JAMES B. EISENSCHENK, Employee/Appellant, v. ANOKA TURF FARMS, INC., and WESTFIELD GROUP, Employer-Insurer.

APRIL 16, 2014

No. WC13-5630


PERMANENT PARTIAL DISABILITY - SCHEDULE; EVIDENCE - EXPERT MEDICAL OPINION.  Where the expert medical opinion relied on by the compensation judge failed to rate permanent partial disability in compliance with the applicable rule, the compensation judge’s decision lacked evidentiary support and is reversed.


Determined by:  Stofferahn, J., Milun, C.J., and Cervantes, J.
Compensation Judge:  Peggy A. Brenden

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




The employee appeals from the compensation judge’s denial of his claim for permanent partial disability.  We reverse.


James Eisenschenk was employed by Anoka Turf Farms on December 13, 2010.  As he was shoveling snow for the employer on that date, he slipped on the ice under the snow and fell, landing on his right shoulder.

Mr. Eisenschenk went to the emergency room at Mercy Hospital that same day, and then saw Dr. Margarita Sevilla at Sports & Orthopedic Medicine on December 15.  Dr. Sevilla diagnosed a “probable rotator cuff tear” and ordered an MRI.  The MRI was done on December 29, 2010, and was read as showing a “large full-thickness rotator cuff tear involving the entire infraspinatus and supraspinitus tendons as well as the rotator interval and the superior most aspect of the subscapularis tendon.”

Mr. Eisenschenk then saw Dr. Aimee Klapach on January 7, 2011.  Dr. Klapach had treated Mr. Eisenschenk for a left shoulder rotator cuff tear with surgery in 2007.  At the January 7 appointment, Dr. Klapach assessed “acute rotator cuff tear after fall with a subscap, supra- and infra-, with biceps subluxation AC DJD, coracoids impingement, and subacromial impingement.”  Dr. Klapach recommended surgical repair of the employee’s shoulder, and surgery was done on January 31, 2011.

The surgery was described in subsequent medical records as “[r]ight shoulder Subacromial Decompression, Distal Clavicle Excision, Biceps Tenodesis, MASSIVE Rotator Cuff Repair.”  Follow up care was provided by Dr. Klapach’s office, and the employee was referred for physical therapy on February 8, 2011.  In March 2011, Mr. Eisenschenk was released to sedentary work for four hours a day; physical therapy was continued.

Mr. Eisenschenk was evaluated on behalf of the employer and insurer by Dr. Edward Szalapski on May 3, 2011.  Dr. Szalapski took a history from the employee, reviewed the medical records, and conducted a physical examination.  Dr. Szalapski stated that “[h]is prognosis is a little bit uncertain at this point.  In general, massive tears, on average, do less well than smaller tears.”  Dr. Szalapski concluded that the employee was not at maximum medical improvement and was capable of only “very limited work with the right arm.”  Finally, Dr. Szalapski stated that the employee would, “at a minimum” be entitled to 6 percent permanent partial disability for the full-thickness rotator cuff tear under Minn. R. 5223.0450, subp. 3.A.(2).

The employer subsequently determined that it did not have work within the employee’s restrictions, and the employee initiated a job search with the assistance of a QRC beginning in October 2011.  In December 2011, the employee found full-time employment as a bus driver.

In a report in December 2011, Dr. Klapach determined the employee was at maximum medical improvement as of October 25, 2011.  She placed work restrictions and evaluated permanent partial disability under Minn. R. 5223.0450, subp. 2.C. at 3 percent, for distal clavicle resection.  Dr. Klapach prepared an additional report on September 25, 2012, at the request of the employee’s attorney.  She evaluated the employee’s passive range of motion as set out in Minn. R. 5223.0450, subp. 4, and concluded the employee had 14 percent permanent partial disability for loss of range of motion in the shoulder.

Dr. Szalapski evaluated Mr. Eisenschenk again on June 5, 2012.  With regard to the employee’s permanent partial disability, Dr. Szalapski reiterated his opinion that the employee was entitled to 6 percent permanent partial disability for a “full-thickness rotator cuff tear” under Minn. R. 5223.0450, subp. 2.C.  As to permanent partial disability for loss of range of motion, Dr. Szalapski concluded that no permanent partial disability existed since the employee’s “passive range of motion is excellent.”  The employer and insurer paid the employee 9 percent permanent partial disability:  3 percent from Dr. Klapach’s December 2011 rating for the clavicle resection, and 6 percent from Dr. Szalapski’s report.

The employee filed a claim petition in October 2012, claiming entitlement to permanent partial disability as rated by Dr. Klapach, as well as additional wage loss benefits from an underpayment of temporary partial disability benefits.  The claim petition was heard by Compensation Judge Peggy Brenden on October 20, 2013.  In her findings and order, the compensation judge awarded the employee the additional temporary partial disability benefits that had been claimed, but did not award additional permanent partial disability benefits.  The compensation judge’s only reference in her memorandum to this issue was “I accept the opinion of Dr. Szalapski.”  The employee has appealed from the denial of his permanent partial disability claim.


Permanent partial disability is “payment for functional loss of use or impairment of function.”  Minn. Stat. § 176.021, subd. 3.  Before amendments to the statute in 1983, permanent partial disability was established as a percentage of disability to the affected body part.  Minn. Stat. § 176.010, subd. 3 (1982).  “The amount of disability is an ultimate fact the determination of which has not been abdicated to the medical profession under our Workmen’s Compensation Law.”  Hosking v. Metro. House Movers Corp., 272 Minn. 390, 398, 138 N.W.2d 404, 409, 23 W.C.D. 673, 684 (1965).  Further, subjective complaints alone were sufficient to support an award of permanent partial disability.  Fox v. Dahlen Transp., 35 W.C.D. 371 (W.C.C.A. 1982); Gornick v. Gillette Co., 376 N.W.2d 691, 694, 38 W.C.D. 238, 241 (Minn. 1985).

Statutory provisions for permanent partial disability were substantially altered by the 1983 amendments to the workers’ compensation statute.  Under the “new law,” permanent partial disability is rated as a percentage of disability to the whole body based upon a schedule promulgated by the Department of Labor & Industry.  Minn. Stat. § 176.101, subd. 2a (1983).  The statute requires the schedule be based on “objective medical evidence.”  Minn. Stat. § 176.105, subd. 1.  The rules promulgated by the department, generally referred to as the permanency schedule, have changed in substance and content somewhat since their issuance in 1984.  The current rules apply to the employee’s December 2010 injury, and both Dr. Klapach and Dr. Szalapski agreed that the appropriate rule for assessing the employee’s permanent partial disability is Minn. R. 5223.0450, titled, “Musculoskeletal schedule; shoulder and upper arm.”

Dr. Klapach provided an initial rating of permanent partial disability in December 2011 when she determined the employee was at maximum medical improvement.  She found 3 percent permanent partial disability pursuant to Minn. R. 5223.0450, subp. 2.C., for “resection distal end of clavicle.”  Dr. Klapach had done this procedure as part of the surgery she performed in January 2011.  Dr. Szalapski did not mention this rating or procedure in either of his reports.  The employer and insurer paid this rating, and there seems to be no present question about the appropriateness of the rating.

In both of his reports, the only permanent partial disability rating provided by Dr. Szalapski was 6 percent for a full-thickness rotator cuff tear based on Minn. R. 5223.0450, subp. 3.A.(2).  However, that section states plainly that it applies “for dates of injury from July 1, 1993 through August 8, 2010,” and, as a consequence, would not be appropriate here.  Dr. Szalapski clearly erred in his permanent partial disability assessment, and it was error for the compensation judge to completely adopt the opinion of Dr. Szalapski in determining the extent of permanent partial disability for Mr. Eisenschenk.

The actual issue at hearing and on appeal is whether the employee is entitled to additional permanent partial disability for loss of range of motion pursuant to Minn. R. 5223.0450, subp. 4.  That section provides:

Categories describing loss of function.  Function at the shoulder is measured by the available passive range of motion in three arcs at the shoulder:  flexion or extension, abduction or adduction, and rotation.  Examination with goniometer is performed to determine the limits of passive range of motion in each arc.  If there is an impairment in more than one arc, the ratings for each arc are added to determine the final impairment for loss of function.

This court has held on numerous occasions that establishment of a claim for permanent partial disability must be based on objective medical evidence in compliance with the relevant disability schedule.  “Minnesota statues and case law require that a compensation judge base an award of permanent partial disability benefits on objective medical evidence which meet the requirements of the disability schedule found in the Minnesota Rules.”  Bilotta v. Pizza Hut, slip op. (W.C.C.A. Dec. 17, 1998).  “To obtain a permanent partial disability rating, an employee must show that each element set forth in the relevant schedule is met.”  Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (W.C.C.A. 1987).  “In order to award a permanent partial disability rating under any section of the schedules, all the requirements of that section must be met.”  Warner v. Luther Haven Nursing Home, slip op. (W.C.C.A. Oct. 14, 1993).  See also Stordahl v. Northern Hydraulics, slip op. (W.C.C.A. Oct. 27, 1993); Brennan v. Lake Owasso Residence, slip op. (W.C.C.A. Jan. 8, 2002).

In her September 25, 2012, report, Dr. Klapach stated that, “goniometric active and passive range of motion was performed on July 12, 2012.”  Based on the measurements she obtained at that time, Dr. Klapach concluded the employee had an additional permanent partial disability of 14 percent for a loss of range of motion.[1]  Dr. Klapach’s rating follows the requirements of the rule.  The report of Dr. Szalapski does not comply with Minn. R. 5223.0450, subp. 4.  The rule requires measurement of range of motion in three arcs - flexion or extension, abduction or adduction, and rotation.  Whether or not Dr. Szalapski did these measurements or not is unknown; no measurements are recorded.  The rule refers to use of the goniometer for the examination, and no goniometer was used.  In assessing the employee’s range of motion, Dr. Szalapski stated it was “excellent.”  Whether he meant it was excellent when compared with an otherwise healthy 58 year-old man, or whether it was excellent for someone who had surgery to repair a full-thickness rotator cuff tear, is not known.  No objective criteria for his rating are set out in his report.

In response, the employer and insurer cite to Houle v. Abbott NW Hosp., slip op. (W.C.C.A. Jan. 16, 2001) for the proposition that the use of a goniometer is not necessary in assessing range of motion of the shoulder.  This is an overbroad reading of that decision.  In Houle, the court noted the IME opinion, which apparently was not based on use of a goniometer, was also supported by range-of-motion measurements made by other physicians, and the IME opinion also provided specific measurements of range of motion in each of the three shoulder arcs which were consistent with those prior measurements.  Neither of those elements is present in this case, and we conclude the import of Houle is limited to its specific and unique facts.  Further, Houle does not suggest that the requirements of the rule to provide precise measurements of range of motion can be ignored.

Dr. Szalapski’s opinion would not be sufficient to support a claim by an employee for permanent partial disability of the shoulder, and it is not adequate to support a defense to such a claim.  Minn. Stat. § 176.001.  The compensation judge erred in relying on that opinion.  To conclude otherwise would be contrary to statute, rule, and almost 30 years of caselaw which require objective medical evidence establishing each element of a rule to determine permanent partial disability.

The employer and insurer also contend that the employee’s claim must fail because he failed to establish that any loss in his shoulder range of motion was caused by his rotator cuff tear and not by the distal clavicle resection.  We find no merit to this argument.  The employer and insurer refer to no statement in the medical records that the clavicle resection resulted in loss of range of motion in the shoulder.  Indeed, the only reference in the records to the clavicle resection is in the surgical notes and in Dr. Klapach’s rating.  All of the other medical records, in discussing diagnosis, treatment, restrictions, or loss of range of motion, mention only the employee’s “massive” rotator cuff tear.  We see no way that the loss of range of motion could be construed to be due to the clavicle resection and the employee met his burden on this question.

Since determination of permanent partial disability is ultimately a question of fact for the compensation judge, ordinarily we would remand this matter for a determination on that issue in accordance with this opinion.  However, since Dr. Klapach’s opinion is the only medical opinion providing an adequate basis for assessing permanent partial disability, we see no reason for a remand.[2]

The employee is entitled to permanent partial disability benefits in accordance with Dr. Klapach’s opinion, less the payments made by the employer and insurer.  The compensation judge’s decision as to permanent partial disability is reversed, and an award of additional permanent partial disability is substituted.

[1] The sections sited by Dr. Klapach were:

5223.0450, subp. 4.A(1)(c) - flexion/extension - 5 percent;
5223.0450, subp. 4.B(1)(c) - abduction/adduction - 8 percent;
5223.0450, subp. 4.C(1)(b) - rotation - 1 percent.

[2] We also note this matter has been in litigation since October 2012, and further delay in resolving this claim is not in the interest of justice or of the parties.