The employee appeals from the compensation judge’s determination that he is entitled to weekly payment of permanent partial disability benefits commencing March 27, 2012, at the compensation rate of $300.48 and continuing until an additional $262,290.72 in permanent partial disability benefits have been paid.  The employee argues that the compensation judge erred in calculating the amount of permanent partial disability benefits owed to the employee; in finding the commencement date for permanent partial disability benefits to be March 27, 2012; in determining that the 2000 amendment to Minn. Stat. § 176.101, subd. 2a.(b), allowing for a lump sum payment of permanent partial disability benefits, is a substantive rather than procedural change in the law; and in determining that Minn. Stat. § 176.645, subd. 1, does not apply to payment of weekly permanent partial disability benefits.  We affirm.

The employee, Thomas Sander, sustained an admitted, work-related injury to both of his eyes while working as a cement truck driver for the employer herein, Alexandria Concrete Company, on May 31, 1996.  The employee has undergone multiple surgeries on his eyes, which have included multiple failed corneal transplants and glaucoma-related procedures.

In addition to his multiple eye surgeries and issues, the employee also experienced systemic dysfunction of his internal organs due to side effects of anti-rejection medications necessary for his corneal transplant procedures.  As a result, the employee has undergone total hip replacements on the right and left side.  His hip issues have been admitted as consequential injuries.

There have been multiple stipulations for settlement approved by the Office of Administrative Hearings since the employee’s injury in 1996.  The parties reached an original settlement agreement in August 2000, and the parties stipulated that the employee has been permanently and totally disabled since October 30, 1998.  The 2000 stipulation also closed permanency to the extent of ten percent of the body as a whole.  In June 2006, the parties reached another agreement, closing out permanent partial disability to the extent of 14 percent for vision loss and 13 percent for consequential hip injuries.  In July 2007, the parties reached another agreement closing out additional permanency.  By the time of the hearing in this matter, the employee’s permanency claims had been closed out to the extent of 27.6742 percent whole body permanency, with the employee retaining the right to claim additional permanency and the employer and insurer retaining all rights and defenses.

The employee has treated for his eyes for a number of years with Edward Holland, M.D., of the Cincinnati Eye Institute.  Dr. Holland issued a health care provider report in 2009 indicating that the employee had sustained some permanency pursuant to Minn. R. 5223.0330, but he also noted that it was too early to determine a final permanency rating.  Dr. Holland also indicated that the employee was not at maximum medical improvement.

The employee underwent his most recent right eye surgery in December 2010 and his most recent left eye surgery in March 2011.

Shortly before the most recent left eye surgery, Dr. Holland issued a report dated February 28, 2011.  Dr. Holland opined that the employee had incurred an 85 percent permanency rating for vision loss along with a five percent permanency rating for loss of two eyebrows and an eight percent permanency rating for scarring of the eyelids.

The employee filed a claim petition on September 16, 2011, seeking permanent partial disability benefits based, in part, on Dr. Holland’s February 2011 report.  The employer and insurer denied that the employee had sustained permanent partial disability to the extent claimed in the claim petition, and an independent medical examination was scheduled with Dr. Neil Sher.

Dr. Sher issued his report on March 23, 2012.  Dr. Sher opined that the employee had incurred an 85 percent permanency rating for vision loss along with a four percent permanency rating for scarring of the left eyelid and a nine percent permanency rating for loss of the right eyebrow and scarring of the right eyelid.

The case proceeded to hearing before Compensation Judge Paul D. Vallant on stipulated facts.  The parties agreed that the employee’s temporary total disability rate was equal to $300.48 for the employee’s date of injury.

The compensation judge was initially asked to determine the “extent of permanent partial disability currently sustained by the employee” and what “amounts of permanent partial disability were previously paid and/or what percentages have previously been compensated.”

The compensation judge noted that the parties had stipulated that “permanent partial disability was closed to the extent of 27.6742% of the whole body, equaling $22,139.36.”  He then went on to find that the employee sustained the following whole body permanent partial disability ratings: 85 percent for loss of vision (Minn. R. 5223.0330, subp. 3.E.); five percent for loss of two eyebrows (Minn. R. 5223.0650, subp. 2.C.(2)); four percent for scarring of the left eyelid (Minn. R. 5223.0650, subp. 2.C.(5)); four percent for scarring of the right eyelid (Minn. R. 5223.0650, subp. 2.C.(5)); eight percent for right hip arthroplasty (Minn. R. 5223.0500, subp. 3.B.); and eight percent for left hip arthroplasty (Minn. R. 5223.0500, subp. 3.B.).

As the compensation judge indicated in his memorandum, the “real dispute with respect to the employee’s permanent partial disability ratings is to what extent the ratings must be combined pursuant to the A + B (1 – A) formula set forth in Minn. Stat. § 176.105, subd. 4.(f) and Minn. R. 5223.0300, subp. 3.E.”  The compensation judge found that the “employee’s currently ascertainable whole body permanent partial disability ratings of 85%, 8%, 8%, 5%, 4% and 4% must be combined pursuant to the formula set forth in Minn. Stat. § 176.105, subd. 4.f. and Minn. R. 5223.0300, subp. 3.E., resulting in a total currently ascertainable permanent partial disability of the whole body of 88.8844%,” which would “equal $284,430.08.”

The compensation judge was then asked to determine when payment of permanent partial disability should begin if paid weekly pursuant to Minn. Stat. § 176.101, subd. 2a.(b), which was in effect at the time of the employee’s injury.  The employee argued that his weekly permanent partial disability benefits should have commenced as early as October 30, 1998, when the employee’s temporary total disability benefits ended.^[1]  The compensation judge, however, cited Minn. Stat. § 176.021, subd. 3, in his memorandum of law, and he explained his conclusion that the employee’s currently claimed permanent partial disability did not become ascertainable until the issuance of Dr. Sher’s report on March 23, 2012.

The compensation judge was next asked to determine whether the employee was entitled to a lump sum payment of his permanent partial disability benefits under a retroactive application of the current version of Minn. Stat. § 176.101, subd. 2a.(b), which was enacted in 2000.  The employee argued that the change to the statute in 2000, allowing for a lump sum payment of permanent partial disability benefits, was merely procedural in nature.  Thus, he argued that the lump sum payment could be applied retroactively.  The compensation judge, however, determined that the lump sum payment was not contemplated in the statute in effect at the time of the employee’s injury.  He concluded that because the lump sum would have a greater monetary value to the employee and a greater cost to the employer and insurer, the lump sum payment constituted a substantive change to the statute, which precluded retroactive application of the current statute to the employee’s date of injury.

Finally, the compensation judge was asked to determine whether the employee’s permanent partial disability benefit payments, if made weekly, would be subject to adjustments pursuant to Minn. Stat. § 176.645.  The compensation judge determined that permanent partial disability benefits are not listed as benefits subject to adjustment in Minn. Stat. § 176.645, subd. 1.  Rather, Minn. Stat. § 176.101, subd. 2a.(b) provided that permanent partial disability “is payable in installments at the same intervals and in the same amount as the employee’s temporary total disability rate on the date of injury.”

Ultimately, the compensation judge determined that “the employee is entitled to weekly payment of permanent partial disability benefits commencing March 27, 2012 at the weekly compensation rate of $300.48, continuing until an additional $262,290.72 in permanent partial disability benefits have been paid.”  The employee appeals.

In reviewing cases 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.”  Minn. Stat. § 176.421, subd. 1.  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.”  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, “[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 Foods 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, “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.”  Id.

“[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).

On appeal, the parties do not dispute the compensation judge’s individual ratings, which were as follows:

The employee argues that the cosmetic disfigurement percentages should be combined first, before they are combined with the visual impairment percentage.  The employee also argues that the permanency ratings for the hips should be combined only after the permanency ratings have been combined for the vision loss and cosmetic disfigurement.  Using the employee’s calculation method, he argues that the total ascertainable permanency rating should be 97.9268 percent.

We disagree with the employee’s purported calculation method, and we affirm the compensation judge’s calculations.  Minn. Stat. § 176.105, subd. 4, states, in relevant part:

Minn. R. 5223.0300, subp. 3.F., allows for addition of categories as opposed to the A + B (1 – A) combination formula, but only “In certain situations as specifically noted elsewhere in these schedules . . . .”  If there is such a specific allowance, the percentages could be added first and then combined with other percentages as appropriate.  This is the calculation method proposed by the employee with regard to the employee’s cosmetic disfigurement.  Thus, the question is whether the rules at issue here contain a specific allowance that would allow for addition instead of combination.

Minn. R. 5223.0650 provides permanency ratings for cosmetic disfigurement.  Minn. R. 5223.0650, subp. 1, states:

Minn. R. 5223.0650, subp. 2.C., states, in relevant part, “The eyes, where this rating may be combined with any additional rating as provided in part 5223.0330, if visual impairment is present:” and then goes on to list permanency ratings, including the eyebrow and eyelid ratings received by the employee.  (Emphasis added.)  Therefore, the plain language of the rule does not make a specific allowance for addition instead of combination, and we affirm the compensation judge’s permanency calculations.^[2]

It is a basic tenet of workers’ compensation law that the substantive rights of the employer and employee are fixed by the law in effect on the date of injury.  See Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 40 W.C.D. 209 (Minn. 1987); Warner v. Zaiser, 184 Minn. 598, 239 N.W. 761, 7 W.C.D. 72 (1931).  Minn. Stat. § 176.101, subd. 2a.(b) (1995), which the parties agree was the law in effect at the time of the employee’s injury, stated:

The employee argues that under the plain language of Minn. Stat. § 176.101, subd. 2a.(b) (1995), “the permanency which has now [been] ascertained is payable beginning October 31, 1998,” which is the date his temporary total disability benefits ceased.^[3]  However, Minn. Stat. § 176.021, subd. 3 (1995), which was also in effect at the time of the employee’s injury, stated that “If doubt exists as to the eventual permanent partial disability, payment shall be then made when due for the minimum permanent partial disability ascertainable, and further payment shall be made upon any later ascertainment of greater permanent partial disability.”  This case involved an ongoing dispute as to the appropriate, total amount of permanency.  Therefore, pursuant to Minn. Stat. § 176.021, subd. 3, the employee’s permanency was not payable immediately upon cessation of temporary total disability benefits.

The employee argues, alternatively, that the compensation judge erred by using the March 2012 date as the commencement date because additional permanency ratings were ascertainable earlier.  He argues that he has had no improvement in his ability to see, and he cites a number of additional times where additional permanency ratings should have been ascertainable.  For example, he argues that permanency should have been ascertainable when Dr. Holland issued his report in September 2009 and then again when he issued his final report in February 2011.  He also argues that Dr. Utley had issued a rating regarding the eyelid scarring in 2005.  Ultimately, the employee argues that the compensation judge “did not explain why the permanency that is now payable had not been ascertained as of February 28, 2011, when Dr. Holland provided the detailed permanency rating.  Dr. Sher’s report concurring with Dr. Holland’s rating was not issued until over one year later.”

The question of when a permanency rating was first ascertainable is one of fact for the compensation judge.  See, e.g., Gilson v. R.C. Richwood Co., 46 W.C.D. 484 (W.C.C.A. 1992); Dauer v. Jerome Foods, Inc., 42 W.C.D. 1068 (W.C.C.A. 1990), summarily aff’d (Minn. May 14, 1990).  In Gilson, for example, the employee asserted that an employer and insurer had unreasonably delayed payment of minimum ascertainable permanency following their receipt of permanency ratings provided by employee’s treating physicians.  46 W.C.D. at 488.  The compensation judge, however, found that the employer and insurer had timely paid minimum ascertainable permanency following the receipt of the report of their adverse medical examiner.  Id.  On review of the evidence in that case, this court concluded that substantial evidence supported the compensation judge’s finding, and we affirmed.  Id. at 488-89 (citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984)).

This is a very complicated case involving numerous surgical procedures, consequential injuries, and an evolving total permanency rating.  The parties, at various times, have reached settlement agreements involving increased permanency ratings, but the total amount of permanent partial disability remained in question.  Although the employee’s medical providers issued ratings that were similar to those that Dr. Sher issued in March 2012, the compensation judge correctly pointed out that the permanency the employee is presently claiming was not ascertainable, even as of July 2007 when the parties reached their last settlement agreement or September 2009, when Dr. Sher indicated that it was too early to determine the permanency rating.  Furthermore, as the compensation judge also noted, the employee was having ongoing surgeries in an attempt to correct his vision, with a right eye surgery in December 2010, and a left eye surgery in March 2011, which was after Dr. Holland issued his February 2011 report.

The parties in this case periodically settled portions of the ongoing dispute as to the total amount of permanency involved.  While some of the employee’s providers may have indicated an earlier ascertainable date for permanency, substantial evidence supports the compensation judge’s conclusion that the employee’s permanent partial disability “became ascertainable upon the issuance of Dr. Sher’s report of March 23, 2012.”  Therefore, even if different inferences could justifiably be drawn from the evidence in this case, we affirm the determination of the compensation judge.  See Redgate v. Sroga’s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988); Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.^[4]

At the time of the employee’s injury, Minn. Stat. § 176.101, subd. 2a.(b), did not provide for a lump sum payment of permanent partial disability benefits.  In 2000, the legislature amended the statute, allowing an employee to choose permanent partial disability payments in a lump sum, with a discount calculated up to a maximum of five percent.  2000 Minn. Laws ch. 447, § 11, at 1053-54.

The employee argues that the changes to the statute in 2000 represent a “recognition by the legislature that in some cases it makes sense, especially large permanencies, to pay it out in a lump sum rather than over many, many years.”  He argues that the statute provides for a reduction of the lump sum to present value, so the only real change is that the employee would need to accept a discount of five percent.  As such, he argues that the changes to the stature are procedural in nature and can be applied retroactively.

As indicated above, the substantive rights of the employer and employee are fixed by the law in effect on the date of injury.  See Joyce, 412 N.W.2d 304, 40 W.C.D. 209.  “[A]ny statute which purports to alter a substantial term of the contract which was in effect at the time the controlling event occurred . . . impairs the obligation of such contract and is therefore unconstitutional.”  Yeager v. Delano Granite Works, 250 Minn. 303, 308, 84 N.W.2d 363, 366, 20 W.C.D. 27, 33 (1957), see also Joyce, supra.  In general, any statute, “whether procedural or substantive in nature, should not be construed as retroactive unless the legislature clearly manifested its intention that it be so applied.”  Marsolek v. Miller Waste Mills, 244 Minn. 55, 69 N.W.2d 617, 620, 18 W.C.D. 244, 248 (1955); see also Minn. Stat. § 645.21.  It is only necessary to determine the “substantive” or “procedural” nature of an enactment where the legislature has not provided specific guidance.

The amendment to Minn. Stat. § 176.101, subd. 2a.(b), was enacted in 2000 Minn. Laws ch. 4447, § 11, at 1053-54.  As a part of the same legislation, the legislature specifically indicated that “Sections 1, 10, 11, and 14 are effective for dates of injury on or after October 1, 2000.”  2000 Minn. Laws ch. 447, § 29, at 1061.  Therefore, this amendment does not apply to the employee’s 1996 date of injury.^[5]

The employee argues that the intent of Minn. Stat. § 176.101, subd. 2a.(b), was to provide an employee with an ongoing stream of benefits after cessation of temporary total disability benefits.  Therefore, he argues that if the permanency is payable weekly under § 176.101, subd. 2a.(b), as temporary total disability benefits would be, the adjustments provided in § 176.645, subd. 1, should apply as well.  We disagree.

Minn. Stat. § 176.645, subd. 1, states that “For injuries occurring after October 1, 1975 for which benefits are payable under section 176.101, subdivisions 1, 2 and 4 and section 176.111, subdivision 5, the total benefits due the employee or any dependents shall be adjusted in accordance with this section.”  Thus, the plain language of Minn. Stat. § 176.645 includes only benefits payable under Minn. Stat. § 176.101, subds. 1, 2, and 4.  Permanent partial disability benefits have been paid pursuant to Minn. Stat. § 176.101, subd. 3 and 2a, over the years.  However, Minn. Stat. § 176.645 has never referenced either of those sections as benefits to which § 176.645 adjustments would apply.  As such, we affirm the compensation judge’s determination that “the statute does not provide for adjustment” of the employee’s permanent partial disability payments, even though they are being paid at his compensation rate.