Boney v. NEI Bottling Co.

JOHN D. BONEY, Employee, v. NEI BOTTLING CO., SELF-INSURED, adm=d by MINNESOTA SOFT DRINK ASS=N/BERKLEY RISK ADM=RS, Employer-Insurer/Appellants, and NORTH COUNTRY REG'L HOSP. and CHIROPRACTIC SPORTS & SPINAL REHABILITATION, Intervenors.

PERMANENT PARTIAL DISABILITY - HERNIA. The compensation judge=s award of five percent permanent partial disability benefits under Minn. R. 5223.0600, subp. 7.A.(1), based on the employee=s groin pain following two hernia operations, is not supported by substantial evidence, and is reversed.

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. The compensation judge=s award of a 3.5 percent whole body disability of the low back, is supported by minimally adequate evidence including the disability evaluation opinion of Dr. Wilson, the employee=s testimony, and medical treatment records.

The self-insured employer appeals from the compensation judge=s award to the employee of a five percent whole body disability for a hernia injury and a 3.5 percent whole body disability of the low back. We affirm in part and reverse in part.

John D. Boney, the employee, sustained a personal injury on January 11, 1999, while working for NEI Bottling Company, self-insured, with claims administered by the Minnesota Soft Drink Association/Berkley Risk Administrators. The nature of the employee=s injury was a right inguinal hernia for which the employer admitted liability. On January 29, 1999, Dr. Jerry Thompson performed a right inguinal hernia repair. Following the surgery, the employee was off work for two to three weeks and then returned to work with the employer.

In June 1999, the employee noticed a gradual onset of low back discomfort. He sought chiropractic treatment with Todd E. Wickmann, D.C., on June 28, 1999, complaining of low back pain. On examination, Dr. Wickmann found limited range of lumbosacral motion and muscle spasm and diagnosed a lumbar sprain/strain. The employer admitted liability for a personal injury on June 28, 1999. On July 28, 1999, the employee saw Dr. Bruce Wilson at MeritCare Clinic in Bemidji. Dr. Wilson diagnosed a musculoligamentous repetitive motion back strain caused by work activity. The doctor recommended two to six weeks of light duty work and prescribed physical therapy. By report dated August 12, 1999, the physical therapist noted limited range of lumbar motion. On August 20, 1999, the employee saw Dr. William Muller, at the request of Dr. Wilson, who diagnosed a lumbar strain and continued restrictions on the employee=s work duties. On December 1, 1999, Dr. Gary Winkler performed an ICC physical. The doctor concluded the employee=s examination was normal. The employee continued to perform his regular job for the employer, with assistance from a helper to meet his work restrictions.

The employee returned to the MeritCare Clinic on May 18, 2000, complaining of pain just above the incision site of his prior hernia repair. Dr. Thompson prescribed anti-inflammatory medication. The employee returned on June 12th with continuing complaints of right groin pain. On June 28, 2000, Dr. Thompson performed a second surgery. The doctor found good fibrosis around the Marlax mesh at the site of previous hernia repair but also found hard, stiff calcification involving the plug portion, which he removed, and then used the remaining fibrous tissue to repair the inguinal floor. In his discharge summary, Dr. Thompson described the operation as a revision of a right inguinal hernia. His diagnosis was chronic right inguinal pain, status post right inguinal hernia.

The employee returned to see Dr. Wickmann on August 30, 2000. The chiropractor again found limited range of motion and tonicity in the lumbar spine. The employee continued to treat with Dr. Thompson who imposed permanent restrictions and advised the employee to seek other employment. The employee did not return to work with the employer following the June 2000 surgery.

On October 27, 2000, Dr. Gary Wyard examined the employee at the request of the self-insured employer. The doctor diagnosed A[p]ost right hernia repair failed X1 with recent re-do repair@ and low back complaints without objective clinical radiographic findings. Dr. Wyard opined the employee had reached maximum medical improvement from the effects of his low back injury, sustained no permanent partial disability and needed no further medical treatment for his low back.

Dr. Sheldon J. Segal, a general surgeon, examined the employee on March 27, 2001 at the request of the self-insured employer. Dr. Segal opined the employee suffered a right inguinal hernia on January 11, 1999 and a soft tissue myofascial strain to the right lumbar area in July 1999. Based on his examination and his review of Dr. Thompson=s medical records, Dr. Segal found no evidence of a recurrent hernia in June 2000. Rather, Dr. Segal stated the June 2000 surgery removed calcific fibrosis around the mesh graft used initially to repair the hernia, no structural defects in the hernia wall were noted and no recurrent hernia was present. Dr. Segal rated no permanent partial disability as a result of the hernia injury of January 11, 1999, and stated the employee required no restrictions.

On July 12, 2001, Dr. Wilson performed a disability evaluation on referral from Dr. Thompson. On examination of the employee, the doctor noted limited range of motion of the back and a healed surgical scar with significant tenderness underneath. Dr. Wilson rated a 3.5 percent whole body disability relative to the back injury and a five percent whole body disability for the hernia.

The employee returned to Dr. Thompson on October 1, 2001. The employee reported his back was reasonably stable if he did not do a lot of heavy activity at work or home. The employee also complained of constant groin pain. Dr. Thompson suspected this was due to Aa lot of scar tissue that is perhaps even entrapping some cutaneous nerve endings.@ (Pet. Ex. A.) The doctor=s diagnosis was right inguinal hernia and recurrent right inguinal hernia, job related. In a report dated October 1, 2001, Dr. Thompson stated the employee Ahas gone on to develop some chronic postsurgical discomfort in the groin. He has pain along the spermatic cord which is not unexpected due to the two surgical procedures in the area of the associated scar tissue. He continues to get pain when he does some pulling or lifting activities.@ (Pet. Ex. A.) A contributing factor, the doctor noted, was the employee=s problems with his back which gets stiff and sore with repetitive activities.

On April 15, 2002, Dr. Wilson conducted a pre-placement physical for employment at the Gilfillan Center. The doctor noted the employee had Aa history of a back injury previous but has a normal back exam today. . . . It is felt he may work without accommodation.@ (Resp. Ex. 5.)

Following the June 2000 surgery, the employee filed a claim petition, later amended, seeking workers= compensation benefits, including permanent partial disability benefits secondary to the hernia and low back injuries, together with medical expenses incurred to treat the employee=s low back. In a Findings and Order filed October 1, 2002, a compensation judge awarded a five percent whole body disability for the hernia and a 3.5 percent whole body disability of the low back. The self-insured employer appeals these awards.

DECISION

1. Hernia Injury

The compensation judge adopted the opinion of Dr. Wilson and awarded the employee five percent permanent partial disability under Minn. R. 5223.0220, subp. 7.A.^[1] The self-insured employer contends this award was legally and factually erroneous. First, it contends the disability schedules in effect on the date of injury provide a specific and exclusive category for rating a hernia. Next, it contends the rule under which the judge awarded the benefit applies only to injuries occurring prior to July 1, 1993. Finally, the employer argues there is no evidence the employee has testicular, epididymal or spermatic cord disease with anatomic alteration. For these reasons, the appellant asks this court to reverse the award of permanent partial disability benefits.

The employee underwent a right inguinal hernia repair on January 29, 1999. Minn. R. 5223.0440, subp. 3.B.(1), provides a zero percent rating for a repair of an inguinal hernia. Since the employee=s hernia and its repair are specifically covered by the permanent partial disability schedules, an additional rating for the same impairing condition is not appropriate. Finn v. Holmcrest Indus., Inc., 61 W.C.D. 534 (W.C.C.A. 2001); Minn. R. 5223.0300, subp. 3.C. Where, however, the personal injury results in mutually exclusive impairing conditions, multiple ratings may be permissible. Minn. R. 5223.0300, subp. 3.D. Therefore, the issue is whether the employee has proven entitlement to permanent partial disability benefits under another rule.

Minn. R. 5223.0220, subp. 7.A., used by the compensation judge, applies only to injuries prior to July 1, 1993. Minn. R. 5223.0600, subp. 7.A.(1), the rule in effect on the date of injury, is essentially the same as its predecessor.^[2] We conclude, however, the employee failed to prove entitlement to permanent disability under this rule. On examination, Dr. Thompson noted the employee had pain along the inguinal canal and spermatic cord in the area of the scar tissue. He suspected possible entrapment of cutaneous nerve endings. Dr. Wilson reported persistent groin pain, tenderness under the surgical scar, and discomfort with tension on the testicle. He rated permanency for the hernia based on entrapment of the spermatic cord. However, upon thorough review of the records of these providers, we find no objective medical findings of anatomic alteration or loss or any organic spermatic cord disorder of the kind required for an award of permanency benefits. See Minn. Stat. ' 176.105. Dr. Segal specifically found the employee had no testicular, epididymal or spermatic cord disease.

In reviewing cases on appeal, this court must determine whether the 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, 37 W.C.D. 235 (Minn. 1984). In this case, we are compelled to conclude the award of permanent partial disability benefits under Minn. R. 5223.0600, subp. 7.A.(1), is unsupported by substantial evidence. We, accordingly, reverse.

2. Lumbar Spine Permanency

The compensation judge awarded the employee a 3.5 percent whole body disability under Minn. R. 5223.0070, subp. 1.A.(2).^[3] The self-insured employer contends this award is unsupported by substantial evidence. They contend Dr. Wilson, upon whose opinion the compensation judge relied, rendered two divergent and irreconcilable opinions. Accordingly, the appellant argues the opinion of Dr. Wilson rating permanency of the lumbar spine lacks any legitimate evidentiary value. We disagree.

Dr. Wilson is a medical doctor. He interviewed the employee, took a history, reviewed the relevant treatment records, diagnostic tests and reports, and performed physical examinations of the employee. As a general rule, this level of experience and knowledge is sufficient to establish the doctor=s competence to render an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988). On July 12, 2001, Dr. Wilson performed a disability evaluation. He noted limited range of motion in the lumbar spine and rated a 3.5 percent permanent disability. On April 15, 2002, the doctor conducted an employment physical, concluding, for that purpose, the employee=s back was normal. Any inconsistency in these opinions, however, bears on the weight to be afforded the opinion by the compensation judge, not its admissibility. The compensation judge was entitled to rely on Dr. Wilson=s rating of permanent partial disability to the extent his opinion was consistent with the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

Minn. R. 5223.0390, subp. 3.B., affords a 3.5 percent whole body disability for symptoms of pain or stiffness in the lumbar spine substantiated by persistent objective clinical findings such as decreased range of motion. The employee testified to continuing pain and stiffness in his lumbar spine since his low back injury. In June 1999 and August 2000, Dr. Wickmann found limited lumbosacral range of motion and muscle spasm. On July 12, 2001, Dr. Wilson again found limited range of lumbar motion. This evidence is minimally sufficient to support the compensation judge=s finding of a 3.5 percent whole body disability. Accordingly, this court must affirm the award of the compensation judge. Hengemuhle, at 59, 37 W.C.D. at 239.

^[1] Minn. R. 5223.0220, subp. 7.A., provides as follows:

Subp. 7. Testes, epididymides, and spermatic cords.

A. Class 1, 5 percent.

(1) Symptoms and signs of testicular, epididymal, or spermatic cord disease are present and there is anatomic alteration; and

(2) continuous treatment is not required; and

(3) there are no abnormalities of seminal or hormonal functions; . . . .

^[2] Minn. R. 5223.0600, subp. 7.A.(1), provides as follows:

Subp. 7. Testes, epididymides, and spermatic cords.

A. Class 1, five percent:

(1) signs or symptoms of organic testicular, epididymal, or spermatic cord disorder are present; there is anatomic alteration or loss; continuous treatment is not required; and there are no abnormalities of seminal or hormonal functions; . . . .

^[3] The compensation judge again cited an incorrect rule. The rule in effect on the date of injury is Minn. R. 5223.0390, subp. 3.B., which provides:

Subp. 3. Lumbar pain syndrome.

* * *

B. Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, but no radiographic abnormality, 3.5 percent.