WAYNE T. HAUKOS, Employee/Cross-Appellant, v. MINNESOTA VALLEY ALFALFA and NATIONAL FARMERS UNION CAS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 21, 2005

 

No. WC04-271

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - COMBINED RATINGS.  Under the circumstances of this case and the relevant rules, the employee was not entitled to a permanent partial disability rating for lumbar pain syndrome under Minn. R. 5223.0390, subp. 3, in addition to an undisputed rating for radicular syndrome under Minn. R. 5223.0390, subp. 4, and the judge properly declined to assign a separate rating based on IDET procedures.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys: Timothy J. McCoy, McCoy Peterson & Jorstad, Minneapolis, MN, for the Cross-Appellant.  Mary E. Kohl, Johnson Condon, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal and the employee cross-appeals from the compensation judge=s findings regarding the extent of the employee=s permanent partial disability.^[1] We reverse the judge=s 10% rating for lumbar pain syndrome and affirm the remainder of the decision.

 

BACKGROUND

 

On February 8, 2000, the employee sustained a work-related injury to his back while employed by Minnesota Valley Alfalfa Producers [the employer].  Due to continuing low back and left leg pain, he underwent surgery in the nature of an L4-5 decompressive laminectomy and L4-5 discectomy, microdissection, performed by Dr. Jeffrey Gerdes, in April of 2000.  The procedure apparently produced little or no long-term relief, and in April of 2001, the employee underwent a two-level IDET procedure at L4-5 and L5-S1.  Again, there was little improvement.  The employee has also received significant conservative treatment for his low back condition, including injections, physical therapy, and chronic pain treatment.  According to at least one MRI scan, the employee has degenerative changes at multiple levels of his lumbar spine, and a discogram was apparently positive at L2-3, L3-4, L4-5, and L5-S1.  For purposes of this appeal, it is undisputed that the February 2000 work injury is a substantial contributing cause of the employee=s low back condition and persistent disabling low back and leg symptoms.

 

In 2002, the employee filed a medical request, seeking approval of a four-level fusion procedure.  Following a hearing, Compensation Judge Paul V. Rieke concluded that the employee had not established that the proposed procedure was reasonable and necessary, at least at that time.  The employee did not appeal from that decision.

 

The employer and insurer voluntarily paid the employee benefits for a 14% whole body impairment, the same rating assigned by Dr. Matthew Monsein in a May 2003 report.  In July of 2004, the matter came on for hearing, again before Judge Rieke, for resolution of the employee=s claim for additional permanent partial disability benefits.^[2]  At that time, the employee was alleging that he was entitled to benefits for a 35% whole body impairment, arrived at by combining various rating categories under Minn. R. 5223.0390.  The employer and insurer maintained that 14% was the appropriate rating under the rules.  Evidence included permanent partial disability opinions from Drs. Gerdes, Monsein, and Paul Hartleban.  Issues included whether the schedules contemplated combining ratings for radicular syndrome and lumbar pain syndrome and whether the employee=s IDET procedure was ratable, either under the rules pertaining to surgery, or under case law.

 

In a decision issued on August 23, 2004, the compensation judge concluded that the employee had a 24% whole body impairment as a result of his work injury, that a 10% rating for  lumbar pain syndrome, which the judge had included as part of the 24% total, was not compensable, and that the employee was not entitled to ratings for the IDET procedure.  Both parties appeal.

 

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), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

The permanent partial disability rules at issue in this case are contained in Minn. R. 5223.0390, and read as follows:

 

5223.0390  Musculoskeletal Schedule; Lumbar Spine.

  Subpart 1.  General.  For permanent partial impairment to the lumbar spine, disability of the whole body is as provided in subparts 2 to 5. The impairing condition in the lumbar spine resulting from an injury may be rated only under one category of subpart 2, 3, or 4. Categories from more than one of subpart 2, 3, or 4 cannot be used in rating the impairing condition resulting from a single injury. Categories in subparts 2 to 4 may not be combined or added together in rating the extent of impairment due to a single injury except as specifically provided. Categories in other subparts may be combined with the rating under subpart 3 or 4 as specifically provided in this part.

*  *  *

 

  Subp. 3.  Lumbar pain syndrome.

 

*  *  *

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. 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;

(3)  for additional surgery, other than a fusion, regardless of the number of additional surgeries, add two percent, if the additional surgery included a fusion, the rating is as provided in subpart 5;

(4)  additional concurrent lesion on contralateral side at the same level or on either side at other level, which meets all of the criteria of this item or item E, add nine percent.

 

In his March 2003 report, Dr. Monsein rated the employee=s permanent partial disability at 14%, pursuant to Minn. R. 5223.0390, 4D, D(1), and D(2), applicable to radicular syndrome, with a herniated disc impinging on a lumbar nerve root (9%), persistent radicular symptoms despite treatment (3%), and surgery other than fusion (2%).  The employee=s entitlement to this rating is undisputed.

 

In June of 2003, the employee=s attorney wrote a letter to Dr. Gerdes, the employee=s treating surgeon, asking for an opinion on the extent of the employee=s permanent partial disability.  In that letter, counsel noted Dr. Monsein=s 14% rating for the unsuccessful laminectomy surgery at L4-5 and suggested that Athere should be an additional two percent added for the IDET procedure at the L4-5 level pursuant to 5223.0390, 4D(3),@Apossibly . . .  another nine percent for the IDET procedure done at an adjacent level of L5-S1 . . . pursuant to 5223.0390, subpart 4D(4),@ and, Ain regard to the additional multilevel degenerative disc disease at L2-3 and L3-4 an additional permanent partial disability rating of ten percent pursuant to 5223.0390 subpart 3C(2) or subpart 4C(2) multiple vertebral levels.@  Counsel went on to explain that the suggested ratings were simply his lay analysis  of the employee=s permanent partial disability, but he emphasized that a 17% rating was necessary to support the employee=s anticipated claim for permanent total disability benefits.^[3]

 

By letter dated July 21, 2003, Dr. Gerdes responded to counsel for the employee as follows:

 

I have reviewed your disability ratings.  I think it would be reasonable to consider the additional 2% for the IDET, 5223.090 [sic] subpart 4D-3.  I also agree that with his ongoing back pain he would be listed under 5223.0390 subpart 3C-2 for an additional 10%.

 

A year later, in July of 2004, Dr. Monsein wrote to the employee=s attorney on the permanent partial disability question as follows:

 

I would agree with Dr. Gerdes= opinion.  The patient, in addition to the back surgery for which I had rated him 14%, he also had a IDET procedure which would given him a 2% additional rating.

 

In addition, the patient does have clear-cut evidence of multilevel degenerative disc disease with positive discography and chronic low back pain.  In my opinion, this would qualify him under the statutes to meet the standard as defined in Section 5223.0390 subpart 3(2) for another 10%.

 

This will then give the patient a total of 26% permanent partial impairment rating.

 

In opposition to the employee=s claim, the employer and insurer submitted the September 2003 report of Dr. Hartleban, who indicated that the employee had a 14% rating, for the L4-5 surgery with poor results, under the same provisions initially applied by Dr. Monsein and not at issue here.  Dr. Hartleban also explained that additional ratings for IDET would not be appropriate, in part because he considered the employee=s multilevel degenerative disc disease to be non work-related but also because Athe (IDET) intradiskal electrothermal therapy procedure is not considered a surgical procedure . . . . I would consider (IDET) intradiskal electrothermal therapy as a procedure more in the category of epidural steroid injections or other percutaneous needle procedures.@

 

In his decision, the compensation judge concluded that the employee had a 24% whole body impairment as a result of his February 2000 work injury: a total of 14% under the provisions applied by both Drs. Monsein and Hartleban, and an additional 10% pursuant to Minn. R. 5223.0390, subp. 3C(2), applicable to lumbar pain syndrome at multiple vertebral levels.  However, the judge also concluded that, under the rules, this 10% rating was Anot compensable.@  With regard to the employee=s claim for ratings related to the IDET procedure, the judge indicated that he felt constrained by case law to conclude that IDET was not surgery, and he therefore denied the employee=s request for a 2% rating, for IDET, under the rule covering Aadditional@ lumbar surgery.  The judge did not expressly address the employee=s claim for a 9% rating for the IDET procedure performed at L5-S1.

 

On appeal, the employer and insurer contend that the judge erred in concluding that the employee=s condition warranted a (noncompensable) 10% rating for lumbar pain syndrome.  On cross-appeal, the employee argues that the judge erred in denying benefits for that 10% rating and also that the judge erred in denying benefits for IDET, in that IDET should be deemed to be a surgical procedure within the meaning of the schedules, or, in the alternative, should be treated the same as surgery, for rating purposes, pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).

 

After careful review of the rules, we conclude that the employee is not entitled to ratings for both lumbar pain syndrome under Minn. R. 5223.0390, subp. 3, and radicular syndrome under Minn. R. 5223.0390, subp. 4.  As quoted above, Minn. R. 5223.0390, subp. 1, expressly indicates that rating categories in subparts 2 to 4 Amay not be combined or added together in rating the extent of impairment due to a single injury except as specifically provided.@  (Emphasis added).  Minn. R. 5223.0390 contains numerous examples of situations in which adding ratings within or between subparts is clearly contemplated.  For example, subpart 4D, the category applied in this case to rate the employee=s radicular syndrome, lists four circumstances specifically directing a rater of permanent partial disability to Aadd@ additional ratings to the baseline 9%.  Minn. R. 5223.0390, subp. 4D(1), (2), (3), and (4).  That rule also specifically provides that each subitem from (1) to (4) may be applied only once.  Subpart 4E, applicable to lumbar stenosis, contains substantially similar directions to Aadd@ ratings, as does subpart 5, the provision covering employees who have undergone fusion surgery.  No such specific language in the rules directs the addition of ratings in subpart 3, for lumbar pain syndrome, to ratings in subpart 4, for radicular syndrome.  On the contrary, subpart 4 lists the ratings applicable to employees with radicular syndrome Awith or without lumbar pain syndrome.@  Given the use of this language in subpart 4, viewed in contrast with the language expressly directing the addition of ratings, and given the express prohibition, in subpart 1, against otherwise combining ratings in subparts 3 and 4, we can only conclude that the rules contemplate rating an employee who has radicular syndrome under subpart 4, not subpart 3, regardless of whether that employee also has lumbar pain syndrome that might otherwise qualify for a subpart 3 rating.  That is, the rules do not regard lumbar pain syndrome as an impairing condition  separate and distinct from radicular syndrome, possibly because substantially similar low back symptoms tend to occur with either condition.  Our conclusion to this effect is further supported by the fact that there is obvious overlap in required symptomology between many categories in subparts 3 and 4.  For example, subparts 3B, C, and D all require Apersistent objective clinical findings . . . that is, involuntary muscle tightness in the paravertebral lumbar muscles or decreased range of motion in the lumbar spine,@ as do subparts 4B and C.

 

In Santer v. Electric Machinery Co., Inc., slip op. (W.C.C.A. Feb. 27, 2003), a panel of this court reversed a compensation judge=s decision that an employee was entitled to a 10% impairment rating under Minn. R. 5223.0390, subp. 3C(2), applicable to lumbar pain syndrome with diagnostic scan abnormalities not specifically addressed elsewhere, as well as a 7% rating under Minn. R.5223.0390 subp. 3D(1), applicable to lumbar pain syndrome with spondylolisthesis, despite the fact that the employee in that case had disc bulging and other abnormalities at L3-4 and L4-5 and spondylolisthesis only at L5-S1.  That reversal was premised on the conclusion that, A[t]o combine two ratings from within subpart 3 . . . without express authorization under the rule itself, particularly given that other specific combinations of ratings are expressly authorized under the rule, would in our opinion amount to double compensation.@  In the present case, the employee had surgery for a herniation at L4-5 and also has degenerative disc disease at other lumbar levels, but the rationale of Santer is equally applicable.^[4]  Because combining the ratings at issue under subpart 3 and subpart 4 is not specifically allowed by either subpart 3 or subpart 4, it is prohibited under the terms of subpart 1.  Therefore, because the employee=s condition does not qualify for a 10% rating for lumbar pain syndrome under subpart 3, either compensable or not, we reverse the judge=s decision assigning that rating.

 

We also reject the employee=s contention that he is entitled to permanent partial disability ratings, under Minn. R. 5223.0390, subp. 4D(3) and 4D(4), or Weber, for the IDET procedure he underwent at L4-5 and L5-S1.  In Orenstein v. Dayton Hudson Corp., slip op. (W.C.C.A. Dec. 5, 2000), this court specifically concluded that AIDET is not surgery.@  While the Orenstein case dealt with the compensability of IDET,^[5] rather than whether IDET justifies a rating under the permanent partial disability schedules, we find no compelling reason to alter our conclusion as to the nature of the procedure.^[6]  It is true that both Dr. Gerdes and Dr. Monsein indicated that an additional 2% rating would be appropriate for the IDET procedure at L4-5.  However, neither doctor explained either why IDET qualifies as surgery, within the meaning of the permanent partial disability schedule, or in the view of the medical community, or how the IDET procedure either causes or establishes the existence of a permanent impairment of function for purposes of justifying a rating under Weber.  Moreover, Dr. Hartleban expressly indicated that IDET is not considered a surgical procedure but rather is Amore in the category of epidural steroid injections or other percutaneous needle procedures.@  We also note that Minn. R. 5223.0390, subp. 4D(4), under which the employee asked for a 9% rating based on IDET at L5-S1, does not by its terms even apply to surgery.^[7]  Under the circumstances, we affirm the judge=s denial of an additional rating or ratings for IDET.

 

The employee=s current work-related low back condition warrants a 14% rating.  The judge=s decision is therefore affirmed in part and reversed in part accordingly.