EDWIN A. LOWELL, Employee/Appellant, v. LEE STAMPING and CHUBB & SON, Employer-Insurer, and LEE STAMPING and FEDERATED MUTUAL INS. CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 6, 2003

 

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the determination of the compensation judge that the employee did not sustain Gillette injuries to his low back or hands/fingers where the decision was based upon adequately founded medical opinion. 

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the decision of the compensation judge as to the extent of permanent partial disability due to the shoulder where the rating was based upon medical examination.

 

PERMANENT PARTIAL DISABILITY.   Permanent partial disability for different body parts from different personal injuries are not combined in determining the amount to be paid under Minn. Stat. ' 176.101, subd. 2a. 

 

Affirmed.

 

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

Compensation Judge: Danny P. Kelly

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the denial of his claim that he sustained Gillette^[1] injuries to his low back and hands resulting in permanent partial disability.  The employee also appeals the compensation judge=s calculation of permanent partial disability.  We affirm.

 

BACKGROUND

 

Edwin Lowell was a long time employee of Lee Stamping, working there from the 1960's until December 1998.  Lee Stamping provided metal parts for other companies and the employee=s first job at Lee Stamping was as a punch press operator.  After 13 months in that position the employee went to work in the tool room, making the tools which would be used by the punch presses.  In 1986 while performing his job, the employee sustained an injury to his low back. 

The employee came under the care of Dr. John Dowdle, who diagnosed a disc herniation at the L5-S1 level on the left.  The employee had a transverse process fusion in 1987, followed by augmentation surgery in July 1988.  Dr. Dowdle ultimately rated the employee as having a 17.5 percent permanent partial disability of the whole person pursuant to Minn. R. 5223.0070, subp. 1.D.  The employee=s potential claims relating to his 1986 injury, including his permanent partial disability, were resolved by settlement. 

 

The employee testified that he was off work for his back problems almost three years.  When he returned to work at Lee Stamping in approximately 1990, he still had symptoms in his low back.  The employee has had back problems ever since that time.  Dr. Dowdle=s records indicate that the employee was sent back to work with restrictions which limited his lifting and body positioning on the job.

 

When the employee returned to Lee Stamping, he was placed back in a press operator job.  The job was performed sitting but involved repetitive use of his hands and arms.  The employee needed to pinch or grasp parts which went through his press and he handled 3,000 to 5,000 parts a day.  While there were sporadic attempts to modify this job or to find alternate assignments, the employee did this job until he left Lee Stamping in December 1998. 

 

In 1995, the employee began treating with Dr. Frank Wei for left upper extremity pain.  The employer admitted a November 29, 1995 injury to the left shoulder and left thumb.  While Dr. Wei treated the employee=s shoulder it was also noted that the employee complained of right medial epicondilytis.  The employee noted pain in both hands and in May 1996, Dr. Wei=s impression was that of right and left cumulative stress disorder to the forearm and wrist.  Dr. Wei did not see the employee between June 1996 and May 1998, when the employee returned with a history of worsening left shoulder pain over the past three weeks. 

 

In November 1998, Dr. Wei referred the employee to Dr. John A. Wilson for treatment of the employee=s left shoulder problems.  Dr. Wilson diagnosed chronic tendonitis of the left shoulder with probable rotator cuff degenerative changes.  Dr. Wilson recommended surgery and on January 12, 1999, the employee had subacromial decompression of the left shoulder with repair of the rotator cuff. 

 

After his referral to Dr. Wilson, the employee continued to see Dr. Wei, primarily for pain in his hands.  Dr. Wei diagnosed osteoarthritis in both hands.  The employee also saw Dr. Dowdle on a yearly basis for his low back.  In August 1996, Dr. Dowdle noted that Ahe is continuing to have some mechanical low back pain which he has had forever.@  The employee did not see Dr. Dowdle after his 1996 visit until September 21, 1999, when he complained of increased low back pain.  Dr. Dowdle=s impression at that time was of mechanical low back pain, status post lumbar fusion.  Dr. Dowdle recommended anti-inflammatory medicines.

 

The employee stopped working in December 1998 because his employer could no longer accommodate his restrictions.  The employee has not worked since that time. 

Litigation in this matter commenced with the filing of an objection to discontinuance filed by the employee in November 1999, which was followed by a claim petition and a number of amended claim petitions.  The employee=s claim for permanent total disability and the contribution claims between various insurers of Lee Stamping were resolved after mediation on February 25, 2002. 

 

This matter was heard by Compensation Judge Danny P. Kelly on February 27, 2002.  Issues presented to the compensation judge were: 1. Whether the employee sustained a Gillette injury to the low back on or about December 9, 1998, and if so, whether the employee had additional permanent partial disability as the result of that injury.  2. Whether the employee had a Gillette injury to both hands on or about July 9, 1998, and if so, whether the employee had sustained permanent partial disability as the result of that injury.  3. Whether the employee was entitled to additional permanent partial disability for his left shoulder injury of November 29, 1995.  4. Whether the employee was entitled to combine permanent partial disability from his different injuries so as to result in a higher multiplier for payment of benefits. 

 

In his Findings and Order, served and filed May 3, 2002, the compensation judge found that: 1. The employee did not sustain a Gillette injury to his low back.  2. The employee did not sustain a Gillette injury to his hands.  3. The employee was not entitled to any additional permanent partial disability for the left shoulder.  4. The employee was not allowed to combine permanent partial disability ratings from different injuries.  The employee appeals.

 

DECISION

 

1. Claimed Injury to Low Back

 

The employee claimed that he sustained additional injury to his low back as a Gillette injury which culminated on December 9, 1998, the date he stopped working.  The employee asserted that as a result of that injury, he had an additional 10 percent disability to the body. 

 

The employee=s claim was based primarily on the opinion of Dr. Dowdle.  Dr. Dowdle did not indicate anywhere in his treatment notes that the employee had a new injury nor did he provide a rating of permanent partial disability.  However, in his deposition, taken on February 20, 2002, Dr. Dowdle stated that the employee had a Gillette injury.  The employee had been compensated for his fusion at the L5-S1 level with a rating of 17.5 percent and Dr. Dowdle allowed an additional 10 percent for disc degeneration of the L4-5 and L5-S1 levels pursuant to Minn. R. 5223.0390, subp. 3.C.(2).

 

The employee was seen by Dr. Paul Wicklund for an IME on September 13, 2000.  Dr. Wicklund prepared a report dated September 23, 2000 and testified by deposition on January 22, 2002.  Dr. Wicklund opined that the employee had sustained a Gillette injury to his low back.  In his deposition, Dr. Wicklund referred to this injury as being a Asubjective@ Gillette injury, noting that there was no objective evidence that the employee=s back condition was any worse than it had been after his surgery.  Dr. Wicklund did not believe that any permanent partial disability was due for the claimed Gillette injury because of the lack of objective findings. 

 

The employee was also seen for an IME on three occasions with Dr. Mark Urban.  Dr. Urban=s conclusion was that the employee did not have a Gillette injury to the low back, noting the lack of objective findings of change in the employee=s condition, the lack of treatment for the low back by Dr. Dowdle in 1998 and the fact that the employee=s low back symptoms were expected after having lumbar fusion surgery.  In his findings, the compensation judge specifically adopted the opinion of Dr. Urban.  In his brief, the employee argues that the compensation judge did not provide an explanation for accepting Dr. Urban=s opinion.  We have previously held that a compensation judge need not explain or discuss every item presented as evidence.  Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000).  The compensation judge was clearly familiar with the opinions of the various doctors in this case.  While Dr. Urban=s opinion is, arguably, at variance with that of Drs. Dowdle and Wicklund, it is the compensation judge=s obligation to choose between competing medical opinion and we find no basis here to reverse the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985). 

 

2. Claimed Injury to the Hands

 

The employee claimed that he sustained a Gllette injury to both hands as of July 9, 1998.  This claim is apparently based in part on the treatment notes of Dr. Wei from that date in which the employee noted increasing problems with his hands and was taken off work for a week by Dr. Wei so as to rest the employee=s hands from his work activity.  Dr. Wei noted at that time that the employee=s job involved handling of parts on a Apiecemeal basis with a defined quota.@  In Dr. Wei=s report of July 16, 2001, and in his deposition of January 23, 2002, he stated his opinion that the employee had sustained a Gillette injury to his hands and he provided a rating of permanent partial disability for loss of range of motion from the injury. 

 

Dr. Urban first saw the employee on September 25, 1998, and concluded at that time that the employee=s upper extremity injury was to the left shoulder, left thumb and left long finger.  He found no evidence of arthritic changes in any other fingers after reviewing the x-rays and on examination determined that the range of motion of the fingers were within normal limits for the employee=s age.  He reiterated this opinion in his subsequent report of September 10, 2001, and in his deposition.  The employee contends that Dr. Urban=s opinion lacked foundation in that he was not aware of the nature of the employee=s work.  However, Dr. Urban was given a hypothetical question at his deposition which detailed the repetitive and high speed use of the hands required by the employee=s job. 

 

Dr. Urban=s opinion has sufficient foundation to be relied upon by the compensation judge.  The compensation judge specifically adopted the conclusion of Dr. Urban and there is no basis for reversal on this issue. 

 

3. Permanent Partial Disability of the Left Shoulder

The parties agree that the employee sustained an injury to his left shoulder on November 29, 1995, and that he had permanent partial disability of the whole body as a result of that injury.  The employer and insurer paid 21.3 percent disability based upon the rating from Dr. Urban set forth on his April 21, 2000 report.  The employee claims an entitlement to additional benefits based upon the rating by Dr. John Wilson of 25.106 percent, set forth in his report of March 1, 2000.^[2]

 

The employee argues that his treating doctor, Dr. Wilson, was more familiar with his condition and his opinion should have been followed.  However, Dr. Wilson=s range of motion findings were different on March 1, 2000, from his findings on May 5, 1999, and there is no indication that Dr. Wilson used a goniometer to measure range of motion as is required in Minn. R. 5223.0450, subp. 4.  Dr. Urban explained the basis for his rating in his deposition.  Given these factors it was not unreasonable for the compensation judge to accept the opinion of Dr. Urban and Dr. Urban=s opinion provides substantial evidence for the decision of the compensation judge as to the extent of permanent partial disability sustained by the employee as a result of his left shoulder injury. 

 

4. Combining Permanent Partial Disability Ratings

 

The employer and insurer had admitted and paid 4.5 percent permanent partial disability for the 1995 left thumb injury, 21.3 percent permanent partial disability for the 1995 left shoulder injury and 2.2 percent permanent partial disability for the 1997 injury to the left long finger.  When benefits were paid, the employer and insurer combined the ratings for both the 1995 and the 1997 injuries pursuant to the formula set forth in Minn. Stat. ' 176.105, subd. 4.  The result was a payment of $21,042.40 to the employee (26.303 percent times $80,000.00).  The compensation judge found this payment to be incorrect and determined that permanent partial disability was to be rated and paid separately for each injury.  He found an overpayment by the employer and insurer of $912.40.^[3]  The employee argues that permanent partial disability for different injuries should be stacked or combined.  According to the employee the 17.5 percent rating for the 1986 low back injury, the 4.25 percent rating claimed for the 1995 left thumb injury, the 25.106 percent rating claimed for the 1995 left shoulder injury, the 24.36 percent rating claimed for the July 1998 hand  injury, and the 10 percent rating claimed for the December 1998 alleged low back injury should be added together for a rating of 81.216 percent.  That percentage of permanent partial disability would be multiplied by $280,000.00 under Minn. Stat. ' 176.101, subd. 2a, for an entitlement of $227,404.80.  We disagree.

 

There is no statutory authority for the employee=s position.  Minn. Stat. ' 176.101, subd. 5, specifically refers to Aa permanent functional disability of more than one body part due to a personal injury incurred in a single occurrence@ (emphasis added).  We find the compensation judge=s analysis on this point be correct.