PAUL PRICE, Employee/Appellant, v. CITY OF MINNEAPOLIS, SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 2, 2006
PERMANENT PARTIAL DISABILITY - KNEE; RULES CONSTRUED - MINN. R. 5223.0510. Where Minn. R. 5223.0510 provided for an 8% whole-body impairment rating for a total knee arthroplasty, where that procedure reasonably entailed removal of all cartilage in the knee at issue, where the employee=s arthroplasty had been preceded two years earlier by a partial medial and partial lateral meniscectomy to remove part of the cartilage in the same knee, for which the employee had already been compensated for a 4% whole-body impairment, and where there was no expert testimony that a meniscectomy was not a lesser included category in an arthroplasty, the compensation judge=s award of compensation for an additional 4% rather than a full new 8% impairment, contrary to the claim of the employee, was not clearly erroneous and unsupported by substantial evidence.
PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; RULES CONSTRUED - MINN. R. 5223.0510, subp. 3. The heading A[c]ombinable categories@ in subpart 3 of Minnesota Rules 5223.0510 refers to the combinability of categories therein with any appropriate category in subpart 4 of that rule; it has no reference to the combinability of categories within subpart 3, though such combination may or may not be permissible under other provisions in the rules.
Determined by: Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: Paul D. Vallant
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. Scott Reeves, Jay Heffern, City Attorney, Minneapolis, MN, for the Respondent.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of his claim for additional permanent partial disability benefits following a second surgery to his left knee. We affirm.
On December 13, 2000, Paul Price [the employee] sustained an injury to his left knee while working as a truck driver for the City of Minneapolis [the employer]. On April 30, 2001, Dr. Richard Strand, the employee=s treating orthopedist, performed a left knee diagnostic arthroscopy, partial medial meniscectomy, partial lateral meniscectomy, chondroplasty of the mediofemoral condyle, and extensive chondroplasty of the lateral femoral condyle tibial plateau with removal of osteochondral shear fractures. Dr. Strand=s postoperative diagnosis was tear of the medial meniscus, extensive tear of the lateral meniscus, severe grade 3 chondromalacia of the lateral femoral condyle and tibial plateau, and grade 2 chondromalacia of the mediofemoral condyle. Upon follow-up on November 5, 2001, Dr. Strand noted that the employee still had some symptoms but was getting by and working full time. On that date, he reported that the employee had reached maximum medical improvement [MMI] from his April 30, 2001, surgery with a 4% impairment of the body as a whole, pursuant to Minnesota Rules 5223.0510, subpart 3B(3), which provides for a 4% rating for a meniscectomy with up to 50% of both cartilages removed. The employer paid the employee for this rated permanency on December 14, 2001.
About two years later, on September 16, 2003, Dr. Strand performed a total knee arthroplasty of the employee=s left knee. The employee=s preoperative and postoperative diagnosis was severe degenerative arthrosis. Upon follow-up on August 30, 2004, Dr. Strand noted that the employee was doing well, with minimal discomfort, and was working full time. Dr. Strand found excellent range of motion, good quadriceps strength, and normal gait, with no swelling or tenderness. On that same date, the doctor reported that the employee had reached MMI with regard to his arthroplasty, and he rated the employee=s related permanent impairment at 8% of the body as a whole, pursuant to Minnesota Rules 5223.0510, subpart 3C(2), which provides for that rating for a total condylar arthroplasty.
Following the employee=s knee replacement surgery, the employer compensated the employee for an additional 3% impairment of the body as a whole. On October 15, 2004, the employee filed a claim petition for the 8% rated by Dr. Strand on August 30, 2004. Shortly thereafter, the employer compensated the employee for an additional 1% impairment of the body as a whole, resulting in compensation for a combined total impairment of 8% of the whole body.
The employee=s claim for permanent partial disability benefits came on for a hearing before a compensation judge on January 4, 2006. At trial, the employee alleged that he was entitled to combine Dr. Stand=s 4% and 8% ratings for a total compensable permanent partial disability rating of 11.84% of the whole body. By findings and order issued March 3, 2006, the compensation judge determined that a meniscectomy is a lesser included category of a total condylar arthroplasty, that the employee was therefore not entitled to combine the ratings for the two, and that the employee=s impairment of function is accurately represented by the 8% permanent partial disability rating for the total condylar arthroplasty. Accordingly, the judge denied the employee=s claim to compensation for an additional 3.84% impairment of the body as a whole. The employee appeals.
The permanent partial disability rules at issue in this case are contained in Minnesota Rules 5223.0510, which reads in part as follows:
5223.0510 Musculoskeletal Schedule; Knee and Lower Leg.
Subpart 1. General. For permanent partial impairment to the knee and lower leg, disability of the whole body is as provided in subparts 2 to 4. The percent of whole body disability under this part may not exceed the percent of whole body disability for amputation of the leg at the knee under part 5223.0550. Each mutually exclusive impairing condition must be rated separately and the ratings must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is represented by a category designated as exclusive under subpart 2, it must be rated by that category only and that rating may not be combined with a rating under any other category of this part for that impairing condition.
If an impairing condition is represented by a category designated as combinable under subpart 3, it must be rated under that category and under the appropriate categories describing loss of function under subpart 4. The ratings obtained must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is not represented by a category designated either exclusive or combinable, it must be rated only under the appropriate categories describing loss of function under subpart 4.
* * *
Subp. 3. Combinable categories.
A. Partial or total patellectomy, four percent.
B. Meniscectomy, or excision of semilunar cartilage in a single knee. If meniscectomy, or excision of semilunar cartilage is performed on both knees, rate each separately and combine the ratings for the overall impairment:
(1) up to 50 percent of a cartilage removed, two percent;
(2) more than 50 percent of a cartilage removed, three percent;
(3) up to 50 percent of both cartilages removed, four percent;
(4) more than 50 percent of both cartilages removed, six percent.
(1) unicondylar, seven percent;
(2) total condylar, eight percent;
(3) patella replacement, seven percent.
D. Cruciate ligament laxity:
(a) mild: positive drawer sign, no pivot shift, three percent;
(b) severe: positive drawer sign, pivot shift, five percent;
(2) posterior, five percent.
E. Posttraumatic varus deformity:
(1) up to five degrees, zero percent;
(2) between six degrees and 15 degrees, two percent;
(3) greater than 15 degrees, four percent.
F. Posttraumatic valgus deformity:
(1) up to ten degrees, zero percent;
(2) between 11 degrees and 20 degrees, two percent;
G. Proximal tibial osteotomy, four percent.
H. Distal femoral osteotomy, four percent.
I. Fracture or dislocation involving the femur, tibia, or fibula not otherwise ratable under subpart 2 or 3 or part 5223.0500 or 5223.0520, zero percent.
The compensation judge=s denial of additional permanent partial disability benefits in this case was based essentially on his conclusion that the employee=s sole Aimpairing condition@ is a total knee arthroplasty. Because the employee=s meniscectomy removed a portion of the meniscus and the arthroplasty necessarily removed the rest of the meniscus, the judge reasoned that the category representing a meniscectomy was a lesser included category of an arthroplasty. As a result, he found the category rating 8% for an arthroplasty to represent the employee=s impairing condition.
On appeal, the employee argues that, because he had to undergo two invasive procedures for two separate and distinct conditions, the permanency rules treat him differently than an individual whose initial surgery is an arthroplasty. Because subpart 1 of the rule at issue provides that each mutually exclusive impairing condition Amust@ be rated separately and then combined subject to the formula, Minn. R. 5223.0510, subp. 1, and because his mutually exclusive impairing conditions are designated as combinable categories under subpart 3 of the rule, the employee contends that his separate ratings of 4% under Minnesota Rules 5223.0510, subpart 3B (3), for his meniscectomy and 8% under Minnesota Rules 5223.0510, subpart 3C (2), for his arthroplasty must be combined for a total rating of 11.84%. We are not persuaded.
We would note at the outset that a careful reading of subpart 1 of Rule 5223.0510 reveals that the heading A[c]ombinable categories@ in subpart 3 refers to the combinability of categories therein with any appropriate category in subpart 4. It has no reference to the combinability of categories within subpart 3, though such combination may or may not be permissible under other provisions in the rules. See Ransom v. Ford Motor Co., slip op. (W.C.C.A. Apr. 21, 1999). That said, we find this case analagous to Majerle v. Forest Lake Chrysler, slip op. (W.C.C.A. Jun 25, 2004). In Majerle, the employee was compensated for a 3% whole-body impairment following surgery to remove more than 50% of his lateral meniscus. The employee later had a second surgery, in which additional cartilage was removed from his lateral meniscus. The employee claimed compensation for an additional 2% impairment based on the second surgery. This court affirmed the denial of the additional 2% impairment, concluding that functional impairment contemplated by the rules was not increased because more than one surgical procedure was required. As the compensation judge noted in the present case, there is no reason to conclude that an employee with a total knee arthroplasty preceded by a meniscectomy would have any greater functional impairment than an employee who had a total knee arthroplasty alone. As in Majerle, selection of both categories claimed by the employee in this case would overcompensate him for part of his condition. Based on the evidence submitted, the compensation judge=s determination that a meniscectomy is a lesser included category of a total condylar arthroplasty was not unreasonable.
Subdivision 3 of Minnesota Statutes ' 176.021 provides that permanent partial disability Ais payable for functional loss of use or impairment of function, permanent in nature.@ Minn. Stat. ' 176.021, subd. 3. Permanency Acategories must be identified and selected with care in order to avoid exaggeration of the disability in its entirety.@ Deschampe v. Arrowhead Tree Service, 428 N.W.2d 795, 800, 41 W.C.D. 200, 206-207 (Minn. 1988). The guiding principle is that where an employee has Asuffered two distinct functional impairments with greater resultant disability to the body as a whole,@ it is appropriate to rate the disability under each category that provides compensation for loss of function or impairment of use. Id. at 800, 41 W.C.D. at 205. A compensation judge is responsible for determining under which category an employee=s disability falls, based on all relevant evidence, including objective medical findings. Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992). Here, the rules clearly contemplate a rating of 8% for a total knee arthroplasty. This procedure reasonably entails removal of all cartilage in the knee. Although Dr. Strand offered ratings under two categories of subpart 3, his opinions were separated by almost three years, and he was not asked whether ratings under both categories were necessary to represent the employee=s impairing condition. The judge quite reasonably concluded that the 8% rating fully compensated the employee for his impairment of function. While we agree with the employee that he is entitled to a rating for each mutually exclusive impairing condition, the only impairing condition at issue here is the employee=s total knee arthroplasty.
As the supreme court has stated, the Apurpose of permanent partial disability [is] to compensate for functional impairment.@ Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 922, 43 W.C.D. 471, 477 (Minn. 1990). In interpreting the schedules, Minnesota Rules 5223.0300 provides that Athe disability determination shall not be based on the cumulation of lesser included categories@ and that, A[i]f more than one category may apply to a condition, the category most closely representing the condition shall be selected.@ The judge selected the category most closely representing the employee=s impairing condition, and we see no basis to conclude that the employee is entitled to a greater impairment rating because of an earlier surgery. We therefore affirm the decision of the judge.