ROBERT HOWARD, Employee, v. OLYMPIC TEMPORARY, INC., and ASSIGNED RISK PLAN/BERKLEY ADMR=S, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 15, 2006
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; DEPENDENCY BENEFITS. Substantial evidence supports the compensation judge=s determination that the employee=s permanency was ascertainable and her finding regarding the extent of permanent partial disability at the time of the employee=s death.
Determined by Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Peggy A. Brenden
Attorneys: D. G. Fernstrom, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants. Harold Riehm, Ayers & Riehm, Mendota Heights, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that permanent partial disability was ascertainable at the time of the employee=s death and from her award of permanent partial disability to the employee=s dependents. We affirm.
On September 4, 2003, Robert Howard fell 30 feet from the top of a building he was roofing for his employer, Olympic Temporary, Inc. The employee was taken by ambulance to Mercy Hospital where he was hospitalized until September 18. Shortly after discharge, his condition worsened and he was hospitalized again for a week before being sent home. Discharge diagnoses for the employee included rib and pelvic fractures, bilateral pulmonary contusion, spinal fractures from L1 through L3, spleen hematoma, and closed head trauma resulting in traumatic brain injury (TBI).
The employer and insurer accepted primary liability for the employee=s injury and began payment of medical expenses and temporary total disability compensation. The employee also received statutory rehabilitation services from a QRC at Occupational Injury Consultants. At the time of his injury, the employee was 68 years old.
The employee=s general medical care after his discharge was directed by Dr. Lori Banaszak at the Native American Health Clinic in Minneapolis. The employee had a neuropsychological evaluation in October 2003, when he was at Sister Kenny Rehabilitation Institute, which indicated the employee Awas severely impaired compared to others his age.@ A further evaluation was recommended in three months or so. Dr. Banaszak subsequently referred the employee to Dr. George Montgomery at Allina Behavioral Health Services for an additional neuropsychological consultation in order to plan the employee=s care.
The employee met with Dr. Montgomery on December 12, 2003, and was accompanied by his QRC. In his history, the employee advised Dr. Montgomery that his memory and understanding were impaired and that he now had to read material more than one time in order to comprehend it. The QRC added that the employee was no longer able to draw plans and follow plans for the bead work he had done previously.
Dr. Montgomery administered fourteen tests to the employee which were interpreted generally as showing,
The obtained profile of test scores is abnormal. The findings are notable for demonstrating no more than borderline verbal and low average nonverbal intelligence. Additional findings suggested mildly impaired processing and psychomotor speed, impaired abstract thinking and conceptual organization, mildly impaired visual memory and moderately impaired memory for verbal material. Mild executive failures included problems with organization, impaired problem-solving flexibility, and confabulation-intrusion errors during memory testing.
Dr. Montgomery=s assessment concluded that:
The record describes a fall and traumatic brain injury of moderate severity. In light of this severity and his advanced age, we would not expect a complete recovery of neuropsychological abilities, instead some unresolved brain damage and dysfunction that would most likely cause defuse axonicity and damage to temporal and frontal brain areas.
The employee died on March 13, 2004.
In response to an inquiry from the employee=s attorney after the employee=s death, Dr. Montgomery provided a rating of permanent partial disability. In a health care provider report of May 19, 2004, and in a brief letter of June 4, 2004, Dr. Montgomery rated the employee as having a permanent partial disability of the whole body under Minn. R. 5223.0360, subp. 7.C.(3).
The employee=s records were reviewed by Dr. Michael Fuhrman at the request of the employer and insurer. In his report of August 19, 2005, Dr. Fuhrman indicated his agreement with Dr. Montgomery=s assessment of permanent partial disability at the time of the consultation in December 2003, concurring that there was a moderate impairment of complex integrated cerebral function. It was Dr. Fuhrman=s conclusion, however, that,
The moderate residual impairment of complex integrated cerebral function would have improved inexorably from December 2003 to September 2005.
He stated in his report,
I believe that the extent of neuropsychological permanency, if Mr. Howard had not died, is unknowable based on test results elicited three months after initial onset. The most likely scenario would be that he was destined to be left a PPD of 10-20 % in the area of complex integrated cerebral function, but the disability may have been either higher or lower than that.
Dr. Montgomery prepared a supplemental report of September 10, 2005, in response to Dr. Fuhrman=s report. Dr. Montgomery disagreed with the conclusion that there was any likelihood of improvement in the employee=s condition, citing to some of the employee=s background factors, such as his age. Dr. Montgomery opined that a rating of permanent partial disability based on an assumption of improvement was speculative.
The claim of the employee=s dependents was heard by Compensation Judge Peggy Brenden on September 15, 2005. The issues for determination were whether permanent partial disability for TBI was payable and the extent of permanent partial disability. At the hearing, the compensation judge considered medical records, QRC reports, and testimony from the employee=s widow that there had not been any significant improvement in the employee=s mental functioning between the time of his evaluation in December 2003 and his death in March 2004.
In her Findings and Order, issued September 26, 2005, the compensation judge determined that the employee=s permanent partial disability attributable to his TBI was ascertainable and awarded 40 percent whole body disability, accepting the opinion of Dr. Montgomery. The employer and employer appeal.
Under Minn. Stat. ' 176.021, subd. 3, the right to receive permanent partial disability vests in an injured employee if the employee lives for at least 30 days beyond the date of injury and if the permanent partial disability can be Aascertained.@ At the hearing and in its appeal, the employer and insurer argue that because of the likelihood of improvement in the employee=s condition, based on Dr. Fuhrman=s opinion, the permanent partial disability for the TBI could not be ascertained and was therefore not payable. We disagree.
At the time of his death, the employee had a functional impairment related to his traumatic brain injury which was well documented by the medical records. The parties do not dispute this fact. We conclude, then, that the compensation judge was correct in determining that permanent partial disability could be ascertained under Minn. Stat. ' 176.021, subd. 3, and that the employee=s dependents were entitled to permanent partial disability benefits.
Once it was determined that permanent partial disability benefits are payable, the question for the compensation was the extent of permanent partial disability. Dr. Montgomery rated the employee as having a 40 percent disability of the whole body using Minn. R. 5223.0360, subp. 7.C.(3). That section provides for a disability rating of 40 percent if Amoderate impairment of complex integrated cerebral function is demonstrated by psychometric testing.@ The testing done by Dr. Montgomery, the medical records and the testimony of Mrs. Howard all provide substantial evidence to support the compensation judge=s conclusion that Dr. Montgomery=s opinion most accurately set forth the extent of the employee=s permanent partial disability at the time of his death.
We note further that Dr. Fuhrman agreed with the assessment of permanent partial disability in December 2003, when the testing was done but stated that further improvement might be anticipated. The question then was whether there was significant improvement in the employee=s functioning from the time of testing until the employee=s death. The employee=s widow testified that there was no change, testimony supported by the medical and vocational records. While the employee had not reached maximum medical improvement when he died, it is speculative to rate permanent partial disability based on assumption of hypothetical improvement. It is the compensation judge=s role to consider the conflicting evidence and make a factual determination as to the extent of permanent partial disability based on the evidence. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). The determination of the compensation judge is affirmed.
The employer and insurer also raise on appeal the method of payment of permanent partial disability benefits. In her order, the compensation judge ordered the payment of $52,150, an amount not disputed by any party. She did not specify a method of payment but the employer and insurer raise a concern that a lump-sum payment is expected rather than the periodic payment called for by statute. At oral argument, the attorney for the employee=s dependents agreed that periodic payment was correct and we see no need to issue an order or to remand this matter where there is no dispute on this point.
 The employee had no formal education and taught himself to read and write.
 The employee had also been rated by his treating orthopedist as having a 5 percent permanent partial disability of the body at the time of his death for his pelvic fracture. This was paid by the employer and insurer and was not an issue at hearing.