SETTLEMENTS – INTERPRETATION. Substantial evidence in the record supports the compensation judge’s finding that a consequential injury was not reasonably contemplated by the parties when they entered into the settlement agreement and that the compensation judge did not err by finding that the employee’s claims related to the consequential injury are not closed out by the earlier settlement.
PERMANENT TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence, including expert vocational opinion, supports the compensation judge’s finding regarding the onset of the employee’s permanent total disability.
PERMANENT PARTIAL DISABILITY. Under the circumstances of this case, which involved a prior settlement, the employee was entitled to an award of compensation for only that portion of his permanency that is attributable to a consequential condition diagnosed after the settlement. The PPD award is vacated and remanded for reconsideration on the issue of what permanency, if any, is attributable solely to the consequential condition using the law in effect on the date of injury.
Compensation Judge: William J. Marshall
Attorneys: James M. Sherburne, Sherburne Law Offices, P.A., St. Louis Park, Minnesota, for the Respondent. Jason L. Schmickle, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed in part and vacated and remanded in part.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal from the compensation judge’s determination that a 1983 stipulation for settlement closing out the employee’s 1977 work injury on a full, final and complete basis does not bar the employee’s claims for permanent total disability (PTD) and permanent partial disability (PPD) compensation related to a chemical meningitis condition which developed as a consequence of treatment the employee received for that 1977 work injury. They also argue substantial evidence does not support the award of PTD benefits, and further appeal from the specific PPD rating awarded by the compensation judge. We affirm, in part, and vacate and remand, in part, consistent with this opinion.
The employee, Arthur Wendroth, is seventy-four years of age. In 1976, he began working as a general laborer for the employer, Madsen & Sons. On September 29, 1977, the employee sustained a work-related injury to his low back and left leg while felling trees to clear a drainage ditch. Following the injury, the employee began conservative treatment which included physical therapy, chiropractic manipulations, and prescription pain medication.
On December 19, 1977, the employee was evaluated by Dr. Joseph Engel, for low back pain and cramping of his left leg from his buttock to his calf, which had been present since his work-related injury. Dr. Engel diagnosed lumbar radiculitis which he thought was due to recurring disc bulging. Treatment recommendations included physical therapy, a caudal epidural block, and a brace.
The employee was admitted to St. Gabriel’s Hospital on January 9, 1978, following a poor response to outpatient therapy. A Pantopaque myelogram was performed on January 17, 1978.[1] The myelogram was read as consistent with disc herniation at L3 and possibly at L4.
The employee was hospitalized for persistent pain in his low back and down his left leg in August 1978. Straight leg raising was positive and he was diagnosed with chronic back pain with persistent recurring irritation of the left lumbosacral nerve root. The employee reported pain at the back of his neck, left side, and into his arm, severe enough to restrict the turning of his head while resting. Reevaluation by a neurosurgeon was recommended and he was taken off work for six weeks. By December, Dr. Engel had opined that the employee was not yet ready to resume work, and that when he did resume work, restrictions would be necessary.
On January 5, 1979, the employee reported sharp pain from the low back into the left leg, and pain in the ankle and foot with sudden movement or change of position. Dr. Engel noted weakness in the left lower extremity on examination. He recommended conservative care and advised the employee that he might need disc decompression surgery should he experience a progression of his left lower extremity weakness. Six months later, the employee was still limping as a result of pain in his left buttock. He was not performing physical work, though he reported walking up to 5-6 miles a day and swimming three times a week. Dr. Engel had recommended vocational testing and believed the employee would have difficulty returning to hard physical work.
Based on a medical report of Dr. Donovan McCain, the employer and insurer filed a notice of intention to discontinue benefits (NOID) in October 1979. Dr. McCain opined that the employee had fully recovered from his 1977 work injury and could return to heavy, sustained manual labor, although he should avoid repetitive bending.
On June 10, 1980, the employee was evaluated by Dr. Robert Wengler, who noted limited range of motion in the back, trigger tenderness at L4-5 in the midline, positive straight leg raising, and reproduction of the employee’s leg pain upon extension. Dr. Wengler diagnosed a possible L4-5 disc prolapse and considered the employee temporarily and totally disabled. He recommended the employee not return to any work that involved driving a truck or doing physical labor. He rated the employee with 25 percent permanency of the spine.
In early 1980, the employee continued to treat with Dr. Engel, who assessed the employee with a lumbar spine strain with probable intervertebral disc injury and nerve root irritation. He stated that the employee was still unable to do heavy lifting or multiple bodily movements as required in his last job, but that he could return to lighter work with limited stooping, an ability to switch back and forth between sitting and standing, and with no climbing or repetitive use of stairs or ladders.
The employee objected to the NOID and a hearing was held before a compensation judge on August 28, 1980. The judge found that the employee sustained an injury to his lumbar spine on September 29, 1977, and was temporarily and totally disabled through August 20, 1980. The judge rated the employee’s PPD of the spine at a minimum of 15 percent and deferred opinion on the full extent of the employee’s permanency. The judge also noted that the employee was in need of further medical treatment, had physical restrictions that prevented a return to his former job, had started a rehabilitation program, was looking for work, and was attending school at the time of the hearing.[2]
Following the 1980 hearing, the employee's condition continued to decline. He testified that by 1983, the pain and weakness in his neck, back, arms, and legs caused difficulties with sleeping, sitting, standing, or walking for extended periods of time. He gave up many duties around his hobby farm.
In August 1983, the parties entered into a full, final and complete settlement of the employee’s workers' compensation claims. The agreement closed out any and all claims relating to the neck and low back injuries of September 29, 1977, including future claims for permanent total disability and permanent partial disability benefits. The stipulation was approved by a compensation judge and an award on stipulation was issued on September 12, 1983.[3]
Following the settlement, the employee did not return to work in any meaningful capacity and largely withdrew from the labor market. Although he occasionally looked for work during the years following the settlement, the employee acknowledged in his testimony that he kept no record of job search efforts and could not recall seeking assistance at a work force center or from a vocational specialist. He also acknowledged that none of his doctors considered him totally disabled from a medical standpoint.
The employee’s physical condition continued to worsen. On February 9, 1995, the employee reported to Dr. Engel that he was experiencing neck pain and numbness in both hands such that he was unable to hold a coffee cup. He had been seen by a neurosurgeon and had undergone an MRI of his cervical spine and an EMG which suggested carpal tunnel syndrome. Dr. Engel noted low back spasm, limited range of motion of the cervical spine, and mild muscle spasm from C5 to C7 on examination. Dr. Engel recommended treatment for possible carpal tunnel syndrome.
The employee continued to treat with Dr. Engel, though not on a regular basis. In 2003, Dr. Engel noted that the employee’s primary symptoms arose from the lumbar spine and descended into his left leg, limiting his tolerance for sitting and driving. In early 2004, Dr. Engel diagnosed post-trauma degenerative spine disorder plus spondylolisthesis and cervical spine post-trauma degenerative disc disease. He considered the employee’s cervical spine to be the main concern because of an MRI showing a prominent posterior disc osteophytic ridge at the C5-6 level with moderate to moderately severe central canal stenosis and cord deformity.
On August 29, 2005, the employee was seen for a neurology consultation by Dr. Alyx B. Porter for cervical spine pain. Dr. Porter noted a history of a work-related injury in 1977 with an acute onset of low back pain and left leg paresthesias, followed the next morning by cervical spine pain as well as intermittent bilateral arm paresthesias. The employee reported that his symptoms had increased over the last 25 years. His right arm had weakened to the point that he had difficulty holding a coffee cup and he experienced right arm numbness throughout the day. He occasionally experienced left arm symptoms, and left leg symptoms were intermittent. On examination, there was point tenderness over the cervical spine with paraspinal spasm and decreased range of motion, as well as a decreased range of lumbar flexion and extension with significant pain over the sciatic nerve. The employee also reported bilateral foot pain, describing pain, tingling, and numbness in the toes. Dr. Porter diagnosed mechanical back pain with possible cervical radiculopathy.
The following day, the employee underwent MRI scans of his cervical and lumbar spine. The cervical MRI showed spondylosis at all interspace levels, a congenitally narrowed spinal canal, mild to moderate cervical cord flattening at the C3, C4, and C5 levels, and neuroforaminal narrowing at multiple cervical levels. The lumbar spine MRI showed advanced degenerative disc disease throughout, a congenitally small spinal canal, and a Grade I-II spondylolisthesis of L5 on the sacrum in association with multilevel foraminal narrowing. The employee returned to Dr. Porter on January 22, 2007, with complaints of paresthesias in his feet and ankles, which had worsened since his last visit. Dr. Porter attributed these symptoms to an unknown etiology.
Medical care for the employee’s work injury was transferred to Dr. Mark Halstrom at Integracare. Dr. Halstrom noted that the employee had bilateral neuropathic pain and numbness in his lower legs related to the 1977 injury, and that the employee was not using pain medication, but was receiving monthly neuromuscular therapy which had kept him stable and improved his symptoms. In March 2012, the employee described to Dr. Halstrom progressive worsening of the numbness in his hands and feet, and difficulty with fine motor movements and tasks with his fingers, such as buttoning a shirt.
The employee underwent MRI scans of the cervical and lumbar spine on July 26, 2012, which were read as consistent with the 2005 MRI scans. On July 30, 2012, the employee was seen in follow up by Dr. Halstrom, who recommended the employee return to the Mayo Clinic for an updated evaluation, stating that the employee’s clinical situation was "quite complex and there is a lot going on."[4]
On November 27, 2012, the employee underwent an EMG of his upper and lower extremities at the Mayo Clinic, which was reported as being a “very complex study.” Findings included moderately severe sensorimotor peripheral neuropathy, significantly progressed since the previous exam in 2005; multiple cervical radiculopathies; additional changes in the ulnar distributions bilaterally, possibly reflecting superimposed non-localized ulnar neuropathies; a median neuropathy on the left; and chronic lumbosacral radiculopathies on the left. He was then seen by Dr. David G. Piepgras, who noted a major progression of symptoms since his 2005 examination of the employee, with bilateral hand numbness and clumsiness, unsteady gait and weakness, and sensory loss in the arms and legs. The employee also had pain in the left buttock, hip, and thigh, with prominent weakness at L5. Dr. Piepgras reviewed imaging studies showing advanced cervical and lumbar spondylosis and cervical canal narrowing, particularly at C5-6. He wrote that the employee had a "complicated problem,”[5] and ordered additional radiographic studies, including myelography.
On December 5, 2012, the employee returned to Dr. Piepgras, who stated that the myelographic study confirmed advanced spondylotic changes and foraminal stenosis at multiple levels in the cervical and lumbar spine, and showed significant cauda equina compression at L4-5. Dr. Piepgras doubted that the employee’s upper extremity weakness and sensory loss symptoms were related to his cervical spondylotic changes. Dr. Halstrom did not agree with Dr. Piepgras regarding whether the employee’s symptoms were related to the cervical changes, and considered it difficult to identify the cause of the employee’s pathology after years of problems.
On March 29, 2013, the employee underwent an MRI of the lumbar spine, which showed multilevel degenerative disc disease and anterolisthesis at L5 on S1, as well as a left pars defect. The radiologist also found definite nerve root enhancement which was difficult to assess because of associated spinal stenosis.
In the summer of 2014, the employee fell, struck his head, and was diagnosed with a closed-head brain injury. The employee has since asserted that the fall was a consequence of musculoskeletal dysfunction resulting from the 1977 work injury.[6]
On September 29, 2014, the employee underwent an independent medical evaluation (IME) with Dr. Charles Burton, who issued a report on October 8, 2014.[7] Dr. Burton opined that the employee had developed chemical meningitis from the 1978 Pantopaque myelogram procedure. This was the employee’s first diagnosis of chemical meningitis. Dr. Burton characterized the employee’s medical situation as “most atypical.” He later testified that the employee’s symptoms potentially related to a pre-existing degenerative disc condition, the 1977 injury, and the employee’s reaction to the Pantopaque myelogram, but stated that he could not determine the specifics of the etiology of the employee’s symptoms. He also declined to rate the employee’s condition based on the loss of use of various body parts.
Dr. Halstrom issued a report dated December 20, 2015. In his opinion, the 1977 work injury accelerated the severe degenerative changes of the employee’s cervical and lumbar spine. He provided PPD ratings for the employee’s cervical and lumbar spine, which he later adjusted to 28 percent of the whole body for the lumbar spine and 28 percent of the whole body for the cervical spine.
The employee claimed entitlement to PTD and PPD benefits, and the employer and insurer objected. The matter came on for hearing before a compensation judge on August 22, 2018. The issues included whether the employee is permanently and totally disabled as of February 9, 1995, as a result of chemical meningitis consequential to the September 29, 1977, injury and whether the employee is entitled to additional PPD benefits for the low back and neck. The parties stipulated that the employee sustained an admitted work injury to his neck and low back on September 29, 1977, with TTD benefits paid through the date of the 1983 settlement, and that the employee had sustained a consequential injury in the form of chemical meningitis when injected with Pantopaque during the 1978 myelogram. The parties further stipulated that the chemical meningitis was not diagnosed until September 29, 2014, when Dr. Burton examined the employee.
In his Findings and Order, the compensation judge found that the employee was permanently and totally disabled due to chemical meningitis as of February 9, 1995, and that the preponderance of the evidence supported an additional 28 percent in PPD benefits for the employee's low back and an additional 28 percent in PPD benefits for the employee's neck. The employer and insurer were ordered to pay the additional PPD benefits as well as PTD compensation from February 9, 1995, forward. The employer and insurer appeal.
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(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.” 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).
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), summarily aff’d (Minn. June 3, 1993).
The employer and insurer appeal from the compensation judge’s determinations that the employee is entitled to PTD compensation as of February 9, 1995, due to his chemical meningitis condition developed as a consequence of his 1977 work injury, and that the employee is entitled to additional PPD benefits for the low back and neck.
Citing Ryan v. Potlach Corp.,[8] appellants argue that the 1983 stipulation forecloses the employee’s PTD and PPD claims arising from his consequential chemical meningitis condition. In Ryan, the Minnesota Supreme Court held that a stipulation for settlement “may close out not only the work-related injury that is the subject of the agreement, but also conditions and complications that arise from the injury and are within the reasonable contemplation of the parties at the time of the settlement agreement.”[9]
The question of whether claims related to the employee’s consequential chemical meningitis condition are foreclosed by the stipulation hinges on whether that condition was “within the reasonable contemplation of the parties” when they entered into the stipulation for settlement. The compensation judge found that the chemical meningitis condition was not within the reasonable contemplation of the parties, and that the stipulation did not foreclose the employee’s claims arising from that condition.
Appellants point out that the employee’s consequential injury occurred as a result of the use of Pantopaque during a myelogram in 1978, five years prior to the 1983 stipulation for settlement. They argue that a consequential injury that occurs before the date of a settlement agreement must be deemed to have been reasonably contemplated by the parties. We disagree. We see no language in Ryan that requires a different result than that reached by the compensation judge. While the finder of fact may reasonably consider the chronology of the onset of a consequential condition and the settlement agreement, it cannot be said that the relative timing of a consequential injury and the settlement agreement compels the determination that the consequential condition was reasonably within the contemplation of the parties. The finder of fact may consider the question in the light of all the evidence, taking into consideration any potentially significant factors, including the timing and extent of any symptoms or disability related to the consequential condition, when the consequential condition was diagnosed, how clearly it was distinguishable from the underlying condition, whether it required distinctive separate treatment, and what the parties then understood or agreed to regarding the causal nexus between the consequential condition and the injury closed out by the settlement.
In finding that the chemical meningitis condition was not reasonably contemplated by the parties at the time of the settlement, the compensation judge stated that:
Dr. Burton is very clear - the employee's case is a “most atypical medical course” following a straightforward traumatic injury. According to Merriam Webster atypical is defined as “not typical; irregular, unusual.” If the employee's doctors were not contemplating this complication and it went undiagnosed until 2014, it's simply unreasonable to conclude that the parties were contemplating this condition at the time of the settlement in 1983. Ryan does not stand for the ideal [sic] that the employee can never claim additional benefits for a consequential injury, just for those that are or should be reasonably contemplated at the time of settlement. As the Court opined, depression can occur with ongoing pain and can be foreseeable. As Dr. Burton points out here, this condition was atypical making it not reasonably foreseeable. Neither party anticipated this . . . .[10]
What was reasonably contemplated by the parties at the time of the settlement is a question of fact for the compensation judge. Substantial evidence in the record supports the compensation judge’s finding that the consequential chemical meningitis injury was not reasonably contemplated by either party when they entered into the settlement agreement. Therefore, the compensation judge did not err by finding that the employee’s claims relating to his chemical meningitis are not closed out by the 1983 stipulation for settlement.
Appellants contend the record lacks substantial evidence to support the finding that the employee became permanently and totally disabled as of February 9, 1995. While there is no dispute that the employee is now permanently and totally disabled, the employer and insurer argue that the medical evidence fails to support a finding that the employee was unable to work in some capacity after that date.
At the hearing, QRC Steven Hollander testified on behalf of the employee, and QRC Maureen Ziezulewicz testified on behalf of the employer and insurer. Both QRCs agreed the employee was able to work in a sedentary position up to February 1995. The judge found credible the employee’s testimony that his hand difficulties were worsening around that time and made simple daily activities increasingly difficult. The February 9, 1995, medical record documents the employee's inability to hold a coffee cup. At the time, carpal tunnel syndrome was suspected, but ultimately, this difficulty was linked to a complication of chemical meningitis. QRC Hollander opined that the employee would have been unable to meet the qualifications of a sedentary job from this period forward. QRC Ziezulewicz, on the other hand, noted that while QRC Hollander's argument was compelling, until Dr. Burton's 2014 opinion, no medical opinion specifically indicated the employee could not work.
Presented with competing expert vocational opinions, the judge concluded that the opinion of QRC Hollander “best reflects all of the medical evidence presented in this case.”[11] Based on that expert opinion and on the medical records, the judge found that the employee was not capable of working as of February 9, 1995. Substantial evidence in the record supports the compensation judge’s finding that the employee was permanently and totally disabled, and given the unique facts of this case, where successive work-related conditions to the neck, back, arms, hands, fingers, legs, feet, and toes combine to produce the employee’s disability, the date of disablement will not be disturbed. The compensation judge’s determinations regarding the employee’s entitlement to PTD benefits are affirmed.
Appealing from the award of PPD benefits, the employer and insurer restate their argument that all claims relating to the employee’s consequential chemical meningitis condition, including PPD, are foreclosed by the terms of the 1983 stipulation for settlement, pursuant to Ryan. We addressed this argument above and affirmed the compensation judge’s determination that the stipulation does not bar the employee’s entitlement to benefits related to the chemical meningitis condition. Thus, settlement terms relating to the 1977 injury are not relevant to the determination of PPD for this injury.
The employer and insurer argue that, even if the 1983 settlement does not bar the employee’s claims for additional PPD benefits, the only permanency awardable is that relating to the effects of the chemical meningitis condition. They assert that Dr. Halstrom’s opinion, which was adopted by the compensation judge, did not address the effects of the consequential chemical meningitis condition, and no other evidence, including other expert medical opinion, supports a rating of permanency arising solely from the chemical meningitis condition. The record contains three medical opinions relating to the PPD rating for the employee’s conditions.[12]
The employee, however, asserts that substantial evidence supports the PPD award, arguing that his claim for PPD benefits relates only to the consequential condition, and not to the original 1977 work injury, citing to the report of Dr. Burton. According to Dr. Burton,
. . . the work injury sustained by Mr. Wendroth on September 29, 1977, would have been temporary in nature, involving soft tissue injuries, not structural injuries. Unfortunately, in this case, following his work injury, Mr. Wendroth underwent a Pantopaque myelogram that, in my opinion, led to post myelographic chemical meningitis and associated nerve and meningeal scarring (archnoiditis), which effects have been permanent and progressive in nature.[13]
The employee contends that, based on this opinion, the compensation judge could reasonably conclude that all of the employee’s permanent symptomology was the result of his chemical meningitis, with no residual permanency attributable to the original 1977 work injury. He argues that the judge, having accepted Dr. Burton’s view that all of the permanency rated was attributable to the chemical meningitis condition, could have adopted only the portion of Dr. Halstrom’s opinion that provided PPD ratings, and rejected the portion of the opinion concluding both conditions contributed to the employee’s permanency.[14] We note, however, that the compensation judge made no express findings regarding the basis for his PPD award, nor did he address that issue in his memorandum. In addition, the employee’s theory requires this court to conclude that the compensation judge made an implicit finding that the 1977 injury was entirely temporary in nature. Nothing in the findings or memorandum indicates that the judge did, in fact, accept Dr. Burton’s view that the 1977 injury had fully resolved, nor was that issue ever formally raised by the parties. Such a determination is too significant to assume by inference, and absent some indication in the findings or memorandum, we decline to do so.[15]
We agree with appellants that, under the procedural and factual circumstances of this case, the employee was entitled to an award of compensation only for that portion of his permanency that is solely attributable to the chemical meningitis condition. We further agree that the ratings of Dr. Halstrom adopted by the compensation judge rated the entirety of the employee’s overall symptomology from both the 1977 injury and the consequential injury. Because it is unclear how the compensation judge made his permanency determinations, we vacate Finding 11 and Order 2 and remand for reconsideration on the issue of what PPD, if any, is attributable solely to the chemical meningitis condition. It is also unclear whether the judge’s findings were intended to calculate the loss of body part function ratings needed to compute the awardable benefits using the law in effect on the date of the injury[16] to arrive at the final rating expressed as loss of use to body parts as set forth in Minn. Stat. § 176.101, subd. 3 (1976).[17] On remand, the judge may take such further evidence as may be necessary to determine the extent of permanency attributable solely to the chemical meningitis condition.[18]
[1] Ex. A(17). Pantopaque, or iodophenylundecylic acid, is a particular type of oil contrast substance. Its use resulted in the development of post-myelographic chemical meningitis in some patients. See Ex. 3 and Dep. Ex. 2.
[2] The employee enrolled in an accounting program for retraining purposes, but was physically unable to complete the program due to his low back and leg pain.
[3] Pet. Ex. H.
[4] Ex. 11.
[5] Ex. 15.
[6] The parties stipulated at hearing that any consequential injury claims related to this fall are reserved for later adjudication, and will not be addressed in this appeal.
[7] Ex. 3.
[8] 882 N.W.2d 220, 76 W.C.D. 491 (Minn. 2016).
[9] Id. at 225, 76 W.C.D. at 497-98.
[10] Memorandum at 4.
[11] Id. at 5.
[12] Dr. Burton diagnosed chemical meningitis and opined that the 1977 injury had resolved. He declined to provide a permanency opinion. Dr. Wengler provided ratings only related to the low back. Under the 1984 PPD schedules, he rated the employee with a 23 percent whole-body rating, 22 percent if using the 1993 schedules, or 40 percent using the law in effect in 1977. Dr. Halstrom initially rated the employee’s low back with a 33 percent whole-body permanency and the neck at 15 percent of the whole body under the 1984 schedules. Using the AMA guidelines, Dr. Halstrom later offered a 28 percent whole-body rating for impairment of the lumbar spine and a 28 percent whole-body rating for impairment of the cervical spine.
[13] Ex. A(13), October 8, 2014, report, at 17.
[14] See Johnson v. L. S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally “may accept all or only part of any witness’ testimony”)).
[15] In his brief to this court, the employee suggests that the employer and insurer could be entitled to a credit for their previous payment of 15 percent PPD made under a 1980 Findings and Order, which found that the employee had at least that amount of permanency and left open the possibility of a later award of additional PPD benefits. We note, first, that this 15 percent rating was made at a time when the employee had already sustained the consequential chemical meningitis condition, but before that condition was diagnosed; thus, it presumably also combines any permanency from both conditions. The parties did not raise this credit theory as an issue below, and the compensation judge did not order a credit for the 15 percent PPD paid under the 1980 Findings and Order. Rather, the PPD award was expressly stated to be “an additional 28%” each for the low back and neck.
[16] The law in effect on the date of the injury controls the employee’s entitlement to benefits. Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304, 307-08, 40 W.C.D. 209, 213 (Minn. 1987) (the law at the time of the employee’s work injury, including any consequential injuries, controls the benefits that may be awarded). Under the statute in effect for the 1977 work injury, PPD compensation “is payable for functional loss of use or impairment of function, permanent in nature . . . .” Minn. Stat. § 176.021, subd. 3 (Supp. 1977). A list of scheduled body parts was provided in the statute, giving the number of weeks of benefits payable for their loss of use. See Minn. Stat. § 176.101, subd. 3 (1976). The listed body parts include, among others, the neck, back, arms, hands, fingers, legs, feet, and toes. Where loss of use of the specified body part is only partial, the number of weeks payable is calculated by multiplying the number of weeks listed for the full loss of use of a body part times the percentage of partial loss of its use. To perform this calculation, PPD ratings need to express the percentage of loss of use of each affected body party, rather than a percentage of the whole body.
[17] See Minn. Stat. § 176.101, subd. 3(44) (1976), provides:
In all cases of permanent partial disability it is considered that the permanent loss of the use of a member is equivalent to and draws the same compensation as the loss of that member, but the compensation in and by this schedule provided shall be in lieu of all other compensation in such cases, except as otherwise provided by this section;
In the event a worker has been awarded, or is entitled to receive, a compensation for loss of use of a member under any workers’ compensation law, and thereafter sustains a loss of such member under circumstances entitling him to compensation therefor under the workers’ compensation act, as amended, the amount of compensation awarded, or that he is entitled to receive, for such loss of use, is to be deducted from the compensation due under the schedules of this section for the loss of such member, provided, that the amount of compensation due for the loss of the member caused by the subsequent accident is in no case less than 25 percent of the compensation payable under the schedule of this section for the loss of such member.
[18] The judge may rate the chemical meningitis condition directly if sufficient evidence to do so is available. In the alternative, the judge may rate both the employee’s total permanency from both conditions, as well as any permanency attributable solely to the initial 1977 injury, and arrive at the permanency for the chemical meningitis condition by subtracting the permanency from the 1977 injury from the total. As the date of the injury precedes the adoption of the PPD schedules, the judge may base his ratings on any reasonable medical evidence.