In March of 2010, a hearing was held before an Administrative Law Judge over several requested changes to the permanency schedule. Written comments were submitted to the Judge and a report was issued.
The full report issued on April 9, 2010, can be found here.
Unfortunately, the rule changes do not fall in favor of the injured worker.
RSD (Reflex Sympathetic Disorder) or CRPS (Complex Regional Pain Syndrome
According to the National Institute of Neurological Disorders and Stroke (NINDS), RSD is “a chronic pain condition that is believed to be the result of dysfunction in the central or peripheral nervous systems.” RSD usually affects one of the extremities (arms, legs, hands, or feet). The primary symptom of RSD is intense, continuous pain, however, there are a variety of pain symptoms that can be related to a diagnosis of RSD. The WCCA even stated “that a diagnosis of RSD may often be difficult. The condition is marked, at least initially, by complaints of intractable pain which may not have an easy explanation.” Most injured workers diagnosed with this condition are typically left with severe, chronic pain and other symptoms – swelling, excess sweating, change in skin color and temperature – after what may have been a fairly minor injury. This ultimately results in long term chronic pain management.
Now, under the present permanency schedule, the employee must have at least five of the eight listed conditions concurrently in the affected upper or lower extremity:
edema, local skin color change of red or purple, osteoporosis in underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulations, reduced passive range of motion in contiguous or contained joints, local alteration of skin texture of smooth or shiny, or typical findings of reflex sympathetic dystrophy on bone scan. (See MN Rule 5223.0435 (2009)).
However, under Stone v. Harold Chevrolet, it is not necessary to have all five factors to establish a permanency rating under Weber. Conversely, under the current schedule, if at least five of the eight conditions are present and persist despite treatment, the rating for mild RSD and cognate conditions is 25% of the rating for amputation of the involved member; 50% of the amputation rating for moderate RSD; and 75% of the amputation rating for severe RSD.
The changes as accepted “provides a new way of rating the named conditions and eliminates the requirement that five of the eight listed conditions must be present.” Instead, it bases the permanency on motion loss, sensory loss, vascular loss, or motor loss. As well as limiting, the RSD to “at most” amputation of that body part.
The Administrative Law Judge relied on Dr. Joel Gedan, a neurologist, for support of the above changes. Dr. Gedan submitted extensive commentary regarding proposed changes to this rule part. Dr. Gedan commented that the proposed amendment downplays the importance of a diagnosis-based impairment rating, and focuses instead on the functional outcome.
These changes will affect the injured worker and will ultimately reduce the permanency that is potentially awardable for RSD. It is unfortunate that the permanency is capped at amputation, as I have known injured workers who are suffering from this condition and would prefer amputation over the debilitating pain.
Rotator Cuff Repair/ Shoulder Surgery
Prior to the approved amendments, rotator cuff repair warranted between a 2% to 6% PPD rating for the surgery. However, under the new changes, a surgically repaired shoulder with no persistent tear would result in a 0% PPD rating.
So what does this mean?
If the doctor says “your healed” after a rotator cuff surgery, you get a 0% PPD despite the anatomic changes made to your body. Now, the Department of Labor and Industry indicated it is possible that there could be a persistent loss of function (ratable under Minn. R. 5223.0450 subpart 4) regardless of whether the anatomic defect has been repaired which could allow for some PPD; however, the successful surgery would warrant nothing.
Unfortunately, the proposed changes fail to take into account the damage to the body as a result of the tear and subsequent surgery. Dr. Stember, who provided evidence on this issue at hearing, suggested that a rating should be added for arthroscopic debridement of the glenohumeral joint because a surgical procedure typically results in adhesion formation, which creates tissue that is weaker, less flexible and neurologically hypersensitive. Despite the medical evidence, the Administrative Law Judge disregarded his statement.
As well, Mark Olive, a petitioner’s attorney, commented in a written submission, that the potential effect of this proposed rule part would be that injured workers will avoid surgery to receive PPD benefits. Incidentally, the Department responded that it is unlikely that an injured worker will refuse surgery that would restore function to the shoulder to obtain a PPD rating or increase the rating.
Overall, these changes depict a “slow,” but ever increasing, erosion of workers’ compensation benefits available to the injured worker in Minnesota.