LUIS YUPA (SEGUNDO LUIS YUPA ALVAREZ), Employee/Appellant, v. PRIME HOME CONSTR., LLC, and RAM MUT. INS. CO., Employer-Insurer/Respondents, and HENNEPIN COUNTY MED. CTR., Intervenor.

AUGUST 15, 2016

No. WC15-5886

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee’s claim for an additional 10% permanent partial disability for vertigo, pursuant to Minn. R. 5223.0360, subp. 5.A, was premature “at this time.”

PERMANENT TOTAL DISABILITY - THRESHOLD. Where the compensation judge denied the employee’s claim for an additional 10% permanency, the judge’s determination that the employee failed to prove he is permanently and totally incapacitated from gainful employment is vacated as the employee did not meet the 17% permanent partial disability required for permanent total disability eligibility under Minn. Stat. § 176.101, subd. 5.(2)(i).

Determined by:
            Gary M. Hall, Judge
            David A. Stofferahn, Judge
            Manuel J. Cervantes, Judge

Compensation Judge: Kathleen Behounek

Attorneys:  Aaron W. Ferguson, Aaron Ferguson Law, St. Paul, Minnesota, for the Appellant. Noelle L. Schubert and Jessica L. Ringgenberg, Arthur, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Respondents.

Affirmed in part and vacated in part.



The employee appeals from the compensation judge’s determination that the employee failed to prove he is not, at the present time, entitled to an additional 10% permanent partial disability for a permanent inner ear injury, and from the compensation judge’s finding that the employee was not permanently and totally disabled as of the date of hearing. We affirm in part and vacate in part.


The employee worked as a roofer for the employer, Prime Home Construction, for about two and a half years. He sustained an admitted work injury on October 11, 2012, when he fell approximately twelve feet from a ladder landing on his face and head. The employer accepted liability for a traumatic brain injury (TBI) and right temporal bone fracture/inner ear injury.

The employee was transported to Hennepin County Medical Center (HCMC) where he was treated for a right temporal skull fracture, traumatic subarachnoid hemorrhage, and bilateral subdural hematomas. The employee’s care was managed by Dr. John Bowar, a physical medicine and rehabilitation (PM&R) specialist at HCMC. After stabilizing, he was transferred from acute care to the HCMC rehabilitation center. The employee received physical therapy, occupational therapy, speech/cognitive therapy, and psychological assessment. He was discharged from the hospital on about November 5, 2012, and continued to receive physical therapy, occupational therapy, and speech/cognitive therapy on an outpatient basis at HCMC.

Jean Murray, a qualified rehabilitation counselor (QRC), began working with the employee on October 25, 2012. Ms. Murray provided medical management services to the employee through the date of the hearing.

On November 14, 2012, the employee was seen in the HCMC Otolaryngology (ENT) clinic[1] reporting pressure and pain in his right ear with loud painful noise. A vestibular evaluation was performed by physical therapy on November 15, 2012, which revealed benign paroxysmal positional vertigo (BPPV) with dizziness.

On January 14, 2013, the employee reported to Dr. Bowar difficulty with intermittent dizziness when lying down at night. Dr. Bowar concluded the employee might have mild ear damage and referred the employee to the ENT Clinic. When seen in ENT on January 30, 2013, the employee reported sensitivity to sound and a new onset of dizziness lasting about a month when he looked up or moved his head quickly. The ENT doctor recommended that Dix-Hallpike and Epley maneuvers be provided in physical therapy to address the employee’s vertigo. The employee continued to see Dr. Bowar in the HCMC outpatient TBI clinic.

On February 13, 2013, repeat audiometric testing showed significant right ear hearing loss and the employee was referred to Dr. Rex Haberman in the HCMC ENT clinic to explore treatment options. Dr. Haberman saw the employee on February 28, 2013, and ordered a repeat vestibular assessment and a CT scan. The assessment, completed on April 25, 2013, showed negative Dix-Hallpike bilaterally, suggesting possible resolution of the employee’s BPPV. On May 17, 2013, however, the employee again reported episodes of dizziness and being off balance. He was unable to turn his head left or right with any speed as it made him dizzy for a minute or so. He was also dizzy when looking up and dizzy when rolling out of bed in the morning. Left posterior canal BPPV of canalithiasis nature was diagnosed.

The employee followed-up with Dr. Haberman on May 24, 2013. The CT scan revealed displacement of the inner ear bones. Dr. Haberman indicated that if the employee’s hearing did not improve, he would recommend exploratory surgery and repair.

On June 17, 2013, the employee was examined by Dr. Steven Lockman, a PM&R specialist in the HCMC TBI clinic. Dr. Lockman took over management of the employee’s care as Dr. Bowar retired. He continued the employee off work, and advised the employee to continue with vestibular physical therapy.

In July 2013, Dr. Haberman recommended outpatient surgery to repair the inner ear bones in the hope of reducing the employee’s hearing impairment. The employee underwent tympanoplasty surgery consisting of ossicular chain reconstruction and closure of a fistula on October 22, 2013.

The employee was evaluated by Dr. Danial Randa, a neurologist, on November 19, 2013, at the request of the employer and insurer. Dr. Randa diagnosed a cerebral concussion, right temporal and left frontal lobe contusions, bifrontal shear injuries, bilateral subdural hematoma, subarachnoid hemorrhage, and right temporal and parietal fractures secondary to the October 11, 2012, injury. The doctor opined the employee sustained an injury to the right vestibulocochlear apparatus including a subtle ossicular dislocation, delayed sensorineural hearing loss on the right, and BPPV/vertigo, likely reflecting sequelae from the temporal bone fracture. Dr. Randa concluded the employee’s work restrictions were primarily the result of the employee’s vertigo and vestibulocochlear injury, and that the employee could not return to roofing or working at heights. The doctor, however, deferred determination of permanency for the employee’s vestibulocochlear injury to an ENT medical examiner.

Dr. Randa observed there had been substantial improvement in the employee’s cognitive functioning since the initial hospitalization. Despite a lack of neuropsychiatric testing, in view of the nature of the traumatic event, Dr. Randa opined the employee likely sustained some mild residual memory impairment and assigned a 10% permanent partial disability rating pursuant to Minn. R. 5223.0360, subp. 7.C.1, for mild impairment of complex integrated cerebral function. Dr. Randa further opined the employee had reached maximum medical improvement (MMI) for the cognitive aspects of his injury. Finally, Dr. Randa stated the employee had no specific restrictions with respect to his cognitive impairment. The employer and insurer accepted Dr. Randa’s rating and paid the 10% permanency for cognitive impairment.

On referral from Dr. Lockman, a neuropsychological evaluation was completed by Jackie Micklewright, Ph.D., on January 28, 2014. Dr. Micklewright noted the employee was born and raised in Ecuador. Spanish is his only language and he was accompanied by an HCMC Spanish interpreter. He dropped out of school in Ecuador in the third grade and has minimal ability to read in Spanish, cannot write, and has minimal basic math ability. Due to cultural and linguistic barriers, the reliability of the neuropsychological testing was suspect, however, Dr. Micklewright believed the test results were valid.

Dr. Micklewright diagnosed a mild to moderate cognitive disorder secondary to traumatic brain injury. The employee exhibited moderate deficits on measures of cognitive speed, mental flexibility, and set shifting, visual planning and organization, and problem solving. Expressive language difficulties were evident both in the clinical interview and on formal evaluation. Dr. Micklewright opined the employee is not able, from a cognitive or a physical perspective, of returning to work as a roofer or to an otherwise physically demanding or high-risk job. Dr. Micklewright further stated that, while the employee exhibited a capacity for new learning, he would require on-the-job accommodations, such as modified work loads/schedules, frequent rest breaks, and accommodation for any sensory or perceptual difficulties, as well as instruction or job retraining in Spanish. Dr. Micklewright believed the employee would benefit from job retraining in the future, however felt this could not be initiated until his physical symptoms were more adequately managed.

On May 22, 2014, an ENT evaluation was conducted by Dr. Markus Gapany, University of Minnesota Otolaryngology, at the request of the employer and insurer. The employee reported intermittent episodes of vertigo of two different types. One that occurs when he is lying down in bed and rolls to the right; this vertigo is helped by physical therapy. The second occurs when ambulating fast, looking up, or turning his head vigorously, causing him to lose his balance, and is not helped by physical therapy. Dr. Gapany concluded that optimal physical therapy over a period of nearly two years as well as an attempted surgical repair had not improved the employee’s vestibulocochlear symptoms in any substantial way, emphasizing that physical therapy had provided only temporary relief of some of his vertigo symptoms.

Dr. Gapany concluded the employee sustained permanent hearing loss in his right ear as well as vertigo and balance issues as a direct result of his October 11, 2012, injury. The doctor opined the employee had reached MMI for his vestibulocochlear injury, recommended no acute intervention, and advised continuing physical therapy for the foreseeable future. In Dr. Gapany’s opinion, the employee is permanently restricted to sedentary or nearly sedentary work and cannot return to his occupation as a roofer or any job that requires balance, coordination, climbing stairs or ladders, rapidly changing body positions, or looking up or turning the head.

The employee continued to receive physical therapy with an audiologist. In an October 24, 2014, progress report, theemployee’s QRC stated that a meeting was had on October 23, 2014, with the audiologist who indicated that therapy had not been very helpful. The QRC and the employee then met with Dr. Haberman who apparently recommended another surgery consisting of a posterior canal occlusion. The employee wanted to continue physical therapy and was considering a second opinion.

In a January 30, 2015, report, the QRC stated the employee was not working and was permanently precluded from engaging in work as a roofer. In her opinion, it was highly unlikely that the employee would be able to obtain or sustain suitable, gainful employment. On February 18, 2015, Dr. Lockman completed a form provided by the employee’s attorney. The doctor diagnosed traumatic brain injury as a result of the October 11, 2012, work injury. He provided work restrictions of no working from heights and no climbing. In his opinion, the employee was permanently and totally disabled. Dr. Lockman provided an additional permanent partial disability rating of 10% pursuant to Minn. R. 5223.0560, subp. 5.A., for dysequilibrium or vertigo, and stated primary future medical needs would be identified by ENT.

On February 11, 2015, Dr. Colin Neumann and Dr. Brendan Pierce in the HCMC ENT clinic provided a note stating the employee should avoid any work on ladders or on a roof, and that, due to his significant BPPV/vertigo, the employee was at high risk for falls, especially when not on the ground. The employee returned to see Dr. Pierce on March 4, 2015. The doctor noted the employee suffered a significant right-sided temporal bone fracture in 2012 resulting in persistent right ear hearing loss, ongoing BPPV, and high-pitch tinnitus. The employee reported persistent vertigo, on a daily basis, when walking quickly, looking up, or looking from side to side. Dr. Pierce discussed with the employee what a posterior canal occlusion would entail, including risks of worsening dizziness, worsening to profound permanent hearing loss, facial paralysis or cerebrospinal fluid leak, and the fact that it might not help his vertigo. The employee indicated he would prefer to continue physical therapy. Dr. Pierce’s impression was possible ongoing BPPV. The doctor recommended additional balance testing, repeat Dix-Hallpike and roll tests, and an ENG (electronsystagmography). Dr. Pierce further commented that he was unable to fully evaluate the employee’s disability without further testing.

Testing was completed in HCMC physical therapy on March 12, 2015. The therapist noted the Dix-Hallpike test was markedly improved since the employee first began coming to physical therapy. Additional therapy was planned with goals of decreasing positional dizziness. decreasing balance dysequilibrium with walking combined with head movements, and encouraging functional exercise. The therapist indicated the employee would be discharged at the next visit if the Dix-Hallpike and roll tests were negative.

On April 24, 2015, the employee was seen by Dr. Brionn Tonkin at the HCMC outpatient TBI clinic, apparently replacing Dr. Lockman. Dr. Tonkin issued a note stating the employee was under his care and was to remain off work until re-evaluated in two months. QRC Murray reported that Dr. Tonkin referred the employee for an updated neuropsychological evaluation and consultation with an ophthalmology specialist.

On July 3, 2014, the employee filed a Claim Petition seeking permanent total disability benefits from the date of injury to the present and continuing. The employer and insurer denied the employee was permanently and totally disabled and affirmatively alleged the employee did not meet the permanent partial disability threshold under Minn. Stat. § 176.101, subd. 5.(2)(a).

A hearing was held before a compensation judge on June 8, 2015. In Findings and Order served and filed September 9, 2015, the judge found (1) the employee failed to prove that, at the present time, he has sustained a 10% permanent partial disability pursuant to Minn. R. 5223.0360, subp. 5.A.; and (2) the employee failed to establish that he is permanently and totally disabled from gainful employment as a result of his October 11, 2012, injury.


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 (2014). 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, 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.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).


1.    Permanent Partial Disability

The compensation judge concluded the employee’s claim for an additional 10% permanent partial disability for vertigo, pursuant to Minn. R. 5223.0360, subp. 5.A, was premature and denied the claim “at this time.” (Finding 14; Memorandum.)

The employee argues the evidence demonstrates he sustained a permanent injury to his inner ear producing vertigo and other balance issues, and the compensation judge’s determination that the employee is not entitled to an additional 10% permanent partial disability is not supported by substantial evidence. The employee maintains he meets the requirements of Minn. R. 5223.0360, subp. 5.A, and that where the undisputed facts meet the elements necessary for a permanency rating the compensation judge may not deny the claim. The employee maintains there is no question he suffered an “anatomic loss or alteration . . in the vestibular mechanism . . of a type known to cause dysequilibrium or vertigo” as defined in the rule, and that such signs or symptoms “are present and persistent despite therapy.” Additionally, the employee, while able to live independently, specifically has “restrictions on working at exposed heights [and] walking on scaffolding or girders,” and other activities requiring balance and coordination. Minn. R. 5223.0360, subp. 5.A.

The compensation judge acknowledged the employee sustained an anatomic loss or alteration in the vestibular mechanism as a result of his right temporal bone fracture and that as a result, the employee experiences intermittent, yet persistent episodes of vertigo only some of which are temporarily improved with vestibular physical therapy. (Finding 8; Memorandum.) The compensation judge nonetheless rejected Dr. Lockman’s rating, noting he is not an ENT specialist and that Dr. Lockman provided no rationale for the rating. Additionally, the judge noted that neither of the employee’s treating ENTs, Dr. Haberman or Dr. Pierce, provided a permanency rating for vertigo, nor did Dr. Gapany.

The competency of a physician to provide an expert medical opinion depends upon the doctor’s scientific knowledge and practical experience with the issue which is the subject of the opinion offered. Drews v. Kohl’s, 55 W.C.D. 33, 38-39 (W.C.C.A. 1996)(citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). Dr. Lockman is a PM&R specialist in the HCMC TBI clinic, and has managed care for the employee’s head injury since June 2013. He was clearly aware of, and had records available to him documenting the treatment provided to the employee through the ENT clinic and physical therapy for his vertigo. This level of knowledge affords adequate foundation for a doctor to render an expert medical opinion. See, e.g., Grunst v. Immanuel‑St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130. 1132‑33 (Minn. 1988); Drews at 38-39; Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003)) Moreover, an expert medical opinion does not lack foundation because the doctor did not explain the underlying reasons for his opinion. Goss v. Ford Motor Co., 55 W.C.D. 316, 321 (W.C.C.A. 1996).

However, determination of permanent partial disability is a question of ultimate fact for the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778, (Minn. 1987); Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983). As such, it will not be reversed on appeal unless consideration of the evidence and inferences permissible therefrom require reasonable minds to adopt a contrary conclusion.

In determining that a permanency rating for the employee’s vertigo was premature, the compensation judge found the employee continues to actively treat for his work injury. (Finding 12.) The judge noted that in October 2014, Dr. Haberman recommended a second surgery - - a posterior canal occlusion - - to treat his positional vertigo. In her progress notes, QRC Murray stated Dr. Haberman indicated the surgery is warranted when multiple maneuvers have not helped and “he thinks this would be very effective.” (Finding 13; Resp. Ex. 22, 10/24/14 Progress Note.).[2] At that time, the employee opted to continue therapy and indicated he was considering a second opinion. At the hearing on June 8, 2015, the employee testified he didn’t know whether or not he would proceed with the surgery.[3] (T. at 59.)

The employee was subsequently seen by Dr. Pierce in the HCMC ENT clinic. Dr. Pierce noted there had been times when the employee’s Dix-Hallpike and roll tests were negative, including his assessment by physical therapy in January 2015. The doctor assessed possible ongoing BPPV, discussed the risks of the proposed posterior canal occlusion surgery, and recommended further testing including balance testing, repeat Dix-Hallpike and roll tests, and an ENG. Dr. Piece indicated he was unable to fully evaluate the employee’s disability without the additional testing.

In March 2015, the employee reported less intense vertigo symptoms and the Dix-Hallpike test was markedly improved. The physical therapist indicated the Dix-Hallpike and roll tests would be reassessed and the employee discharged at the next visit if the tests were negative.

Finally, in April 2015, the employee was seen by Dr. Tonkin at the HCMC TBI clinic instead of Dr. Lockman. Dr. Tonkin stated the employee was to remain off work until re-evaluation in two months, and referred the employee for an updated neuropsychological evaluation and consultation with an ophthalmology specialist.

The evidence is such that the compensation judge could have found for the employee. However, substantial evidence does support the compensation judge’s finding that the employee did not establish entitlement to an additional 10% permanency rating for his vertigo “at this time” given the possibility of future improvement. The employee is not precluded from reasserting this claim in the future. We, accordingly, affirm.

2.    Determination of Permanent Total Disability Where Threshold is Not Reached

Without the claimed additional 10% permanent partial disability, the employee did not meet the statutory threshold for permanent total disability under Minn. Stat. § 176.101, subd. 5.(2)(i). (Memorandum, p. 6.) The employee was 28 years old on the date of the hearing and therefore was required to demonstrate a permanent partial disability of at least 17% to be eligible for permanent total disability. See Allan v. R.D. Offutt Co., 869 N.W.2d 31, 34, 75 W.C.D. 401, 404 (Minn. 2015).

The employee argues that until the applicable permanent partial disability threshold has been met, a determination regarding permanent total disability cannot be made. “Other factors considered when determining if an employee is permanently and totally disabled, such as the employee’s age, education, training, and experience, ‘may only be considered in determining whether an employee is totally and permanently incapacitated after the employee meets the threshold criteria of clause [i], [ii] or [iii].’ ” Rezaie v. Wal-Mart Stores, Inc., 70 W.C.D. 334, 339 (W.C.C.A. 2010) (emphasis in original).

In this case, the compensation judge denied the employee’s claim for permanent total disability benefits, both on the basis that the employee did not demonstrate the requisite level of permanent partial disability to satisfy the threshold and on the basis that the employee failed to establish that his physical disability, in combination with his age, education, training, and experience caused him to be unable to secure anything more than sporadic employment resulting in an insubstantial income. This court has affirmed the compensation judge’s denial of the employee’s claim for an additional 10% permanency. Thus, the employee is not currently eligible for permanent total disability benefits and his claim for such benefits is premature. If, in the future, the employee does meet the permanent partial disability threshold, a claim for permanent total disability from October 11, 2012, (or some later date) and continuing could be made. The compensation judge’s finding that the employee failed to prove he is permanently and totally incapacitated from gainful employment at this time is, therefore, vacated.

[1] Medical and surgical treatment of the ears, nose, and throat.

[2] The selected records of the employee’s treatment and care at HCMC, submitted by the employer and insurer, do not include any record of the visit with Dr. Haberman on October 23, 2014.

[3] The Minnesota Supreme Court has held that an injured employee cannot be forced to undergo major surgery and that evidence of the employee’s potential which assumes such surgery is irrelevant. The unpredictable result of the surgery as described by Dr. Pierce and the length of conservative treatment prior to the surgical recommendation indicate the surgery could be classified as “serious.” Erickson, 329 N.W.2d at 43, 35 W.C.D. at 529.