Allen v. RD Offutt Co., No. WC14-5667, (Aug. 12, 2014)
This is a case in which the compensation judge rejected the employee’s claim for permanent and total disability because the permanent partial disability threshold under Minn. Stat. §176.101, subd. 5, was not met. The employee was 48 years old and sustained a low back injury on Sept. 28, 2010.
Judge Cannon found that the employee had no more than 10% permanent partial disability for his low back injury and, because of his age at the time of the injury, he would need to establish a 17% permanent partial disability to meet the threshold for a permanent and total disability claim.
But, the WCCA pointed out that the employee did claim an additional 10% permanency as a result of loss of teeth under Minn. Rules 5223.0320, subp. 7, and that this PPD rating could be combined along with the work-related permanent partial disability rating to satisfy the 17% threshold under Minn. Stat. §176.101, subd. 5(2)(a).
Judge Cannon found that the non-work related disability could not be used to meet the permanent total disability threshold and denied the employee’s claim for failure to reach the 17% threshold.
This case was reviewed by the WCCA under de novo standard of review because it was dealing with a question of law.
The WCCA found that Frankhauser is the appropriate case through which to evaluate this issue and even though the employer agreed with the basic holding of Frankhauser, the employer argued that the permanent partial disability must actually represent a functional loss that affects a claimant’s employability before it can be combined with the work-related permanency to meet the threshold for PTD benefits. The employer argued that the claimant did not have any disability due to the loss of his teeth given that he uses dentures and this has no negative impact on his employability. The WCCA noted that PPD ratings and payments are to address loss or impairment of bodily function and there’s no pre-requisite to show loss of employability.
The WCCA rejected the employer’s request to change longstanding case law and found that because PPD is determined by a schedule and is a function of the statute, any mitigation available such as dentures for loss of teeth doesn’t lower the rating. Thus, permanent partial disability for non-work related conditions can be added to work related permanent partial disability to meet the threshold in order to meet the requirements of the permanent total disability statute.
This case was remanded to address the additional requirements and findings necessary for entitlement to permanent total disability benefits.