JERAD J. CASPER, Employee/Appellant, v. CITY OF FERGUS FALLS, SELF-INSURED/ LEAGUE OF MINN. CITIES and BERKLY RISK ADM’RS CO., LLC, Employer-Insurer.

WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 9, 2014

No. WC14-5674

HEADNOTES

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; PERMANENT TOTAL DISABILITY - THRESHOLD.  Substantial evidence supports the compensation judge’s finding that the employee had not met the requirements for a permanent partial disability rating, and therefore that the employee had not met the permanent partial disability threshold for permanent total disability benefits under Minn. Stat. § 176.101, subd. 5(2)(a).

Affirmed.

Determined by:  Cervantes, J., Milun, C.J., and Stofferahn, J.
Compensation Judge:  Miriam P. Rykken

Attorneys:  Dennis W. Hagstrom, Law Offices of Dennis W. Hagstrom, Fergus Falls, MN, for the Appellant.  Thomas M. Peterson, St. Paul, MN, for the Respondent.

 

OPINION

MANUEL J. CERVANTES, Judge

The employee appeals the compensation judge’s denial of his claims for permanent partial disability for a urinary condition and for permanent total disability.  We affirm.

BACKGROUND

On July 29, 2004, Jerad Casper, the employee, sustained a work-related low back injury while working as a seasonal employee for the self-insured employer, City of Fergus Falls.  The employee was 23 years old.  The employee was paid a 10 percent permanent partial disability for the low back injury.  In 2007, the employee began developing urinary problems, including urinary incontinence and dysfunctional voiding symptoms and was treated at the University of Minnesota for bladder sphincter dysfunction.  A 2007 MRI scan indicated a lumbar lateral disc protrusion with some pressure on the L5 nerve root.  Physical therapy was recommended.  In March 2008, the employee experienced back pain and bladder symptoms and treated again at the University of Minnesota.

In August 2008, at his attorney’s request, the employee was evaluated by Dr. Gabriel Komjathy for an opinion on causation.  Dr. Komjathy opined that the employee’s urinary difficulties were possibly causally related to his back injury.  In March 2009, Dr. Komjathy stated that the employee had no internal sphincter detrusor dyssynergia but had pelvic muscle dysfunction with spasticity of pelvic musculature which could be associated with his back problem.  Urodynamic testing in April 2009 indicated a dysfunctional voiding pattern.

In July 2010, the employee filed a claim petition for permanent partial disability for the urinary condition and for permanent total disability benefits.  After a hearing on June 23, 2011, a compensation judge found that the employee was not entitled to any additional permanent partial disability for urinary dysfunction[1] under Minn. R. 5223.0600, subp. 3.B., since there was no continuous treatment, no anatomic loss or alteration, and no neurological damage causing his urinary problems.  The judge concluded that the employee did not meet the permanent partial disability threshold for permanent total disability.

The employee continued to treat for his low back condition with daily pain medication.  For breakthrough pain, he would go to walk-in clinics or emergency rooms for injections.  The employee chose not to undergo the microdiscectomy recommended by Dr. Sunny Kim in 2011.  The employee’s treating urologist retired and he began treating with Dr. John Heller for urinary dysfunction in November 2011.  Dr. Heller noted that the employee had incomplete emptying of the bladder that could be due to an atonic detrusor muscle.  A few weeks later, Dr. Heller noted that the employee had improved; he was emptying well and there was no evidence of hydronephrosis.  In December 2011, Dr. Heller opined that the employee was entitled to 15 percent permanent partial disability under Minn. R. 5223.0600, subp. 3.B., based on his opinion that the employee’s herniated disc was an anatomic lesion and on his continuous treatment.  The employee returned to Dr. Heller in April 2012.  Dr. Heller noted no change in symptoms since November and that a bladder scan showed no post-void residual.

In November 2012, the employee started treating with Dr. Zhi Levran for voiding difficulty.  Dr. Levran ordered testing, including a renal ultrasound, cystoscopy, and urodynamic studies.  In December 2012, Dr. Levran noted that the employee had incomplete emptying of bladder and neurogenic bladder.  He diagnosed neurogenic bladder with detrusor external sphincter dyssynergia and recommended daily self-catheterization in January 2013.  The employee returned to Dr. Levran in April 2013.  At that time, Dr. Levran diagnosed detrusor hyperactivity with impaired contractility and urge urinary incontinence.  He recommended daily catheterization.  Dr. Levran rated the employee at 20 percent permanent partial disability under Minn. R. 5223.0600, subp. 3.C., but also gave a Weber rating for a bladder disorder.

In March 2012, the employee again claimed additional permanent partial disability and permanent total disability benefits.  At the employer’s request, the employee underwent an independent medical examination with Dr. James Meyer on July 17, 2012.  Dr. Meyer diagnosed pelvic floor tension abnormality of an indeterminate etiology.  He assigned the employee a 5 percent permanent partial disability rating under Minn. R. 5223.0600, subp. 3.A., since the employee had no continuous treatment, no incontinence, and no lesion.

A hearing was held on July 31, 2013.  The record remained open until October 24, 2013 for the filing of medical reports and depositions.  The compensation judge found that the employee was not entitled to additional permanent partial disability under the schedule or under a Weber rating and also that the employee was not vocationally permanently and totally disabled since June 23, 2011.  The employee appeals.

STANDARD OF REVIEW

In reviewing cases 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.  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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.”  Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.”  Id.

DECISION

The employee argues that he has met the permanent partial disability threshold for permanent total disability and is entitled to permanent total disability benefits.  Under Minn. Stat. § 176.101, subd. 5(2)(a), an employee who is not yet 50 years old at the time of injury must have at least a 17 percent permanent partial disability rating of the whole body in order to be considered permanently and totally disabled.  See Gluba v. Bitzan & Ohren Masonry, 735 N.W.2d 713, 67 W.C.D. 228 (Minn. 2007).  The employee has a 10 percent permanent partial disability rating for his work-related low back condition.  The compensation judge found that the employee was not entitled to a permanent partial disability rating for his urinary condition under the schedules or under a Weber rating.  The employee argues that he is entitled to permanent partial disability for the urinary condition and that he would then meet the threshold for permanent total disability benefits.

The compensation judge found that the employee did not meet the requirements for permanent partial disability under any level of Minn. R. 5223.0600, subp. 3,[2] since he did not have anatomic loss or alteration of the bladder or an objectively demonstrated neurological lesion known to interfere with bladder function.  Determining the extent of permanent partial disability is generally a question of fact for the compensation judge.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987); Nerud v. Duininck Bros., Inc., 67 W.C.D. 456, 462 (W.C.C.A. 2007).  As the compensation judge noted, Dr. Levran stated: “I understand that there is no anatomic loss or alteration of the bladder and there is no objectively demonstrated neurological lesion known to interfere with bladder function but there is a bladder disorder (all the urologic tests establish that) and he does require intermittent treatment (catheterization).”[3]  Further, Dr. Meyer opined that the employee was not entitled to even a 15 percent permanent partial disability rating under the rule since there was no objectively demonstrated neurological lesion.[4]  Substantial evidence supports the compensation judge’s finding that the employee’s condition does not meet the requirements of the permanency schedule.[5]

The employee also claimed a permanent partial disability rating under Weber.[6] Weber was codified under Minn. Stat. § 176.105, subd. 1(c), which provides that “[i]f an injury for which there is objective medical evidence is not rated by the permanent partial disability schedule, the unrated injury must be assigned and compensated for at the rating for the most similar condition that is rated.”  A Weber rating is used when the employee’s condition is not covered by the disability schedule.  It is not used to supplement the rating for a condition which is covered because the rating from the schedule is felt to be inadequate.  Clasen v. Pro Floor, Inc., No. WC07-242 (W.C.C.A. Mar. 25, 2008).  The statute and the Weber decision are not intended to be used in cases where the injuries to a particular part of the body are rated in the schedules but the employee’s objective findings do not satisfy the requirements of the schedules and where the employee’s claim for an increased rating is based on significant subjective complaints of pain with no objective findings.  Warner v. Luther Haven Nursing Home, slip op. (W.C.C.A. Oct. 14, 1993).

The employee argues that the employee’s condition involves a bladder dysfunction which is not covered by the permanency schedules and should be assigned a Weber rating.  In analyzing whether a Weber rating is applicable, considerations include whether the type or level of impairment sustained is included in a category in the permanency schedule and, alternatively, what rating category, or method of rating, included in the schedule most closely approximates the level of the employee’s functional impairment.  See Jarvi v. City of Grand Rapids, 51 W.C.D. 36 (W.C.C.A. 1994); see also Tupa v. Farmers Co‑op Elevator, slip op. (W.C.C.A. Dec. 12, 2001).  In this case, the compensation judge determined that the employee’s condition was rated by the permanency schedule and therefore that a Weber rating was inapplicable.  While Dr. Levran acknowledged the applicability of Minn. R. 5223.0600, subp. 3.C., to the employee’s condition, he assigned the employee a 20 percent permanent partial disability rating under Weber for a bladder disorder.  The compensation judge’s determination that the employee’s condition was appropriately rated under the permanency schedule is affirmed, and therefore, the employee was not entitled to a Weber rating.  As a result, the employee has not met the statutory permanent partial disability threshold for permanent total disability, and we affirm the compensation judge’s denial of permanent total disability benefits on that basis.

The parties also litigated the issue of vocational permanent total disability.  Since we have affirmed the compensation judge’s determination that the employee has not met the permanent partial disability threshold for permanent total disability benefits under Minn. Stat. § 176.101, subd. 5(2)(a), we need not address the remaining issues regarding permanent total disability.



[1] In December 2010, the parties closed out a 2 percent permanent partial disability for this condition under a partial award on stipulation.

[2] Minn. R. 5223.0600, subp. 3, provides in part:

A.  Class 1, 5 percent.  Signs or symptoms of organic bladder disorder are present and there is anatomic loss or alteration, or there is an objectively demonstrated neurological lesion known to interfere with bladder function, and intermittent treatment is required, but there is no evidence of intervening malfunction between episodes of treatment or symptomatology.
B.  Class 2, 15 percent.  Signs or symptoms of organic bladder disorder are present and there is anatomic loss or alteration, or there is an objectively demonstrated neurological lesion known to interfere with bladder function, and continuous treatment is required, but there is no incontinence.
C.  Class 3, 20 percent.  Signs or symptoms of organic bladder disorder are present and there is anatomic loss or alteration, or there is an objectively demonstrated neurological lesion known to interfere with bladder function, and there is intermittent incontinence.

[3] Employee’s Ex. N.

[4] Employer’s Ex. 8.

[5] At the hearing, the employee also claimed permanent partial disability for erectile dysfunction.  The employee’s 2012 claim petition included a doctor’s opinion that the employee was entitled to a 20 percent permanent partial disability rating for that condition.  The employee’s trial memorandum, however, did not address this claim.  The compensation judge did not make a finding on this issue, and the employee does not discuss it on appeal.

[6] Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).