The compensation judge denied the employee’s claim for permanent total disability, ruling that the employee’s permanent partial disability for an impairment due to a condition not related to his work injury could not be used to meet the threshold set forth in Minn. Stat. § 176.101, subd. 5(2)(a).   We reverse and remand.

Todd Allan sustained a work-related injury to his low back while he was employed by RD Offutt Company on September 28, 2010.  The employee was 48 years old at the time of his injury.

In March 2013, the employee filed a claim petition alleging he was entitled to permanent total disability benefits and had incurred a 21 percent permanent partial disability as the result of his work injury.  The self-insured employer claimed that the work injury was temporary and the employee was not permanently totally disabled.

The claim petition was heard by Compensation Judge James Cannon on November 15, 2013; the findings and order was issued on January 16, 2014.  The compensation judge found that the 2010 work injury was permanent but concluded that the employee had no more than a 10 percent permanent partial disability from the low back injury.

Because of Mr. Allan’s age at the time of injury, he needed to establish a 17 percent permanent partial disability to meet the threshold for permanent total disability set out in Minn. Stat. § 176.101, subd. 5(2)(a).  The employee claimed additional permanent partial disability of 10 percent for loss of teeth under Minn. R. 5223.0320, subp. 7, and asserted that this permanent partial disability, when combined with his work-related permanent partial disability rating, satisfied the threshold requirement.  The employer agreed that the employee has a 10 percent permanent partial disability under the cited rule, but argued that this rating for a non-work-related condition could not be used to meet the requisite level of permanent partial disability in the statute.

The compensation judge determined that the non-work-related disability could not be used to meet the permanent total disability threshold and denied the employee’s claim based on his failure to establish at least 17 percent permanent partial disability.  The compensation judge did not address any vocational issues relating to the employee’s claim.

The employee has appealed the compensation judge’s decision that his permanent partial disability from a non-work-related condition could not be used to meet the threshold requirements of the permanent total disability statute.

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involve 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), summarily aff’d (Minn. June 9, 1993).

The issue on appeal is whether the employee’s permanent partial disability from a non-work-related condition may be used to meet the threshold for permanent total disability benefits set out in Minn. Stat. § 176.101, subd. 5(2)(a).

First, the employer argues that, based on case law, a correctible condition may not be used to establish permanent total disability.  For authority, the employer cites Yureko v. Prospect Foundry Co., 264 Minn. 480, 115 N.W.2d 477, 22 W.C.D. 180 (1962) and Holland v. Indep. Sch. Dist. #332, 274 Minn. 380, 144 N.W.2d 49, 24 W.C.D. 1 (1966). In both cases, the court was considering Minn. Stat. § 176.101, subd. 5(1) which has long contained a provision allowing for permanent total disability in the instance of “total and permanent loss of the sight of both eyes.”  In the cited decisions, the Minnesota Supreme Court concluded that an employee who had corrected vision with eyeglasses did not meet this definition and could not be found to be permanently and totally disabled without consideration of the employee’s ability to engage in gainful employment.  In Holland, the court affirmed an award of permanent total disability despite the employee’s failure to meet the requirements of Minn. Stat. § 176.101, subd. 5(1) based on the employee’s vocational limitations. In Yureko, the employee was awarded permanent partial disability benefits for his eye condition, but was found not to meet the presumption of permanent total disability for total loss of sight.  These cases are not applicable to the issue in this case.

The issue of whether the employee’s permanent partial disability from a non-work-related condition may be used to meet the threshold for permanent total disability benefits under Minn. Stat. § 176.101, subd. 5 was first addressed by this court in Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff’d (Minn. Oct. 28, 1997).  The employee in that case had a total of 8 percent permanent partial disability from his work injuries, but needed to establish a 15 percent permanent partial disability to meet the statutory threshold for permanent total disability benefits.  The employee alleged an additional 10 percent permanent partial disability not related to his work injury and the compensation judge found the rating to be appropriate.  The compensation judge concluded the threshold had been met and awarded permanent total disability benefits.

In considering the employer’s appeal in that case on this issue, this court noted that the statute did not state that the permanent partial disability used to meet the threshold must be the result of the work injury. The court also observed that permanent partial disability for non-work conditions was used in determining apportionment under Minn. Stat. § 176.101, subd. 4a.  The court concluded that “an employee who has sufficient ratable permanent partial disability from any cause may establish entitlement to benefits for permanent total disability if he or she meets the remaining eligibility requirements . . . as long as the employee’s work-related injury is a substantial contributing cause of that disability.”  Frankhauser, 57 W.C.D. at 250-52 (emphasis in original).  Frankhauser has been followed by this court in numerous decisions in the intervening 17 years.^[1]

The employer does not challenge the basic holding of Frankhauser, but contends that an employee’s permanent partial disability must represent a functional loss that affects her or his employability.  The employer argues that Mr. Allan does not have an underlying disability because there is no evidence that the loss of his teeth affects his function, given his use of dentures, and because his loss of teeth does not affect his employability.  This argument, that an employee’s permanent partial disability must affect the employee’s employability, is not in accord with case law.  “Our decisions interpreting section 176.021, subd. 3, clearly indicate that permanent partial disability benefits are intended to compensate permanent loss or impairment of a bodily function, and is in no way dependent on any prerequisite showing of wage loss.”  Moes v. City of St. Paul, 402 N.W.2d 520, 526, 39 W.C.D. 675, 685 (Minn. 1987).^[2]  This court directly addressed this argument in Metzger v. Turck, Inc., 59 W.C.D. 229 (W.C.C.A. 1999).  In Metzger, this court stated that in establishing the permanent partial disability thresholds for permanent total disability, “any substantial ratable permanent partial disability will satisfy that goal, whether or not that permanent partial disability is a factor in the employee’s wage loss or inability to work.”  Id. at 237.

The employer argues that the Metzger decision must be reversed on the basis that this court has held that permanent partial disability is not necessarily an impairment, citing Pikula v. Wadena County, 67 W.C.D. 344 (W.C.C.A. 2007).  In that case, this court stated that “[a] prior rating of permanent partial disability alone is not a sufficient basis for apportionment of permanent partial disability; there must be evidence of a previous loss of function which contributes to the present disability.”  Id. at 347.  The court was following previous case law construing the language of Minn. Stat. § 176.101, subd. 4a, which held that the statute requires a showing of medical evidence that the employee suffered loss of use or impairment of function before the work injury in order for liability for that injury to be apportioned.  See Beck v. Dick  & John’s Price Rebel, 40 W.C.D. 254, 257 (W.C.C.A. 1987); Frampton v. Cub Foods, 65 W.C.D. 251 (W.C.C.A. 2005).  The apportionment statute requires that a pre-existing condition must result in a disability and we concluded that a permanent partial disability rating alone does not meet that requirement for apportionment purposes.  This court has repeatedly held that the fact that an employee has received a permanent partial disability rating for an injury that preceded the disabling injury does not, as a matter of law, entitle the last insurer to equitable apportionment.  Shelton v. National Painting & Sandblasting, 61 W.C.D. 230, 245 (W.C.C.A. 2000).  These cases do not apply to the issue of whether an employee has met the permanent partial disability threshold for permanent total disability.  In Shelton, while this court specifically noted that a permanent partial disability rating alone was not enough for apportionment as a matter of law, the court also stated that the compensation judge was permitted to include all ratable permanent partial disability in reaching the statutory threshold, even if some of that permanency did not impact the employee’s ability to work.  Id.  We decline to reverse the Metzger decision.

“Permanent partial compensation is payable for functional loss of use or impairment of function, permanent in nature.”  Minn. Stat. § 176.021, subd. 3.  The extent of permanent partial disability is determined by a schedule promulgated by the Commissioner of the Department of Labor & Industry.  Minn. Stat. § 176.101, subd. 2a.  One of the factors to consider in establishing the schedule is the “loss of function and use of the injured member.”  Minn. Stat. § 176.105, subd. 4.  As noted earlier, permanent partial disability for total loss of teeth is provided for in Minn. R. 5223.0320, subp. 7.  The rule does not provide that the rating is lessened if the employee uses dentures.  We conclude then that Mr. Allan has a functional impairment from this condition and a ratable permanent partial disability under the schedule.  In accord with Frankhauser and subsequent decisions, this permanent partial disability may be used to meet the threshold set forth in the permanent total disability statute.  Mr. Allan’s combined ratings satisfy the threshold requirements of the statute.

The decision of the compensation judge is reversed and this matter is remanded for determination of whether the employee meets the additional requirements necessary to be eligible for permanent total disability benefits.