GERARD L. SCHWIETERS, Employee/Cross-Appellant, v. ORDER OF ST. BENEDICT, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS CO., Employer/Appellant, and WILLLIAMS/INTEGRACARE CLINIC, Intervenor, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 13, 2004

 

File No. WC04-197

 

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical opinions and the employee=s extensive medical records, supported the judge=s decisions as to the appropriate permanent partial disability ratings attributable to the employee=s cervical, lumbar, and traumatic brain injuries.  The judge=s award was, however, modified to correct calculation errors.

 

Affirmed in part and modified in part.

 

Determined by: Wilson, J., Stofferahn, J., and Rykken, J.

Compensation Judge: Kathleen Behounek

 

Attorneys: Ronald Drewski, Drewski & Lindberg, Sauk Rapids, MN, for the Cross-Appellant.  Timothy J. Pramas, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Appellant.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals, and the employee cross appeals, from the compensation judge=s award of permanent partial disability benefits. We affirm in part and modify in part.

 

BACKGROUND

 

On October 17, 1991, the employee sustained work-related injuries to his brain, neck and low back as a result of a 15 to 20-foot fall occurring in the course and scope of his employment as a boiler engineer for the Order of St. Benedict [the employer], which was self-insured against workers= compensation liability.  He received substantial medical care following the injury, including inpatient rehabilitative care to assess and treat the effects of the brain injury.  Psychometric evaluations were performed in January and June of 1992.  Symptoms noted in the employee=s post-injury treatment records include memory loss, problems with speech and cognitive functioning, and spasticity of his upper and lower extremities, particularly on the right side.

In October of 1992, about a year after his fall, the employee returned to work for the employer, within certain restrictions, on a half-time basis.  A year after that, in October 1993, Dr. Thomas Balfanz, one of the employee=s treating physicians, issued a report indicating that the employee had reached maximum medical improvement [MMI] from his brain injuries as of May 18, 1993.  With regard to permanent partial disability, Dr. Balfanz indicated that the employee had a 10% impairment under the permanency rule covering communication disturbances, a 20% impairment under the rule covering impairment of higher level cognitive function or memory, a 10% impairment under the rule covering emotional disturbances or personality changes, and a 7% impairment under the rule covering lumbar degenerative changes.  In this same report, Dr. Balfanz indicated that the employee was expected to reach MMI for his low back condition on about December 15, 1993.

 

On December 7, 1993, the employer served the employee with notice of MMI and indicated that payment would be made, in accordance with Dr. Balfanz=s permanent partial disability assessments, for a combined disability rating of 39.73%, as calculated under the statutory formula contained in Minn. Stat. ' 176.105.

 

The employee continued to work for the employer on a half-time basis until January of 2002, when his chiropractor concluded that the work was aggravating his low back condition.  Although he was subsequently assigned a QRC, the employee found no other employment.

 

The matter came on for hearing before a compensation judge on April 19, 2004, for resolution of the employee=s claim for permanent total disability benefits as well as additional permanent partial disability benefits.  The employer denied that the employee was permanently totally disabled and contended that no additional permanent partial disability benefits were due.  Evidence included the employee=s extensive medical records and the reports and deposition testimony of Dr. Steven Noran, the employee=s independent examiner, and Dr. Steven Morgan, the employer=s independent examiner.

 

In a decision issued on May 12, 2004, the compensation judge concluded that the employee had been permanently and totally disabled as a result of his work injury since January 18, 2002.  This finding is not disputed on appeal.  The compensation judge also concluded that the employee was subject to permanent impairments due to his work injury, as follows:

 

15%	hemiparesis affecting lower extremities	Minn. R. 5223.0060, subp. 7A(1)
10%	hemiparesis affecting right upper extremity	Minn. R. 5223.0060, subp. 8G
10%	communication disturbance	Minn. R. 5223.0060, subp. 8A(1)
30%	complex integrated cerebral function disturbance	Minn. R. 5223.0060, subp. 8C(2)
10%	emotional disturbances and personality changes	Minn. R. 5223.0060, subp. 8D(1)
7%	lumbar degenerative change	Minn. R. 5223.0070, subp. 1A(3)a
6%	cervical chip fracture	Minn. R. 5223.0070, subp. 2E(1)

 

 

The judge denied the employee=s claim for a rating for vertigo under Minn. R. 5223.0060, subp. 4A. After utilizing the formula contained in Minn. Stat. ' 176.105, the judge concluded that the employee had a total whole body impairment rating of 94.794%, that the employee was entitled to a total of $379,176.00 in impairment compensation, and that the impairment compensation of $35,762.40 previously paid should be subtracted from the total, resulting in an award of $343,413.60 for permanent partial disability.  Both parties appeal with respect to certain permanency ratings,^[1] and they agree that the judge=s decision contains calculation errors.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

1.  Vertigo

 

The employee claimed entitlement to benefits for a 10% whole body impairment rating for vertigo, pursuant to Minn. R. 5223.0060, subp. 4A, which reads as follows:

 

Subp. 4.  Vestibular loss with vertigo or disequilibrium.  Vestibular loss with vertigo or disequilibrium is a disability of the whole body as follows:

 

A.  a score of 24 to 28 on the Kenny scale, and restricted in activities involving personal or public safety, such as operating a motor vehicle or riding a bicycle, 10 percent;

 

The employee=s claim with regard to this rating is supported by the testimony of both the employee and the employee=s wife, with respect to his problems with balance, and by the opinion of Dr. Noran, who testified that, while the employee did not exhibit nystagmus, the employee definitely had an abnormal sensation of movement, affecting his balance, consistent with a brain injury.  The compensation judge concluded that the employee did in fact have vertigo precipitated by movement, but she denied the claimed 10% rating because there had been Ano showing that the employee scored between 24 to 28 on the Kenny scale, as required by the permanency rule.@

 

On appeal, the employee argues that the compensation judge erred in rejecting Dr. Noran=s opinion, and rating, in that Dr. Noran was the only physician to address this particular impairment claim.  The employee also contends that Dr. Noran=s testimony regarding the employee=s Kenny scale score^[2] was sufficient to support the claimed rating.  We are not convinced that the compensation judge erred in her decision on this issue.

 

As the compensation judge noted, there is no indication in the employee=s extensive medical records that the employee ever underwent the Kenny evaluation referenced by the rules,^[3] and Dr. Noran himself apparently performed no neuropsychological, psychometric, or other testing that could be interpreted as a Kenny scale rating.^[4]  In fact, there is no explanation in the record for the doctor=s Kenny scale score.  We also note that no physician, other than Dr. Noran, has ever rated the employee for or even diagnosed the employee as having vertigo, despite the employee=s extensive post-injury treatment.

 

The compensation judge could perhaps have accepted Dr. Noran=s opinion as to the propriety of a 10% rating for vertigo, but, under the circumstances of this case, the judge was not required to do so.  A finding of permanent partial disability is one of ultimate fact.  See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  The fact that Dr. Noran=s opinion is Auncontroverted@ is irrelevant.  Because substantial evidence supports the compensation judge=s denial of the employee=s claimed rating for vertigo, we affirm the judge=s decision on this issue.

 

2.  Brain Injury

 

Most of the remaining permanency ratings at issue are contained in Minn. R. 5223.6000, subp. 8, dealing with brain injury.  The relevant provisions read as follows:

 

Subp. 8.  Brain injury.  Supporting objective evidence of structural injury, neurological deficit, or psychomotor findings is required to substantiate the permanent partial disability.  Permanent partial disability of the brain is a disability of the whole body as follows:

 

  A.  Communications disturbances, expressive:

 

(1)  mild disturbance of expressive language ability not significantly impairing ability to be understood, such as mild word-finding difficulties, mild degree of paraphasias, or mild dysarthria, 10 percent;

 

* * *

 

  C.  Complex integrated cerebral function disturbances must be determined by medical observation and organic dysfunction supported by psychometric testing.  Functional overlay or primary psychiatric disturbances shall not be rated under this part.  The permanent partial disabilities are as follows:

 

(1)  mild impairment of higher level cognitive function ormemory, but able to live independently and function in the community as evidenced by independence in activities such as shopping and taking a bus, 20 percent;

 

(2)  same as subitem (1), and also requires supporting devices and direction to carry out limited vocational tasks, 30 percent;

 

* * *

 

  D.  Emotional disturbances and personality changes must be  substantiated by medical observation and by organic dysfunction supported by psychometric testing.  Permanent partial disability is  a disability of the whole body as follows:

 

(1)  only present under stressful situation such as losing one=s job, getting a divorce, or a death in the family, 10 percent;

 

(2) present at all times but not significantly impairing ability to relate to others, to live with others, or to perform self cares, 30 percent;

 

The employer paid the employee benefits for a 10% rating for communication disturbances, expressive, pursuant to Minn. R. 5223.0060, subp. 8A(1), and the compensation judge accepted the employee=s claim in the current proceeding that that rating was appropriate.  The employer argues, however, that the previous payment was made mistakenly and that substantial evidence does not support the judge=s award under this provision.  We are not persuaded.

 

The employer=s examiner, Dr. Morgan, conducted a neuropsychological evaluation of the employee several months prior to hearing, and he testified that testing showed the employee=s communication and language skills to be within the normal range.  Dr. Morgan also testified that the last such formal testing was conducted less than a year after the employee=s injury and that patients with brain injury can show improvement up to two years after the injury.  As such, Dr. Morgan explained, it is evident that the employee did in fact improve after the previous testing and that, given current test results, the employee has no communication impairment.

 

The employer=s argument in this regard is not without merit, particularly because, as previously noted, Dr. Noran apparently conducted little formal testing concerning the employee=s level of brain injury impairment, instead relying on old records.  However, Dr. Noran did note the presence of dysarthria, or difficulty articulating words, and Dr. Morgan acknowledged that  the employee Adoes struggle with articulation on some of the more demanding vocabulary.@  Just as importantly, Dr. Balfanz rated the employee as having a 10% impairment under this category when he issued his MMI report in October of 1993.  Dr. Balfanz=s rating, in connection with his MMI report, clearly reflect the opinion that the employee=s communication deficit was expected to be permanent.  Given all the evidence on this issue, the compensation judge was not required to accept Dr. Morgan=s testing or opinion as determinative.  Because the evidence minimally but adequately supports the compensation judge=s award of benefits for a 10% impairment relative to expressive communication disturbances, we affirm that decision.

 

The next rating category in dispute is Minn. R. 5223.6000, subp. 8C, covering Acomplex integrated cerebral function disturbances,@ specifically, higher level cognitive functioning or memory.  The parties agree that the employee is entitled to a rating under this category; the question is whether subp. 8C(1), which provides for a 20% rating, or subp. 8C(2), which provides for a 30% rating, is applicable.  The employer paid the employee benefits for a 20% rating, in accordance with the 1993 opinion of Dr. Balfanz, and the employee was also given a 20% rating by Dr. Morgan, who testified that he would have given the employee an even lower rating had one been available under the schedules.  The compensation judge, however, accepted the employee=s claim that a 30% rating was appropriate.  The employer appeals, contending that substantial evidence does not support the judge=s decision.

 

Both rating categories at issue apply to mild impairment of higher level cognitive functioning or memory, with the employee able to live independently.  The higher rating is warranted if the employee Aalso requires supporting devices and direction to carry out limited vocational tasks.@  Minn. R. 5223.0060, subp. 8C(2).  In the present case, the employee=s early post-injury treatment records are replete with references to significant memory problems.  In the report from 1992 neuropsychological testing, Dr. Timothy Tinius indicated that the employee required Aprompts, cues, and structure@ to improve problem-solving difficulties related to memory deficits.  Furthermore, in a 2002 examination related to a social security disability claim, Dennis Anderson, a licensed psychologist, indicated that the Amost striking feature of the employee=s current assessment is the [employee=s] rather notable disruption in memory capability,@ and Mr. Anderson wrote that it was Anecessary to continually redirect [the employee] to obtain reasonable amounts of data.@  Mr. Anderson further noted that his testing of the employee was generally consistent with the earlier testing.  Finally, testimony at hearing indicated that, because the employee cannot generally remember instructions from his wife or more than two or three items on a grocery list, the employee=s wife has to write things down for him.  This evidence adequately supports the judge=s decision that the employee is entitled to the higher 30% rating for memory problems as specified by Minn. R. 5223.0060, subp. 8C(2).

 

The final brain injury rating category at issue is Minn. R. 5223.0060, subp. 8D, applicable to emotional disturbances and personality changes that have been substantiated by medical observation.  The compensation judge concluded that the employee was entitled to a 10% rating under subp. 8D(1), which is applicable when the emotional disturbances or personality changes are present only under stressful situations, such as divorce or a death in the family.  On appeal, the employer contends that a rating under this category is not warranted because evidence of medical observation is lacking.  In his brief on cross-appeal, the employee contends that he is entitled to a 30% rating under subp. 8D(2), because his personality and emotional disturbances are Apresent at all times.@  We are not persuaded that the judge=s rating is clearly erroneous or unsupported by substantial evidence.

 

Early post-injury treatment records contain notations of emotional distress related to the employee=s brain injury; however, the employee=s emotional condition apparently improved over time, and later treatment records contain few if any such references.  It is also clear from his testimony that the employee does not see himself as having any particular emotional problems.  At the same time, however, both Dr. Tinius in 1992 and Mr. Anderson in 2002 indicated that the employee has an organic personality disorder, and Dr. Noran testified that the employee has a Apersonality change@ characteristic of frontal lobe brain injury.  This evidence supports the compensation judge=s conclusion that the employee is entitled to a 10% rating, at minimum, under subp. 8D(1).

 

With regard to the employee=s argument for a higher rating, we question whether the issue is properly before us on appeal, in that the employee did not appeal from Finding 8f, the judge=s finding concerning this rating.  See Minn. Stat. ' 176.421, subd. 3(3).  In any event, it was not unreasonable for the judge to deny the 30% rating based on her conclusion that Amedical records failed to show that the employee was observed to demonstrate emotional disturbances and personality changes present at all times.@  We also note that Dr. Balfanz assigned a 10% rating for emotional disturbances in his 1993 report, which further supports the judge=s decision.  We therefore affirm the judge=s 10% rating for emotional disturbance and personality changes.

 

3.  Low Back

 

The permanent partial disability rating category at issue with respect to the employee=s low back condition provides as follows:

 

Subpart 1.  Lumbar spine.  The spine rating is inclusive of leg symptoms except for gross motor weakness, bladder or bowel  dysfunction, or sexual dysfunction.  Permanent partial disability of the lumbar spine is a disability of the whole body as follows:

 

  A.  Healed sprain, strain, or contusion:

 

* * *

 

(3)  Pain associated with rigidity (loss of motion or postural abnormality) or chronic muscle spasm.  The chronic muscle spasm or rigidity is substantiated by objective clinical findings and is associated with demonstrable degenerative changes.

 

(a) single vertebral level, 7 percent; or

(b) multiple vertebral levels, 10.5 percent.

 

Minn. R. 5223.0070, subp. 1.  The employer paid the employee benefits for a 7% rating under subp. 1A(3)(a), and the compensation judge agreed that a 7% rating appropriately reflected the level of the employee=s low back impairment.

 

On appeal, the employee argues that the 10.5% rating given by Dr. Noran is Auncontradicted in the record.@  This is simply not true.  In a September 15, 1993, report, Dr. Casey Oie, D.C., indicated that an April 1993 CT scan showed an osteophyte at L5 on the left and that A[n]o other degenerative changes are noted.@^[5]  For this reason, Dr. Oie concluded that the employee=s lumbar condition was best represented by a 7% rating.  Dr. Balfanz concurred with this assessment.  Because the CT scan and the opinions of Dr. Balfanz and Dr. Oie clearly support the compensation judge=s conclusion that Minn. R. 5223.0070, subp. 1A(3)(a), most accurately reflected the level of the employee=s lumbar impairment, we affirm the judge=s decision in this regard.

 

4.  Calculation Errors

 

We have affirmed all of the judge=s conclusions with regard to the extent of the employee=s work-related permanent impairments.  Again, the separate ratings applicable to the employee=s condition are 15%, 10%, 10%, 30%, 10%, 7%, and 6%.  However, as both parties have recognized, the compensation judge erred in calculating the employee=s total permanent impairment, using the formula contained in Minn. Stat. ' 176.105, subd. 4.  Under the formula, the employee=s combined whole body impairment rating is 62.0811%, which, when multiplied by $160,000, pursuant to Minn. Stat. ' 176.101, subd. 3b (1990), results in a total impairment compensation award of $99,329.76.  After subtraction of $35,762.40 for the impairment compensation already paid, the employee is entitled to $63,567.36 in additional benefits for permanent partial disability.  The judge=s decision is modified accordingly.