COLLEEN L. FRAMPTON, Employee, v. CUB FOODS, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 10, 2005

 

No. WC04-194

 

HEADNOTES

 

APPORTIONMENT - PERMANENT PARTIAL DISABILITY.  Substantial evidence supported the compensation judge=s decision denying statutory apportionment of permanent partial disability under Minn. Stat. ' 176.101, subd. 4a, where the record reasonably supported the compensation judge=s conclusion that the employee had no significant disability prior to her work injury.  We decline to overrule Beck v. Dick & John=s Price Rebel, 40 W.C.D. 254 (W.C.C.A 1987).

 

Affirmed.

 

Determined By: Wilson, J., Pederson, J., and Stofferahn, J.

Compensation Judge: Catherine A. Dallner

 

Attorneys:  D.G. Fernstrom, Fernstrom & Associates, Maple Grove, MN, for the Respondent.  Roderick C. Cosgriff, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN for the Appellant.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s decision denying  apportionment of permanent partial disability under Minn. Stat. ' 176.101, subd. 4a.  We affirm.

 

BACKGROUND

 

The employee has a history of low back symptoms and treatment dating back to at least 1992.  Medical records indicate that she was seen in March of 1992 for evaluation of low back discomfort, with radiating pain and numbness into the left foot, and a Asix year history of back pain.@  A subsequent lumbar MRI scan apparently disclosed a herniated disc at L4-5 on the left.

 

The employee evidently received little or no additional care for back symptoms until April 9, 1998, when she was seen by Dr. H. William Park for low back and radiating right leg pain, which had Aoccurred two weeks ago when [the employee=s] 3-year old granddaughter jumped into her outstretched arms.@  X-rays showed decreased disc space at L5-S1 with spur formation Ahigher up,@ and Dr. Park diagnosed A[d]iscogenic back pain with possible radiculitis.@  An MRI performed on April 21, 1998, revealed a moderate-sized disc protrusion on the right at L4-5, apparently involving the L4-5 nerve root.^[1]  A week later, on April 28, 1998, the employee underwent a microscopic laminectomy with disc excision at L4-5.

 

The employee followed up with Dr. Park for several months after her surgery.  In June of 1998, the employee indicated to Dr. Park that she was Adoing fine@ but had some intermittent mild buttock pain.  In July of 1998, the employee reported recurrent low back pain with radiating right leg pain, and Dr. Park prescribed physical therapy and a Medrol Dosepak.  A month later, on August 3, 1998, noting that the employee=s leg pain had increased despite conservative treatment, Dr. Park decided to have the employee undergo another MRI.  That scan, performed on August 5, 1998, showed no evidence of a recurrent disc herniation or bulge.

 

On August 10, 1998, Dr. Park apparently told the employee that her symptoms were due to scar tissue and residual swelling, and he prescribed medication and advised the employee to return in another month.  The office note from that September 17, 1998, follow-up appointment reads, in its entirety, as follows:

 

Colleen Frampton was seen in the office today for follow-up.  She is here stating that she still has significant buttocks pain and intermittent leg pain.

 

ON EXAMINATION:

The patient [seems] to be walking reasonably well.  The patient at this time has negative straight leg raising.  Motor function is grossly intact.

 

The patient reports that comparatively post surgery the patient is definitely better.

 

RECOMMENDATION:

At this point I told the patient that she should be able to get back to modified work.  No lifting more than 20 pounds, and that the patient should continue to work on abdominal strengthening exercises, and weight reduction.  In about 2 or 3 weeks the patient should be able to get back to her regular work.  The patient was told to expect some discomfort in the future but functionally the patient may resume her previous work activities.  The patient should avoid heavy lifting, however.  Followup in two months.

 

 

The employee did not return to see Dr. Park for the two-month follow-up.  She subsequently testified that she saw no reason to return because her symptoms had subsided.

 

In March of 2000, the employee began a job with Cub Foods [the employer], working first in the floral department of a Kowalski=s store in Inver Grove Heights.  Her job duties included making floral arrangements and putting away cut flowers and plant deliveries, which necessitated carrying 35- to 40-pound buckets, repetitive bending, lifting, and reaching, and standing for most of her work day.

 

After about two months at the Inver Grove Heights store, the employee was transferred to the floral department in the Cub Foods store in White Bear Lake, where she worked as a lead florist.  The employee testified that she was the only florist working in that store and that, as a result, she had to do all of the lifting and carrying needed to run that department, including lifting and moving 50-pound boxes of  plants, without assistance.  The employee further testified that she had no trouble performing her job duties.

 

On June 26, 2000, the employee sustained an admitted injury to her low back when she slipped and fell in a cooler at work, landing on her right side.  She sought treatment that same day, from Dr. Vijay Eyunni, for low back pain extending into the right calf.  Despite substantial medical care, the employee continued to experience low back and right-sided buttock, hip, and leg pain.  Ultimately, on June 26, 2002, after various diagnostic tests and exhaustion of conservative treatment measures, the employee underwent anterior-posterior lumbar fusion at L4-5 and L5-S1, with instrumentation.  Dr. Bruce Bartie, the employee=s treating surgeon, subsequently restricted the employee from lifting more than 20 pounds, from standing for more than 30 minutes, from repetitive bending and reaching, and from working for more than 32 hours a week.  As a result of these restrictions, the employee was unable to return to her preinjury job, and she testified that she also had to curtail or eliminate various recreational activities as a result of her low back condition.  The employee did return to alternate employment with the employer, doing pricing work at the White Bear Lake Cub Foods and receptionist work at a Kowalski=s store in Woodbury.  Her manager allows the employee to stagger her work days because her back becomes tired if she works three days in a row.

 

The matter came on for hearing on February 20, 2004, for resolution of disputes over the employee=s weekly wage and whether the self-insured employer was entitled to apportionment for preexisting permanent partial disability pursuant to Minn. Stat. ' 176.101, subd. 4a.  The parties stipulated that the employee had a A20% permanent whole body impairment attributable to the lumbar spine@ and that Dr. Mark Thomas, the employer=s independent examiner, had rated the employee=s preexisting permanent partial disability at 11% based on medical records predating the employee=s 2000 work injury.  The employer also agreed to pay the employee benefits for an additional 2% whole body impairment, on top of benefits for a 7% impairment that had previously been paid for the work injury.

 

In a decision issued on April 30, 2004, the compensation judge concluded, in relevant part, that the employee had a 20% whole body impairment as a result of her work injury and resulting surgery and that the employer was not entitled to any offset for preexisting disability.  The employer appeals.

 

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).

 

DECISION

 

1.  Statutory Apportionment

 

Minn. Stat. ' 176.101, subd. 4a, provides in relevant part as follows:

 

Subd. 4a.  Preexisting condition or disability; apportionment.

(a) If a personal injury results in a disability which is attributable in part to a preexisting disability that arises from a congenital condition or is the result of a traumatic injury or incident, whether or not compensable under this chapter, the compensation payable for the permanent partial disability pursuant to this section shall be reduced by the proportion of the disability which is attributable only to the preexisting disability.  An apportionment of a permanent partial disability under this subdivision shall be made only if the preexisting disability is clearly evidenced in a medical report or record made prior to the current personal injury.

 

In the present case, Dr. Bartie, one of the employee=s treating physicians, indicated that the employee=s low back condition warrants a 20% rating under Minn. R. 5223.0390, subps. 3C(2) and 5B, which read as follows:

 

Subp. 3.  Lumbar pain syndrome.

 

    A.  Symptoms of pain or stiffness in the region of the lumbar spine  not substantiated by persistent objective clinical findings, regardless of radiographic findings, zero percent.

    B.  Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, but no radiographic abnormality, 3.5 percent.

    C.  Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part:

(1) single vertebral level, seven percent;

(2) multiple vertebral levels, ten percent.

 

*  *  *

 

Subp. 5.  Fusion.

 

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

 

(Emphasis added).  Dr. Thomas, the employer=s independent examiner, agreed with Dr. Bartie=s 20% rating.  Dr. Thomas also indicated, however, that the employee=s low back condition warranted an 11% rating, after her 1998 laminectomy, pursuant to Minn. R. 5223.0390, subp. 4D(2), which provides:

 

Subp. 4.  Radicular syndromes.

 

*  *  *

 

    D.  Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the lower extremity, on examination and myelographic, CT scan or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a lumbar 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 radicular 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;

 

(Emphasis added).  In a February 20, 2004, report, Dr. Thomas clarified that the 20% rating now applicable to the employee=s condition was not to be added to the 11% rating applicable to the employee=s preexisting condition; rather, Aas after the June 26, 2000 [work injury], Ms. Frampton had further injury and treatment to the same lumbar level involved with the 1998 injury, the 20% percent rating would have to be offset by the 11 percent rating which pre-existed the [work injury].@  Dr. Bartie did not offer any opinion regarding preexisting permanent partial disability.  He did report, however, that the employee=s June 26, 2000, work injury represented Aa permanent aggravation of a preexisting condition,@ and he suggested that 90% of the employee=s current condition and disability was attributable to the work injury.

 

In rejecting the employer=s argument for apportionment under Minn. Stat. ' 176.101, subd. 4a, the compensation judge noted initially that the employee=s current 20% rating is based on lumbar pain syndrome treated by multilevel fusion, whereas the 11% rating assigned by Dr. Thomas to the employee=s preexisting condition is based on a radicular syndrome and surgical treatment of a herniated L4-5 disc.  There is, as the compensation judge implied, an argument that the ratings at issue are applicable to two different injuries and two different conditions, making statutory apportionment inappropriate.  See, e.g., Fleener v. CBM Indus., 564 N.W.2d 215, 56 W.C.D. 495 (Minn. 1997).

 

The compensation judge also denied apportionment, or offset for the preexisting 11% rating, based on her conclusion that the employee had no permanent impairment of function following her recovery from the 1998 surgery.  In explaining her decision on this issue, the compensation judge wrote, in part, as follows:

 

The employee did not seek any care or treatment for any low back pain or problems from the time of her last follow-up appointment with Dr. Park in September of 1998 until after her slip and fall at work for the employer on June 26, 2000.  The employee testified credibly that she continued to work full time in her regular occupation as a floral designer and arranger without missing any time from work or undergoing any care or treatment attributable to her low back during the period from the fall of 1998 until her injury of June of 2000.  The employee=s jobs as a floral designer and arranger required lifting and carrying boxes of flowers, pails of water, and pails of water containing flowers; repetitive bending and stooping; standing and walking for the majority of the workday and repetitive reaching and bending.  The employee was physically able to perform all of her required work duties in her jobs from the fall of 1998 until June 26, 2000.  The employee also had no problems doing her recreational activities including playing pool, playing volleyball, playing softball with family members, and fishing from the fall of 1998 until her injury on June 26, 2000.  During this same time period, the employee was able to do all of her normal household activities including vacuuming, dusting drapes, doing laundry, washing windows, weeding her garden and mowing the lawn.  The office note of Dr. Park dated September 17, 1998 does include his recommendation that Ms. Frampton should avoid heavy lifting in addition to his opinion that Ms. Frampton could resume her previous work activities in two to three weeks.  The employee then did not seek further follow up with Dr. Park.  The employee was physically able to perform and did perform all of her required job duties as a floral designer and floral arranger for one and a half years from the fall of 1998 until her injury of June of 2000.

 

From her explanation, it is clear that the compensation judge was evaluating the apportionment question pursuant to Beck v. Dick & John=s Price Rebel, 40 W.C.D. 254 (W.C.C.A. 1987), in which this court held that ratable permanency did not automatically constitute functional impairment or disability for purposes of apportionment under subdivision 4a.

 

On appeal, the employer argues initially that substantial evidence does not support the conclusion that the employee=s preexisting condition did not disable the employee after her 1998 surgery.  In support of this argument, the employer cites Dr. Park=s restriction against heavy lifting, in September of 1998, and the testimony of the employee=s manager, who indicated that the employee had informed her, on hiring, that Ashe had a bad back and . . . a restriction for lifting weight.@^[2]  We concede that another fact finder might have decided differently as to whether the employee=s preexisting condition was Adisabling@ prior to the 2000 work injury.  However, we cannot conclude that the decision reached by the compensation judge in this case was unreasonable on this record, for the reasons articulated by the judge, quoted above.  Under the circumstances, we  find inadequate grounds to reverse the judge=s decision on this issue, which is factual in nature.  See, e,g,, Brandstrom v. Honeywell, slip op. (W.C.C.A. Mar. 7, 1997); see also Arries v. Itasca Nursing Home, slip op. (W.C.C.A. Apr. 29, 1997) (the employer has the burden of proof on the issue of apportionment under Minn. Stat. ' 176.101, subd. 4a).

 

The employer also contends that the judge erred as a matter of law in denying apportionment, in that an employee who has a preexisting condition that is ratable under the permanent partial disability schedules has, by definition, a functional loss of use or impairment of function.  There is some merit to this argument.  As the employer points out, in Zidich v. National Cash Register, the Minnesota Supreme Court expressly adopted the rationale of the dissenting opinion in the decision from the Workers= Compensation Court of Appeals [WCCA], which arguably supports the employer=s position here.  See Zidich, 549 N.W.2d 629, 54 W.C.D. 361 (Minn. 1996), reversing Zidich v. National Cash Register Corp., 54 W.C.D. 348 (W.C.C.A. 1996).  However, the supreme court issued its decision in Zidich in the form of an order, and the case is listed as an unpublished decision in Northwestern Reporter 2d.  Unpublished cases as a rule have no precedential value.  See, e.g., Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn. 1982).  Moreover, in Zidich, a majority of the WCCA had reversed a compensation judge=s decision to apply statutory apportionment, and, in adopting the dissenting opinion=s rationale, the supreme court cited Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984), and indicated that the judge=s apportionment Ahad the requisite evidentiary support.@  Zidich, 54 W.C.D. at 362.  In other words, in reinstating the compensation judge=s decision, the supreme court strongly implied that apportionment under Minn. Stat. ' 176.101, subd. 4a, is a factual issue.  It is also worth noting that the WCCA dissent in the Zidich case  did not express any intent or desire to overrule Beck v. Dick & Jane=s Price Rebel, 40 W.C.D. 254 (W.C.C.A. 1987), the case from this court first suggesting factors relevant to determining whether there has been functional loss of use or impairment of function for purposes  of apportionment under Minn. Stat. ' 176.101, subd. 4a.  Rather, the dissent concluded that the judge=s apportionment decision was reasonable under the circumstances.

 

The Beck case, applied by the compensation judge in the present matter, has been cited by or relied on by this court numerous times since it was issued nearly 18 years ago.  See, e.g., Hockman v. Metal-Matic, No. WC04-137 (W.C.C.A. Aug. 5, 2004); Syverson v. Iron Gate Tire & Auto, slip op. (W.C.C.A. Feb. 9, 1998); Gordon v. Ryder Student Transp., 52 W.C.D. 661 (W.C.C.A. 1994); Bubb v. St. Louis County, 51 W.C.D. 239 (W.C.C.A. 1994); Rasmussen v. Fuel Economy Contracting Co.,  49 W.C.D. 327 (W.C.C.A. 1993); Britton v. NCHP Property Management, 43 W.C.D. 406 (W.C.C.A. 1990).  Finding no obvious intent by the supreme court, in Zidich, to overrule Beck, and seeing no compelling reason, independent of Zidich, to change our views on the issue, we affirm the compensation judge=s denial of statutory apportionment.

 

2.  Payment of Permanent Partial Disability Benefits

 

In his brief on appeal, the employee contends that the employer failed to pay the employee benefits for an additional 2% impairment, contrary to their agreement at hearing, and she asks this court to issue an order Acompelling [the employer] to pay the additional 2% whole body impairment@ and Aall benefits due in accordance therewith, including Minn. Stat. ' 176.081, subd. 7 fees, penalties and interest thereon.@  However, in its brief, the employer states that the employer Apreviously paid 9% of the permanency to the employee voluntarily.@  As a reviewing court, the WCCA is in no position to resolve this dispute.  The employee=s request is therefore denied.