Wendroth v. Madsen & Sons, et. al. No. WC21-6422 (W.C.C.A. November 19, 2021).
Arthur Wendroth (“employee”) suffered an admitted work-related injury to his low back and left leg on September 29, 1977. Eventually, the employer and insurer filed a Notice of Intent to Discontinue based on the opinions of independent medical examiner Dr. Donovan McCain who examined the employee and opined that he had fully recovered. Following that, Dr. Robert Wengler assigned a 25% permanent partial disability rating to the employee’s lumbar spine on June 10, 1980. At a hearing on the NOID on August 28, 1980, the compensation judge rated the employee’s PPD of the spine at 15% with the full extent of permanency deferred for future determination. The insurer paid the 15% rating.
The parties entered into a full, final and complete settlement of any and all claims related to the September 29, 1977 date of injury (including injuries to his low back and cervical spine) with an Award on Stipulation issued on September 12, 1983. This settlement included claims for permanent total disability and permanent partial disability benefits.
The employee continued to treat following his settlement. Over time, his cervical spine became the main treatment concern, but there were degenerative changes in both his cervical and lumbar spine. In the summer of 2014, the employee fell and struck his head. He was diagnosed with a closed-head brain injury. He contended that the fall was a result of musculskeletal dysfunction related to the 1977 work injury.
Dr. Charles Burton performed an IME in September 2014 and he opined that the employee’s work injury would have been expected to be temporary in nature and involving soft tissue injuries rather than any structural injury. He opined that a Pantopaque injection that that the employee underwent in 1978 lead to post myelographic chemical meningitis and associated nerve and meningeal scarring with permanent effects. This was the first time a doctor had made a diagnosis of chemical meningitis.
Dr. Halstrom issued a report dated December 20, 2015 and he concluded that the employee’s 1977 work injury had accelerated the severe degenerative changes to the employee’s cervical and lumbar spine. He gave the employee a PPD rating of 28% of the body as a whole.
Following these opinions, the employee claimed entitlement to permanent total disability and permanent partial disability benefits based on the chemical meningitis condition.
As a part of litigation, Dr. Burton was deposed and he said at that time that he could not determine the specific etiology of the employee’s symptoms and that it was not possible to determine within a reasonable degree of medical certainty whether any of the employee’s specific symptoms were related to chemical meningitis. He also declined to rate the employee’s PPD.
A compensation judge heard the matter on August 22, 2018. The parties stipulated that the employee had sustained a consequential injury in the form of chemical meningitis due to the 1978 injection. Among the expert opinions offered, Dr. burton declined to provide a PPD rating, Dr. Wengler provided a rating of 40% to the low back using the law in effect in 1977 and Dr. Halstrom offered a 28% rating for the lumbar spine and 28% for the cervical spine.
The compensation judge found that the employee was permanently totally disabled due to chemical meningitis. The compensation judge also found that the employee’s claims were not barred by the previous Stipulation for Settlement. The judge also found that the employee was entitled to 28% PPD for his lumbar spine and 28% for his cervical spine. The employer and insurer appealed and the W.C.C.A. affirmed the decision as it related to permanent total disability, but remanded the award on PPD benefits for further findings. On remand, both parties submitted additional exhibits regarding the cause of the employee’s complaints. The compensation judge accepted these exhibits into evidence and adopted Dr. Burton’s opinion that the employee’s 1977 injury had fully resolved and that 100% of his PPD was related to the chemical meningitis. He also adopted the PPD ratings of Dr. Halstrom and denied the employee’s claims for PPD to his brain and all four extremities. The judge noted that there was no persuasive evidence that tied the disability of his other body parts to his chemical meningitis. Both parties appealed.
The W.C.C.A. found that the compensation judge could reasonably conclude that the medical records were most consistent with the opinion of Dr. Halstrom. As it related to the PPD ratings for other body parts, the W.C.C.A. held that the brain and extremity conditions were not the same conditions that affected his lumbar and cervical spine; the opinion that the compensation judge relied upon was sufficiently well-founded for the compensation judge to rely upon it. Substantial evidence supported the compensation judge’s findings and the PPD award was affirmed. The employer and insurer were unable to take a credit for the 15% PPD that was paid prior to the settlement because in the W.C.C.A.’s prior opinion in this case, they affirmed a determination that the settlement did not foreclose benefits related to the chemical meningitis condition.
Takeaway
Employers and insurers cannot take a credit for PPD previously paid to the employee for his original injury against PPD ordered for conditions found to result from a later consequential injury when the prior payment preceded the initial diagnosis of the consequential injury and was referenced in a Stipulation for Settlement related specifically to the original injury.