PERMANENT PARTIAL DISABILITY – GASTROINTESTINAL TRACT. Substantial evidence, including the employee’s medical records, supports the compensation judge’s finding that the employee was not entitled to PPD ratings of 65% and 50% for short bowel syndrome where the employee’s desirable weight was maintained for a year prior to the hearing.
PERMANENT PARTIAL DISABILITY – GASTROINTESTINAL TRACT. Substantial evidence, including expert medical testimony, supports the compensation judge’s assignment of two 15% PPD ratings for short bowel syndrome.
PRACTICE & PROCEDURE – MATTERS AT ISSUE. Failure of the appellant to fully identify all arguments in the Notice of Appeal that later appear in the appellant brief does not constitute a waiver of those issues on appeal where the initial description of the issues provided adequate notice to the respondent.
Compensation Judge: William J. Marshall
Attorneys: DeAnna M. McCashin, McCashin Law Firm, Alexandria, Minnesota, for the Appellant. Michael R. Johnson and Richard W. Schmidt, Cousineau, Waldhauser & Kieselbach, P.A., Mendota Heights, Minnesota, for the Respondents.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s finding on permanent partial disability. Because the employee does not meet all the criteria under the permanent partial disability schedule for the degree of disability claimed, we affirm the compensation judge’s application of the employee’s loss of function to the appropriate permanent partial disability rating.
On February 23, 2012, Dan Weinkauf, a large-framed 6’4” man, injured his low back while working for his employer, Border States Industries. Following a course of conservative treatment, he underwent a two-level anterior posterior fusion on March 6, 2013. As a result of the surgery, he suffered necrosis of the intestines. He underwent surgery to remove the affected portions of his intestines and colon. He was placed with a temporary ileostomy which led to complications of respiratory failure, sepsis, acute renal injury and coagulopathy.[1] Due to the resection of an extended length of the intestines and colon, he ultimately developed short bowel syndrome.[2] Afterward, he suffered from pain, significant dietary restrictions, vomiting, chronic diarrhea and gas, and weight loss of 123 pounds.[3]
After a period of recovery, the employee received permanent restrictions of no lifting over 40 pounds, the ability to use the restroom when needed, and frequent meal breaks. He found employment with a new employer, working the night shift. The new employer gave him access to restroom breaks. He worked between 40-48 hours a week. He was able to eat meat, and engage in normal activities, including riding his motorcycle.[4] He continued to have significant bloating, gas, and diarrhea which affected his social life. His diet was restricted to certain foods and he took a number of medications and supplements to regulate his digestive system. He regained most of the weight lost and maintained a weight between 199 and 240 pounds, staying closer to the 240 pound weight over the last year.
From 2014, onward, the employee treated with April Grudell, M.D. of Minnesota Gastroenterology. Dr. Grudell determined that the employee reached maximum medical improvement (MMI) on September 14, 2015. Dr. Grudell provided a permanent partial disability (PPD) rating for the employee’s gastrointestinal condition. Dr. Grudell rated the employee’s upper digestive tract loss at 65 percent under Minn. R. 5223.0590, subp. 2D, class 4 which provides:
Signs or symptoms of organic upper digestive tract disorder are present; there is anatomic loss or alteration; continuous treatment with dietary restrictions and drugs does not completely control symptoms, signs or nutritional state; and there is loss of weight below the desirable weight which is greater than 20 percent regardless of whether on oral diet or intravenous hyperalimentation.
Dr. Grudell rated an additional 50 percent for the loss of colon and rectal function under Minn. R. 5223.0590, subp. 3D, class 4 which provides:
Signs or symptoms of organic colonic and rectal disorder are continuous, there is anatomic loss or alteration; there are persistent disturbances of bowel function with severe persistent pain; treatment with complete limitation of activity, restriction of diet, and medication is required and does not entirely control the symptoms; and there is loss of weight below the desirable weight or anemia due to blood loss.
“Desirable weight” as defined by Minn. R. 5223.0310, subp. 20, for a large-framed 6’4” male is 181 pounds.
The employer and Sedgwick Claims Management Services, sought a medical expert opinion from Ahsan Bhatti, M.D. Dr. Bhatti diagnosed the employee’s condition as short bowel syndrome and irritable bowel syndrome which was permanently aggravated due to the 2013 spinal fusion. He took a history from the employee who reported pre-existing diarrhea associated with lactose intolerance. Dr. Bhatti noted a diagnosis of pre-existing irritable bowel condition. He opined that the employee did not need a special diet, had no limitation as a result of the injury, and had no issue maintaining his weight.
Dr. Bhatti disagreed with Dr. Grudell’s PPD rating. In his November 15, 2015, narrative report,[5] he rated the employee’s condition as 15 percent PPD for loss of function of the upper digestive tract under Minn. R. 5223.0590, subp. 2B, class 2, which provides:
Signs or symptoms of organic upper digestive tract disorder are present; there is anatomic loss or alteration; treatment with dietary restriction and drugs is required for control of symptoms, signs, or nutritional deficiency, and there is loss of weight below the desirable weight which does not exceed ten percent on oral diet.
Dr. Bhatti also rated the employee at 15 percent PPD for loss of function to the colon and rectum under Minn. R. 5223.0590, subp. 3B, class 2, which provides:
Signs or symptoms of organic colonic or rectal disorder are frequent; there is anatomic loss or alteration; there is intermittent disturbance of bowel function, accompanied by period or continual pain; no continuous restriction of diet, or symptomatic therapy is necessary; and weight can be maintained at the desirable weight.
The employer and insurer paid to the employee the PPD benefits identified by Dr. Bhatti in his report. On May 8, 2016, the employee filed a claim petition seeking additional PPD benefits as rated by Dr. Grudell. On January 24, 2017, the matter was heard before Compensation Judge William J. Marshall. The sole issue was the appropriate PPD rating under Minn. R. 5223.0590. In a Findings and Order filed on March 9, 2017, the judge found by a preponderance of the evidence that the appropriate PPD rating was 15 percent for the upper digestive tract loss, and 15 percent for the colon and rectum loss as rated by Dr. Bhatti, the employer and insurer’s medical expert. The employee appeals.
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(3). 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).
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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
On appeal, the employee argues that the judge erred in relying on Dr. Bhatti’s opinion in finding PPD. He maintains that Dr. Bhatti relied on facts contradicted by the medical records and Dr. Bhatti lacked factual foundation thereby making his opinion unreliable. In addition, the employee argues that the judge erred as a matter of law by importing wage loss standards into the PPD determination. In response, the employer and insurer argue that the employee waived the issues raised on appeal by not identifying them in the notice of appeal. The employer and insurer also contend that the judge’s decision was supported by substantial evidence and contains no error of law.
We first address whether the employee failed to raise the issues in the notice of appeal, which the employee did argue in the appeal brief. Minn. Stat. § 176.421, subd. 6, restricts this court’s review to issues raised by the parties in the notice of appeal. Here, the employee raised two issues in the notice of appeal: The first issue was whether the compensation judge committed mistakes of fact in applying the PPD ratings for the bowel injuries. The second issue was whether the compensation judge committed an error of law in applying portions of the PPD rule for damage to the bowels rather than the functional loss to the small and large intestines. Specifically, the employee appealed Findings 10 and 11, and Orders 1 and 2. Findings 10 and 11 determined Dr. Bhatti’s medical conclusions and permanent partial disability rating. Orders 1 and 2 dismissed the employee’s claim petition and all pending pleadings.
This court has long held that adequate notice of the matters at issue in the appeal meets the requirements of Minn. R. 9800.0900. Webb v. Hercules, Inc., No. WC04-117 (W.C.C.A. Aug. 16, 2004), summarily aff’d (Minn. Aug. 16, 2004); see also Armstrong v. RJ Sport & Cycle, No. WC12-5520 (W.C.C.A. Jun. 18, 2013). There is no requirement that every argument asserted in the brief must be raised in the notice of appeal. As long as the issues raised in the notice are adequate to appraise the opposing party of the nature of the appeal, this court has jurisdiction to review it. Here, because the employee appealed findings related to Dr. Bhatti’s conclusions and PPD rating, the notice adequately appraised the employer of the nature of the appeal before the court.
The employee primarily argues that the judge erred in relying on a medical opinion which lacked foundation and relied on facts contradicted by the medical records, namely that the employee did not have a pre-existing history of irritable bowel syndrome (IBS) or a special diet before the injury. The medical records appear to contradict the employee’s argument on this point. In 2012, Dr. Manuel Pinto, who performed the employee’s fusion surgery, noted that the employee had a history of IBS.[6]
As this court has stated, “[a] compensation judge is free to accept medical opinion that conflicts with the testimony of an employee or other medical opinions so long as the opinion accepted has an adequate foundation.” Hecimovich v. Oliver Thein Beauty Sch., slip op. (W.C.C.A. Apr. 27, 1989) (citing Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985)). While the prior IBS symptoms are noted in the record before the employee’s surgery, there is no prior history of a special diet. Dr. Bhatti incorrectly stated that the employee required no special diet as he was self-limiting foods before the injury. The employee testified that he had not avoided foods before his surgery in 2013. Furthermore, there is no evidence of food avoidance in the medical records before the injury. If the dietary restrictions were the sole component in determining PPD here, this misapprehension could have significance. However, dietary restrictions are not determinative of the PPD ratings here, as discussed below. The assumption of an incorrect fact regarding a special diet, under these circumstances, does not render Dr. Bhatti’s opinion to have an inadequate foundation. Kroells v. Cemstone, Inc., No. WC06-212 (W.C.C.A. Mar. 23, 2007).
The employee contends that the judge erred as a matter of law by incorporating an ability to work standard into the eligibility determination for PPD. We find no improper substitution of a legal standard or error of law in the judge’s analysis. The employee claimed an increased PPD rating under Minn. R. 5223.0590, subp. 3D, class 4, which requires complete limitation of activity. The judge’s finding regarding the employee’s work activity is proper to demonstrate that the employee does not meet the standards for that rating.
The employee has demonstrated some of the requirements for the PPD rating claimed (dietary restrictions and requiring medications and supplements to control symptoms). But the employee is required to demonstrate the standard of weight loss of 20 percent below his desirable weight to meet his burden regarding the PPD rating from Minn. R. 5223.0590, subp. 2D, class 4. As mentioned above, the employee’s desirable weight is set by rule at 181 pounds. The record is unequivocal that the employee maintained a weight of 240 pounds for the last year. The employee has not met his burden to demonstrate the element of weight loss for either of the two claimed ratings.
The Minnesota Disability Schedules which outline the ratings for PPD require medical and legal interpretation. The rules recognize that the PPD ratings do not cover every condition. For this reason, the rules call for choosing the category which most closely represents the condition and impairment. Minn. R. 5223.0300, subp. 1. Here, the judge did not err in applying the PPD rating identified by the employer and insurer’s medical expert to the condition suffered by the employee. Substantial evidence supports the award of the compensation judge and that award is affirmed.
[1] Ex. 2, January 18, 2016, report of Dr. Bhatti.
[2] Short bowel syndrome is a condition in which the body is unable to absorb sufficient nutrients from the food consumed due to an inadequate length of small intestine. www.mayoclinic.org.
[3] On the date of injury, the employee stood 6’4” and weighed 300 pounds. After the bowel surgery, the employee dropped to approximately 179 pounds. Finding 5 and 6.
[4] Ex. P, Dr. Grudell, April 18, 2016.
[5] Ex. 2.
[6] Ex. M.