NELSON ZACARIAS, Employee, v. NUAIRE, INC., and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer/Appellants, and NORAN NEUROLOGICAL CLINIC, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 6, 2008
CAUSATION - SUBSTANTIAL EVIDENCE; PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the determination of the compensation judge that the employee was entitled to an award of permanent partial disability as a result of his March 2006 work injury.
APPORTIONMENT - PERMANENT PARTIAL DISABILITY. The compensation judge=s denial of apportionment in the award of permanent partial disability is supported by substantial evidence where there was no evidence of a ratable permanent partial disability in the pre-existing medical records.
Determined by: Stofferahn, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Danny P. Kelly
Attorneys: Bernard J. Robichaud, Robichaud & Anderson, Minneapolis, MN, for the Respondent. Gregg A. Johnson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The compensation judge determined that the employee was entitled to an award of permanent partial disability benefits as the result of his work injury on March 15, 2006. The employer and insurer have appealed. We affirm.
Nelson Zacarias, the employee, began working for the employer, Nuaire, Inc., in January 1997. Nuaire is a manufacturer of biological laboratory equipment for hospitals and the employee=s initial job was in packaging. The employee was born in Guatemala in November 1974 and came to Minnesota approximately in 1996. The employee=s ability to speak and understand English is limited. He testified at the hearing that he understood about 30% of the English he heard. In 2002, the employee became an assembler for Nuaire.
The employee was the victim of a personal assault not related to his employment on April 14, 2004. He was struck in the head and was taken to the Emergency Department at North Memorial Hospital, where he was hospitalized for almost a month. A CT scan of the brain done at admission was read as showing a 1.3 cm by 2.7 cm right basal ganglia hematoma. The employee was noted as being, Aclinically stable with ongoing dense hemiparesis/paralysis.@ A CT scan of the brain on April 16 indicated an increase in the right basal ganglia hemorrhage. A CT scan on April 22 showed no further changes. The employee was discharged to inpatient therapy on April 20. At that time, the employee was still unable to move his left arm and leg voluntarily.
The employee was discharged from inpatient therapy on May 14 and transferred to outpatient therapy under the direction of Dr. Charles Horowitz. In his report of June 17, 2004, Dr. Horowitz noted that the employee Acontinues to have weakness in the left arm and continues to have a spastic hemiparetic gait.@ Dr. Horowitz recommended continued therapy and stated, Ahe certainly has evidence of spasticity and hemiparetic dysfunction which may remain as a residual and permanent dysfunction.@ The employee was last seen for therapy on August 11, 2004. The records from that date note that the employee=s difficulties at that time were finger dexterity and use of the arm being affected by fatigue.
The employee returned to work at Nuaire in August 2004. Initially, he worked on a reduced schedule, but subsequently returned to his full duties. In February 2005, the employee transferred back to the packaging department and he worked there full-time and without restrictions until his work injury on March 15, 2006.
There was conflicting evidence at the hearing about the employee=s ability to function during this time. Three supervisors testified that the employee seemed to be slow in his movements and that he seemed to have an altered gait. The employee stated that, although he was never the same after the 2004 assault, he had made a good recovery and that he was able to work without restrictions and able to do his usual non-work activities, including taking care of his young daughter as a single parent. The employee also noted he had no medical care for his head injury from the time he returned to work until his work injury in 2006.
The employee was at work on March 15, 2006, when he fell from a three foot ladder. He fell on his left side and struck his head on a pallet. The employee was seen the same day by Dr. Ronald Ercolani, an occupational health practitioner with Allina. The employee complained of pain in his left shoulder, left chest wall, left hip and left knee. Dr. Ercolani also found slight tenderness on the left side of the head on exam. His assessment was multiple muscle strain. The employee was taken off work for the balance of the day and was given anti-inflammatory medication.
On March 16, the employee returned to Dr. Ercolani who reported no improvement in the employee=s condition. At the March 20 appointment, Dr. Ercolani=s history was that the employee did not appear to be in any acute pain and he concluded the employee=s condition appeared to be improving. The employee testified at the hearing that on March 20, he was not doing better and was still Afeeling bad.@ He also expressed difficulty in being able to communicate with Dr. Ercolani. When the employee returned to Dr. Ercolani on April 10, he was accompanied by a co-worker who translated for him. Dr. Ercolani=s history indicates the employee continued to complain of weakness in his left arm and left leg with tenderness on the left side of his head. A CT scan was done on April 10, which was read as showing Aencephalomalacia in the right basal ganglia.@ Given the employee=s continued complaints, Dr. Ercolani recommended a neurological consultation.
The employee saw Dr. Steven Lebow at the Noran Neurological Clinic on May 19, 2006. Dr. Lebow, after reviewing the employee=s history, stated Alooking at the CT, my guess is that this gentleman had a well compensated for, previous right hemispheral injury that has decompensated secondary to closed head injury with maybe some additional shearing, but without any additional evidence of gross bleeding or trauma.@ After reviewing the CT scans and MRI results from 2004 and 2006, Dr. Lebow told Dr. Ercolani in a fax dated May 26, 2006, that Ahe has an area of damage that I think he aggravated.@
After the 2004 records were reviewed, the employee was given a prescription for physical therapy and for Tizanidine, a medication aimed at helping the spasticity the employee noted in his left leg. In a letter to Dr. Ercolani on June 27, 2006, Dr. Lebow=s history was that the employee=s arm and leg strength was still substantially worse than it had been at the end of his 2004 treatment. It was noted that the employee was using a cane. Dr. Lebow continued work restrictions and approved the cane use.
In response to an inquiry from the claims adjuster, Dr. Lebow stated in a letter of July 5, that the employee=s Acurrent symptoms relate to his March 15, 2006 injury. It appears that his prior 2004 injury had left him with very little, if any, residua and he had been actively working without any gross hemiparesis.@
When the employee returned to Dr. Lebow on August 8, 2006, Dr. Lebow noted the employee was done with physical therapy, was walking with a cane and Asort of hit a plateau.@ Dr. Lebow continued the employee=s medication and the employee=s work restrictions of no overtime and one or two hours a day off his feet. Dr. Lebow indicated his concern that the employee would be left with a paresis. The employee was told to return in three months.
The employee was evaluated on behalf of the employer and insurer by Dr. Richard Galbraith on September 11, 2006. Dr. Galbraith=s conclusion was that the employee had sustained a mild sprain to his left shoulder, neck, low back and knee from which he had completely recovered. Dr. Galbraith did not believe the employee had any left arm or leg weakness and that any perceived difficulties relating to the left arm or leg were the result of the 2004 assault.
The employee returned to Dr. Lebow on November 9, 2006. In his letter to Dr. Ercolani on that date, Dr. Lebow referred to the question of the origin of the employee=s present problems and restated his opinion that the March 2006 work injury was the cause of the employee=s current symptoms. On the question of the nature of the employee=s symptoms, Dr. Lebow stated, Ahe clearly has a spastic left hemiparesis, left toe sign, drift, upper motor neuron-type paresis, leg greater than arm, walks with a cane. His left leg is circumductive and inverted. How anyone can say he does not have a hemiparesis is totally beyond me.@ A final follow up appointment was set for March 2007.
At that appointment, Dr. Lebow stated the employee had Aplateaued with residual spastic left hemiparesis.@ Dr. Lebow concluded that the employee was at MMI and that the work restrictions previously set were permanent. Dr. Lebow gave the employee home exercises and switched his medication for headaches and shoulder pain to Feldene from Celebrex. In a letter to the employee=s attorney on September 25, 2007, Dr. Lebow rated the employee=s permanent partial disability under Minn. Rule 5223.0360, subp 7.E. and gave the employee a rating of 10% for the upper extremity and 40% for the lower extremity.
The employee=s claim petition for permanent partial disability was heard by compensation judge Danny Kelly on October 23, 2007, and December 3, 2007.
Because Dr. Lebow=s report on permanent partial disability was generated shortly before the hearing date, the employer and insurer were allowed to obtain an additional report from Dr. Galbraith. Dr. Galbraith stated that any permanent partial disability would be the result of the 2004 injury and, using the same schedule relied upon by Dr. Lebow, rated the employee as having a 10% disability of the upper extremity and 10% for the lower extremity.
In his Findings and Order of February 1, 2008, the compensation judge accepted the opinions of Dr. Lebow as to causation and the extent of permanent partial disability and awarded benefits to the employee. The employer and insurer appeal.
The employer and insurer raise a number of issues on appeal in support of their position that the compensation judge erred in his award of benefits to the employee.
The first issue raised is whether Dr. Lebow had adequate foundation for his opinion that the employee=s 2004 injury was aggravated by the 2006 injury and that the 2006 injury was the cause of the employee=s disability. The employer and insurer assert that Dr. Lebow had inadequate information about the 2004 injury, that he did not fully consider the question of causation, and that Dr. Lebow=s assumption as to the employee=s recovery from the 2004 injury was incorrect. We disagree.
First, it is clear from his records, that Dr. Lebow obtained and reviewed the medical records from North Memorial and he was fully appraised of the employee=s earlier medical condition. Second, the question of the role of the 2004 injury was closely considered by Dr. Lebow. As he stated in his November 9, 2006, letter to Dr. Ercolani, AI keep getting missives from physicians working for the carrier, concerned that this is not related to his current injury or relates to his prior injury. Again, every time I go through this with the patient, with the interpreter present, he states that prior to the March injury, he had totally recovered from the previous injury. He was not using a cane. He had no weakness down his left side, was walking without assistance, and was working without restrictions.@
The employer and insurer respond that these statements are incorrect and that the employee testified he did not totally recover from his 2004 injury. This is a mischaracterization of the employee=s testimony. The employee stated he gave up soccer because of concerns of re-injury and not because he was unable to play. He testified that he needed to do things cautiously, but he also stated that he did his Anormal everyday activities, like working, take care of my daughter, play with her.@
The employer and insurer also presented the testimony of three supervisors who testified that between 2004 and 2006 the employee seemed to work Aslower@ and that on some unspecified occasions the employee appeared to limp. It is uncontroverted, however, that at the time of the 2006 injury, the employee was working without restrictions and since the 2006 injury, the employee has had work restrictions.
We conclude Dr. Lebow=s opinion had adequate foundation. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978); Wacek v. Hy-Vee Food Stores, No. WC05-275 (W.C.C.A. June 5, 2006).
The employer and insurer also argue that the compensation judge erred in determining that the employee was entitled to 10% permanent partial disability for his arm dysfunction and 40% permanent partial disability for his leg dysfunction. Their position is that the evidence does not support those ratings, which were made by Dr. Lebow.
Dr. Lebow rated the employee=s left arm disability under Minn. R. 5223.0360, subp. 7.E.(1)(b), which is the only section in the rules for rating ataxia or spasticity in the upper extremity due to brain dysfunction. The employee=s continued left arm spasticity since his 2006 work injury is well documented in the medical records. In his letter to Dr. Ercolani on September 25, 2007, Dr. Lebow noted in his exam of the employee the Aparetic weakness of his left upper and lower extremity.@ The employee=s left arm spasticity has clearly resulted in a loss of function to the employee. Dr. Lebow rated the employee=s impairment at the lowest rating in the rule, 10%. The rule refers to a nine-hole peg test as a means of measuring the extent of impairment and we find no peg test results after the 2006 injury in the record. We conclude, however, given the facts in this case and the clear evidence of impairment, that Dr. Lebow=s rating of permanent partial disability to the left arm is well supported by substantial evidence.
The compensation judge also accepted the opinion of Dr. Lebow as to permanent partial disability for the left leg impairment, 40% pursuant to Minn. R. 5223.0360, subp. 7.E.(3). The section provides for 40% disability in the case of ataxia in the lower extremity from brain dysfunction where the employee is unable to walk on level ground without adaptive equipment for ambulation. Minn. Rule 5223.0310, subp. 6, includes a cane within the meaning of adaptive equipment and Dr. Lebow stated that the employee needed to use the cane for ambulation, especially over long distances, because of his spastic hemiparesis. The employer and insurer argue that the evidence does not show that the employee was Aunable@ to walk without the use of a cane. We conclude Dr. Lebow=s opinion, that the use of a cane was necessary, satisfies the requirements of the rule.
Finally, the employer and insurer argue that the compensation judge erred in failing to apportion some amount of permanent partial disability to the 2004 injury under Minn. Stat. ' 176.101, subd. 4a. They contend that the compensation judge must have concluded that the employee had no residuals from the 2004 injury. We believe this argument misstates the compensation judge=s determination on this issue.
Apportionment for pre-existing disability under Minn. Stat. ' 176.101, subd. 4a, is available if the pre-existing disability is clearly evidenced in a medical record or report and is ratable under the rules. Rodas v. By Bread Alone, Inc., No. WC04-313 (W.C.C.A. May 23, 2005). There is no question that the 2004 injury was extremely serious. The fact remains, however, there is no evidence in the pre-existing medical records which would support a rating of permanent partial disability. Dr. Horowitz in his June 17, 2004, letter said that the employee had Adysfunction which may remain as a residual and permanent dysfunction.@ (Emphasis added.) While there are some records from 2004 which might suggest impairment, there is no indication in those records that the impairment was permanent. Indeed medical records from the employee=s therapy after his last visit with Dr. Horowitz indicate the employee was continuing to improve and further improvement was anticipated in the last therapy report of August 11, 2004. There are no records of medical treatment between August 11, 2004, and March 15, 2006. In short, there are no medical records showing that the employee had a ratable permanent partial disability from his 2004 injury at the time he was hurt at work in 2006.
We conclude the employer and insurer failed in its burden in establishing apportionment under the statute. Hayden v. Scott County, No. WC04-340 (W.C.C.A. Aug. 2, 2005).
The decision of the compensation judge is affirmed.