MATTHEW OLSON, Employee, v. SKY HIGH CRANE RENTAL, INC., UNINSURED, Employer/Appellant, and SPECIAL COMP. FUND.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 1, 2009
PERMANENT PARTIAL DISABILITY - SKIN; RULES CONSTRUED - MINN. R. 5223.0630, SUBP. 2(C). Where the employee's treating orthopedic surgeon's testimony amply supported the employee's own testimony that his daily application of lotion to and wrapping of his work-injury-related skin grafts was in direct compliance with his doctor's orders, such self-treatment satisfied the "intermittent treatment" requirement of Minn. R. 5223.0630, subp. 2(C), and the compensation judge's award of compensation for an additional 10% whole-body impairment related to a skin disorder at the site of injury pursuant to Minn. R. 5223.0630, subp.t 2(C), was not clearly erroneous and unsupported by substantial evidence.
PERMANENT PARTIAL DISABILITY - KNEE AND LOWER LEG; RULES CONSTRUED - MINN. R. 5223.0510, SUBP. 3(F)(2). Where the employee's treating orthopedic surgeon testified that his finding of an eleven-degree valgus angulation through the site of the employee's fractured lower leg was based on "a very accurate x-ray measuring device on the computer," the compensation judge's award of compensation for an additional 2% whole-body impairment related to a valgus deformity pursuant to Minn. R. 5223.0510, subp. 3(F)(2), was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Gary L. Manka, Katz, Manka, Teplinsky, Graves & Sobol, Minneapolis, MN, for the Respondent. Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, St. Paul, MN, for the Appellant. Thaddeus V. Jude, St. Paul, MN, for the Special Compensation Fund.
WILLIAM R. PEDERSON, Judge
The uninsured employer appeals from the compensation judge's awards of additional permanent partial disability benefits. We affirm.
On January 21, 2005, Matthew Olson sustained fractures to his left tibia and fibula when he was thrown to the ground by a co-worker in the course of his employment as a laborer with Sky High Crane Rental, Inc. Mr. Olson [the employee] was twenty-two years old on that date and was earning a weekly wage of $742.80. Following his injury, the employee was taken first to Elk River Emergency room and then to Hennepin County Medical Center, where orthopedic surgeon Dr. Michael Wengler diagnosed compartment syndrome in addition to closed fractures of both bones. On those diagnoses, Dr. Wengler performed an open reduction and internal fixation of the fractures with an intramedulary rod and screws, extending from just below the knee to the ankle. The surgery also included fasciotomies with skin grafts to relieve the compartment syndrome. Sky High Crane Rental, Inc. [the employer], which was uninsured on the date of the injury, acknowledged liability for the injury and commenced payment of benefits.
The employee's injury evidently healed well, and on October 25, 2005, he was released by his doctor to return to work without written restrictions. He returned to a job doing cement work with Hart Foundation, and on February 27, 2006, he filed a claim petition alleging entitlement to various benefits related to his work injury of January 21, 2005.
On March 1, 2006, the employee returned to see Dr. Wengler, indicating to him that he continued to have some vague pain in his left lower extremity but that he was tolerating it without medication and that it did not specifically restrict him. Upon examination, Dr. Wengler found the knee to reveal a five degree flexion contracture and the ankle to be restricted beyond twenty degrees. He noted that x-rays had revealed the fracture to be healed but "angulated with a valgus angulation and shortened by 2 or more cm." The doctor noted also that "[t]he split thickness skin graft site is somewhat hard and non-supple." On those findings, Dr. Wengler rated the employee's total permanent partial disability at 20% of the whole body - - including 2% for an 11- to 20-degree posttraumatic valgus deformity pursuant to Minnesota Rules 5223.0510, subpart 3F(2); 3% for a 1- to 1.9-centimeter leg length discrepancy pursuant to Minnesota Rules 5223.0500, subpart 3A(2); 5% for open reduction of a tibial shaft fracture pursuant to Minnesota Rules 5223.0170, subpart 6B; and 10% for a skin disorder pursuant to Minnesota Rules 5223.0630, subpart 2C. Noting that the employee "has learned to live within the limits of his impairment," and evidently issuing no new restrictions, Dr. Wengler concluded that the employee's injury was at maximum medical improvement, anticipating that the employee "will return to see me on an as-needed basis."
On November 29, 2006, Dr. Wengler testified by deposition, in part that the hazard in doing the sort of "split-thickness" skin graft that he had performed on the employee's injured leg was that "we have to give up something to get something. . . So we split the skin in the thigh, meaning that we shave it off half thickness so we can give half thickness to the area that needs it." With regard to current restrictions, Dr. Wengler testified in part regarding the employee's knee that "[a]t this time I think it's fairly obvious that he's not going to be able to do any job that's going to require him to do deep knee bending or kneeling, and that's a function of the rod being placed through the knee." With regard to the employee's skin graft, Dr. Wengler went on, "Both the donor site and particularly the recipient site is going to be very sensitive, both because of nerves, but, really, from my concern, more for sunburn and . . . an increased risk of skin cancer." Even bumping the graft can be problematic, the doctor explained, "[b]ecause of exposed nerve endings." "[T]he split thickness skin graft would be in essence like having cel[l]ophane over it. There's no subcutaneous fat, there's no fascia, it's just layers of skin cells on top of muscle and nerves, exposed nerves in the area." The doctor testified further that one of the employee's legs was about a centimeter shorter than the other, which qualified for a 3% whole-body disability rating under Minnesota Rules 5223.0500, subpart 3A(2). He testified also that he had measured the employee's valgus angulation using "a very accurate x-ray measuring device on the computer and we have 11 degrees of valgus angulation through the fracture," which he indicated warranted a 2% rating under Minnesota Rules 5223.0510, subpart 3F(2).
With regard to the employee's skin disorder, Dr. Wengler went on to testify that he had found the employee to have limitation in performance of some activities of daily living, specifically those involving going outside in the sun, and that on those conclusions he had rated the employee's permanent partial disability related to his skin disorder at 10% of the whole body, pursuant to Minnesota Rules 5223.0630, subpart 2C. On cross-examination, the doctor acknowledged that he did not recall the employee, at his March 1, 2006, appointment, either seeking work restrictions or suggesting that his injury was keeping him from properly performing his job. Further, he acknowledged also that he did not at that time issue any written restrictions, but he testified on redirect examination that he "absolutely" did go through in conversation with the employee all of the activities that he should avoid with respect to his work injury. "I didn't document permanent restrictions for the [employee]. That's for the employer. And so if [the employee] needs it for the employer, then I'm happy to do it for him."
The matter first came on for hearing before a compensation judge on December 5, 2006, on various issues excluding permanent partial disability. By findings and order filed February 7, 2007, the compensation judge denied certain temporary benefits and awarded payment of certain others. On March 26, 2007, the employee filed another claim petition, alleging entitlement to various other benefits consequent to his January 21, 2005, work injury.
On May 22, 2007, the employee was examined for the employer by orthopedist Dr. Nolan Segal. In his report on May 25, 2007, Dr. Segal concluded that the employee had healed "uneventfully," and he did not recommend any work restrictions. Dr. Segal did not find a valgus deformity at greater than 10 degrees, and, concluding that the employee's skin grafts and surgical scars did not limit the employee's activity or function, he did not rate any permanent partial disability for a skin disorder, noting also that Dr. Wengler's 5% rating for a tibial shaft fracture was based on a rule not applicable after 1993. Dr. Segal did agree, however, with Dr. Wengler's finding of a one-centimeter leg length discrepancy. Based on that discrepancy, Dr. Segal rated the employee's whole-body permanent partial disability at 3%, pursuant to Minnesota Rules 5223.0500, subpart 3(A)2, and the employer has paid the employee compensation for that disability.
The matter came on for hearing for a second time on July 23, 2008, on various additional issues excluding remaining permanent partial disability issues. The remaining permanency issues were scheduled to be heard at a later date, and the parties agreed to attempt settlement of the other issues before that date. Settlement was provisionally reached on those other issues, and the matter came up for hearing for a third time on the permanency issues on August 25, 2008. Specifically at issue at the hearing was whether the employee was entitled to an additional 2% permanent partial disability benefit related to a posttraumatic valgus deformity in his work-injured left knee and lower leg and whether he was entitled to an additional 10% permanent partial disability benefit related to a skin disorder at the site of skin grafts over the site of his injury. At the hearing, the employee testified in part that, pursuant to the instructions of Dr. Wengler, he applies Lubriderm lotion two or three times each day to the area of the skin graft on his injured left leg and always keeps the leg wrapped in an elastic bandage to protect it from bumps and sun exposure. He testified also that he never wears shorts or otherwise exposes the leg at all to the sun. Under cross-examination, he acknowledged that he has worked for three different employers since his return to work without restrictions in October of 2005 and that over the course of that employment he has missed no time from work due to his work injury. By findings and order filed November 5, 2008, the compensation judge concluded, based primarily on the opinions of Dr. Wengler, that the employee was entitled to the additional permanency benefits as claimed. The uninsured employer appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 176.421, subd. 1. Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Id.
1. Ten Percent Disability Related to a Skin Disorder under Minnesota Rules 5223.0630
Minnesota Rules 5223.0630, subpart 2(C), provides for compensation for a 10% whole-body disability where "[s]igns or symptoms of skin disorder are present, and intermittent treatment is required, and there is limitation in the performance of some of the activities of daily living." The employee testified that, pursuant to his doctor's instructions, he needs to apply lotion to his work-injured leg two or three times a day to keep the grafted skin supple and that he must keep the leg wrapped in an elastic bandage to protect it from bumps and sunlight. The compensation judge concluded that this self care by the employee satisfied the "intermittent treatment" requirement of the rule at issue. The employer contends that the phrase "intermittent treatment" should be read to imply professional medical treatment. It argues that, since his release to work without restrictions in October of 2005, the employee has not received any professional medical treatment for his work injury, has not taken any prescription medications or used any prescription creams or ointments on his leg, and has not missed any time from work due to any skin disorder. Nor, the employer argues, did Dr. Wengler testify that there would be any specific ongoing need for medical treatment for the employee, suggesting only that the employee may need to return on an as-needed basis. We are not persuaded.
Dr. Wengler's deposition testimony supports and corroborates the employee's position that his daily lotion application and wrapping regimen is in effect by prescription of his doctor and that, were he not to follow up as carefully as he has with that regimen, his condition might well deteriorate and require further and more regular treatment by the doctor personally. While the Lubriderm lotion that employee applies several times a day to his skin grafts may not be a controlled prescription medication, it is the lotion, the employee testified, that was specifically recommended by his doctor and the doctor's nursing staff. Dr. Wengler's testimony was ample and detailed as to the necessity of the lotion application and wrapping measures undertaken each day by the employee, and it was not unreasonable for the compensation judge to credit the doctor's testimony. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (the trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). Nor was it unreasonable for the compensation judge to credit the employee's own suggestion that his self-treatment was simply a direct extension of his doctor's treatment. Because it was not unreasonable for the judge to so conclude, and because we agree that such self-treatment satisfies the "intermittent treatment" requirement of the rule at issue, we affirm the compensation judge's award of compensation for a 10% whole-body impairment related to the employee's lower leg skin disorder, pursuant to Minnesota Rules 5223.0630, subpart 2(C). See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Two Percent Disability Related to a Valgus Deformity under Minnesota Rules 5223.0510
Minnesota Rules 5223.0510, subpart 3(F)(2), provides for compensation for a 2% whole-body disability where there is a posttraumatic valgus deformity of between 11 degrees and 20 degrees in a work-injured lower extremity. Based on Dr. Wengler's finding of an eleven-degree valgus angulation through the employee's work-injured leg, the compensation judge concluded that the employee was entitled to compensation for an additional 2% whole-body disability related to his work injury. The employer contends that Dr. Wengler's finding of an eleven-degree angulation was contrary to x-rays taken both immediately after the employee's surgery and on four subsequent occasions, which x-rays make no mention of any valgus deformity. Further, the employer argues, Dr. Segal, at his examination of the employee in May of 2007, found no noticeable valgus deformity and therefore clearly no deformity of eleven or more degrees. We are not persuaded.
As noted above, Dr. Wengler testified that his finding of an 11-degree valgus angulation through the employee's fracture site was based on "a very accurate x-ray measuring device on the computer." It was not at all unreasonable for the compensation judge to credit the finding and opinion of Dr. Wengler over that of Dr. Segal, particularly in that Dr. Segal claimed no comparable computer assistance in his measurement, and without any evidence that valgus angulation is normally noted on x-ray reports as a matter of course. Because the judge's decision was not unreasonable, and because this court normally defers to a compensation judge's choice between medical experts, we affirm the compensation judge's award of compensation for an additional 2% whole-body impairment related to a valgus deformity in the employee's injured leg pursuant to Minnesota Rules 5223.0510, subpart 3(F)(2). See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.
 This rule belongs to permanent partial disability schedules that were no longer in effect at the time of the employee's 2005 work injury.