RICHARD HANSON, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant, and THE HARTFORD INS. CO. and BLUE CROSS/BLUE SHIELD BLUE PLUS OF MINN., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JANUARY 22, 2002

 

HEADNOTES

 

APPORTIONMENT - PERMANENT PARTIAL DISABILITY.  Where the employee sustained two discrete injuries to different levels of the cervical spine, and where a specific permanency rating can be attributed to each injury, the compensation judge did not err in failing to reduce the permanency payable for the second injury by the permanency closed out in a stipulation following the first injury.

 

Affirmed.

 

Determined by: Johnson, J. and Rykken, J.

Compensation Judge: Peggy A. Brenden

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals from the compensation judge=s finding that the employee=s permanent partial disability (PPD) from a prior 1991 work injury was separate and distinct from the PPD arising from his 1998 work injury, and from the judge=s consequent determination that the employer was not entitled to reduce the 12.5 percent PPD awarded for the 1998 injury by the 11 percent PPD already paid for the 1991 injury.  We affirm.

 

BACKGROUND

 

The employee, Richard Hanson, began working for the employer, the University of Minnesota, as a building and grounds worker in January 1980.  His primary job for the employer has been stripping and waxing floors and cleaning carpets.   He sustained an admitted work-related injury to the C6-7 level of his spine culminating on August 27, 1991.  (Stipulation 5; Findings 1, 3  [unappealed]).

 

The employee was initially seen at the Aspen Medical Group by Dr. Lee Toman, M.D., who diagnosed a right C7 radiculopathy.  The employee was ultimately referred to a neurosurgeon, Dr. Max E. Zarling, M.D., at Neurosurgery Associates, Ltd., who saw the employee on November 14, 1991.  The employee=s symptoms at that time included pain and paresthesias in the right arm, radiating from the right side of his neck into the trapezius muscle and severely into the right elbow and hand.  Dr. Zarling diagnosed a C7 radiculopathy on the right side, likely secondary to a herniated disc or spur.  He recommended a cervical myelogram with a follow-up CT scan, and further recommended that, if a herniated disc was shown on the tests, the employee should undergo a laminectomy.

 

 The cervical myelogram, performed on November 20, 1991 showed a pronounced extradural impression of  the right-sided C7 nerve root at the C6-7 disc space level.  The remainder of the nerve roots were unremarkable.  A CT scan performed on the same date showed a right-sided disc herniation at the C6-7 level which correlated with the defect seen on the myelogram.  A tiny midline disc herniation without nerve root compression was also present at the C4-5 level, and a small to moderate sized disc herniation was present at C5-6 with some deviation of the cord at that level.

 

On December 12, 1991 Dr. Zarling performed a laminectomy and excision of the herniated disc at C6-7.  The employee was released to return to work at light duty with a 25-pound lifting limitation, effective February 3, 1992.  On March 19, 1992 the employee=s lifting limitation was changed to 40 pounds.  The employee testified he returned to work without restrictions some time in 1992, and thereafter had no restrictions or limitations at home or work through April 27, 1998.  In conjunction with a stipulation for settlement on a date not disclosed by the record, permanent partial disability from the 1991 injury was closed out to the extent of 11 percent of the whole body.

 

The employee sustained another injury at work on April 27, 1998.  The employee was cleaning at the Raptor Center building on the employer=s St. Paul campus when he fell while trying to lift a garbage can full of wet bird seed, landing on his left arm and side.  He immediately experienced pain in the left arm and in his neck.

 

The employee was seen on the date of injury at the Fairview University Hospital where he was advised to ice his shoulder and neck.  He was seen in follow-up on May 1, 1998 by Dr. Terry G. Domino, M.D., who diagnosed left shoulder tendinitis and prescribed physical therapy.  On June 11, 1998, Dr. Domino noted that the employee=s symptoms had not continued to improve and that the employee still had radiating pain from the left side of his neck down the left arm to the fourth and fifth digits of his left hand.  His chart notes for that date relate a concern that the employee may have either a new herniated cervical disc or a recurrent cervical disc from his previous surgery.  He ordered an MRI scan to investigate this possibility.

 

On July 10, 1998, Dr. Domino stated that the employee=s MRI scan showed an impingement syndrome of the left shoulder and bilateral foraminal stenosis at the C5-6 spinal level.  Dr. Domino referred the employee to an orthopedic physician, Dr. David W. Boxall, M.D., who saw the employee on July 24, 1998.  Dr. Boxall considered the employee=s neurologic examination of the upper extremities to be normal.  He did not believe that the employee needed surgery, but suggested that the employee undergo an epidural steroid injection to the neck.

 

The employee returned to Dr. Domino on July 31, 1998 and again on August 17, 1998 after a second visit to Dr. Boxall.  Dr. Domino then referred the employee back to Dr. Zarling for neurosurgical evaluation.  Dr. Zarling saw the employee on September 28, 1999 and initially recommended continuation of conservative management.  However, on December 3, 1998 Dr. Zarling recommended that the employee undergo a discectomy and fusion at C5-6 for cervical spondylosis and foraminal narrowing at that level.

 

Dr. Gilbert Westreich, M.D. examined the employee on January 11, 1999, on behalf of the self-insured employer.  Dr. Westreich found Ano evidence of any cervical damage, pinched nerve or any neurogenic process that was secondary to the incident of April 27, 1998.@  He opined that the employee=s injury on that date was likely Aa muscle strain to his neck@ from which maximum medical improvement had been reached.  He considered the April 27, 1998 injury to be unrelated to the employee=s 1991 work injury.  In his view, further surgery would be inappropriate and unnecessary.

 

The employee underwent an anterior discectomy and fusion at the C5-6 level on March 19, 1999.   Between the date of the 1998 injury and the surgery, the employee had been restricted from heavy work and was given light-duty work with the employer dusting and washing windows.  The employee was temporarily totally disabled from March 19, 1999  through April 18, 1999 while recovering from his surgery.  Thereafter, he again returned at first to light-duty work with the employer for about two months, after which he was able to return to work without restrictions.  The employee testified that the symptoms he had experienced since the 1998 work injury, consisting primarily of tingling and pain through his left arm and into his fingertips, neck pain and headaches, resolved after the surgery.

 

In two reports, Dr. Zarling stated the employee=s 1991 injury, and consequent surgery for a herniated disc at the C6-7 spinal level, were not substantial contributing factors either to the 1998 injury or to the surgery performed in March 1999, which was for spondylosis at the C5-6 level to which the 1998 work injury was a substantial contributing factor.  He rated the employee=s permanent partial disability due to the 1998 work injury and surgery at 12.5 percent.

 

The employee filed a claim petition on March 31, 2000.  On February 24, 2000, the self-insured employer answered alleging that any injuries the employee sustained on April 27, 1998 were limited to sprains and strains of his left neck, shoulder and arm, for which surgery was not required, and that the employee had reached maximum medical improvement pursuant to the opinion of Dr. Westreich.

 

A compensation judge of the Office of Administrative Hearings heard the case on May 3, 2001.  Among the issues presented were the (1) nature and extent of the work injury sustained on April 27, 1998, (2) whether the employee=s temporary total disability from March 19, 1999 through April 19, 1999 was causally related to the 1998 work injury and (3) whether the self-insured employer should reimburse the medical expenses for the employee=s surgery and other treatment, which had been paid by an intervenor, Blue Cross and Blue Shield and Blue Plus of Minnesota.  The employee claimed entitlement to a 12.5 percent permanent partial disability of the cervical spine as a result of the 1998 work injury.  The self-insured employer disputed both the extent and cause of any permanency, and further contended that, in the event the judge should find that the employee had sustained a permanent partial disability to the cervical spine, the employer should be permitted to deduct from the amount of such permanency the 11 percent rating closed out for the 1991 injury.

 

In unappealed findings, the compensation judge found that the employee=s 1998 work injury was a substantial contributing factor to the need for surgery in March 1999 and to the lost time from work from March 19, 1999 through April 19, 1999 (Finding 11).  The judge further found that the employee had sustained a 12.5 percent whole-body permanent partial disability as a result of injury to his spine at C5-6, to which the 1998 work injury was a substantial contributing factor (Finding 12).  Finally, the judge found that the 11 percent permanent partial disability previously closed out following the 1991 work injury is separate and distinct from the 12.5 percent permanency awarded as a result of the 1998 injury, and that the employer was therefore not entitled to deduct the 11 percent permanency from the 12.5 percent permanent partial disability awarded (Finding 13, Order 2).  The self-insured employer appeals solely from Finding 13 and Order 2.

 

DECISION

 

The sole issue presented in this appeal is whether the compensation judge erred in failing to reduce the 12.5 percent permanent partial disability awarded to the employee by the 11 percent permanency closed out following the employee=s prior, 1991 work injury^[1].  The employer cites Minn. Stat. ' 176.101, subd. 4a, which provides in certain circumstances for the apportionment of responsibility for disability between a pre-existing condition and a subsequent work injury.^[2]  However, as the self-insured employer acknowledges, the facts of the present case are factually similar to those in Fleener v. CBM Indus., 564 N.W.2d 215, 56 W.C.D. 495 (Minn. 1997), in which our supreme court held that apportionment under subd. 4(a) is not applicable where a case simply involves attributing a specific permanency rating to each of two discrete work‑related injuries.

 

In Fleener, the employee sustained a work‑related low back injury in 1989 which resulted in disc herniations at L3‑4 and L4‑5.   In 1993, while employed by a different employer, the employee sustained another work‑related injury to his low back which resulted in a disc herniation at  L5‑S1.  The compensation judge determined that the employee had a 7% whole body impairment as a result of the 1993 injury alone and declined to apply Minn. Stat. ' 176.101, subd. 4a, to reduce the second employer and insurer=s liability for permanent partial disability benefits.  On appeal, a divided panel of this court affirmed the judge=s decision.  The employer and insurer then appealed the matter to the supreme court.  After discussing the underlying differences between the permanent partial disability schedules applicable to the 1989 injury and those applicable to the 1993 injury, the court, with one justice dissenting, noted that it would be Asomewhat presumptuous . . . to meld apparently incompatible methods of measuring disability without further guidance, particularly where the pre-existing disability was closed out to a stipulated rating years before the adoption of the new schedules.@  Id. at 217, 56 W.C.D. at 498‑99.  The court then went on to explain as follows:

 

In any event, this case is not, as the compensation judge and WCCA majority concluded, about the allocation of responsibility for disability between a pre-existing condition and a subsequent work injury.  Instead, this case is more about attributing a specific permanency rating to each of two discrete work‑related injuries, in which case the allocation of responsibility for those injuries to the pre-existing condition and the work injury does not implicate statutory apportionment.  Cf. Kulp v. Sheraton Ritz Hotel, 450 N.W.2d 296, 299 (Minn. 1990), citing Marose v. Maislin Transp., 413 N.W.2d 507, 513 (Minn. 1987).  "The employee settled his claim for permanent partial disability benefits resulting from the 1989 injury. [The second employer is] liable for the permanent disability which resulted from the 1993 injury."  Fleener v. CBM Industries, [56 W.C.D. 487, 491] (WCCA 1996).  The WCCA properly affirmed the compensation judge=s award.

 

Id.

 

The self-insured employer  argues that Fleener should be distinguished from this case on the basis that the evidence does not justify a finding that the employee sustained two separate and distinct injuries to the cervical spine.  This argument is actually based an issue of fact rather than of law.  Accordingly, our review of the judge=s finding that the employee=s 1991 and 1998 injuries were separate and distinct is limited to whether the judge=s findings were supported by substantial evidence.

 

Among the evidence supporting the compensation judge=s finding, we note, first, that the medical problem treated surgically as a result of the employee=s 1991 work injury was a disc herniation at the C6-7 level, which resulted in symptoms from the employee=s neck down into his right arm and hand.  The 11 percent permanency closed out following the 1991 injury was based on a C6-7 herniation and surgery.  Following the employee=s recovery from the surgery, his right-sided symptoms resolved and he returned to work without restrictions.  Following the employee=s 1998 work injury, he experienced symptoms from his neck down into his left arm and hand.  An MRI scan did not show a recurrence of the C6-7 herniated disc but did show spondylosis at the C5-6 level, which was treated surgically in March 1999, after which the employee=s left extremity symptoms and neck pain resolved.  In addition, there was expert medical evidence in the form of the opinion of Dr. Zarling who opined that the 1991 injury did not contribute to either the 1998 injury or the 1999 surgery occasioned by the latter injury.  Although Dr. Westreich opined the employee sustained only a strain/sprain injury in 1998, he also opined that the 1991 work injury was not causally related to the employee=s 1998 injury and subsequent disability.  No expert opinion was offered suggesting any connection between the injuries.  Clearly, on this record there was more than sufficient evidence to support the compensation judge=s finding.

 

The self-insured employer next argues that the compensation judge should have focused Anot . . . on each individual level of the cervical spine, but rather on overall functional loss to the cervical spine as a whole.@  It argues that under such an approach, the employee could be viewed as having a single disability arising from both the 1991 and 1998 injuries, so that apportionment would be appropriate.  This method was suggested in a dissenting opinion in this court=s initial decision in the Fleener case, but this approach was adopted neither by this court nor by our supreme court on review.   There is nothing in either the specific facts of this case nor in the arguments raised by the employer which persuades us that it should be adopted here.