KENNETH E. STONE, Employee, v. HAROLD CHEVROLET, and ASU RISK MGMT. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 3, 2004

 

No. WC04-185

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - REFLEX SYMPATHETIC DYSTROPHY; RULES CONSTRUED - MINN. R. 5223.0430, subp. 6. When the compensation judge determined that the employee had a functional impairment as a result of his reflex sympathetic dystrophy, an award of permanent partial disability compensation was appropriate pursuant to Minn. R. 5223.0430, subp. 6.

 

Affirmed.

 

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

 

Compensation Judge: Paul D. Vallant

 

Attorneys:  Allen R. Webb, Attorney at Law, Burnsville, MN, for the Respondent.  Andrew J. Morrison, Koll, Morrison, Charpentier & Hagstrom, St. Paul, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer appeals from the compensation judge=s award of permanent partial disability compensation for the impairment caused by reflex sympathetic dystrophy as the result of the employee=s work injury.  We affirm.

 

BACKGROUND

 

At the hearing, the parties litigated a number of issues arising out of the employee=s admitted work injury of May 3, 2001, including whether the employee was permanently totally disabled.  The only issue on appeal is whether the employee is entitled to an award of permanent partial disability for the impairment he has sustained due to the reflex sympathetic dystrophy he developed as the result of that injury.^[1]

 

The employee, Kenneth Stone, was employed by Harold Chevrolet when he was injured on May 3, 2001.  A cylinder head, weighing between 75 and 100 pounds, fell off a bench and struck him in the left calf and knocked him down.  The employee received medical attention that day at the emergency room of Fairview Southdale Hospital and was assessed as having a left lower leg laceration and contusion.  The employee received follow-up care from Dr. James Eelkema at Quello Clinic.  His primary complaint while treating there was of pain in the left leg. 

 

An MRI was done on June 26, 2001, which showed a disc herniation at the L5-S1 level with compression of the left nerve root.  Dr. Eelkema referred the employee to an orthopedist, Dr. David Holte, who recommended a diskectomy.  The employee was seen by another orthopedist, Dr. Robert Hartman, on August 30, 2001, at the request of the employer.  Dr. Hartman agreed with the diagnosis of left L5-S1 disc herniation, concluded that the condition was causally related to the employee=s work injury of May 3, 2001, and stated that the employee was an Aexcellent candidate@ for L5-S1 diskectomy.  The employee had a left-sided diskectomy at the L5-S1 level performed by Dr. Holte on October 22, 2001. Ultimately, the employee was rated as having 11% permanent partial disability as the result of his low back condition. This rating was paid voluntarily by the employer. 

 

The surgery did not substantially improve the employee=s left leg pain and on November 8, 2001, Dr. Holte diagnosed reflex sympathetic dystrophy.  On exam he noted increased discoloration of the left leg, blanching of the skin with touching, and hypersensitivity.  Dr. Holte recommended that the employee be evaluated by a neurologist, Dr. Jack Hubbard.

 

The employee saw Dr. Hubbard on December 27, 2001.  The employee told Dr. Hubbard that his pain level varied between 6 and 10 on a 0 to 10 scale.  Dr. Hubbard noted swelling, coldness, and discoloration in the left leg.  The employee indicated that the symptoms were worse in cold weather.  Dr. Hubbard concluded that the employee had developed a chronic regional pain syndrome as a result of his work injury.^[2]  Dr. Hubbard agreed with Dr. Holte=s recommendation for a lumbar sympathetic block and also provided the employee with a prescription for Neurontin.  The employee had a number of therapeutic injections done in January and February, 2002 with no substantial relief in symptoms.

 

The employee returned to Dr. Holte for his care.  On April 16, 2002, Dr. Holte advised the employee that there were no surgical procedures to relieve his left leg pain.  Dr. Holte concluded that the employee would have Aa permanent significant injury.  He is going to have a significant disability and he probably is going to need some psychological counseling and a pain management clinic in the future.@  Dr. Holte continued the employee=s prescription for Oxycontin.

 

The employee was evaluated by a neurologist, Dr. Souhel Najjar, at the request of the employer on May 17, 2002.  When he examined the employee, Dr. Najjar found that the left foot and calf were discolored, the left leg was hypersensitive to touch, and the left foot was slightly colder than the right foot.  Dr. Najjar=s conclusion was that the employee had very mild, early RSD of the left leg which was causally related to the employee=s work injury. 

 

The employee began treating for his RSD at  United Pain Center on July 3, 2002, and came under the care of Dr. John Hansen.  Dr. Hansen noted swelling, skin discoloration and skin temperature abnormality.  Dr. Hansen diagnosed RSD and treated the employee with Methadone and oxycodone for pain control.  Treatment for the employee thereafter centered around medication for pain control and treating with a psychologist to assist the employee in handling his pain.

 

Dr. Najjar conducted a second IME of the employee on January 18, 2003, to consider whether the employee=s ongoing problems were related to his previous back surgery. Dr. Najjar concluded that the employee=s ongoing complaints were not related to any lumbar disc involvement but were, instead, the result of what Dr. Najjar diagnosed as a mild degree of RSD.  Dr. Najjar also stated the employee=s medical treatment, including the medication prescribed, was reasonable and necessary.  In a subsequent report of April 23, 2003, Dr. Najjar stated that the employee met the criteria in Minn. Rules 5223.0430, subp. 6, ^[3] and had moderate RSD entitling him to 50% of the appropriate rating in Minn. Rules 5223.0550.  Applying 5223.0550, subp. 1.H., which refers to amputation at the ankle, Dr. Najjar concluded the employee had a permanent partial disability of 13% of the whole body. 

 

Dr. Hansen addressed the issue of permanent partial disability in his chart note of March 12, 2003.  He determined that the employee=s condition was best described as being between moderate and severe as described in 5223.0430, subp. 6, applied a 66 2/3% factor to 5223.0550, subp. 1.B., which refers to disarticulation at the hip joint, and arrived at an overall rating of 25% permanent partial disability of the whole body.^[4]

 

The employee filed a claim petition on August 29, 2002, claiming entitlement to permanent total disability compensation from June 1, 2001, and continuing.  The claim was later amended to assert a claim for the permanent partial disability rated by Dr. Hansen.  The claims were heard by Compensation Judge Paul Vallant on February 5, 2004.

 

Dr. Hansen testified by deposition for the hearing on February 2, 2004.  It was his opinion that the employee had sufficient objective findings to merit a diagnosis of RSD, even though he could identify only four, and not five, of the eight conditions set out in Minn. R. 5223.0430, subp. 6.  Dr. Hansen applied that rule and Minn. Rule 5223.0550 to arrive at an overall rating of 25% of the whole body.  If asked to assume that 5223.0430 could not be used, Dr. Hansen said that an appropriate rating could be obtained from Minn. Rule 5223.0360, subp. 7.C.3.,  which deals with lower extremity dysfunction due to central nervous system injury.  Under that section, Dr. Hansen rated the employee as having a 40% permanent partial disability of the whole body.

 

Dr. Najjar testified by deposition as well.  It was his opinion that the employee met the criteria for rating permanent partial disability under 5223.0430, subp. 6, although he was not asked, and did not specify, which conditions he believed existed.  Dr. Najjar changed his previous opinion on permanent partial disability and now stated that the employee had mild RSD which would require a 25% modifier.  Applied against 5223.0550, subp. 1. H., the resulting permanent partial disability was 6.5%. 

 

At the hearing, with respect to the issue of permanent partial disability, the employee=s position was that he was entitled to a Weber rating of 40% of the whole body.  The employer=s position was that the employee was not entitled to any permanent partial disability for RSD because he did not have five of the eight conditions set out in the rule.  Notwithstanding this position the employer paid the employee the 6.5% permanent partial disability rated by Dr. Najjar, labeling the payment as Athe right thing to do.@

 

In his Findings and Order, the compensation judge made a number of findings which are pertinent to the present appeal and which were not appealed by either party:

 

24.  From June 2, 2001 to the present the employee has had chronic, severe pain in his entire left leg down to the foot, as well as chronic groin, left buttock, left low back, left shoulder and right knee pain, resulting from the work injury of May 3, 2001.

 

25.  Mr. Stone has moderate RSD of the left leg as a substantial result of the work injury of May 3, 2001, with objective findings of edema (swelling), local skin color change, local abnormality of skin temperature regulation and reduced passive range of motion in the left ankle and toes of the left foot.

 

26. As a substantial result of the employee=s left leg RSD, he is unable to walk without a cane, has fallen on numerous occasions, is unable to sleep in the same bed with his wife, has not had sexual relations in over two years, has difficulty getting out of a chair without assistance, sleeps only intermittently, is unable to assist significantly with house or yard work, can only go shopping if he uses an electric cart, has a dry mouth and constipation from medications,

 has severely curtailed his recreational activities, is unable to showeror drive long distances, and has gained approximately 80 pounds.

 

27.  Mr. Stone has developed mild depression as a substantial result of his left leg RSD and chronic, severe left leg pain.

 

The compensation judge determined that the employee had a 25% permanent partial disability of whole body due to his work injury pursuant to Minn. Stat. ' 176.105, subd. 1.(c). ^[5]  The employer appeals.

 

DECISION

 

At the heart of the dispute in this matter is the function of the eight listed conditions  in 5223.0430, subp. 6.  Nowhere else in the permanent partial disability schedule is there another provision which connects permanent partial disability to a diagnosis. Uniformly, except for this rule, the extent of permanent partial disability is established by identifying the affected body part and then reviewing diagnostic tests and findings to determine a specific rating of disability. The purpose of requiring five out of the eight findings to be present before the condition is Adeemed@ RSD is not apparent either. The number of conditions present in a given case does not necessarily correlate to the severity of the employee=s condition or the extent of disability. The employer argues that the conditions and the requirement that five of those conditions to be present act as a condition precedent for the award of permanent partial disability, and that an employee who has four and not five of the conditions is not entitled to any permanent partial disability compensation. We disagree.

 

To accept the employer=s position would require this court to interpret the rule at issue in such a manner as to ignore clear statutory language and case law. Minn. Stat. ' 176.021, subd. 3, provides that APermanent partial compensation is payable for functional loss of use or impairment of function, permanent in nature...@  It further states ADisability ratings for permanent partial disability shall be based on objective medical evidence.@  Minn. Stat. ' 176.105 provides authority for the Department of Labor and Industry to establish a  Aschedule of degrees of disability resulting from different kinds of injuries.@  Pursuant to that authority, the Department of Labor and Industry established Minn. Rule 5223.0430 establishing degrees of disability for impairment of the peripheral nervous system involving the lower extremity and sensory loss.

 

The authority of the Department is not unlimited. Minn. Stat. ' 176.105, subd. 1(b), provides that  Athe schedule may provide that minor impairments receive a zero rating.@ Given the statutory mandate in Minn. Stat. ' 176.021 for compensation of functional loss demonstrated by objective evidence,  impairments which are not minor may not receive a zero rating and must be compensated. This conclusion is in accord with the holding of the Minnesota Supreme Court in Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).  Weber is generally cited only as authority for the proposition that permanent partial disability not rated in the schedule should be rated by comparison with a similar condition found in the schedule. However, in Weber, the court was faced with rules promulgated by the department which stated that only the categories found in the schedule could be used to rate permanent partial disability and that disability from a condition not found in the rules would not receive permanent partial disability compensation. Minn. R. 5223.0010, subp. 2 and subp. 3 (1989).  The court held that the department had exceeded its authority in issuing such a rule and noted AThe legislature did not expressly authorize the commissioner to exclude injuries resulting in functional impairment from the permanent partial disability schedule.@ The court found that Athe legislative intent to compensate for all functional impairment is thwarted by a rule that results in arbitrary limitation of compensation to those injured workers whose permanent impairments fall in the schedule.@  We conclude that we must apply the rule at issue here so that it is consistent with statute and case law. An employee who has a significant functional impairment which is demonstrated through objective findings must receive permanent partial disability for that functional loss.

 

It is apparent from the record that a diagnosis of RSD may often be difficult. The condition is marked, at least initially, by complaints of intractable pain which may not have an easy explanation. In this case, as late as January 2003, there was still a question as to whether the employee=s leg pain was due to RSD or to his low back condition. The conditions listed in the rule are diagnostic tools with which to establish a diagnosis of RSD. The employee here had four of the eight listed conditions: edema, local skin color change, local abnormality of skin temperature regulation, and reduced passive range of motion. The IME, Dr. Najjar, testified that one of the tests listed in the rule, Atypical findings of reflex sympathetic dystrophy on bone scan,@ is done when there is some question about the diagnosis but that in the present case, Athere is no reason to put him through bone scan. He does have RSD.@ (Resp. Exh. 1, pp. 96-97) With regard to the listed findings, Dr. Hansen testified that, AHe has enough of them to make the diagnosis and the reason he hasn=t been further characterized is that nobody needs to do it to figure it out, it=s just gratuitous diagnosis testing for clinical management.@ (Pet. Ex. C, pp. 43-44) 

 

The medical records and testimony establish a diagnosis of RSD for the employee. The compensation judge, in an unappealed finding, made the determination that the employee has RSD. When a diagnosis of RSD is established, the compensation judge should determine the extent of permanent partial disability by applying 5223.0430, subp. 6.  In this case, the compensation judge found the employee to have moderate to severe RSD as defined by the rule and, although he used a Weber approach in determining the extent of disability, he accepted the reasoning of Dr. Hansen who applied  Minn. R. 5223.0430, subp. 6, and Minn. R. 5223.0550, subp. 1.B., to arrive at a rating of 25% of the body. We find the compensation judge=s award of permanent partial disability to be correct.

 

The employer also contends on appeal that our previous decision in Kump v. Hillcrest Health Care Ctr., slip op. (W.C.C.A., November 9, 1999) is determinative in this matter.  In Kump, however, a key issue was whether the diagnosis of RSD was appropriate.  The employer=s IME in that case opined that there were not sufficient objective findings to establish that diagnosis. There is no similar dispute in the present case.

 

The employer also appeals the compensation judge=s determination of the extent of permanent partial disability, claiming that the compensation judge should have utilized the rating provided by Dr. Najjar.  The question of the extent of permanent partial disability is one of fact to be determined by the compensation judge.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  The employee=s testimony and the opinion of Dr. Hansen provide substantial evidence to support the compensation judge=s decision on this point.