Anderson v. The Salvation Army

SHARON ANDERSON, Employee, v. THE SALVATION ARMY, and ZURICH AMERICAN INS. GROUP/CHESTERFIELD SERVS., INC., Employer-Insurer/Appellants.

PERMANENT PARTIAL DISABILITY. Substantial evidence, including expert medical opinion and the employee=s testimony, supports the compensation judge=s finding that the employee=s permanent partial disability of the right knee and low back were causally related to the employee=s work injury.

PERMANENT TOTAL DISABILITY. Where the employee=s permanent partial disability is casually related to the employee=s work injury, the compensation judge did not err by finding that the employee=s permanent total disability was causally related to the employee=s work injury.

PRACTICE & PROCEDURE. Where the findings and order are supported by the record, the compensation judge's adoption of a party's proposed findings and order almost verbatim is not reversible error per se.

The employer and insurer appeal the compensation judge=s findings that the employee sustained permanent partial disability of the right knee and low back that was causally related to the her 1998 work injury and that the employee=s permanent total disability was causally related to her work injury. The employer and insurer also appeal the compensation judge=s findings and order as not conforming to Minn. Stat. ' 176.371. We affirm, as modified.

On December 16, 1998, Sharon Anderson, the employee, sustained an admitted work injury to her right knee and low back while working as a store manager for The Salvation Army, the employer, which was insured for workers= compensation liability by Zurich American Insurance Group, the insurer. Born on May 7, 1948, the employee was 50 years old on the date of her injury, and earned a weekly wage of $280.00. The employee tripped and fell backwards over a toaster oven that was placed behind her on the floor, hitting her head, and injuring both knees, her right ankle, her left chest and ribs, hips, low back, and neck. The employee initially treated with Paul Ramsey, a physician=s assistant, and was taken off work from December 17, 1998, through December 19, 1998. The employee returned to work, but continued to treat for her right knee and low back conditions.

The employee has earned a degree as a registered nurse. She began volunteering with the Salvation Army, the employer, in November 1996 and was hired as an employee in February 1997. She was later promoted to store manager in 1998. The employee has an extensive medical history of right knee and low back problems. The employee was involved in motor vehicle accidents in April 1986 and December 1987 in which the employee sustained blunt force trauma to her knees and which resulted in low back pain. The employee was diagnosed with arthritis by at least 1992. She underwent at least three surgeries to her right knee after her motor vehicle accidents and, in 1993, underwent a total right knee arthroplasty. By 1994, post-surgery x-rays indicated some loosening of the right knee prosthesis. In 1997, the employee underwent a total left knee arthroplasty. The employee has also continued to treat for chronic low back pain since at least 1992. By 1993, the employer was diagnosed with fibromyalgia. Between 1991 and 1996, the employer received Social Security Disability Income due, in part, to knee and low back pain.

On January 11, 1999, the employee consulted with Dr. T. Scott Douglass, whose chart note states that the employee=s knees were Aback to baseline@ but that he referred her to physical therapy. The employee continued to treat with Dr. Douglass, reporting ongoing right lateral hip with pain radiating down the right leg. On January 29, 1999, the employee treated at the Duluth Clinic in Hibbing for her work injury, reporting right knee and hip problems. On February 3, 1999, the employee underwent a lumbar CT scan, which indicated a bulging L5-S1 disc on the left S1 nerve root, a bulge at L4-5 and facet changes at L5-S1 and L4-5. On February 5, 1999, the employee consulted Dr. Joel Zamzow. X-rays taken that day of the right knee showed a bony ridge or loose body in the central joint space. Dr. Zamzow noted radiolucency underneath the tibial component, that the component was offset medially and off the lateral cortex, and radiolucency over the ingrown areas. The tibial component had not been documented as being offset medially before the work injury. Dr. Zamzow recommended a right total knee arthroplasty.

Following her injury on December 16, 1998, the employee also treated for her low back and underwent physical therapy. On March 1, 1999, the employee treated with Dr. Wolcott Holt at the Duluth Clinic in Hibbing for her low back pain. Dr. Holt diagnosed chronic low back pain complimented by fibromyalgia and chronic pain syndrome.

On April 9, 1999, the employee was examined by an orthopedist, Dr. Laura Trombino, at the employer and insurer=s request. Dr. Trombino diagnosed a low back strain and Aright total knee loosening.@ She noted that the employee had a pre-existing condition of fibromyalgia with some complaint of low back pain in the past, but opined that the employee=s work injury aggravated the employee=s low back condition considerably. She also concluded that it was unclear whether the work injury caused the loosening of the 1993 right knee replacement, since she did not have access to x-rays taken prior to the work injury. However, she also concluded that A[m]ore than likely the fall may have exacerbated the problem.@ Dr. Trombino concluded that the employee was not yet at maximum medical improvement (MMI) from her 1998 injury, for either her low back or right knee problem. She recommended a course of physical therapy and strengthening for the low back, and agreed that Aa right knee total knee revision will most likely improve this patient=s symptoms considerably.@

On November 17, 1999, Dr. Zamzow performed a right total knee revision arthroplasty and patella replacement. Dr. Zamzow found that the tibia was loose and evidence of osteolysis, and noted that the tibial component was offset medially. The employee remained off work through April 2, 2000; the employer and insurer paid temporary total disability benefits from October 28, 1999, through April 2, 2000. After a recovery period, the employee attempted to return to work on a light-duty basis from April 3, 2000, through December 4, 2000. The employee reported difficulties performing her job duties and by December 15, 2000, Dr. Jan Dawson restricted the employee from continued work; that restriction was supported by Dr. Zamzow. The employer and insurer resumed payment of temporary total disability benefits.

Dr. Zamzow opined that the employee=s 1998 work injury substantially aggravated the employee=s right knee condition and that her need for revision surgery on the right knee was causally related to that work injury. Dr. Zamzow rated the employee=s right knee at 27% permanent partial disability of the whole body.^[1] On April 5, 2002, Dr. Zamzow stated that the employee was totally disabled and that this Alikely will be long term/permanent.@ Dr. Dawson also opined that the employee=s 1998 work injury was a substantial aggravating factor leading to a repeat knee replacement surgery and rated the employee=s knee condition at 20% permanent partial disability. Dr. Dawson also found that the 1998 work injury aggravated the employee=s low back condition and rated that condition at 10% permanent partial disability of the whole body, pursuant to Minn. R. 5223.0390, subp. 3C(2).

On December 29, 2000, the employee filed a claim petition for ongoing temporary total disability benefits and retraining benefits, and later amended her claim for permanent total disability benefits commencing December 15, 2000.

On April 27, 2001, the employee was examined by orthopedist Dr. Jack Drogt at the employer and insurer=s request.^[2] In his reports dated April 27, 2001, and June 6, 2002, Dr. Drogt diagnosed a contusion to the employee=s right knee as a result of her December 16, 1998, injury but concluded that there was insufficient evidence to suggest a permanent aggravation to her right knee as a result of that injury. Dr. Drogt opined:

there is no evidence to suggest that [the employee] sustained any significant aggravation or loosening of the components of her right knee arthroplasty as a result of the work-related injury of December 16, 1998. I do believe [the employee] had a failing total knee replacement which was in the process of becoming increasingly more symptomatic well in advance of the work-related injury at issue. This is evidenced by the lucency noted under the tibial component before the work-related injury at issue, and the accelerating nature of her seeking medical care for knee pain. It is possible the work-related injury at issue substantially aggravated her existing knee condition, but there is no radiographic evidence for that.

Dr. Drogt also opined that the employee=s work-related low back injury was a temporary aggravation of her pre-existing low back condition. Although Dr. Drogt determined that the employee is entitled to a 10% permanent partial disability rating pursuant to Minn. R. 5223.0390, subp. 3C(2), he attributed that to her pre-existing condition and not to her work injury. Dr. Drogt also concluded that the employee had reached MMI from her work injury, with respect to both her low back and right knee. On May 14, 2001, the employer and insurer served the employee with notice of MMI, along with Dr. Drogt=s April 27, 2001, report.

On May 31, 2001, the employer and insurer filed a Notice of Intention to Discontinue Benefits, alleging that benefits would be discontinued based on the employee=s release to return to work without restrictions or, alternatively, that TTD benefits would cease on August 20, 2001, at the expiration of ninety days post-service of notice of MMI. By administrative decision filed on June 29, 2001, a compensation judge denied the employer and insurer=s request to discontinue benefits immediately but ordered discontinuance of benefits effective August 20, 2001. The employer and insurer objected to the order for continued payment of benefits, filing a petition to discontinue on July 13, 2001.

A hearing was held on June 14, 2002, to address the employee=s claim petition, the employer and insurer=s petition to discontinue and also a rehabilitation request that had been filed by the employee=s QRC on March 8, 2002. After the hearing, the parties each submitted a proposed findings and order. The compensation judge adopted the employee=s proposed findings and order with some modifications, and found that the employee had been permanently totally disabled since December 15, 2000, as a substantial result of her work injury on December 16, 1998. The compensation judge also found that the employee had sustained 27% permanent partial disability to the whole body due to her right knee condition, but apportioned 8% PPD to her pre-existing condition based on her 1993 total right knee arthroplasty, pursuant to Minn. Stat. ' 176.101, subd. 4a, allocating 19% PPD to the employee=s 1998 work injury. The compensation judge also found that the employee sustained a 10% permanent partial disability to the whole body due to her lumbar spine injury of December 16, 1998. Utilizing the multiple injury formula outlined in Minn. Stat. ' 176.105, subd. 4(c), the judge awarded permanency benefits based on a 27.1% permanent partial disability rating. The compensation judge also awarded payment of medical and rehabilitation expenses. The employer and insurer appeal from the award of permanent partial and permanent total disability benefits.

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. 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.

The employer and insurer appeal from the compensation judge=s finding that the employee sustained permanent partial disability as a result of her right knee and low back injuries of December 16, 1998. Relying on Dr. Drogt=s opinion, the employer and insurer argue that the employee=s work injury did not substantially contribute to the employee=s present condition and permanent partial disability.

An employee=s injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a pre-existing condition. Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975). An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought. Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989). 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).

The record contains the employee=s extensive medical records available for the compensation judge=s review. Before the employee=s work injury on December 16, 1998, the employee was able to work for over two years at a moderately physical position without restrictions even with her pre-existing knee and low back conditions. In February 1998, the employee=s knee condition was described as bilateral knee pain but with full range of motion. The employee=s right knee range of motion after the December 1998 work injury, tested by Dr. Zamzow in February 1999, was 0 to 75 degrees, and the employee eventually required a right total knee revision arthroplasty. Even after that surgery, the employee=s right knee range of motion was impaired. On May 25, 2001, her range of motion was 10 degrees to 55 degrees, on September 7, 2001, 8 degrees to 55 degrees, and on April 5, 2002, 8 degrees to 65 degrees. Dr. Zamzow, one of the employee=s treating physicians and the surgeon who performed her right knee surgery in 2001, opined that the employee=s 1998 work injury substantially aggravated the employee=s right knee condition and that her need for revision surgery on the right knee was causally related to the work injury.

Dr. Zamzow noted radiolucency underneath the tibial component, that the component was offset medially and off the lateral cortex, and radiolucency over the ingrown areas. The tibial component had not been documented as being offset medially before the work injury, although both Dr. Zamzow and Dr. Drogt concluded that it appeared the employee=s 1993 total right knee arthroplasty was failing; x-rays as early as March 18, 1994, showed a radiolucency of the right knee prosthesis. Dr. Dawson also opined that the employee=s 1998 work injury was a substantial aggravating factor leading to a repeat knee replacement surgery. X-rays taken of the right knee on February 5, 1999, indicated a bony ridge or loose body in the central joint space. Even Dr. Drogt, independent medical examiner, thought it was possible that the work-related injury substantially aggravated the employee=s existing knee condition, but stated that there was no radiographic evidence for that. Although the record contains conflicting medical opinions on the effects of the employee=s 1998 work injury, it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence, including the opinions of Drs. Zamzow and Dawson, supports the compensation judge=s finding that the employee=s 1998 work injury was a substantial contributing cause of the employee=s right knee condition and related permanent partial disability.

The employer and insurer also argue that the employee=s right knee was in better condition after her surgery than before her work injury, and therefore that the employee is not entitled to permanent partial disability benefits for her right knee, citing Kautz v. Setterlin, 40 W.C.D. 206, 410 N.W.2d 843 (Minn. 1987) and Grashorn v. Boise Cascade Corp., slip op. (W.C.C.A. Mar. 6, 2002). In Kautz, the supreme court held that when an employee is found medically able to work without restrictions and has suffered no residual disability from the work injury, the employee is not entitled to temporary total disability benefits. Kautz, 40 W.C. D. at 208, 410 N.W.2d at 845. In this case, the employee has continuing restrictions and sustained a permanent injury, therefore Kautz does not apply. See Trojanowski v. Primnet Data Sys,/Mailhouse, Inc., 56 W.C.D. 271 (W.C.C.A. 1997), rev=d with mem. (Minn. Mar. 18, 1997). In Grashorn, this court held that permanent partial disability was not payable where the employee=s loss of function after the work injury had been alleviated by surgery after another work injury, resulting in no impairment of function at the time of the hearing. The employer and insurer argue that the employee=s right knee was in better condition at the time of the hearing than before the work injury, and therefore that the employee is not entitled to any permanent partial disability for her right knee. The employee in Grashorn, however, had no loss of function at the time of hearing. In this case, the employee=s right knee was rated at 27% permanent partial disability, based upon 8% total knee replacement, 7% total patellar replacement, and 12% for loss of range of motion, by Dr. Zamzow. Therefore, Grashorn is also inapplicable in this case.

The employer and insurer further argue that the compensation judge=s rating, based upon Dr. Zamzow=s opinion, is not supported by substantial evidence. The employer and insurer claim that there are no medical records to support a rating for patellar replacement. Dr. Zamzow was the doctor who performed the employee=s right total knee revision arthroplasty in November 1999. The operating report for that procedure indicates that medial parapatellar arthrotomy was performed. That report states that A[t]he patella was cut removing about 10mm off the under surface of the patella@ and that a size 7 patellar component with a 12 mm polyethylene insert was used. Substantial evidence supports the compensation judge=s finding accepting Dr. Zamzow=s opinion, and we affirm.^[3]

The employer and insurer also appeal the compensation judge=s finding that the employee had sustained permanent partial disability related to her low back condition as a result of her 1998 work injury, arguing that the finding is speculative since her medical history indicates a pre-existing low back condition. Dr. Drogt opined that the employee=s low back injury in 1998 was, at most, a temporary aggravation of her pre-existing condition. Dr. Dawson, however, found that the work injury aggravated the employee=s low back condition and rated that condition at 10% permanent partial disability. Dr. Trombino, who evaluated the employee for the employer and insurer, opined that the employee=s work injury aggravated the employee=s low back condition considerably. In that the decision of the judge was both supported by expert medical opinion and was not unreasonable in view of the medical record as a whole, we affirm the compensation judge=s conclusion that the employee=s work injury was a substantial contributing cause of the employee=s permanent partial disability relative to her lumbar spine.

The employer and insurer argue that the employee=s permanent partial disability ratings were due to pre-existing conditions, and therefore that the employee is not entitled to permanent total disability benefits under Minn. Stat. ' 176.101, subd. 5. Under this statute, an employee who has sufficient ratable permanent partial disability from any cause may establish entitlement to benefits for permanent total disability where the employee=s physical disability causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income and the employee=s work-related injury is a substantial contributing cause of that disability. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239, 252 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997). A person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure employment. Schulte v. C.H. Peterson Construction Co., 278 Minn. 79, 153 N.W.2d 130, 133‑34, 24 W.C.D. 290, 295 (1967).

In November 2000, the employee=s job duties changed, requiring her to sit at her desk for long periods of time, and she experienced problems with her knees stiffening. The employee was taken off work on December 15, 2000, by Dr. Dawson. Dr. Dawson placed permanent restrictions on the employee of no lifting over ten pounds, no squatting, and no kneeling. Dr. Zamzow indicated on April 5, 2002, that the employee was totally disabled and that this Alikely will be long term/permanent.@ The employee=s QRC, Kim Eisenhuth, testified at the hearing that the employee was not competitively employable from and after December 5, 2000. The employer and insurer questioned whether there were nursing positions available for the employee, since she had worked as a nurse in the past. The QRC indicated that nursing positions were beyond the employee=s restrictions, and the employer and insurer presented no vocational testimony to the contrary.

Whether an employee has met the burden of proving permanent total disability is a question of fact. McClish, 336 N.W.2d at 541, 36 W.C.D. at 138. On appeal, the employer and insurer based their argument, that the employee is not permanently totally disabled, on their contention that the employee is not entitled to permanent total disability benefits as a result of her 1998 work injury since she sustained no permanent partial disability as a result of that injury. However, we conclude that the compensation judge's finding of permanent total disability is supported by substantial evidence, and we affirm that finding. We have also affirmed the compensation judge=s findings that the employee=s work injury was a substantial contributing cause of the employee=s permanent partial disability of her right knee and low back. Accordingly, we affirm the compensation judge=s finding that the employee=s permanent total disability is causally related to her work injury.

At the hearing, the compensation judge requested that counsel submit proposed findings and order post-hearing. The record in this matter closed on July 19, 2002, with the filing of proposed findings by each party, and the compensation judge issued his findings and order on October 22, 2002. The compensation judge=s findings and order correspond almost identically with the employee=s proposed findings and order, although the compensation judge made some revisions to the employee=s proposed findings and order.

The employer and insurer contend that the compensation judge erred by adopting the employee=s proposed findings and order largely verbatim. They argue that the compensation judge=s findings and order do not conform with Minn. Stat. ' 176.371, which provides in part:

The compensation judge to whom a petition has been assigned for hearing, shall hear all competent, relevant evidence produced at the hearing. All questions of fact and law submitted to a compensation judge at the hearing shall be disposed of and the judge's decision shall be filed with the commissioner . . . . The compensation judge's decision shall include a determination of all contested issues of fact and law and an award or disallowance of compensation or other order as the pleadings, evidence, this chapter and rule require. A compensation judge's decision shall include a memorandum only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses. A memorandum shall not contain a recitation of the evidence presented at the hearing, but shall be limited to the compensation judge's basis for the decision.

The employer and insurer argue that the adopted findings and order do not demonstrate that the compensation judge independently determined all of the contested issues of fact and law submitted to him, and that those findings and order do not show that he examined the evidence and made an independent decision supported by substantial evidence, as required by the statute.

We have stated in other decisions that submission of proposed findings or letter briefs at the conclusion of a hearing does not change the compensation judge=s obligation to review and evaluate the evidence in the record. Where the findings are supported by the record and by a sufficiently detailed memorandum, the adoption of proposed findings and order by the compensation judge is not reversible error. Goldman v. Bryn Mawr Nursing Home, slip op. (W.C.C.A. Nov. 23, 1998); Hagg v. Olympic Steel, Inc., slip op. (W.C.C.A. Sept. 1, 1998). As discussed in Goldman and Hagg, we continue to discourage the practice of a compensation judge's carte blanche use of proposed findings and order as the judge's decision. We prefer that the compensation judge mainly use the proposed findings as a guide or checklist and that the compensation judge redraft the findings and memorandum to reflect his or her independent judgment. However, the compensation judge in this case did not err by adopting the employee=s proposed findings and order since there is substantial evidence in the record, including voluminous medical evidence, expert medical opinions, rehabilitation records and testimony, by the employee, her QRC, a co-worker of the employee, and the employee=s husband, to support his findings. The compensation judge had the entire record available to him for review and he had the opportunity to hear the testimony and arguments presented at hearing. We again hold that the adoption of a party's proposed findings and order as the compensation judge's decision is not reversible error per se, and affirm the compensation judge's decision in this case.

^[1] Pursuant to Minn. R. 5223.0510, subp. 3C(2) (arthroplasty: total condylar, 8% rating) and 3C(3) (arthroplasty: patella replacement, 7% rating) with reference to subp. 4A(1)(c) (motion limited between 51% and 90%, 12% rating).

^[2] We note that Finding No. 51 refers to two examinations with Dr. Drogt. The employee was examined by Dr. Drogt on one occasion, April 27, 2001. He issued two reports, dated April 27, 2001, and June 6, 2002.

^[3] We note that in the first sentence of Finding No. 56, the compensation judge refers to a 12% permanent partial disability rating based on range of motion limited between 51_ and 90_, as found in Minn. R. 5223.0510, subp. 4A(1)(c) but he lists subp. 4A(1)(b). The correct reference to the rating schedule is Minn. R. 5223.0510, subp. 4A(1)(c), and so we modify the compensation judge=s Finding No. 56 to refer to a 12% rating based on Minn. R. 5223.0510, subp. 4A(1)(c).