DARRYL R. MICHOG, Employee/Appellant, v. WAL-MART STORES, INC., and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGMT., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 4, 2010
PERMANENT PARTIAL DISABILITY - SCHEDULE; RULES CONSTRUED - MINN. R. 5223.0450. Where, contrary to the court’s decision in Grashorn v. Boise Cascade Corp., slip op. (W.C.C.A. Mar. 6, 2002), the judge apparently believed that he could not find impairing conditions under both subpart 2, “exclusive categories,” and subpart 3, “combinable categories,” of Minnesota Rule 5223.0450, and where the judge therefore did not make a determination as to whether the employee had sustained a separate impairing condition ratable under the “combinable categories” of the rule, the matter was reversed and remanded for a determination of all impairing conditions sustained by the employee and, if an impairing condition should be discovered in subpart 3, a determination as to whether that impairing condition was a substantial contributing factor in the employee’s functional loss described in subpart 4 of the rule.
PERMANENT PARTIAL DISABILITY - SCHEDULE; RULES CONSTRUED - MINN. R. 5223.0450, SUBP. 4. Where the examining chiropractor’s ratings for functional loss were derived by use of computerized inclinometry and not through examination with a goniometer, and where it appears that the judge may not have been aware of the court’s decision in Houle v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Jan. 16, 2001), when considering application of Minn. R. 5223.0450, subp. 4, that portion of the judge’s memorandum referencing examination with a goniometer was vacated and remanded for reconsideration.
Reversed in part, vacated in part, and remanded.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Michael L. Garbow, Rodgers, Garbow & Jelekov, Bemidji, MN, for the Appellant. Cory A. Genelin, Gislason & Hunter, Mankato, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge’s determination as to the extent of his permanent partial disability resulting from a work-related shoulder injury. We reverse in part, vacate in part, and remand the matter for reconsideration.
On November 12, 2007, Darryl Michog [the employee] sustained an admitted injury to his left shoulder while lifting a case of chicken from a cart up to a chest-high shelf, in the course of his employment with Wal-Mart Stores, Inc. [the employer]. At the moment of his injury, the employee heard a “pop” in his shoulder, followed immediately by the onset of pain in the shoulder and numbness and tingling in the left arm. On that date, the employee was fifty-seven years old and was earning a weekly wage of about $444.00.
Immediately following his injury, the employee was seen in an emergency room and was referred to orthopedist Dr. Terrance Johnson, whom he saw for the first time on November 15, 2007. X-rays of his left shoulder showed degenerative changes, with significant spurring on the humeral head. Dr. Johnson recommended rest and analgesics and later an intra-articular injection. The employee did not improve, and an MRI was obtained on December 24, 2007. In follow-up on January 8, 2008, Dr. Johnson noted that the employee had
what appears to be a partial tear of the supraspinatus, but he is making improvement. He has significant degenerative joint disease of his shoulder as well. There is the suggestion of a full-thickness tear, but there is some technical artifact in light of movement during the study.
About four months later, on April 17, 2008, the employee was seen by orthopedic surgeon Dr. Bruce Piatt. Dr. Piatt reviewed the employee’s x-rays and MRI and ordered additional x-rays. He concluded that the employee’s degenerative changes were his primary problem, and he recommended an arthroscopy of the shoulder. The employee underwent a left shoulder arthroscopy with subacromial decompression and a debridement of his glenohumeral joint on June 27, 2008.
The employee began receiving physical therapy shortly after his surgery, and he returned to see Dr. Piatt on July 10, 2008. Dr. Piatt advised the employee that he had grade 4 degenerative changes of both the glenoid and humeral head and that he would at some point probably require a total shoulder arthroplasty. Physical therapy continued for about three more months, and the employee returned to see Dr. Piatt for a final evaluation on December 18, 2008. The employee reported that he was doing much better than before the surgery but was still having difficulty raising his arm overhead and had limitations on his range of motion. Dr. Piatt assigned permanent restrictions against lifting, pushing, or pulling more than five pounds and against doing any repetitive overhead motions with his left arm.
On January 20, 2009, Dr. Piatt completed a Health Care Provider Report form, reporting that the employee had reached maximum medical improvement from his work injury by December 18, 2008, and had sustained a 4% permanent partial disability. Dr. Piatt assigned a 3% rating for resection of the distal end of the clavicle under Minnesota Rules 5223.0450, subpart 2.C., and a 1% rating for chronic bicipital tendon rupture under Minnesota Rules 5223.0450, subpart. 2.D. About two weeks later, on February 5, 2009, Dr. Piatt attempted to amend his assessment of the employee’s permanent partial disability in a letter to the insurer. He stated that he had inappropriately listed a distal clavicle resection as part of the employee’s permanent partial disability rating. He indicated that, instead of the 3% rating for that resection, the total rating should include a 2% rating for a partial thickness rotator cuff tear under Minnesota Rules 5223.0450, subpart 3.A.(1).
On February 26, 2009, at the request of his attorney, the employee underwent an independent medical evaluation by chiropractor Dr. Larry Stember. Dr. Stember reported that, during his examination, he had employed computerized inclinometry to determine precise range of motion. He stated that this was the preferred method of testing range of motion according to the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association [A.M.A Guides]. Dr. Stember noted that, although the employee’s surgery did not actually include a resection of the distal end of the clavicle, a 3% rating was the appropriate rating, given the subacromial decompression that was performed. He also agreed with a 1% rating for chronic bicipital tendon rupture, and he also assigned a 2% rating for a partial thickness rotator cuff tear. He then assigned a cumulative 14% rating, describing the employee’s loss of function under Minnesota Rules 5223.0450, subparts 4.A.(1)(c), 4.B.(1)(c), and 4.C.(1)(b). Then he added the ratings together to arrive at a permanent partial disability rating of 20% for the employee’s left shoulder.
Dr. Piatt issued a second Health Care Provider Report on March 10, 2009. In this report, he again rated the employee’s permanent partial disability at 4% of the whole body, applying the rules that he had cited on January 20, 2009. Dr. Piatt did not refer to the partial thickness rotator cuff tear that he had mentioned in his February 5, 2009, letter to the insurer. On March 30, 2009, in a letter to the insurer, Dr. Piatt again tried to clarify his assessment of the employee’s medical condition. He stated,
[The employee] underwent a left shoulder arthroscopy and subacromial decompression. He also underwent the debridement of the glenohumeral joint . . . . We also did perform a limited distal clavicle resection. We did not formally remove the entire distal clavicle, but removed a large osteophyte from the interior surface of the clavicle. It is felt that the majority of his symptoms are probably coming from degenerative process in the glenohumeral joint, but some element of it was most likely coming from his AC joint as well. That is why we have filled out the paperwork as we have.
The insurer paid compensation for a 4% permanent partial disability on April 16, 2009.
On May 13, 2009, the employee’s attorney forwarded Dr. Stember’s report to Dr. Piatt and asked whether he agreed with all or part of Dr. Stember’s permanent partial disability rating. On May 19, 2009, Dr. Piatt replied in part as follows:
I did review what appears to have been an independent medical examination by Dr. Stember. In reviewing this assuming that his procedures for additions of his different percentages for permanent partial impairments are correct, I think it is an appropriate and very in depth independent medical examination . . . . I am not set up to do all the different very definitive measurements that he has done . . . . I would defer to him and feel that his is probably much more accurate. I think when it comes to the different diagnostic criteria, I do agree with those.
On June 23, 2009, the employee filed a claim petition, alleging entitlement to compensation for a 20% permanent partial disability, less the 4% already paid.
The employer and insurer obtained a medical record review by orthopedist Dr. Richard Strand. In a report dated March 12, 2010, Dr. Strand agreed with the 4% rating and the rules cited in support of that rating by Dr. Piatt. He indicated that the employee had endstage osteoarthritis and AC joint arthritis, noting, “He had grade IV changes on the glenohumeral joint throughout, which is basically bone on bone.” To clarify his permanency opinion, Dr. Strand explained that a distal clavicle resection did not actually occur during the surgery. Rather, he explained, Dr. Piatt did a subacromial decompression by taking spurs off at the AC joint. Because the permanent partial disability schedules do not provide a rating for impingement syndrome, Dr. Strand opined that, under the Weber rule, 3% was an appropriate rating. And he agreed that resection of the distal end of the clavicle under Minnesota Rules 5223.0450, subpart 2.A.C., was the appropriate category to apply. He also agreed that the employee was entitled to compensation for a 1% impairment for his chronic bicipital tendon rupture. Because the rating for bicipital tendon rupture and the Weber rating for the subacromial decompression are taken from the “exclusive categories” section of the rules, Dr. Strand did not believe that any other categories in the rules could be considered in rating the employee’s impairment.
The employee’s claim for an additional 16% permanent partial disability came on for a hearing before a compensation judge on April 7, 2010. In a findings and order issued April 23, 2010, the judge determined that “the weight of the credible evidence supports the reasoning and conclusion of Dr. Strand and Dr. Piatt that the employee sustained 4% permanent partial disability of the body as a whole relative to the injury of November 12, 2007.” The employee appeals.
STANDARD OF REVIEW
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 (2008). 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, 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 evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
In a memorandum accompanying his findings and order, the judge stated,
The Compensation Judge does not accept the 20% rating imposed by Dr. Stember. That rating resulted from an inappropriate and incorrect application of the PPD schedule. Specifically, Dr. Stember rated conditions under both Minn. R. 5223.0450, subp. 2 (exclusive categories) and Minn. R. 5223.0450, subp. 3 (combinable categories) and then added all of the resulting ratings together. This is not permissible . . . . In addition, Dr. Stember’s ratings under Minn. R. 5223.0450, subp. 4 were derived by use of computerized inclinometry, and not through examination with a goniometer as is required by the rule.
On appeal, the employee contends that the compensation judge erred as a matter of law in his interpretation of the permanent partial disability schedules. He asserts that the judge failed to consider all of the employee’s impairing conditions, as required by this court in Grashorn v. Boise Cascade Corp., slip op. (W.C.C.A. Mar. 6, 2002). Further, the employee contends, use of a goniometer is not mandated by the rules, and Dr. Stember’s use of computerized inclinometry is a valid means of testing range of motion under Minnesota Rules 5223.0450, subpart 4. We remand the matter to the judge for reconsideration.
Minnesota Rules 5223.0450 reads in pertinent part as follows:
Musculoskeletal Schedule; Shoulder and Upper Arm
Subpart 1. General. For permanent partial impairment to the shoulder and upper arm, disability of the whole body is as provided in subparts 2 to 4. The percent of whole body disability under this part may not exceed the percent of whole body disability for amputation of the arm at the shoulder. Each mutually exclusive impairing condition must be rated separately and the ratings must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is represented by a category designated as exclusive under subpart 2, it must be rated by that category only and that rating may not be combined with a rating under any other category of this part for that impairing condition.
If an impairing condition is represented by a category designation as combinable under subpart 3, it must be rated under that category and under the appropriate categories describing loss of function under subpart 4. The ratings obtained must be combined as described in part 5223.0300, subpart 3, item E.
If an impairing condition is not represented by a category designated either exclusive or combinable, it must be rated only under the appropriate categories describing loss of function under subpart 4.
Subp. 2. Exclusive categories.
* * *
C. Resection distal end of clavicle, three percent.
D. Chronic bicipital tendon rupture, one percent.
* * *
Subp. 3. Combinable categories.
A. Chronic rotator cuff tear, demonstrated by medical imaging study, with or without surgical repair:
(1) partial thickness, two percent;
(2) full thickness, six percent.
* * *
Subp. 4. Categories describing loss of function. Function at the shoulder is measured by the available passive range of motion in three arcs at the shoulder: flexion or extension, abduction or adduction, and rotation. Examination with goniometer is performed to determine the limits of passive range of motion in each arc. If there is an impairment in more than one arc, the ratings for each arc are added to determine the final impairment for loss of function.
Minn. R. 5223.0450 (underscoring added).
In Grashorn, this court addressed a somewhat similar claim for impairment ratings under subparts 2 and 3 of Minnesota Rules 5223.0450. The employer in that case had compensated the employee for a 6% whole body impairment under Minnesota Rules 5223.0450, subpart 3.A.(2), for a full-thickness rotator cuff tear. The employee claimed benefits for an additional 3% rating for a distal clavicle resection under Minnesota Rules 5223.0450, subpart 2.C. The compensation judge awarded the claimed additional 3%, and, on appeal, the employer contended that, as a condition listed under an “exclusive category,” a distal clavicle resection rating was not combinable with any other rating under the express terms of the applicable rules. Therefore, the employer argued, the judge erred as a matter of law in awarding the employee additional benefits for the distal clavicle resection. This court disagreed and stated,
After review of the rules as a whole, we conclude that the “exclusive category” designation of subpart 2 is intended only to preclude combining ratings under subpart 2 with ratings for loss of function under subpart 4, rather than precluding combination of ratings for the separate functional impairments listed under categories 2 and 3. That is, under the terms of the rules, an employee may not receive a separate rating under subpart 4 for any loss of function caused by a distal clavicle resection, but that the employee may receive a rating for both the distal clavicle resection and a torn rotator cuff, because they constitute separate impairing conditions.
Grashorn at p. 7 (emphasis in original).
In the present case, the compensation judge, apparently believing that he could not find impairing conditions under both subparts 2 and 3, did not make a determination as to whether the employee had sustained a separate impairing condition rated under the “combinable categories” of the rule. He did reference the employee’s MRI and a “rotator cuff injury” at Finding 5, but, other than his interpretation of the rules, he offered no explanation for his rejection of Dr. Stember’s rating. Nor did he address Dr. Piatt’s 2% rating in his letter of February 5, 2009. Dr. Strand made no mention of a chronic rotator cuff tear in his report. According to Minnesota Rules 5223.0450, subpart 1, “[e]ach mutually exclusive impairing condition must be rated separately and the ratings must be combined as described in part 5223.0300, subp. 3, item E.” We therefore reverse the compensation judge’s finding of permanent partial disability and remand the matter to him for a determination of all impairing conditions sustained by the employee. If the judge should find an impairing condition under subpart 3 of the rule, he may also consider whether that impairing condition is a substantial contributing factor in the employee’s functional loss described in subpart 4.
As a further basis for his decision, the judge stated in his memorandum that he rejected Dr. Stember’s ratings for functional loss because they “were derived by use of computerized inclinometry, and not through examination with a goniometer as is required by the rule.” Citing this court’s decision in Houle v. Abbott Northwestern Hosp., slip op. (W.C.C.A. Jan. 16, 2001), the employee argues that measurement with a goniometer is not a prerequisite, as a matter of law, to rating the employee’s loss of function under the rule. Because Dr. Stember’s use of a computerized inclinometer is an accepted method of measuring range of motion, he contends, his ratings should have been considered by the judge.
We first note that it is the employee who bears the burden of proving each element necessary to receive a permanent partial disability 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). In Houle, this court affirmed, on substantial evidence grounds, a judge’s resolution of conflicting medical evidence in favor of an employer’s expert who allegedly did not use a goniometer in arriving at his passive range of motion measurements. The court declined to interpret the rule in a manner that would require a judge to reject otherwise well-supported evidence of the employee’s passive range of motion merely because a goniometer was not used. Here, because the judge may not have been aware of this decision, and because we are remanding the matter for other reasons, we vacate also that portion of the judge’s memorandum referencing examination with a goniometer, and we remand that issue also for reconsideration.
To summarize, the judge’s award of 4% permanent partial disability under Minnesota Rules 5223.0450, subparts 2.C. and 2.D., is undisputed on appeal. We remand for reconsideration, however, the issue of whether the employee has sustained an impairing condition under Minnesota Rules 5223.0450, subpart 3, and, if so, whether that impairing condition is a substantial contributing factor in any loss of function rated under Minnesota Rules 5223.0450, subpart 4. We also remand for reconsideration the issue of whether the employee has established impairment for loss of function under the rules, in light of the instrument used by Dr. Stember to measure range of motion.
 See Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
 Subpart 4 goes on to provide specific permanency ratings for various kinds and degrees of range of motion loss.