RICK GRAY, Applicant
ELECTRI TEC ELECTRICAL CONSTRUCTION INC, Employer
CONTINENTAL WESTERN INSURANCE CO, Insurer
This case was first heard in February 2002 by ALJ Richard D. Smith. A compensable injury on or about November 3, 1998 had been conceded by the employer and the insurer (collectively, the respondent); at issue before ALJ Smith was the nature and extent of disability. By order dated April 19, 2002, ALJ Smith awarded permanent partial disability at 3 percent to the whole body on a functional basis. ALJ Smith also found that, on the record before him, the applicant had not established permanent partial disability on a vocational basis for loss of earning capacity under the applicant's doctor-imposed restrictions after reaching an end of healing in July 1999. ALJ Smith left his order
"interlocutory on the issue of whether the applicant may be entitled to further permanent disability based on loss of earning capacity."
The commission affirmed ALJ Smith's decision by order dated February 11, 2003.
A second hearing was held before ALJ Mary Lynn Endter in April 2005, with a close of record on June 10, 2005. The main issue at the second hearing before ALJ Endter were whether and to what extent the applicant the applicant may bring a claim for loss of earning capacity under the terms of the reservation of jurisdiction following the first hearing. Also at issue was the applicant's claim for certain medical expenses.
By order dated September 8, 2005, ALJ Endter held that if the applicant could prove new and different restrictions from the work injury from those that he had at the time of the first hearing, he could bring claim for loss of earning capacity. However, ALJ Endter went on to hold that the applicant did not prove he had any new restrictions related to the work injury. Consequently, ALJ Endter dismissed the applicant's loss of earning capacity claim. ALJ Endter directed the parties to take certain action with respect to the past medical expenses claimed, and reserved jurisdiction on that issue.
The applicant filed a timely petition for review. The commission has considered the petition and the positions of the parties, and reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility. Based on its review, the commission makes the following:
The applicant was born in 1962. He began working for the employer in 1996 or 1997. He did electrical construction work, which is heavy work requiring him to lift up to 100 pounds at times and to work in high places. He hurt his back on November 13, 1998, while trying to slide a 300-pound piece of equipment in a crouched position.
Immediately following the injury, the applicant experienced pain through his back and buttocks, and down his leg. Before ALJ Smith, the applicant testified about "piriformis syndrome," a condition where the spasming piriformis muscle aggravates the sciatic nerve. The applicant underwent testing that included a normal MRI and EMG. The applicant also underwent work hardening and returned to work with light duty restrictions in June 1999.
Specifically, the restrictions set by occupational medicine specialist, Dr. Marsh on June 1, 1999 permitted lifting up to 20 pounds occasionally to frequently, infrequent bending to 45 degrees from the perpendicular, avoidance of bending beyond that, seldom squatting or climbing, no crawling, and occasional twisting. He was permitted to drive, sit, walk, and stand for an hour at a time before changing positions, and working up to 8 hours a day, five days a week. In mid-June 1999, Dr. Marsh modified the restrictions to permit 10-hour days, with up to 48-hour weeks if the applicant felt comfortable.
The applicant returned to work for the employer under these restrictions in early June 1999. One of the applicant's treating doctors, Dr. Hogendorn, opined the applicant reached an end of healing with respect to the work injury as of July 1999.
On July 31, 1999, the applicant fell on stairs at home on a Saturday morning, breaking his right shoulder blade and right heel. He has not worked for the employer since that injury.
After the fall at home, the applicant continued to treat for his back condition. Among the doctors he saw was his primary care doctor, Thomas L. Richardson, M.D. Dr. Richardson referred the applicant to an orthopedist, which led to a referral to a surgeon, but no surgery was recommended.
On April 10, 2001, Dr. Richardson prepared a functional capacity evaluation (FCE) which indicated the applicant could not report for work on a regular or predictable basis. The FCE also allowed a maximum of continuous sitting, standing, and walking of an hour each; no lifting or carrying over 20 pounds; no bending; squatting, crawling, or climbing; only occasional reaching above shoulder level; and no use of the feet for pedals. That same day, Dr. Richardson assessed a 25 percent permanent partial disability in a letter indicating it would be difficult for the applicant to maintain any useful employment.
Following the hearing before ALJ Smith in February 2002, the applicant continued to treat. In June 2002, Dr. Hogendorn noted his pain and exam had been stable over time, though he "is giving varying efforts with exams." She noted, too, that he was not interested in further evaluation at that time.
In early 2003, the applicant was referred to Thomas G. Stauss, M.D. He noted the applicant's injury, his treatment thereafter with multiple physicians, the use of large doses of Oxycontin, and his current complaint of left low back pain, left buttock pain, and left leg pain at an 8 on scale of 1 to 10. Dr. Strauss's assessment was "chronic back pain and persistent left lumbosacral radiculopathy, status post-work injury in 1998." Dr. Stauss gave a guarded prognosis. He did suggest the possibility of an annular tear, and possible IDET procedure, but cautioned that a 50 percent reduction in pain would be an extremely good outcome.
After further testing, Dr. Stauss performed an IDET procedure at L3-4 with complication on April 1, 2003. The doctor discharged the applicant with a restriction against repetitive bending and twisting, with lifting limited to 10 pounds maximum, and against prolonged sitting or standing for more than 45 minutes.
The applicant continued to have back pain after the procedure. In his six-month check following the procedure he told the doctor his back pain appeared to be affecting both of his legs. Dr. Stauss declared an end of healing from the IDET procedure as of October 14, 2003, though he recommended a surgical consultation, noting that while the applicant had previously seen a surgeon, the discogram had not been done then.
Meanwhile, the applicant saw Dr. Richardson, who noted on September 15, 2003, that the applicant presented with chronic pain and desire to quit smoking, as coughing aggravated his back pain. The applicant told the doctor, however, that he had been doing a lot of fishing, and the doctor noted his nice sun tan and that the applicant had been able to lose weight. The applicant told the doctor he was off all of his medications at that point. The doctor's diagnostic assessment at the time was chronic low back pain secondary to radiculopathy.
The applicant continued to treat in 2004, telling Dr. Richardson he actually had had more pain since the IDET, including pain down the right leg or both legs. The doctor's assessment on July 5, 2004 was severe chronic low back pain secondary to lumbar radiculopathy, unresponsive to multiple management techniques. The doctor reported further:
I really do not feel he can work eight hour days and he has extreme limitations. We have given him 25 percent permanent partial disability compared to the body as a whole due to severe painful and disabling back condition. His prognosis is quite guarded.
The applicant retuned to Dr. Richardson on December 31, 2004, when he complained of quite a bit of low back pain, intense at times, especially with cold weather and weather changes, and sharp shooting pains down the legs. Dr. Richardson assessed severe chronic low back pain.
At the second hearing before ALJ Endter, the applicant submitted expert medical opinion from both Dr. Richardson and Dr. Stauss.
Dr. Richardson wrote a practitioner's report on July 5, 2004 (exhibit B) which diagnoses "chronic pain and L4/3 internal disc disruption." Regarding permanent restrictions, Dr. Richardson attached to his practitioner's report a functional capacity evaluation dated also July 5, 2004. The functional capacity evaluation states that the applicant could not work an eight-hour day, could never lift or carry more than 20 pounds, could never bend, squat, crawl, climb and could only occasionally reach above shoulder level. The applicant was also prohibited from using repetitive feet movements to operate foot controls.
Dr. Richardson prepared another practitioner's report dated April 27, 2005 (exhibit L). This lists the November 3, 1998 date of the "traumatic event," and again refers the reader to his prior practitioner's reports for a description of the traumatic event. Dr. Richardson opined the event of November 3, 1998, directly caused his disability.
Further, there is an August 31, 2004 report from Dr. Stauss, the pain specialist who did the IDET procedure (exhibit A.) Dr. Stauss described the injury as occurring when the applicant was working on a scaffold "lifting and pulling a 300 + pound piece of equipment." Dr. Stauss' diagnosis was
internal disc disruption with reproduction of concordant pain at and annular disruption at L3/4. Post IDET procedure 04/01/03 with minimal response. Low back pain with radiation into the lower extremities. Chronic pain.
Dr. Stauss opined the applicant reached an end of healing as of 10/15/03, but would never be a candidate for competitive employment. He rated permanent partial disability at 7 percent (5 percent for the IDET procedure and 2 percent for pain), and listed his prognosis as guarded, noting his need for medication and possibly a future fusion.
The respondent resubmits the reports of Richard Lemon, M.D., from the first hearing before ALJ Smith. After explaining why he did not believe the June 1998 fall on the stairs was caused by weakness from the work injury, the doctor opined:
Mr. Gray's treating physicians have opined a huge permanent partial disability to the body as a whole. Dr. Richardson has opined a 25 percent permanent partial disability to the body as a whole. Dr. Hogendorn has opined a 20 percent permanent partial disability to the body as a whole. I believe these ratings are incongruous in a patient who has never had low back surgery. In addition, Mr. Gray's physical examination is remarkably benign with the exception of numerous signs of symptom magnification. These benign physical examinations are noted numerous times by Dr. Hogendorn, Dr. Marsh, Dr. Richardson, and Dr. Zdeblick. I do not believe that Mr. Gray has any permanent partial disability due to his alleged on-the-job injury of November 3, 1998. Mr. Gray may have a minimal amount of permanent partial disability due to his pre-existing multilevel degenerative disc disease of the lumbar spine...
Exhibit 1, report of Lemon, page 9.
Both parties also submitted expert vocational opinion at the hearing before ALJ Endter.
The applicant's vocational expert, Kevin Schutz, opined that the applicant would be permanent totally disabled based on Dr. Richardson's July 5, 2004 FCE. Exhibit F, pages 4-5. In a follow-up report, he opined that, based on the restrictions set in June 1999 by Dr. Marsh, the applicant would have had a 55 percent loss of earning capacity. Exhibit G, page 5. In reaching this estimate, Mr. Schutz assumed the applicant could work as an assembler, a quality control inspector, a handpackager, a service station attendant, and a sewing machine operator, an order filler, and a counter clerk.
The respondent's vocational expert is Nancy Steinback McCasky. She opined that based on restrictions set by Dr. Richardson in April 2001 (which assume a worsened condition from the fall in July 1999), the applicant was permanently totally disabled. Based on Dr. Lemon's restrictions there would be no loss of earning capacity.
In a more recent report dated April 10, 2005 (Exhibit 3), Ms. McCasky rated loss of earning capacity at 47 to 54 percent based on the June 1, 1999 restrictions of Dr. Marsh. In reaching this figure, Ms. McCasky assumed the applicant could work in employment as a team assembler, a hand packager, an electrician helper, and a janitor/cleaner. She added, however, that the applicant had been able to work for the employer in these restrictions until he hurt himself in the fall down the stairs.
At the hearing before ALJ Ender, the applicant's claim for loss of earning capacity or permanent total disability followed two trails. The first is an attempt to prove that there was loss of earning capacity based on the June 1999 restrictions set by Dr. Marsh. The second is the applicant's attempt to prove that his condition worsened -- either due to the IDET procedure which he claimed was for the work injury or because of the brief period of time he worked under Dr. Marsh's restrictions -- justifying the increased restrictions in Dr. Richardson's July 2004 FCE and entitling him to permanent to total disability.
The commission concludes it is appropriate to award compensation for permanent partial disability on a vocational basis for loss of earning capacity based on Dr. Marsh's restrictions. After the first hearing in February 2002, ALJ Smith and the commission found the applicant had sustained permanent partial disability at 3 percent on a functional basis and reserved jurisdiction with respect to loss of earning capacity. While ALJ Smith's decision did not expressly adopt Dr. Marsh's restrictions, his decision clearly implies that he credited them. He found that the applicant's return to work under Dr. Marsh's restrictions was remarkably successful, and that the applicant had no loss of earning capacity when he was working under those restrictions. Indeed, the very first reason ALJ Smith gave for issuing an interlocutory order on loss of earning capacity award was that the vocational experts did not address Dr. Marsh's restrictions. The commission's decision adopting ALJ Smith's findings likewise strongly implied that Dr. Marsh's restrictions were the most credible among those in the record and were consistent with the 3 percent permanent partial disability awarded.
Following the commission's decision affirming ALJ Smith, the applicant's attorney wrote to the commission concerning the extent to which jurisdiction was reserved. In response, a commission attorney wrote in part:
In the absence of such proof [of new restrictions following surgery to treat the work injury] the applicant's functional restrictions as of July, 1999 would be considered res judicata as to the issue of functional restrictions.
Dawes letter to Walker, dated March 20, 2003. This response is consistent with the conclusion that the commission credited the applicant's restrictions as of July 1999 -- Dr. Marsh's restrictions -- and that it was those restrictions that were res judicata. Under these circumstances, the commission decision affirming ALJ Smith's interlocutory order cannot be read to finally deny benefits for loss of earning capacity, nor does that decision operate as res judicata on the issue of the extent of loss of earning capacity. (1) Rather, in affirming ALJ Smith's interlocutory order, the commission reserved jurisdiction on that issue to permit deciding the amount of loss of earning capacity at a later date when the parties provided expert vocational opinion on Dr. Marsh's restrictions.
The applicant, of course, returned to work briefly, under Dr. Marsh's light-duty restrictions. Wisconsin Stat. § 102.44(6) provides in relevant part:
102.44(6) (a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.
(b) If, during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.
...
(g) For purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employee without reasonable cause, the employee is considered to have returned to work with the earnings the employee would have received had it not been for the refusal.
Had the applicant remained employed with the employer at 85 percent of his pre-injury wages under Dr. Marsh's restrictions, any loss of earning capacity claim should have been denied under Wis. Stat. § 102.44(6)(a). Likewise, had the employer offered him such reemployment which he refused without reasonable cause, his loss of earning capacity claim could be denied under Wis. Stat. § 102.44(6)(g). However, under Wis. Stat. § 102.44(6)(b), even if the commission had issued a final order denying loss of earning capacity based on the applicant's return to "85 percent employment," the commission could reopen the claim if "the employment relationship is terminated ... by the employee because his or her physical or mental limitations prevent his or her continuing in such employment."
The supreme court has held that if a worker quits the "85 percent employment" due to physical restrictions, the restrictions need not come from the same unscheduled injury for which loss of earning capacity is sought. Mireles v. LIRC, 2000 WI 96, ¶ 31 to 53, 237 Wis. 2d 69. Indeed, the Court stated:
¶ 35 Under Wis. Stat. § 102.44(6)(b), an applicant may seek to revisit a previous award if the employer at the time of the injury terminates the employment relationship. No reason for the termination is required. By contrast, the second clause in the statute, in which the employee terminates the relationship, allows an employee to reopen only if physical or mental limitations caused the employee to end the employment relationship. Had the legislature intended to place any qualifications on employer terminations, it would have created such qualifications. Thus, if an employer terminates its relationship with an employee by closing its plant or laying off workers, a previously injured employee may apply for a reopening under § 102.44(6)(b)
...¶ 41 We conclude that the second clause of Wis. Stat. § 102.44(6)(b) does not require that the limitations that cause the employee to end the relationship arise from an unscheduled injury. Had the legislature wished to make such a requirement, it could have written:
If, during the period set forth in s. 102.17(4) the employment relationship is terminated . . . by the employe because his or her physical or mental limitations resulting from the injury prevent his or her continuing in such employment.
In this case, the applicant injured himself at work in November 1998. As a result of his injury he sustained a 3 percent permanent partial disability on a functional basis and his ability to work was limited in accordance with Dr. Marsh's work restrictions. After he returned to work within Dr. Marsh's restrictions he injured his shoulder and heel in an off-duty accident. The commission's decision affirming ALJ Smith's order retained jurisdiction on loss of earning capacity to allow expert vocational opinion on loss of earning capacity based on Dr. Marsh's restrictions. Mireles, supports proceeding on the applicant's loss of earning capacity claim, using expert vocational opinion based on Dr. Marsh's restrictions, under the facts of this case.
The commission cannot conclude an award for permanent total disability is warranted, however. On this point, again, the applicant argues first that the two months of work under Dr. Marsh's June 1999 restriction caused his condition to progress to the point the much more limiting restrictions set by Dr. Richardson in April 2001 are justified. However, there is no medical evidence that post-injury work exposure, much less two months of post-injury work exposure, caused any change in his condition.
The applicant argues that the discogram and IDET procedures, both done after ALJ Smith's hearing and decision, support the new July 2004 restrictions given by Dr. Richardson. However, the commission agrees with ALJ Endter's reasoning on this point. The discogram and IDET really did not change the applicant's condition much either way. Indeed, Dr. Richardson set almost exactly the same restrictions in July 2004 as he set in April 2001. The same factors that led the commission to discredit the April 2001 restrictions would apply to the new July 2004 restrictions. Certainly, neither ALJ Smith nor ALJ Endter -- both of whom saw the applicant as he testified -- credited Dr. Richardson's more limiting restrictions either in 2001 or in 2004.
There remains, finally, the issue of how much to award for loss of earning capacity. Mr. Schutz estimated loss of earning capacity at 55 percent based on Dr. Marsh's restrictions, while Ms. McCasky estimates loss of earning capacity at 47 to 54 percent on those restrictions.
Under Wis. Stat. § 102.17(7), the reports of vocational experts are to be considered with all of evidence to decide a worker's actual loss of earning capacity. The department's annotative footnote to the statute emphasizes that the determination of loss of earning capacity is to be made by considering all evidence in the record. DWD Worker's Compensation Act of Wisconsin, with amendments to December 2004, WCK-1-P (r.12/2004), note 91.
Under Wis. Admin. Code, DWD § 80.34(1), the commission is required to consider a number of factors including efforts to find suitable employment and other pertinent information. In this case, as ALJ Smith noted, the applicant's ability to find work after recovering from the fall at home on stairs was hampered by the fact he was in jail and had no Huber privileges following his assault on his domestic partner in April 2000. Further, the applicant's "varying efforts" on examination were noted by treating doctor Hogendorn. Dr. Richardson noted his "nice tan" and his ability to engage in "a lot of fishing." despite complaints of back pain that led his doctors to set restrictions against prolonged sitting and standing as well as significant lifting restrictions. Moreover, as ALJ Smith noted in his decision, the applicant's assault on his domestic partner in April 2000 indicated that he was capable of more sustained physical activity than he portrayed to his doctors at the time.
The commission also consulted with ALJ Endter concerning the applicant's hearing demeanor. ALJ Endter explained that her decision was not based on witness credibility, but on the legal question of the scope of the reservation of jurisdiction in the prior decisions. Nonetheless, she did not find his testimony to her to be credible, noting that after answering a question he would quickly look at the ALJ with a "did she believe that?" expression. She thought he was exaggerating his physical condition, which was not as bad as he made out.
Thus, while the commission concludes that the permanent effects of his work injury does affect the applicant's further earning capacity, that permanent work restrictions are warranted based on his injury, and that Dr. Marsh's work restrictions are the most credible in the record (that is, they better reflect the applicant's actual permanent disability than Dr. Richardson), the commission believes that even Dr. Marsh's restrictions may to some extent overstate his disability. Using the reports of the vocational experts based on Dr. Marsh's restrictions as a starting point, and taking the entire record into consideration including the factors set out in Wis. Admin. Code § DWD 80.34, the commission concludes that the applicant has sustained a permanent partial disability on a vocational basis for loss of earning capacity at 30 percent. The previously-awarded permanent partial disability on a functional basis at 3 percent is merged into that rating.
The applicant is therefore entitled to a total of 300 weeks of permanent partial disability at the weekly rate of $179 (the statutory maximum for injures in 1998), totaling $53,700. The commission previously affirmed ALJ Smith's finding that the applicant reached an end of healing as of July 31, 1999; the entire award for permanent partial disability is accrued. Less the 3 percent ($5,370) previously awarded on a functional basis under the commission's prior order, the amount now outstanding in permanent partial disability is $48,330.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order, or $9,666.00. The fee, plus costs of $844.55, shall be deducted from the applicant's award and paid within 30 days. The remainder, $37,819.45, shall be paid to the applicant within 30 days.
ALJ Endter's decision includes careful and detailed findings with respect to the medical expenses. Neither party challenges these on review, so they are reiterated as follows:
At the hearing, the applicant provided a WCK-3 form indicating that Badger Care paid medical expenses to Richhland Medical Center and Meriter Park Hospital. After the hearing, the applicant, by his attorney, provided a statement from Badger Care concerning its lien. Although the record did not contain an itemization of the medical expenses from the specific providers as required, the following findings are made based on the records of Badger Care: Any treatment the applicant had for his shoulders was not related to the work injury but to the incident of falling on July 31, 1999, when he fractured his clavicle. Any treatment the applicant had for a rash, dermatitis, and allergic urticaria was not related to his work injury. Any treatment the applicant had for a coccyx sprain falling from skis in January 2004 was not related to the work injury. Any treatment the applicant had for his alteration of consciousness or for his drug abuse, monitoring was not related to his work injury.
At best, some of the applicant's prescription expenses might be related to his work injury. The specific prescription expenses not allowed include Loratadine, Triamcinolone, Desoximetasone, Ranitidine, Prednisone, Nexium, and Zanaflex. Dr. Richardson prescribed Skelaxin, Neurontin, Oxycodone, Indocin, Soma, Toradel, Hydrocodone, and Vicodin. Apparently Dr. Hogendorn prescribed Clonazepam, Bupropion [aka Wellbutrin], Amitriptyline, and Depakote. Dr. Richardson noted on September 15, 2003, that the applicant was off all of his medications. Some of his prescription expenses were incurred after this date, some before.
Therefore, the applicant shall provide an accounting of his specific prescription expenses before and after September 15, 2003, consistent with this order for consideration of payment by the insurer. The applicant might also have mileage expenses for treatment specifically related to his back and shall provide a specific accounting of those expenses consistent with this order for consideration of payment by the insurer. The insurer is not ordered to make payment for the same until it can verify the expenses. If the parties cannot reach some agreement as to those specific expenses, they may request a hearing.
This order shall be interlocutory as to the issue of past medical expenses only. As noted above, the applicant was off all medications as of September 15, 2003. The commission is satisfied from its review of the medical record that his condition has remained the same since he reached a healing plateau in July 1999. The commission is also persuaded the applicant will incur neither medical expenses to treat his condition after September 15, 2003, nor future periods of temporary or permanent disability because of his condition from the work injury.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are affirmed in part and reversed in part. Within 30 days, the employer and its insurer shall pay all of the following.
1. To the applicant, Rick Gray, Thirty-seven thousand eight hundred nineteen dollars and forty-five cents ($37,819.45) in disability compensation.
2. To the applicant's attorney, Ronald Walker, Nine thousand six hundred sixty-six dollars and no cents ($9,666.00) in fee and Eight hundred forty-four dollars and fifty-five cents ($844.55) in costs.
Jurisdiction is reserved on the issue of past medical expenses only.
Dated and mailed July 27, 2006
grayri . wrr . doc : 101 : 8 ND § 5.20
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
NOTE: This order is interlocutory as to the past medical expenses. The department has indicated it will not schedule a hearing until an appropriately prepared WKC-3 is filed.
cc:
Attorney Ronald N. Walker
Attorney Thomas Ogorchock
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