TAMRAT HAGOS, Employee/Appellant, v. LSG SKY CHEFS, INC., and LIBERTY MUT. INS. COS., Employer-Insurer, and CTR. FOR DIAGNOSTIC IMAGING, IMPACT PHYSICAL MED. & AQUATIC CTR., and FAIRVIEW HEALTH SERVS., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 7, 2014

No. WC13-5622

HEADNOTES

CAUSATION - TEMPORARY INJURY; PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where there was no contention that the employee’s admitted work injury was merely temporary and the parties agreed that the employee had a 5% impairment attributable to the injury, and the judge used language indicating that the injury had “resolved,” the judge’s decision is modified to clarify that the employee’s work-related knee injury had not fully resolved without residual disability.

Affirmed as modified.

Determined by:  Wilson, J., Hall, J., and Stofferahn, J.
Compensation Judge:  Rolf G. Hagen

Attorneys:  Mark J. Freeman, Thill and Freeman, St. Louis Park, MN, for the Appellant.  Randee S. Held, Law Offices of Thomas P. Stilp, Golden Valley, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

The employee appeals from the compensation judge’s decision as to the nature of his work injury.[1]  We affirm as modified.

BACKGROUND

The facts relevant to this appeal are essentially undisputed.  The matter came on for hearing before a compensation judge for resolution of the employee’s claim for various benefits related to injuries he sustained on December 3, 2010, while employed by LSG Sky Chefs, Inc., [the employer].  At the commencement of the hearing, the compensation judge recited a number of stipulations, indicating, among other things, that the parties had agreed that the employee had sustained work-related injuries to his right knee and ankle on December 3, 2010; that medical care claimed through March 23, 2012, was reasonable and necessary; that the employee had been temporarily disabled during certain periods as a result of his work injury; and that the employee had a 5% permanent partial disability attributable to the work-related knee injury.  When asked, the parties agreed that the compensation judge had accurately described the stipulations.  Disputed issues listed by the compensation judge included whether the employee had injured his right foot, as well as his right knee and ankle, on December 3, 2010; the nature and extent of the employee’s December 3, 2010, right knee and ankle injuries; and whether the employee’s work injuries had substantially contributed to the employee’s alleged wage loss and need for treatment for the periods claimed.  Defenses asserted by the employer and insurer included maximum medical improvement [MMI], the employee’s alleged termination for misconduct; and the employee’s alleged failure to cooperate with rehabilitation efforts and failure to conduct a diligent job search.

The compensation judge issued his findings and order on August 1, 2013, awarding certain medical expenses and one period of wage loss benefits but denying most other claimed benefits based on various grounds, including causation, MMI, and the employee’s noncooperation with rehabilitation assistance.  The employee appeals.

STANDARD OF REVIEW

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 (2014).  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, 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 evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

Concluding that the employee’s work-related right knee and right ankle injury had substantially contributed to the employee’s loss of earning capacity from January 3, 2011, through May 12, 2011, the compensation judge awarded the employee temporary partial disability benefits for that period, as claimed.  The judge rejected the employee’s claim that he had injured his right foot at the time of the December 3, 2010, injury, and the judge concluded as follows as to the nature and extent of the employee’s work-related right knee and right ankle injuries:

6.   The preponderance of the evidence supports the finding that the December 3, 2010, right knee work injury was in the nature of:  a low grade posterior cruciate ligament sprain; a low grade medical [sic] collateral sprain; and a minimally displaced fracture involving the posterior cruciate ligament attachment site of the posterior tibia; further, that the right knee work injury did resolve without the need for restrictions no later than April 30, 2012 (date of independent medical examination by Dr. Ross Paskoff, Exhibit 1).
7.   The preponderance of the evidence supports the Finding that the December 3, 2010, right ankle work injury was in the nature of a musculoligamentous strain/sprain which did completely resolve without residual and without the need for restrictions no later than April 30, 2012 (date of independent medical examination by Dr. Ross Paskoff, Exhibit 1.)

In a separate finding, the compensation judge restated his conclusion as follows:

f.     That by April 30, 2012, the admitted December 3, 2010, right knee and right ankle work injuries had resolved and the employee was capable of returning to work full duty without restrictions attributable to the admitted injuries;

The judge went on, in his memorandum, to further explain his decision on this issue, writing,

A review of the medicals indicates that the employee’s right knee injury was in the nature of a posterior cruciate ligament strain (low grade), medial collateral ligamentous sprain (low grade) and minimally displaced fracture involving the posterior cruciate ligament attachment site of the posterior tibia (i.e. fracture of the posterior tibia where the PCL ligament attaches).
Review of the medicals also indicates that the injury sustained by the employee to his right ankle was in the nature of a musculoligamentous sprain/strain.
On April 30, 2012, Dr. Ross Paskoff performed an independent medical examination of the employee and issued multiple opinions.  Based upon Dr. Paskoff’s examination findings and review of medical records, it was his opinion that the employee did in fact sustain an injury to the right knee but that by the time of his independent medical examination it had completely resolved (except for some minimal laxity).  He was of the opinion that the employee could return to work full duty and without restrictions attributable to the right knee work injury.
Dr. Paskoff did not believe that the employee sustained injuries to his right ankle and right foot.  Notwithstanding, based upon his exam findings and review of the medicals, he again was of the opinion that regardless of causation the employee was not suffering from the effects of any right ankle work injury and that the alleged right foot injury (plantar fasciitis) was not related to the work injury of December 3, 2010.
This Compensation Judge finds Dr. Paskoff’s opinions regarding the nature and extent of the injury to be persuasive and by reason of same has determined that the admitted right knee and right ankle work injuries had resolved by the date of the independent medical examination (April 30, 2012) and that any ongoing disability and restrictions are attributable to the employee’s non-work related right foot condition (plantar fasciitis).

On appeal, the employee concedes that the record supports the conclusion that he had no need for restrictions due to his work injury during the periods for which the compensation judge denied his claim for wage loss benefits.  He contends, however, that the judge erred by concluding that his work-related knee injury had “resolved,” in that such a finding is inconsistent with the parties’ agreement that the employee has a 5% whole body impairment attributable to his work-related knee injury.

Permanent partial disability benefits are payable for functional loss of use or impairment of function that is permanent in nature.  See, e.g., Minn. Stat. § 176.021, subd. 3; Deschampe v. Arrowhead Tree Serv., 428 N.W.2d 795, 41 W.C.D. 200 (Minn. 1988).  As such, a finding that a work injury had fully resolved would be inconsistent with an award or stipulation establishing that the employee has work-related permanent partial disability.  In the present case, it is less than clear that the judge intended to find that the employee’s knee injury had “fully” resolved, especially given the language he used for the right ankle condition - - “completely resolved without residual” (emphasis added) - - that he did not use when describing the employee’s knee.[2]  Still, it is common practice in workers’ compensation to use the term “resolved” when describing an injury that is temporary in nature.  We therefore modify the judge’s decision to clarify that the employee’s work-related right knee injury did not fully resolve without residual disability.  Cf. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).


[1] The employee also appeals from the compensation judge’s decision as to when the employee commenced employment with the employer.  The employer and insurer agree that judge erred in his finding on this issue.  We therefore vacate Finding 4a.

[2] We would note, too, that the employer and insurer were not contending that the employee’s admitted knee injury had fully resolved, and it was their independent medical examiner, Dr. Paskoff, who concluded that the employee had a 5% whole body impairment attributable to his work-related knee condition.