AMY BRICKER, Employee,
v.
MY PLACE CAFE and KEMPER NAT'L INS. CO., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 30, 1999
HEADNOTES
CAUSATION
- SUBSTANTIAL EVIDENCE. Substantial evidence, including
the credible testimony of the employee and the opinions of
her treating doctor, support the finding that the employee
sustained a work-related permanent aggravation to her right
ankle on October 3, 1995.
CAUSATION
- SUBSTANTIAL EVIDENCE. Substantial evidence, including
the opinions of the employee's chiropractor and her
orthopedic surgeon, support the finding that the employee
suffered a low back condition as a consequence of her
work-related right ankle injury and subsequent surgeries.
PERMANENT
PARTIAL DISABILITY - ANKLE. Substantial evidence
supports the compensation judge's award of a presently
ascertainable, minimum 10% permanent partial disability based
on the employee's May 7, 1997 ankle fusion surgery, even
though the employee has not yet reached maximum medical
improvement for her right ankle injury.
MEDICAL
TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. The
finding that the medical care provided by the employee's
treating physician was reasonable and necessary and causally
related to the October 3, 1995 work injury is adequately
supported by the evidence.
Affirmed
in part, and vacated in part.
Determined by Johnson, J., Hefte, J., and Wheeler, C.J.
Compensation Judge: John E. Jansen
OPINION
THOMAS
L. JOHNSON, Judge
The
employer and insurer appeal from the compensation judge's
finding that the employee's personal injury of October 3,
1995 was a permanent aggravation of a pre-existing
condition. The employer and insurer also appeal the
compensation judge's finding that the employee has a
minimum 10 percent whole body disability secondary to her
injury of October 3, 1995. We affirm.
FACTUAL
BACKGROUND
The
employee, Amy Bricker, sustained a non-work-related injury to
her right ankle on April 17, 1995. (T. 101.) She
was treated by Dr. Kurt Fuchs who then referred her to Dr.
David A. Kittleson, an orthopedic surgeon. Dr. Kittleson
first examined the employee on May 17, 1995. An x-ray
showed a small fracture of the anterior lateral talar dome
with a two millimeter fragment. A repeat x-ray on June
13, 1995 was unchanged. The employee was treated for a
Grade II ankle sprain and referred to physical
therapy. When seen on August 1, 1995, the employee
complained of continued pain with walking and weight
bearing. Dr. Kittleson noted substantial swelling over
the anterior lateral ankle and tenderness over the lateral
ankle joint and lateral ligaments. The doctor
recommended an arthroscopic examination to assess the
articular damage to the lateral talar dome. (Pet. Ex.
B.)
In
September 1995, the employee began working as a waitress for
My Place Cafe, the employer, insured by Kemper National
Insurance Company. The employee testified that on
October 3, 1995, she slipped in a puddle of water and fell
forward onto her left knee. She stated she landed with
her right foot underneath her body and felt something snap in
her right ankle. (T. 38-41.) Ms. Lori Yoch, a
co-owner of the employer, was in her office doing book work
at the time. Ms. Yoch did not see the employee fall, but
assisted her to her feet. (T. 149-51.) The employee
stated she did not complete her shift and went home after the
fall. (T. 41-42.) Tammy Kreitz, a co-worker,
testified that prior to October 3, 1995, the employee
intermittently complained of right ankle problems and
limped. She worked with the employee on October 4, 1995,
and testified the employee did not limp or complain of ankle
pain until after Ms. Yoch arrived at the
restaurant. (Resp. Ex. 10 at 5-8.) The employee did
not work on October 5 and was terminated on October 6,
1995. (T. 159.)
On
October 10, 1995, the employee was seen by Dr.
Kittleson's associate, Dr. Arnulf Svendsen. (T.
115-16.) She told the doctor she reinjured her right
ankle a week ago when she slipped and fell at My Place
Restaurant. X-rays showed "a little more
fragmentation of the osteochondritic lesion in the superior
lateral aspect of her talar dome." (Pet. Ex.
F.) The employee returned to see Dr Kittleson on October
18, 1995. He compared the x-rays taken on October 10,
1995 with the x-rays taken on June 13, 1995, noting there had
been a very dramatic change since that time. He
concluded the employee reinjured her right ankle on October
3, 1995 with "a definite change of further fracturing
and fragmentation of loose bodies within the
joint." The doctor recommended arthroscopic surgery
to remove the loose fragments and assess the integrity of the
talar joint surface. (Pet. Ex. B, F.)
On
December 14, 1995, the employee was examined by Dr. Mark
Thomas at the request of the employer and insurer. Dr.
Thomas obtained a history of the employee's injuries on
April 17, 1995 and October...
