GARY FEEST, Applicant
DELZER LITHOGRAPH COMPANY, Employer
CONNECTICUT INDEMNITY COMPANY, Insurer
Following a hearing on May 23, 2005, with close of record on August 3, 2005, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter on December 22, 2005. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ and it adopts the findings and order in that decision as its own, except that it makes the following modifications:
1. Delete the last two paragraphs of the ALJ's Findings of Fact and substitute:
"The applicant claims medical treatment expenses in Exhibits F and G. Other than the claimed whirlpool expense, the expenses, as far as they pertain to the treatment of the applicant's neck and cervical spine, are found to be reasonable and necessary to cure and relieve the effects of the work injury. Consequently, the employer and its insurer are liable for the payment of those expenses.
"However, the exhibits also contain expenses related to the back. (Dr. Saini, for example, administered epidural injections in the lower back in January 2004.) While the hearing application includes a claim for a back injury, the applicant has not offered expert medical opinion to establish an injury causing the need for treatment to the back. The respondent is not liable for expenses other than for treatment of the neck and cervical injury on this record.
"The record does not include an opinion from a medical doctor on the necessity of a whirlpool. In Widiker v. Hoffman Construction Co., WC Claim No. 1993061724 (LIRC, December 29, 1999), the commission held that by providing or recommending treatment for an injury, a doctor effectively opines that the treatment provided or recommended was reasonable and necessary, if the injury treated ultimately is determined to be compensable under the worker's compensation laws; the commission ordinarily presumes that doctors do not provide recommend unreasonable or unnecessary expense. This would include devices or medicines prescribed by the doctor. Here, however, the prescription for the whirlpool is from Earl Beam, a physician's assistant. See last page of Exhibit F. Physicians' assistants are not included among the practitioners who may opine on necessity of treatment under Wis. Stat. § 102.18(1)(d)1. The claim for the expense of a whirlpool is left interlocutory to allow the applicant the opportunity to get a prescription for the whirlpool from a practitioner listed under Wis. Stat. § 102.18(1)(d)1. Further, the insurer may contact the practitioner to obtain an opinion about the specific type of whirlpool or other device prescribed, if in fact the practitioner prescribes a whirlpool or similar device.
"Accordingly, the employer and its insurer shall pay the medical expenses documented at Exhibits F and G, except for any treatment expense they may identify as not related to the neck and cervical injury and for the expenses related to the whirlpool.
"This order shall be left interlocutory to allow the applicant to bring claims for disability or medical expenses arising after the date of the hearing related to his cervical and neck injury, and to allow the applicant to provide an opinion on the necessity of a whirlpool or similar device to cure and relieve the effects of the work injury. This order also is not final to any claim related to the unproven back injury."
2. Delete the clause after the final semicolon in the ALJ's Interlocutory Order, and substitute:
"that jurisdiction is reserved for further orders as are consistent with this decision."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed May 9, 2006
feestga . wmd : 101 : 4 ND 5.46
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Posture; background.
The employer and its insurer (collectively, the respondent) do not dispute the occurrence of a work injury requiring treatment, including a cervical fusion to cure and relieve the effects of the injury. These questions were resolved in a decision by ALJ Krueger after an earlier hearing in June 2003. Nor do the parties really dispute the extent of the doctor-rated, that is, functional, permanent partial disability. At issue now is the extent of vocational disability -- whether the applicant is permanently and totally disabled on a vocational basis or has suffered a less-than-total loss of earning capacity-which, in turn, depends largely on the work restrictions set by the medical experts and the opinions given by the vocational experts on those opinions.
Dr. Maiman, of course, has indicated the applicant could work part-time in sedentary work. Exhibit D from the June 26, 2003 hearing, practitioner's report. His note, when he set the permanent restrictions in 2003, indicated the applicant had neck and arm pain aggravated by even minimal physical activity, including neck bending, twisting, pushing, and pulling. His note does, however, suggest the possibility of improved function with rehabilitation or therapy, both in January 2003, a comment he reiterated in a February 10, 2005 letter to Dr. Reshel at Exhibit D.
On examination in September 2004, respondent-retained Dr. Robbins noted the complaints of chronic neck pain and low back pain. The neck pain was aggravated by overhead activities, while the low back pain was aggravated by repetitive bending, lifting, standing, and walking. The doctor noted a limitation by pain in extremes of motion, but a normal neurologic examination in the upper extremities. Dr. Robbins opined the applicant was capable of full time work with a 25-pound lifting limit. May 2005 hearing, Exhibit 1. Dr. Robbins does not suggest the applicant is malingering or inventing pain, though he does note that the pain the applicant has cannot be explained by MRI or even the discogram, so he recommended against the repeat surgery advocated by Dr. Ahuja.
The applicant's testimony about his current condition is at page 31 of the transcript. He testified he tries doing things around the house -- dusting or folding laundry -- but has to stop and take sitting breaks, lie on the couch, or take naps. He indicated he had trouble lifting 25 pounds, and said he does not try it often.
The applicant's vocational expert is Joan Tompsett. Based on Dr. Robbins restrictions, she suggests that the applicant would have a 70 to 75 percent loss of earning capacity in employment, such as security guard, usher ticket taker, cashier, retail salesperson, hand packager, and parking lot attendant. This work averages $8.33 per hour. This compares to a $24.51 per hour wage in 1999, which was the applicant's highest, and $16.68 in 2000, which the applicant earned while in an apprenticeship/retraining program for pre-press work (or MAC operating and desktop publishing work) that uses the more modern technology. Had he completed the retraining as pre-press operator, the applicant would now be earning journeyman's wages of $24.77 per hour. May 2005 hearing, Exhibit C.
Based on Dr. Maiman's restrictions, Ms. Tompsett opined the applicant was permanently totally disabled. She noted that had he completed his retraining, he might have been able to find desktop publishing work, as this is only sedentary. But he was only three months into his three-year pre-press apprenticeship retraining when he was hurt, so it is unlikely he would be able to complete that program. Ms. Tompsett also indicated that the restrictions set by Dr. Maiman precluded a return to his former work, even assuming the older technology jobs were still available and that, indeed, the applicant would be capable of so few jobs under his restrictions set by Dr. Maiman that a reasonably stable market for them does not exist.
The respondent's expert is Barbara Lemke. Based on Dr. Robbins' full time, 25-pound restriction, Ms. Lemke estimated a 55 to 60 percent loss of earning capacity. The applicant would be able to obtain work in production worker and clerical work paying from $10 to $15 per hour, resulting in a 50 to 55 percent wage loss. She suggested that, had he not removed himself from the printing industry, he could find lighter work in that industry, such as in sales, product planner, estimator, or customer service, which would have paid about $19.00 per hour, resulting in a 25 to 35 percent wage loss.
Even based on Dr. Maiman's restrictions, Ms. Lemke opined that the applicant would be able to find work as a sales worker, in clerical work, and as an assembler or packager. According to her figures, nearly 1,000 of these jobs would open annually in the Milwaukee labor market. She opined he would have an 80 to 85 percent loss of earning capacity. She added that if he had not retired, he would be able to work in the printing industry in some capacity, and his wage loss would only be 60 to 65 percent.
2. Discussion.
a. Extent of disability
The ALJ adopted the restrictions of Dr. Robbins. He explained that Dr. Maiman's evaluation of the applicant in 2005 was similar to Dr. Robbins' evaluation in 2004. He added that he felt figures of the respondent's expert, Ms. Lemke, were most reasonable, and so awarded loss of earning capacity at 55 percent. The applicant appealed.
The commission affirms the ALJ's loss of earning capacity award. The ALJ, of course, observed the applicant as he testified about his current condition and concluded that his capacity was more in line with Dr. Robbins' work restrictions than Dr. Maiman's. While there may be some debate on the extent to which Dr. Maiman's findings on examination in February 2005 were similar to Dr. Robbins' findings in September 2004, Dr. Maiman did state that the applicant was functional in February 2005. Further, when Dr. Maiman set the part-time sedentary work restrictions, and again on evaluation two years later, he specifically suggested that the applicant could improve his function with therapy or rehabilitation.
Given Dr. Robbins' restrictions, Ms. Lemke's 55 to 60 percent loss of earning capacity rating is more reasonable than Ms. Tompsett's higher rating. In comparison with Ms. Lemke's opinion, the commission believes Ms. Tompsett underestimates the applicant's post-injury wage at $8.33 per hour with the effect of increasing the loss of earning capacity. Further, while the applicant was laudably undergoing retraining to adapt to a new technology, the need for the retraining itself raises some question about his expected future earnings had he not been injured and remained in the printing industry.
The applicant raises the recent decision in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 173, 682 N.W.2d 29. The applicant suggests that he has made a prima facie case of odd-lot unemployability, shifting the burden to the employer to prove that jobs exist for the applicant. The respondent's response, reasonably, is that since the ALJ credited Dr. Robbins' restrictions, the applicant has not really made a prima facie case of odd-lot unemployability. As the respondent points out, even the applicant's vocational expert opined that the applicant was not odd-lot under Dr. Robbins' restrictions. Because the commission, like the ALJ, credits Dr. Robbins restrictions, the prima facie case analysis does not arise.
b. Medical expenses
On appeal, the applicant also questions the ALJ's medical expense award. These concerns are addressed in the material inserted by amendment into the ALJ's decision.
cc:
Attorney Israel Ramon
Attorney David Topczewski
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]
uploaded 2006/05/24