LYNN M. (HART) PRATLEY, Employee, v. MONITERM CORP. and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 21, 2006
PERMANENT PARTIAL DISABILITY - COSMETIC DISFIGUREMENT; PERMANENT PARTIAL DISABILITY - WEBER RATING. Where the employee sustained both vision loss, for which she was paid a 24 percent permanent partial disability under Minn. R. 5223.0030, and comestic disfigurement of her right eye, the compensation judge did not err in awarding an additional 10 percent permanency under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
Determined by Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Gerald W. Bosch, Bosch Law Firm, Minneapolis, MN, for the Respondent. Beth Giebel Mandel, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s award of additional permanent partial disability benefits pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). We affirm.
Lynne M. (Hart) Pratley, the employee, sustained a personal injury to her right eye on February 7, 1989, while working for Moniterm Corporation, the employer, then insured by State Farm Mutual Insurance Company. The employer and insurer admitted liability for the employee=s personal injury.
The employee sought medical treatment at the Methodist Hospital emergency room immediately following her injury. The employee reported she was using needle-nose pliers to pull a wire out of some equipment when the pliers slipped and penetrated her right eye. Dr. Steven Rakes diagnosed a corneoscleral laceration of the cornea with marked iris prolaps through the wound. In the operating room, Dr. Rakes excised the necrotic iris and closed the laceration. Two weeks after the initial surgery, the employee underwent a second surgery to correct a detached retina, repair a hole in the back of the eye socket and to attempt to repair the torn iris. The employee followed with Dr. Rakes following her surgeries. By March 1990, the doctor noted the employee had a dense white scar in the right eye which was Aquite noticeable and does give a fairly unsightly cosmetic appearance. The iris has been badly damaged, especially superiorly and so the pupil itself has an abnormal shape and increased size.@ (Pet. Ex. D.) The doctor concluded the employee=s right eye was essentially healed and no further therapy was needed. The doctor stated the employee would continue to suffer from glare phenomena due to the corneal scar and damage to the iris and her depth perception was diminished.
The employer and insurer paid the employee for a 24 percent permanent partial disability for the complete loss of vision in one eye. See Minn. Rule 5223.0030, subp. 1.
The employee began treating with Dr. Audrey Fox at the Lakeview Clinic in 1998. The doctor recommended the employee wear protective glasses on a full time basis. The employee followed up with Dr. Fox each year thereafter to evaluate her vision and check the eye pressure. In February 2004, the employee consulted with Bradley Ludwig, O.D. regarding the possibility of a custom colored contact lens. Dr. Ludwig opined the contact lens would help with the cosmetic appearance of the right eye due to her lack of any round appearing pupil.
The employee described her right eye as having a Ascar running across the front of my eye which is very opaque and very noticeable and the iris is torn from the top of the eye so because that is gone my pupil is dilated so big and its very noticeable.@ (T. 15.) She testified she is self-conscious about the cosmetic disfigurement of her eye.
Dr. Fox was asked to assess and rate permanent disability for the employee=s cosmetic disfigurement. Dr. Fox stated:
Lynne has had trauma to the right eye causing severe iris irregularity. She has approximately 90% loss of iris tissue because of the trauma. She has a residual portion of the iris that sits inferiorly causing a 90% defect, and the pupil is in a chronically dilated state. In addition, she has a corneal laceration of the right eye which traverses the upper one-half of the cornea causing corneal scarring and disfigurement of the cornea in that region.
I have reviewed the Minnesota Workman=s [sic] Compensation Guidelines. The section 5223.0650 cosmetic disfigurement does not have a section that pertains specifically to the disfigurement that Lynne Pratley has of her right eye. In reviewing the section on eyes, eyebrows, ectropion and scarring of the eyelid, I think an equivalent disfigurement for Lynne would be appropriate at 10% permanent partial disability of the total body.
(Pet. Ex. B.)
Dr. Allen Weingarden examined the employee at the request of the employer and insurer. His diagnosis was corneal scar aphakia and macular scarring of the right eye. The doctor stated the employee=s eye condition was stable and did not expect any major changes, except the possibility of developmental glaucoma. The doctor opined the employee had a 24 percent whole body disability due to the injury. Dr. Weingarden further stated:
I would now like to comment on Dr. Fox=s 10% Permanent Partial Disability rating for cosmetic disfigurement, i.e., the Weber ruling. Ms. Pratley has, number one, not tried all the different options available for someone with loss of an iris. There are no Permanent Partial Disability ratings in the eye section regarding loss of iris. She has received a maximal amount of Permanent Partial Disability that one can receive with this kind of injury, at 24% of the whole person.
I would disagree with Dr. Fox=s 10% rating for cosmetic disfigurement. There is no other change other than the loss of iris and the corneal scar, both of which likely could be corrected with special cosmetic contact lens, which has not been explored.
(Resp. Ex. 1.)
The employee filed a claim petition seeking payment of the ten percent permanent partial disability rated by Dr. Fox. Following the hearing, the compensation judge awarded the employee a ten percent whole body disability for a cosmetic disfigurement of the right eye pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990). The employer and insurer appeal.
The employer and insurer contend the compensation judge erred as a matter of law in awarding an additional ten percent permanent partial disability for a cosmetic disfigurement under Weber. Citing Loughery v. Asplundt Tree Expert Co., slip op. (W.C.C.A. May 19, 1998), the appellants argue a Weber rating is not permitted where a detailed, specific rating is provided in the schedules. The appellants contend the 24 percent disability awarded the employee under Minn. Rule 5223.0030, subp. 1, fully compensated her for her injury. The employee=s situation, the appellants argue, is comparable to the amputation of a member. The rating for the loss of that member, the appellants assert, fully compensates the employee and an additional award for a cosmetic disfigurement would be duplicative. For these reasons, the employer and insurer seek a reversal of the compensation judge=s award.
If an employee sustains an injury resulting in functional impairment that is not included in the permanency schedules, the compensation judge has Adiscretion to assign the non-scheduled injury to its closest compensable category in the schedule.@ Weber at 922, 43 W.C.D. at 478. The legislature essentially codified the Weber decision in 1992. Minn. Stat. ' 176.105(1)(c), states:
If an injury for which there is objective medical 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.
The 24 percent permanent disability paid to the employee under Minn. R. 5223.0030, was specifically for loss of vision in the right eye. Minn. R. 5223.0650 provides ratings of permanent disability for cosmetic disfigurement and subpart 2.C. of the rule specifically provides that any rating under that section Amay be combined with any additional rating as provided in part 5223.0330, if visual impairment is present.@ The separate rating for cosmetic disfigurement, however, is limited to disfigurement on the face, head, neck or dorsum of the hands. The issue is whether the physical appearance of the employee=s right eye may be rated under Weber and Minn. Stat. ' 176.105(1)(c).
There is no dispute the employee has a physical scar through the cornea of her right eye with significant damage to the iris causing an abnormal shape and increased size. In Haugland v. Midwest Hardwood Corp., No. WC05-212 (W.C.C.A. 2005), the court determined a cosmetic disfigurement was anything that disfigures or defaces. The employee, therefore, has a cosmetic disfigurement. Were the employee=s cosmetic disfigurement on any other portion of her face, head, or neck, she would be entitled to permanent disability under Minn. Rule 5223.0650. We find no logical reason to award benefits for a cosmetic disfigurement to the face but deny the benefit for a cosmetic disfigurement of the eye. The rationale for awarding permanent disability benefits for a cosmetic disfigurement of the face, applies equally to the cosmetic disfigurement of the eye.
We reject the employer=s argument that the compensation judge=s two awards of permanent disability are duplicative. The permanent disability awards are for separate and distinct impairing conditions: loss of vision and cosmetic disfigurement. The fundamental purpose of permanent partial disability is to compensate for functional impairment. Where an employee has two separate and distinct impairing conditions, an award for both is permissible. See e.g.; Vandenberg v. Independent Sch. Dist. #518, 65 W.C.D. 314 (W.C.C.A. 2005). We also reject the employer=s amputation analogy, i.e., the rating for the loss of a member fully compensates the employee for any resultant cosmetic disfigurement to the body due to the loss. The rules specifically allow for a rating for cosmetic disfigurement to the face, head, and hands, in addition to a rating for other function loss. For example, the rules allow a rating for hearing loss, Minn. R. 5223.0340, in addition to a rating for the loss of a portion of the ear, Minn. R. 5223.0650, subp. 2.E. The compensation judge=s award of a 10 percent whole body disability for cosmetic disfigurement of the right eye is affirmed.