PHYLLIS M. CHRISTENSEN, Employee/Cross-Appellant, v. BURNS MANOR NURSING HOME c/o HUTCHINSON AREA HEALTHCARE and SFM MUT. INS. CO., Employer-Insurer/Appellants., and LIFELINK III and CIGNA HEALTHCARE/ACS RECOVERY SERVS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 4, 2012
PERMANENT PARTIAL DISABILITY. Substantial evidence, including expert opinion, supported the judge’s findings as to the extent of the of the employee’s permanent partial disability.
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION. Under the circumstances of this case, the compensation judge did not err in admitting into evidence the report of the employer and insurer’s medical examiner, despite the fact that the report was not completed within 120 days of the filing of the employee’s claim petition.
Determined by: Wilson, J., Stofferahn, J., and Milun, C.J.
Compensation Judge: John Ellefson
Attorneys: Michael C. Jackman, Larkin, Hoffman, Daly & Lindgren, Minneapolis, MN, for the Cross-Appellant. Steven T. Scharfenberg, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s findings regarding the extent of permanent partial disability attributable to the employee’s right knee, spinal cord, and cervical spine conditions. The employee cross-appeals from the judge’s receipt and consideration of an independent medical examination report. We affirm.
The employee sustained an admitted work-related injury to her right knee on July 25, 2005, while employed by Burns Manor Nursing Home [the employer]. She subsequently had arthroscopic right knee surgery, and, in February of 2008, had a total right knee replacement. The employee’s right knee condition substantially contributed to a fall at home in March of 2009. As a consequence of symptoms from that fall, the employee was admitted to Hutchinson Hospital. She was eventually diagnosed with a methicillin-resistant staphylococcus aureus [MRSA] infection and was transferred to Abbott Northwestern Hospital. Later that month, infection was confirmed within the employee’s right knee, and the right knee prosthesis was removed. As a consequence of the infection, the employee spent approximately one year in hospitals and nursing homes, receiving treatment for her right knee condition as well as multifocal spinal epidural abscesses, a left psoas muscle abscess, renal failure, and other conditions, all resulting from the MRSA infection.
The employee had apparently recovered from the MRSA infection by September of 2009, when she underwent re-implantation of her right knee prosthesis. Following a hearing held in December of 2009, it was determined that the employee’s MRSA infection was a compensable consequence of her work-related right knee injury. That decision was affirmed by this court.
The employee filed a claim petition on May 17, 2010, seeking benefits for permanent partial disability “to be shown.” In an amended claim petition filed on June 30, 2010, the employee claimed benefits for a 27% whole body impairment related to her right knee, a 10 or 40% impairment related to the “upper extremities,” a 40% impairment related to the lower extremities, a 22% impairment related to fecal incontinence, and a 30% impairment related to loss of bladder control. These claims were based on a June 4, 2010, report by Dr. Robert Wengler. In a January 3, 2011, report, Dr. Wengler clarified that the rating applicable to the employee’s upper extremity was 10%, and, in a report dated April 11, 2011, he rated a 13% whole body impairment due to injury to the employee’s cervical spine.
At some point, the employer and insurer paid the employee benefits for an 8% whole body impairment relative to the employee’s right knee, pursuant to Minn. R. 5223.0510, subp. 3.C.(2), a 20% whole body impairment relative to the employee’s bladder, pursuant to Minn. R. 5223.0600, subp. 3.C., and a 40% whole body impairment relative to the employee’s left lower extremity condition, pursuant to Minn. Rule 5223.0360, subp. 7.E.(3)(c).
The matter proceeded to hearing, and, in findings and order filed on November 3, 2011, the compensation judge made various findings as to permanency for conditions of the employee’s bladder, bowel, teeth, and right knee that were not appealed. The judge also found that the employee had sustained an additional 7% permanent partial disability of her right knee, a 10% permanent partial disability for spasticity of her left upper extremity, and a 13% permanent partial disability related to decompression surgeries on her cervical spine. The employer and insurer appeal from those awards. The employee appeals from the judge’s receipt into evidence and reliance on the report of Dr. Paul Biewen, the employer and insurer’s independent examiner, and the judge’s resulting award of benefits for a 2% whole body impairment rather than 10% whole body impairment for loss of flexion of the right knee.
1. Dr. Biewen’s Report
The employee filed an amended claim petition on June 30, 2010, claiming permanent partial disability benefits relative to the bowel, bladder, lower extremities, and left upper extremity. Minn. Stat. § 176.155, subd. 1, requires that an independent medical examination [IME] requested by the employer and insurer be completed and the report of that examination filed with the commissioner within 120 days of service of the claim petition. The employer and insurer filed a motion for extension of time on February 28, 2011. At about that time, the employee’s attorney filed an objection to the late IME and requested that the employee’s claims be heard no later than June of that year. A hearing date was set for May 18, 2011.
Dr. Paul Biewen performed an IME on March 14, 2011, and prepared a report on that same date. Dr. Wengler then issued his April 11, 2011, report, adding a rating for a 13% whole body impairment related to the employee’s cervical spine. Dr. Biewen then issued a follow-up report on September 7, 2011. At hearing, the employer and insurer offered both of Dr. Biewen’s reports into evidence. The employee’s attorney objected, because the examination did not take place and the report was not filed within 120 days of the filing of the employee’s claim petition, as specified by statute. The compensation judge accepted the reports into evidence but noted that he would keep the employee’s attorney’s objections “in mind when I’m giving weight to them.”
The employee’s attorney later requested a continuance, and the hearing on her claim was rescheduled to July 19, 2011. Due to the state shutdown, that hearing was cancelled and eventually rescheduled to September 21, 2011. The judge ultimately relied on Dr. Biewen’s opinions in finding that the employee had sustained only a 2% impairment of the right knee due to loss of flexion.
On appeal, the employee contends that the compensation judge should not have received into evidence or relied upon the reports of Dr. Biewen since his examination and reports were submitted beyond the 120-day period and because a motion to extend the time for the IME was not filed until well after the 120-day period. However, the employee cites to no case law in support of his position.
The statute does not require an application for an extension to be made prior to expiration of the time for serving and filing the IME report. Bey v. Oxford Properties, Inc., 481 N.W.2d 20, 46 W.C.D. 198 (Minn. 1992). Minn. Stat. § 176.155 provides that a compensation judge “shall extend the time for completing and filing the report upon good case shown,” which includes “the complexity of the medical issues.” (Emphasis added.) As previously noted, the employee’s claims arose primarily from a MRSA infection that went on to damage various organs and joints in her body. It was an unusual and complex case, and even the employee’s doctor was assigning new permanent partial disability ratings as late as April 11, 2011. There was clearly “good cause” for an extension, which the compensation judge apparently granted by his acceptance of Dr. Biewen’s reports at hearing. We also note that the timing of the IME did not in any way delay the hearing. The judge did not err in admitting and relying on the reports of Dr. Biewen, and we affirm his decisions on those issues.
2. Permanent Partial Disability - Right Knee
The compensation judge awarded benefits for a 15% whole body impairment for surgery to the employee’s right knee, consisting of an 8% rating under Minn. R. 5223.0510, subp. 3.C.(2), for a total condylar arthroplasty, plus 7% for a patella replacement under Minn. R. 5223.0510, subp. 3.C.(3). On appeal, the employer and insurer contend that the evidence does not establish that the employee’s patella was replaced, and they argue that the judge should have adopted Dr. Biewen’s opinion that the 8% rating for a condylar arthroplasty was inclusive of the patella replacement. We are not persuaded.
The employee underwent total knee arthroplasty on September 25, 2009. The notes from that surgery reference the “tibia, femoral, and patellar components” being cemented into place. It also lists “patella” as one of the implants. Clearly the employee’s patella was replaced as part of her surgery.
Dr. Wengler stated that his rating for a “total knee arthroplasty” was 8% for the total condylar replacement and 7% for the patellar replacement. In contrast, Dr. Biewen rated 8% only, stating that a total knee arthroplasty “is most consistent with a total condylar arthroplasty” and that his 8% rating “is inclusive of the patella replacement.”
The permanent partial disability schedules do not provide a rating for a total knee arthroplasty. This case involves a difference of medical opinion as to whether a total condylar arthroplasty encompasses a patella replacement.
A compensation judge is responsible for determining under which rating category an employee’s disability falls. Jensen v. Best Temporaries, 46 W.C.D. 498 (W.C.C.A. 1992). Given the record and the opinion of Dr. Wengler, we cannot conclude that the compensation judge erred in finding that the employee was entitled to benefits for an 8% impairment relative to the total condylar replacement and a 7% impairment for a patellar replacement. We therefore affirm that finding.
3. Permanent Partial Disability - Spinal Cord and Cervical Spine
The employer and insurer contend that the employee is not entitled to both a 10% whole body rating for permanent partial disability of the left upper extremity and an additional 13% rating for permanent partial disability of the cervical spine. Rather, they contend, Dr. Biewen’s 16% whole body rating for injury to the cervical spine “most closely resembles the impairing condition.” We are not persuaded.
The employer and insurer argue initially that “the impaired movement of the employee’s left arm relates to an injury to the cervical spine, not an injury to the brain where Minn. Rule 5223.0360, subp. 7E is found.” We find no merit in this position. Dr. Wengler did not find that the employee had sustained a brain injury; his diagnosis was an injury to the spinal cord, with resulting spasticity. This kind of injury is appropriately rated under Minn. R. 5223.0360, subp. 7. We would also note that Dr. Wengler’s reports were not the only records noting spasticity. Occupational therapist Jane Fjerstad referred the employee to a physiatrist for spasticity management, commenting also that the employee “may be appropriate for Botox to manage the spasticity.” These records provide substantial evidence of an injury to the spinal cord with resulting spasticity of the left upper extremity, and we affirm the judge’s award of benefits for a 10% whole body disability for injury to the spinal cord.
Dr. Wengler also found that the employee was entitled to a rating for her decompression laminectomies under Minn. R. 5223.0370, subp. 4:
C. Radicular pain or paresthesia, with or without cervical pain syndrome, with persistent objective clinical findings confined to the region of the cervical spine, that is, involuntary muscle tightness in the paracervical muscle or decreased passive range of motion in the cervical spine, and with any radiographic, myelographs, CT, or MRI scan abnormality not specifically addressed elsewhere in this part:
* * *
4) if a surgery at more than one level, other than a fusion, is performed as part of the treatment, 13 percent.
The employer and insurer apparently do not disagree that that employee has radicular syndrome, as Dr. Biewen also assigned the employee ratings under this category. The difference is that Dr. Biewen chose to rate under subpart 4.D.(1), (2) and (3), for radicular findings in the left upper extremity and for surgeries. It is the employer and insurer’s position that these ratings most closely represent the impairing conditions. However, a finding of permanent partial disability is one of ultimate fact. See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987). The judge was entitled to accept Dr. Wengler’s rating for these conditions, and we affirm.
 See Christensen v. Burns Manor Nursing Home, No. WC10-5090 (W.C.C.A. Sept. 17, 2010).
 For a total condylar arthroplasty.
 The judge’s award of 8% for a total condylar arthroplasty was not appealed.
 For a patella replacement.
 Dr. Wengler had assigned a 10% rating for that condition.
 The employee requested that the matter be heard prior to June 2011, and it was set on for a hearing in May of 2011. It was then the employee who requested a continuance, and the state shutdown delayed things further.