PRANY LY, Employee, v. LAIDLAW, INC., and AIG adm=d by CRAWFORD & CO., Employer-Insurer/Appellants, and ALLINA HOSPS. & CLINICS, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 14, 2005

 

No. WC04-342

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - COMBINED RATINGS.  It was error for the compensation judge to award permanent partial disability based on the opinion of the IME doctor where the doctor improperly applied the rule in a case of multiple surgeries.

 

Affirmed in part, vacated in part, and remanded.

 

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

Compensation Judge: Paul V. Rieke

 

Attorneys: Thomas A. Klint, and William J. Marshall, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Respondent.  Timothy P. Eclov, Johnson & Condon, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s determination of the extent of permanent partial disability and from his award of permanent total disability.  We affirm in part, vacate in part, and remand.

 

BACKGROUND

 

Prany Ly was employed as a bus driver by Laidlaw Transport when she was injured on March 14, 2002.  She slipped and fell when exiting a bus and injured her low back. She has not worked since that date.  The employer and insurer accepted liability for the work injury.

 

The employee was treated initially by Dr. Timothy Trude at Allina Clinic.  He referred her to Dr. David Kraker, with whom the employee has treated since then. A lumbar MRI was done on April 24, 2002, and was interpreted by Dr. Kraker as showing multilevel lumbar disc degeneration with a large disc herniation and extruded fragment to the right at L5-S1, causing severe central spinal stenosis.  There was a disc bulge and annular tear at L4-5 with a light anterolisthesis at that level and a disc bulge at the L2-3 level.  Dr. Kraker performed surgery on May 31, 2002, a bilateral laminectomy at L5 and S1 with a central and right-sided discectomy at L5-S1.  Dr. Kraker subsequently noted that during surgery he found disc fragments attached to the nerve root.  In his chart note of June 26, 2002, Dr. Kraker concluded that this situation probably contributed to the neuritis the employee was experiencing in her right leg.  Dr. Kraker recommended physical therapy and medication but was not able to prescribe a Medrol Dosepak because of the employee=s diabetes.

 

Because of the employee=s continuing symptoms, Dr. Kraker recommended an additional MRI which was done on August 13, 2002.  The scan showed a recurrent disc at L5-S1 and continued to show the previous findings at the other levels.  Dr. Kraker recommended additional surgery which was done on October 15, 2002.  The procedure performed was a redo laminectomy at L5 and S1, a right S1 foraminotomy, neurolysis of the right L5 nerve root and a right L5-S1 discectomy.

 

The employee continued to experience right leg pain and a third MRI was done on February 5, 2003.  The  conclusion on review was of a probable focal recurrent disc extrusion at right lateral L5-S1 impinging on the right S1 nerve root.  The MRI also continued to show moderately severe left lateral stenosis at the L4-5 level associated with disc protrusion into the left neural foramina.  Dr. Kraker recommended further surgery.

 

The employee was evaluated on behalf of the employer and insurer by Dr. Paul Cederberg on May 14, 2003.  Dr. Cederberg=s diagnosis was a recurrent disc herniation at L5-S1 with right leg radiculopathy.  He concluded that her treatment to that date had been reasonable and necessary and he agreed with Dr. Kraker=s recommendation for further surgery.

 

The employee had additional surgery done by Dr. Kraker on July 8, 2003.  The surgery involved two stages.  The first stage was an anterior discectomy fusion with bone grafting at L5-S1.  The second stage was a redo laminectomy at right L5-S1 with a posterior spinal fusion with instrumentation at the same level.

 

On follow-up on September 10, Dr. Kraker found the employee was making fair progress.  She continued to have discomfort in her right leg and hip.  She became tired after walking and used a walker.  She also continued to wear a corset for back pain and Dr. Kraker continued her prescription for Percocet.  On November 7, the employee reported additional improvement with intermittent right leg pain.  Her symptoms were worse at night and she had difficulty sleeping because of the pain.  She was no longer using her walker.  Dr. Kraker thought the employee might have some permanent nerve injury and he prescribed Neurontin for the continued radicular pain.  Further visits showed no improvement in the employee=s condition.  Dr. Kraker did not release the employee to work at any time during his care of the employee.  On April 2, 2004, Dr. Kraker recommended surgery to remove the instrumentation but this procedure had not taken place as of the date of hearing.

 

Dr. Cederberg reexamined the employee on March 10, 2004.  His diagnosis was of a recurrent herniated disc at L5-S1, status post anterior-posterior discectomy and fusion.  He concluded that the prognosis was guarded for any improvement and that the employee was capable of returning to work at a sedentary level with no lifting over 10 pounds and sitting or standing as tolerated.  Dr. Cederberg also concluded that the employee had permanent partial disability of 31%, calculated as follows:

 

First surgery, bilateral laminectomy L5-S1:

9%, 5223.0390, Subp. 4, D.

2%, 5223.0390, Subp. 4, D, (2).

 

Second surgery, redo laminectomy L5-S1:

9%, 5223.0390, Subp. 4, D.

2%, 5223.0390, Subp. 4, D, (2).

 

Third surgery, L5-S1 fusion and redo R L5-S1 laminectomy:

5%, 5223.0390, Subp. 5, A.

2%, 5223.0390, Subp. 4, D, (2).

3%, 5223.0390. Subp. 4, D, (1).

31% total

 

Dr. Kraker=s deposition was taken on December 15, 2004.  His diagnosis of the employee=s condition was:

 

Chronic right leg pain due to probable nerve damage from multiple recurrent disc herniations.  Number two, she has foraminal disc herniation at left L4-5 with lateral stenosis also at L4-5.  She has multilevel disc degeneration involving L2-3, L3-4, L4-5.  And she has undergone anterior and posterior fusions at L5-S1 due to multiple recurrent disc herniations at the L5-S1 level.

 

It was his opinion that the work injury was a substantial contributing factor in the diagnosis.  Dr. Kraker was also asked for his opinion on permanent partial disability and he responded:

 

She would qualify under 5223.0390 4d, which would be nine percent for a disc herniation.  She would also qualify for three percent rating under 4d (1) for chronic radicular symptoms and parathesis in her right leg.

 

She would qualify for two percent rating under 4d (2) for her initial laminectomy on 5/31/02.  She would qualify for another two percent under 4d (3) for a laminectomy on 10/15/02.

 

She would qualify for five percent under 5A for a one-level fusion at L5-S1.  And she would qualify for nine percent under 4d (4) for her disc herniation at left L4-5.

 

The total would be 30%.

 

The employee=s claims for permanent partial disability and permanent total disability were heard by Compensation Judge Paul Rieke on November 16, 2004.  The employee testified she had constant pain in her right leg at a level of 7 on a scale of 10.  She is able to sit for 15 minutes before changing position and is able to stand for a very limited time before her right leg gives out.  She can lift no more than five pounds and has her daughter do all of the household chores.  She sleeps no more than five or six hours a night and wakes up because of her pain.

 

Steven Hollander, a QRC, testified at the hearing on behalf of the employee.  He noted that the employee was 46-years old.  She had been born in Laos and had limited English.  The employee had completed high school in Laos and had taken some sewing classes while working in Thailand.  The employee=s past work experience included working in a family restaurant and operating a machine in a plastics company which buffed contact lenses.  Mr. Hollander was of the opinion that the employee had no transferable skills.  Even assuming that the employee was capable of sedentary work, it was Mr. Hollander=s opinion that the employee was permanently totally disabled.  The employer and insurer presented no evidence at the hearing.

 

In his Findings and Order, issued on December 17, 2004, the compensation judge accepted Dr. Cederberg=s opinion as to permanent partial disability and awarded the employee 31% disability of the whole body.  The compensation judge also determined the employee was permanently totally disabled from March 14, 2002.  The employer and insurer appeal.

 

DECISION

 

Permanent partial disability is payable for functional loss of use or impairment of function.  Minn. Stat. ' 176.021, subd. 3.  It is to be rated in accordance with rules promulgated by the Department of Labor and Industry.  Minn. Stat. ' 176.101, subd. 2a.  The extent of permanent partial disability is a question of fact for the compensation judge and, while medical opinions may assist in determining this issue, those opinions are not binding on the compensation judge.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987); Priglmeier v. Stellar Contrete & Masonry, slip op. (W.C.C.A. April 25, 2005).

 

Determination of the extent of permanent partial disability in this case is difficult.  Ms. Ly has had three surgical procedures, the last being an anterior-posterior fusion with bone grafting and instrumentation.  Despite this treatment, the employee has been left with significant restrictions and continuing radicular pain.  The response of the compensation judge to this issue was to accept the opinion of the IME, Dr. Cederberg, and award 31% of the whole body.

 

Dr. Cederberg=s rating was arrived at by rating each of the surgeries separately and then adding them together.  The employer and insurer refer to this opinion of their doctor as a Abotched rating@ but state no position as to what permanent partial disability is appropriate other then to state in their brief that this question is Aunclear@.^[1]

 

The rating of permanent partial disability of a lumbar spine is done pursuant to Minn. R. 5223.0390.  Subp. 4.D. of that rule specifically provides for a rating of 9% for radicular pain or paresthesia due to disc herniation impinging on a nerve root Awith the addition of as many of subitems (1) to (4) as apply, but each may be used only once.@  (Emphasis added.)  Dr. Cederberg=s opinion is not in compliance with the rule and it was error for the compensation judge to rely upon that opinion in determining the extent of permanent partial disability.

 

As the employee points out in her brief however, there is uncontroverted evidence that the employee is entitled to a minimum of 21% whole body disability whether one uses the opinion of Dr. Cederberg or of Dr. Kraker.  Both doctors would apply Minn. R. 5223.0390, subp. 4.D. for 9%, followed by 4.D.(1) for 3% for chronic radicular pain, 2% under 4.D.(2)  for surgery other than fusion, 2% under 4.D.(3) for additional surgery, and 5% under subp. 5.A. for the fusion surgery.

 

The difference between Dr. Cederberg=s opinion, properly calculated, and Dr. Kraker=s opinion is that Dr. Kraker concluded that the employee was entitled to an additional 9% under subp. 4.E.(4) for disc herniation at L4-5.  Dr. Cederberg did not address in his reports the question of whether the employee=s work injury was a substantial contributing factor in the L4-5 disc herniation.  In his findings, the compensation judge noted that Dr. Kraker conceded on cross-examination that the L4-5 herniation might have existed before the work injury, but the compensation judge did not determine this point either way.

 

Based upon the above discussion, we vacate the compensation judge=s award of 31% permanent partial disability; we award 21% permanent partial disability as a minimum owed to the employee under Minn. Stat. ' 176.021, subd. 3; and we remand to the compensation judge for a determination on the existing record as to whether the employee is entitled to additional permanent partial disability.

 

PERMANENT TOTAL DISABILITY

 

The compensation judge found that employee was permanently totally disabled as of the date of her injury on March 14, 2002.  On appeal, the employer and insurer do not dispute the substantive finding that the employee is permanently disabled from employment.  The employer and insurer=s argument is limited to the contention that the employee must have an ascertainable permanent partial disability of at least 17% under Minn. Stat. ' 176.101, subd. 5 in order to be entitled to permanent total disability and, since the compensation judge=s award of permanent partial disability was Aerroneous,@ it is Apremature@ to consider permanent total disability until permanent partial disability is determined.

 

We concluded earlier that the evidence establishes a minimum of 21% permanent partial disability.  This rating satisfies the threshold requirement of the permanent total disability statute and the decision of the compensation judge on this issue is affirmed.