The compensation judge found that the employee was not entitled to additional permanency, as the employer and insurer previously paid the employee for a right shoulder injury (6% for a right rotator cuff tear and 3% for a clavicle resection).
Dr. Szalapski, IME doctor for the employer and insurer, opined that the employee would be entitled to a 6% permanency pursuant to Minnesota Rule 5223.0450, subp 3A(2). The WCCA pointed out that Dr. Szalapski’s opinion was inaccurate because the rule cited is only applicable for dates of injury up to August 8, 2010, and the date of injury in this case was December 13, 2010.
The employee appealed the decision by the compensation judge to adopt Dr. Szalapski’s opinion arguing that the additional 14% permanent partial disability rating given by Dr. Klapach (the treating doctor) for loss of range of motion/function was appropriate.
The court reversed the decision by the compensation judge and found that the employee was actually entitled to the additional permanent partial disability in accordance with Dr. Klapach’s opinion because Dr. Klapach actually performed the objective testing necessary to establish the loss of range of motion using a goniometer and doing so in three different arcs of range of motion. The court found that Dr. Szalapski’s opinion did not address the employee’s range of motion and because it cited the incorrect rule, it was without adequate foundation to support either a claim for the employee’s permanency or a defense to it. Finally, the court found that there is no reason to remand, as the only opinion with substantial evidence was Dr. Klapach’s opinion and a remand for additional findings would be unnecessary.