HAROLD CYR, Employee, v. WENSMANNS HOMES, INC., and WESTERN NAT=L MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 31, 2004

 

No. WC04-178

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - CERVICAL SPINE; RULES CONSTRUED - Minn. R. 5223.0370, subps. 4.D., 4.D.(4), and 5.B.  Based on the unambiguous language of the rule, the compensation judge properly awarded a twenty-three percent whole body disability for combined radicular syndrome and fusion of the cervical spine where, prior to surgery, the employee had findings at C5-6 and C6-7 which qualified the employee for a rating under subps. 4.D. and 4.D.(4), but after the fusion surgery no longer demonstrated radicular pain or paresthesia.

 

Affirmed.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys:  Ronald M. Stark, Jr., Attorney at Law, Minneapolis, MN, for the Appellants.  Joel C. Monke, Attorney at Law, Woodbury, MN, for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Chief Judge

 

Wensmanns Homes, Inc., and Western National Mutual Insurance Company appeal the compensation judge=s finding that the employee sustained a twenty-three percent whole body permanent partial disability secondary to his personal injury of February 19, 2002.  We affirm. 

 

BACKGROUND

 

On February 19, 2002, Harold Cyr, the employee, sustained a personal injury to his cervical spine arising out of and in the course of his employment with Wensmanns Homes, Inc., the employer.  The employer and its insurer admitted liability for the employee=s personal injury.

 

On April 9, 2002, the employee saw Dr. Garrick Olsen, his family physician, complaining of pain radiating from his shoulder down his left arm.  On examination, the doctor found a positive impingement test in the left shoulder with mild tenderness of the biceps tendon on the left side.  The doctor diagnosed left-sided arm pain.  Dr. Olsen ordered an MRI scan of the cervical spine which showed degenerative disc disease with left-sided foraminal stenosis and a probable superimposed left posterior intraforaminal disc herniation at C5-6, a left C6-7 foraminal stenosis moderate to severe in nature, and left lateral recess stenosis at C5-6 and C6-7.  The employee then came under the care of Dr. Arturo Camacho who performed an anterior cervical fusion at C5-6 and C6-7 in June 2002.

 

In February 2003, Dr. Camacho rated the employee as having a twenty-three percent whole body disability comprised of three separate ratings.  The doctor rated a nine percent permanent disability under Minn. R. 5223.0370, subp. 4.D., plus an additional nine percent permanent disability under subp. (4) of that rule and an additional five percent permanent disability under Minn. R. 5223.0370, subp. 5.B.

 

Dr. Gary Wyard examined the employee on August 8, 2002, at the request of the employer and insurer.  The employee told Dr. Wyard he had ongoing pain in his neck and shoulder following his injury.  The employee stated, however, he had done well following his surgery and stated all of his symptoms in the left arm had abated.  The employee described some aching and soreness in his neck but stated he had done Aterrific@ following the surgery.  On examination, Dr. Wyard found full flexion, extension, side bending and rotation of the neck with slight pain at the extremes of motion.  The doctor found no tenderness, spasm or fibromuscular nodules.  Dr. Wyard diagnosed cervical degenerative disc disease at C5-6 and C6-7 with a history of a discectomy compression surgery at C5-6 with arthrodesis and instrumentation.  The doctor concluded the employee=s February 19, 2002, injury was the proximate cause of the need for the cervical spine surgery and rated a fourteen percent whole body disability comprised of nine percent under Minn. R. 5223.0370, subp. 4.D., and five percent under subp. 5.B. of that rule.

 

The employee filed a claim petition seeking payment of the twenty-three percent whole body disability rated by Dr. Camacho.  In an unappealed finding, the compensation judge found, 

 

There is no dispute between the parties that prior to the employee=s surgery the employee=s physical findings met the qualifying factors outlined in Minn. R. 5223.0370, Subp. 4D; Subp. 4D(4) and Subp. 5B.  The parties agree that subsequent to the surgery the employee=s physical findings would no longer qualify him for a rating under Minn. R. 5223.0370, Subp. 4D and Subp. 4D(4).  The parties agree that the employee=s surgery was very successful. 

 

(Finding 5).

 

The compensation judge further found the employee sustained a twenty-three percent whole body disability secondary to his personal injury on February 19, 2002.  The employer and insurer appeal the latter finding of the compensation judge. 

DECISION

 

There is no dispute that, prior to surgery, the employee had physical findings at C5-6 and C6-7 which qualified the employee for a rating under Minn. R. 5223.0370, subp. 4.D. and 4.D.(4).  Following surgery, however, there is also no dispute the employee no longer demonstrated radicular pain or paresthesia which is required for a rating under these rules.  The fundamental purpose of permanent partial disability benefits is to compensate an injured employee for the loss of use or impairment of function.  Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990)  Since Apermanent partial compensation is payable for a functional loss of use or impairment of function, permanent in nature,@  Minn. Stat. ' 176.021, subd. 3, the appellant argues it is legally erroneous to rate the employee for a condition which no longer exists.  Accordingly, the appellant asserts the compensation judge=s award of permanent partial disability benefits under Minn. R. 5223.0370, subp. 4.D., is erroneous and must be vacated.  We disagree.

 

Minn. R. 5223.0370, subp. 4.D., provides:

 

Radicular pain or paresthesia, with or without cervical pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the upper extremity, on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a cervical nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination, nine percent with the addition of as many of subitems (1) to (4) as apply, but each may be used only once:

(1) if chronic radicular pain or paresthesia persist despite treatment, add three percent;

(2) if a surgery other than a fusion performed as part of the treatment, add two percent, if surgery included a fusion, the rating is as provided in subpart 5;

(3) for additional surgery, other than a fusion, regardless of the number of additional surgeries, add two percent, if the additional surgery included a fusion, the rating is as provided in subpart 5;

(4) additional concurrent lesion on contralateral side at the same level or on either side at any other level which meets all of the criteria of this item or item E, add nine percent.

 

Minn. R. 5223.0370, subp. 5, provides,

 

A. Fusion, as defined in part 5223.0310, subpart 29, at one level performed as part or all of the surgical treatment of a cervical pain or radicular syndrom, add 2.5 percent to the otherwise appropriate category in subpart 3 or 4.

B. Fusion at multiple levels performed as part or all of the surgical treatment of a cervical pain or radicular syndrome, add five percent to the otherwise appropriate category in subpart 3 or 4.

 

Minn. R. 5223.0370, subp. 4.D., provides permanent disability ratings based upon specified physical findings secondary to a cervical injury.  Subparagraphs (2) and (3) of the rule provide additional ratings if one or more surgery is performed.  We conclude the rule is unambiguous and does not provide for a reduction of permanency benefits if the employee=s condition improves as a result of treatment, including surgery.  That the surgery may relieve or eliminate the physical symptoms which necessitated the surgery is irrelevant under the rule.  All that is required under the rule is the presence of the enumerated physical findings which then require surgical treatment.  This conclusion is supported by subp. 4.D.(1) of the rule which provides for an additional three percent permanent disability to be added to the total permanent disability if chronic pain or paresthesia persist despite treatment.  This provision apparently contemplates the employee=s condition will improve after treatment and provides additional permanency if the employee=s condition does not improve.  The employee had the requisite physical findings and then underwent a fusion surgery.  The compensation judge correctly interpreted the rule, and the judge=s decision is affirmed.