Dreke v. Roberts Automatic Prods., 042899 MNWC,

Case DateApril 28, 1999
CourtMinnesota
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.
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