EDWARD A. NADEAU, Employee/Appellant, v. CITY OF MAPLEWOOD, and LMC/BERKLEY RISK ADM=RS CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 1, 2005
PERMANENT PARTIAL DISABILITY - NECK. Substantial evidence supported the compensation judge=s decision that the employee=s bulging cervical discs did not produce an impairment of function separate and distinct from the cervical stenosis for which the employee had already received permanent partial disability benefits.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: William H. Getts, Minneapolis, MN, for the Appellant. Thomas M. Peterson, League of Minnesota Cities Insurance Trust, St. Paul, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s denial of his claim for permanent partial disability benefits related to an alleged herniated cervical disc or discs. We affirm.
The employee sustained an admitted injury to his neck on November 14, 1989, while working for the City of Maplewood [the employer]. He subsequently sought treatment from Dr. William Wiencke, who initially diagnosed a cervical strain. However, a January 3, 1990, MRI scan disclosed a Amoderate size central disc herniation slightly eccentric to the right at C5-6" and Adegenerative disc disease at C6-7.@
The employee apparently sought no treatment for cervical symptoms from March of 1990 until June of 1999. On June 1, 1999, he returned to see Dr. Wiencke, complaining of right-sided neck pain and weakness into the arms and legs. X-rays revealed disc space narrowing at C5-6 and C6-7, with small anterior and posterior hypertrophic spurs at those levels, and slight posterior subluxation at C5-6, Arepresent[ing] moderate chronic degenerative disc disease.@ A second cervical MRI scan was performed on June 10, 1999. That scan was read as disclosing degenerative disc disease at C5-6, with diffuse disc bulging producing stenosis centrally, Aa question of a small secondary lateral disc protrusion on the right at [that same level],@Amild foraminal narrowing on the left [at] C5-6 due to uncinate spur formation,@ and Adegenerative disc disease [at] C6-7 with central bulging and bony ridging and uncinate spur formation and moderate narrowing of the left neural foramen.@
Dr. Wiencke eventually referred the employee to Dr. Richard Gregory, who had treated the employee previously for a low back condition. In his September 1, 1999, chart note, Dr. Gregory indicated that the employee was there for evaluation of neck pain going into both arms that had been present for 10 years. Noting that the employee had progressively worsening numbness and tingling into both arms and numbness in his fingers, Dr. Gregory observed that A[t]his does not fit a C6 dermatome but rather affects the 3rd, 4th and 5th fingers bilaterally.@ In the section regarding imaging, Dr. Gregory described Aspinal cord compression, especially at the C5-6 level. Part of this is anterior pathology and part is posterior pathology.@
Dr. Gregory speculated that the employee might at some point need an anterior fusion at C5-6, but, because the employee=s spinal canal was so small, the doctor said that he would Apersonally be inclined to open up the general diameter of [the employee=s] spinal canal to make more room for his spinal cord.@ Therefore, Dr. Gregory recommended a laminoplasty, posterior approach, including C4, C5, C6, and C7, predicting that it might well take care of the employee=s symptoms and that, in any event, if the employee were to require a later surgery using an anterior approach, Athe laminoplasty would create a little bit of safety margin for working along the anterior aspect of his spinal cord.@
The employee underwent the recommended four-level decompressive laminoplasty, for Aspinal cord compression secondary to cervical canal stenosis,@ on February 18, 2000. A post-surgery radiological test was read as disclosing osteophyte formation and disc space narrowing at C5-6.
On March 8, 2000, the employee was seen by nurse technician Carol Abraham, an associate of Dr. Gregory=s, in follow up. The employee reported at that time that he had minimal neck discomfort but still had tingling in the last two fingers on his right hand. When seen again by Dr. Gregory about three weeks later, the employee still had Anumbness in the right 4th and 5th fingers similar to preop.@ Dr. Gregory suspected a right ulnar neuropathy and noted that the employee Aalso ha[d] some new numbness in the right 2nd and 3rd digits,@ which could Afit either C7 root or carpal tunnel. It does not really fit his known C5-6 pathology which should be numbness in the thumb and index finger.@
Dr. Gregory referred the employee to a neurologist for evaluation and an EMG to investigate the possibility of ulnar neuropathy, carpal tunnel, or a root lesion. That examination and testing was performed by Dr. Jagdeep Kohli in June of 2000. According to Dr. Kohli=s June 9, 2000, report, the EMG demonstrated Aa mild right ulnar sensory neuropathy and evidence for a right C6-C8 radiculopathies [sic] that appeared old.@ In conclusion, Dr. Kohli wrote,
IMPRESSION: I think currently there is nothing to suggest that he has symptomatic cervical disease (i.e. radiculopathy or myelopathy). His nocturnal paresthesias in his hands are likely related to a compressive ulnar neuropathy, and he has some mild changes to support this. He does have evidence of old multiple radiculopathies on the right, but does not appear that there is anything active currently. At this point I would not pursue any further investigations, and I do not think that any further surgical intervention is warranted. I think observing him clinically would be the best for now, and if he develops progressive neurological symptoms at some point in the future, repeat EMG studies may be useful.
In February of 2001, Dr. Gregory suggested that the employee might have a bulging disc at C5-6 with right C6 radiculopathy, and, to investigate that possibility, he ordered more tests. On March 2, 2001, the employee underwent another MRI scan of his cervical spine. With regard to the C5-6 level, the radiologist noted disc desiccation with disc height loss and a broad-based disc protrusion Awith spurring again noted. This is slightly eccentric to the left . . . with some subsequent mild left foraminal encroachment.@ (Emphasis added). At C6-7, there was Adesiccation of the disc with disc height loss@ and A[s]ome minimal annular bulge, but no focal protrusion.@
The next month, on April 28, 2001, the employee underwent a cervical CT scan, with myelogram. According to the radiologist=s report, the employee had a Acapacious@ cervical spinal canal, disc bulging with osteophytes at C3-4, C4-5, and C5-6, no disc extrusion, and mild foraminal narrowing at C4-5 and C5-6.
In early June of 2001, the employee underwent another EMG, performed this time by Dr. Thomas Jacques, an associate of Dr. Kohli=s. According to the EMG report, the employee had a right median neuropathy consistent with carpal tunnel syndrome, evidence of a right ulnar mononeuropathy, and evidence to suggest a mild nonactive C6-C7 motor radiculopathy in the right arm. Dr. Jacques found no significant change from the EMG performed a year earlier.
Dr. Jacques also examined the employee on July 5, 2001, for re-evaluation of his ongoing symptoms. In a report of that same date, Dr. Jacques concluded, in part, that the employee had no Asignificant symptomatology to correlate with anything that is going on in his neck.@ He also noted that the employee had rejected his suggestion to wear an elbow pad to prevent progression of the right ulnar neuropathy.
The self-insured employer apparently paid the employee benefits for a 14% permanent partial disability, related to cervical stenosis, the same rating recommended by Dr. Michael Smith, the employer=s independent examiner. However, Dr. Gregory ultimately concluded that the employee=s condition warranted a 28% rating, explaining in a November 2002 report as follows:
FOLLOW UP EVALUATION: Edward Nadeau had cervical stenosis at C5-6 causing spinal cord compression. This was relieved by his laminoplasty from behind. He got 14% disability for that.
He still, however, has a significant pathology. He has bulging discs at C3-4, C4-5, and C5-6 with EMG evidence of C6-7 motor radiculopathy in the right arm. This is mild in degree electrophysiologically and non-active in nature. He complains of neck pain. He does not have radicular pain down the arms. He complains of weakness in the upper right arm and he complains of numbness in the right fourth and fifth fingers, and in the left fifth finger.
His bulging discs are anterior to his spinal cord and these are a problem separate from his laminoplasty which was done from posteriorly. He still falls into the category of herniated disc, single vertebral level or multiple vertebral levels, a condition not surgically treated, neck pain, objective neurologic findings in that he has a positive EMG and CT myelogram positive for bulging disc, no surgery performed.
I believe he gets an additional percent for that over and above the 14% which he has already received.
The matter came on for hearing before a compensation judge on October 15, 2004, for consideration of the employee=s claim for permanent partial disability benefits in accordance with the opinion of Dr. Gregory. In findings and order filed on October 19, 2004, the judge denied the employee=s claim for additional benefits. 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 (2004). 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).
The parties agree that the employee=s work-related cervical condition meets the requirements for a 14% rating pursuant to Minn. R. 5223.0070, subp. 2C(1) (1989), applicable to A[s]pinal stenosis, proven by computerized axial tomography or myelogram,@Awith myelography verified by objective neurologic findings, no loss of function.@ The employee also claims entitlement to a 14% rating under Minn. R. 5223.0070, subp. 2B(1)(b) (1989), applicable to A[n]eck and specific radicular pain present with objective neurologic findings; and x-ray or computerized axial tomography specifically positive for herniated disc; and no surgery performed for treatment.@ The employee contends that the compensation judge erred in rejecting Dr. Gregory=s permanent partial disability opinion and the claimed additional rating for a herniated disc. After review of the record, we conclude that the judge=s decision is not clearly erroneous or unsupported by substantial evidence.
The evidence is conflicting as to the clinical significance, if any, of the employee=s bulging cervical disc or discs. Some of Dr. Gregory=s treatment notes indicate that the employee=s symptoms are not consistent with the known pathology at C5-6, which he indicated would produce numbness in the Athumb and forefinger,@ rather than the numbness and tingling that the employee is experiencing in his fourth and fifth digits. In addition, in his November 2002 permanent partial disability report, Dr. Gregory indicated that the employee did not have Aradicular pain down the arms,@ and Aspecific radicular pain@ is an express requirement of the permanent partial disability rating category at issue. In fact, in 2000, Dr. Kohli found Anothing to suggest that [the employee] has symptomatic cervical disease (i.e. radiculopathy or myelopathy),@ and, in 2001, Dr. Jacques concluded that the employee had no Asignificant symptomatology to correlate with anything that is going on in his neck.@ We also note that both of these neurologists found evidence of ulnar neuropathy and/or carpal tunnel syndrome, which they suggested might be causing the employee=s arm/hand symptoms. In addition, the record reasonably supports the compensation judge=s inference that the employee=s current symptoms are essentially the same as the symptoms he was experiencing from the cervical stenosis, prior to the laminoplasty.
Pursuant to Minn. R. 5223.0010, subp. 2 (1989), A[i]f more than one category may apply to a condition, the category most closely representing the condition shall be selected.@ In the present case, the compensation judge could reasonably conclude that the rating category for cervical stenosis most closely represents the employee=s condition and that the bulging discs disclosed on diagnostic scans do not, at least at present, constitute separate functional impairments. Because substantial evidence supports the judge=s decision as to permanent partial disability, we affirm that decision in its entirety. See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987) (a finding of permanent partial disability is one of ultimate fact).