Duder v. McGlynn Bakeries, Inc.

JOHN DUDER, Employee, v. MCGLYNN BAKERIES, INC., and GENERAL INS. CO./ SAFECO, Employer-Insurer/Appellants.

PERMANENT PARTIAL DISABILITY - CERVICAL SPINE. Although the compensation judge failed to address the issue remanded to the court and argued by the parties, that is, the employee=s permanent partial disability benefits for the cervical spine as a whole, the employee conceded or stipulated that he was entitled to either 14 percent for his cervical stenosis or 19 percent for compression fractures at two levels, but not both, and the judge=s award of 19 percent permanent partial disability to the body as a whole is affirmed, as modified, based on the facts peculiar to this case.

The employer and insurer appeal from the compensation judge=s Findings and Order awarding nineteen percent permanent partial disability benefits to the employee for cervical compression fractures at C5 and C6. We affirm as modified.

John Duder, the employee, sustained an admitted personal injury on August 5, 1991, when struck on the top of his head by a section of an overhead door while working for the employer, McGlynn Bakeries, Inc.^[1] The employee sustained a scalp laceration, and a subsequent CT scan showed marked degenerative disc disease at C5-6 and C6-7. The employer and insurer commenced payment of wage loss benefits and medical expenses and provided rehabilitation assistance.

On July 21, 1993, the employee=s job with the employer was terminated. The employee commenced a job search and continued to look for work, without success, until February 1994. The employee then applied for and received Social Security Disability benefits effective December 1994.

In July 1998, the employee filed a claim petition contending he sustained neck and low back injuries on August 5, 1991, with a consequential psychological condition. The employee sought permanent total disability benefits from July 22, 1993, payment of medical expenses for treatment of his psychological condition, and permanent partial disability benefits for the lumbar spine, the psychological injury, and the cervical spine. The employer and insurer admitted the employee sustained neck and back injuries, but denied any psychological injury and denied liability for further benefits.

Dr. Van Dyne examined the employee at the request of the employer and insurer on July 6, 2000, and his deposition was taken on October 2, 2000. The doctor reviewed the employee=s cervical x-rays taken on August 21, 1991 and July 1, 1996, and concluded they showed no evidence of compression fractures at C5-6 or C6-7. Dr. Van Dyne rated a 10.5 percent permanent partial disability due to multi-level cervical degenerative disc disease.^[2]

Dr. Robert Wengler examined the employee on November 4, 1999 and again on September 5, 2000, at the request of the employee=s attorney. The doctor=s deposition was taken on September 26, 2000. Dr. Wengler diagnosed pre-existing advanced degenerative disc disease at multiple levels with compression fractures at C5 and C6. The doctor testified the x-ray studies documented a 21 percent loss of the anterior height of C5 and a 42 percent loss of the height of C6. Accordingly, Dr. Wengler rated a fourteen percent permanent disability for the C5 fracture and nineteen percent for the C6 fracture.^[3] In addition, the doctor testified the July 1997 cervical MRI scan showed lateral spinal stenosis at C5-6 on the left and stenosis at C6-7 on the right, qualifying the employee for a 28 percent whole body disability for cervical stenosis at two levels.^[4] By letter dated January 31, 2000, Dr. Wengler stated the cervical stenosis was Aconsequential to and inseparable from@ the compression fractures, and that one or the other must be considered a Alesser category.@ (Pet. Ex. E, Dep. Ex. 1.) In his deposition, however, Dr. Wengler stated the ratings for the stenosis and the fractures should be added together (that is, 28 percent plus 33 percent), acknowledging that doing so would result in a rating that Ais probably inappropriately high.@ (T. 20-22, 29.)

The case was tried by a compensation judge at the Office of Administrative Hearings. In a Findings and Order filed March 23, 2001, the judge found, among other things, that (1) the employee had advanced degenerative disc disease at C5-6 and C6-7, lateral spinal stenosis at C5-6 left and C6-7 right, and anterior compression fractures of C5 and C6; (2) the August 5, 1991 injury was a substantial contributing factor to the employee=s cervical conditions; and (3) the employee was entitled to 28 percent permanent partial disability for cervical spinal stenosis at two levels. (F&O, Mar. 23, 2001, findings 6, 7.)

Both parties appealed. In a decision served and filed October 17, 2001, this court affirmed the finding of lateral spinal stenosis at C5-6 and C6-7. The court further held, however, that Minn. R. 5223.0070, subp. 2.C.(1), provides a single 14 percent rating for cervical spinal stenosis whether the spinal stenosis is at a single or multiple levels. The court, accordingly, reversed the compensation judge=s award of 28 percent permanent partial disability benefits for cervical stenosis at two levels. Duder v. McGlynn Bakeries, Inc., 62 W.C.D.109, 123 (W.C.C.A. 2001). Additionally, the court noted that, although the compensation judge found the employee sustained anterior compression fractures at C5 and C6 as a result of the August 5, 1991 injury, and the employee claimed permanent partial disability benefits secondary to the fractures, no permanency finding had been made. We, therefore, remanded the case to the compensation judge Ato reconsider the employee=s claim for permanent partial disability benefits to the cervical spine.@ Id. at 124.

A hearing was held on remand, on June 28, 2002, for the purpose of permitting argument by the parties. The parties agreed the employer and insurer had paid 14 percent permanent partial disability for the cervical spine stenosis. The employer and insurer noted the finding of multilevel stenosis was affirmed by this court and argued, based on Dr. Wengler=s opinions, that the lateral spinal stenosis was the disabling condition and the compression fractures were a lesser included category of the stenosis. Accordingly, they maintained, the employee was entitled to no additional permanency. The employee disagreed, and contended he was entitled to the Ahighest rating,@ that is, 19 percent permanent partial disability for the cervical compression fractures, also based on Dr. Wengler=s records and opinions.^[5] In a Findings and Order served and filed on August 19, 2002, the compensation judge adopted Dr. Wengler=s rating, awarding the employee 19 percent permanent partial disability of the whole body secondary to the C6 compression fracture. The employer and insurer appeal.

The employer and insurer contend the compensation judge failed to address the relationship between the 14 percent permanency already paid for the employee=s cervical stenosis and the 19 percent permanent partial disability awarded for the cervical compression fractures in the Findings and Order on remand. They argue the cervical spine stenosis is a Alesser included category@ of the compression fracture rating, and the nineteen percent now paid by the employer and insurer^[6] is the total permanent partial disability due to the employee relative to his cervical spine condition. The employee maintains there has been no determination as to whether any of the ratings are lesser included categories of any other, and he is free to make a new claim for additional permanency on the basis that the stenosis rating and the compression fracture rating are combinable.

Although this case was remanded to the compensation judge Ato reconsider the employee=s claim for permanent partial disability benefits to the cervical spine@ (id. at 124), the judge apparently concluded the scope of the remand was solely Ato consider the employee=s claim for permanent partial disability for the compression fractures.@ (T. 4.) In the Findings and Order of August 19, 2002, the judge listed the issue before him as A[w]hether the employee is entitled to 19% permanent partial disability of the whole body in accordance with Minn. R. 5223.0070, subp. 2.E.(3).@ The findings address solely this issue, and fail to address the employer and insurer=s argument the employee was entitled to no more than 14 percent permanency for the cervical stenosis. Nor did the judge determine whether either the spinal stenosis or the compression fractures are a lesser included category of the other under the permanency schedules,^[7] even though the issue was clearly raised and argued by the parties.

We, nevertheless, affirm the compensation judge=s award of a nineteen percent permanency, and hold the employee is precluded from asserting in the future a claim for spinal stenosis or compression fractures, either separately or in combination.^[8] At the hearing, counsel for the employee argued the employee was entitled to the higher of the two ratings for either the cervical spine stenosis or the compression fractures (T. 6) stating:

I think the point on the lesser included category are the two [ratings] would be redundant. So you can=t get a stenosis rating and then a fracture rating on top of that . . . because they both represent the same disability. . . .[O]ur position is we simply get the highest rating.

So, I think it=s a simple matter. If he=s entitled to a maximum of 14 percent for the stenosis and entitled to [a] maximum percent, 19 percent [for the fractures], that we would get the 19 percent, and not both. (T. 11-12.)

Accordingly, the employee conceded or stipulated to a maximum entitlement, encompassing both the cervical spinal stenosis and the compression fractures, of nineteen percent. This is the law of the case, and the employee may not assert a claim in the future contrary to the claim determined here. See, e.g., Schultz v. Trevilla Nursing Home, 450 N.W.2d 294, 42 W.C.D. 612 (Minn. 1990). Based on the facts peculiar to this case, the award of a nineteen percent permanent partial disability for the employee=s cervical spine condition is, therefore, affirmed as modified by this decision.

^[1] This case is before the court on appeal from a Findings and Order on remand. For an extended discussion of the facts, see Duder v. McGlynn Bakeries, Inc., 62 W.C.D.109 (W.C.C.A. 2001).

^[2] Minn. R. 5223.0070, subp. 2.A.(3)(b) (1991).

^[3] Minn. R. 5223.0070, subp. 2.E.(2) and (3) (1991).

^[4] Minn. R. 5223.0070, subp. 2.C.(1) (1991).

^[5] At his deposition, Dr. Wengler acknowledged the language of Minn. R. 5223.0070, subp. 2.E., would allow only a single rating, even though an employee had multiple level fractures. (Pet. Ex. E at 26-28.) At the hearing, the employee conceded he was entitled to only one rating, the highest rating, or 19 percent permanent partial disability pursuant to Minn. R. 5223.0070, subp. 2.E.(3). (T. 8.)

^[6] Following the hearing, the employer and insurer paid to the employee an additional five percent permanency.

^[7] See Minn. R. 5223.0010, subp. 2.

^[8] We express no opinion with respect to any other claim for permanency to the cervical spine based on some other combination of ratings, as no other claims have been made or determined.