JOHN S. HAUGLAND, Employee/Appellant, v. MIDWEST HARDWOOD CORP., and EMPLOYERS INS. CO. OF WAUSAU, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 1, 2005

 

No. WC05-212

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - COSMETIC DISFIGUREMENT; RULES CONSTRUED - MINN. R. 5223.0650.  "Disfigurement" means anything that disfigures or defaces; a blemish, defect or deformity.  The employee is, accordingly, entitled to compensation for a visible scar on his right eyelid as a consequence of his work injury.  Where the employee=s ratable condition is a cosmetic disfigurement rather than a visual impairment, the compensation judge erred in awarding a two percent permanency for lagophthalmos under Minn. R. 5223.0330, subp. 3.D., and we modify the judge=s finding to award a 15 percent permanency under Minn. R. 5223.0560, subp. 2.C.(3)(c), for ectropion with the cornea unprotected by sleeping.

 

Reversed and modified.

 

Determined by: Johnson, C.J., Wilson, J., and Rykken, J.

Compensation Judge: Jennifer Patterson

 

Attorneys: James M. Sherburne, Sherburne Law Offices, Minneapolis, MN, for the Appellant.  Mark E. Tracy, Law Offices of Powell and Robinson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s denial of his claims for permanent partial disability benefits.  We reverse and modify.

 

BACKGROUND

 

On December 22, 2001, John S. Haugland, the employee, was involved in a motor vehicle accident while working for Midwest Hardwood Corporation, then insured by Employers Insurance Company of Wausau.  The employer and insurer admitted liability for the employee=s personal injury.

 

The employee was airlifted to Gunderson Lutheran Medical Center where he received treatment for lacerations on his forehead and left eyelid.  On January 15, 2002, Dr. Elizabeth Ault Brinker, an ophthalmologist, examined the employee.  She noted the employee had a large incisional scar down the center of his forehead to the medial portion of the left upper eyelid which crossed the eyelid laterally.  The doctor stated the scar on the employee=s eyelid tightened the lid, did not allow the lid to close and rotated the eyelid away from the eye, a condition called cicatricial ectropion.^[1]  Thereafter, the employee=s condition worsened.  On January 30, 2002, Dr. Ault Brinker performed a surgical ectropion which she described as Amaking an incision in the eyelid and releasing all the surgical scar tissue so that the lid can fully close, and replacing that area with a graft from eyelid skin from the right upper eyelid.@  (Pet. Ex. G at 9.)

 

In March 2002, Dr. Ault Brinker noted the employee had some corneal inflammation because his left eyelid was not closing well over the cornea.  In May, the doctor stated the employee had lagophthalmos^[2] when sleeping.  On July 30, 2002, Dr. Ault Brinker diagnosed superior punctate keratitis, dryness and irritation of the cornea, which had improved since March.  In March 2003, Dr. Ault Brinker performed a second surgery to revise the skin graft of the left upper eyelid.  The doctor last saw the employee on March 16, 2003, at which time his vision was good, the eyelid showed no signs of inflammation or tightening and the employee was able to completely close his left eye.

 

Dr. Kipton J.V. Lundquist examined the employee on May 22, 2003, at the request of the employer and insurer.  The doctor concluded the employee sustained permanent scars as a result of his personal injury which healed well.  The doctor rated an anticipated^[3] permanent disability of four percent for a scar on the face^[4] and four percent for scarring of an eyelid.^[5]  Dr. Lundquist noted Minn. R. 5223.0330, subp. 3.D.(5) provides for a two percent rating for lagophthalmos.  Initially, the doctor opined the employee=s lagophthalmos had been corrected by surgery and he had no entitlement to any impairment for that condition.  In a later report, however, Dr. Lundquist concluded the employee did have lagophthalmos.

 

By letter dated November 9, 2003, Dr. Ault Brinker stated the employee was entitled to permanent disability under Minn. R. 5223.0650 for scarring of an eyelid under subp. 2.C.(5).  Dr. Ault Brinker stated the employee did not have lagophthalmos on examination or based on her photographs when the employee was awake.  However, based on a photograph taken of the employee while asleep, the doctor opined the employee=s cornea was unprotected when sleeping entitling the employee to a 15 percent whole body disability under subp. 2.C.(3)(c).

 

Dr. Ault Brinker=s deposition was taken on March 11, 2005.  The doctor reviewed photographs taken of the employee while sleeping.  The doctor stated the photograph showed the employee=s left eye was open a millimeter or two such that the cornea was not completely covered by the eyelid while sleeping.  Dr. Ault Brinker stated the cicatricial ectropion which she performed repaired the eyelid to 95 percent but some tightness remained in the eyelid causing it to remain open during sleep.  Because the cornea is exposed while asleep, the doctor stated the surface of the employee=s eye can become dry and irritated.  The doctor again opined the employee was entitled to a 15 percent permanent disability rating for this condition.  The doctor further stated that she removed tissue from the right eyelid to perform the left eyelid skin graft resulting in a scar on the right eyelid.  The doctor rated a four percent whole body disability for the scar on each eyelid.  Dr. Ault Brinker opined the employee has lagophthalmos while sleeping entitling the employee to an additional two percent permanent disability under Minn. R. 5223.0330, subp. 3.D.(5).

 

The employer and insurer paid the employee for permanent partial disability benefits  for the scars on his forehead and left eyelid.  The employee=s claim for additional disability benefits for a right eyelid scar, lagophthalmos and ectropion were heard by a compensation judge.  In a findings and order, the compensation judge awarded a two percent permanent partial disability for lagophthalmos but denied the employee=s claim for permanent disability benefits for a right eyelid scar and ectropion.  The employee appeals.

 

DECISION

 

The compensation judge denied the employee=s claim for permanent disability benefits for cosmetic disfigurement of the right eyelid.  The judge found the scar was Anot disfiguring because it is not readily apparent to an observer.@  (Finding 11.)  On appeal, the employee argues the compensation judge=s interpretation of rule is too restrictive.  Since there is a scar on the right eyelid, the employee contends the plain language of the rule mandates an award of permanent disability benefits.  We agree.

 

Minn. R. 5223.0650 provides Athe percentage of disability of the whole body for permanent partial impairment due to cosmetic disfigurement.@  The phrase Acosmetic disfigurement@ is not defined.  Webster=s dictionary defines disfigurement as Aanything that disfigures or defaces: blemish; defects; deformity.@  Webster=s New Universal Unabridged Dictionary 524 (2nd ed. 1979).  There is no dispute the employee has a visible scar on his right eyelid.  This scar is a cosmetic disfigurement.  The employee is entitled to a four percent whole body disability under Minn. R. 5223.0650, subp. 2.C.(5) for the right eyelid scar.

 

The compensation judge also found the employee does not have ectropion and found the lack of full closure of his left eyelid in sleep is caused by lagophthalmos.  Accordingly, the compensation judge denied the claim for 15 percent disability for ectropion and awarded two percent for lagophthalmos.  The employee contends the surgeries did not correct or cure the employee=s ectropion but merely improved that condition.  Since the employee=s cornea remains unprotected when sleeping, the employee contends he qualifies for a 15 percent rating for exposure of the cornea while sleeping due to ectropion under Minn. R. 5223.0650, subp. 2.C.(3)(c).

 

There is no dispute the employee=s eyelid does not completely close when he is sleeping.  The issue is the appropriate rating for this impairment.  The compensation judge resolved the issue based on diagnosis.  That is, the compensation judge concluded the employee has lagophthalmos and does not have ectropion.  The medical evidence supporting that determination is, however, equivocal.

 

When asked why the employee=s eyelid does not completely close, Dr. Ault Brinker testified,

 

It=s the end result of having a trauma to the eyelid which causes umh - - which is bad enough to cause a cicatricial ectropion in the first place and the result of it, you know, fixed - - fixes 95 percent of it or whatever but it=s the remaining 5 percent or whatever, it=s hard, you can=t really put a number on it but the remaining small part of tightness that is still there.

 

On cross-examination, Dr. Ault Brinker testified,

 

MR. TRACY:  I=d like her to take a look at Rule 5223.0650, subpart 2.C.(3).

 

THE WITNESS:  Okay.

Q         (By Mr. Tracy) Now, that heading talks about ectropion?

A         That=s correct.

Q         And it is correct that as of your last examinations of Mr. Haugland, he did not have ectropion?

A         We - - it had resolved, that=s correct, except the residual of it that the cornea wasn=t, he wasn=t closing it all the way.

Q         And that=s called lagophthalmos?

A         Right, he had lagophthalmos due to the residual of ectropion.

Q         Right.  But the ectropion was cured?

A         Umh, the, the turning of the lid was cured.

Q         All right.  So is this - - this rating really would not apply.  Wouldn=t you agree with that?

 

*    *    *

 

THE WITNESS:

A        I=m not comfortable giving - - interpreting these rules umh, whether they=ve been applied correctly in that way.  They are not a way I would think in general in - - so that I do not believe that he has a residual turning away of the eyelid.  However, he has undergone treatment for ectropion and its complications and he still has one of the complications from it.

Q        (By Mr. Tracy) Meaning lagophthalmos?

A         That=s correct.

 

(Pet. Ex. G at 30-31.)

 

Minn. R. 5223.0330, subp. 3.D., provides that an impairment of the eye shall be increased by adding two percent for each of the following conditions which are present due to the injury:  ectropion uncorrected by surgery and lagophthalmos.  That rule, however, provides ratings for impairment to vision.  In this case, the employee has no visual impairment so the rule is inapplicable.  Ectropion is also rated under Minn. R. 5223.0650 entitled cosmetic disfigurement.  Subpart 2.C.(3)(c) provides for a 15 percent rating for ectropion with the cornea unprotected by sleeping.  Where more than one category may apply to a condition, the category most closely representing the condition shall be selected.^[6]  Based upon the testimony of the employee and Dr. Ault Brinker, the impairing condition is the employee=s unprotected cornea while sleeping.  Minn. R. 5223.0650, subp. 2.C.(3)(c), most accurately represents the disabling condition.  The employee is, therefore, entitled to a 15 percent whole body disability for ectropion rather than a two percent rating for lagophthalmos.  We reverse and modify the judge=s award of permanent partial disability.