SALLY JENSRUD, Employee, v. EARTHLY CREATIONS and CASUALTY RECIPROCAL EXCHANGE, THE DODSON GROUP/ASU, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 1, 2002

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - SHOULDER. Substantial evidence, including expert medical opinions of the employee=s treating physicians,  supports the compensation judge=s finding that the employee had sustained 6% permanent partial disability of the whole body, pursuant to Minn. R. 5223.0450, subp. 4A 1(b) and 4B 1(b).

 

Affirmed.

 

Determined by Rykken, J., Johnson, C.J., Stofferahn, J.

Compensation Judge: Gregory A. Bonovetz.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee had sustained 6% permanent partial disability of the whole body relative to her left shoulder condition.  We affirm.

 

BACKGROUND

 

On January 8, 1999, Sally Jensrud, the employee, sustained an admitted work-related injury to her left shoulder while working for Earthly Creations, the employer, which was insured for workers= compensation liability by Casualty Reciprocal Exchange (The Dodson Group/ASU), the insurer.  On that date, the employee stepped off a stool, tripped over a bucket and fell on a concrete floor, fracturing the humeral head of her left shoulder.  The employee treated with Dr. Kenneth Etterman, family medicine specialist, who referred her to Dr. Matthew Eckman, physiatrist, in April 1999.  Dr. Eckman treated the employee on six occasions between May 11, 1999, and August 17, 2000.  In a medical record dated June 25, 1999, Dr. Eckman reported left shoulder flexion/extension of 70/240 degrees, glenohumeral abduction of 180/110 and external/internal rotation of 20/150 degrees.  In his report of August 6, 1999, Dr. Eckman outlined the employee=s work restrictions, addressed the issue of causation of the employee=s shoulder condition, and also stated that the employee=s Apermanency is to be determined and will mainly depend on the extent of residual contracture and/or pain and weakness and dysfunction.  It is possible over time that residual disability will be minimal.@  He concluded that the employee=s shoulder condition was slowly improving, and that he expected the improvement to continue for at least a year, afer which he could rationally make a determination about permanency at that time.[1]

 

In a later report issued on February 12, 2001, Dr. Eckman referred to the employee=s findings on examination that included residual contracture and associated weakness of the left shoulder consistently, and loss of function.  He outlined his recommendations for work restrictions, stated that her residuals from her injury had resulted in permanent partial disability, and opined that the employee had sustained 6% permanent partial disability of the whole body, based on the guidelines set forth in Minn. R. 5223.0450, subp. 4A 1(b) and 4B 1(b).  In that report, Dr. Eckman also stated that he had read the rules regarding permanent partial disability and had applied them in making his determination.  In a report dated January 10, 2002, Dr. Etterman agreed with Dr. Eckman=s opinion regarding the employee=s permanent partial disability rating, specifically stating that he had read the rules  regarding permanent partial disability and thought Dr. Eckman had fairly applied them. 

 

The employee was examined by Dr. Paul Wicklund at the employer and insurer=s request on June 15, 1999, and July 3, 2001.  At the June 15, 1999, examination, Dr. Wicklund recorded passive range of motion of 140 degrees in flexion, 120 degrees in abduction, 35 degrees in external rotation, and 70 degrees in internal rotation.  At the July 3, 2001, examination, Dr. Wicklund recorded passive range of motion of 155 degrees of forward flexion, 160 degrees of abduction, 45 degrees of external rotation, and 90 degrees of internal rotation.  In his report dated July 5, 2001, he concluded that the employee Ahas no permanency because she has passive motion past the point where she would receive any permanency according to the Workers= Compensation schedule.@  Dr. Wicklund opined that the employee had no permanent partial disability under the workers= compensation schedule.

 

By award on stipulation served and filed on November 16, 1999, the parties had settled the employee=s claim on a full, final and complete basis, with the exception of her claim for certain future medical expenses causally related to her January 8, 1999, work injury and her potential claim for permanency benefits.  By claim petition filed on June 6, 2001, the employee sought payment of benefits based on a rating of 6% permanent partial disability of the whole body, pursuant to Minn. R. 5223.0450, subp. 4A 1(b) and 4B 1(b).  The employer and insurer denied the claim, relying  upon Dr. Wicklund=s expert medical opinion.  A hearing was held on February 21, 2002, and in his findings and order served and filed on March 5, 2002, the compensation judge found that the employee had sustained 6% permanent partial disability of the whole body.  The employer and insurer appeal.[2]

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (2000).  Substantial evidence supports the findings if, in the context of the entire record, AThey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 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, A[f]actfindings are clearly erroneous only if the reviewing  court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

The employer and insurer argue that the compensation judge erred by finding that the employee met the requirements for 6% permanent partial disability of the whole body listed in  Minn. R. 5223.0450, subp. 4A 1(b) and 4B 1(b), asserting that the rule requires measurements based upon passive range of motion examinations and that the doctors= opinions relied upon by the compensation judge were erroneously based upon active range of motion examinations.[3]  Generally, a compensation judge's finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  As trier of fact, a compensation judge is responsible for determining the degree of disability after considering all evidence and relevant legal factors in a case, and medical testimony is considered helpful but not dispositive on the issue of  disability.  Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983); see Jensen v. Best Temporaries, 46 W.C.D. 498, 500 (W.C.C.A. 1992); Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 640 (Minn. 1989). 

 

The employee=s treating physicians, Drs. Eckman and Etterman, opined that the employee was entitled to 6% permanent partial disability based upon Minn. R. 5223.0450, which provides:

 

Subpart 1.  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.

*  *  *

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.

A.        Extent of range of flexion or extension:

  (1) extension is greater than zero degrees and flexion is:

                                    *  *  *

  (b) to between 121 degrees and 150 degrees, three percent;

*  *  *

B.         Extent of range of abduction or adduction:

  (1) adduction is greater than zero degrees and abduction is:

*  *  *

  (b) to between 121 degrees and 150 degrees, three percent.  

 

The compensation judge relied upon the treating physicians= opinions, noting that while their reports did not specifically list the measurements required by the rules, Dr. Eckman=s specific permanent partial disability findings resulted from the application of his findings to the Department of Labor and Industry disability schedules.   Although Dr. Eckman=s records of his examination of the employee do not specify whether the range of motion tests were active or passive, in his report wherein he provided his opinion regarding the employee=s permanent partial disability, he stated that he had read the rules, he cited the relevant rules, and applied them in making his determination.  Dr. Eckman had not examined the employee since August 2000, but the employee had continued to treat with Dr. Etterman through December 2001, according to her testimony, and  Dr. Etterman agreed with the permanency rating assigned by Dr. Eckman.   The compensation judge could reasonably rely upon Dr. Eckman=s and Dr. Etterman=s opinions in determining the level of the employee=s permanent partial disability.  Substantial evidence supports the compensation judge=s finding that the employee has sustained 6% permanent partial disability of the whole body pursuant to Minn. R. 5223.0450, subp. 4A 1(b) and 4B 1(b), as a result of her injury on January 8, 1999, and we affirm. 

 


[1] As noted by the compensation judge in Finding No. 6, although Dr. Eckman apparently examined the employee on four occasions subsequent to his June 25, 1999, examination,  none of those later treatment notes were offered into evidence.

[2] The employer and insurer attached an illustrative exhibit to their appellate brief, a graphical summary regarding the time and type of range of motion examinations.  This exhibit was not introduced into evidence at hearing.  On that basis, the employee requests that this illustrative exhibit be disregarded by this court.  The employer and insurer argue that this document is merely a graphical representation of key evidence previously presented in verbal form - - range of motion information.

The Workers= Compensation Court of Appeals= review is limited to evidence submitted to the compensation judge.  Vagts v. Tromco Elec., 48 W.C.D. 622 (W.C.C.A 1993).  Evidence not submitted at the hearing may not be considered by this court on appeal.  Since the illustrative exhibit was not submitted at hearing, this court has not considered the exhibit in rendering this decision.

[3] The employer and insurer also argue that the compensation judge erred by requiring an in-court demonstration of how the employee could move her arm, arguing that the compensation judge=s request of this demonstration was for an investigation of the employee=s credibility that was immaterial and irrelevant to the threshold issue of the employee=s passive ranges of motion.  The compensation judge noted in his memorandum that his Apurpose in this demonstration was not to permit the Court an opportunity to >eyeball= the degree of flexion or abduction or rotation but was designed to give the Court the opportunity to observe the employee=s visage, her countenance and her body mechanics while performing these maneuvers.@  The compensation judge stated that what he observed confirmed what had already been established during the course of the employee=s testimony, that the employee was a credible witness.  The compensation judge did not err by requesting this demonstration.