Majerle v. Forest Lake Chrysler

BRADLEY D. MAJERLE, Employee/Appellant, v. FOREST LAKE CHRYSLER and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer.

PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; PERMANENT PARTIAL DISABILITY - KNEE; RULES CONSTRUED - Minn. R. 5223.0510, subps. 3B(1) and 3B(2). Where the rule at issue clearly contemplated a 2% rating for an employee who had up to 50% of a meniscal cartilage removed and a 3% rating for an employee who had more than 50% of that cartilage removed, and where the employee had already been awarded compensation for a 3% impairment based on a previous surgical removal of more than 50% of the cartilage, the compensation judge properly denied the employee=s claim for an additional 2% impairment, notwithstanding the fact that the employee had undergone a second surgical removal of less than 50% of the same cartilage.

Attorneys: D. G. Fernstrom, Fernstrom & Associates, Maple Grove, MN, for the Appellant. William G. Laak, McCollum Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s denial of his claim for additional permanent partial disability benefits following a second surgery to his right knee. We affirm.

On May 8, 2000, Bradley Majerle [the employee] sustained an injury to his right knee while working as a mechanic for Forest Lake Chrysler [the employer]. On September 6, 2000, Dr. David Kittleson, the employee=s treating orthopedist, performed a right knee arthroscopy, partial lateral meniscectomy, and arthroscopic shaving/chondroplasty. In his operative report, the doctor noted that the employee=s Abucket handle tear was removed necessitating a 60 percent meniscectomy.@ In follow-up on November 2, 2000, Dr. Kittleson stated that the employee had reached maximum medical improvement from his injury with a 3% impairment of the body as a whole^[1] and was released to his regular work as a mechanic without restrictions.

The employee returned to see Dr. Kittleson on May 3, 2001, reporting that he had been doing quite well until early to mid March, when he had the onset of recurrent pain in his right knee very similar to what he had experienced in the past. The employee reported Aa very definite painful snapping in the knee@ but no history of any new injury. Dr. Kittleson ordered an MRI scan, which revealed findings consistent with a recurrent lateral meniscus tear.

On June 27, 2001, the employee underwent a second arthroscopic surgery, described as a partial lateral meniscectomy Aellipsing out the recurrent tear of the mid body of the lateral meniscus.@ The employer and insurer paid all of the medical bills related to the employee=s surgery and follow-up, and, on July 12, 2001, the insurer filed a Notice of Benefit Reinstatement, acknowledging liability for a new period of disability related to the work injury of the preceding year.

On November 20, 2001, Dr. Kittleson wrote to the insurer stating that the employee had reached maximum medical improvement as of October 11, 2001, and was Aleft with permanent restrictions of maximum kneeling, squatting of three hours in an eight hour day.@ The doctor rated an additional 2% impairment of the body as a whole Afor removal of less than 50 percent additional of the lateral meniscus.@^[2]

permanent partial disability rated by Dr. Kittleson. The employer and insurer acknowledged liability for the employee=s May 8, 2002 injury but denied that the employee was entitled to more than the 3% permanent partial disability benefits already paid.

The employee=s claim for permanent partial disability benefits came on for a hearing before a compensation judge on November 13, 2003. At trial, the employee alleged also that he had sustained a new, Gillette-type injury^[3] to his right knee on June 27, 2001. In a findings and order issued January 12, 2004, the compensation judge determined in pertinent part as follows:

7. The employee did not sustain a new injury in 2001. The employee had a recurrent meniscal tear for which Dr. Kittleson performed another surgery.

8. The employee has a total of 3% permanent partial disability as a result of the May 8, 2000 injury. He did not have a subsequent injury with surgery for an additional rating. A Weber rating does not apply where there is an appropriate category in the schedule for the employee=s condition.^[4]

At Order 1, the judge denied the employee=s claim for additional permanent partial disability. The employee appeals.

On appeal, the employee argues that the judge erred in denying his claim of a Gillette injury on June 27, 2001, and his claim for compensation for an additional 2% permanent partial disability. The employer and insurer argue that this court may not review the employee=s arguments on appeal because the employee failed to appeal from Findings 7 and 8, the judge=s specific findings on the issues in dispute. We agree with the employer and insurer that the employee failed to appeal from the judge=s denial of a new injury in 2001, but we find the employee=s notice of appeal adequate for our consideration of the claimed permanent partial disability issue.

Under Minn. Stat. ' 176.421, subd. 6, Athe workers= compensation court of appeals= review is limited to the issues raised by the parties in the notice of appeal or by cross-appeal.@ See also Bradford v. Bureau of Engraving, 459 N.W.2d 697, 43 W.C.D. 279 (Minn. 1990). Because the employee=s appeal makes no reference at all to the issue of the employee=s alleged new injury, we will not address that issue. Although the employee did not appeal from the judge=s Finding 8, the employee did appeal from the order denying the claimed permanency, and his appeal is therefore, arguably, sufficient to place that issue before us.

The employee contends that under Minn. R. 5223.0510, subp. 3B(1), he is entitled to an additional 2% permanent partial disability for his second procedure, in which additional cartilage was removed from his lateral meniscus. He contends that his overall functional impairment is worse following the second procedure and that Dr. Kittleson clearly believes that the employee has additional permanency in his right knee. Because Dr. Kittleson=s opinion was the only medical opinion offered on the issue, and, because his right knee condition has clearly worsened, the employee contends that the judge=s denial of his permanency claim is unsupported by substantial evidence. We are not persuaded.

The pertinent section of the permanent partial disability schedules, Minn. R. 5223.0510, subp. 3, provides in part for the following ratings consequent to meniscectomy:

In this case, despite the opinion of Dr. Kittleson, the judge concluded that, because he has had more than 50% of the cartilage removed from his lateral meniscus, the employee is entitled to a 3% impairment rating. The judge viewed the claimed rating of an additional 2% as a lesser-included category of the category under which permanency was previously paid.

We agree with the judge=s construction of the permanency rules in this case. The rules clearly contemplate a rating for an employee who has up to 50% of a cartilage removed, and a different rating for an employee who has more than 50% of a cartilage removed. Here, the employee has had a greater than 50% lateral meniscectomy. Although permanency ratings offered by physicians may assist a compensation judge in making a permanency determination, such opinions are not binding. Erickson by Erickson v. Gopher Masonry, Inc., 329 N.W.2d 40, 43, 35 W.C.D. 523, 528 (Minn. 1983). The rules assign a specific rating where more than 50% of a cartilage has been removed. We see no reason to conclude that the functional impairment contemplated by the rules would be different because more than one surgical procedure might be required. Therefore, the decision of the compensation judge denying the employee=s claim for permanent partial disability benefits affirmed.

^[1] Dr. Kittleson rated the employee=s permanent partial disability under Minn. R. 5223.0510, subp. 3B(2), which provides a 3% rating for a meniscectomy with more than 50% of the cartilage removed.

^[2] See Minn. R. 5223.0510, subp. 3B (1).

^[3] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

^[4] See Weber v. City of Inver Grove Heights, 461 NW.2d 918, 43 W.C.D. 471 (Minn. 1990).