The employee appeals the compensation judge’s finding that the employee is able to live independently within the meaning of Minn. R. 5223.0630, subp. 2, and his award of 20% permanent partial disability benefits under Minn. R. 5223.0630, subp. 2.D.  We vacate and remand the compensation judge’s decision.

Julia Washenberger, the employee, began working as a disability counselor for the Metropolitan Center of Independent Living, the employer, in July 2007.  On May 30, 2008, she sustained an admitted work-related injury after falling out of her wheelchair and fracturing her left leg while attending a staff picnic.  The employer was insured for workers’ compensation liability by SFM Mutual Insurance Company, the insurer.  The employee was thirty-six years old at the time of the injury and had earned a Bachelor of Arts in Human Services Administration in 2001.

The employee was born with spina bifida, and was wheelchair bound by age five.  She has a shunted hydrocephalus and has undergone Mitrofanoff procedures with multiple revisions.^[1]  For the most part, the employee lived independently and performed her activities of daily living with a significant degree of autonomy.  The employee moved in and out of her wheelchair without supervision, direction or personal assistance to shower, dress, toilet, eat, house clean and work.  She moved in and out of her cars with no supervision, direction or personal assistance to drive.  She moved on and off the bathroom stool unassisted.  She could perform most activities independently because the employee could stand up from a seated position, pivot and perform an unassisted transfer.^[2]

On May 30, 2008, the employee sustained fractures of her distal femur and proximal tibia of her left leg at an employer sponsored event.  The employer and insurer admitted liability and paid benefits while the employee remained off work and received medical treatment.  Initially, the employee was provided with a long leg brace to achieve healing.  But a preoperative CT scan of the employee’s femur revealed a two centimeter overlap of the fracture fragments that could not be corrected without surgery.  On September 4, 2008, the employee underwent an open reduction and internal fixation of a comminuted supracondylar left distal femur fracture.

Post-surgery, the employee was placed in a custom hinged knee brace that remained locked in full extension for weeks.  The surgery and brace compromised the employee’s mobility and her daily routine changed.  The employee could no longer shift body positions to offload pressure and she remained confined to one seated position or one reclined position for prolonged periods.  She could no longer stand to pivot and transfer, which affected many of her daily activities, such as getting in and out of the shower.  Instead, the employee moved in and out of the shower by sliding her body at floor level over a metal threshold.  After the onset of a lesion from July to August 2008, the employee was diagnosed with a stage II decubitus ulcer on the left ischial tuberosity on August 12, 2008.

The employee was seen by a certified nurse practitioner at a healthcare clinic on November 18, 2008.  The nurse practitioner opined that a change in the employee’s seating patterns and abrading of the skin when transferring into and out of the shower contributed to the formation of a pressure ulcer that developed into a stage II left ischial decubitus ulcer.  The employee was admitted into Gillette Children’s Hospital on November 18, 2008, since the ulcer was not healing through outpatient management.  The employee was treated with surgical debridement on November 24, 2008, and with a local superficial wound flap on December 1, 2008.  The employee was placed on strict bed rest^[3] and was discharged to her parents’ home on December 12, 2008.  The employee remained on bed rest until December 22, 2008, and then completed a graduated seating program.  While hospitalized, the employee reported difficulty with self-catheterization and a Foley catheter was placed.

By January 6, 2009, the employee’s ulcer was completely healed.  She was released to return to work four hours per day, gradually increasing to full-time work.  From February through April 2009, the employee was treated for urologic problems, which included hospitalizations.  The employee was hospitalized at Abbott Northwestern Hospital from March 15, 2009, to March 21, 2009, for neurogenic bladder, pressure ulcer on left buttock, and blisters on her feet.  On March 16, 2009, the employee underwent a Mitrofanoff procedure.

In April 2009, the employee could no longer be cared for by her parents.  The employee reported to the emergency department at Abbott Northwestern Hospital, and was admitted to that hospital on April 5, 2009.  The hospital’s records indicated that the employee was treated for problems with the Mitrofanoff, burns on her feet, and ulcers on the buttock/perineal region.  The records also indicate that the employee was treated for wound care on the left ischial tuberosity.  The employee was discharged on April 10, 2009.

The employee was hospitalized at Regions Hospital from May 1, 2009, through May 6, 2009, for evaluation of another stage II left ischial decubitus ulcer.  Pressure mapping of the employee’s wheelchair cushion indicated that it caused pressure on the wound site and should be discarded.  A custom seat cushion was ordered for the employee’s wheelchair to reduce pressure.  The employee was admitted to the Maplewood Care Center transitional care unit on strict bed rest until the wound healed and she could start a sitting program.  The new seat cushion was delivered before the employee was discharged.  Pressure mapping indicated that there was no pressure at the wound site with the new cushion.  In early June 2009, the ulcer was nearly healed and the employee was discharged from the nursing home to her parents’ home.  The employee was prescribed skilled nursing care three times per week after being discharged.

On June 23, 2009, a recurrence of the stage II left ischial decubitus ulcer was diagnosed when the employee was at a follow-up appointment.  The employee was released to return to work with breaks every two hours on July 10, 2009.  By August 19, 2009, the ulcer was healed.

In early April 2010, the employee was diagnosed with another stage II decubitus ulcer of the left ischial tuberosity.  The wound had healed by April 27, 2010.  In July 2010, the employee developed decubitus ulcers on her left posterior thigh.  In September 2010, a new cushion was recommended since the cushion obtained in 2009 was not preventing wounds.  By January 2011, these ulcers had healed.

On October 22, 2010, the employee was referred to Dr. Ralph Bovard to be assessed for maximum medical improvement determination and permanent partial disability rating.  Dr. Bovard examined the employee and reviewed her medical records.  He opined that the employee had sustained a 40% permanent partial disability rating under Minn. R. 5223.0630, subp. 2.E., since signs and symptoms of skin disorder were present, continuous treatment was required which included periodic confinement, there was limitation in many of the activities of daily living, and she could not live independently as she was able to do previously, but she could perform self-cares independently.

The employee was evaluated by Dr. Kipton Lundquist at the employer and insurer’s request on October 5, 2009, and again on January 24, 2011.  Dr. Lundquist opined that the employee had sustained a 20% permanent partial disability rating under Minn. R. 5223.0630, subp. 2.D., since she was able to live independently, but this rating was not causally related to her work injury.  The employee reported to Dr. Lundquist that she had home assistance available to her 11.5 hours per day, but that she declined home assistance from time to time choosing instead to seek assistance from family and friends.  One of her personal care attendants was her mother.

On November 11, 2010, the employee filed a claim petition for permanent partial disability benefits for her leg and her skin disorder.  The employer and insurer paid permanent partial disability benefits for the employee’s leg under Minn. R. 5223.0510, subps. 2 and 3, but disputed the claim for permanent partial disability for the employee’s skin disorder.  A hearing was held on May 11, 2011.

At the hearing, the employer and insurer argued that the employee’s medical history indicates that she was pre-disposed to ulcer formations based on factors unrelated to the work injury, including pre-injury ulcer formations caused by her underlying physical limitations from spina bifida, non-work related urological procedures, and a skin burn.  The employee, however, claimed the post-injury ulcer formations were new formations caused by prolonged periods of confinement in a seated position while healing from the work injury.  The employee further argued that the ulcer formations were a consequence of the work injury since the drawn-out periods of immobility after the work injury were atypical for her, and the constant weight pressure on her lower extremities produced formations of ischial decubitus ulcers.

The compensation judge found that the ulcer condition was a result and consequence of the left leg work injury and identified a pattern of prolonged immobility from the symptoms of recurrent ischial decubitis ulcers that required continuous treatment.  The judge also found the “employee is limited in the performance of many of the activities of her daily living but is able to live independently and resides in her own home, can operate a motor vehicle and works outside of her home . . . [she] requires assistance in the performance of some of the daily chores of living and some activities of her self care but the preponderance of the evidence shows that she is able to live independently within the meaning of the Minn. Rule 5223.0630.”^[4]  The judge ordered the employer and insurer to pay 20% permanent partial disability benefits pursuant to Minn. R. 5223.0630, subp. 2.D.^[5]  The employee appeals the judge’s finding that the employee is able to live independently within the meaning of Minn. R. 5223.0630, arguing that she is entitled to a 40% permanent partial disability rating under Minn. R. 5223.0630, subp. 2.E.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”^[6]  A “decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which this court may consider de novo.”^[7]  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”^[8]  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[9]  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless 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.”^[10]

The employee argues on appeal that the compensation judge erred by finding that the employee is able to live independently within the meaning of Minn. R. 5223.0630 and by ordering the employer and insurer to pay 20% permanent partial disability benefits pursuant to Minn. R. 5223.0630, subp. 2.D.  The employee contends that she is entitled to a 40% permanent partial disability rating under Minn. R. 5223.0630, subp. 2.E. ^[11]

The disability schedule on skin disorders is divided into categories identified by class number.  The judge found that the employee met three of the requirements for both classes 3 and 4 under subparts 2.D. and 2.E.: (1) signs or symptoms of skin disorder, (2) continuous treatment required to prevent the condition and occasionally treat her skin condition, and (3) many limitations on the activities of daily living.  The judge indicated that the employee did not meet the requirement that the employee cannot live independently for a 40% permanent partial disability rating under subpart 2.E.  Therefore, the judge concluded that the employee was not entitled to 40% permanent partial disability under subpart 2.E.

The judge found the employee is able to live independently.  The judge noted that the phrase “live independently” is not defined by the rules, and identified three factors he considered persuasive to conclude that the employee lived independently within the meaning of Minn. R. 5223.0630.  One, the employee resides in her own home; two, the employee operates a motor vehicle; and three, the employee works outside the home.^[12]  The judge did not consider any other factors or limitations on daily living in making his determination that the employee was able to live independently.  The judge also did not discuss any of the activities of daily living listed in Minn. R. 5223.0310, subp. 5.^[13]

The employee asserts that the phrase “live independently” is ambiguous in the context of Minn. R. 5223.0630 and suggests that the phrase should be defined as when a person is “not reliant upon the support, especially financial support, of others; capable of acting for oneself or on one’s own.”^[14]  Alternatively, the employee argues that the phrase “independent living” can refer “to an arrangement for people with special needs that are assisted in their own home to afford them as much independence and autonomy as possible.”^[15]  The employer and insurer argue that substantial evidence supports the compensation judge’s finding that the employee is able to live independently, and should be affirmed.

We agree that the phrase “live independently” is ambiguous in the context of Minn. R. 5223.0630.  The phrase is not defined in the rule, and appears to conflict with the part of the rule which allows “periodic confinement in the home.”  Likewise, the percentages of disability to the whole body as provided in the rule are subdivided by class but do not describe a clear range of progressively worse manifestations of the skin disorder to increase the rating to the condition described.^[16]  In fact, no court has defined the particular phrase “live independently” within the meaning of the rule.

The compensation judge found that since the employee lives alone, works outside the home, and can operate a vehicle, she “essentially lives independently.”^[17]  The judge noted that the employee did not live in a sheltered housing situation or one that caters to adults with disabilities, which implies that only people who live in those situations cannot live independently.  The judge’s interpretation of the phrase to “live independently” in his findings and memorandum is overly restrictive.  While the employee is able to do many of the same activities she did before the work injury, there are many that she cannot or can only do with extreme modification and with much more difficulty than before the work injury.  The employee claims the judge erred in defining the ability to “live independently” given that the judge failed to evaluate the activities of daily living within the context of being able to live independently under Minn. R. 5223.0630.  We agree.  The percentage for permanent partial disability of skin disorders under the rule is not a uniform construct; it is multifaceted.  Basic activities of daily living are an important tool for evaluating a person’s ability to live independently, which is a key part of determining the functional impairment of skin disorders under Minn. R. 5223.0630.  While the compensation judge found that the employee’s activities of daily living are limited, his definition of the ability to “live independently” does not include a legal analysis evaluating the employee’s degree of independence in her activities of daily living.

The activities of daily living are the appropriate factors to consider when defining the phrase “live independently” within the meaning of the rule.  Identifying activities of daily living and measuring the degree of supervision, direction or personal assistance needed to perform each activity are essential to understanding the meaning of independent living under the rule.  Independence in basic activities of daily living, such as bathing, dressing, toileting, transferring, continence, and feeding, is measured by the degree of self reliance in performing the activity.^[18]  Independence in instrumental activities of daily living is more difficult to measure since these activities, such as driving, doing housework, grocery shopping and laundry, are more complex.^[19]  The ability to perform each activity independently is measured by the degree of supervision, direction, or personal assistance needed.  In the present case, each activity by the employee is now performed without the ability to stand to pivot to transfer.  The performance of an activity may require help or total care by her parent or friend.

We conclude that the phrase “live independently” in Minn. R. 5223.0630 should be defined within the context of the activities of daily living that are measured by the degree of self reliance to perform the activity.  With this in mind, we vacate the compensation judge’s finding that the employee is able to “live independently” under Minn. R. 5223.0630 and remand to the compensation judge for consideration of the evidence as to the employee’s activities of daily living and how they affect her ability to live independently.  The judge should consider all the elements of subpart 2.E., including periodic confinement, in determining the appropriate permanent partial disability rating for the employee under Minn. R. 5223.0630.

The sole issue on appeal is whether the employee is able to “live independently” for purposes of determining whether she is entitled to a 20% permanent partial disability rating or a 40% permanent partial disability rating for her skin disorder.^[20]  I disagree with the majority decision and would affirm the judge’s finding that the employee has a 20% permanent partial disability as a result of her consequential injury.

The primary difference between a 20% rating and a 40% rating under Minn. R. 5223.0630 is that the higher rating requires that the employee be unable to “live independently.”  The judge found that the employee is living independently because she resides in her own home, can operate a motor vehicle, and works outside of her home.  He therefore awarded benefits for a 20% permanent partial disability.

I agree with the majority that the phrase “live independently” is not defined in the workers’ compensation rules.  I disagree, however, that an analysis of the activities of daily living set forth in Minn. R. 5223.0310, subp. 5, is the way to measure whether or not the employee is living independently.  The schedules for both the 20% and the 40% rating already require a “limitation in the performance of many of the activities of daily living.”  In my view, the phrase “live independently” therefore implies something other than limitations in the activities of daily living.^[21]

There is no question that the employee’s life has become more difficult due to her skin disorder.   However, the record supports the judge’s conclusion that the employee is living independently.  Specifically, the employee is a homeowner, living in her own condominium.  She does not require live-in help.  She is able to transport herself using her van and a mechanical lift.  And, she works outside of her home, apparently earning as much or more than she did at the time of her injury.  A judge’s decision as to the extent 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 NW2d 270, 39 W.C.D. 771 (Minn. 1987).  I would affirm the award of benefits for a 20% permanent partial disability.^[22]