SAMUEL BURNS, Applicant
CARGILL INC, Employer
BIRMINGHAM FIRE INS CO OF PA, Insurer
In July 2004, the applicant filed an application for hearing seeking ongoing compensation for temporary disability and medical expense from an injury on March 31, 2003. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 18, 2005. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $530, that the applicant sustained a compensable accidental injury to the low back on March 31, 2003, and that medical expense was properly paid for that injury to July 3, 2003. The respondent also paid some disability compensation, but contended that was through mistake of fact. At issue was the nature and extent of disability beyond that conceded including specifically the applicant's claim for temporary total disability from December 9, 2003 to the date of hearing, the respondent's liability for additional medical expenses, and whether an interlocutory order is appropriate.
On August 8, 2005, the ALJ issued his order denying the claim for additional disability compensation, but allowing the claimed medical expense to the date of the hearing. Both parties appealed.
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 makes the following:
The applicant sustained a conceded injury on March 31, 2003, when lifting a steel plate with two other workers. The plate had a counterweight under it, which was free to slide to the lowest end of the plate. The men intended to lift the plate evenly so the counterweight did not move. However, as the men lifted the plate, one of the other workers apparently did not get his side up quickly enough, and the counterweight shifted to the applicant.
The applicant estimated that, together, the plate and counterweight weighed 375 pounds. When the weight shifted to his side, the added weight caused him to go down to his knees on the ground in a kind of twisting motion. He felt a "cold water sensation" from his tail bone or hips all the way up his back. He had difficulty straightening up, and reported the injury to his supervisor.
The applicant first saw James B. Foster, M.D., of the Kenosha Medical Clinic on April 1, 2003. He reported that the applicant had pulled his lower back at approximately 9:00 a.m. the prior morning when he lifted a piece of machinery with two other people and twisted at the same time. The doctor noted a prior back injury four years earlier, and measured his range of motion. His diagnosis was low back strain, for which he prescribed medication.
When he returned to the doctor on April 7, 2003, he reported right side pain, including burning down his right leg. The doctor's assessment was mechanical low back pain, with some increased subjective complaints. On follow-up on April 14, 2003, the doctor noted low back pain with radiculopathy. The applicant told his doctor on April 23 that his pain was much worse following therapy, and the doctor's diagnostic impression was low back strain with lumbar radiculopathy. The doctor planned to order an MRI.
When the applicant returned to Dr. Foster on May 7, 2000, the doctor reported what I believe to be an essentially normal MRI showing minor degenerative change, and a very slight central bulge and paracentral right bulge with no nerve root encroachment. The doctor's assessment was low back pain with "may be a mild radicular [complaint.]"
On May 22, 2003, the applicant saw Chris Noonan, M.D., on referral from Dr. Foster. Dr. Noonan noted he was seeing the applicant for complaints of right-sided back and buttock pain, with radiation into the groin, anterior thigh, and posterior calf with extension into the foot and intermittent numbness in the foot. He described the MRI as showing a bulge at L5-S1 off to the right. His diagnostic impression was lumbar strain, and right lumbar radiculopathy. He recommended continued physical therapy, with a possible steroid injection, for what he thought was a self-limiting injury.
On May 23, 2003, Dr. Foster again noted a lumbar strain with right lumbar radiculopathy. On June 12, 2003, the applicant told Dr. Noonan he had a fair amount of discomfort which the doctor diagnosed as persistent lumbar strain with mild radiculopathy. However, on June 13, 2003, Dr. Noonan described the condition as "resolving radiculopathy."
Indeed, Dr. Foster's notation for June 26, 2003 was:
Feels great -- wants to return to work --
PE - Flexion 90º
Ext 25
Ø pain
A/P Lumbar strain - resolved - RTW 6/27/03
During this visit, the doctor noted the applicant was scheduled to see Dr. Noonan on July 3, 2003.
When the applicant saw Dr. Noonan on July 3, 2003, the doctor noted that the applicant was doing very well, with a pain average of one or two on a scale of ten. He noted the applicant did have low back pain with some burning down the right leg, and some occasional tingling in the right leg. The doctor noted, too, that the applicant had been released to work in full duty by Dr. Foster. Diagnosing "improved lumbar strain with right lumbar radiculopathy" he released the applicant to return as needed. He added that:
I have given him a release for his regular duties. I assume that Dr. Foster will be managing his care.
The applicant testified he returned to work and did his regular duties for a couple of months, in July and August 2003. He testified he had difficulty doing his work, but did not complain. Transcript, page 54. He stated that his condition got worse and worse into September, to the point where he had to slow down, so he went to see a doctor for restrictions.
The applicant then went to see Jim McClure, M.D., his family doctor. Dr. McClure completed a "workman comp form" on September 25, 2003, which refers back to the March 31, 2003 injury at work when the applicant pulled his back. The doctor noted the applicant felt a sudden discomfort in his back when lifting a 300 pound steel plate with two other workers. The doctor also noted the applicant had undergone extensive therapy and had numbness down the right leg.
On September 29, 2003, the applicant returned to Dr. McClure seeking a release from work. The doctor noted the applicant continued to have severe pain, and difficulty functioning at work due to the pain. He mentions specifically pain down the right leg and numbness in the anterior thigh. He also listed a diagnosis of a herniated lumbar disc.
On October 14, 2003, Dr. McClure again saw the applicant, this time diagnosing lumbar radiculopathy and lumbar disc disease. He noted complaints of pain in the back and right leg, and discussed the need for eventual surgery. He also wrote "no work" on his note for this date.
On November 18, 2003, diagnosing "herniated lumbar disc" and "lumbar disc disease" the doctor suggested a follow-up MRI. The applicant continued to see Dr. McClure for his complaints. The doctor evidently continued to keep him off work; his note for February 9, 2004 says the applicant was "currently unable to work 2ndary to medical condition."
When the applicant did not improve, Dr. McClure referred him to Jonathan Citow M.D., whom he saw in February 2004 He noted the work injury, and described the April 2003 MRI as being remarkable for mild L5-S1 degenerative disc disease, but no significant pathology. He thought the applicant was likely suffering from intrinsic right hip pathology. In a letter to Dr. McClure, in fact, he described the MRI as relatively normal, so that he could not explain the radiating pain through the hip to the knee. He recommended an epidural injection.
The injections were done by Anwulio Okoli, M.D. Dr. Okoli saw the applicant first on May 17, 2004, and noted history of low back pain of a year's duration, as well as a history of neck pain with left arm pain radiation. The doctor did fluoroscopically-guided injections to both cervical and lumbar facet joints. The doctor did another round of injections two weeks later on June 7, 2004. The doctor noted continuing pain in June and July, and in August 2004 performed caudal epidural steroid injections with fluoroscopy.
Meanwhile the applicant returned to Dr. Citow on a couple of occasions. The doctor described the neck pain as resolved (April 2004) and said the applicant continued to have diffuse neck and back pain, with radicular symptoms (December 2004). On both occasions he described the MRI as normal, and indicated the applicant did not have a surgical lesion; hence his referral for pain management.
Dr. Okoli's subsequent notes refer to pain into January 2005. At this point, Dr. Okoli referred the applicant to Timothy S. Staacke, M.D., for proactive discography. Dr. Staacke saw the applicant on January 6, 2005. He noted the occurrence of the work injury, and his subsequent complaints. Dr. Staacke, noted, too, that the applicant had been off work since December 2003. The applicant told the doctor his primary pain was localized low back pain, with extension into the right gluteal, with intermittent burning pain extending down his right lower extremity into his foot.
Dr. Staacke noted the applicant had undergone EMG and nerve studies, and reported that the applicant told him he had nerve injury to the S1 nerve root. Dr. Staacke referred, too, to a December 2004 MRI (this would have been done only recently) which showed mild degenerative changes at L4-L5, and a mild paracentral bulge at L5-S1. His diagnosis was low back pain, etiology unclear. The doctor stated the applicant had some mild degenerative disc disease, but that the primary clinical manifestation was myofascial pain. He went ahead and scheduled the discography.
This was done in February 2005, and it showed abnormal disc morphology at the L4-5 level with annular degeneration and contrast extravasation into the epidural space. There was also an irregular abnormal appearing disc at L5-S1 with a broad-based disc bulge. The applicant evidently did not have any concordant pain findings but Dr. Staacke nonetheless thought a surgical evaluation was warranted.
Dr. Staacke then referred the applicant to Sandra L. Shumaker, a certified nurse practitioner, on March 9, 2005. Ms. Shumaker noted the applicant's injury on March 31, 2003, and that he had been off work since December 2003. She did an examination and considered the MRI and discogram studies. Her assessment was
1. Low back pain with unclear etiology. There certainly could be facet related discomfort.
2. Bilateral paresthesias of unknown etiology.
She wanted to refer the applicant back to Dr. Staacke for diagnostic medial branch blocks at L4-5 bilaterally. Apparently to distinguish between the question of a facet related pathology and an intrinsic left hip pathology, she ordered a bone scan. Further, she recommended physical therapy, and lumbar spine x-rays, and a corset. Ms. Shumaker did not feel the applicant was a surgical candidate, at least not without further evaluation.
On the question of the applicant's ability to return to work while treating, the respondent brought in the employer's assistant facility manager, Dominic Garcia, who testified that the applicant worked light duty until his release by Drs. Foster and Noonan in June 2003, and regular duty until September 2003, when he came in complaining of pain. Mr. Garcia testified he told the applicant he had been released to full duty (which Mr. Garcia said seemed a surprise to the applicant.) Shortly thereafter, Mr. Garcia said, the applicant brought in a new set of restrictions, which the employer accommodated until December 2003, when the applicant went off work altogether. Mr. Garcia added that the employer would have accommodated restrictions had the applicant brought them in thereafter, testifying that the employer would even have accommodated a 10-pound lifting restriction from an off-duty injury.
Meanwhile, as described in more detail below, the respondent's examiner, Dr. Yuska, opined in November 2003 the applicant could work subject to occasional lifting restrictions of up to 35 pounds, and frequent lifting up to 25 pounds, with limited bending and twisting of the spine. On February 4, 2004, the employer sent the applicant a letter stating:
You have been off work since 12/9/03. The last Doctors note received dated 12/9/03 stated you still were not able to perform any work. However, this is not consistent with the independent medical examination completed on 11/6/03. Therefore, we do not have a clear understanding of your continued absence from work.
Please contact us on or before Wednesday, February 11, 2004 to discus your employment status.
Exhibit 8. Thereafter, on February 19, 2004, the applicant's attorney responded by letter indicating the applicant was off work on his doctor's restrictions. Exhibit 9.
The record also contains expert medical opinion regarding the cause and extent of the applicant's disability.
Treating doctor McClure's November 2004 practitioner's report is at exhibit B. Regarding cause, he refers back to an attached September 25, 2003 note; the doctor's "Workman Comp Form" from that date as outlined above describes the March 31, 2003 injury, when the applicant "pulled his low back." Regarding diagnosis, the doctor attached his November 23, 2004 treatment note which diagnosed cervical radiculopathy, cervical disc disease, and acute SL radiculopathy.
Dr. McClure went on to opine that the applicant's disability was caused directly by the work injury, or because the accidental event aggravated, accelerated and precipitated beyond normal progression a pre-existing degenerative condition. He did not know when the applicant would be able to return to work subject to either permanent or temporary restrictions, did not know if permanent disability would result, or what the prognosis was. He did indicate that further treatment (pain medication, physical therapy, injections, and continued specialist referrals) was expected.
The applicant submitted a practitioner's report from Dr. Okoli as well (exhibit A, dated June 23, 2004.) This report was similar to Dr. McClure's indicating it was unknown when the applicant could return to work under even temporary restrictions or whether he would have permanent partial disability. Dr. Okoli attaches a sheet which includes a diagnosis of lumbosacral radiculopathy.
The applicant also submits a report from Dr. Staacke, who refers to his notes for a description of the accidental event to which the applicant attributed his condition, and for his diagnosis. Dr. Staacke's initial diagnosis was low back pain of unknown etiology; his later impression was abnormal disc morphology at L4-5 and L5-S1. Regarding temporary work restrictions and permanent partial disability, the doctor stated the applicant needed a formal work evaluation by an occupational physician. He described the applicant's prognosis as undetermined.
The respondent retained Kenneth Yuska, M.D, to examine the applicant. Dr. Yuska initially examined the applicant on October 21, 2003, with a November 6, 2003 report (exhibit 1.) He gave this synopsis:
Mr. Burns is a 45-year old man who is tall, thin, and has signs of radicular pain. The magnetic resonance imaging is suspicious for a right-sided disc protrusion at L5-S1. He also has symptoms of groin pain consistent with the abnormalities at L2-3. Several of his physicians have recommended exercises, physical therapy, epidural steroid injections, but these have not been carried out. The neurologic deficit is quite subtle, but he has pain with moderate straight leg raising on the right side at 40 degrees. The magnetic resonance imaging studies have shown pre-existing degenerative changes as evidence by the multilevel nature of his disc degeneration.
The doctor's diagnosis was a lumbar strain with radicular pain, consistent with a mild disc protrusion at L5-S1. He believed the applicant's then-current (October 2003) condition was causally related to the work incident, explaining:
...there was an acute onset of pain causing him to go for professional care within 24 hours of twisting while lifting on a steel plate. In my opinion, the history of lifting and twisting resulted in at least a temporary aggravation of his pre-existing degenerative changes as evidenced by the magnetic resonance imaging.
This man has had little or no treatment. It is hoped that his symptoms will abate once he has a satisfactory course of physical therapy and one or more epidural steroid injections.
For treatment, the doctor recommended retrying physical therapy (noting a bad experience with prior PT visits. He also recommended epidural steroid injections (as of the date of this report Dr. Okoli had not yet performed them), noting that the MRI did not show a large disc herniation that demanded immediate attention.
Dr. Yuska wanted to reevaluate after the injections were tried. Meanwhile, Dr. Yuska felt the applicant could work subject to occasional lifting restrictions of up to 35 pounds, and frequent lifting up to 25 pounds, with limited bending and twisting of the spine. Dr. Yuska stated these restrictions would remain in effect for three months. Assuming the applicant tried the therapy and underwent the injections, the doctor felt the end of healing would be about six weeks after the last injection. Otherwise, he set an end of healing as of the date of his examination on October 21, 2003.
Dr. Yuska then reexamined the applicant on April 30, 2004 with a report dated May 7, 2004, by which time the applicant had undergone the epidural steroid injections. In his report from this examination (exhibit 2), Dr. Yuska noted four injections, which provided only temporary relief with the last one being six weeks earlier. Regarding causation, the doctor stated he believed the applicant suffered a temporary aggravation of his pre-existing degenerative lumbar condition due to the work injury. As evidence of the temporary aggravation, the doctor noted he sought treatment within a day of the injury, and that he had persistent symptoms -- including radicular symptoms -- that remained even after treatment. The doctor explained:
Based on the fact that he had symptoms immediately after the injury, in my opinion, this is a temporary aggravation of that pre-existing condition. He believes that there was no prior back pain before this and the medical records do no show any treatment prior to this incident.
In my opinion, this is a temporary aggravation based on the chronic nature of the radiographic findings, also the fact that the straight leg raising is negative in the sitting position. The range of motion findings are consistent with the degenerative changes.
Although he believes that there is no pre-existing problem before this injury, this is not consistent with the physical findings and the x-ray, which show a degenerative-type low back situation.
Dr. Yuska went on to state that he believed the applicant had reached an end of healing as of the date of the April 30, 2004 examination. He set out a work restriction of a maximum 50 pound lift, and a frequent lift of 30 pounds, but reiterated this was due to the non-work-related degenerative condition, not the work injury. He did not feel that any permanent partial disability was warranted, explaining that the applicant's subjective complaints exceeded the objective basis therefor, that no neurological deficit has been identified, and that his ongoing complaints were consistent with a pre-existing degenerative condition rather than an acute injury.
In another follow-up report dated June 15, 2004, (exhibit 3), Dr. Yuska made it clear that the April 30, 2004 healing plateau date was for the temporary aggravation, not the underlying degenerative condition itself. He added that no treatment for the aggravation would be necessary after April 30, 2004.
In another follow-up report dated December 21, 2004, the doctor stated the cervical complaints -- for which the applicant does not seek compensation -- were not related to the work injury. In another follow-up report dated February 2, 2005, Dr. Yuska reiterated his April 30, 2004 healing plateau date. He again stated the work restrictions he had set earlier, 35 pounds occasional, 20 pounds frequent lifting. He felt the applicant could have returned to work subject to those restrictions on September 30, 2003, even before the end of healing.
The main issue before the commission is the extent of disability, specifically, the applicant's claim for temporary disability ongoing to the date of hearing. After reviewing the record, the commission credits Dr. McClure's opinion that the applicant has not finished healing and could not work from December 9, 2003 to the date of hearing.
Drs. Foster and Noonan suggested an early end of healing in June or July 2003. However, the applicant credibly testified he experienced a reexacerbation of pain upon returning to work thereafter. This is borne out by the opinion of the respondent's medical expert, Dr. Yuska, who concluded the applicant did not recover from the work injury as early as July 2003. Rather, Dr. Yuska felt further treatment was warranted for the work injury in October 2003, and did not set an end of healing until months after that initial examination.
Dr. Yuska did, of course, opine that the applicant reached an end of healing from the "temporary aggravation" on April 30, 2004. The applicant still has symptoms. Dr. Yuska does not say these symptoms are invented -- indeed they seem supported by the discogram findings -- but instead suggests they are from the pre-existing degeneration not the work injury. While Dr. Yuska contends the applicant must have had pre-injury symptoms given the pathology on the MRI scans, there are no medical notes indicating prior complaints, even in the early pre-injury notes, of any significant complaints before the injury. Transcript, page 42. Like the ALJ, who saw the applicant testify and credited his complaints of ongoing symptoms from the work injury and so ordered medical expense to the date of hearing, the commission is satisfied that the applicant did not end healing as of April 30, 2004, but in fact remained in a healing period to the date of injury.
Dr. Yuska also suggests that the applicant could have worked as of September 30, 2003 in light duty, and Mr. Garcia's testimony suggests the employer could have accommodated that restriction -- raising a possible defense under Wis. Admin. Code § DWD 80.47 based on the provision of work within the applicant's restrictions. The applicant, on the other hand, claims that even if the commission were to credit Dr. Yuska's opinion that the applicant could have worked in light duty after September 30, 2003 (or for that matter April 30, 2004), he cannot be penalized for remaining off work under Dr. McClure's total release under Spencer (1) which holds that the commission cannot deny treatment expense or disability compensation for treatment under taken in good faith on a doctor's advice. The respondent distinguishes Spencer on City of Wauwatosa (2) grounds -- that is, that Spencer does not apply when the applicant is treating for a different condition other than the work injury. On this point, the respondent notes Dr. Yuska's opinion that treatment and disability after April 30, 2004 were due to an underlying degenerative condition, not the temporary aggravation from the work injury.
However, as explained above, the commission is not persuaded that the applicant's ongoing symptoms after April 30, 2004, are attributable to a preexisting or underlying non-work related condition. Where, as here, the applicant has ongoing complaints from a work injury which lead a treating doctor to set restrictions or take the applicant off work, the commission has generally held that the worker may rely on the those restrictions in good faith. Heredia v. Superior Linen, WC Case No. 94043118 (October 3, 1996); Sherry Olson v. Johnson Control, WC Claim No. 1997035080 (LIRC, November 30, 1998). Nor does the commission conclude from the fact the applicant continued to work for a few weeks even after Dr. McClure restricted him from work that the applicant acted in bad faith when he ultimately stopped work in conformance with the doctor's restriction. Thus, even assuming that exhibit 8 can be read to offer work within Dr. Yuska's restrictions, the defense suggested by Wis. Admin. Code § DWD 80.47 (3) is not available here.
The applicant is therefore entitled to temporary total disability for the period claimed, from December 9, 2003 to the date of hearing, May 18, 2005, a period of 75 weeks and 1 day. At the weekly rate of $353.33, (two-thirds of the average weekly wage of $530), the total amount due in temporary total disability is $26,558.89.
The applicant approved the deduction of an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the temporary disability compensation awarded, or $5,311.78. That amount shall be deducted from the applicant's award and paid to his attorney in 30 days. By letter dated May 24, 2005, the applicant's attorney claimed costs of $46.96; these too shall be deducted from the applicant's award and paid to his attorney in 30 days. The amount remaining, $21,200.15 shall be paid to the applicant in 30 days.
The applicant also incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury. However, as the respondent's attorney pointed out in a post-hearing letter dated May 26, 2005, the medical expense itemized in exhibit C is documented in large part by "Explanation of Benefits" statements issued by a non-industrial insurer. Further, a statement from United Hospital System generated on April 29, 2005, indicates treatment described as "cervical canal" but no neck or cervical injury is claimed in this case. (4) To rectify this situation, the respondent's attorney proposed by letter to the ALJ:
"if you find liability (5), we ask that you order reasonable and necessary treatment of the lower back only and then we will investigate each individual charge."
May 26, 2005 letter from Attorney Danas to ALJ McSweeney. By letter dated May 27, 2005, the applicant's attorney agreed with the suggestion of the respondent's attorney.
In his decision, the ALJ ordered payment of medical expenses in accordance with the reasonable course suggested by the respondent's attorney, and the applicant does not challenge that part of the order on review. Consequently, the commission shall follow course, and finds the respondent liable only for reasonable and necessary medical expense for the lower back treatment. The respondent may investigate the charges submitted.
Jurisdiction shall be retained to resolve any disputes that may arise on the medical expenses claimed at the hearing after the respondent's review, as well as to permit further orders and awards to address any claims for medical expense or additional disability continuing after the date of hearing.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are reversed. Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Twenty-one thousand two hundred dollars and fifteen cents ($21,200.15) in disability compensation.
2. To the applicant's attorney, the sum of Five thousand three hundred eleven dollars and seventy-eight cents ($5,311.78) in fee and Forty-six dollars and ninety-six cents ($46.96) in costs.
Within 30 days from the date of this order, the employer and insurer shall investigate and pay the treatment charges documented in exhibit C to the extent the charges are reasonable in amount and necessary to treat the applicant's low back injury.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed May 23, 2006
burnssa . wrr : 101 : 8 ND § 5.10
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
No credibility conference was held with the presiding ALJ. The ALJ credited the applicant's continuing complaints from the work injury, as he ordered paid the medical expenses to the date of hearing. In effect, he credited the medical opinion of Dr. McClure, at least insofar as the doctor opined the applicant suffered more than a temporary aggravation from which he completely healed from a temporary aggravation by April 30, 2004. However, the ALJ concluded that he was left with doubt on the issue of availability of work during the period of the applicant's temporary disability claim. Because the commission concludes that the applicant relied in good faith on Dr. McClure's release from work as explained above, benefits may not be denied under Wis. Admin. Code § DWD 80.47. Further, to the extent the credibility of the doctors is at issue, the commission notes that they did not testify before the ALJ. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-17 (Ct. App.1998).
cc:
Attorney John A. Becker
Attorney Joseph Danas
Appealed to Circuit Court. Affirmed March 8, 2007.
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