Mark Price v. Listul Erection Corp, et. al

Mark Price v. Listul Erection Corp, et. al., No. WC21-6394 (W.C.C.A. May 7, 2021).

The Employee appealed the compensation judge’s determination that he was not permanently and totally disabled. The Employee suffered a left heel injury as a result of a fall from about 15 feet on August 27, 1999. He was employed as an ironworker at the time of the injury. The claim was admitted and he underwent surgery on his heel and 104 weeks of temporary total disability was paid.

The Employee did not return to work as an ironworker. Rather, he worked a few months as a telemarketer and began attending courses in 2001 at the University of Wisconsin, Superior, to obtain a degree in structural engineering. He did not complete the program, and discontinued the education in 2010.

In May 2003 the Employee suffered a fall from a ladder while at home, suffering bilateral wrist fractures. The Employee alleged the fall resulted from the effects of the 1999 work injury. The Employee then fractured his jaw on October 13, 2003 while riding his bike.  The Employee claimed the bike accident was the result of weak wrists from the fall from the ladder, which he attributed back to the 1999 injury. The Employee previously sought benefits for the fractured jaw, which was previously denied by the compensation judge.

The Employee underwent an IME with Dr. Drogt in 2001, finding the Employee has work restrictions limited to sedentary or light-duty work.  Subsequently, Dr. Kaylor rated the Employee with a 10% PPD rating for the foot and ankle, and Dr. Hindle rated the Employee with a 2.5% rating for a nerve condition.  Dr. Drogt agreed with those PPD ratings.

The Employee underwent an IME with Dr. Strand on behalf of the Employer and Insurer in 2010, finding the Employee was not permanent and totally disabled, and found no PPD for the left ankle or lumbar spine.

In 2011, the Employee underwent an IVE with Mr. Russell, on behalf of the Employer and Insurer. Mr. Russel was unable to complete the exam due to Employee’s behavior, but found the Employee was not permanently or totally disabled.

The Employee underwent another IME with Dr. Wyard in July 2020, finding a 12.5% PPD rating, with limited work restrictions for the left heel.

In July 2020, the Employee underwent an IVE with Ms. Lowe, on behalf of the Employer and Insurer. Ms. Lowe was unable to complete testing due to the Employee non-participation. Ms. Lowe found the Employee was not capable of employment due to his cancer diagnosis and treatment, not the 1999 work injury.

The compensation judge denied the Employee’s benefits in full. On Appeal, the WCCA looked to Minn. Stat. Section 176.101, subd. 5, which states that an employee under these facts must demonstrate a PPD rating of at least 17%, as the Employee was 40 years old at the time of injury. The WCCA further noted that the Employee offered no medical evidence of a PPD rating above the 12.5%.  As such, the WCCA affirmed and found the compensation judge did not err in denying the Employee’s claim.

Takeaway: For an Employee to be awarded permanent and total disability benefits, an Employee must first meet the required statutory permanent partial disability threshold for permanent total disability benefits.