GLENN L. NADEAU, deceased Employee, by DEBRA L. NADEAU, Appellant, v. INSTITUTE FOR ENVTL. ASSESSMENT and AMERICAN INTERSTATE INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 29, 2005

 

No. WC04-302

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - BACK; RULES CONSTRUED - Minn. R. 5223.0390, subps. 4 and 5.  Where there was no basis for combining ratings from within subpart 5 of Minnesota Rules 5223.0390 to compensate the employee a second time for a repeat fusion at the same level of his spine, and where no doctor had documented a functional loss of use or impairment of function that would warrant more than the 10% rating authorized under the rules for the initial fusion, the compensation judge=s award of benefits for a 10% whole body impairment was not legal error.

 

Affirmed as modified.

 

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

Compensation Judge: Ronald E. Erickson

 

Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant.  Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s denial of his claim to benefits for an additional 10% permanent partial disability following a fusion repair surgery.  We affirm as modified.

 

BACKGROUND

 

On December 28, 1999, Glenn L. Nadeau [the employee] sustained an injury to his low back while working for the Institute for Environmental Assessment [the employer].^[1]  Due to continuing low back and left leg pain, he underwent surgery in the nature of an anterior lumbar interbody fusion with instrumentation at the L4-L5 and L5-S1 levels, performed by Dr. Phudhiphorn  Thienprasit, on September 11, 2001.  The employee did well for several months, but in January 2002 he slipped and fell while carrying groceries and developed persistent symptoms.  Subsequent x-rays showed an increased gap with hinging between the vertebral bodies, and on April 30, 2002, Dr. Thienprasit performed a supplementary posterior fusion from L4 to S1 with instrumentation.

 

On May 13, 2003, Dr. Thienprasit completed a Health Care Provider Report in which he indicated that the employee had reached maximum medical improvement and had sustained a 28% whole body disability comprised of three separate ratings - - a 9% rating for a radicular syndrome under Minn R. 5223.0390, subp. 4.D., plus an additional 9% rating for an additional concurrent lesion under subp. 4.D.(4) of that rule, together with an additional 10% rating for a multilevel fusion under Minn. R. 5223.0390, subp. 5.B.

 

Dr. Joel Gedan examined the employee on October 13, 2003,^[2] at the request of the employer and insurer.  The doctor obtained a history from the employee, reviewed his medical records, and performed a physical examination.  Dr. Gedan diagnosed lumbar degenerative disc disease at L4-5 and L5-S1 with a history of multilevel anterior and posterior lumbosacral fusion.  The doctor disagreed with Dr. Thienprasit=s permanent partial disability rating.  He did not believe the employee ever developed clinical, EMG, or radiographic findings consistent with a radicular syndrome under the permanent partial disability schedules.  The doctor rated the employee=s permanent disability at 20% of the whole body, comprised of 10% for a multilevel lumbar pain syndrome under Minn. R. 5223.0390, subp. 3.C.(2), and the additional 10% for a multilevel fusion under Minn. R. 5223.0390, subp. 5.B.

 

The employee filed a claim petition, seeking payment of benefits for the 28% whole body disability rated by Dr. Thienprasit.  The matter came on for hearing before a compensation judge on September 28, 2004.  At the hearing, the employee contended that neither Dr. Thienprasit nor Dr. Gedan had correctly assessed the employee=s permanent partial disability.  The employee asserted that he was entitled to benefits for a 30%  whole body impairment, comprised of 10% for a radicular syndrome under Minn. R. 5223.0390, subp. 4.C.(2), and an additional 10% for each of the two fusion procedures, under Minn. R. 5223.0390, subp. 5.B.

 

In a Findings and Order issued October 15, 2004, the compensation judge accepted the opinion of Dr. Gedan, that the employee did not have evidence of lumbar radiculopathy and that he has a 20% whole body disability secondary to his work injuries and resulting surgeries.  The judge therefore awarded benefits for a 9.5% whole body disability secondary to the work injury of December 28, 1999 - - 20%, less 10.5% related to the employee=s 1985 injury.  The employee appeals.

 

DECISION

 

In a memorandum accompanying his Findings and Order, the compensation judge explained why he rejected the employee=s claim for an additional rating for the second surgery on April 30, 2002.  The judge stated as follows:

 

The second or follow-up fusion is referred by Dr. Thienprasit, the treating physician as a supplemental fusion.  The supplemental fusion was at the same levels as the prior fusion.  The records indicate that the primary function of the second fusion was to shore up or tighten up the original fusion.  The employee made a good recovery from the second fusion.  There is no indication that he had any further functional loss or disability resulting from the second fusion.  The statute setting forth the legislative intent of the permanent partial disability schedule points out at Minn. Stat. ' 176.105, subd. 4 that the Commissioner=s Rules are Afor the evaluation and rating of functional disability and the schedule for permanent partial disability and to determine the percentage of loss of function of a part of the body based on the body as a whole.@  The cited subdivision 4 goes on to point out that Athe rules shall promote objectivity and consistency in evaluation of permanent functional impairment due to personal injury and in the assignment of a numerical rating to the functional impairment.@  It is clear that the basis for the Commissioner=s Rules was loss of function. There is no indication at all that the employee had a further loss of function due to the second fusion.  He would not be entitled to two ratings for two fusions to the same body part when there has been no showing of any additional loss of function occasioned by the second supplemental fusion.

 

The permanent partial disability rule at issue in this case is Minn. R. 5223.0390, subp. 5.B., which reads as follows: AFusion 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.@  The employee contends that Minn. R. 5223.0390, sub. 5.B., does not explicitly support the compensation judge=s ultimate conclusion because the rule does not state that the 10% rating for multiple level lumbar fusion is so limited.  The employee contends that this rule should be read in contrast with Minnesota Rules 5223.0390, subparts 4.D.(3) and 4.E.(3), which explicitly limit permanent partial disability ratings for additional surgeries other than fusions.  These rules provide in common as follows: Afor additional surgery, other than a fusion, regardless of the number of additional surgeries, add two [three]^[3] percent, if [the]^[4] additional surgery included a fusion, the rating is as provided in subpart 5.@  Minn. R. 5223.0390, subps. 4.D.(3) and 4.E.(3) (emphasis added).  The employee argues that, if the drafters of the rules had intended to limit permanent partial disability ratings for repeat lumbar fusions, they would have said so.  In construing an administrative rule, he contends, where the construction of the rule involves failure of expression rather than ambiguity of expression, the court is prohibited from adding words to remedy the drafter=s omissions.  See State v. Tracy, 667 N.W.2d 141 (Minn. App. 2003).  Because the employee underwent two fusion procedures, he contends, he is entitled to a rating under the rule for each procedure.  We are not persuaded.

 

We believe that the compensation judge correctly interpreted the statute and rules and applied them to this case.  Minn. R. 5223.0310, subp. 29, defines fusion as Athe operative formation of an ankylosis.@  Minn. R. 5223, 0310, subp. 7, defines ankylosis as Athe abnormal immobility and consolidation of a joint.@  The schedules assign a 10% whole body disability for a Afusion@ at multiple levels.  In the present case, two surgical procedures were required to accomplish the fusion from L4 to S1.  To compensate the employee for each procedure, instead of for the fusion itself, would overstate the degree of permanency that the schedules appear to associate with the degree of impairment resulting from a fused spine.  As noted by the compensation judge, the purpose of employee=s second surgery was to repair or tighten up the original fusion, and there is no indication in the record that the employee had a further loss of function due to the second fusion.  Neither Dr. Thienprasit nor Dr. Gedan assigned an additional rating for the supplementary fusion, and both apparently viewed the employee=s two surgical procedures as contributing to a single functional impairment.

 

We see no reasonable basis for combining ratings from within subpart 5 to compensate the employee for a repeat procedure at the same two levels of the spine treated in the first surgery.  We agree with the argument of the employer and insurer that a vertebra is either fused or it=s not.  An employee cannot have multiple fusions one on top of another.  If the drafters of the rules had intended to award disability for repeat procedures they could easily have done so, and we do not construe our interpretation of the rule as adding any limitation to its plain meaning.  Permanency Acategories must be identified and selected with care in order to avoid exaggeration of the disability in its entirety.@  Deschampe v. Arrowhead Tree Service, 428 N.W.2d 795, 800, 41 W.C.D. 200, 206-207 (Minn. 1988).  A compensation judge is responsible for determining under which rating category an employee=s disability falls, based on all relevant evidence, including objective medical findings.  Jensen v. Best Temporaries, 46 W.C.D. 498, 500-01 (W.C.C.A. 1992).  Here, no doctor documented a functional loss of use or impairment of function that would warrant more than a 10% rating for the employee=s fusion.  The employee was rated by Drs. Thienprasit and Gedan for a fusion of three vertebrae.  The permanent partial disability schedule provides a 10% rating for such an impairment.  Under the facts of this case, we see no basis for an additional rating under the rule.  We do conclude, however, that the judge=s allowance of statutory apportionment for the 10.5% permanent partial disability benefits paid following the employee=s 1985 injury was not entirely proper, and we modify the judge=s decision to reflect an award of benefits for a 10% rather than a 9.5% whole body impairment secondary to the employee=s December 28, 1999, injury.  The permanent partial disability schedule provides for the addition of 10% for a fusion at multiple levels.  The employee was not previously compensated for any portion of his fusion procedure, and we see no basis for reducing the employee=s entitlement to 9.5%.  The judge=s decision is affirmed as so modified.