DEBORA A CHARTIER, Applicant

J C PENNEY CORPORATION INC, Employer

ILLINOIS NATIONAL INS CO, Insurer

J C Penny Corporation and Illinois National Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued by the administrative law judge in this matter on February 23, 2006. Briefs were submitted by the parties. At issue are whether the applicant sustained a low back injury arising out of and in the course of her employment on or about March 24, 2004, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and hereby affirms the administrative law judge's ultimate findings, but substitutes the following decision for the decision issued on February 23, 2006.

The applicant, whose birth date is December 28, 1953, was employed as an interior design consultant for a J. C. Penny store. She began this employment in 1974, and it required her to drive to customers' homes where she would take large sample books out of her vehicle and bring them into the homes. She also performed related administrative tasks at the employer's offices and at her home.

In October 2000, the applicant experienced the onset of low back pain when she picked up sample books at a customer's home and then drove back to the employer's store. She received treatment for this low back pain at a hospital emergency room on October 2, 2000, but recovered from the episode after being off work for about two weeks. A lumbar MRI was performed on October 12, 2000, and it was read as showing multilevel degenerative disc disease, with disc bulges and stenosis at L2-3 and L5-S1.

On March 24, 2004, the applicant carried her 23-pound briefcase to her minivan to go to an appointment with a customer, and as she lifted the briefcase onto the front seat she felt pain in her back. Then, while she drove for 70 minutes to the customer's home, her back pain increased. She was hobbled with pain upon exiting her vehicle, but she managed to get through the appointment with the customer. That involved three trips of taking sample books into the house from the vehicle before the customer found what she wanted, and also involved bending and stretching to measure windows in the home. She was there for about two-and-one-half hours, and when she left the customer helped her get onto the front seat of her van. Then she drove home but was in "horrible pain," and struggled to get out of the van before going down onto her knees on her garage floor. After about five minutes her husband came home and helped her into the house.

The next day, March 25, 2004, the applicant's neighbor drove her to the emergency room. The history taken there was that "about a week ago" she began to develop back pain. Then on March 24, 2004, her back went into a spasm when she came home from work and got out of a car. When questioned at the hearing concerning this "week ago" reference, the applicant explained that she had been referring to the discomfort caused by her normal working schedule involving driving and lifting. However, her back problems after March 24, 2004, were "at least 100 percent more" than they were prior to that day. Another lumbar MRI was performed on March 30, 2004, and it was read as showing a left paracentral L5-S1 disc herniation with mild displacement of the left S1 nerve root, a mild left L4-5 stenosis resulting from disc protrusion, and an annular disc protrusion resulting in stenosis at L1-2. The applicant has been off work since March 24, 2004.

Dr. Thomas Cantieri initially treated the applicant and took a history of ". . . no specific injury, but her job as an interior designer does require her to lift heavy books and catalogs to and from the car." Dr. Cantieri indicated in a note dated April 29, 2004, that the applicant had significant lumbar disc disease with radiculopathy, and that "this was likely triggered by her job."

Dr. Cantieri referred the applicant to Dr. Michael Tjarksen on April 8, 2004, and his clinic note of that date refers to a history of chronic, intermittent low back pain, with sudden onset of significant pain two weeks previously. Dr. Tjarksen diagnosed chronic degenerative disc disease with disc protrusion causing stenosis. He saw the applicant again on April 29, 2004, after she had undergone an epidural steroid injection. He noted that the applicant told him he had failed to take a complete history in his previous clinic note because he had not recounted the work incident of March 24, 2004. He described his doctor/patient relationship with the applicant as somewhat tenuous and deteriorating.

Dr. Joseph Cusick examined the applicant on June 11, 2004. His history describes off-and-on back problems starting in October 2000, which were exacerbated with intractable pain on March 24, 2004. Dr. Cusick completed a WKC-16-B dated November 2, 2004, that diagnoses disc herniations at L2-3, L4-5, and L5-S1, and indicates a work-related aggravation/acceleration of a preexisting back problem.

Dr. Cusick referred the applicant to Dr. David deDianous on June 23, 2004. Dr. deDianous took a history consistent with the applicant's description of events and diagnosed lumbar discogenic disease, mechanical back pain, and lumbar radiculitis. He recommended a spine care program and completed a WKC-16-B dated November 19, 2004. He indicated that there had been direct work causation and listed March 24, 2004, as the date of injury.

Finally, the applicant was examined and evaluated by Dr. N. M. Reddy at the request of Dr. deDianous and the applicant's attorney. This exam was on June 1, 2005, and Dr. Reddy also reviewed the applicant's medical records. He took a history consistent with the applicant's description of events. He diagnosed chronic low back pain with an acute episode of pain on March 24, 2004, herniated discs at L1-2, L4-5, and L5-S1. He also diagnosed a right hip problem probably precipitated by the work incident, but this problem is not currently at issue. Dr. Reddy opined:

"Based on the above findings, it is my opinion that she has had ongoing multilevel degenerative disc disease. This condition is likely to be from cumulative accelerated biomechanical impact on the discs from the chores that she performed over almost three decades . . . I believe further work activities and repeated incidences of acute exacerbations accelerated the degenerative changes in the discs and also led to herniated nucleus pulposus at L1/L2 and L4/L5 in addition to the already existing L5/S1 disc herniation. She does not have any definite evidence of radicular pathology."

Dr. Reddy assessed 15 percent permanent partial disability at the back. He assessed physical restrictions of avoidance of any significantly repetitive bending, stooping, or twisting; no lifting over 20 lbs., or carrying of more than 15 lbs. at one time; and no prolonged sitting. He noted that with these restrictions he did not believe she could work as an interior designer. He partially completed a WKC-16-B in which he indicated there had been an aggravation and acceleration of the applicant's preexisting condition beyond normal progression, and listed the incident of March 24, 2004.

At respondents' request, Dr. Richard Lemon examined the applicant on June 4, 2004, and again on July 8, 2005. In his first exam, he believed there were several signs of symptom magnification. He diagnosed preexisting multilevel degenerative disc disease and degenerative facet disease of the lumbar spine, with a non-work-related manifestation of these conditions on March 24, 2004. Dr. Lemon indicated that the applicant had a history of chronic low back pain dating from October 2000, and opined that the March 2004 MRI showed natural progression of her degenerative disc disease from the October 2000 MRI. He opined that she was capable of returning to her employment as an interior designer. Dr. Lemon further opined that if it were to be determined that the applicant sustained a work-related back injury on March 24, 2004, it could only be in the form of a minor low back strain that should have resolved within one month. Dr. Lemon indicated in his second exam and report that the applicant evinced fewer signs of symptom magnification, although he noted that she continued to complain of tingling in her hands, which he believed could not anatomically be related to a low back condition. He also opined that it did not make sense from an orthopedic basis that the applicant's symptoms were work-related, because she continued to have symptoms but had not worked for the employer for 16 months. He characterized the applicant's clinical exam as "remarkably benign with the exception of numerous signs of symptom magnification," and assessed 2 percent permanent partial disability to the preexisting degenerative disc and facet disease. He opined that a 30-lb. lifting restriction would be appropriate.

Both the administrative law judge and the commission found the applicant to be credible. She quite clearly sustained a significant injury to her low back in the work incident of March 24, 2004, as documented in the emergency room records of March 25, 2004. While Dr. Cantieri's and Dr. Tjarksen's clinic notes are not entirely consistent with the applicant's description of the work incident, neither are they entirely inconsistent with it. The commission infers that these two physicians were less interested in obtaining a precise description of the work incident, than they were in their actual treatment of the applicant's back condition.

The various medical descriptions of causation offered by the physicians could support arguments for direct work causation, aggravation/acceleration of the preexisting condition beyond normal progression, or occupational back disease. When analyzing a case with facts such as the applicant's, the legal theories of causation tend to overlap with each other. At the first hearing held on August 1, 2005, the administrative law judge recounted the fact that both traumatic and occupational theories of causation were being proffered, and no objection was made to proceeding on that basis. The commission found credible Dr. Cusick's opinion that the work incident of March 24, 2004, aggravated, accelerated, and precipitated the applicant's preexisting degenerative back condition beyond normal progression.

The commission agreed with the administrative law judge that Dr. Reddy's physical restrictions were more accurate than those given by Dr. Lemon; however, the applicant's back condition is nonsurgical, and she indicated in her testimony that her condition had improved. Accordingly, Dr. Reddy's assessment of 15 percent permanent partial disability will be reduced to 10 percent.

The applicant was temporary totally disabled from March 24, 2004 until June 1, 2005, the date of Dr. Reddy's evaluation. This amounts to 61 weeks and 5 days at the applicable rate of $535.47 per week, for a total of $33,109.89. Respondents previously paid temporary total disability in the amount of $6,247.15, leaving a balance due of $26,862.74.

The finding of 10 percent permanent partial disability amounts to 100 weeks of compensation at the applicable rate of $232.00 per week, for a total of $23,200.00.

The applicant's attorney is entitled a 20 percent fee against the additional temporary total disability and the award for permanent partial disability. This amounts to a total fee of $9,999.98, which includes a reduction of $12.57, representing an interest credit for the fee on unaccrued permanent partial disability.

Reasonably required medical expenses are also due in the amount of $568.14 to Dr. Padmaja Doniparthi; $1,506.77 to the Medical College of Wisconsin; $12,633.28 in medical expense reimbursement to First Health; and $777.06 in medical expense reimbursement to the applicant.

The applicant may require additional medical treatment and may sustain additional disability, possibly including loss of earning capacity, and therefore jurisdiction will be reserved.

NOW, THEREFORE,

The ultimate findings of the administrative law judge concerning compensability, the nature and extent of disability, and liability for medical expense are affirmed. However, the commission's findings are substituted for those of the administrative law judge. Within 30 days from this date, respondents J. C. Penney Corporation and Illinois National Insurance Company shall pay to the applicant as compensation for additional temporary total disability and accrued permanent partial disability the total amount of Thirty-six thousand, four hundred dollars and six cents ($36,400.06); to applicant's attorney, Lynne A. Layber, fees in the amount of Nine thousand nine hundred ninety-nine dollars and ninety-eight cents ($9,999.98); to Dr. Padmaja Doniparthi the sum of Five hundred sixty-eight dollars and fourteen cents ($568.14); to Medical College of Wisconsin the sum of One thousand five hundred six dollars and seventy-seven cents ($1,506.77); to First Health as reimbursement for medical expense the sum of Twelve thousand six hundred thirty-three dollars and twenty-eight cents ($12,633.28); and to the applicant as reimbursement for medical expense the sum of Seven hundred seventy-seven dollars and six cents ($777.06).

Beginning on January 14, 2007, respondents shall additionally pay to the applicant the monthly sum of One thousand five dollars and thirty-three cents ($1,005.33), until the currently-unaccrued permanent partial disability is paid in the total amount of Three thousand six hundred fifty dollars and thirteen cents ($3,650.13).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed December 8, 2006
chartde . wrr : 185 : 1  ND § 3.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Lynne Layber
Attorney Michael C. Frohman

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