JEFFREY A. CHERMAK, Employee, v. GREAT W. RECYCLING INDUS., INC., and RTW GROUP, Employer-Insurer/Appellants, and SUMMIT ORTHPEDICS, LTD., and BLUE CROSS BLUE SHIELD OF MINN. & BLUE PLUS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 5, 2011
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination of the extent of permanent partial disability given the employee’s extensive, complex, and unusual injuries.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Danny P. Kelly
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent. Joseph P. Mitchell, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s award of permanent partial disability. We affirm.
Jeffrey Chermak went to work for Great Western Recycling in February 2006. Great Western was in the business of recycling scrap metal and the employee was hired to be a plant mechanic. On June 2, 2006, the employee was working on a shear, a large piece of equipment used in compressing metal into a cube for further processing; an I-beam was being used to brace the shear. The I-beam slipped and struck the employee, injuring both of his arms, his left leg, his left foot, and his left hip. The employee was taken by ambulance to Regions Hospital where he underwent multiple surgeries over 17 hours on June 2.
The employee was hospitalized at Regions from June 2 until June 23. The discharge summary identified the following diagnoses:
1. Right radial and ulnar artery injury with repair with saphenous vein graft from right lower extremity.
2. Right radial and ulnar open fracture, status post open reduction and internal fixation of both right ulnar and radial bones.
3. Left radial and ulnar open fractures status post open reduction and internal fixation of left radius and ulna.
4. Left comminuted femur fracture, open.
5. Nondisplaced fracture of the left great phalanx, proximal.
6. Open, annulated fracture of left 2nd, 3rd and 5th metatarsal status post pinning.
7. Bilateral lower extremity deep vein thromboses.
8. Hypothyroid disorder.
9. Post-traumatic stress disorder from the accident.
10. Large lacerations, avulsions and abrasions to bilateral forearms and to the left hip.
Following his discharge from Regions Hospital on June 23, the employee was re-admitted a number of times for additional surgeries. Records indicate that the employee had five more surgeries between July 2006 and March 2008.
The employer and insurer paid the medical expenses and wage loss related to the work injuries. The parties disputed the extent of permanent partial disability from the injury. The employee filed a claim petition alleging total permanent partial disability of 58.8%, using ratings provided by Dr. Robert Wengler, who evaluated the employee for the employee’s attorney. By the time of the hearing, the employer and insurer had agreed to pay 28.99% permanent partial disability based on the opinions of Dr. Paul Wicklund, who evaluated the employee on behalf of the employer and insurer.
The employee’s claims were heard by Compensation Judge Danny P. Kelly on April 27, 2010. In his findings and order served and filed June 28, 2010, the compensation judge made the following determinations of permanent partial disability:
1. 3% for the left foot pursuant to Minn. R. 5223.0530, subp. 2.D.(2);
2. For the employee’s left hip, 3% for fracture with hip pinning as set out in 5223.0500, subp. 3.C.(3), 2% for loss of range of motion in flexion under 5223.0500, subp. 4.A.(1)(b), and 8% for loss of range of motion in external rotation with contracture under 5223.0500, subp. 4.C.(1)(e);
3. For the right elbow dysfunction, 12% pursuant to 5223.0460, subp. 4.B.(3)(b), where there is a limitation in pronation between zero and 45 degrees, supination is between zero and 45 degrees;
4. 18% under 5223.0400, subp. 2.C.(2), for the left arm for complete motor loss of the ulnar nerve involving the extrinsic muscles of the hand;
5. For the right arm, 22% under 5223.0400, subp. 2.B.(2), motor loss affecting the radial nerve with sparing of triceps.
6. 18% for the right arm for tissue loss resulting in loss of grip strength. No rating exists in the schedule for this impairment and the compensation judge adopted a Weber rating used by Dr. Wengler.
7. 12% for tissue loss and loss of grip strength in the left arm, again using a Weber rating provided by Dr. Wengler.
The employer and insurer have appealed.
The compensation judge in large part adopted the opinions of Dr. Wengler. On appeal, the employer and insurer argue that the compensation judge erred in doing so because, they assert, Dr. Wengler’s conclusions were not supported by the medical evidence in the record. We consider that argument.
1. Left Hip.
The compensation judge adopted the opinion of Dr. Wengler. Dr. Wengler rated 3% for the hip fracture, following Minn. R. 5223.0500, subp. 3.C.(3), and also rated additional 2% for loss of range of motion under 5223.0500, subp. 4.A.(1)(b) and 8% for loss of range of motion under 5223.0500, subp. 4.C.(1)(e). Dr. Wicklund agreed with Dr. Wengler’s rating for the hip fracture but he did not find restrictions in range of motion on examination. His rating was 3% for the hip.
Dr. Wengler’s ratings were based on his examination findings as detailed in his report on page 3. The ratings are also supported by the employee’s testimony of restrictions he experiences with the use of his hip, such as difficulty in going up and down stairs and in a reduced arc of motion using his leg because of his hip problems.
We find substantial evidence supports Dr. Wengler’s rating and the compensation judge’s determination is affirmed.
2. Right Arm - Radial Nerve Injury.
The compensation judge accepted the opinion of Dr. Wengler and awarded 22% permanent partial disability for this condition. Dr. Wengler based his opinion on 5223.0400, subp. 2.B.(2). That section covers an injury to the peripheral nervous system with motor loss to the upper extremity. Subpart 2.B. provides for disability when there is total or complete motor loss of the radial nerve with 22% for nerve injury that spares the triceps. Dr. Wicklund disputed that rating, finding instead partial motor loss not affecting the triceps or wrist extensors. He rated 15% under 5223.0400, subp. 2.B.(3), modified by 5223.0400, subp. 5.B.(3), for the partial loss for a final rating of 3.75%.
The difference between the two ratings centers on the question of whether there was total or partial motor loss from the radial nerve injury and whether the injury affects the wrist extensor muscles.
Because of the extensive trauma to his right arm, the radial nerve of the arm was damaged, resulting in a diagnosis of radial nerve palsy. The employee was treated for this condition by Dr. James Fletcher. On August 14, 2007, Dr. Fletcher diagnosed complete radial nerve palsy. On March 19, 2008, Dr. Fletcher did surgery to minimize the effects of the palsy, performing “radial nerve transfers with transfer of the palmaris longus to the extensor pollis longus, right thumb and transfer of the flexor carpi radialis to the extensor digitorum communis of the right hand.” The employee also had orthopedic surgery to his right arm at the same time. The employee then had extensive hand therapy at Dr. Fletcher’s direction. The most recent chart note from Dr. Fletcher dated March 31, 2009, indicated the employee had “good strength” but was still unable to fully extend his thumb. The employee testified that he was still unable to fully open his fingers.
We conclude the medical records support the conclusions of Dr. Wengler and the compensation judge.
3. Right Arm - Elbow.
The compensation judge accepted the opinion of Dr. Wicklund on this issue. Dr. Wengler had evaluated the employee as having 8% permanent partial disability, following 5223.0460, subp. 4.B.(5)(c), for loss of motion in the right elbow, while Dr. Wicklund found the employee’s condition to be covered by 5223.0460, subp. 4.B.(3)(b), resulting in 12% permanent partial disability. This finding by the compensation judge has not been appealed.
4. Right Arm - Tissue Loss and Grip Strength.
Dr. Wengler concluded that a rating of permanent partial disability for the tissue loss to the employee right forearm and the reduction in his grip strength was appropriate. The permanency schedule has no listing for this impairment so Dr. Wengler applied a Weber rating. He used the schedule found in the AMA Guide to Evaluation of Permanent Impairment and came up with a result of 18% of the whole body. Dr. Wicklund stated, “This is a Weber rating and not found in the Workers’ Compensation Guidelines. I disagree with this.” Dr. Wicklund, however, did not state that Dr. Wengler’s evaluation was incorrect. Dr. Wicklund also found permanent partial disability for the right wrist in 5223.0470, subp. 4.A.(2)(c) - 7.5% and 5223.0470, subp. 4.B.(2)(a) - 2%. Those sections allow for ratings of permanent partial disability for the wrist when there is a loss of range of motion. The compensation judge adopted Dr. Wengler’s opinion.
On appeal, the employer and insurer argue that use of a Weber rating here was not appropriate because the impairment represented by the rating was provided in 5223.0400, which Dr. Wengler had used previously in rating the right arm. It appears however that the rating under 5223.0400 for the right arm was for the nerve injury only and the disability resulting from the injury. The Weber rating here compensates for the extensive loss of tissue and for the loss of grip strength experienced by the employee as a result of his injury. The compensation judge’s award is affirmed.
5. Left Arm - Ulnar Palsy.
Dr. Wengler evaluated the employee’s injury to the ulnar nerve in his left arm under 5223.0400, subp. 2.C.(2). That section allows for 18% permanent partial disability where there is total motor loss from an ulnar nerve injury affecting the intrinsic muscles of the hand. Dr. Wicklund agreed with the use of that section but applied the modifier found in 5223.0400, subp. 5.B.(2), for partial motor loss to arrive at a rating of 4.5%. The compensation judge accepted Dr. Wengler’s opinion.
Dr. Wengler found complete numbness in the ulnar distribution of the left hand and also found decreased range of motion in the fingers of the left hand. Dr. Wicklund, in his examination, also found loss of sensation in the ulnar distribution. The employee testified to difficulty opening and closing his fingers. We conclude there is substantial evidence to support the compensation judge’s determination on this point.
6. Left Arm - Tissue Loss and Grip Strength.
As in the case of the right arm, Dr. Wengler provided a Weber rating for tissue loss and reduced grip strength in the left arm. On exam, Dr. Wengler noted 24 kg grip strength. He applied the AMA Guidelines to arrive at a 12% whole body impairment. On examination, Dr. Wengler also found extensive soft tissue loss in the left forearm. Dr. Wicklund’s report references a 9 inch by 3 inch area of grafting on the left forearm, but does not mention tissue loss or grip strength diminution. Dr. Wicklund’s comment on Dr. Wengler’s permanent partial disability rating was that the rating was “not found in the Workers’ Compensation Guidelines.” He did not state or conclude that the finding of impairment in the left forearm was otherwise inappropriate. We conclude then that the compensation judge’s reliance on Dr. Wengler’s opinion is supported by substantial evidence.
7. Left Foot.
As a result of the work injury, the employee sustained a left foot fracture which required internal fixation. An evaluation by Dr. Daren Wickum at Summit Orthopedics on July 16, 2007, showed malunion in the fourth metatarsal, a traumatically shortened second tarsal, pes cavus deformity, hallux valgus deformity with overlapping of the second and third toes, and scars on the dorsal and plantar surfaces of the left foot. Dr. Wengler found abnormal weight bearing on examination and determined the employee’s permanent partial disability was covered by 5223.0530, subp. 2.D.(2). That section provides for 3% permanent partial disability where a healed metatarsal fracture has resulted in abnormal weight bearing. Dr. Wicklund disagreed with that rating because he found no calluses on the left foot as the rule indicates. His rating for the condition was 0% under 5223.0530, subp. 2.D.(1), which is a healed metatarsal fracture with normal weight bearing. The compensation judge awarded the permanent partial disability determined by Dr. Wengler. Although Dr. Wengler’s report did not comment on the existence or absence of calluses, the employee testified that calluses were present on his left foot because of the overlapping of his toes and his altered gait. We find substantial evidence in this testimony to support the compensation judge’s award.
8. Overall Disability.
On appeal, the employer and insurer argue that the compensation judge’s determinations of permanent partial disability as set forth in his decision create an “exaggeration” of the employee’s “relatively minor” functional limitations of his upper extremities. They contend that Dr. Wengler improperly stacked ratings. We disagree.
We note first, parenthetically, that neither this court nor the compensation judge has made a calculation as to the total extent of permanent partial disability under Minn. Stat. § 176.105, subd. 4. That question remains for the parties. Accordingly, we do not consider whether the employee’s overall disability represents an exaggeration of the effects of his catastrophic injury.
The legislature determined that permanent partial disability was to be determined by a schedule adopted by the Commissioner. Minn. Stats. §§ 176.101, subd. 2a, and 176.105, subd. 1. An injury which results in an impairment supported by objective medical evidence which is not listed in the schedule is nevertheless entitled to a rating of permanent partial disability. Minn. Stat. § 176.105, subd. 1(c).
Determining the extent of permanent partial disability is generally a question of fact for the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 777 (Minn. 1987); Nerud v. Duininck Bros., Inc., 67 W.C.D. 456 (W.C.C.A. 2007). Determining permanent partial disability in this case was difficult because of the complex and unusual injuries, the extensive treatment received by the employee, and the voluminous medical records of his treatment.
The only medical opinions in evidence discussing permanent partial disability were those of Dr. Wengler and Dr. Wicklund. In a number of instances in their brief, the employer and insurer contend that Dr. Wengler’s ratings should not have been accepted because they were not reproducible or consistent with findings in the medical records. Generally, however the medical records contain little or no information on the testing or measurements used by Drs. Wengler and Wicklund in arriving at their opinions. The question here was not reproducibility or consistency but, rather, a choice between two well-founded expert opinions. The choice of medical experts by the compensation judge and reliance on a well-founded opinion by that expert will generally be affirmed by this court. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C. A. 2003). The employee’s credible testimony and Dr. Wengler’s opinions, which we find to be based on the medical evidence in this case, provide support for the compensation judge’s decision. The decision is affirmed.
 Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1991).