STEVEN F. BRENNAN, Employee/Appellant, v. LAKE OWASSO RESIDENCE and WAUSAU INS. CO., Employer-Insurer, and ALLINA MEDICAL CLINICS, MIDWEST SPINE & ORTHOPAEDICS and HEALTHCARE RECOVERIES, INC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 8, 2002
PERMANENT PARTIAL DISABILITY - BACK; PERMANENT PARTIAL DISABILITY - OBJECTIVE FINDINGS. Substantial evidence supports the compensation judge=s findings that the employee did not have hyporeflexia, EMG abnormality, or nerve root specific muscle weakness and that the employee had not met the criteria for a 12 percent permanent partial disability rating under Minn. R. 5223.0390, subp. 4D and 4D(1).
PERMANENT PARTIAL DISABILITY - WEBER RATING. Where there is a category within the schedule for the employee=s claimed impairment, but the employee has failed to meet the criteria listed in the schedule, the compensation judge could reasonably conclude that Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990) was not applicable in this case.
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee had no treatment for his back for two years before the 1998 motor vehicle accident and the employee reported to a doctor his lower body pain had been aggravated significantly since the motor vehicle accident, substantial evidence supports the compensation judge=s finding that the employee=s medical treatment after April 24, 1998, was related to the 1998 motor vehicle accident and not the employee=s 1996 work injury, and we affirm.
Determined by: Rykken, J., Wilson, J., and Wheeler, C.J.
Compensation Judge: Joan G. Hallock
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s denial of permanent partial disability benefits and the compensation judge=s denial of the intervenors= claims for reimbursement. We affirm.
On January 10, 1996, Steven Brennan, the employee, sustained a work-related injury to his low back while working in maintenance for Lake Owasso Residence, the employer, insured for workers= compensation liability by the Minnesota Workers= Compensation Assigned Risk Plan, the insurer. The employer and insurer admitted liability for the injury, and paid the employee=s medical expenses. The employee did not lose any time from work after this injury. The employee was treated for this injury at United Occupational Health and was diagnosed with lumbar radiculopathy. The employee was referred for physical therapy and treated from January 22, 1996, through April 2, 1996. The employee was to continue with a home program. Maximum medical improvement was anticipated by May 10, 1996. The employee was to return to United Occupational on that date, but did not. The employee had no further treatment until after he was involved in non-work-related motor vehicle accidents on April 24, 1998, and September 7, 1999. The employee was able to return to work in his regular position after each injury.
After the 1998 motor vehicle accident, the employee testified that he had neck pain and some lower back pain, and he was off work for two days. On May 27, 1998, the employee began chiropractic treatment for neck and low back pain, and leg pain, and was diagnosed with cervical and lumbar sprain/strains. Radiographs on July 6, 1998, indicated lumbar hypolordosis, degenerative disc disease at L1-2, L2-3, L3-4, and L4-S1, and lumbar spondylosis. A lumbar spine MRI on July 29, 1998, indicated mild circumferential disc bulging with associated marginal spurring at L2-3 and L3-4, and mild posterior disc bulging at L5-S1, and no evidence of spinal stenosis. On September 25, 1998, the employee was examined by Dr. Thomas Rieser, who diagnosed degenerative disc disease of the cervical and lumbar spines, with mild sprain/strain suspected in both areas, and Awhat appears to be an old disc herniation at L5-S1 on the left side.@ On November 13, 1998, the employee was examined by Dr. Arnulf Svendsen at the request of the auto insurance carrier. Dr. Svendsen noted no motor weakness or deficit in peripheral pulses in the lower extremities and opined that the employee had sustained cervical and lumbar myofascial strains in the 1998 accident.
On February 16, 1999, Dr. Rieser noted that, based on his review of the employee=s medical records, that the employee had a lumbar radiculopathy and decreased left ankle reflex in January and February 1996 and at subsequent visits in 1996 the employee had decreased sensation in the left foot, calf and thigh, and weakness with standing in the toes on the right. Dr. Rieser opined that the employee had a 12 percent permanent partial disability rating under Minn. R. 5223.0390, subp. 4D and 4D(1) for chronic radicular pain or radicular paraesthesia persistent despite treatment.
On May 3, 2000, the employee was examined by Dr. Jerry Reese at the employer and insurer=s request. Dr. Reese found straight leg raising was negative, no reflex asymmetry, and no evidence of motor weakness in the lower extremities based on resistance testing. Dr. Reese noted that the employee had sustained a low back strain on January 10, 1996, and that although ankle reflex asymmetry was first found, it did not persist and was not present at the time of his examination. Dr. Reese also opined that the MRI performed on July 29, 1998, showed no evidence of disc herniation.
On February 2, 2000, the employee filed a claim petition for 12% permanent partial disability, a rehabilitation consultation, and medical expenses incurred after the non-work-related motor vehicle accidents. Midwest Spine & Orthopedics, Medica Choice by Healthcare Recoveries, Inc., and Allina Medical Clinics were granted intervenor status in this matter for medical expenses incurred after those motor vehicle accidents. A hearing was held on March 30, 2001. The employee claimed 12% permanent partial disability under Minn. 5223.0390, subp. 4D and 4D(1) or under a Weber analysis. The compensation judge denied the employee=s claim for any permanent partial disability benefits and denied the intervenors= claims. The employee appeals.
STANDARD OF REVIEW
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. 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 the 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).
Permanent Partial Disability
The compensation judge denied the employee=s claim for permanent partial disability, relying upon the MRI findings, the testimony of Dr. Rieser, and the opinions of Drs. Reese and Svendsen. The finding of permanent partial disability is one of Aultimate fact@ for the compensation judge. The interpretation of medical evidence and the determination of the level of permanent disability is for the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). The compensation judge must base an award of permanent partial disability benefits on objective medical evidence which meet the requirements of the disability schedules. See Minn. Stat. ' 176.021(3); Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988). The compensation judge denied the employee=s claim for 12 percent permanent partial disability under Minn. R. 5223.0390, subp. 4D and 4D(1). Minn. R. 5223.0390, subp. 4D and 4D(1) provide:
Radicular pain or radicular parathesia, with or without lumbar pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the lower extremity, on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a lumbar nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination, nine percent with the addition of as many of subitems (1) to (4) as apply, but each may be used only once:
(1) if chronic radicular pain or radicular parathesia persist despite treatment, add three percent[.]
The compensation judge specifically found that the employee did not meet the criteria for this category because he has no hyporeflexia, EMG abnormality, or nerve root specific muscle weakness and no nerve root involvement. The compensation judge relied upon the MRI findings, the testimony of Dr. Rieser, and the opinions of Drs. Reese and Svendsen. The compensation judge noted that whether a disc is called bulging or herniated, it may be assigned a permanency rating where the disc is symptomatic with objective evidence of nerve involvement. Sletten v. American Hoist & Derrick, slip op. (W.C.C.A. Nov. 18, 1998). In this case, the compensation judge found that there was no objective evidence of nerve root involvement. While the lumbar spine MRI on July 29, 1998, indicated mild circumferential disc bulging with associated marginal spurring at L2-3 and L3-4, and mild posterior disc bulging at L5-S1, there was no evidence of spinal stenosis. Further, while Dr. Rieser had opined that the employee was entitled to a 12 percent permanent partial disability rating, on cross-examination at his deposition, he testified that when he last saw the employee in 1998, the employee did not have hyporeflexia, EMG abnormality, or nerve root specific muscle weakness. Substantial evidence supports the compensation judge=s finding that the employee had not met the criteria for a 12 percent permanent partial disability rating under Minn. R. 5223.0390, subp. 4D and 4D(1), and we affirm.
The employee also claims that the compensation judge erred by not assigning a Weber rating. For disabilities not discussed in the permanent partial disability schedules, Minn. Stat. ' 176.105, subd. (1)(c) states, Aif an injury for which there is objective evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.@ This statute is a codification of the Minnesota Supreme Court=s decision in Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), and is intended to apply in cases where disabilities supported by objective evidence are not addressed by the schedules, not in cases where the injuries to a particular part of the body are Arated@ in the schedules but the employee=s objective findings do not satisfy the requirements of the schedules. Warner v. Luther Haven Nursing Home, slip op. (W.C.C.A. Oct. 14, 1993). The statute and Weber may apply, however, where the body part, or type of injury or disease involved is included within the schedule, if there is no category within the schedule for that body part, injury or disease which describes the employee's particular level or kind of impairment. Jarvi v. City of Grand Rapids, 51 W.C.D. 36, 38 (W.C.C.A. 1994) (citing Jackson v. Control Data Corp., slip op. (W.C.C.A. Nov. 12, 1992)).
Factors to consider in analyzing whether Weber is applicable include: A(1) whether the employee has sustained a significant and objectively measurable functional impairment as a result of the work injury: (2) whether the kind of impairment and/or level of impairment sustained is included in the category in the permanency schedule; and (3) if the impairment or level of impairment does not fall within or meet the requirements of any of the rating categories in the schedules, what rating category, or method of rating, included in the schedules most closely approximates the level of the employee=s functional impairment.@ Jarvi, 51 W.C.D. at 39. While the compensation judge did not make specific findings regarding the applicability of a Weber rating, the compensation judge could reasonably conclude that Weber was not applicable in this case.
There is a category within the schedule for the employee=s claimed impairment, but the employee has failed to meet the criteria listed in the schedule. Where detailed, specific ratings are provided in the schedule, Weber ratings are generally not appropriate. Warner v. Lutheran Haven Nursing Home, slip op. (W.C.C.A. Oct. 14, 1993). The compensation judge did not err by failing to assign a Weber rating in this case.
The compensation judge denied the intervenors= claims for medical expenses incurred after the non-work-related motor vehicle accidents in 1998 and 1999, stating that the medical treatment after April 24, 1998, was related to the motor vehicle accident. Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The compensation judge emphasized that the employee had no treatment for his back for two years before the 1998 motor vehicle accident. The compensation judge also noted that after the accident, the employee had reported to Dr. Rieser that Ahis lower body pain has been aggravated significantly since the motor vehicle accident.@ (Ee Ex. E.) Substantial evidence supports the compensation judge=s finding that the employee=s medical treatment after April 24, 1998, was related to the motor vehicle accident and not the employee=s work injury, and we affirm.