Weber v. Jake Bauerly, NO. WC17-6096 (W.C.C.A. February 8, 2018)
Employer and Insurer appealed the Compensation Judge’s award of six separate permanent partial disability ratings. The Employee, who was a farmhand, suffered multiple injuries when farm equipment fell on him on March 12, 2013. These injuries included fractures to the pelvis, fractures to the lumbar and thoracic transverse processes, rib fractures, and soft tissue damage.
The Employee was evaluated by Dr. Robert Wengler who opined that the Employee had suffered a total of 45.5% permanent partial disability for multiple conditions. These included 13.5% for displaced transverse process fractures, 5% for pelvic fractures, 3% for leg length discrepancy, 10% for sexual dysfunction, 5% for intermittent bladder in continence, and 10% for single level lumbar stenosis.
The Employer and Insurer acquired a report by Dr. Mark Friedland, disputing many of the ratings. He agreed with the 5% rating for the pelvic fracture. He argued that transverse process fractures qualified for 7% permanent partial disability. He rejected the 10% sexual dysfunction and 5% incontinence ratings as the Employee had no objective findings to support those rules. He also called into question the leg length discrepancy rating, noting that the Employee’s traumatic or surgical discrepancy was less than 1cm.
At hearing the Compensation Judge adopted the ratings assigned by Dr. Wengler and awarded 38.66% permanent partial rating, less any permanency previously paid.
The W.C.C.A. begins its opinion by noting that the opinions of Dr. Wengler and Dr. Friedland as well as a third doctor, Dr. Collins, rise to the level of adequate foundation for providing medical opinion. Additionally, it is the function of the Compensation Judge to choose between competing medical opinions. However, it is the obligation of the Employee to establish the elements of the permanency rules.
With respect to leg length discrepancy, the facts were undisputed. The Employee suffered from approximately 0.8cm congenital leg length discrepancy and suffered an additional 0.8cm of post traumatic leg length discrepancy for a total of 1.6cm. The Court found that the congenital 0.8cm leg length discrepancy would not result in any functional loss under the rules and that this preexisting condition was accelerated and aggravated, qualifying him for permanency based on a discrepancy of 1cm to 1.9cm.
With respect to the disagreements between Dr. Friedland and Dr. Wengler with respect to characterization of the transverse process fractures and the Employee’s spinal stenosis, the W.C.C.A. found that the record had substantial evidence to support the Compensation Judge’s award of the permanency.
Finally, the W.C.C.A. addressed the lack of objective diagnostic tests in the record by noting that this requirement is supplemented by “anatomic alteration” and notes that this can be demonstrated “inferentially by indirect testing results.” As the Employee suffered “trauma around the path of the pudendal nerve and potentially the sacral plexus” this was properly inferred. The Compensation Judge was affirmed in full.