NIKOLAS SANTER, Employee, v. ELECTRIC MACHINERY CO., INC., and MINN. ARP/BERKLEY RISK ADM=RS CO., Employer-Insurer/Appellants, and ST. CLOUD ORTHOPEDIC ASSOCS. and COLUMBIA PART MEDICAL GROUP, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 27, 2003
PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; RULES CONSTRUED - MINN. R. 5223.0390, SUBPS. 1 and 3. Where subpart 3 of Minn. R. 5223.0390, which was generally titled ALumbar pain syndrome,@ provided for permanency ratings for spondylolisthesis at paragraph D. and for spinal Aabnormalities@ in general at paragraph C., and where subpart 1 of the same rule expressly precluded combining ratings within subpart 3, the compensation judge=s combination of ratings at subparts 3.C. and 3.D. to arrive at a total disability rating for the employee was clearly erroneous under the facts of the case.
Determined by Pederson, J., Wilson, J., and Rykken, J.
Compensation Judge: John Ellefson
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's combination of ratings from two separate permanency categories in arriving at the employee=s award of permanent partial disability benefits. We reverse.
On August 16, 2000, Nikolas Santer sustained injuries to his forearm, head, and back when he fell about three or four feet from a platform to the floor while working as a machinist in the course of his employment with Electric Machinery Co., Inc. Mr. Santer [the employee] was twenty-four years old at the time and was earning a weekly wage of $744.07. Initial diagnoses included head laceration and contusion, right elbow contusion, and acute low back pain/lumbar contusion without radiculopathy, and Electric Machinery Co., Inc. [the employer], and its insurer acknowledged liability for the injuries and commenced payment of benefits. By October 10, 2000, the employee=s treating physician, Dr. Jeffrey Meyer, was diagnosing only A[i]nfected right elbow laceration,@ having concluded that the employee had reached maximum medical improvement from his work injury with no permanent partial disability.
The employee=s back pain eventually recurred, and on February 9, 2001, the employee underwent a lumbar MRI scan. The scan revealed disc bulging, neural foraminal narrowing, and facet arthropathy at L3-4, L4-5, and L5-S1, annular tearing at L4-5 and L5-S1, and Grade I spondylolisthesis at L5-S1. On February 16, 2001, the employee=s orthopedist, Dr. Robert Scheuerell, rendered an opinion that the employee was subject to both a 10% whole-body permanent impairment pursuant to Minn. R. 5223.0390, subp. 3C(2), apparently based on his bulging discs, annular tearing, and arthropathy from L3-4 to L5-S1, and an additional 7% whole-body permanent impairment pursuant to Minn. R. 5223.0390, subp. 3D(1), based on his spondylolisthesis at L5-S1. On July 5, 2001, the employee filed a medical request, seeking payment of various medical expenses and authorization for ongoing evaluation and treatment consequent to his work injury of August 16, 2000. On July 13, 2001, the employer and insurer denied the request, on grounds that the employee=s current condition was unrelated to his August 16, 2000, work injury.
Eventually, on January 20, 2002, the employee was examined for the employer and insurer by orthopedist Dr. Mark Friedland, who diagnosed healed lacerations to the scalp and right elbow, healed abrasions of the right palm, and resolved thoracolumbar contusion, all consequent to the employee=s August 2000 work injury. Dr. Friedland also diagnosed bilateral spondylolysis at L5 with Grade I spondylolisthesis at L5-S1, but it was his opinion that this condition was developmental in nature and was unrelated to the employee=s work injury, having begun in the employee=s childhood and not been exacerbated by his work injury.
Evidently on February 22, 2002, the employee filed a claim petition, seeking various benefits including compensation for a permanent partial disability of 17% of his whole body, pursuant to the opinion of Dr. Scheuerell. The employer and insurer denied the petition, and the medical request and claim petition were subsequently combined for hearing.
The matter eventually came on for hearing on July 2, 2002, when the threshold issue was the employer and insurer=s primary liability for the employee=s ongoing back condition as a result of the employee=s fall at work on August 16, 2002. Secondary issues included the amount of any permanent partial disability benefits to which the employee might be entitled as a consequence of any such injury. Evidence submitted at hearing included Dr. Scheuerell=s February 16, 2001, opinion as to the nature and extent of the employee=s permanent partial disability. By Findings and Order filed August 12, 2002, the compensation judge denied some and awarded some of the various benefits claimed by the employee. Included among the benefits awarded was compensation for both a 10% whole-body impairment under Minn. R. 5223.0390, subp. 3C(2), and an additional 7% whole-body impairment under Minn. R. 5223.0390, subp. 3D(1). Having summarized the employee=s February 2001 MRI scan at Finding 4, the judge expressly indicated at Finding 7 his reliance on the opinion of Dr. Scheuerell in arriving at this award, but he did not otherwise address permanency in his findings, and he did not address permanency at all in his memorandum. The employer and insurer appeal from the amount of permanency awarded.
STANDARD OF REVIEW
A[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 Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
Minn. R. 5223.0390, subp. 3, provides for compensation for ALumbar pain syndrome.@ The two subparts specifically at issue here are subparts 3C(2) and 3D(1). Subpart 3C(2) provides for a 10% whole-body impairment rating where there are, at multiple vertebral levels,
[s]ymptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part.
Minn. R. 5223.0390, subp. 3C(2) (underscoring added). Subpart 3 D(1) provides for a 7% whole-body impairment rating where there are, with the spondylolisthesis at Grade 1,
[s]ymptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with radiographic evidence of spondylolisthesis, as defined in part 5223.031, subpart 48.
Minn. R. 5223.0390, subp. 3D(1) (underscoring added). On appeal, the employer and insurer contend that the compensation judge erred as a matter of law by combining a rating at subpart 3C(2) with a rating at subpart 3D(1) in arriving at the employee=s permanent partial disability entitlement. They cite Minn. R. 5223.0010, subp. 2, as precluding such a combination of categories. We agree that the judge=s award was erroneous as a matter of law.
This appears to us to be a case of first impression. Prior to July 1, 1993, compensation for permanent partial disability to the lumbar spine was scheduled at Minn. R. 5223.0070, subp. 1, and all combining or Astacking@ of permanency categories was essentially governed by Minn. R. 5223.0010, subp. 2, which addressed the A[i]nterpretation of schedules.@ As of July 1, 1993, Minn. R. 5223.0390 was promulgated to establish new rules regarding compensation for permanent partial disability to the lumbar spine, scheduling compensation for AFractures@ at subpart 2, for ALumbar pain syndrome@ at subpart 3, for ARadicular syndromes@ at subpart 4, and for AFusion@ at subpart 5. Compensation for spinal cord injury, nerve root injury, bladder dysfunction, sexual dysfunction, and anal dysfunction related to a low back injury were provided for under AGeneral@ provisions at subpart 1 by reference to ratings for those conditions at other rules, and compensation for various grades of spondylolisthesis was scheduled under ALumbar pain syndrome@ at subpart 3.
Minn. R. 5223.0390 established its own specific stacking provisions, providing, under AGeneral@ provisions at subpart 1, expressly as follows:
The impairing condition in the lumbar spine resulting from an injury may be rated only under one category of subpart 2 [AFractures@], 3 [ALumbar pain syndrome@], or 4 [ARadicular syndromes@]. Categories from more than one of subpart 2, 3, or 4 cannot be used in rating the impairing condition resulting from a single injury. Categories in subparts 2 to 4 may not be combined or added together in rating the extent of impairment due to a single injury except as specifically provided. Categories in other subparts [e.g., subparts 1 and/or 5] may be combined with the rating under subpart 3 or 4 as specifically provided in this part.
Minn. R. 5223.0390, subp. 1 (underscoring added). Subpart 1 itself Aspecifically provide[s]@ for combination of referenced spinal cord, nerve root, bladder dysfunction, sexual dysfunction, and anal dysfunction ratings with various ratings under Minn. R. 5223.0390; subpart 5, Aspecifically provide[s]@ for combination of its ratings for spinal fusions with ratings for lumbar pain syndrome in subpart 3 and with ratings for radicular pain syndrome in subpart 4. As subpart 1 clearly indicates, A[c]ategories in@ subpart 3 Amay not be combined or added together in rating the extent of impairment@ (emphasis added), and no exception is made for ratings of spondylolisthesis at paragraph D.
To combine two ratings from within subpart 3 of Minn. R. 5223.0390 without express authorization under the rule itself, particularly given that other specific combinations of ratings are expressly authorized under the rule, would in our opinion amount to double compensation. The compensation judge=s stacking of the 10% rating under subpart 3C(2) together with the 7% rating under subpart 3D(1) to arrive at a larger permanency rating is reversed. The employee remains entitled to compensation for a 10% permanent partial disability of the whole body, by virtue of his clinically substantiated and scan-verified abnormality at multiple vertebral levels of his low back, pursuant to Minn. R. 5223.0390, subp. 3C(2).
 The employer and insurer nominally assert an appeal also from the award of any permanency, but they substantively brief only an appeal from the judge=s Astacking@ of benefits from two different rating categories. Because only the latter issue is briefed, we will not address the former. See Minn. R. 9800.0900, subp. 1 (AIssues raised . . . but not addressed in the brief shall be deemed waived and will not be decided by the court.@); see also Anderson v. Stremel Bros., 47 W.C.D. 99 (W.C.C.A. 1992).