JAMES WOESTE, Employee/Appellant, v. INTERSTATE BRANDS CORP., and KEMPER INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 13, 2003

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY.  Substantial evidence supports the determination of the compensation judge that the employee failed to establish the necessary elements of the permanent partial disability schedule which would allow the permanent partial disability claimed.

 

Affirmed.

 

Determined by Stofferahn, J., Pederson, J., and Johnson, C.J.

Compensation Judge: Jane Gordon Ertl

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination of the extent of permanent partial disability and from the denial of penalties.  We affirm.

 

BACKGROUND

 

On December 28, 1998, the employee, James Woeste, was employed as a route salesman for Interstate Brands.  On that date, he sustained a repetitive trauma injury to his right wrist from pushing racks of bakery goods on and off his delivery truck.  The employer and insurer accepted primary liability for the employee=s personal injury. 

 

The employee treated for his right wrist injury with Dr. Patrick Hurley at Alexandria Orthopedics.  Dr. Hurley diagnosed the employee=s condition as Stage 4 Kienbock=s disease^[1] with slack wrist on the right and on February 10, 2000 Dr. Hurley performed a right wrist fusion, using a Synthes wrist fusion plate.  In a health care provider report dated August 31, 2000, Dr. Hurley indicated that the employee had reached maximum medical improvement from his injury.  Dr. Hurley also evaluated the employee as having a 28 percent permanent partial disability of the whole body.  The disability rating was a combination of Minn. R. 5223.0470, subp. 4 A(6)(b)-15 percent, Minn. R. 5223.0470, subp. 4 B(4)(b)-2 percent, and Minn. R. 5223.0470, subp. 3 B(3)-11 percent.  The first two sections provide for disability for loss of range of motion to the wrist and the last section adds additional disability for carpal instability.

 

The employee had been evaluated on behalf of the employer and insurer by Dr. Paul Yellin on January 13, 2000.  Dr. Yellin agreed with Dr. Hurley as to the employee=s diagnosis, the relationship of the condition to employment, and recommendations for treatment.  On October 12, 2000, Dr. Yellin saw the employee again for the purpose of evaluating permanent partial disability.  Dr. Yellin disagreed with Dr. Hurley=s conclusion on the extent of permanent partial disability and rated the employee=s disability under Minn. R. 5223.0470, subp. 4 A(6)(b)-15 percent.  In a supplemental report of November 20, 2001, Dr. Yellin concluded that the employee was entitled to an additional two percent under Minn. R. 5223.0470, subp. 4 B(4)(b), but disagreed with any additional rating for carpal instability, noting, in his report, that Athis gentleman cannot have both an instability and a fusion at the same level.@  The employer and insurer paid the employee 17 percent permanent partial disability.

 

On May 11, 2001, the employee filed a claim petition which sought payment of the permanent partial disability rating provided by Dr. Hurley.  After a settlement conference on October 16, 2001, a compensation judge issued a summary decision pursuant to Minn. Stat. ' 176.305 and awarded the additional permanency to the employee.  The employer and insurer filed a request for formal hearing and the employee filed an amended claim petition which requested penalties in addition to the permanent partial disability.

 

This matter was heard by Compensation Judge Jane Gordon Ertl on October 22, 2002.  In her Findings and Order, served and filed December 19, 2002, the compensation judge determined that the ratings of 15 percent and 2 percent were appropriate but that the records did not support an additional rating of 11 percent.  The employee=s claim for penalties was also denied.  The employee appeals.

 

DECISION

 

The employee argues on appeal that the compensation judge made an error of Alaw/fact@ in denying his claim for another 11 percent permanent partial disability.  The employee contends that the total loss of movement in the wrist joint constitutes abnormal movement which would entitle the employee to an additional rating for carpal instability.  We are not persuaded.

 

The parties agree that the issue is whether the employee is entitled to an additional permanent partial disability rating pursuant to Minn. R. 5223.0470, subp. 3 B(3).  That section applies to carpal instability, Abased on appropriate clinical, laboratory, and medical imaging findings@ and Aconfirmed by both clinical examination and medical imaging study which also demonstrates degenerative arthritis.@  Carpal instability is defined in Minn. R. 5223.0310, subp. 12, as being Aeither an incompetence of the ligament support system of the wrist or a change in the joint contact surface configuration of the carpal bones such that there is abnormal alignment or movement of the proximal carpal row.@

 

Taken together, the rules mean that, in order to be entitled to the additional 11 percent  the employee must establish that:

 

1.   There is a change in the joint contact surface configuration of the carpal bones.

 

2.   The change is confirmed by clinical examination and medical imaging.

 

3.   The imaging also confirms degenerative arthritis.

 

The employee=s claim is based upon the rating of Dr. Hurley, who wrote no report which explained his opinion.  The only comment from Dr. Hurley on his rating is in his office note of March 28, 2001, in which he refers to the employee being entitled to 11 percent for his arthritis.  While arthritis is an element to be established in the employee=s claim, it is not sufficient.  The employee cites to no imaging studies or clinical examinations which would confirm a change in the joint surface configuration of the carpal bones in addition to arthritis.

 

The issue of permanent partial disability is a question of fact to be determined by the compensation judge which 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).  ATo obtain a permanent partial disability rating, the employee must show that each element set forth in the relevant permanent partial disability schedule is met.@  Lohman v. Pillsbury Company, 40 W.C.D. 45, 51 (W.C.C.A. 1987), Morris v. Methodist Hosp., slip. op (W.C.C.A. October 1, 2002).

 

The employee argues that the compensation judge should not have relied upon the opinion of Dr. Yellin since Dr. Yellin appears to have used a layperson=s definition of instability rather than the definition set forth in the rules.  We do not conclude, however, that the compensation judge reached her determination based upon a reliance on Dr. Yellin=s opinion but rather based upon a determination that the medical records do not establish the necessary elements of the employee=s claimed rating in the permanent partial disability schedule.  Simply stated, the compensation judge found that the employee had failed in his burden of proof on this issue.  Substantial evidence supports the determination of the compensation judge that the records do not support an additional rating of 11 percent.

 

The employee also argues that he is entitled to an additional award for penalties pursuant to Minn. Stat. ' 176.225, for the failure of the employer and insurer to pay the employee=s claimed rating which was Aclearly provided for@ by the rules.  Having concluded that the denial of the employee=s claim was supported by substantial evidence, we also conclude that the compensation judge=s denial of penalties was appropriate as well. 

 

We affirm.