JAMES C. DREKE, Employee/Appellant,
v.
ROBERTS AUTOMATIC PRODS. and FEDERATED MUT. INS. CO., Employer-Insurer.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 28, 1999
HEADNOTES
PERMANENT
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the IME
rated the employee's cervical condition at 9.5% and there
was no objective evidence of upper extremity nerve root
specific muscle weakness, the compensation judge's
decision was supported by substantial evidence and not
clearly erroneous in not accepting the employee's
doctor's rating of 14.5% under Minn. R. 5223.0370, subp.
4D.
Affirmed.
Determined by Wheeler, C.J., Johnson, J., and Pederson, J.
Compensation Judge: Bonnie A. Peterson.
OPINION
STEVEN
D. WHEELER, Judge
The
employee appeals from the compensation judge's award of a
9.5% permanent partial disability rating of the whole body as
a result of his condition at spinal level C4-5.
BACKGROUND
The
employee, James Dreke, worked as a machinist for the
employer, Roberts Automatic Products. On July 20, 1987,
the employee sustained an admitted injury to his cervical
spine. At the time the employee was 45 years of age.
The employee underwent an anterior discectomy and
fusion at spinal level C5-6 on December 29, 1987.
Following
a period of recuperation from the surgery the employee
returned to work for the employer. The employee's
treating physician, Dr. Harry M. Rogers, a neurosurgeon,
issued a maximum medical improvement report on August 10,
1988. Dr. Rogers rated the employee's permanent
partial disability at 11.5% of the whole body under Minn. R.
5223.0070, subp. 2D, "fusion of a single vertebral level
with or without laminectomy." (Resp. Ex. 1, tab 3,
MMI report of 8/10/88.) The employer and insurer paid
this benefit.
The
employee returned to see Dr. Rogers in January 1993,
complaining of pain in his neck and left arm and some
tingling in his thumb and index finger. An MRI scan
taken on May 12, 1993 indicated "a central bulging or
herniated disc at C4-5," but Dr. Rogers did not
"see a good explanation for his symptoms down his left
arm." (Resp. Ex. 1, tab 3, office note of
5/24/93.) An EMG of the left arm was then performed on
June 28, 1993, but proved to be normal. (Resp. Ex. 1,
tab 5.) The employee was given a cervical traction unit
for home use. The employee returned to see Dr. Rogers in
May of 1994, continuing to complain of pain in his neck and
left shoulder. On May 27, 1994 a cervical myelogram and
contrast-enhanced CT scan was performed. Dr. Rogers
interpreted these tests to show "progression of his disc
disease at C4-5" with a "moderate-sized central
disc herniation effacing the thecal sac and flattening the
ventral aspect of the spinal cord." At the time of
a June 9, 1994 examination the employee indicated that he
"continues to have more and more trouble with neck and
left shoulder pain." Dr. Rogers' examination
showed no neurological deficit but did find a
"limitation of motion of his neck and tenderness in the
left trapezius area." (Resp. Ex. 1, tab 3, office
notes of 6/9/94.)
On
August 24, 1994, the employee was examined at the request of
the insurer by Dr. Joseph H. Perra, M.D. At the time of
the examination, Dr. Perra noted the following history given
by the employee:
Approximately two years ago, Mr. Dreke indicates he had
return of neck pain. This went to the left side, into
his shoulder but never really down the arm, to the hand as
his previous symptoms had. He subsequently returned to
see Dr. Rogers who had an MRI and EMG performed and this
suggested to Dr. Rogers there was central bulging at C4-5,
which he thought may be slightly more significant than years
ago. There was also some central bulging at
C3-4. He did not see any clear signs for why he was
having left arm symptoms. An EMG was obtained which was
normal. Throughout this, Mr.
...