JOYCE E. MAKOWSKY, Employee/Appellant, v. ST. MARY'S MEDICAL CTR., SELF-INSURED/BERKLEY RISK ADM'RS, Employer.

 

WORKERS' COMPENSATION COURT OF APPEALS

MAY 2, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - THRESHOLD; STATUTES CONSTRUED - MINN. STAT. ' 176.101, subd. 5.  Where as a result of the employee's work-related injuries, the employee has sustained 12.5% permanent partial disability of the whole body and is permanently totally disabled on a medical and vocational basis, and where the employee would be entitled to receive permanent total disability benefits but for the permanent partial disability threshold requirement of Minn. Stat. ' 176.101, subd. 5, the case is remanded to the compensation judge for determination of whether the employee is entitled to an additional permanency rating relative to her psychological condition, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990),.

 

PERMANENT PARTIAL DISABILITY - WEBER RATING.  Where the employee has a psychological condition which may have resulted in functional impairment and which is not included in the Workers' Compensation Permanent Partial Disability Schedules, Minn. R. 5223.0010 et seq., the case is remanded to the compensation judge for determination of whether and what Weber rating should be assigned to the employee relative to that condition.

 

PERMANENT PARTIAL DISABILITY - PSYCHOLOGICAL CONDITION; STATUTES CONSTRUED - MINN. STAT. ' 176.105, subd. 1(c).  Where the employee has a psychological condition which may have resulted in functional impairment and which is not included in the Workers' Compensation Permanent Partial Disability Schedules, and where the employee's diagnosis does not include each of the specific criteria outlined in the category in the permanency schedules "most similar" to that non-scheduled condition, the employee may still qualify for a Weber rating analogous to that category even though her diagnosed condition does not include  those specific criteria, as there is no requirement that any particular category in the schedule be applied, or that the injury met the specific requirement of any given category.  See Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990) and Minn. Stat. ' 176.105, subd. 1(c).  

 

Vacated in part and remanded in part.

 

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

Compensation Judge: Gregory A. Bonovetz

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge's determination that, although the employee is medically and vocationally permanently totally disabled, she has failed to meet the permanent partial disability threshold requirement of Minn. Stat. ' 176.101, subd. 5, and therefore is not entitled to permanent total disability benefits under the provisions of the Minnesota Workers' Compensation Act.  We vacate and remand for reconsideration.

 

BACKGROUND

 

Joyce C. Makowsky, the employee, began working for St. Mary's Medical Center, the employer, in August 1978, and worked in the housekeeping department between 1980 and October 1999.  On December 2, 1993, the employee sustained an admitted low back injury while replacing the pad on a floor buffing machine.  Born in 1945, the employee was 48 years old on that date and earned a weekly wage of $347.59.  On that date, the employer was self-insured for workers' compensation liability in the state of Minnesota.

 

The employee sought treatment at the Duluth Clinic, was initially diagnosed with a left on right posterior torsion and thoracolumbar segmental dysfunction, and was prescribed physical therapy.  By January 1994, the employee had been referred to Dr. John E. Downs, Occupational Medicine Department.  She was eventually diagnosed as having chronic mechanical low back pain, multi-level degenerative joint disease, and degenerative disc disease.  The employee was temporarily partially or temporarily totally disabled from employment between March 28 and August 21, 1994, and thereafter continued to work for the employer. 

 

Since her injury of December 2, 1993, the employee has experienced a 'stabbing" pain in her low back, and at times has sustained near-debilitating pain in her low back.  Following that injury, the employee was assigned rather stringent work restrictions, including weight limitations and restrictions on the type of activities she could perform; the employer consistently accommodated those work restrictions.  However, the employee sustained an aggravating injury to her low back and midback on October 5, 1999, while moving chairs.  Since that injury the employee has been unable to maintain an upright posture while standing, and she has been restricted entirely from work by her treating physicians.  The employer admitted liability for the October 5, 1999, injury, and has paid temporary total disability benefits since that injury, based on a weekly wage of $424.26.  The employer has also paid the employee permanency benefits based on a rating of 10 % permanent partial disability of the body as a whole due to her lumbar spine injuries and 2.5 % due to her thoracic spine injury.   In early 2000, the employee was determined to be entitled to Social Security disability benefits.

 

On March 21, 2000, the employee filed a claim petition, claiming entitlement to permanent total disability benefits since October 6, 1999.  In its answer to the employee's claim petition, the employer challenged the employee's permanent total disability claim on several grounds, asserting, among other things, that the employee's claim petition contained no medical documentation of any permanent partial disability beyond what was already paid to the employee.

 

On August 28, 2000, the employee's treating physician, Dr. John E. Downs,  expressed an opinion that he considered the employee "to be more probably than not permanently totally disabled."  The employee's qualified rehabilitation consultant (QRC) testified that from a vocational standard, the employee is permanently totally disabled.  Also, Dr. Jack Drogt conducted an examination of the employee on October 27, 2000, on behalf of the self-insured employer, and concluded that, given her current presentation, the employee is incapable of working full-time and is probably permanently and totally disabled.

 

During the pendency of litigation, the employee asserted that her non-work related psychological condition qualifies her for an additional permanency rating.  Since approximately 1985, the employee has received medical treatment for a chemical imbalance which has manifested itself in anxiety, panic attacks and depression.

 

Medical experts differ on whether the employee's psychological condition is ratable under the permanency schedules.  The physician with whom the employee has treated for her chemical imbalance, Dr. Carol Farchmin, assigned a permanency rating of 10 % permanent partial disability of the body as a whole, referring to Minn. R. 5223.0360, subp. 7.  Dr. John E. Downs, the employee's treating physician for her spinal condition, addressed the employee's psychological condition in his report of December 12, 2000, stating, in part, that:

 

Dr. Martinson provided outpatient Psychology treatment for her on November 29, 1999, and because of her ongoing problems with emotional disturbance, I feel that she carries an equivalent of a 10 percent PPD rating under 5223.0360, subp. 7.D-1, which is an additional 10 percent.

 

(Ee. Ex. J.)

 

At the request of the employer, Dr. Thomas Gratzer conducted a psychiatric evaluation of the employee on April 23, 2001.  Based on that examination, Dr. Gratzer reported the following: "The profile was consistent with an Axis I diagnosis of a somatoform disorder and an anxiety disorder and an Axis II diagnosis of personality disorder, either dependent personality disorder or mixed personality disorder with dependent and avoidant features."  (Er. Ex. 10.)  Dr. Gratzer also diagnosed the employee with a panic disorder and agoraphobia, under pharmacological control, and somatization disorder.  He noted that her anxiety symptoms had been under reasonable control with Nardil since 1986, and that her anxiety symptoms predated her work-related injuries.  When asked to render an opinion as to whether the employee has sustained permanent partial disability relative to her psychiatric condition, Dr. Gratzer stated that "[i]n my opinion the medical records do not document any anatomic loss, alteration or objectively measurable neurologic deficit.  At least one of these must be present before a disability rating can be considered under the state of Minnesota Permanent Partial Disability Schedule, Section 5233 [sic].0360, subp. 7."^[1]

 

This matter was heard before a compensation judge on June 5, 2001.  In addition to claiming entitlement to permanent total disability benefits, the employee challenged the constitutionality of the requirement for minimum levels of permanent partial disability set forth in Minn. Stat. ' 176.101, subd. 5(2)(b).   In Findings and Order served and filed June 14, 2001, the compensation judge concluded "that based on the employee"s profoundly restricted physical condition, her age (55), her training, her experience and the type of work available in the community the employee is permanently totally disabled."  (Finding 23.)  This finding was not appealed.  However, the compensation judge found that the employee does not qualify for an additional permanency rating relative to her psychological condition and therefore has not met the 15 percent permanent partial disability requirement of Minn. Stat. ' 176.101, subd. 5(2)(b).  He accordingly denied the employee's claim for permanent total disability benefits.  The employee appeals.

 

STANDARD OF REVIEW

 

"[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).

 

DECISION

 

Minn. Stat. ' 176.101, subd. 5 (2)(b), as amended effective on October 1, 1995, contains required thresholds of disability applicable to Minnesota permanent total disability claims, and provides in part as follows:

 

Subd. 5.  Definition.  For purposes of subdivision 4,^[2] "permanent total disability" means only:

(1) the total and permanent loss of the sight of both eyes, the loss of both arms at the shoulder, the loss of both legs so close to the hips that no effective artificial members can be used, complete and permanent paralysis, total and permanent loss of mental faculties; or

(2) any other injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee must also meet the criteria of one of the following clauses:

  (a) the employee has at least a 17 percent permanent partial disability rating of the whole body;

  (b) the employee has a permanent partial disability rating of the whole body of at least 15 percent and the employee is at least 50 years old at the time of injury; or

  (c) the employee has a permanent partial disability rating of the whole body of at least 13 percent and the employee is at least 55 years old at the time of the injury, and has not completed grade 12 or obtained a GED certificate.

 

(Emphasis added.)

 

The employee in the present case was 54 years old on the date of her 1999 work injury, meaning that, under subdivision 5(2)(b), a 15 % whole body rating is a prerequisite to an award for permanent total disability. It is undisputed that the employee has sustained a 12.5 % whole body rating, attributable to her 1993 and 1999 work-related injuries.  It is also undisputed that the employee is permanently totally disabled from a medical, physical and vocational perspective.  However, the compensation judge found that the employee lacks an additional 2.5% whole body impairment and therefore that she has not has not met the 15% permanent partial disability requirement set forth in the statute. He stated that "[b]ut for the 15% permanent partial disability requirement of Minn. Stat. ' 176.101, subd. 5 the employee would be entitled to receive permanent total disability benefits."  (Memo., p. 8.)

 

This court first had an opportunity to construe the threshold ratings of permanent partial disability, set forth in subdivision 5, in Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff'd (Minn. Oct. 28, 1997), in which the issue was whether non-work-related permanent partial disability may be counted toward the threshold permanency ratings.  After discussing the statutory language and longstanding case law principles, the court held that.

 

[A]n employee who has sufficient ratable permanent partial disability from any cause may establish entitlement to benefits for permanent total disability if he or she meets the remaining eligibility requirements - - that is, if "the employee"s physical disability . . . causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income," id.; see also Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967) - - as long as the employee's work-related injury is a substantial contributing cause of that disability.

 

Id. at 252 (emphasis in original).

 

In a subsequent case, Metzger v. Turck, 59 W.C.D. 229 (W.C.C.A. 1999), this court held that, in establishing the permanent partial disability thresholds for permanent total disability, "any substantial ratable permanent partial disability will satisfy that goal, whether or not that permanent partial disability is a factor in the employee's wage loss or inability to work."  Metzger, 59 W.C.D. at 237.  In this case, the sole barrier to the employee's award of permanent total disability status is her level of permanent partial disability.

 

The employee claimed that due to her psychological condition, she meets the statutory threshold for permanent total disability.  She contended that since her psychological condition is not specifically addressed in the permanency schedules,^[3] that condition should be assigned a Weber ^[4] rating of 10% whole body impairment, analogous to the rating set forth in the rules at Minn. R. 5223.0360, subp. 7D(1), as that is the "most similar condition that is rated" in the permanency schedules.^[5]  Quoting from the rule concerning the central nervous system and brain dysfunction, the compensation judge determined that the employee did not qualify for a Weber rating solely on the basis that she did not meet that rule's specific criteria of "anatomic loss, alteration or objectively measurable neurologic deficits."  He concluded that,

 

31.     The Court specifically finds that the presence and persistence of anatomic loss or alteration or objectively measurable neurologic deficits constitutes a threshold requirement without which a permanent partial disability rating for brain dysfunction is not possible.

 

32.     No anatomic loss, alteration or objectively measurable neurologic deficits are documented in the medical records pertaining to the employee.

 

33.     The employee has not met the 15% permanent partial disability requirement of Minn. Stat. ' 176.101, subd. 5 (2) (b).

 

Findings No. 31-33.)  The narrow issue before the court, therefore, is whether the compensation judge's denial of a permanent partial disability rating for the employee's psychological condition was legally correct.

 

The employee is diagnosed with anxiety, somatoform and personality disorders, for which she is prescribed medication; she asserts she is not diagnosed with a disorder of the central nervous system nor a brain dysfunction, as addressed by Minn. R. 5223.0360, subp. 7D(1), and that her non-scheduled psychological condition requires a Weber rating, analogous to the "most similar" category of the permanency schedules.  The employer argues that the employee is not entitled to a Weber rating, as her condition is addressed in the permanency schedules and that a Weber rating is inappropriate where detailed, specific ratings are provided in the schedules and the requested departure from the schedules is based on subjective criteria.

 

While the factors of "anatomic loss, alteration or objectively measurable neurologic deficits" are required for rating a scheduled brain dysfunction injury, a Weber rating for a "most similar" non-scheduled condition does not require those specific criteria.

 

The purpose of a Weber rating is to approximate the functional loss suffered by the employee by comparing the disability to similar losses included in the schedule.  Since a non-scheduled injury, by definition, falls outside the schedule, there is no requirement that any particular category in the schedule be applied, or that the injury meet the specific requirements of any given category.  Rather, the permanency schedule provides a point of reference, for the purpose of comparison, to ensure some objectivity and consistency in the permanency ratings made.

 

Crain v. Riverview Healthcare Ass'n, slip op. (W.C.C.A. Nov. 9, 1998).  In analyzing whether Weber or the statute is applicable, it is helpful to consider "whether the kind of impairment and/or level of impairment sustained is included in the category in the permanency schedule" and also, "if the impairment or level of impairment does not fall within or meet the requirements of any of the rating categories in the schedules, what rating category, or method of rating, included in the schedule most closely approximates the level of the employee's functional impairment."  Jarvi v. City of Grand Rapids, 51 W.C.D. 36 (W.C.C.A. 1994); see also Tupa v. Farmers Co-op Elevator, slip op. (W.C.C.A. Dec. 12, 2001).

 

Under applicable case law, the compensation judge erred in evaluating the permanent partial and corresponding permanent total disability issues.  Therefore, we vacate the compensation judge's findings that the employee is not entitled to a permanency rating for her psychological condition and that the employee has not met the 15 % permanent partial disability threshold.  We remand for the compensation judge's determination of whether the employee is entitled to a  Weber rating relative to any functional impairment resulting from her psychological condition.  If the compensation judge finds that the employee's condition entitles her to a Weber rating, he should then determine the extent of her disability of the body as a whole, using the "most similar" description of the employee's psychological condition found in the permanency schedules.  Depending upon the compensation judge's determination of any additional permanency rating, the judge should then consider whether the employee has met the thresholds set forth in Minn. Stat. ' 176.101, subd. 5, and therefore whether she is permanently totally disabled and entitled to permanent total disability benefits.

 

As this court lacks jurisdiction to address the employee's challenge to the constitutionality of the threshold requirements set forth in Minn. Stat. ' 176.101, subd. 5 (2)(b), we do not address that issue.  See Weber, 461 N.W.2d at 919, 43 W.C.D. at 473.