ALLEN M. BELLECOURT, Employee, v. NORCRAFT COS., INC., and TRAVELERS GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 29, 2010
PERMANENT PARTIAL DISABILITY - HIP; PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; RULES CONSTRUED - MINN. R. 5223.055, SUBP. 3. Two ratings for loss of function to the hip from Minn. R. 5223.0500, subp. 3, may not be combined in determining the extent of permanent partial disability.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Janice M. Culnane
Attorneys: Thomas A. Klint and Michael T. Freske, Midwest Disability, Coon Rapids, MN, for the Respondent. Kenneth B. Huber, John G. Ness & Assocs., St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination of the extent of permanent partial disability. We reverse.
Allen Bellecourt, the employee, was working for Norcraft Companies on June 12, 2003, when he sustained an injury to his left hip and left knee. The injury was admitted by the employer and its insurer and the sole issue at the hearing and on appeal is the extent of permanent partial disability resulting from this injury.
Dr. Anthony Nwakama, an orthopedist in Marshall, Minnesota, treated the employee for his work injury and performed surgery on June 15, 2003. Dr. Nwakama diagnosed displaced left femoral neck fracture and the surgery involved reduction of the fracture, capsulotomy of a hematoma, and internal fixation with screws. On November 16, 2003, Dr. Nwakama performed arthroscopic surgery to address a meniscus tear of the left knee.
The employee returned to Dr. Nwakama on January 14, 2004, with complaints of increasing pain in his left hip. He noted pain when walking, rated his pain at 10 out of 10, and stated he limped all the time. Dr. Nwakama noted that the employee “has managed to do light duty work.” On exam, Dr. Nwakama found antalgic gait, reduction in range of motion, and “obvious leg shortening.” X-rays demonstrated avascular necrosis of the femoral head. Dr. Nwakama recommended further surgery and a left hip total arthroplasty was done on February 2, 2004. In May, when he returned to Dr. Nwakama, the employee reported that he was continuing to have hip pain. Dr. Nwakama advised the employee to stay off work, to use Vioxx and ice, and to do strengthening exercises at home.
The employee consulted with Dr. Gene Swanson at Orthopedic and Fracture Clinic in Mankato at the referral of his qualified rehabilitation consultant [QRC] on June 9, 2004. The employee told Dr. Swanson he had persistent pain in his left hip and left knee, and had pain in his groin and thigh when he placed any weight on his leg. Examination demonstrated an antalgic gait. A bone scan was recommended. The scan was reported as normal when the employee returned to Dr. Swanson on June 22. Dr. Swanson advised physical therapy and “marked limitation of his work activity.”
The employee saw Dr. Swanson again on August 24 after two months of physical therapy. A “little bit of progress” was noted and the employee was able to eliminate his limp with the use of a cane. When he returned to Dr. Swanson in October, the employee was found to have no limp but he continued to have pain in the groin and thigh with prolonged walking. Significant pain continued to be noted in January and March of 2005. Dr. Swanson concluded that there was a tear of the iliotibial band and surgery was appropriate. During surgery, however, Dr. Swanson found that instead of a ruptured iliotibial band, there was tearing of the gluteus medius muscle from the hip replacement surgery, a complication that Dr. Swanson indicated occurred in about 5% of hip replacement surgeries.
Dr. Swanson stated in May 2005 that although he had attempted surgical repair of the muscle, the condition was “kind of an unsolvable problem as the muscle doesn’t stay attached or partially tears out or is very atrophic and people continue with what we call a Trendelenburg positive gait or persistent limp. This remains painful and unfortunately there just doesn’t seem to be any answer to this problem.”
The employee was referred by Dr. Swanson to a chronic pain program that he attended from October 2005 to January 2006. He also saw other providers, seeking treatment options for his hip. None of the providers were able to materially assist the employee’s condition. In August 2006, Dr. Swanson advised the employee that he had no further treatment recommendations. Dr. Swanson stated in a report to the QRC that “he is going to require significant restrictions and limitations as to any lifting, bending, stooping, walking, ladder or stair climbing, etc., and that his activity can only be sedentary and it seems that it can only be at five hours a day.” In September 2006, Dr. Swanson determined the employee to be at maximum medical improvement [MMI].
In the MMI report he prepared, Dr. Swanson rated the employee’s permanent partial disability. He provided a rating of 2% for the knee under Minn. R. 5223.0510, subp. 3.B.(1) and for the hip, 3% for a fracture with hip pinning under Minn. R. 5223.0500, subp. 3.C.(3), and 8% for an arthroplasty under Minn. R. 5223.0500, subp. 3.B.
A functional capacities evaluation [FCE] was done at Dr. Swanson’s recommendation on February 8, 2007. The employee’s lifting and carrying limit was placed at 20 pounds and he was advised to avoid squatting as well as repetitive bending and stooping. The employee was to take frequent breaks from standing and walking and was to limit each of those activities to 2 hours out of an 8 hour day.
The employee returned to work in mid-2005 with the employer and has continued to work there since then on a light-duty basis.
Following the FCE, Dr. Swanson wrote a second report on February 15, 2007, dealing with the question of permanent partial disability. He stated he was doing so because his earlier opinion had been based on “those things that I have personally done as far as treatment and have not taken into consideration the entire course for this gentleman.” Dr. Swanson arrived at a total rating of 31%, 2 % for the knee and 29% for the hip. He arrived at the hip disability as follows:
12% under Minn. R. 5223.0500, subp. 3.C.(1) for non-union of a hip fracture,
8% under Minn. R. 5223.0500, subp. 3.B. for the arthroplasty,
5% under Minn. R. 5223.0500, subp. 4.B.(3)(d) for reduced adduction/abduction range of motion, and
4% under Minn. R. 5223.0500, subp. 4.C.(4)(b) for reduced range of motion in internal and external hip rotation.
Dr. Jack Drogt evaluated the employee on behalf of the employer and insurer and generated a report dated July 27, 2009. Dr. Drogt had available the employee’s medical records, including Dr. Swanson’s February 2007 report, and he examined the employee. On the elements of the permanent partial disability for the hip provided by Dr. Swanson, Dr. Drogt concluded as follows:
0% for the non-union of the hip fracture. Dr. Drogt stated that “the functional impairment afforded by a non-union of hip fracture or avascular necrosis is treated and in a sense cured by arthroplasty.”
8% for the arthroplasty,
1% for abduction/adduction range of motion, and
0% for reduced internal and external hip rotation.
Dr. Drogt did not discuss the employee’s functional limitations in employment.
The employer and insurer paid 17.95% permanent partial disability. The employee filed a claim petition seeking additional permanent partial disability benefits based on Dr. Swanson’s opinion. The employee’s claim was heard by Compensation Judge Janice Culnane on March 26, 2010. In her Findings and Order of April 16, 2010, the compensation judge determined that the employee had 29% permanent partial disability due to his hip injury, specifically adopting Dr. Swanson’s February 2007 ratings. The compensation judge decided that the 29% would be combined with the 2% permanent partial disability for the knee pursuant to the formula set out in Minn. Stat. § 176.105, subd. 4. The employer and insurer have accepted the 2% rating for the knee and do not appeal the determination for permanent partial disability based on the reduction in range of motion under Minn. R. 5223.0500, subp. 4. The employer and insurer appeal the award of permanent partial disability benefits for nonunion hip fracture and arthroplasty.
On appeal, the employer and insurer argue that the compensation judge erred in awarding 12% permanent partial disability under Minn. R. 5223.0500, subp. 3.C.(1) for a nonunion hip fracture and 8% under Minn. R. 5223.0500, subp. 3.B for an arthroplasty. They contend that only one rating from subp. 3 is allowable and that no more than 8%, representing the arthroplasty, can be awarded here.
As the employer and insurer point out, this court considered a similar rule in Price v. City of Minneapolis, No. WC06-139 (W.C.C.A. Oct. 2, 2006). As the result of a single injury, the employee in that case had a menisectomy, followed two years later by knee arthroplasty. In his claim for permanent partial disability the employee had asserted he was entitled both to a 4% rating for the menisectomy and 8% for the arthroplasty, both ratings found in Minn. R. 5223.0510, subp. 3. The compensation judge disagreed and found the employee’s permanent partial disability to be 8%. This court affirmed the compensation judge’s determination that the employee’s “impairing condition” was represented by the arthroplasty. In addition, as is true for the rule under consideration in the present case, subpart 3 of Minn. R. 5223.0510 is identified as “combinable categories.” This court held that a rating from Minn. R. 5223.0510, subp. 3, could not be combined with another rating from subp. 3, but only with a rating from subp. 4 of the rule. Support for this conclusion was found in an analysis made by this court of the language of Minn. R. 5223.0510, subp.1.
The language in Minn. R. 5223.0510, subp. 1, analyzed by the court in Price, is virtually identical to the language in Minn. R. 5223.0500, subp. 1, and the analysis followed in Price would apply to the present case as well. Accordingly, we conclude that ratings from Minn. R. 5223.0500, subp. 3, may not be combined and that the employee here is not entitled to ratings for both nonunion hip fracture and arthroplasty under that subpart.
Having so concluded however, the question still remains for this court as to what rating of impairment is most appropriate under Minn. R. 5223.0500, subp. 3. The employer and insurer argue under Price, the only allowable rating is the 8% for the arthroplasty. In Price we simply affirmed the compensation judge’s finding that the arthroplasty in that case represented the employee’s impairing condition.
While the ratings in the disability schedules found in Minn. R. chapter 5223 are generally based on medical procedures and range of motion testing, permanent partial disability is compensation for “functional loss of use or impairment of function, permanent in nature.” Minn. Stat. § 176.021, subd. 3. It is undisputed that the avascular necrosis in the femoral head was the equivalent of a non-union hip fracture. If there had been no further treatment the employee would unquestionably have been entitled to 12% permanent partial disability under Minn. R. 5223.0500, subp. 3.C.(1). As a result of that condition, the employee had continuous pain, required ongoing pain medication, and was able to work only with significant restrictions.
The complicating factor here is that the employee had a second surgical procedure, a hip arthroplasty. The compensation judge relied on the opinion of Dr. Swanson in making her conclusion. However, since Dr. Swanson’s opinion was based on combining ratings in Minn. R. 5223.0500, subp. 3, his opinion may not be used as a basis for the compensation judge’s decision. The only other medical opinion on the question of permanent partial disability found in the evidence is that of Dr. Drogt. Accordingly, we conclude the evidence can support no other result than that the employee’s permanent partial disability is 8 percent permanent partial disability for the hip arthroplasty under Minn. R. 5223.0500, subp. 3.B, plus the permanent partial disability awarded for the range of motion and the menisectomy.