PERMANENT PARTIAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s determinations of the employee’s permanent partial disability ratings.
Compensation Judge: Adam S. Wolkoff
Attorneys: Jerry J. Lindberg, Lindberg Law, P.C., Sauk Rapids, Minnesota, for the Respondent. William R. Moody, Fitch, Johnson, Larson & Held, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal the compensation judge’s findings regarding the employee’s permanent partial disability ratings. We affirm.
On March 12, 2013, Steven R. Weber, the employee, was injured when farm equipment fell on him while he was working as a farm manager for Jake Bauerly, the employer. The employer was covered for workers’ compensation liability by RAM Mutual Insurance. The employer and insurer admitted liability and paid various workers’ compensation benefits.
The employee sustained multiple injuries to his spine and lower abdomen, including displaced right and non-displaced left sacral alar fractures, displaced bilateral lumbar transverse process fractures at L3-5 on the right and T12-L5 on the left, comminuted sacra and rami fractures with an additional fracture through the left ischium with moderate accompanying retroperitoneal hemorrhage and small hepatic laceration, and anterior left eleventh rib fracture. The next day, the employee underwent emergency surgery to repair multiple fractures with hardware, performed by Dr. Mitchell Kuhl from St. Cloud Orthopedics. On March 18, 2013, another surgery was needed to reposition some of the hardware. On March 24, 2013, the employee developed deep vein thrombosis and pulmonary emboli while undergoing physical therapy. The employee had to be non-weight bearing and in a wheelchair for two months.
In May 2013, the employee reported pain and numbness in his groin and urination issues. On May 30, 2013, the employee treated with Dr. Jeffrey Derr for continued pain in his groin, leg length discrepancy, and pain in the left SI area and left lower lumbar area. Dr. Derr noted pelvic obliquity, leg length discrepancy, and intact pinprick test in the lower sacral dermatomes, and stated that the findings were indicative of a peripheral nerve injury.
The employee was evaluated by Dr. Kuhl on June 12, 2013, for his leg length discrepancy and pelvic height discrepancy while sitting. A pelvic x-ray indicated an 8 millimeter leg length discrepancy at the weight-bearing portion of the pelvis. Dr. Kuhl opined that this leg length discrepancy was “from functional deficit and loss of muscle strength related to his injury and inactivity more so than structural bony problem related to the postoperative alignment.” (Ex. D.)
On July 15, 2013, the employee was released to work with no official restrictions, but returned to self-restricted light duty work with no lifting. The employee continued to treat for ongoing symptoms, including aching and pain in his buttocks, groin, and genitals, altered bowel and bladder function, numbness and pain in his groin, and numbness and tingling down his legs.
The employee underwent an EMG on December 4, 2013, which Dr. Mark Thibault read as normal. Dr. Thibault found no evidence of peripheral neuropathy, myopathy, or lumbosacral radiculopathy within the lumbosacral nerve roots on either side, but also noted that lower sacral plexus injury or pudendal neuralgia could not be excluded based on his examination.
On August 28, 2014, the employee underwent MRI scans of the lumbar spine and the sacral plexus. The lumbar spine scan indicated mild disc degeneration with annular disc bulging causing mild subarticular recess stenosis at L5-S1, disc degeneration at L2-5, minimum to mild degenerative facet arthropathy from L5-S1 through L1-2 with mild synovitis, and status post sacroiliac joint fusion. The sacral plexus scan indicated essentially normal findings with no impingement, but surgical hardware limited evaluation of the proximal sacral plexus.
The employee was evaluated by a physician’s assistant for a urological consultation on January 22, 2015. The assessment indicated post-void dribbling due to decreased tone of the sphincter secondary to the employee’s work injuries, and sexual dysfunction secondary to lack of sensation which had been present since the employee’s injury.
On February 9, 2015, Dr. Kuhl found the employee to be at maximum medical improvement as of November 25, 2014, and rated the employee as having 2% permanent partial disability under Minn. R. 5223.0430, subp. 2.B, for sensory loss of the peripheral nerve in the genitofemoral distribution.
The employee treated with Dr. Kelly Collins on June 12, 2015, for pain in his sitting bone, penile sensory loss, and sexual dysfunction. Dr. Collins noted no sensation to pinprick, impaired sensation on the scrota, and tenderness of the distal obturator internus, and assessed left pudendal neuropathy based on clinical history and physical examination. The employee was referred to Mayo Clinic for nerve conduction testing, but this testing was not performed.
According to a bilateral lower extremity scanogram conducted on June 18, 2015, the employee has an overall leg discrepancy of 1.6 centimeters. His left tibia is 8 millimeters longer than the right tibia, which Dr. Kuhl noted was congenital. He also stated that the employee’s right femur is higher by 8 millimeters due to healing at the pelvic fracture site, resulting in the employee’s right leg being 1.6 centimeters shorter than his left leg.
The employee treated with Dr. Shawn McGee for erectile dysfunction and urinary symptoms on July 6, 2015. Dr. McGee determined that the sensitivity issues were likely related to the nerve root near his sacral injury.
On December 18, 2015, the employee reported pelvic pain to Dr. Kuhl. Dr. Kuhl noted mild residual deformity in the pelvis with internal shortening and compression of the left pubic rami, superiorly and inferiorly, and impaction, and also some shortening and impaction of the ischial tuberosities. Dr. Kuhl recommended removal of the surgical hardware in the pelvis, which was performed on January 4, 2016. Six weeks later, the employee reported some improvement, but persistent symptoms of pain with sitting, muscle cramps in his calf muscles, penile numbness, and use of a one inch shoe lift.
The employee was evaluated by Dr. Robert Wengler on May 23, 2016. Dr. Wengler opined that the employee’s pelvic fracture damaged the pudendal nerve resulting in interference of normal penile function with associated intermittent bladder incontinence. He also stated that the employee had sustained a neurological deficit in the right leg with depressed right ankle reflex, right calf atrophy, and defibrillations of the calf muscles, shown by subarticular recess stenosis at L4-5. Dr. Wengler rated the employee’s injuries for permanent partial disability as 10% for loss of penile function under Minn. R. 5223.0600, subp. 6.B; 5% for intermittent bladder incontinence under Minn. R. 5223.0600, subp. 3.A; 3% for leg length discrepancy under Minn. R. 5223.0500, subp. 3.A(2); 5% for pelvic fractures under Minn. R. 5223.0490, subp. 2.B; 9% for neurological deficit in the right lower extremity under Minn. R. 5223.0390, subp. 4.D; and 13.5% for displaced fractures of the transverse process involving posterior elements at multiple levels under Minn. R. 5223.0390, subp. 2.B(1) and 2.D.
Dr. Wengler later revised the rating for neurological deficit in the left leg to be 10% under Minn. R. 5223.0390, subp. 4.E for single level spinal stenosis. Dr. Wengler also agreed with Dr. Kuhl’s earlier rating of 2% permanent partial disability under Minn. R. 5223.0430, subp. 2.B for peripheral nerve damage to the genitofemoral nerve. The employer and insurer paid permanent partial disability benefits for this 2% rating.
On November 28, 2016, the employee was evaluated by Dr. Mark Friedland at the employer and insurer’s request. Dr. Friedland diagnosed healed left L1-5 and right L3-5 transverse process fractures, healed bilateral sacral, superior pubic ramus and ischial tuberosity fractures, possible pudendal neuropathy, and a 1.6 centimeter leg length discrepancy. He found that there was no objective confirmation of a pudendal nerve injury. He agreed that the employee had a 5% permanent partial disability rating for the pelvic fracture under Minn. R. 5223.0490, subp. 2.B. Regarding the employee’s bilateral multilevel transverse process fractures, Dr. Friedland rated these fractures at 7% under Minn. R. 5223.0390, subp. 2.C and 2.D because there was no evidence of posterior element fractures. He opined that the employee was at maximum medical improvement as of July 15, 2016, and did not need any work restrictions.
Dr. Friedland assigned no other permanent partial disability ratings. He stated that the employee was not entitled to 10% permanent partial disability for loss of penile function or pudendal nerve injury under Minn. R. 5223.0600, subp. 6.B, since the employee has not undergone objective electromyographic evaluation to substantiate the subjective symptoms of pudendal nerve injury. He also disagreed with Dr. Wengler’s 5% permanent partial disability rating for intermittent bladder incontinence under Minn. R. 5223.0600, subp. 3.A, stating that the described symptom was normal in adult males and was not consistent with true urologic or neurogenic urinary incontinence. He assigned a 0% permanent partial disability rating for the employee’s leg length discrepancy under Minn. R. 5223.0500, subp. 3.A.(1) because less than 1 centimeter of the discrepancy was traumatic or surgical.
In a report dated March 27, 2017, Dr. Collins agreed with Dr. Wengler regarding the employee’s permanency ratings. Dr. Collins opined that the employee had sustained a pudendal nerve injury due to the multiple pelvic fractures impairing his core muscles and biomechanics, and noted that the employee’s imaging indicated trauma around the path of the pudendal nerve and potentially around the solar plexus. Dr. Collins also stated that nerve conduction tests are not very sensitive and a negative study would not rule out symptoms. In addition, Dr. Collins noted that the employee’s congenitally shortened tibia was exacerbated by the pelvic fractures and that measurements taken at a static position may not accurately reflect the employee’s functional leg length discrepancy. Regarding the employee’s urological condition, Dr. Collins opined that his condition was not normal for his age.
The employee filed a claim petition on July 5, 2016, for underpayment of temporary total disability benefits and 45.5% permanent partial disability for multiple conditions based on Dr. Wengler’s opinion. A hearing was held on June 22, 2017. At the hearing, the parties stipulated that they had resolved the underpayment issue. The compensation judge denied the 2% permanent partial disability rating assigned by Dr. Kuhl under Minn. R. 5223.0430, subp. 2.B for sensory loss of the genitofemoral nerve since Dr. Collins found impaired sensation, not total or complete sensory loss as required by the rule. The employee did not appeal the denial. The judge adopted the rest of the ratings assigned by Dr. Wengler and awarded 38.66% permanent partial disability after application of the statutory formula, less any permanency already paid. The employer and insurer appeal the award of the permanent partial disability ratings for the employee’s leg length discrepancy, multiple lumbar fractures, lumbar radiculopathy, bladder dysfunction, and penile dysfunction.
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).
The only issue before the compensation judge at the hearing was the extent of permanent partial disability sustained by the employee as the result of his March 12, 2013, work injury. The parties presented the opinions of three physicians who considered the employee’s permanent partial disability ratings for the conditions at issue at the hearing: Dr. Kelly Collins, a physical medicine and rehabilitation specialist who had treated the employee for his injury; Dr. Robert Wengler, an orthopedist who evaluated the employee at the request of his attorney; and Dr. Mark Friedland, an orthopedist who evaluated the employee at the request of the employer and insurer.
All three of these doctors, in addition to examining the employee, reviewed his extensive medical records. This level of information provides adequate foundation for providing a medical opinion. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Willy v. Northwest Airlines Corp., 77 W.C.D. 349, 354 (W.C.C.A 2016), summarily aff’d (Minn. May 10, 2017). We have repeatedly held that it is the unique function of a compensation judge to choose between competing medical opinions and a compensation judge’s decision based on that choice will generally be affirmed by this court. See Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003); Tamayo Lopez v. JBS USA, LLC, 76 W.C.D. 273, 280 (W.C.C.A. 2015), summarily aff’d (Minn. Mar. 21, 2016); see also Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
Here, the compensation judge accepted and relied upon the well-founded opinions of Drs. Wengler and Collins in making his determination as to the extent of permanent partial disability sustained by the employee. The employer and insurer contend on appeal, however, that the compensation judge erred in accepting those opinions because they failed to establish each requisite element of the relevant ratings and failed to demonstrate that the ratings were based on objective medical evidence.
The statute provides that a rating of permanent partial disability must be based on “objective medical evidence.” Minn. Stat. § 176.105, subd. 1. This court has also held that it is the obligation of the employee to establish that the elements of a permanent partial disability rating set out in the rules are met. Gluba v. Bitzan & Ohren Masonry, 67 W.C.D. 220, 224 (W.C.C.A. 2006), aff’d, 735 N.W.2d 713, 67 W.C.D. 228 (Minn. 2007) (affirming a constitutional issue); Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987).
Seven different permanency ratings were claimed by the employee. Dr. Friedland agreed with Drs. Wengler and Collins that the employee was entitled to 5% permanent partial disability for his pelvis fracture under Minn. R. 5223.0490, subp. 2.B. The remaining six ratings were in dispute at the hearing. The employee did not appeal the compensation judge’s denial of the 2% rating by Dr. Kuhl under Minn. R. 5223.0430, subp. 2.B, for sensory loss of the genitofemoral nerve. Therefore, five ratings are at issue in this appeal, the employee’s leg length discrepancy, multiple lumbar fractures, lumbar radiculopathy, bladder dysfunction, and penile dysfunction.
This section provides for an award of 3% disability where there has been a traumatic or surgical discrepancy of a lower extremity from 1.0 to 1.9 centimeters. Dr. Wengler and Dr. Collins were of the opinion that this section applied to the employee. The appellants do not argue that the measurement of the discrepancy is incorrect, but rather, that the rating is incorrect because the employee’s 1.6-centimeter leg discrepancy is not exclusively the result of the work injury. We do not agree.
If a work injury aggravates or accelerates a pre-existing, non-work-related condition, the resulting disability is compensable without apportionment. This general rule applies in the instance of permanent partial disability. See Ochoa v. Aspen Ridge Lawn Maint., 75 W.C.D. 1, 8-9 (W.C.C.A. 2015). In this case, the employee’s congenital leg discrepancy of less than 1 centimeter does not result in any functional loss under the rules. The surgery necessitated by the work injury altered that condition so as to result in the functional impairment covered by this section of the rules.
The decision of the compensation judge on this issue is affirmed.
All three doctors providing opinions in this case agreed that the employee was entitled to permanent partial disability under Minn. R. 5223.0390, subp. 2, for the multiple fractures to the lumbar spine sustained by the employee in the work injury. There was no agreement on the extent of that disability under the rule. Dr. Wengler referenced subparts 2.B(1) (applicable to vertebral fractures involving posterior elements) and 2.D (multiple vertebral levels) for his rating of 13.5%. Dr. Friedland applied subparts 2.C (applicable to any other documented acute fracture) and 2.D to arrive at a disability of 7%. Dr. Collins applied subpart 2.B(1) for a disability of 10.5%, the same as Dr. Wengler, but did not apply subpart 2.D for the multiple fractures. As appellants note in their brief, the dispute between the opinions of Dr. Wengler and Dr. Friedland was whether the lumbar fractures involved “posterior elements” of the spine as opined by Dr.Wengler, or did not, as opined by Dr. Friedland. Dr. Wengler opined that the employee “sustained displaced fractures of the transverse processes (posterior elements) of the lumbar vertebra bilaterally.” (Ex. A, depo. Ex. 1.) The compensation judge considered this issue and accepted the opinion of Dr. Wengler.
Substantial evidence supports the compensation judge’s findings on this issue, and we affirm.
This section provides for a rating of disability in the case of radicular pain with “objective” radicular findings. The compensation judge accepted the opinion of Dr. Wengler on this issue. Appellants argues that there is no objective evidence of radicular findings as required by the rule. The compensation judge referenced electrodiagnostic testing done by Dr. Georgios Manousakis on May 24, 2016, which were “most consistent with bilateral S1 and left L5 radiculopathies.” (Finding 22.) Dr. Wengler was also concerned about the L5-S1 level, but read the 2014 scan as being consistent with L4-5 subarticular stenosis. While this reading was not visible on the 2016 scan, Dr. Wengler found it remained the most plausible explanation for the employee’s “very significant nerve deficit.” (Ex. A at 44, 46.)
We affirm the compensation judge’s finding on this issue.
The employee sustained a severe crush injury to his pelvis in the work injury which left him with multiple symptoms. Drs. Collins and Wengler agreed that the crush injury resulted in pudendal neuropathy and rhabdomyolysis with muscle degradation, renal shutdown, and blood clots in his legs.
Dr. Collins was of the opinion that imaging showed “trauma around the path of the pudendal nerve and potentially around the sacral plexus.” (Ex. B; Finding 26.) Based upon the employee’s symptoms, the imaging studies, and the employee’s age of 46 years, she concluded that the employee’s urinary dysfunction, manifested by “dribbling” after urination, was due to the work injury. Dr. Friedland concluded this was a “normal phenomenon in adult males.” Dr. Wengler opined that the employee had sustained damage to the pudendal nerve resulting in loss of sensation, interference with normal penile function, and intermittent bladder incontinence, and rated the employee at 5% permanent partial disability under Minn. R. 5223.0600, subp. 3.A. Dr. Collins agreed with this rating as “the closest fit” where it was “likely the supporting tissues around the bladder that are actually causing the dysfunction.” (Ex. B.)
Dr. Wengler and Dr. Collins also agreed on the rating for penile dysfunction of 10% under Minn. R. 5223.0600, subp. 6.B. Appellants claim there is no objective basis for this award because the employee did not undergo electrodiagnostic testing on the pudendal nerve as recommended by Dr. Collins, who had assessed lack of penile sensation and impaired scrota sensation. While Dr. Collins initially recommended a referral to the Mayo Clinic for nerve conductions testing, she also opined that “it is very difficult to get a formal evaluation” for pudendal neuropathy. (Ex. B.) In 2017, Dr. Collins further opined that such testing may result in multiple false negatives and that the employee did not need a nerve conduction study to show a pudendal nerve dysfunction. Dr. Wengler testified in his deposition that “there’s really no electrodiagnostic testing that can validate the complaint of pudendal nerve injury.” (Ex. A at 36.)
While both ratings under Minn. R. 5223.0600, subp. 3.A and subp. 6.B require organic disorder or dysfunction and anatomic loss or alteration, the compensation judge specifically noted in his memorandum that “‘anatomic alteration need not require gross physical changes, and . . . where more subtle changes are involved in an organic disorder, these may be demonstrated inferentially by indirect testing results.’” Danielson v. Range Reg’l Health Servs., slip op. (W.C.C.A. June 2, 2008). Substantial evidence supports the permanent partial disability ratings awarded by the compensation judge under Minn. R. 5223.0600, subp. 3.A and subp. 6.B.
The compensation judge’s findings on these issues are affirmed.
At the hearing, the attorney for the employer and insurer argued that the permanent partial disability claims made by the employee were not supported by objective evidence and did not meet the requirements of the relevant rules. The compensation judge considered that argument and, as is demonstrated by the 31 findings he made on these arguments in a 12-page Findings & Order with memorandum, carefully reviewed the medical evidence in this complicated case.
The question of permanent partial disability is one of ultimate fact for the compensation judge. See Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987); Anwiler v. Luoma Egg Ranch, Inc., 74 W.C.D. 541, 553 (W.C.C.A. 2014). We conclude substantial evidence supports the compensation judge’s determinations of the employee’s permanent partial disability ratings. The decision of the compensation judge is therefore affirmed in its entirety.