ARNULFO CALDERON, Applicant
ALBERT TROSTEL & SONS, Employer
SENTRY INSURANCE MUTUAL CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed August 3, 2006
caldera . wsd : 101 : 8 ND § 5.6 § 9.3
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Posture
The applicant was born in 1967, and began working for the employer in 1991. In June 2000, he hurt his back in an accident at work when he slipped and fell in metal shot on the floor. The employer concedes that the applicant herniated his disc at L5-S1 in the fall, and that a microdiscectomy at L5-S1 done by Dr. Chan in September 2000 was necessary to cure and relieve the effects of the work injury. However, the employer contends that the applicant reached an end of healing--with a 7 percent permanent partial disability but without the need for further surgery--by June 2001.
However, the applicant continued to treat after June 2001. At the hearing, the issues were whether a December 2003 laminoforaminotomy surgery performed by Dr. Geisler was made necessary by the work injury, whether a proposed disc replacement is warranted, and whether the applicant should get temporary total disability from August 18, 2001 (when the employer stopped paying it) to the date of hearing. The ALJ found that Dr. Geisler's surgery was necessary to cure and relieve the effects of the work injury. The ALJ also found that the disc replacement surgery would be warranted and she ordered its payment prospectively. The ALJ further found that the applicant was entitled to temporary total disability from September 26, 2003 (when the applicant began treatment with Dr. Geisler) to June 15, 2005 (the date of Dr. Geisler's most recent report) with jurisdiction retained as to further temporary total disability.
Both sides appeal.
The applicant wants temporary total disability for the entire period he claimed, citing his continuing treatment after the first procedure done by Dr. Chan, and the commission's decision in Carole Lee v. Famous Fixtures, WC claim no. 96000857 (LIRC, July 2, 1997). In Carole Lee, the commission declined to hold that an employer may refuse to pay for treatment for a compensable work injury, and then simply point to an applicant's unchanging condition after that refusal as an endpoint of healing.
The employer, for its part, contends that the opinions of Drs. Soriano and Karr, to the effect that the healing from the work injury ended in June 2001, and that treatment thereafter, including the laminoforaminotomy done by Dr. Geisler in December 2003 and the disc replacement he proposes for the future -- assuming they are even necessary -- were done to cure and relieve the effects of an underlying degenerative condition rather than the work injury. The employer also argues that we should deny the prospective payment of the disc replacement based on a recent report from the federal Department of Health and Human Services, Centers for Medicare and Medicaid Services issued in February 2006 (the CMS report), which proposes that the evidence is not sufficient to conclude that the artificial lumbar disc replacement procedure is reasonable and necessary, and which invites further public comment on that issue.
2. TTD
The commission first addresses the applicant's assertion that he is entitled to temporary total disability continuously from August 21, 2001 onward. The supreme court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
Larsen Co., 9 Wis. 2d at 386.
It is true the commission held in Carole Lee that an insurer may deny payment of a surgery causing the procedure to be delayed, then assert the applicant has stabilized or reached a healing plateau due to the delay in the procedure. (1) On the other hand, the supreme court has held that the commission cannot order payment of temporary total disability after a worker's condition has stabilized and he or she is awaiting surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994).
The difference between the Larsen Co. and GTC Auto Holdings and the situation in Carole Lee turns on whether a doctor credibly opines the applicant has reached a healing plateau and is subject only to permanent disability during the period at issue. ITW Deltar v. LIRC, 226 Wis. 2d 11, 21 (Ct. App. 1999). In Larsen Co. and GTC Auto, doctors -- including treating doctors -- were willing to rate permanent disability. Further, in GTC Auto, the applicant declined to have the recommended surgery. In Larsen, permanent disability was rated before the surgery was proposed. That has happened here as well.
Specifically, Dr. Chan -- the first treating surgeon -- rated permanent partial disability after the microdisectomy he did back in September 2000. Thereafter, as treating doctors Shumaker and Ahuja both note, the applicant was not interested in proposed additional surgery when his symptoms continued. On this basis, the commission concludes that the applicant had reached a healing plateau and did not re-enter a healing period until, as the ALJ found, he began treatment with Dr. Geisler in September 2003.
3. Necessity of laminoforaminotomy.
Regarding the necessity of the laminoforaminotomy performed by Dr. Geisler in December 2003, while Dr. Collopy -- a doctor retained by the insurer -- did not think the applicant would be a good candidate, he did list additional surgery as an option for further treatment in connection with the work injury. Drs. Ahuja and Shumaker also suggested further surgery. These recommendations were all based on the applicant's continuing symptoms following the injury and the first surgery done by Dr. Chan.
On this record, the commission concludes that the surgery done by Dr. Geisler was reasonable and necessary, even though Drs. Soriano and Karr think it was ill-advised. Beyond that, payment of the expense and disability related to this supported by the supreme court's holding in Spencer. (2) Further, given the medical record and Dr. Collopy's opinion, the commission cannot conclude that, as Dr. Karr asserts, the laminoforamitomy surgery done by Dr. Geisler was done solely to treat the underlying degenerative condition, not the work injury. Thus, the City of Wauwatosa exception (3) to Spencer does not apply.
3. Prospective payment of disc replacement surgery
The last issue is prospective payment of the proposed disc replacement surgery under Wis. Stat § 102.18(1)(b). There are three arguments against the payment: (1) the surgery would not be treating the work injury, (2) it is not reasonable in this case, and (3) it is not a reasonable and necessary procedure to treat back conditions generally.
While the applicant had pre-existing degenerative findings, that condition was asymptomatic until the applicant had his work injury. He has had, he testified and the ALJ believed him, unremitting pain since. The employer-retained physicians agree the work injury was serious enough to cause a disc herniation and warrant the first microdiscectomy. Again, Dr. Collopy, suggests some form of repeat surgery based on the applicant's symptoms after the first surgery.
Further, the CMS report issued in February 2006 was not part of the hearing record. (4) The employer argues it is newly-discovered evidence. Under the traditional test by the commission used to determine whether evidence is truly newly-discovered: the evidence must first come to the party's knowledge after the hearing, the party must not have been negligent in failing to discover it, and the evidence must be not merely cumulative. (5) The commission also usually requires that the evidence, if considered, would probably cause the commission to reach a different result. (6)
The commission is not persuaded that the CMS report would lead to a different result. First, it is merely a proposal; the agency is seeking additional input before making a final determination on the necessity of disc replacement. Further, as the CMS report states at several points, most of the Medicare population is over 60, and this group has been excluded from the studies testing or evaluating the efficacy of the disc replacement. While conclusion of the CMS report makes it clear that CMS questions the net health benefit of the disc replacement procedure for younger Medicare recipients as well, the commission is not persuaded that the proposed decision or report itself is the type of learned treatise or medical text that would suffice to raise legitimate doubt if it had been introduced at a hearing. See Leist v. LIRC, 183 Wis. 2d 450, 461 (1994).
cc:
Attorney Richard A. Fortune
Attorney Daniel L. Zitzer
Appealed to Circuit Court. Affirmed, March 16, 2007. Appealed to the Court of Appeals. Affirmed in an unpublished decision, February 5, 2008.
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