The employee appeals from the compensation judge’s determination that the October 15, 2011, injury was a temporary aggravation.   We reverse the compensation judge’s finding that the October 15, 2011, injury was a temporary aggravation on a pre-existing condition.

The employee has a long work history working as a cabinet-maker with multiple employers.  Most of his jobs involved the construction and installation of store fixtures.  Over the years, he sustained a number of injuries and had a history of neck symptoms and treatment.  In May of 2010, the employee began working for the employer, Process Displays, on a trial basis through a temporary agency.  He began working directly for the employer on a permanent basis in December 2010.

In the fall of 2010, the employee noticed numbness and tingling in his hands.  On October 5, 2010, the employee treated at MultiCare Associates.  An x-ray revealed disc degeneration from C4 through C7.  The employee was diagnosed with Reynaud’s syndrome, ulnar nerve irritation, and early degenerative disc disease at C6-7.

The employee continued working for the employer without significant time off work while treating for this condition.  He began to also experience soreness in his neck and around his shoulder blades associated with certain work activities.  He treated with a chiropractor for a time until the spring of 2011, when his symptoms subsided.  In the fall of 2011, his symptoms returned and progressed while he was working on a three-month project.  During this project, the employee and his co-workers built approximately 1,100 display cases for one of the employer’s customers.  The employee regularly worked extra hours during this project and during this time, he began to experience numbness throughout the left leg, right foot, and both hands, as well as neck pain.  The employee reported his symptoms to his supervisor on October 17, 2011, and a first report of injury was completed and filed.

On October 18, 2011, the employee sought treatment at MultiCare Associates for paresthesias as well as foot drop and was referred for a consultation with a neurologist.  On October 26, 2011, the employee was seen at the Noran Clinic by Dr. Eric Hernandez, who recommended an MRI scan of the employee’s cervical spine.  The MRI was performed on November 10, 2011, and revealed marked central stenosis at the C5-6 level and moderate central stenosis at the C6-7 level, secondary to degenerate disc disease.  The scan also revealed moderate to marked stenosis at both C5-6 neural foramina, and left-sided moderate stenosis at C6-7 secondary to uncinate process hypertrophy.  Based on the assessment and diagnostic work up, Dr. Hernandez diagnosed cord edema and/or myelomalacia and referred the employee to Dr. Michael McCue for surgery.  Dr. McCue performed an anterior cervical discectomy, decompression, and fusion at the C5-6 level on November 16, 2011.  The employee was treated post-surgically with physical therapy.

The employer and insurer accepted liability and paid wage loss benefits and medical expenses.  On February 21, 2012, the employee returned to work with the employer at reduced hours and was eventually released to full-time hours in March 2012.  The employee continued to be symptomatic with some residual neck pain and numbness in the hands.

On November 6, 2012, the employee sustained a second admitted work injury to his cervical spine while he and a co-worker were lifting a cabinet at a job site.  He reported neck pain, pain in the left arm as well as both hands, and left leg numbness.  On November 7, 2012, the employee contacted the Noran Clinic and informed the medical provider that he had aggravated his neck while lifting at work.  The employee was taken off work on November 15, 2012, and referred for an MRI scan.  The scan performed on November 15, 2012, showed no evidence of acute disc herniation.  The employee treated with physical therapy until January 7, 2013, but the treatment provided only slight improvement.  He was then sent to a MedX program but discontinued the program after 22 sessions citing little improvement.  On June 13, 2013, the employee was released to work at four hours per day with restrictions.^[1]

In February 2013, Dr. Hernandez provided a medical opinion on the permanency ratings applicable to the employee’s injuries.  Dr. Hernandez rated the employee’s permanent disability from the 2011 work injury at 12.5 percent under Minn. R. 5223.0370.  This rating combined a 10 percent rating for pain or stiffness in the cervical spine at multiple levels, substantiated by radiographic abnormalities, with an additional 2.5 percent permanency rating required under the schedules for the employee’s fusion surgery.  Dr. Hernandez was also of the opinion that the employee had not yet reached maximum medical improvement from the 2012 injury, but noted that if the injury failed to resolve and the employee’s symptoms remained unchanged, the disability would then be ratable at 7 percent under the permanency schedules.

The employee filed a claim petition on March 19, 2013, alleging entitlement to 12.5 percent permanent partial disability from an October 2011 Gillette^[2] injury and an additional 7 percent PPD from the second injury on November 6, 2012.  The employer and insurer answered admitting both dates of injury as well as 12.5 percent PPD for the 2011 date of injury, but asserted that the additional permanency rating for the 2012 injury was premature.

The employee was seen by Dr. Nolan W. Segal for an examination on behalf of the employer and insurer on June 5, 2013.  Dr. Segal diagnosed multilevel degenerative disease of the cervical spine, with cord myelomalacia that dissipated following surgery.  He considered the employee’s present condition to be entirely due to idiopathic arthritis and stenosis, rather than a cervical spine injury.  In his opinion, there was no evidence to support the allegation of a Gillette injury culminating on or about October 15, 2011.  Dr. Segal was also of the opinion that the November 6, 2012, lifting incident at work resulted in only a temporary aggravation of the employee’s preexisting condition, lasting no later than June 5, 2013, and found maximum medical improvement had been reached from all conditions.  He rated the employee with a 15.5 percent permanent partial disability, but reiterated his view that the permanency as well as the employee’s surgery were related solely to preexisting degenerative disease and stenosis, and not to either alleged work injury.

In a letter dated November 10, 2013, the employee’s treating physician, Dr. Hernandez, provided an additional, detailed medical statement, in which he disagreed with some of Dr. Segal’s opinions.  While he agreed that the employee had a long history of neck problems, he opined that repetitive stress at work had accelerated the employee’s pre-existing cervical stenosis to the point where it caused a cervical myelopathy necessitating the November 16, 2011, surgery.  He based his opinion on the employee’s history of symptoms and the imaging studies in 2010 and 2011.  He noted that a comparison of these imaging studies showed a worsened severity of the employee’s spinal stenosis with the employee’s spinal cord appearing not significantly compressed in 2010 but compressed in the 2011 images, after a year when the employee had described heavy physical activity at the job.  Dr. Hernandez agreed with Dr. Segal that the November 2012 injury only temporarily aggravated the employee’s pre-existing symptoms, which would have returned to baseline no later than June 5, 2013.  However, Dr. Hernandez opined that the 2012 injury had also resulted in a complicating chronic pain syndrome which had delayed resolution of the employee’s problems.

Dr. Hernandez also revised his prior opinion rating the employee’s permanency from the 2011 injury at 12.5 percent.  He stated that he had previously overlooked part of the language of Minn. R. 5223.0370, subp. 4, and that he now felt that this part of the rules better matched the employee’s condition.  He now rated the permanent partial disability from the 2011 injury at a total of 17.5 percent, of which rating the employee’s surgery contributed a 7.5 percent permanency rating.  He also now concluded that the employee’s 2012 injury was temporary and did not contribute further to his overall permanent partial disability rating.  He agreed with Dr. Segal that the employee had likely reached MMI from both injuries.

At the hearing, the employee’s claim petition was consolidated with the employer’s petition to discontinue temporary total benefits and with a medical request for certain additional recommended treatment.  By the time of the hearing, the employer and insurer had retracted their prior acceptance of the 2011 work injury and asserted a primary liability denial, alleging, based on the opinion of Dr. Segal, that the employee’s worsened condition in 2011 was not work-related.

In his findings and order dated January 2014, the compensation judge found that both of the employee’s injuries were work-related.  The judge found that the first injury in 2011 was a temporary aggravation of a pre-existing condition, which resolved on May 11, 2012.  The judge found the employee’s second work injury on November 6, 2012, was a substantial aggravation to his back condition, also temporary in nature, and that the employee had reached maximum medical improvement from the second injury by June 5, 2013.  The judge adopted the permanency rating of Dr. Hernandez, awarding the employee an additional 5 percent permanency for the 2011 work injury over the 12.5 percent rating previously admitted by the employer and insurer.

The employee appeals from the finding that the 2011 injury was temporary in nature.  Based on the facts above and the analysis below, we reverse the compensation judge’s finding that the December 15, 2011, work injury is a temporary, rather than permanent, aggravation to the employee’s pre-existing condition.

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.^[3]  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.^[4]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.  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.”^[5]

The employee asserts the compensation judge’s finding of a temporary aggravation on the October 15, 2011, injury is erroneous and is not supported by the evidence.  The employee points to specific inconsistencies between the findings, the evidence, and the reasoning contained in the memorandum of law.  Most notably the judge found a temporary aggravation over a seven-month period during which the employee underwent an anterior cervical discectomy and fusion with a decompression and placement of an anterior plate and was awarded an additional 5 percent permanent partial disability under the permanency schedules.  Given these findings, the employee maintains the substantial evidence of record compels a finding that the work injury was permanent, not temporary.  On appeal, we are asked to address the inconsistency of the judge’s findings and reverse the compensation judge’s finding that a work injury which produced permanent partial disability was at the same time a temporary aggravation.

A central issue before the compensation judge was whether the employee’s work activities resulted in a 2011 Gillette injury, in the form of an aggravation to his underlying degenerative disc disease, or whether the employee’s worsened symptoms in 2011 were a non-work-related progression of his pre-existing condition.  The compensation judge found that the employee had sustained a work-related injury.  In making this finding, the judge expressly adopted the expert medical opinion of Dr. Hernandez, who diagnosed cervical myelopathy due to the compression of the spinal cord by increased stenosis which he associated with the employee’s heavy work activities.  It was, in turn, this condition which necessitated the employee’s November 16, 2011, surgery.

The compensation judge also found that the employee was entitled to a permanent partial disability rating of 17.5 percent, pursuant to Dr. Hernandez’ opinion.  Dr. Hernandez rated the employee’s permanent disability from the 2011 work injury at 17.5 percent under Minn. R. 5223.0370.  This rating combined a 10 percent rating for pain or stiffness in the cervical spine at multiple levels, substantiated by radiographic abnormalities, together with an additional 5 percent rating applicable where this condition was treated surgically, and with an additional 2.5 percent permanency rating required where the surgery included a fusion.  These findings are unappealed and stand as the law of the case.^[6]

In the finding here appealed, the judge found that the employee’s 2011 work injury was temporary rather than permanent in nature and that it had resolved by May 11, 2012.  We conclude the judge’s finding that the October 2011 injury was temporary is clearly erroneous in light of the established findings on permanency.

The character of an injury as either permanent or temporary is not always self-evident.  A temporary injury is an injury whose effects “. . . last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.  [It is the] opposite of permanent.”  Black’s Law Dictionary 1312 (5th ed. 1979).  Generally, an injury for which permanency is payable is by definition deemed to be a permanent injury.  “Permanent partial compensation is payable for functional loss of use or impairment of function, permanent in nature.”^[7]

By statute,^[8] the Commissioner of the Department of Labor and Industry has defined specific permanent partial disabilities and the specific corresponding percentages of permanent partial disability.^[9]  A condition which meets the criteria of these rules by definition produces permanent physical impartment.  Since the employee’s work injury here produced determinable permanent physical impairment pursuant to these schedules, we conclude that the injury must be deemed permanent rather than temporary.^[10]

The employer and insurer also argue that there is no inherent contradiction between an award of permanency based on a surgical procedure, and, by implication, permanent partial disability based on that surgery, and a finding of a temporary injury.  They contend that there is case law holding that surgery for an injury does not necessarily mean that the injury was permanent in nature, citing Vezina v. Best Western Inn Maplewood.^[11]  We note, however, that the issue in Vezina was not whether the employee had sustained a temporary or a permanent injury, but whether he was permanently totally disabled which primarily rests on the disabled employee’s ability to work.^[12]

The employer and insurer next point out that the compensation judge’s award of permanent partial disability here includes amounts they paid voluntarily prior to the hearing.  They contend that permanency which was voluntarily paid does not represent a judicial determination of permanent partial disability and thus has no evidentiary value with respect to whether an injury is permanent or temporary.  Even if we were to accept the respondents’ argument that their voluntary payment of permanent partial disability cannot be taken as evidence that the employee sustained permanent partial disability, we note that the employer and insurer had admitted and paid PPD only in the amount of 12.5 percent.  Here, the employee was claiming an additional 5 percent PPD.  The compensation judge found that the employee was entitled to the entire 17.5 percent PPD claim, adopting the rating Dr. Hernandez provided for the 2011 work injury.  As the employer and insurer had admitted and paid only a 12.5 percent permanent partial disability, the judge awarded payment of the contested additional 5 percent PPD.

In awarding permanency the judge properly focused on the nature and extent of the injury.  The judge relied on the employee’s history of symptoms and the imaging studies in 2010 and 2011.  He adopted Dr. Hernandez’s analysis that a comparison of these imaging studies showed a worsened severity of the employee’s spinal stenosis with the employee’s spinal cord appearing not significantly compressed in 2010 but compressed in the 2011 images, after a year when the employee had performed heavy physical activity at the job.  This established a causal link between the work activity and the surgery on which the permanency ratings were based.

We conclude that the appealed finding of a temporary injury cannot be reconciled with the permanent partial disability award and other unappealed findings in this case.  Therefore, we reverse the finding that the 2011 Gillette injury was temporary in its nature and effects.