THOMAS A. NERUD, Employee/Appellant, v. DUININCK BROS., INC., and GAB ROBBINS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 13, 2008
PERMANENT PARTIAL DISABILITY - BLADDER; PERMANENT PARTIAL DISABILITY - REPRODUCTIVE TRACT; RULES CONSTRUED - MINN. R. 5223.0600. Where the employee has demonstrated the requisite signs or symptoms of organic bladder disorder and penile dysfunction, and also has sustained a permanent partial disability related to his brain, which includes an element of an objectively measurable neurologic deficit, that deficit satisfies the requirement, in the permanency schedule related to bladder and sexual dysfunction, for an objectively demonstrated neurological lesion.
Determined by: Rykken, J., Wilson, J., and Stofferahn, J.
Compensation Judge: Paul D. Vallant
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
This case is before the court following an issuance of Findings and Order on Remand, and concerns an admitted injury that Thomas Nerud, the employee, sustained on October 8, 2001, while employed as a truck driver by Duininck Brothers, Inc.
Following a hearing held on this matter on April 12, 2006, Compensation Judge Paul Vallant issued findings on June 19, 2006, in which he awarded a portion of the employee=s claim for permanent partial disability benefits. On appeal from that initial findings and order, this court affirmed the compensation judge=s award of permanency benefits based on 20% whole body impairment relative to brain dysfunction and based on 2% whole body impairment relative to incomplete loss of vision. The court vacated the compensation judge=s denial of the employee=s claim for permanent partial disability related to organic bladder disorder or penile dysfunction, and remanded the case to the compensation judge for reconsideration. Nerud v. Duininck Brothers, Inc., No. WC06-199 (W.C.C.A. Jan. 11, 2007).
In its initial decision, this court determined that it was unclear from the judge=s findings and order if he had considered whether the employee=s brain injury, and his findings on MRI scans of his brain, constituted an objectively demonstrated neurological lesion necessary for an award of permanent partial disability benefits for organic bladder disorder and penile dysfunction. The court also determined that it was unclear from the findings and order whether the compensation judge considered the issue of whether the employee has organic dysfunction and an anatomic loss or alteration required by the permanent partial disability rules. The court therefore vacated the denial of permanent partial disability benefits related to organic bladder disorder and penile dysfunction and remanded the matter to the compensation judge for reconsideration.
Following his review of the matter on remand, and in a Findings and Order served and filed on September 17, 2007, Compensation Judge Paul Vallant again denied the employee=s claims for permanent partial disability, concluding that the employee did not have the objectively demonstrated neurological lesion required by the permanent partial disability schedule. The employee again appeals.
On October 8, 2001, at age 35, Mr. Nerud sustained multiple injuries when his truck collided with an oncoming train. The parties stipulated that the employee sustained injuries to his low back, right and left knees, head, eyes, right shoulder, and urinary tract, and that he later was diagnosed with depression as a result of his injuries. The parties have also stipulated that the employee has been permanently and totally disabled as a result of the truck-train collision; the employer and insurer have paid permanent total disability benefits since the date of the injury.
Following his injury, the employee received emergency medical treatment and was hospitalized for one week. He sustained a closed head injury as a result of the truck-train collision; he had, and continues to have, complete amnesia of the collision and the hours preceding the collision, and has experienced various cognitive limitations and emotional reactions since his collision. A CT scan performed during his hospitalization was interpreted as showing a subdural hematoma and brain contusion. He was discharged from the hospital with the diagnoses, among other conditions, of nonsurgical subdural hematoma and cerebral contusion.
The employee=s medical records in evidence outline his continued symptoms and ongoing neurological and neuropsychiatric evaluation and testing, and also outline his mood and emotional disturbances which he has experienced following his injury. Since his injury, the employee has reported continued headaches and significant difficulty with thinking and concentration, dizziness, bladder incontinence symptoms, erectile dysfunction, and low back pain, and has expressed frustration with his limitations resulting from his injury. He also has been treated for anxiety and depression.
Dr. Andrew Chang, neurologist, examined the employee on December 21, 2001, and concluded that the employee had sustained a traumatic brain injury (TBI) and recommended a formal TBI program and neuropsychiatric testing. Robert Karol, Ph.D., L.P., conducted a neuropsychological evaluation on March 2, 2002. At that time, the employee reported impaired concentration and short-term memory. Dr. Karol diagnosed the employee with cognitive disorder, based on the employee=s showing of subtle cognitive inefficiencies in his functioning and lowered fine motor dexterity, and recommended additional neurological and psychiatric assessment and treatment.
In February 2002, the employee also was treated by Dr. Sheila Gemar, urologist, for incontinence. Dr. Gemar concluded that this condition could be a Aresidual problem with his brain injury.@ Because his incontinence persisted, Dr. Gemar later recommended cystoscopy and placement of a urodynamic catheter. According to Dr. Gemar=s report following that procedure, the employee=s anterior and posterior sides of the urethra were normal, and Dr. Gemar found no lesions in the bladder itself.
On May 30, 2002, the employee participated in an intake evaluation with Dr. George Montgomery, at the Sister Kenny Institute. The employee reported depression and his attempted suicide by overdose earlier that month. At the time of Dr. Montgomery=s evaluation, however, the employee was in the care of a psychiatrist and was receiving medication for his mood disorder, and reported feeling much more optimistic. Dr. Montgomery diagnosed ALate Effects of Head Injury@ and AOrganic Brain Syndrome.@ He also commented that the employee=s residual brain dysfunction and psychological distress-intolerance resulted in errors with concentration, memory, and management, and that at the Institute the employee would be referred to occupational therapists for training in skills to compensate for such deficits.
Thereafter, the employee began treating with Dr. Jennine Speier, in the physical medicine and rehabilitation department of Sister Kenny Institute, as well as with other physicians and professional staff at the Institute. He underwent occupational therapy at the Institute and performed related tasks at home. Dr. Montgomery conducted a second neuropsychological evaluation on November 11, 2002, which showed improvement in the employee=s cognitive skills. He concluded that the employee demonstrated mild and inconsistent difficulties with concentration and learning efficiency, in addition to problems with conceptual thinking and organization, but that the employee Acan be encouraged by these results which indicate that he has recovered well from his brain injury and now exhibits only very mild impairment.@
In November 2002, the employee again consulted Dr. Gemar, reporting continued incontinence and erectile dysfunction symptoms. The employee also continued to consult Dr. Speier at Sister Kenny Institute. On April 29, 2003, Dr. Ronald Tarrel conducted a neurological examination of the employee at Dr. Speier=s referral. He concluded that the employee=s subdural hematoma, and resulting damage to portions of the employee=s brain, accounted for his present symptoms.
The employee underwent a re-evaluation and additional testing conducted by Dr. Montgomery. On March 31, 2004, Dr. Montgomery concluded that the employee=s test results gave an impression of mild residual brain dysfunction. He referred to the employee=s periodic testing, and concluded that the employee was:
permanently partially disabled by his brain injury, specifically in regards to slowed processing speed, verbal memory and higher level conceptual reasoning and organizing abilities. It is equally important to note that he is permanently disabled by an interplay of cognitive, physical, and emotional symptoms. That is, these three interact with any symptom within this complex able to evoke and exacerbate others. No symptom alone accounts for his disability as clearly as this interaction.
In a chart note of May 4, 2004, Dr. Gemar stated that she had felt the employee Ahad some erectile dysfunction and an ejaculation because of neurologic injuries,@ and that she had earlier referred the employee to an infertility specialist for some assistive reproductive techniques; the employee and his former wife followed through with that referral.
In reports dated May 17 and 20, 2004, Dr. Speier outlined her opinions concerning the level of permanent partial disability the employee had sustained as a result of his October 8, 2001, injury, assigning the following ratings:
(1) 80% rating under Minn. R. 5223.0360, subp. 7C(3) and 7D(3), based on disturbances in complex integrated cerebral function (40%) and mild emotional disturbances and personality changes (40%);
(2) 2% rating under Minn. R. 5223.0330, subp. 3D(2), for incomplete loss of vision with loss of adaptation to light and dark;
(3) 20% rating for organic bladder disorder under Minn. R. 5223.0600, subp. 3C;
(4) 10% rating for penile dysfunction under Minn. R. 5223.0600, subp. 6B; and
(5) 7% rating relative to his low back condition under Minn. R. 5223.0390, subp. 3C(1).
(Ee Exh. E(1)).
On January 7, 2005, the employee filed a claim petition for permanent partial disability benefits under various parts of Minnesota Rules, seeking a combined 79.9% permanent partial disability of the whole body.
In December 2005, Dr. James Meyer, a urologist who conducted a review of the employee=s medical records at the employer and insurer=s request, concluded that the employee=s closed head injury may have been a contributing factor to the employee=s urinary urgency and dribbling. Dr. Meyer concluded that even though the employee had signs or symptoms of organic bladder disorder and erectile dysfunction, he believed that the employee=s subdural hematoma had resolved and therefore did not represent an Aobjectively demonstrated neurological lesion@ required by the permanency schedule nor did the hematoma cause the employee=s incontinence or erectile dysfunction. Dr. Meyer also concluded that the employee=s erectile dysfunction was far more likely related to his history of smoking, the side effects of his medications, or his conditions of depression and anxiety. Dr. Meyer therefore assigned no permanent partial disability rating relative to that condition.
A hearing was held before a compensation judge on April 12, 2006, to address the employee=s claim for permanent partial disability benefits. At the hearing, the employer and insurer conceded that the employee was entitled to permanency benefits based on his right knee condition, but denied liability for the employee=s remaining claims. In his findings and order served and filed on June 19, 2006, the compensation judge found that the employee was entitled to:
(1) 20% permanent partial disability under Minn. R. 5223.0360, subp. 3D(2), for brain dysfunction with emotional disturbances and personality changes;
(2) 2% permanent partial disability for incomplete loss of vision under Minn. R. 5223.0330, subp. 3D(2); and
(3) 7% permanent partial disability relative to his low back condition, under Minn. R. 5223.0390, subp. 3C(1).
The judge concluded that the employee was not entitled to a permanent partial disability for brain dysfunction for disturbances of complex integrated cerebral function nor was he entitled to permanent partial disability rating for organic bladder disorder or penile dysfunction.
On remand, the compensation judge allowed the parties to submit additional evidence into the record, to supplement the records from the initial hearing. That evidence included the transcript from a deposition of Dr. Ronald Tarrel, conducted on June 22, 2007, and a supplemental report issued by Dr. James Meyer on July 9, 2007. Following his review on remand, the compensation judge found that the employee did not satisfy all the requirements of the permanency schedule. He concluded that the employee has signs or symptoms of organic bladder disorder and has an objectively demonstrated organic penile dysfunction. However, he found that the employee does not have anatomic loss or alteration in either area nor does he presently have an objectively demonstrated neurological lesion. The compensation judge explained the basis for his conclusions as follows:
The Compensation Judge accepts the testimony of Dr. Tarrel that the employee=s subdural hematoma constitutes a neurological lesion that is known to interfere with bladder and penile function. However, all of the most recent objective tests, including an EEG, MRI, neurological examination, and neuropsychometric testing, fail to show an objectively demonstrated neurological lesion. Dr. Tarrel contends that the employee=s subdural hematoma, while resolved, continues to cause dysfunction resulting in a Afunctional lesion.@ However, Dr. Tarrel was unable to identify an objective test that demonstrates such a lesion at the present time. As the Compensation Judge finds by a preponderance of the evidence that the employee does not presently have an objectively demonstrated neurological lesion, the employee does not qualify for permanent partial disability benefits pursuant to Minn. Rule 5223.0600, subp. 3 or subp. 6.
The employee again appeals the denial of permanent partial disability.
To be entitled to permanent partial disability under the permanency schedule, the employee must prove each element of the assigned rating. Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987) (citing Davies v. Marriott‑Host Int'l, 39 W.C.D. 631, 633 (W.C.C.A. 1987)). The claims for benefits based on the employee=s organic bladder disorder and penile dysfunction present very similar issues and arguments. In order to qualify for a permanency rating for both conditions, an employee must show either an organic dysfunction and an anatomic loss or alteration, or an objectively demonstrated neurological lesion known to interfere with bladder dysfunction and penile function. The employee argues that the compensation judge erred by concluding that the employee presently does not satisfy the requirements set forth in Minn. Rule 5223.0600, subp. 3.C or subp. 6.B, which require, as follows:
Subp. 3. Bladder.
C. Class 3, 20 percent. Signs or symptoms of organic bladder disorder are present and there is anatomic loss or alteration, or there is an objectively demonstrated neurological lesion known to interfere with bladder function, and there is intermittent incontinence.
Subp. 6. Penis.
B. Class 1, ten percent. There is an objectively demonstrated organic dysfunction and there is anatomic loss or alteration, or there is an objectively demonstrated neurological lesion known to interfere with penile function, and sexual function is possible but there is difficulty with erection, ejaculation, or sensation.
The compensation judge concluded that the employee=s condition satisfies the portions of the permanency schedule that require Asigns or symptoms of organic bladder disorder@ and Aobjectively demonstrated organic penile dysfunction.@ He found that the employee sustained a subdural hematoma as a result of his traumatic brain injury, and that he has complained of urinary urgency and post-void dribbling, as well as erectile dysfunction and inability to achieve sexual function without the assistance of medications since his work injury. See Findings Nos. 1-5.
The judge also accepted Dr. Tarrel=s opinion that Athe employee=s subdural hematoma constitutes a neurological lesion that is known to interfere with bladder and penile function.@ (Memo., p. 3.) The judge, however, concluded that the employee does not, presently, have an Aobjectively demonstrated neurological lesion@ required for the claimed permanency ratings.
The crux of the issue on appeal, therefore, rests in the dispute over whether the employee has an Aobjectively demonstrated@ neurological lesion, as required for the claimed permanency ratings. The record contains conflicting medical opinions on that issue. Dr. Speier, the physiatrist who treated the employee since 2002, concluded that the employee=s brain injury constituted a neurological lesion affecting his function. She assigned a rating of 20% whole body impairment for organic bladder disorder, and a rating of 10% whole body impairment for penile dysfunction. Referring to the requirements of the permanency schedules for bladder dysfunction, Dr. Speier explained that the employee=s organic bladder disorder was demonstrated by his dribbling, and that his brain injury represented an objective neurological lesion. Concerning the requirements for permanent partial disability relative to penile dysfunction, Dr. Speier referred to the employee=s erectile dysfunction and inability to ejaculate, and to the employee and his wife=s inability to conceive without artificial insemination. Dr. Speier also explained that the employee=s brain injury, and possibly his low back injury, represented a neurological lesion as specified in the permanency rules.
Dr. Tarrel also concluded that the employee=s brain injury and condition resulted in a lesion, and that this lesion satisfied the requirements of the pertinent permanency schedule. At his deposition, Dr. Tarrel explained that a neurological lesion could be either structural, that is, visible and readily identified by diagnostic testing, such as a tumor or area of bruising and inflammation from trauma, or functional, such as abnormal functioning, without an anatomically different appearance. Dr. Tarrel further explained that neuropsychological testing can establish the existence of a neurological lesion that is not otherwise anatomically observable. In Dr. Tarrel=s opinion, the blood that had accumulated in connection with the employee=s injury-related subdural hematoma eventually resolved, but that the portion of the employee=s brain near that hematoma had been damaged, and it is that damage which now accounts for the employee=s persistent symptoms. Dr. Tarrel admitted that the Avisible structural lesion@ had resolved but also explained that Athe word >lesion= . . .can also imply an area of the brain that doesn=t function as it used to.@ He explained that a functional lesion
doesn=t have to be a space-occupying lesion in the brain, but, in fact, can be a functional alteration, or a change in function in an area of the brain that controls, in this case, bladder dysfunction and maybe erectile dysfunction as well. And it is that idea of functional lesion, or dysfunction related to an area of the brain that I think affects [the employee].
By contrast, Dr. Meyer concluded that the employee had no objectively demonstrated neurological lesion that interfered with his bladder or erectile function, because the subdural hematoma had eventually resolved or healed following the employee=s injury.
We acknowledge that it is the role of the compensation judge to consider the competing medical opinions and that his decision in that regard will not be reversed so long as the accepted opinion has adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003). Resolution of the issue at hand, however, required the compensation judge to address both the conflicting medical opinions and also the extent of the interrelationship between the employee=s permanent brain disability and his persistent symptoms of bladder and erectile dysfunction. Integral elements of the employee=s permanency rating related to his brain injury include present or persistent signs or symptoms of organic brain dysfunction due to illness or injury, with anatomic loss or alteration, or Aobjectively measurable neurologic deficit.@ See Minn. R. 5223.0360, subp. 7C(3). The compensation judge addressed the required elements of the claimed permanency ratings, but did not address whether the employee=s permanent brain injury and his objectively measurable neurologic deficit related to his brain injury could be considered an objectively demonstrated neurological lesion required for a permanency rating related to bladder and penile dysfunction.
The employee argues that the ultimate conclusion by the compensation judge, that the employee does not have an objectively demonstrated neurological lesion, is inconsistent with his reliance on Dr. Tarrel=s opinion that the employee=s subdural hematoma constitutes a neurological lesion that is known to interfere with bladder and penile function. We agree. It appears that although the compensation judge accepted Dr. Tarrel=s opinion, he concluded that the lesion was not Aobjectively demonstrated@ and therefore did not satisfy the requisite element of the permanency schedules that are at issue on appeal. This conclusion, that the employee did not qualify for the claimed permanency ratings Ain the absence of an objectively demonstrated neurological lesion@ is inconsistent with the nature of, and the related role of, the employee=s brain injury and his findings on CT scan. The employee sustained an admitted brain injury, his radiographic testing showed a subdural hematoma and brain contusion, and we earlier affirmed the compensation judge=s award of permanent partial disability relative to the brain injury. An element of that permanency rating includes an Aobjectively measurable neurologic deficit,@ an element that cannot be disregarded. Because of the relationship between the employee=s brain injury and his organic bladder disorder and penile dysfunction (as described by Dr. Tarrel, and whose opinion concerning the neurological lesion the compensation judge accepted), we conclude that the employee satisfied the required elements of the permanency schedule related to bladder disorder and penile dysfunction. We therefore reverse the compensation judge=s denial of the employee=s claim for permanent partial disability benefits as provided for in Minn. R. 5223.0600, subp. 3 and subp. 6.
DEBRA A. WILSON, Judge
As acknowledged by the majority, the definitive issue in this case is whether the employee has an Aobjectively demonstrated neurological lesion@ as contemplated by Minn. R. 5223.0600, subps. 3C and 6B. It appears to be essentially undisputed that the employee=s subdural hematoma itself - - which clearly did constitute an objectively demonstrated neurological lesion - - has resolved.
The compensation judge concluded that the employee Adoes not presently have an objectively demonstrated neurological lesion,@ explaining in his memorandum as follows:
The Compensation Judge accepts the testimony of Dr. Tarrel that the employee=s subdural hematoma constitutes a neurological lesion that is known to interfere with bladder and penile function. However, all of the most recent objective tests, including an EEG, MRI, neurological examination, and neuropsychometric testing, fail to show an objectively demonstrated neurological lesion. Dr. Tarrel contends that the employee=s subdural hematoma, while resolved, continues to cause dysfunction resulting in a Afunctional lesion.@ However, Dr. Tarrel was unable to identify an objective test that demonstrates such a lesion at the present time. Instead, Dr. Tarrel referred to the chronology of the employee=s symptoms, which is not an objective test. As the Compensation Judge finds by a preponderance of the evidence that the employee does not presently have an objectively demonstrated neurological lesion, the employee does not qualify for permanent partial disability benefits pursuant to Minn. Rule 5223.0600, subp. 3 or subp. 6.
The judge also noted, in his findings, that Dr. Walk had identified Ano objective medical findings on examination to substantiate the employee=s subjective complaint@ and that Dr. Beniak had indicated that the Athe employee=s current subjective cognitive complaints were not substantiated by objective neuropsychological test outcomes.@
The employee has the burden to show that all of the elements of applicable rating categories have been satisfied. The fact that he at one point had an Aobjectively demonstrated neurological lesion@ is not determinative for purposes of establishing entitlement to permanent partial disability benefits under the rules. Cf. Grashorn v. Boise Cascade Corp., slip op. (W.C.C.A. Mar. 6, 2002) (the compensation judge erred in awarding benefits for loss of range of motion where that loss had been completely alleviated by surgery prior to hearing). Because a finding of permanent partial disability is one of ultimate fact, Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987), and because the judge=s decision is not clearly erroneous or unsupported by substantial evidence, I would affirm.
 A hematoma is defined as a localized collection of blood, usually clotted, in an organ, space, or tissue, due to a break in the wall of a blood vessel. Dorland=s Illustrated Medical Dictionary, 796-97 (29th ed. 2000). A subdural hematoma is located between the dura mater, the outermost membrane covering the brain and spinal cord, and the brain itself. Id. at 550.
 References throughout this decision to permanency ratings refer to percentage ratings based on permanent partial disability of the body as a whole. For brevity, in most instances we have listed only the numerical ratings.