WALLACE J. LAWRENCE, Employee/Appellant, v. WILLMAN TRUCKING, INC., and SFM MUT. INS. CO., Employer-Insurer, and MINNEAPOLIS CLINIC OF NEUROLOGY, HEALTHPARTNERS, UNITY HOSP., and ORTHOPAEDIC PARTNERS, P.A., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 14, 2008
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where there was uncontroverted medical evidence that surgical repair of the employee’s pre-existing, non-work-related anterior cruciate ligament (ACL) tear was necessary to cure and relieve the employee’s 2006 work-related knee injury, the compensation judge erred in denying payment of medical expenses for the ACL repair and related medical treatment.
PERMANENT PARTIAL DISABILITY. The compensation judge properly denied an additional 3% permanent partial disability for ACL laxity where there was no dispute the employee’s ACL was torn prior to the work injury and the work injury did not worsen that condition.
TEMPORARY PARTIAL DISABILITY - CAUSATION. Where treatment for the employee’s torn ACL was reasonable and necessary to cure and relieve the employee from the effects of his work injury, the compensation judge erred in denying temporary partial disability benefits during the healing period following the employee’s ACL surgery.
Affirmed in part and reversed in part.
Determined by: Johnson, C. J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Steven T. Scharfenberg, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s denial of medical expenses related to his anterior cruciate ligament (ACL) repair and subsequent therapy; from the judge’s finding the employee was not entitled to a 3% permanent partial disability for his ACL condition; and from the compensation judge’s denial of temporary partial disability benefits. We affirm in part and reverse in part.
Wallace J. Lawrence, the employee, sustained a personal injury to his right knee on June 13, 2006. Willman Trucking, Inc., the employer, and its insurer, SFM Insurance Company, admitted liability for the injury. The employee’s weekly wage on the date of injury was $1,421.93.
The employee suffered a prior non-work injury to his right knee, in July 2000, while driving an all-terrain vehicle. The employee was seen at Mercy Hospital emergency room that day, and was treated for right knee pain, provided a knee brace and discharged. On July 19, 2000, the employee saw Dr. Joseph Flake, an orthopedic surgeon. The doctor ordered an MRI scan which showed a right anterior cruciate ligament (ACL) tear with no evidence of meniscal tears. Dr. Flake recommended non-operative treatment and instructed the employee to continue wearing the brace on his right knee. The doctor recommended physical therapy, and on August 28, 2000, released the employee to return to work with restrictions. Dr. Flake last examined the employee on November 27, 2000. At that time, the employee complained of some continuing pain in his calf and occasional clicking in the right knee, but denied any episodes of his knee giving way. On examination, Dr. Flake stated the employee’s knee revealed no effusion, warmth or redness. The employee demonstrated full flexion and extension with Grade II Lachman’s test and a Grade I + pivot shift. Dr. Flake stated, overall, the employee’s knee was quite stable with no collateral ligament laxity. The doctor recommended the employee continue his strengthening program and instructed the employee to return as needed.
The employee testified he had no restrictions on his activities after his knee injury had healed and denied any problems with his right knee from 2001 through 2006. During this time, the employee was able to work as a mechanic, at two jobs on occasion. The employee stated he was able to lift 100 pound tires at work, and missed no time from work because of knee injuries until the June 2006 personal injury.
The employee, following the June 2006 personal injury, initially saw his family physician. An MRI scan of the right knee showed a chronic complete tear of the ACL and complex tear involving the posterior horn of the medial meniscus near the meniscal root. The employee then saw Dr. Peter Holmberg, a partner of Dr. Flake, on July 12, 2006. The doctor reviewed the MRI scan and, on examination, noted a Lachmans’s Grade III. The doctor diagnosed a chronic right knee ACL tear and an acute tear of the medial meniscus. Dr. Holmberg recommended a partial medial meniscectomy and an ACL reconstruction. On August 10, 2006, Dr. Holmberg performed an arthroscopic anterior cruciate ligament reconstruction using cadaveric graft and a partial medial meniscectomy with a shaving of the chondromalacia changes on the medial femoral condyle and the patella.
Following surgery, the employee commenced physical therapy and remained off work through October 22, 2006. Dr. Holmberg then released the employee to return to work with restrictions and the employee returned to work both at his job with the employer and at his second employment. At some point, the employee was laid off by the employer and he commenced a work search. On December 17, 2006, the employee found a new job earning more than his job with the employer.
The employee returned to see Dr. Holmberg in November 2006 with complaints of pain in the calf and around the knee with stiffness and swelling. The doctor ordered further physical therapy. In January 2007, the employee complained of continuing pain in his right leg and Dr. Holmberg prescribed anti-inflammatory medication. In March 2007, the doctor injected the employee’s right knee with Depo-Medrol for the employee’s continuing right knee pain. In April, Dr. Holmberg reported the steroid injection did not help. An EMG of the employee’s right leg was normal. In June 2007, the employee continued to complain of right knee pain and Dr. Holmberg stated he could not tell exactly where the employee’s problem was coming from or what was the main problem. A bone scan of the right leg was essentially normal and showed no significant abnormality. In September 2007, Dr. Holmberg again injected Depo-Medrol into the employee’s right knee. In October 2007, the employee continued to complain of right knee pain and Dr. Holmberg noted the injection had not given the employee any long-term relief. The doctor opined arthritic changes within the knee were creating almost all of the employee’s problems. Dr. Holmberg recommended total knee replacement surgery in the future if the employee’s symptoms continued.
Dr. Jack Bert examined the employee on two occasions on behalf of the employer and insurer. In a March 2007 report, the doctor stated that the employee sustained a torn ACL in July 2000, and a tear of the medial meniscus in June 2006. Dr. Bert opined the June 2006 personal injury was not a contributing cause of the need for the employee’s ACL repair because the tear was a pre-existing condition. Dr. Bert opined the employee would have been off work approximately two to three weeks subsequent to a medial meniscal resection while an ACL tear often requires between two to three months off work. The doctor stated the employee’s physical therapy was due to the ACL repair and stated meniscectomies almost never require physical therapy. Dr. Bert rated the employee with a 3% whole body disability secondary to the meniscal tear. Following his second examination of the employee in September 2007, Dr. Bert reported the employee had some weakness of his right leg, but found no evidence of any pathology of the knee. Dr. Bert stated he could not explain the employee’s current pain complaints, but he did not attribute them to the June 2006 injury. Dr. Bert opined the medical treatment the employee received after January 19, 2007, was not causally related to the June 13, 2006, work injury.
The deposition of Dr. Holmberg was taken in October 2007. Dr. Holmberg reviewed the records of the employee’s treatment in November 2000, and noted Dr. Flake reported the employee’s knee was quite stable on examination with no symptoms of instability. Following his examination of the employee in July 2006, Dr. Holmberg stated he diagnosed a chronic ACL tear and an acute medial meniscus tear for which the doctor performed surgery. Dr. Holmberg testified the June 2006 personal injury caused a tear of the medical meniscus. However, Dr. Holmberg stated the pre-existing ACL tear substantially contributed to the effects of the 2006 work injury because the knee joint was more unstable than it would have been without the ACL tear. Dr. Holmberg testified it was necessary to repair the ACL as part of the surgery he performed following the work injury because of the instability in the employee’s knee. The doctor stated that given the mechanism of the 2006 personal injury, the doctor would not have expected any damage to the medical meniscus had the employee’s knee been normal. Dr. Holmberg testified he repaired the ACL to prevent further damage to the remaining cartilage in the knee joint and to stabilize the employee’s knee. Dr. Holmberg rated a 3% whole body disability for a removal of cartilage secondary to the meniscectomy and a 3% permanent disability for mild ACL laxity. Dr. Holmberg opined the employee reached maximum medical improvement by October 16, 2007.
On cross-examination, Dr. Holmberg conceded that he could have treated only the meniscus and not repaired the ACL. The doctor stated following surgery, the employee would have been out of work three weeks due to the meniscus tear and nine weeks due to the ACL repair. The doctor further acknowledged the lifting restriction he placed on the employee in November 2007 was due to the ACL repair, not the meniscal repair. Dr. Holmberg was asked whether he agreed the treatment for the ACL was not necessary to cure or relieve the employee from the effects of the personal injury. Dr. Holmberg responded that in November 2000, a Lachman’s test was Grade II, a pivot shift was Grade I + , and the employee’s knee was quite stable. Dr. Holmberg testified after the work injury, the Lachman’s was Grade III from which he concluded the employee had severe instability in his knee. The doctor further testified:
Now, anterior cruciate ligament is already torn; however, there are secondary stabilizers in the knee which include the meniscus, especially the posterior horn of the medial meniscus, and when that’s damaged or torn, he may have lost his secondary stabilizers to make his knee further unstable than it was prior to this injury.
(Pet. Ex. B at 41.) In response to the question of whether he agreed the repair of the ACL was not necessary to cure or relieve the employee from the effects of the personal injury, the doctor again stated, “I am doing that surgery to treat his instability that he has in his knee, which, by my documentation, is significantly worse in 2006 than it was in 2000.” (Pet. Ex. B at 42.)
On redirect examination, Dr. Holmberg was asked whether it would have been prudent to repair only the medial meniscus and not repair the ACL. The doctor stated it would not and when asked why not testified:
Because you’re not helping this patient tremendously. He’s already got a damaged anterior cruciate ligament, we have evidence that his knee is significantly more unstable at this point, we’ve had to remove some meniscus in his knee. All those things would - - if we just took care of the cartilage tear, his knee would, in my opinion, would be - - remain much more unstable than it was in the past, and it would be predisposed for further damage within his joint.
(Pet. Ex. B at 44.) Finally, Dr. Holmberg testified that the therapies since October 2006 were for purposes other than and in addition to treatment of the ACL. Dr. Holmberg also stated that the restrictions he provided the employee through August 2007 were due to the condition in the employee’s entire leg and not strictly limited to the ACL repair.
The employee filed a claim petition seeking payment of medical expenses, four weeks of temporary partial disability benefits and an additional 3% percent whole body disability secondary to the mild laxity of the ACL. Following a hearing, the compensation judge found the employee’s knee was unstable prior to the work injury due to the pre-existing ACL injury and such instability was a significant causative factor in the tearing of the employee’s meniscus on June 13, 2006. The compensation judge found the employee failed to establish his work injury was a substantial contributing cause of the need to treat the ACL condition and for the employee’s ongoing symptoms in his right leg. The judge further found the healing period for the meniscus injury was three weeks and the employee’s disablement thereafter was due to the non-work ACL condition, and denied the temporary partial disability claim. The compensation judge found only the treatment and medical expenses relating to the employee’s right medial meniscus condition were compensable. Finally, the judge found the employee was not entitled to the claimed additional 3% permanent disability for his ACL condition. The employee appeals.
1. Medical Treatment and Expense
The employee appeals the compensation judge’s denial of the medical expenses related to the ACL repair and subsequent therapy. The appellant asserts it was necessary to repair the ACL in order to cure the employee from the effects of the 2006 personal injury. This argument, the employee contends, is supported by the testimony of Dr. Holmberg and is not rebutted by the reports of Dr. Bert. Accordingly, the appellant contends the compensation judge’s denial of the claimed medical expenses is unsupported by substantial evidence.
The employer is required to furnish such medical treatment as may reasonably be required to cure and relieve the employee from the effects of the personal injury. Minn. Stat. § 176.135 subd. 1(a). The “primary purpose of medical care and treatment is to return the employee, as nearly as possible, to his or her pre-injury state of wellness.” Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 37, 46 W.C.D. 156, 159 (Minn.1992). In certain cases, diagnostic treatment or evaluation to rule out alternative diagnoses for an employee’s symptoms may be compensable even though the ultimate diagnosis is of a condition later determined to be not work-related. Sether v. Wherley Motors, Inc., slip op. (W.C.C.A. Dec. 30, 1999). Similarly, an employer may be liable for treatment of a non-work-related condition if such treatment is necessary to cure and relieve the employee from the effects of the work-related injury. In Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993), for example, the supreme court ordered the employer to pay for gastric bypass surgery to cure or relieve the employee from the effects of a right leg venous condition. Acknowledging the gastric bypass surgery addressed problems stemming from the employee’s non-work-related morbid obesity, the court stated there was medical evidence the recommendation for weight reduction was directed principally to, and was essential for, the improvement of the employee’s work injury. See also Williams v. Holiday Station Stores, slip op. (W.C.C.A. Mar 12, 1999). In Strand v. J & R Schugel Trucking, slip op. (W.C.C.A. Apr. 28, 1999), the employer was held liable for medical expenses incurred to treat an abscess at the site of a prior non-work-related hernia repair before surgery could be performed on a separate work-related hernia.
Dr. Bert stated the June 2006 personal injury was not a contributing factor to the employee’s need for ACL repair since the ACL tear pre-existed the work injury. In reliance upon the reports of Dr. Bert, the compensation judge found the evidence did not support the employee’s claim that the work injury was a substantial contributing cause of the employee’s need for to treatment of the torn ACL. The respondent argues the compensation judge’s selection of the opinion of Dr. Bert over that of Dr. Holmberg must be affirmed on appeal citing Nord v. City of Cook,, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). We disagree.
There is no dispute the 2006 work injury did not cause the employee’s pre-existing torn ACL. That, however, is not the issue. Rather, the issue is whether it was reasonable and necessary to treat the torn ACL in order to cure and relieve the employee from the effects of his 2006 work injury. While Dr. Bert denied the work injury caused the torn ACL, his medical reports do not directly address the issue in the case. Accordingly, we do not see this case as one involving a choice by the compensation judge between conflicting medical opinions.
Dr. Holmberg acknowledged the 2006 work injury did not worsen the torn ACL and stated he could have repaired the torn meniscus only. But, Dr. Holmberg emphasized that the laxity in the employee’s knee was much worse after the 2006 injury than it had been before. Had he repaired only the medial meniscus and not the torn ACL, Dr. Holmberg stated, the employee’s knee would have been much more unstable than it was before the injury and predisposed to further joint damage. Dr. Bert’s reports, notwithstanding, we find no evidence to the contrary. Rather, the preponderance of the evidence in the case supports a conclusion that it was necessary to treat the torn ACL in order to cure and relieve the employee from the effects of the personal injury. The compensation judge’s decision to the contrary is reversed, and the employer is ordered to pay the medical expenses for the treatment of the employee’s right knee condition.
2. Permanent Partial Disability - ACL Tear
Dr. Holmberg provided a 3% whole body disability rating for a meniscectomy that was paid by the insurer, and a 3% permanent disability rating for mild anterior cruciate ligament laxity. The compensation judge denied the claim for the ACL condition. The employee contends the permanency should have been awarded because, although the employee’s ACL was torn before the work injury, he had no restrictions or symptoms. Accordingly, the employee asserts apportionment under Minn Stat. § 176.101, subd. 4(a), is inappropriate. Since the work injury caused the need for the ACL repair, the employee contends he is entitled to the additional 3% disability for the ACL laxity. We disagree.
Were the permanency rating provided for repair of the ACL, the employee would be entitled to the additional rating. But Minn. Rule 5223.0510, subp. 3.D.(1)(a) rates permanent disability for ACL laxity. There is no dispute the employee’s ACL was torn prior to the work injury and the work injury did not worsen the condition of the ACL. That is, the work injury was not a substantial contributing cause of the ACL condition for which permanent disability is awarded under the rule. The compensation judge’s denial of the employee’s claimed permanent partial disability is, therefore, affirmed.
3. Temporary Partial Disability Benefits
The compensation judge found the work injury was not causally related to the need for treatment of the employee’s ACL condition. The judge found the normal healing period for the meniscus injury was three weeks from the date of the surgery and the employee’s disablement after that three-week period was due to his ACL condition. The judge, therefore, denied the employee’s temporary partial disability claim from November 16 through December 17, 2006. This court has held the treatment for the employee’s torn ACL was reasonable and necessary to cure and relieve the employee from the effects of the personal injury. Accordingly, the employee’s disablement resulting from the ACL repair was a direct consequence of the work injury. The compensation judge’s denial of the employee’s temporary partial disability claim is reversed.
 Bachman’s test is “an anterior drawer test for cases of severe knee injury performed at 20 degrees of flexion.” Dorland’s Illustrated Medical Dictionary,. 1807 (29th ed. 2000).
 At the hearing, the employee claimed temporary partial disability benefits from November 16 through December 17, 2006. We assume the employee was laid off by the employer effective November 15, 2006.
 Minn. Rule 5223.0510, subp. 3.B.(2).
 Minn. Rule 5223.0510, subp. 3.D.(1)(a).