CORNELIA BOISJOLI, Employee,
v.
LYNDALE GARDEN CTR. and FLORISTS MUT. INS. CO./CRAWFORD & CO., Employer-Insurer/Appellants,
and
GEOFFREY R. FISHER, D.C., Intervenor.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 20, 1999
HEADNOTES
PERMANENT
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. The
compensation judge's rating was supported by the
substantial evidence, including CT scan findings, medical
records, the testimony of the employee, and the medical
opinion of the employee's treating chiropractor, who
described the persistent objective clinical findings which he
had consistently observed during his treatment of the
employee and explained how the recurrence of certain
treatment modalities in his treatment notes meant that spasm
had been observed on examination on the dates of such
treatment.
MEDICAL
TREATMENT & EXPENSE - REASONABLE & NECESSARY; RULES
CONSTRUED - MINN. R. 5221.6050, SUBP.
8.D. Minimally adequate evidence supported the
compensation judge's finding that a departure from the
duration guidelines on passive care was appropriate under
Minn. R. 5221.6050, subp. 8D.
APPORTIONMENT
- PERMANENT PARTIAL DISABLITY. While there was no
question that the employee here had sustained a prior
non-work injury to the L5-S1 level of her back, substantial
evidence, including the employee's unopposed testimony
and the unrefuted medical records, demonstrated that the
employee had resumed her full activities shortly after
surgery for her prior injury and had continued to function
without any restriction or impairment until she sustained a
new work injury affecting two additional and different lumbar
levels on September 7, 1995. The compensation judge could
reasonably conclude that the new levels of injury were those
associated with the employee's current disability and
were those supporting the employee's 10 percent
permanency rating. Since Minn. Stat. § 176.101, subd. 4a
allows apportionment of permanent partial disability only by
"the proportion of the disability which is attributable
only to the preexisting disability," the compensation
judge reasonably held that the employer and insurer failed to
prove that apportionment was appropriate.
Affirmed.
Determined by Wilson, J., Pedersen, J., and Wheeler, C.J.
Compensation Judge: Jeanne E. Knight
OPINION
STEVEN
D. WHEELER, Judge
The
employer and insurer appeal from the compensation judge's
awards of reimbursement for disputed chiropractic treatment
and of permanent partial disability compensation. We
affirm.
BACKGROUND
The
employee, Cornelia Boisjoli, was born in 1955 and is 43 years
old. In March 1990, the employee underwent low back
surgery in the form of a microdiscectomy at the L5-S1 level
as the result of non work-related degenerative disc
disease. Prior to this surgery, a CT scan of the lumbar
spine was performed on December 19, 1989 and revealed a large
disc herniation with nerve compression and a migrated disc
fragment at L5-S1. Other than a slight leftward lateral
disc bulge at L3-4, no other abnormalities were found from L3
to the sacrum. Two weeks after the surgery, the employee
reported almost complete relief of her backache. She was
back to full-time employment by June 1990 and there is no
indication in the record of any continuing
restrictions. The employee also resumed participation in
active recreational activities including softball and
broomball and skiing. (T. 12, 15-19; Exhs. 3, 4; Finding
3 [unappealed].)
In 1995
the employee began working for the employer, the Lyndale
Garden Center. Her job there included occasional heavy
lifting while unloading plants, setting trays of plants on
display tables, carrying hose reels and watering cans and
carrying out large plants for customers. On
September 7, 1995 the employee sustained an admitted work
injury to her back when she heard a "pop" in her
back while moving a large display table and began to
experience pain in her lumbar back and left
shoulder. Over the next several days, she experienced
gradually increasing pain in the lower back and right
buttock, extending into her right thigh. (T.
19-25; Exh. A: 9/12/95 chart note; Finding 4 [unappealed].)
The
employee began treating chiropractically with Dr. Geoffrey R.
Fisher, D.C., on September 12, 1995. Dr. Fisher took the
employee off work until October 6, 1995, when he released her
to return to work four hours per day under
restrictions. The work aggravated her symptoms and she
was off work again from October 7, 1995 until November 10,
1995, when Dr. Fisher again released her to work with the
prior restrictions. Subsequently, the employee
progressed to six hours per day and on February 27, 1996, Dr.
Fisher released her to return to full-time duties, although
still under various physical restrictions. (Exh. A.)
Because
the employee was beginning to experience isolated periods of
loss of bowel and bladder control, a CT scan was performed on
December 5, 1995. The scan showed postoperative changes
at L5-S1, degeneration of the L5-S1 disc with marginal
spurring but no recurrent herniation, and mild...
