BRENDA L. MUNDY, Employee/Appellant, v. AMERICAN RED CROSS, and AMERICAN INT=L GROUP/HERITAGE CLAIMS SERVS., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, and MN DEP=T OF HUMAN SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 13, 2005

 

No. WC05-186

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - REFLEX SYMPATHETIC DYSTROPHY.  Where the compensation judge accepted the opinions of the IME doctors that the employee did not have persistent objective findings of functional impairment, it was not error to deny the employee=s claim for permanent partial disability.

 

PERMANENT TOTAL DISABILITY - THRESHOLD; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 5.  Substantial evidence supports the compensation judge=s finding that the employee did not have sufficient disability from pre-existing conditions to meet the requisite threshold for permanent total disability.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence supports the compensation judge=s determination that the claimed prescription expenses were not reasonable or necessary.

 

Affirmed.

 

Determined by: Stofferahn, J., Wilson, J., and Rykken, J.

Compensation Judge: Janice M. Culnane

 

Attorneys: David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for the Appellant.  Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s denial of her claim for permanent partial disability compensation and from the denial of her claim for permanent total disability.  The employee also appeals from the denial of certain prescription expenses.  We affirm.

 

BACKGROUND

 

Brenda Mundy, the employee, was employed as a registered nurse in the blood donor division of the American Red Cross, the employer, when she was injured on the job on March 20, 1998.  The employee was moving a stack of chairs and caught her left hand between the chairs.  The employee was treated initially by her family doctor who diagnosed a soft-tissue injury to her left hand and referred her for physical therapy.  By April 7, 1998, the employee was seen by an orthopedist who diagnosed reflex sympathetic dystrophy (RSD) in the left upper extremity.^[1]

 

The employer and its insurer, American International Group, admitted primary liability for the injury and began paying temporary total disability.  The employee has not returned to work since her injury.  The parties dispute the nature and extent of the employee=s work injury and the consequences of that injury.  It is the employee=s position that her injury has resulted in reflex sympathetic dystrophy in her left arm and left leg with permanent impairment of function and that as a consequence of her injury she is unable to return to work.  It is the employer=s position that the employee does not have RSD and that any inability to work is the result of factors not related to her work injury.

 

In September 1999, the employer sought to discontinue benefits on the grounds that the employee had no employment restrictions related to her work injury.  A hearing on the proposed discontinuance was held on January 21, 2000.  In the Findings and Order of February 22, 2000, the employer and insurer=s petition to discontinue was denied with a finding that the employee continued to have symptoms and restrictions related to her work injury which precluded a return to work.  An appeal to this court by the employer followed.  This court affirmed the compensation judge=s determination on causation but remanded on the issue of whether maximum medical improvement had been reached.^[2]

 

The remand was consolidated with a claim petition filed by the employee and all issues were considered by Compensation Judge Jeanne Knight in a hearing on May 8, 2002.  The compensation judge identified the issues for hearing as being whether the employee had developed RSD as the result of her work injury, the extent of permanent partial disability, whether the employee met the statutory threshold for permanent and total disability, and whether the employee was permanently totally disabled.^[3]  The compensation judge issued a Findings and Order on July 23, 2002, and determined, with regard to these issues, that the employee had four findings listed as diagnostic criteria for RSD in the rules,^[4] that the employee was not entitled to permanent partial disability, that the employee did not meet Athe statutory definition of permanent total disability contained in Minn. Stat. ' 176.101, subd. 5,@ and that the employee has been Atotally disabled from March 20, 1998" and the total disability was causally related to the work injury.  No party appealed the decision.

 

The employee filed another claim petition in May 2003, which ultimately was scheduled for hearing on March 3, 2005, before Compensation Judge Janice Culnane.  The issues for determination at the hearing were identified as being whether the employee had any permanent partial disability as the result of her work injury, whether the employee had permanent partial disability not related to the work injury, and whether the employee met the statutory criteria for permanent total disability and was permanently totally disabled.  The employee also claimed payment of certain medical expenses.  In her Findings and Order, served and filed May 9, 2005, the compensation judge determined that the employee had failed to sustain her burden in establishing entitlement to permanent partial disability as a result of her work injury, that the employee had established a pre-existing impairment of 10 percent of the whole body due to loss of teeth, and that the employee did not meet the statutory criteria for permanent total disability compensation and was not permanently totally disabled.  The compensation judge also denied some of the employee=s claimed reimbursement for prescription expenses.  The employee appeals.

 

DECISION

 

Permanent Partial Disability for the Work Injury

 

At hearing, the employee claimed she had sustained a total permanent partial disability of 44.37 percent as the result of her RSD.  The employee relied upon the report of Dr. Jacoby from November 2002 in which he rated 40.5 percent permanent partial disability for the left upper extremity under Minn. R. 5223.0410, subp. 7.C, and 6.5 percent for the left lower extremity under Minn. R. 5223.0430, subp. 6.A.  The employee argued at hearing that these sections, which require the existence of a minimum of five findings from a list of eight possible findings, applied in her case.  In the alternative, the employee contended that she was entitled to a Weber rating for permanent partial disability, citing to this court=s decision in Stone v. Harold Chevrolet, slip op. (W.C.C.A. Nov. 3, 2004).^[5]  The compensation judge denied these claims and, on appeal, the employee argues that the compensation judge erred as a matter of law.  The employee=s position is that the unappealed 2002 decision established that she had RSD and was totally disabled.  Accordingly, she should be entitled to permanent partial disability compensation for her functional impairment, and she should receive a Weber rating pursuant to Stone.  We disagree.

 

Minn. R. 5223.0410, subp. 7, lists eight findings for a diagnosis of RSD and provides that five of those findings must exist on a persistent basis for permanent partial disability to be awarded under this section.^[6]  In Stone, this court reviewed a situation in which the treating doctor and the IME agreed the employee had RSD, agreed that the employee had only four of the listed findings, but also agreed that the employee had objective findings of functional impairment.  This court cited to the statutory mandate for payment for functional loss based on objective findings found in Minn. Stat. ' 176.105, subd. 1(c), and affirmed the compensation judge=s award of a permanent partial disability rating pursuant to Weber.

 

Contrary to the employee=s assertion, there is no determination in the present case that the employee has RSD.  While the compensation judge in the 2002 decision stated in her memorandum that she accepted Dr. Jacoby=s diagnosis that the employee had RSD, there are no findings to that effect.  We have previously held that the purpose of a memorandum is to explain the basis of a compensation judge=s determination, but it is not part of the determination.  Minn. Stat. ' 176.371.  Cleven v. Marvin Windows, 60 W.C.D. 189 (W.C.C.A. 2000).

 

In addition, and more importantly, Stone should not be read as holding that a diagnosis of RSD always results in an award of permanent partial disability compensation.  The central factor in Stone was the undisputed existence of objective findings of functional impairment.  That factor does not exist in the present case.  Dr. Winfried Raabe, a neurologist who evaluated the employee on behalf of the employer on August 14, 2003, stated in his deposition that, in his opinion, there were no objective findings of functional impairment in the employee=s case.  In accord was the opinion of Dr. Scott Yarosh, a psychiatrist who evaluated the employee in 2001, provided his deposition in 2002, and who stated that the employee=s complaints were Aanatomically inconceivable.@  Finally, even Dr. Jacoby=s records are not conclusive in this regard.  His last chart note, that of December 20, 2004, identified slight discoloration of the left upper extremity as the only finding related to RSD.  The fact that the compensation judge in 2002 found four findings of RSD in the records at that time is irrelevant to the issue of whether the employee has established sufficient evidence of functional impairment to support an award of permanent partial disability in 2005.

 

The compensation judge referred to the rules in her determination and did not cite to Stone, but the compensation judge=s decision to accept the opinions of Drs. Raabe and Yarosh support a denial of permanent partial disability under the Stone rationale as well.  The question 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); Gluba v. Bitzan-Ohren Masonry, slip op. (W.C.C.A. Oct. 24, 2003).  We find substantial evidence in the record to support the determination of the compensation judge in the present case that the employee did not establish permanent partial disability as the result of her work injury.  The compensation judge=s determination on this issue is affirmed.

 

Threshold for Permanent Total Disability

 

Minn. Stat. ' 176.101, subd. 5, requires that an employee who is not yet 50 years old at the time of the injury must have a rating of permanent partial disability of at least 17 percent of the whole body to be eligible for permanent total disability compensation.  In Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), this court held that non-work related permanent partial disability could be used to reach the required threshold.  In the present case, the employee argued at hearing that the threshold was met by pre-existing permanent partial disability.  Specifically, she alleged ratings of 10 percent disability for loss of teeth, 22 percent disability for hearing loss, 3.5 percent disability for a previous cervical work injury, and 3.5 percent disability for a previous lumbar work injury.  Those ratings were provided by Dr. Jacoby after a review of the employee=s medical records.  The compensation judge accepted the claim of permanent partial disability from the tooth loss, but denied the claim of permanent partial disability from hearing loss, cervical impairment and lumbar impairment.  The employee appeals.^[7]

 

As to the hearing loss, the employee contends that she has had profound hearing loss in her left ear since birth and she refers to audiometric testing done at the Minnesota Otolaryngology Clinic in 2002.  Dr. Jacoby apparently based his rating on this testing, but the testing results are not in evidence.  In rejecting the hearing loss rating, the compensation judge in her memorandum cited to the absence of the testing results and to Dr. Jacoby=s chart note of March 19, 2003, in which Dr. Jacoby appeared to minimize the effect of the test results in an attempt to reassure the employee.  The compensation judge also referred to the lack of evidence that the employee had experienced any medical or vocational Adisruptions@ associated with the hearing loss.  Given this evidence, we are not able to conclude that the compensation judge erred in rejecting the claim for a rating of permanent partial disability for pre-existing hearing loss.

 

With regard to the rating for permanent partial disability for the previous cervical and lumbar work injuries, the employee argues that the extent of permanent partial disability was established as a matter of law by the payments by the insurer for the previous injuries. Those payments were voluntary, however, and not the result of a determination. Had she chosen to do so, the compensation judge could have found a higher level of permanent partial disability than that paid. In making her determination on this point, the compensation judge pointed to the absence of findings for the lumbar or cervical spine in Dr. Jacoby=s records and to the conclusion of Dr. Raabe that the employee had no restrictions referable to either the cervical or lumbar spine.  In establishing whether the threshold has been met for permanent total disability, the question is whether the requisite amount of permanent partial disability exists at the time that permanent total disability is claimed.  We find substantial evidence in the record to support the compensation judge=s determination on this point.

 

We affirm the compensation judge=s decision that the employee did not establish the requisite threshold of permanent partial disability to be eligible for permanent total disability.  Given our affirmance of the compensation judge on this issue, we do not consider the related question of whether the employee would be entitled to permanent total disability compensation based on the compensation judge=s decision in 2002 but for the lack of sufficient permanent partial disability to meet the threshold.

 

Prescription Expense

 

The employee claimed reimbursement for expenses related to prescriptions for Duragesic, Paroxatine, Hydrocodone, Lorezepam, Ranitidine, Clonidine, Methylpredison, Dosepack, Paxil, Lamictal and Lidoderm.  The employer and insurer denied payment for these items based on the opinions of Drs. Raabe and Yarosh that the medications were not necessary or reasonable for the treatment of the employee=s work injury.  The compensation judge denied the employee=s claim and the employee appeals.

 

On appeal, the employee argues first that these medications had been found reasonable and necessary in the 2002 hearing and that Dr. Jacoby=s treatment, which included the prescription of these medications, was approved at that time.  The question before the compensation judge in the present matter however, was not whether the prescriptions were appropriate in 2002, but whether the claimed prescriptions were appropriate treatment at the time prescribed.  There is no basis for concluding that the 2002 decision required the compensation judge in 2005 to award these items.

 

The employee also argues that the compensation judge erred in considering the opinion of Dr. Yarosh.  Dr. Yarosh evaluated the employee in 2001 and provided a deposition in January 2002, before the 2002 hearing.  The employee contends that the compensation judge in 2002 rejected Dr. Yarosh=s opinion, and that this rejection is now the Alaw of the case@ so that  Dr. Yarosh=s opinion may not be considered at the present time.  It is the compensation judge=s role to consider competing medical opinions.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor, 63 W.C.D. 566 (W.C.C.A. 2003).  Dr. Yarosh=s opinion in his 2002 deposition that the employee=s condition was not related to her work injury was not accepted by the compensation judge at that time.  This does not mean, however, that Dr. Yarosh=s opinion on the appropriateness of the medication prescribed for the employee must be ignored by the compensation judge in 2005.  The compensation judge has wide discretion in accepting and considering evidence and we find no abuse of her discretion here.  Nagel v. Hennepin County, slip op. (W.C.C.A. Apr. 6, 2004).

 

The decision of the compensation judge is affirmed.