The employer and insurer appeal from the compensation judge’s determination that the employee is permanently totally disabled from employment, on the basis that the employee has not satisfied the statutory requirement of a sufficient level of permanent partial disability necessary for an award of permanent total disability.  We reverse, in part.

On November 10, 2005, and January 6, 2006, Dana Rezaie, the employee, was employed as a “stocker” for Wal-Mart Stores, Inc., the employer.  On those dates, the employer was insured for workers’ compensation liability in the state of Minnesota by American Home Assurance Corporation/AIG, the insurer.  The employee’s job duties included stocking shelves, unloading trucks, operating machinery, loading pallets, and lifting boxes weighing up to 50 pounds.

On November 10, 2005, the employee sustained an injury when a heavy box fell on her right foot and ankle.  She was able to return to work following that injury, although she noted swelling in her right foot and ankle.  On January 6, 2006, the employee again injured her right foot and ankle when a box was thrown between her legs, causing her to trip and twist her right ankle as she fell to the floor.  The employee noted immediate and significant pain from her right knee through her right ankle and foot.  Since that injury, the employee has undergone extensive medical treatment for her right foot and ankle condition, initially with conservative measures.  Her later treatment included surgery which involved flat foot reconstruction on her right foot and gastrocnemius recession in her lower right leg.  The employee subsequently developed chronic edema and later was diagnosed with reflex sympathetic dystrophy [RSD] of the right leg.

The employer and insurer admitted primary liability for the employee’s injuries, and paid workers’ compensation benefits to and on behalf of the employee, including temporary total disability benefits from October 6, 2006, through October 24, 2008, provision of rehabilitation assistance, and medical expenses.  The employee ultimately filed a claim petition seeking payment of temporary partial disability benefits from January 9 through October 5, 2006; permanent total disability benefits from and after October 6, 2006; permanent partial disability benefits; authorization for physical therapy and rehabilitation assistance; and payment of out-of-pocket medical expenses and related cab fares for travel to medical appointments.  In support of her claim, the employee submitted medical records documenting treatment rendered to the employee by Dr. Eugene Dela Cruz, including a report in which he outlined his opinion of the permanent partial disability the employee had sustained as a result of her work injury.

The employee’s claim was addressed at a hearing on February 3, 2010.  At the hearing, the employer and insurer asserted that the employee’s injuries had resolved by February 1, 2006, basing their claim on the opinion of Dr. Lance Silverman, who examined the employee at their behest in May 2007 and April 2008.  The employer and insurer also asserted that any medical treatment rendered after February 1, 2006, was not related to the employee’s work injuries, that the employee had sustained no permanent partial disability as a result of her work injuries, that she had no work restrictions as a result of those injuries, and that she was capable of working within restrictions that were unrelated to a work injury.

In his findings and order served and filed February 10, 2010, the compensation judge awarded the employee’s claim, with the exception of her claim for approval of physical therapy and for rehabilitation assistance, which he denied.  The compensation judge concluded:

The compensation judge ordered payment of temporary partial and permanent total disability benefits.  The employer and insurer appeal from the compensation judge’s finding that the employee is permanently totally disabled as a result of her work injury and from the order for payment of permanent total disability benefits.

“[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).

The employer and insurer appeal from the award of permanent total disability benefits, arguing that the employee has not satisfied the statutory requirement of a sufficient level of permanent partial disability necessary for an award of permanent total disability.

Among the identified issues at the hearing were whether the employee was entitled to claimed permanent partial disability benefits, and whether she was entitled to permanent total disability benefits from and after October 6, 2006.  The compensation judge concluded that “[a]s of October 6, 2006, the employee’s total disablement status had become permanent,” and found that the employer and insurer are responsible for payment of permanent total disability benefits from October 6, 2006, to the date of hearing and continuing.  At Finding No. 11, however, the compensation judge concluded that the evidence of record was not sufficient to allow for a determination of the level of permanent partial disability at this time.  The compensation judge stated as follows:

The employer and insurer contend that the compensation judge made an error of law when he awarded permanent total disability benefits in the absence of a determination of the level of the employee’s permanent partial disability.  As outlined in Minn. Stat. § 176.101, subd. 5, an employee is permanently totally disabled if she has sustained an injury which “totally and permanently incapacitates the employee from working at an occupation which brings the employee an income,” provided that she also meets a threshold rating of permanent partial disability.  The three levels of requisite permanent partial disability are outlined in Minn. Stat. § 176.101, subd. 5, as follows:

In this case, the employee was 51 years old at the time of her injury, and therefore must meet the threshold of 15% permanent partial disability of the whole body before she can be found to be permanently totally disabled.  The compensation judge did not find that the employee qualified for a rating at that level.  Instead, he concluded that the evidence in the record was insufficient for him to make a determination of permanent partial disability at this time.  He reserved that issue for future determination.  In spite of the lack of a permanency rating, however, the compensation judge awarded the employee permanent total disability benefits and it is from that award that the employer and insurer have appealed.

The employer and insurer appeal solely from the compensation judge’s determination of permanent total disability status in the absence of the required permanency rating.  The employee argues that the record supports the compensation judge’s determination of permanent total disability.  The compensation judge, however, specifically indicated that there was insufficient evidence at this time to determine the level of the employee’s permanent partial disability rating.  Without a finding that the employee has met the applicable statutory threshold, the employee cannot be determined to be permanently totally disabled for purposes of receipt of permanent total disability benefits.  Minn. Stat. § 176.101, subd. 5; see Dillon v. Schmitty & Sons School Buses, Inc., No. WC09-116 (W.C.C.A. Oct. 21, 2009) (specific permanent partial disability ratings needed to support a finding that an employee met the statutory threshold and for review by this court).  Therefore, we reverse the compensation judge’s finding that the employee is permanently totally disabled and the related award of permanent total disability benefits.