn. R. 5223.0360, subp. 3D(2), for brain dysfunction with emotional disturbances and personality changes, but that he was not entitled to permanent partial disability for brain dysfunction for disturbances of complex integrated cerebral function.  The compensation judge also found that the employee was entitled to 2% permanent partial disability for incomplete loss of vision under Minn. R. 5223.0330, subp. 3D(2), and to 7% permanent partial disability relative to his low back condition, under Minn. R. 5223.0390, subp. 3C(1), but found that he was not entitled to a permanent partial disability rating for organic bladder disorder nor penile dysfunction.

The employee appeals the denial of permanency ratings for organic bladder disorder and penile dysfunction and the award of 20% permanent partial disability for brain dysfunction, arguing that the rating for brain dysfunction should be higher, and that the compensation judge erred in denying his claim for permanency benefits based on disturbances of complex integrated cerebral function.  The employer and insurer cross-appeal the permanency ratings for loss of vision and also for brain dysfunction, arguing that the rating based on brain dysfunction should be lower than the amount awarded.  No appeal was taken from the award of permanency benefits based on the employee’s low back condition.

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).  Although permanency ratings offered by physicians may assist the compensation judge in making this determination, these opinions are not binding.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983).  In order to receive a permanent partial disability rating, the employee must prove each element of the scheduled disability.  Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott-Host Int'l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)).

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).

The employee claimed 80% permanent partial disability under Minn. R. 5223.0360, subp. 7.C.(3), for disturbances in complex integrated function (40%) and under Minn. R. 5223.0360, subp. 7.D.(3), for mild emotional disturbances and personality changes (40%).  The compensation judge found that the employee was entitled to 20% permanent partial disability under Minn. R. 5223.0360, subp. 7.D.(2), for brain dysfunction with emotional disturbances and personality changes, but was not entitled to permanent partial disability for brain dysfunction for disturbances of complex integrated cerebral function.  The employee appeals, arguing that he was entitled to a 40% rating for disturbances of complex integrated cerebral function and to a 40% rating for emotional disturbance.  The employer and insurer cross-appeal, arguing on both jurisdictional and substantial evidence grounds.  The employer and insurer argue that the employee did not appeal the finding that he was entitled to no permanent partial disability rating for disturbances of complex integrated cerebral function (Finding No. 12), and therefore this court has no jurisdiction to review the compensation judge’s denial of a rating which would include disturbances of complex integrated cerebral function.  The employer and insurer also argue, alternatively, that the employee is only entitled to a 10% rating under Minn. R. 5223.0360, subp. 7.D.(1), for emotional disturbances, as opposed to the 20% rating awarded by the compensation judge.

On appeal, two issues arose as to whether certain findings were properly appealed and, therefore, whether those findings could be addressed by this court.  In Finding 12, the compensation judge found that the employee was not “entitled to a permanent partial disability rating for disturbances of complex integrated cerebral function.”  In his notice of appeal, the employee did not appeal that particular finding, although he appealed from a corresponding order that ordered payment of permanency benefits based on a lesser permanency rating relative to brain dysfunction.  The employer and insurer argue that this court has no jurisdiction to review the compensation judge’s denial of a rating which would include disturbances of complex integrated cerebral function since the employee did not appeal that finding.

In addition, in Finding 17,  the compensation judge found that the employee has mild emotional disturbance present at all times but can live independently and relate to others, referring to the factors required for a 20% rating under Minn. Rule 5223.0360, subp. 7.D.(2).  Although the employer and insurer did not appeal Finding No. 17, they appealed from a corresponding finding that the employee is entitled to a 20% permanent partial disability of the whole body for emotional disturbances and from the corresponding order, Order No. 1, and so an issue arose at the oral argument as to whether that portion of the employer and insurer’s cross-appeal can be addressed by this court on appeal.

The scope of review by this court is limited to the issues raised by the parties in the notice of appeal.  Minn. Stat. § 176.421, subd. 6; Ruether v. State of Minnesota, 455 N.W.2d 475, 479, 42 W.C.D 1118, 1124 (Minn. 1990).  This court looks to the notice of appeal to determine the extent and nature of the appeal.  Atkinson v. Northern States Power Co., 55 W.C.D. 347, 351 (W.C.C.A. 1996). In Atkinson, this court found that a technically deficient notice of appeal which failed to appeal the correct finding, but which appealed the corresponding order, was adequate to confer jurisdiction on this court.  Id.  In this case, neither the employee nor the employer and insurer appealed certain findings relative to the employee’s brain injury.  The employee, however, appealed a corresponding order and the employer and insurer appealed a corresponding finding and order.  We therefore conclude that in the employee’s notice of appeal, and in the employer and insurer’s notice of cross-appeal, the parties sufficiently raised the issues of the permanent partial disability rating for the employee’s brain function to confer jurisdiction on this court to review those claims.

Dr. Jennine Speier’s opinion serves as the basis for the employee’s permanent partial disability claim related to his brain dysfunction.  The employee treated with Dr. Speier at the Physical Medicine and Rehabilitation Department of Sister Kenny Institute.  She assigned the employee a rating of 40% permanent partial disability for disturbances of complex integrated cerebral function under Minn. R. 5223.0360, subp. 7.C.(3) (moderate impairment is demonstrated by psychometric testing or there is a mild clouding of consciousness and the individual is able to perform all activities of daily living independently but requires some supervision on a daily basis),^[4] and a rating of 40% permanent partial disability for moderate emotional disturbance under Minn. R. 5223.0360, subp. 7.D.(3) (moderate emotional disturbance present at all times and the individual can live independently but requires some supervision on a daily basis).^[5]  The employee testified that he. requires supervision by his girlfriend or son with respect to daily activities.

The employee was examined by Dr. Thomas E. Beniak, psychologist, at the employer and insurer’s request, to address the issue of the level of permanency he sustained as a result of his injury-related brain dysfunction.  Dr. Beniak opined that the employee was entitled to a 10% permanent partial disability rating under Minn. R. 5223.0360, subp. 7.D.(1) for brain dysfunction with “intermittent emotional disturbances requiring intervention by a caregiver [which] are only present under stressful situations such as losing one’s job, getting a divorce, or a death in the family.”  He also opined that the employee had made a complete intellectual and cognitive recovery without any impairment of cerebral function.  The compensation judge concluded that the employee qualified for a rating of 20% permanent partial disability, a rating between the 40% rating assigned by Dr. Speier and the 10% rating assigned by Dr. Beniak.  The compensation judge stated in his memorandum:

The employer and insurer argue that Dr. Speier, as a physical medicine and rehabilitation physician, did not have the expertise to rate either the employee’s emotional and psychological condition, or his eye condition (discussed below), and that there is no medical opinion to support the compensation’s judge award of 20% permanent partial disability.  We reject the argument that Dr. Speier is unqualified to render a causation opinion concerning either the employee’s emotional and psychological condition, or his eye condition, as such an opinion is outside of her area of expertise.  As a medical doctor and the employee’s treating physician who has coordinated his care at the Sister Kenny Institute since mid-2002, and who specifically relied on the employee’s medical records and information from other specialists, Dr. Speier was clearly qualified to render an expert opinion on the level of the employee’s permanent partial disability.^[7]  That Dr. Speier may not specialize in psychiatric disorders, or ophthalmology, goes to the weight of her opinions, not to competency, and was for the compensation judge to consider along with all other evidence in the record.

Minn. R. 5223.0360, subp. 7.D.(2), provides a 20% permanent partial disability rating for mild emotional disturbance present at all times where the individual can live independently and relate to others.  While there is medical evidence in the record that could support a finding of moderate emotional disturbance, and therefore a rating at the 40% level assigned by Dr. Speier, the issue on appeal is whether there is substantial evidence to support the compensation judge’s finding. 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 the compensation judge and not with the medical profession).  Based upon our review of the record, we conclude that substantial evidence supports the compensation judge’s finding that the employee was entitled to 20% permanent partial disability under Minn. R. 5223.0360, subp. 7.D.(2), for brain dysfunction with emotional disturbances and personality changes, but that he was not entitled to permanent partial disability for brain dysfunction for disturbances of complex integrated cerebral function under Minn. R. 5223.0360, subp. 7C.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  We affirm those findings.

The compensation judge found that the employee was entitled to a 2% permanent partial disability rating under Minn. R. 5223.0330, subp. 3.D.(2), for incomplete loss of vision and loss of adaptation to light and dark.^[8]  The employer and insurer appeal, arguing that there is no objective medical evidence of the employee’s loss of adaptation to light and dark, as required by the rule.  A chart note by Dr. Michelle Taylor from October 2002 indicated that the employee had intermittent photophobia.  The employee testified that he had difficulty driving in the rain and at night, and that his eyes take longer to adapt from light and dark.  Based on the medical evidence in the record, we conclude that substantial evidence supports the compensation judge’s finding that the employee was entitled to a 2% permanent partial disability rating under Minn. R. 5223.0330, subp. 3D(2), for incomplete loss of vision for loss of adaptation from light to dark.  We affirm that finding.

The compensation judge found that the employee was not entitled to a permanent partial disability rating for either organic bladder disorder or penile dysfunction under Minn. R. 5223.0600, subp. 3.C. or subp. 6.B.^[9]  The employee argues that the compensation judge erred by denying permanent partial disability benefits for those conditions.  The issue on appeal is whether the decision of the compensation judge is supported by substantial evidence.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

In unappealed findings, the compensation judge found that the employee has complained of urinary urgency and post-void dribbling since his work injury of October 8, 2001, and that he has also complained of erectile dysfunction since that injury, with a corresponding inability to achieve sexual function without the assistance of medications.  The employee’s testimony and his medical records support those findings; his symptoms have continued since his injury.  In February 2002, the employee was treated by Dr. Sheila Gemar, urologist, for incontinence.  Dr. Gemar concluded that this condition could be a “residual problem with his brain injury, in that his brain is telling him that he is empty, but his bladder still has some urine in there.  Hopefully with time and improvement with his head injury, this will get better.”  In May 2002, because the incontinence had continued, Dr. Gemar recommended cystoscopy and placement of a urodynamic catheter, which was performed on June 12, 2002.  According to Dr. Gemar’s operative report, the employee’s anterior and posterior sides of the urethra were normal, and Dr. Gemar found no lesions in the bladder itself.  Dr. Gemar referred the employee for additional urodynamic testing that same day, although the record contains no report on the results of that additional testing.^[10]

The employee also consulted Dr. Gemar on May 4, 2004, for follow-up consultation for his bladder and erectile dysfunction symptoms.  Dr. Gemar’s chart note states that she had felt the employee “had some erectile dysfunction and anejaculation because of neurologic injuries,” and that she had earlier referred the employee to an infertility specialist for some assistive reproductive techniques; the employee and his former wife followed through with that referral.  Dr. Gear diagnosed the employee with erectile dysfunction with anejaculation or diminished ejaculation, and also with minimal urge incontinence.

Dr. Speier later concluded that the employee’s brain injury could have affected his bladder and sexual function, and that his symptoms also could be a component of subtle injury to his lumbosacral plexus.  She assigned a rating of 20% whole body impairment for organic bladder disorder under Minn. R. 5223.0600, subp. 3.C., and a rating of 10% whole body impairment for penile dysfunction under Minn. R. 5223.0600, subd. 6.B.  Referring to the requirements of the permanency schedules for bladder dysfunction, Dr. Speier explained that the employee’s organic bladder disorder was demonstrated by his dribbling, and that his brain injury represented an objective neurological lesion.  Concerning the requirements for permanent partial disability relative to penile dysfunction, Dr. Speier referred to the employee’s erectile dysfunction, inability to ejaculate and ability to conceive only with artificial insemination.  She also explained that the employee’s brain injury, and possibly his low back injury, represented a neurological lesion specified in the permanency rules.

Dr. James Meyer, urologist, conducted a review of the employee’s medical records at the employer and insurer’s request, to address the issue of whether the employee had sustained any reproductive or urinary tract dysfunction.  In his December 16, 2005, report, Dr. Meyer concluded that the employee’s closed head injury may have been a contributing factor to the employee’s urinary urgency and dribbling, and that he had some mild urinary urgency which had improved with time.  Dr. Meyer concluded that even though the employee had signs or symptoms of organic bladder disorder, “there was no objectively demonstrated neurological lesion known to interfere with bladder function relative to the injury” and therefore he had sustained no permanent partial disability relative to his October 8, 2001, injury.  Dr. Meyer also concluded that the employee’s erectile dysfunction was not related to his closed head injury and was far more likely related to his history of smoking “and/or his medications which can interfere with erectile function,” or, as he later stated, “and/or his conditions of depression and anxiety and medication.”  Dr. Meyer therefore assigned no permanent partial disability rating relative to any erectile dysfunction.

To be entitled to permanent partial disability under the permanency schedule, the employee must prove each element of the assigned rating.  Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott-Host Int'l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)).  The claims for benefits based on the employee’s urinary and reproductive conditions present very similar issues and arguments.  In order to qualify for a permanency rating for both conditions, an employee must show either an organic dysfunction and an anatomic loss or alteration, or an objectively demonstrated neurological lesion known to interfere with either bladder dysfunction or penile function, respectively.  Both Drs. Speier and Meyer concluded that the employee had organic dysfunction as delineated in the permanency schedules, but neither one commented on whether the employee had an anatomic loss or alteration.  Their difference of opinion arises in their analysis of whether the employee has an “objectively demonstrated neurological lesion known to interfere” with bladder function or penile function.  Dr. Speier concluded that the employee’s brain injury constituted a neurological lesion affecting his function.  Concerning the employee’s bladder function, Dr. Meyer concluded that the employee had “no objectively demonstrated neurological lesion known to interfere with bladder function relative to the injury.” Dr. Meyer did not specifically state a corresponding opinion about the employee’s erectile dysfunction, but instead concluded that “I believe his erectile dysfunction is more likely related to 20 years of one and one-half packs of cigarettes per day and/or his conditions of depression and anxiety and medication.”

We acknowledge that it is the role of the compensation judge to consider the competing medical opinions and that his decision in that regard will not be reversed so long as the accepted opinion has adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).  Both Drs. Meyer and Speier concluded that the employee has organic bladder and erectile dysfunction, and the employee’s testimony explained his ongoing symptoms.  In his findings, however, the compensation judge cited to the conclusions reached by Dr. Meyer, and repeated in his memorandum that the employee did not quality for the claimed permanency ratings “in the absence of an objectively demonstrated neurological lesion.”  We conclude, however, that it is unclear from the compensation judge’s findings and order whether the compensation judge took into account the nature of, and the related role of, the employee’s brain injury and his findings on CT scan, and whether, as Dr. Speier concluded, that the employee’s brain injury could be regarded as representing an “objectively demonstrated neurological lesion,” in satisfaction of the pertinent permanency rules.  The employee sustained an admitted brain injury, his radiographic testing showed a subdural hematoma and brain contusion, and we have affirmed the award of permanent partial disability relative to the brain injury. Since the compensation judge’s findings do not clearly indicate whether he considered the extent of the relationship between the employee’s brain injury and his reproductive and urinary tract dysfunction, we accordingly vacate those findings that relate to the compensation judge’s denial of permanency benefits based on those conditions, Findings Nos. 22, 23, 25 and 26.  We remand those issues to the compensation judge for reconsideration.  The compensation judge should also consider whether the employee has organic dysfunction and an anatomic loss or alteration under subparts 3.C. and 6.B. of Minn. R. 5223.0600.  The compensation judge may at his discretion allow the parties to each present additional medical evidence and testimony on these issues.