This matter was heard by Compensation Judge James Cannon on October 29, 2014, on the employee’s claim petition filed December 20, 2012.  The employee claimed entitlement to permanent total disability benefits from December 7, 2006, to the present and continuing, an additional 2% permanent partial disability rating for the neck beyond what had already been paid, and a 45% permanent partial disability rating for emotional disability.  In his Findings and Order dated December 19, 2014, the compensation judge awarded the additional 2% permanent partial disability rating for the neck, but denied the employee’s claim for a 45% permanent partial disability on the emotional condition, and as a result, denied the claim for permanent total disability benefits.  The employee appeals from the compensation judge’s determination and dismissal of her permanent partial disability claim on the emotional condition and permanent total disability benefits.  We affirm.

On December 7, 2006, the employee, Rebecca Wessel, sustained an injury to her neck arising out of and in the course and scope of her employment as a human services technician at a group home.  The employee had been assaulted by a male patient of the group home who struck the employee several times in the head and grabbed her by her ponytail.  At the time of the injury, the employee was 29 years old.  The self-insured employer, State of Minnesota Department of Human Services, admitted liability for the neck injury and paid benefits including temporary total disability benefits, temporary partial disability benefits, and medical expenses.

The employee developed a pain disorder and dysthymia.^[1]  Attempts to return the employee to work were ultimately unsuccessful due to her chronic pain, post-traumatic stress, flashbacks, and depression.  In the years following the assault, the employee reported a fear of returning to work and suffering another attack, an increase in anxiety, difficulty with daily tasks and chores, and withdrawal from her family.  The self-insured employer denied liability for the psychological conditions.  Evidence on this issue was presented at a hearing before a compensation judge on June 3, 2010.  In the Findings and Order dated August 9, 2010, Compensation Judge Janice Culnane found the employee to have a pain disorder and dysthymia, and that the December 7, 2006, incident was a substantial contributing factor to those psychological conditions.  The compensation judge awarded related medical treatment and out-of-pocket expenses.

In 2011, the employee filed a claim petition seeking compensation benefits and medical treatment.  All claims with the exception of permanent total disability were settled and memorialized in a Stipulation for Settlement, which was approved by an award in 2012.  In the agreement, the self-insured employer paid the employee 10% permanent partial disability for the neck under Minn. R. 5223.0370, subp. 3.C.(2).  The parties also agreed that the employee could proceed with an MRI and discogram tests as recommended by Dr. Robert Wengler, and that the treatment recommended by Dr. Paul Arbisi in his April 12, 2012, report would be provided.^[2]  Finally, the parties stipulated that the employee did not meet the permanent total disability threshold set forth in Minn. Stat. §176.101, subd. 5(2), and therefore, the employee’s claim for permanent total disability would be withdrawn and dismissed without prejudice.  It was the intent of all parties to leave open the employee’s claim for permanent total disability benefits.

On December 20, 2012, the employee filed a claim petition seeking 12% permanency for the neck, 45% permanency for emotional disability, and entitlement to permanent total disability benefits.  In support of her claim for additional neck permanency beyond the 10% paid, the employee relied upon the opinions of Dr. Wengler.  In support of her claim for a permanency rating for an emotional disability and for permanent total disability status, the employee relied upon the opinions of Dr. John Cronin.

Entered into evidence at hearing on the employee’s claim petition was a narrative report by Dr. Cronin dated November 19, 2012.^[3]  According to Dr. Cronin, the employee had tried multiple treatment modalities, and was maintaining treatment through prescriptions of psychotropic medications.  Dr. Cronin rated the employee with a permanency rating of 45% pursuant to Minn. R. 5223.0360, subp. 7.D., using the Weber^[4] analysis.  His rationale for rating the emotional disability at 45% was based on his opinion that the employee’s condition exceeded category 3, “moderate emotional disturbance,” but it did not meet the full criteria under category 4, “requires sheltering with some supervision of all activities.”  Dr. Cronin considered the employee to be permanently and totally disabled and not able to engage in any type of meaningful job search at that juncture.

In March 2013, the employee’s primary physician referred her to Dr. Boris Kholomyansky, a psychiatrist.  The records also reflect that the employee had been referred to Dr. Mary Sa for counseling.

On August 15, 2013, Dr. Cronin issued a follow-up opinion.^[5]  In his report, Dr. Cronin noted that the employee had been treating with Dr. Kholomyansky.  Because Dr. Kholomyansky was attempting to find an effective combination of psychotropic medications and had referred the employee to Riverwood Center for counseling, Dr. Cronin believed it was premature to give a medical opinion on maximum medical improvement until those two treatment modalities were exhausted.  He restated his opinion on a Weber permanency rating of 45%, noting that he would withhold a final permanent partial disability assessment until the employee had reached MMI.

According to the QRC notes submitted into evidence,^[6] the employee was evaluated at Riverwood Center for counseling at the recommendation of Dr. Kholomyansky.  However, because the employee had concerns that the therapists were not female and that males could participate in the counseling program, the employee chose not to pursue counseling.  In her reports, the QRC noted that the employee was treating with Dr. Sa on a weekly basis.  Dr. Sa disagreed with the prescription medications recommended by Dr. Kholomyansky.^[7]  She did, however, recommend that the employee begin treating with a female psychiatrist, Dr. Soto.^[8]  The available treatment records of Dr. Sa submitted at the hearing indicate that into January 2014, the employee was in psychotherapy and treating for PTSD.  Shortly thereafter, the employee became pregnant and all prescribed medications were discontinued.

On March 10, 2014, the employee was again evaluated by Dr. Cronin.  In a written opinion dated March 20, 2014, Dr. Cronin noted that the employee was off all psychotropic medications as of February 4, 2014.^[9]  Other records indicate that those medications were discontinued by recommendation of Dr. Sa due to the employee’s pregnancy.  In his March 20, 2014, report, Dr. Cronin opined that the employee had reached MMI, and he restated his 45% permanency rating.  He recommended that the employee continue to treat with Dr. Sa.^[10]

In April 2014, the QRC noted that the employee had discussed her pregnancy, her non-use of prescription medications, and the difficulties as a result of going off the medications.  It was further noted that the employee was trying to continue therapy with Dr. Sa on a weekly basis, and that Dr. Sa was teaching the employee different coping mechanisms.

In a note dated May 20, 2014, Dr. Sa informed the QRC that the employee was pregnant and therefore unable to take prescription medications.  Dr. Sa was of the opinion that the employee was unable to work until after the baby was born and the employee had completed   psychological treatment and was emotionally stable on psychotropic medications.  Dr. Sa went on to state that the estimation of when the employee could be released to work was unclear, but likely not for at least nine months.

On October 1, 2014, the employee underwent an emergency c-section.  The employee reported to her QRC on October 7, 2014 that she remained unable to take her medications due to breastfeeding.

This matter was heard by Compensation Judge Cannon on October 29, 2014.  In his December 19, 2014, Findings and Order, the compensation judge awarded the employee an additional 2% PPD for the neck.  He determined that a permanency claim on the emotional condition was premature and denied the claim for 45% permanent partial disability.  Because the employee did not have the requisite permanent partial disability rating of 17% as required by statute in order to be eligible for permanent total disability benefits, the employee’s claim for permanent total disability was denied.  The employee appeals.

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.”^[11]  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.”^[12]  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[13]  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 evidence or not reasonably supported by the evidence as a whole.”^[14]

“[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.”^[15]

The employee presents three issues on appeal for determination.  First, whether the compensation judge committed errors of law when he failed to determine that the employee was at maximum medical improvement from the work-related psychological injuries.  Second, whether the compensation judge committed an error of law when he determined that a rating for permanent partial disability was premature for an employee who did not complete psychological treatment prior to reaching maximum medical improvement.  And third, whether the compensation judge erroneously denied permanent total disability benefits because the employee did not meet the threshold criteria identified in Minn. Stat. §176.101, subd. 5.

The employee claims the combined disability of her neck, chronic pain syndrome, anxiety, and long-term depression, make it impossible for her to work.  She claims that as a result of her physical and emotional disabilities, no doctor has ever released her to look for work.  She further claims that because she has been paid the maximum 104 weeks of temporary total disability benefits, the only wage loss compensation available to her is permanent total disability benefits.  Given the evidence in the record, the employee maintains the compensation judge erred in accepting medical opinions that lack foundation to reach the ultimate finding that the employee had not met the threshold requirement in Minn. Stat. §176.101, subd. 5(2), and therefore was not eligible for permanent total disability benefits.  We disagree for the reasons set out below.

Historically, an injured employee was entitled to permanent total disability if she could not perform the substantial and material parts of some gainful work or occupation with reasonable continuity.^[16]  Permanent total disability meant, “disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.”^[17]  Fundamentally, an injured employee was permanently and totally disabled if the employee’s “physical condition [was] such as to disqualify him for regular employment in the labor market.”^[18]

The Minnesota Supreme Court in Schulte v. C.H. Peterson Constr. Co.,^[19] identified factors to be considered when determining total disability for an injured employee.  These factors measure physical condition against age, education, training, experience, and the type of work available in their community.^[20]  The application of the Schulte factors in later cases provided the criteria used to consider and analyze the cause and effect of an employee’s permanent total disability.^[21]  But effective for those employees with injuries occurring on or after October 1, 1995, Minn. Stat. §176.101, subd. 5(2) considers the Schulte factors only “after the employee meets the threshold criteria of item (i), (ii), or (iii)” of the statute.^[22]  The employee was born on April 4, 1977, and was 29 years old at the time of the injury.  Therefore, the employee bears the burden of proof to establish a minimum threshold requirement of “at least a 17 percent permanent partial disability rating of the whole body” to qualify for permanent total disability.^[23]

In an attempt to establish the requisite amount of permanent partial disability, the employee claimed at hearing a permanency rating for an orthopedic condition and a permanency rating for an emotional condition.  With regard to the rating for the orthopedic condition, the compensation judge found that the employee established entitlement to a 12% rating for the neck, and this finding was not appealed.  With regard to the rating for the emotional condition, the compensation judge determined that it was premature to assign a permanency rating, and as a result, the 17% minimum threshold was not met.  The employee maintains the compensation judge erroneously determined that a permanency rating for an emotional condition was not ripe for adjudication.  Based on the issues raised and the evidence in the record, we disagree.

The employee claimed a 45% permanency rating for emotional disability due to the December 7, 2006, injury based upon the opinion of Dr. Cronin.  Dr. Cronin’s initial rating was provided in a November 2012 report.  Nine months later in August 2013, Dr. Cronin declined to make a maximum medical improvement determination, noting in his report that the employee’s treating physician, Dr. Kholomyansky, had prescribed a course of treatment that had not yet occurred.  Nonetheless, Dr. Cronin reiterated his 45% permanency rating, but withheld what he considered a final permanency assessment until maximum medical improvement had been reached.^[24]  By comparison, Dr. Arbisi was of the opinion that the employee suffered a major depressive disorder which was ineffectively treated.^[25]  Dr. Arbisi was also of the opinion that the employee was not at maximum medical improvement, and that it was premature to assess permanent partial disability.

Dr. Kholomyansky’s treatment plan consisted of a combination of medications and individual counseling.  These treatment modalities are standard tools by which steady progress in the course of treatment can be measured.  Following Dr. Cronin’s August 2013 report, the employee did not complete the recommended plan for treatment.  With regard to the psychotropic medications, the employee’s ability to follow her physician’s recommendations was complicated by her pregnancy and subsequent breastfeeding.  With regard to the individual counseling, there is nothing in the record to demonstrate that the employee completed counseling with a female therapist.  The self-insured employer argued that the employee’s failure to complete individual counseling as recommended by her treating physician and approved by the self-insured employer was a factor to consider in assessing the ripeness of the permanency rating.

In her brief, the employee argued that in the alternative to the 45% rating provided by Dr. Cronin, a minimum rating of 20% under Minn. R. 5223.0360, subp. 7.D. was appropriate.  A minimal ascertainable rating was never raised or addressed at hearing and we decline to consider it for the first time on appeal.^[26]  The appellant is not foreclosed from bringing a claim for permanent total disability based upon a minimal ascertainable rating, even if the rating is for a non-work-related mental health issue.^[27]

This case presents a medically complex psychological condition with non-medical use of prescription drugs and sparse medical records to document the deployment of treatment.  We recognize employees with work-related mental injuries struggle to fit an often complicated set of facts into the statutory framework to meet the minimum threshold requirement.  Here, the compensation judge determined that maximum medical improvement had not been reached pending the completion of the treatment plan.  In this case, it was not unreasonable for the judge to determine that absent the completion of the treatment plan, the issue of maximum medical improvement was not ripe for adjudication.^[28]  Given the sparse evidence presented in this case, the compensation judge was within his discretion to find the issue of maximum medical improvement connected to a completion of the treatment plan and dependent upon a permanency rating to reach the requisite threshold.  His ultimate conclusion that permanent total disability status was not ripe for consideration is supported in the record.  We affirm.