JAMES POWELL, Employee, v. PEERLESS INDUS. GROUP and NORTH RIVER INS. CO./CRUM & FORSTER INS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 11, 2002

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - PELVIS; RULES CONSTRUED - MINN. R. 5223.0490, SUBP. 2.  Minn. R. 5223.0490, subp. 2, does not prohibit the assignment of separate ratings for separate pelvic fracture lines, and substantial evidence, including expert opinion, supported the judge=s decision assigning three separate 5% ratings for the employee=s three pelvic fractures under this rule.

 

PERMANENT PARTIAL DISABILITY - WEBER RATING.  The record as a whole, including expert opinion, supported the compensation judge=s decision that the employee=s sacroiliac joint disruption was not specifically covered by the applicable permanent partial disability schedules and that a 14% rating was appropriate, by analogy to the schedules concerning lumbar fracture, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).

 

PERMANENT PARTIAL DISABILITY - UPPER DIGESTIVE TRACT; RULES CONSTRUED - MINN. R. 5223.0590, SUBP. 2A.  Anatomic loss or alteration alone is not sufficient to merit a 2% rating pursuant to Minn. R. 5223.0590, subp. 2A, and where the employee had absolutely no Asigns or symptoms of organic upper digestive tract disorder,@ as required by the rule, the compensation judge erred in awarding the employee benefits for a 2% whole body impairment.

 

Affirmed in part and reversed in part.

 

Determined by Wilson, J., Stofferahn, J., and Pederson, J.

Compensation Judge:  Catherine A. Dallner.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s award of permanent partial disability benefits for the employee=s pelvic fractures, sacroiliac joint dislocation, and upper digestive tract injury.  We reverse the award for upper digestive tract injury but affirm the remainder of the judge=s decision.

 

BACKGROUND

 

The employee began working for Peerless Industrial Group [the employer], a maker of chains and other products, in May of 1994.  On August 26, 1998, he sustained a work-related crush injury to his pelvis when he accidentally backed a standup forklift into an open gate, remaining pinned between the gate and the forklift controls for 30 to 90 seconds before help arrived.  After an initial assessment at a local hospital in Winona, Minnesota, the employee was transferred by ambulance to St. Mary=s Hospital in Rochester, where he was hospitalized for about two weeks.

 

Diagnostic tests and exploratory surgery revealed displaced pelvic fractures, sacroiliac joint disruption or dislocation, a mid amputation of the appendix, and a degloving of the distal ileum, a portion of the small intestine.  The sacroiliac joint disruption was treated by percutaneous insertion of two screws.  Abdominal surgery was performed to remove the appendix and repair the small intestine.

 

The employee was released from St. Mary=s Hospital on September 10, 1998, and spent the next three months on near-total bed rest.  He then underwent additional conservative care, including physical therapy, before being released to part-time light work in about May of 1999.  By about July of 1999, the employee had increased his hours to full time, but he continued to use medication, including narcotic pain relievers, to alleviate continuing hip and back symptoms.  He ultimately regained full range of motion in his hip but was left with an altered gait.

 

The employer and its insurer admitted liability for the employee=s work injuries and paid various benefits, including benefits for a 5% whole body impairment, for pelvic fracture, pursuant to Minn. R. 5223.0490, subp. 2B.  The employee eventually claimed entitlement to additional permanency benefits related to the August 26, 1998, work incident, and the matter came on for hearing before a compensation judge on April 2, 2002.^[1]  Evidence included the employee=s extensive medical records and the deposition testimony and reports of Drs. David Haaland and David Boxall, containing detailed opinions as to the extent of the employee=s permanent partial disability.

 

In a decision issued on July 2, 2002, the compensation judge accepted Dr. Haaland=s opinions as to most of the disputed permanent partial disability claims, concluding that the employee was entitled to three separate 5% ratings for pelvic fractures, a 14% rating, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), for the sacroiliac joint disruption, and a 2% rating for the upper intestinal tract injury.^[2]  The employer and insurer appeal.

 

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 (1992).  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, 59, 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

 

1.  Pelvic Fractures

 

Minn. R. 5223.0490 reads in relevant part as follows:

 

5223.0490.  Musculoskeletal Schedule; Pelvis

   Subpart 1.  General.  For permanent impairment to the pelvis, disability of the whole body is as provided in subpart 2.  Permanent impairments due to sprains or strains of the sacroiliac joints must be treated as lumbar regional pain syndrome and rated as provided in part 5223.0390, subpart 3.

 

* * *

   Subd. 2.  Fractures.

A.  Fracture, healed or ununited, without displacement demonstrated on medical imaging study, zero percent.

B. Healed fracture with displacement demonstrated on medical imaging study, and with persistent gait abnormality, five percent.

C. Ununited fracture with displacement demonstrated on medical imaging study, and with persistent gait abnormality, ten percent.

D. Persistent coccygodynia with or without coccyx fracture and with or without surgical treatment, zero percent.

E.  Fracture into acetabulum, the rating is the loss of range of motion at the hip as provided in part 5223.0500, subpart 4, and the rating under the categories of this part, and the final rating is the higher of the two, which may not be added or combined.

 

In accordance with the opinion of Dr. Haaland, the compensation judge awarded the employee benefits for three 5% ratings under Minn. R. 5223.0490, subp. 2B, for each of three healed pelvic fractures with displacement -- one rating for a fracture of the acetabulum, one for a fracture of the pubic ramus, and one for a fracture of the ischium.  On appeal, the employer and insurer concede that the August 26, 1998, work accident resulted in three fracture lines in the employee=s pelvis.  They argue, however, that the rules allow only one 5% rating for pelvic fracture, regardless of the number of fracture lines, and that the judge=s assignment of three separate ratings overcompensates the employee for his disability.  The employer and insurer also contend that two of the three fractures are simply not significant enough to warrant separate ratings.  Under the particular circumstances of this case, we are not persuaded by these arguments.

 

We see nothing in the rule concerning pelvic injury to suggest that multiple ratings may not be assigned in cases involving multiple fractures or fracture lines.  Moreover, the testimony of Dr. Haaland supports the judge=s conclusion that each of the three fractures in this case contributes to the employee=s functional impairment.  According to Dr. Haaland, all three fractures are displaced, all contribute to the employee=s altered gait, and at least two of the three predispose the employee to early onset of degenerative arthritis in his hip.

 

We are not unmindful of Dr. Boxall=s testimony that, because the pelvis is in essence a ring, multiple fractures are the rule, rather than the exception, in Ahigh-energy@ pelvic fracture cases; certainly the compensation judge could have chosen to accept Dr. Boxall=s opinion that a single 5% rating was adequate to compensate the employee for the pelvic fractures caused by his work-related accident.  We also emphasize that we do not intend to suggest that workers with multiple pelvic fractures are always entitled to separate ratings for each fracture or fracture line.  However, in this particular case, the compensation judge was entitled to conclude, given Dr. Haaland=s testimony, that three ratings were reasonably required to compensate the employee for the extent of the disability caused by the three pelvic fractures.  For this reason, and because the rule at issue does not by its terms expressly preclude multiple ratings in cases of multiple fractures, we affirm the judge=s decision of this issue.

 

2.  Sacroiliac Joint

 

As indicated above, Minn. R. 5223.0490, subp. 1, indicates that A[p]ermanent impairments due to sprains or strains of the sacroiliac joints must be treated as lumbar regional pain syndrome and rated as provided in part 5223.0390, subpart 3@ (emphasis added).  In this particular case, however, the employee=s work injury caused what the surgical report terms a Asacroiliac joint disruption,@ or Adisassociation,@ later characterized by Dr. Haaland as a dislocation.  Dr. Boxall testified that sacroiliac disruption or fracture is classified as a pelvic fracture and that his single 5% rating covers that condition as well as the three other pelvic fractures discussed in the preceding section of this decision.  Dr. Haaland, on the other hand, testified that the employee=s sacroiliac joint dislocation was a separate impairing condition, that it was not the equivalent of a strain or sprain, that it was not otherwise covered by the schedules, and that a 14% rating was appropriate, by analogy to Minn. R. 5223.0390, subp. 2B(2), covering vertebral fractures, in accordance with Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).  The compensation judge accepted Dr. Haaland=s opinion on this issue, explaining in her memorandum as follows:

 

Dr. Haaland reasonably rated the employee=s sacroiliac dislocation under the section of the Permanency Schedules referring to a vertebral fracture involving x-ray evidence or dislocation and, specifically, fracture and dislocation of a vertebral element with surgery performed and normal reduction achieved.  Minn. Rules 5223.0390, Subp. 2.B. (2).  In Mr. Powell=s case close to normal reduction was achieved with a slight widening of the sacroiliac joint remaining.  Dr. Haaland explained that the x-rays of the employee=s pelvis area show the wide disruption and proximal migration of the dislocation of the right sacroiliac joint.  Dr. Haaland explained that this injury, even after it is transfixed, will very likely be a cause of the employee=s ongoing discomfort due to scarring and lack of the normal mechanics of the sacroiliac joint.  Dr. Haaland reasonably explained that the employee=s sacroiliac joint dislocation is completely different from a strain or sprain.  This is the reason that Dr. Haaland did not rate the employee under the provisions of the disability schedule pertaining to sacroiliac joint sprains or strains.  Dr. Haaland explained that a dislocation is a disruption of all of the components that are holding the sacroiliac joint together.  With sprains or strains, there is still some ligamentous continuity with just a partial disruption of the fibers but no frank dislocation.  Because Mr. Powell suffered a frank dislocation, a separation of the joint components, it falls in a completely separate category, according to Dr. Haaland.  The category of the Permanent Partial Disability Schedules which most closely approximates Mr. Powell=s sacroiliac joint dislocation is the category as set forth above, which provides for a 14% permanent whole body impairment rating.

 

The employer and insurer=s primary argument with regard to this award is that this court=s holding in Mead v. Bradley Johnson Tiling Co., 58 W.C.D. 124 (W.C.C.A. 1997), compels the conclusion that the 5% rating, assigned by Dr. Boxall for the employee=s pelvic fracture, adequately compensates the employee for his sacroiliac disruption.  However, the employer and insurer=s argument on this issue misconstrues the import of Mead and illustrates a misunderstanding of this court=s review function.

 

In Mead, this court merely affirmed a compensation judge=s factual determination that a separate rating was not necessary to compensate the employee for the employee=s sacroiliac joint condition, concluding that Asubstantial evidence support[ed] the compensation judge=s finding that the employee failed to prove that he sustained [a sacroiliac] strain or sprain amounting to a lumbar pain syndrome@ or that the employee had a Areduced lumbar or hip function . . . not compensated@ by other ratings assigned for pelvic and other lumbar fracture.  Id. at 130-31.  As a case affirmed under the substantial evidence standard, Mead has little or no precedential value and certainly says nothing that would dictate denial of the employee=s Weber rating claim here.

 

The employee=s sacroiliac condition required fixation using two screws that were, apparently, nearly five inches long.  Dr. Haaland testified that the disability from the employee=s sacroiliac joint dislocation is significantly different than it would have been from a sprain or strain, and that none of the permanency rules specifically covers the employee=s sacroiliac condition.  While a 14% rating for this injury is arguably somewhat high given the employee=s normal hip and lumbar range of motion, we cannot conclude that the compensation judge erred in accepting Dr. Haaland=s opinion that the lumbar fracture rating rule most closely approximated the significance of the employee=s sacroiliac joint disruption.  As such, we also affirm the judge=s decision on this issue.

 

3.  Upper Intestinal Injury

 

The employee=s work accident resulted in mid amputation of the appendix and degloving of the distal ileum, a portion of the small intestine, and surgery was required to treat those injuries.  The compensation judge agreed with Dr. Haaland that the employee was entitled to a 2% rating pursuant to Minn. R. 5223.0590, subp. 2A, which provides as follows:

 

   Subd. 2.  Upper digestive tract.  Esophagus, stomach, duodenum, small intestine and pancreas.

A. Class 1, two percent.  Signs or symptoms of organic upper digestive tract disorder are present; there is anatomic loss or alteration, but treatment is not required; and weight can be maintained at the desirable level, as defined in part 5223.0310, subpart 20, by oral diet.

 

We reverse.  While it is undisputed that the employee has an Aanatomic loss or alteration@ and that the employee=s weight may be maintained by oral diet, it is also essentially undisputed that the employee has no Asigns or symptoms of organic upper digestive tract disorder,@ a separate requirement of the rule.  An anatomic loss or alteration alone does not satisfy the requirements for a 2% rating; in fact, the rules specifically contemplate a 0% rating for A[s]urgical removal or alteration of all or part of the . . . small intestine . . . not otherwise ratable under this subpart.@^[3]  Minn. R. 5223.0590, subp. 2E.

 

Dr. Haaland testified that a Aminimal@ rating was warranted because the employee had Asuch a high potential for problems in the future.@  However, if problems arise later, the employee may make a claim then.  As matters now stand, his intestinal condition merits a 0% rating, and the judge=s award of benefits for a  2% impairment is reversed.