JAMES E. GLUBA, Employee/Appellant, v. BITZAN-OHREN MASONRY and GRINNELL MUT. REINSURANCE CO., Employer-Insurer, and MEDICARE/NORIDIAN ADMIN. SERVS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 24, 2003
PERMANENT PARTIAL DISABILITY. Where the employee failed to establish all of the elements of the claimed rating of permanent partial disability, the compensation judge=s award of a lesser rating of permanent partial disability is supported by substantial evidence.
PERMANENT TOTAL DISABILITY. Where an employee has been determined to be permanently totally disabled, there is no obligation on the part of the employee to continue to search for employment.
MEDICAL TREATMENT & EXPENSE - CHIROPRACTIC TREATMENT. Lack of a treatment plan, treatment of parts of the body not affected by the work injury, and the short-term nature of symptom relief support the compensation judge=s conclusion that the chiropractic treatment was not reasonable and necessary.
Affirmed in part and reversed in part.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for Appellant. Karen R. Swanton, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination of the extent of permanent partial disability, from the denial of permanent total disability benefits, and from the denial of chiropractic expenses. We affirm in part and reverse in part.
James Gluba was injured on the job on November 26, 1996, while working as a bricklayer for Bitzan-Ohren Masonry. The employee slipped while walking on a plank covered with ice and fell, landing on his left side. The employee=s initial treatment was with Dr. Kastner, a chiropractor with whom the employee had treated in 1991. Dr. Kastner=s records are not in evidence. The employee testified that Dr. Kastner=s treatment was not helpful and he then treated with Dr. Derryl Moon at Moon Chiropractic Clinic. Records from that clinic indicate that the employee=s care began in September 1997.
At the time of his injury, the employee was 68 years old and had worked as a block and brick layer for most of his adult life. He had worked for Bitzan-Ohren for about six years. The employee=s primary duties for his employer were to lay block for basement walls. The job was seasonal, with the employee generally working from April until sometime in January. The employee testified that the seasonal layoff in 1996 occurred just after his injury so that he missed no time from work because of the injury. He started work again in the spring of 1997 at his usual job.
The employee worked for the employer at his usual job in 1997. He testified that he began working on a part-time basis in 1998. In 2001, he worked for the employer for five days in July and three or four days in August. He was not contacted by the employer to work again after September 3, 2001. He has not worked since that time and has not looked for work.
The employee testified that beginning in 1997, although he had continuing low back and left leg pain, he would only go for chiropractic treatment when his back got worse. After treatment he would be able to function better and perform his job. The employee consulted with Dr. Richard C. Bailly, a neurologist at MeritCare Clinic in Fargo, on December 15, 1997. He complained of low back and left leg pain which had begun after his work injury in November 1996. On examination, Dr. Bailly found mild spasm in the low back with straightening of the lumbar lordosis. According to Dr. Bailly=s chart note, A[t]he motor examination is normal in the lower extremities to individual muscle group testing, except that the patient may have some minimal weakness of his posterior tibial on the left side.@ The balance of the exam was normal.
A CT scan, which was done at Dr. Bailly=s direction on December 18, 1997, showed a left foraminal and extra foraminal herniation at L5-S1 which appeared to compress the left L5 nerve root. Dr. Bailly recommended physical therapy.
The employee returned to see Dr. Bailly on January 21, 1998. He advised Dr. Bailly that there was gradual improvement in his pain. The neurologic exam was essentially unchanged from his previous visit. The doctor noted that it was uncertain how much of the employee=s difficulty was actually due to the L5-S1 disc herniation because of lack of neurological signs related to radiculopathy in his left leg. Dr. Bailly recommended continued physical therapy and a program of work hardening.
Dr. Bailly saw the employee again on March 30, 1998. The employee reported that he was not having any significant symptoms involving his back or left lower extremity. On exam, the doctor noted Asome slight weakness of the posterior tibial on the left side, which has been present before.@ No further treatment was recommended and the employee was released to return to work with a 20-pound lifting restriction.
The employee did not treat with Dr. Bailly again for two years. In the meantime, he saw Dr. Moon three times in 1998 and five times in 1999. The employee returned to Dr. Bailly on April 26, 2000, with complaints of pain in his low back and left leg. On exam, the doctor noted antalgic gait favoring the left leg, but there was no reference to reflex changes or individual motor group weakness. Dr. Bailly recommended an MRI, which was done on May 11, 2000.
The impression noted on the MRI report was that of A[m]oderately severe central canal stenosis at L2-3, probably unchanged from 2.5 years earlier.@ There was no longer any compression of the L5 nerve root and no disc herniation at L5-S1 was seen. There was no reference to any other nerve root impingement. Dr. Bailly recommended a neurosurgical consultation because of a Asignificant narrowing of your spinal canal and continuing symptoms.@ It does not appear that there was any neurosurgical consultation in 2000.
On August 17, 2001, the employee returned to see Dr. Bailly, apparently at the direction of his attorney. He advised Dr. Bailly that the numbness he experienced in his left leg was coming on more rapidly after he was Aup and about.@ Dr. Bailly found limited range of motion in the low back. He recommended physical therapy and again advised a neurosurgical consultation.
The employee was seen for his neurosurgical consultation by Dr. Miriam Kim on October 15, 2001. Dr. Kim did not recommend surgery, and noted in her report to Dr. Bailly that AMr. Gluba presents with chronic low back pain with no objective neurological findings.@
The employee was evaluated on two occasions by Dr. Nolan Segal at the request of the employer and insurer. After the first examination, Dr. Segal generated a report dated December 1, 1998, in which he expressed his opinion that the employee did not sustain any Astructural injuries@ to his low back as a result of his work injury of November 26, 1996. While Dr. Segal did note some limited range of motion in the lumbar spine, he did not find any neurologic deficits or any evidence of nerve root irritation. In his April 4, 2002 report, Dr. Segal again found no objective findings relating to the employee=s radicular claims. Dr. Segal recommended lifting restrictions of 25 pounds and rated the employee as having a 10 percent permanent partial disability of the whole body pursuant to Minn. R. 5223.0390, subp. 4C(2).
At the request of the employee=s attorney, Dr. Bailly evaluated the employee=s permanent partial disability. His opinion was that the employee had sustained a disability of 22 percent of the whole body, based on Minn. R. 5223.0390, subp. 4E(2) and (4).
The employee filed a claim petition on February 5, 2002, seeking permanent partial disability as rated by Dr. Bailly, permanent total disability from September 4, 2001, and payment of the employee=s charges at Moon Chiropractic Clinic. This matter was heard by Compensation Judge Paul Rieke on March 5, 2003. In his Findings and Order, served and filed April 2, 2003, the compensation judge determined that the employee had a 10 percent permanent partial disability as a result of the work injury, that the employee was permanently totally disabled after September 4, 2001, but was not entitled to permanent total disability benefits because he had not met the threshold requirements of Minn. Stat. ' 176.101, subd. 5, that the employee was not permanently totally disabled after the date of hearing because the employee had withdrawn from the labor market, and that the treatment the employee received from Dr. Moon was not reasonable and necessary. The employee appeals.
1. Permanent Partial Disability
The compensation judge accepted the opinion of Dr. Segal and awarded the employee 10 percent permanent partial disability. The employee argues that in doing so the compensation judge erred. The employee contends that the rating from Dr. Segal does not take into account the radicular component of his disability. Dr. Bailly=s rating does so, and his rating of 22 percent should have been adopted, according to the employee.
Both doctors rated the employee=s permanent partial disability using the same section and subpart of the schedule, Minn. R. 5223.0390, subp. 4. The difference between the ratings is that Dr. Bailly used paragraph E which requires Aobjective radicular findings, that is, reflex changes or EMG abnormality or nerve root specific muscle weakness in the lower extremity, on examination and myelographic, CT scan, or MRI scan evidence of spinal stenosis . . . that impinges on a lumbar nerve root.@ Dr. Segal, not noting objective radicular findings in his examination or in the medical records he reviewed, instead rated the employee=s disability under paragraph C which does not call for radicular findings.
As the employee points out in his brief, Dr. Bailly noted possible weakness in the left leg in 1997 and 1998. However, those findings were not made in Dr. Bailly=s notes from the 2000 and 2001 examinations. In 2000, Dr. Bailly stated, AThe motor examination is probably normal in both lower extremities to individual muscle group testing, although the patient does have some give away with hip flexion on the left side, possibly related to pain.@ The employee also argues that Dr. Bailly=s records refer to spinal stenosis at L2-3. In addition to stenosis, however, the rule relied upon by the employee requires radiographic confirmation of nerve root impingement. The employee is unable to cite to any such findings in his brief.
Dr. Kim, the neurosurgeon who evaluated the employee at the referral of Dr. Bailly, found no objective neurological findings in her exam. Dr. Segal, who examined the employee in 1998 and 2002, noted no objective neurological findings.
The issue of permanent partial disability is a question of fact to be determined by the compensation judge which must be affirmed if it is supported by substantial evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). To obtain a permanent partial disability rating, the employee must show that each element set forth in the relevant permanent partial disability schedule is met. Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987).
The compensation judge determined that the evidence did not support the rating of permanent partial disability claimed by the employee. Given the evidence here, we cannot conclude that the compensation judge=s decision is not supported by substantial evidence. The decision of the judge on this issue is affirmed.
2. Permanent Total Disability
Minn. Stat. ' 176.101, subd. 5, requires that before permanent total disability benefits may be awarded, the employee must meet a certain threshold of permanent partial disability. Given the employee=s age and education, 13 percent permanent partial disability is required in this case. Since the compensation judge found the employee had a disability of 10 percent, permanent total disability benefits were denied.
The employee has not argued that there is a pre-existing condition which could be rated and added to the permanent partial disability due to the injury which would then total at least 13 percent. Frankhauser v. FabCon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997). Neither has the employee raised the issue of whether this statute is unconstitutional in requiring a certain percentage of permanent partial disability to be found before benefits are paid to someone who is, as in the present case, unable to be employed because of a work injury.
The employee=s argument on this issue on appeal is limited to arguing that the compensation judge should have accepted the opinion of Dr. Bailly on the extent of permanent partial disability and that, had the compensation judge accepted Dr. Bailly=s opinion, the employee would have been entitled to permanent total disability benefits. The issue of the extent of permanent partial disability having been discussed previously, it will not be further considered. The compensation judge=s denial of permanent total disability is affirmed.
3. Withdrawal From the Labor Market
While not awarding permanent total disability benefits because of the threshold, the compensation judge found the employee was permanently totally disabled from September 4, 2001, to March 3, 2003, the date of the hearing. The judge determined the employee was no longer permanently totally disabled as of the date of hearing because the employee had withdrawn from the labor market.
The compensation judge did not apply the retirement presumption found in Minn. Stat. ' 176.101, subd. 4, nor does that presumption apply to this case. The statute provides that permanent total disability benefits are stopped when the employee reaches age 67 on the presumption that the employee has retired. The plain language of the statute makes it clear that it does not apply in Mr. Gluba=s case when he was not injured until age 68 and not found to be eligible for permanent total disability benefits until he was age 73.
The compensation judge did not find that the employee had retired and withdrawn from the labor market in 2001 when he stopped working. Had he done so, the employee=s claim would have been denied on that basis. The judge determined that the employee was disabled as of September 4, 2001, and not just disabled but permanently totally disabled. Essentially, the compensation judge decided that as of September 4, 2001, the employee was precluded from the labor market by his work injury. The question then is whether an employee who is precluded from the labor market by his work injury can subsequently withdraw from the labor market. This question was not presented to the compensation judge by any party.
The leading exposition of the withdrawal defense is in Paine v. Beek=s Pizza, 323 N.W.2d 812, 815, 35 W.C.D. 199, 205 (Minn. 1983). The employee in Paine, who had moved from the Twin Cities to a small town in northern Minnesota, was not entitled to benefits where he Achooses to live in an area where employment opportunities are nonexistent.@ Withdrawal from the labor market has also been allowed as a defense where the employee has chosen to engage in self-employment or to return to school. Hughes v. Case Corp., slip op. (W.C.C.A. Feb. 13, 2003); Stueven v. Voyageur Press, slip op. (W.C.C.A. July 31, 2002). All of these cases involved a voluntary action on the part of the employee. There is no voluntary action on the part of the employee here. His absence from the labor market was not the result of a decision he made but the result of his work injury. The compensation judge noted that the employee was not looking for work as of the date of hearing, but there is no obligation to engage in a continuing search for work for an employee who is permanently totally disabled. In determining that an employee is permanently totally disabled, a determination is also made that any job search would be futile.
The compensation judge noted that he was not convinced that, but for the injury, the employee would still be working as of the date of hearing. There is no obligation on the part of the employee to convince the compensation judge on this point. Once the employee has rebutted the presumption in Minn. Stat. ' 176.101, subd. 4, there is no basis to discontinue the employee=s permanent total disability benefits simply on the basis of age. While advanced age may make an employee less employable, the work injury has already made the employee in this case unemployable.
The determination of the compensation judge that the employee was no longer permanently totally disabled after March 3, 2003, is reversed.
4. Chiropractic Bills
The compensation judge denied the employee=s claim for payment of bills at Moon Chiropractic Clinic, finding that the services there were not reasonably required to cure and relieve the effects of the employee=s injuries. The employee disputes this determination.
The employee argues that the treatment he received allowed him to continue employment in a physically demanding position, that the treatment was not provided on the basis of a predetermined schedule but on an as-needed basis, and that the total care for this problem for three years was less than $1,000.00.
This court provided a list of factors for a compensation judge to consider in determining whether chiropractic care was reasonable and necessary in Horst v. Perkins Rest., 45 W.C.D. 9 (W.C.C.A. 1991). In the present case, the compensation judge focused on the short-term nature of the symptom relief, the lack of a treatment plan, the lack of documentation of the details of treatment, and an indication that the treatment was provided not only to the low back but to the jaw, middle back, foot, and neck. Determination of this issue is one of fact for the compensation judge, and in this case that determination has been supported by substantial evidence.
The compensation judge=s denial of chiropractic expense is affirmed.