THOMAS SCHARDIN, Employee/Appellant, v. HIRSCHFIELD=S, INC., and CHUBB & SON GROUP, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 17, 2008

 

No. WC07-249

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - COMBINED RATINGS; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 3b.  For purposes of calculating an impairment compensation award pursuant to Minn. Stat. ' 176.101, subd. 3b (repealed 1995), the applicable Aamount@ figure contained in the statutory table is the amount that corresponds with the employee=s whole body impairment rating after application of the A + B (1-A) formula.

 

Affirmed.

 

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

Compensation Judge: Jane Gordon Ertl

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant.  Vincent A. Peterson, Cousineau McGuire, Minneapolis, MN, for the Respondents. 

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision as to the method of calculating impairment compensation payable pursuant to Minn. Stat. ' 176.101, subd. 3b (1984) (repealed 1995).  We affirm.

 

BACKGROUND

 

On February 10, 1984, the employee sustained a work-related injury while employed by Hirchfield=s, Inc. [the employer].  The employer and its insurer admitted liability and paid various  benefits over the years, some pursuant to settlements agreements.  In 2006, the parties stipulated that the employee had become permanently and totally disabled effective April 24, 2004.

 

In August of 2006, the employee filed a claim petition alleging entitlement to additional permanent partial disability benefits in accordance with the opinion of his treating physician, who had indicated that the employee had a 28% whole body impairment due to his work-related low back condition and 15% whole body impairments for the condition of each hip.^[1]  Added together, the total combined permanency rating was 58%; after application of the formula contained in Minn. Stat. ' 176.105, subd. 4, the claimed permanent impairment was 47.98%.  The employer=s independent examiner apparently assigned lower ratings to the employee=s hip conditions, and the parties subsequently agreed to split the difference, stipulating that the employee=s total permanent impairment, after application of the formula, was 46.74%, arrived at by applying the formula to while body ratings of 28% (back), 14% (right hip), and 14% (left hip).

 

When the matter came on for hearing on August 16, 2007, only one issue remained: how to calculate the employee=s impairment compensation pursuant to Minn. Stat. ' 176.101, subd. 3b (repealed 1995).  More specifically, the parties disagreed as to the proper method to choose the Aamount,@ or dollar figure, in the table contained in subd. 3b.  The employee contended that his whole body ratings should be added together, the Aamount@ figure in the table chosen based on that total rating, and then that Aamount@ figure multiplied by the reduced whole body rating resulting from application of the formula.  The employer and insurer contended that the statutory formula should be applied first and then the resulting percentage multiplied by the Aamount@ figure corresponding to that reduced rating.  The compensation judge ruled in the employer and insurer=s favor.  The employee appeals.

 

STANDARD OF REVIEW

 

A[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.@ Krovchuck v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

Minn. Stat. ' 176.101, subd. 3b (1984) (repealed 1995), the statute applicable to the employee=s permanent partial disability claim, provides as follows:

 

Subd. 3b. Impairment compensation.  An employee who suffers a permanent partial disability due to a personal injury and receives impairment compensation under this section shall receive compensation in an amount as provided by this subdivision.  For permanent partial disability up to the percent of the whole body shown in the following schedule the amount shall be equal to the proportion that the loss of function of the disabled part bears to the whole body multiplied by the amount aligned with that percent in the following schedule:

 

Percent of disability                               Amount

  0-25                                       $ 75,000

26-30                                          80,000

31-35                                          85,000

36-40                                          90,000

41-45                                          95,000

46-50                                       100,000

51-55                                       120,000

56-60                                       140,000

61-65                                       160,000

66-70                                       180,000

71-75                                       200,000

76-80                                       240,000

81-85                                       280,000

86-90                                       320,000

91-95                                       360,000

96-100                                     400,000

 

For all cases under this subdivision the percentage loss of function of a part of the body is determined according to the rules adopted by the commissioner pursuant to section 176.105, subdivision 4.  This subdivision applies to an injury which occurs on or after January 1, 1984.

 

Minn. Stat. ' 176.105, subd. 4 (1984), referenced in the impairment compensation provision quoted above, requires application of a formula,^[2] known as the A + B(1-A) formula, in cases where an employee suffers permanent functional disability to more than one body part due to a single occurrence, Aso as to ensure that the percentage for all functional disability combined does  not exceed the total for the whole body.@  Id. at subd. 4(c).  The applicable corresponding rule reiterates that, A[u]nless provided otherwise, where an impairment must be rated under more than one category, the ratings must be combined@ using the A+B (1-A) formula, as provided by Minn. Stat. ' 176.105, subd. 4 (c).  8 MCAR ' 1.9001 A [Temporary] (1984).

 

In the present case, the parties have stipulated that the employee has a total permanent impairment of 46.74% following application of the A + B (1-A) formula, calculated by using separate impairment ratings of 28%, 14%, and 14%.  The employee contends that his impairment  compensation award under Minn. Stat. ' 176.101, subd. 3(b), should be calculated by first adding  together his separate impairment ratings, resulting in a total rating of 56%, next taking the dollar Aamount@ from the impairment compensation table that corresponds with 56% - - $140,000 - - and then multiplying that amount by 46.74%, the employee=s whole body rating following application of the formula.  Under this method, the employee would be entitled to $65,436 for his permanent impairment ($140,000 x .4674 = $65,436).  In contrast, the employer and insurer contend that the appropriate Aamount@ figure in the impairment compensation table is the figure corresponding to the employee=s 46.74% whole body rating, the employee=s rating after application of the formula - - that  is, $100,000 - - which would result in an impairment compensation award of $46,740 ($100,00 x .4674 = $46,740).  The compensation judge adopted the employer and insurer=s method.

 

On appeal, the employee argues in part that the current statutory provision concerning payment for permanent impairment, Minn. Stat. ' 176.101, subd. 2(a), supports his construction of its predecessor statute, Minn. Stat. ' 176.101, subd. 3(b), the provision at issue here, because the current language mandating use of the A + B (1-A) formula was placed above, rather than below, the application table.^[3]  He further contends that, as a cumulative result of his injuries, he has sustained Aa 56% loss of function,@ and he argues that the legislature could not have intended that he receive less compensation for his permanent impairment than an employee who has a 56% permanent partial disability as a result of an injury to a single body part.  Furthermore, the employee contends, employer and insurers already receive the benefit of a Adiscount,@ through use of the A+1 (1-A) formula, and to apply the calculation method employed by the compensation judge in this case would result in a Adouble discount@ in favor of the employer, in contravention of the legislature=s expressed intent that the law not be construed so as to favor the rights and interests of employers over those of employees.  See Minn. Stat. ' 176.001.  Finally, the employee argues that, by including a possible rating of 96-100% in the impairment compensation table, the legislature anticipated that certain workers would be compensated at the highest level, and, under the compensation judge=s construction of the statute, a worker would Ahave to sustain multiple severe injuries, beyond reason,@ to obtain the greatest allowable amount of compensation.^[4]  We are not persuaded by any of these arguments.

 

The employee=s entire position is premised on the assumption that he has a 56% whole body impairment as a result of his work-related injury.  This, of course, is not the case.  Nothing in either the statute or the rules contemplates simple addition of separate ratings to arrive at an overall impairment rating, for any purpose.^[5]  Rather, application of the formula is required to ensure that the percentage for all disability combined does not exceed 100%, the total for the employee=s whole body.

 

The A + B (1-A) formula was devised in recognition of the principle that Aeach impairment acts not on the whole person, but on the unimpaired portion that remains after other impairments have been taken into account.@  Deschampe v. Arrowhead Tree Serv., 428 N.W. 2d 795, 799-800, 41 W.C.D. 200, 205 (Minn. 1988).  We acknowledge that only workers with the most extreme injuries will qualify for combined ratings warranting the highest possible level of compensation.  However, as the supreme court has observed,, Aneither the concept of permanent partial disability nor the statutory formula for combining multiple impairments . . . will permit a rating of 100% permanent partial disability of the body as a whole,@ and the court noted that the rating for an individual in a persistent vegetative state is only 99%.  Id. at 803, 41 W.C.D. at 214.  Clearly the method advocated by the employee would allow ratings above 100%, at least for purposes of choosing the appropriate Aamount@ level in the impairment compensation table.  We find nothing in the statute or case law to support the employee=s construction.

 

Simply put, the employee in this case does not have a 56% whole body impairment, he has a 46.74% whole body impairment.  The judge therefore correctly concluded that $100,000 was the corresponding multiplier from the table contained in Minn. Stat. ' 176.101, subd. 3b, for purposes of calculating the employee=s impairment compensation award, and we affirm.