TONY THAO, Applicant
OSHKOSH TRUCK CORP, Employer
TRAVELERS PROPERTY CAS CO OF AMERICA, 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 January 31, 2007
thaoto . wsd : 101 : 1 ND § 5.13
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The main issues on appeal in this case are (1) the nature and extent of disability from the applicant's work injury, and (2) the calculation of the award with respect to non-industrial disability payments.
1. Nature and extent of disability.
The applicant relies on expert medical opinion from Dr. Tannan. In his first report dated February 5, 2005 at exhibit G, Dr. Tannan reported the accident or work exposure to which the applicant attributed disability was:
"The patient works in a production factory; he's basically doing overhead reaching 8 hours a day. From this patient suffer[ed] cervical spondylosis and neck pain."
Dr. Tannan reported the applicant was able to return with no overhead work on sedentary restrictions, indicating this was a permanent restriction. He added he was not sure if the applicant had permanent disability but noted the applicant did continue to have severe neck pain.
Dr. Tannan did a second report (exhibit A) on August 3, 2005. In this report, the doctor reported that the applicant was able to return to sedentary work as of July 29, 2005. He opined the October 21, 2003 event at work -- performing overhead work lifting heavy parts at Oshkosh Truck -- directly caused the applicant's disabling cervical spondylosis and herniated discs at C4-5 with cervical radiculopathy. He stated the applicant could return to work subject only to a permanent restriction to sedentary work as of July 29, 2005, and rated permanent partial disability at 10 percent for neck pain, a limited range of motion in the cervical spine, and radicular pain.
The employer and its insurer (collectively, the respondent), for its part, relies on the opinion of Mark Aschliman, M.D., who wrote a report on July 7, 2005 following an examination. He believed the applicant had mild spondyloarthropathy and subjective complaints of pain well in excess of what would be expected given the diagnostic and physical work up. He characterized the June 2004 MRI and September 2004 CT scan as showing some evidence of mild disc degeneration, but no nerve root compression or focal disc herniation.
During examination, Dr. Aschliman reported, the applicant moved nonphysiologically and stiffly, exhibited twitching, shaking, moaning, and groaning consistent with symptom magnification. He held his head tilted to the right. He exhibited exaggerated response to light touch. Dr. Aschliman felt the applicant's presentation was that of someone with symptom magnification and malingering behavior with some mild underlying cervical spondylosis. The doctor saw no need for ongoing treatment or use of narcotics.
Dr. Aschliman did not believe the applicant had any permanent partial disability, nor did he think there was any support for relating the applicant's symptoms to his work activities. He believed that, at the very most, the applicant had a temporary symptomatic aggravation of his underlying cervical spondyloarthropathy while participating in his work activities, which resolved by November 3, 2003 (as noted in the physical therapy note from that date.) The doctor believed, however, that the applicant's ongoing complaints were a manifestation primarily of psychosocial dysfunction as opposed to physiologic dysfunction. The doctor considered the applicant fully recovered from the effects of any work related activity.
The ALJ found for the applicant, crediting Dr. Tannan's opinion. In explaining his decision, the ALJ noted the pathology shown in imaging scans of the applicant's cervical spine and the fact the applicant only became symptomatic after the work injury. He added that while Dr. Aschliman had based his opinion on the "resolved" symptoms noted in the November 3, 2003 physical therapy note, the applicant testified he still had symptoms and Dr. Tannan noted continuing pain on November 4, 2003. Further, the ALJ concluded that the applicant's strong work ethic, suggested by his continuing to work in pain and early return after the work injury, militated against the suggestion he was malingering or exaggerating his condition.
On appeal, the respondent contends that Dr. Aschliman "got it right" with the diagnosis of a temporary symptomatic aggravation of his underlying cervical spondyloarthropathy while participating in his work activities. The respondent suggests the ALJ inaccurately concluded the imaging scans showed disc herniations where there were none. The respondent also suggests the ALJ did not give sufficient weight to evidence of malingering in the treatment record (including the notation of inappropriate pain behavior in the functional capacity evaluation ordered by treating doctor Tannan) or to the fact that Dr. Paul would not do surgery. The respondent asserts, too, that a surveillance CD-ROM often showed the applicant moving about without tilting his head to one side, while at the hearing and when he saw Dr. Aschliman he did exhibit this symptom.
The commission acknowledges that the physical therapist who performed the functional capacity evaluation (FCE) on Dr. Tannan's referral noted inappropriate pain behavior. However, the therapist did not indicate whether the pain behavior affected the validity of the evaluation itself. Further, the interpreting radiologists describe the applicant's CT scan and MRI scans as showing "disc bulging." The scans may not, as Dr. Aschliman asserts, show a focal herniation causing nerve root compression. However, the radiologist who interpreted the CT scan when it was taken reported that the scan showed bulging causing effacement or impression on the thecal sac. The radiologist interpreting the MRI scan reported that the scan showed mild stenosis due to the bulging.
In short, the CT scans and MRI scans support Dr. Tannan's conclusion that the applicant suffered a work injury that remains symptomatic and disabling. Certainly, a lifting accident with the roof panel on the date of injury is consistent with a neck injury, and the later spay-painting activity is consistent with a subsequent aggravation.
Further, the doctor with the most experience with the applicant, Dr. Tannan, believed his complaints. The person conducting the surveillance testified that while the applicant did not always have a tilted head during surveillance, at other times he did. The commission's viewing of the CD-ROM indicates the applicant had a tilted or stiff neck even when he would not expect he was being watched (for example, the surveillance done in the park on July 23, 2005.) The ALJ, who saw the applicant testify, also believed his complaints. The commission is satisfied the ALJ reached the correct result with respect to the nature and extent of disability.
2. Calculation of award; Reimbursement of non-industrial disability from PPD.
The other main issue on appeal involves the amount of the award, specifically the permanent partial disability award. The ALJ awarded temporary total disability from August 6, 2004 (when the applicant stopped working) to February 5, 2004 (when according to Dr. Tannan's first practitioner's report the applicant could work subject to permanent restrictions set in the November 2004 functional capacity evaluation.) He awarded permanent partial disability at 20 percent on Dr. Tannan's rating. He allowed the employer to be reimbursed from the temporary total disability award for short-term nonindustrial disability payments it made during the healing period, but not from the permanent partial disability award for non-industrial disability payments it made after the end of healing.
On appeal, the respondent asserts that it is entitled to reimbursement for the long term disability (and some short term disability) paid after the end of healing -- in effect, that the commission should reimburse the employer for post-healing plateau non-industrial disability payments from the permanent partial disability award -- under Wis. Stat. § 102.30(7).
The commission does not agree. Wisconsin Stat. § 102.30(7)(a) provides:
102.30(7)(a) (a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
The employer's long-term disability policy provides that payment under the policy shall be reduced
"by any income benefits you receive:
. . .
"3. Under any workers' compensation or other state or federal law."
Exhibit 3, policy, page 5.
The commission can conclude neither that the non-industrial benefits paid to the applicant "cover the same disability" as permanent partial disability nor that the non-industrial disability payments were improper under the policy as set out above. The policy does not completely exclude worker's compensation disability payments made following an injury. It allows for a reduction for "income benefits" but that term does not seem to cover permanent partial disability benefits. The statutes and the case law distinguish temporary disability, which is paid to recover lost current wages, and permanent partial disability, which is measured based on bodily impairment and paid to compensate loss of earning capacity. (1) The distinction is clear from the fact that while disability for temporary disability ends if a worker returns to work and resumes earning his or her full normal wages, permanent partial disability may -- and often does -- continue to be paid even if a worker is back on full duty earning full wages. In short, permanent partial disability payments, unlike temporary disability benefits, are not "income benefits" which reduce the long-term disability payments under the policy. Nor has it been established that permanent partial disability benefits, which are awarded to compensate the effect of bodily impairment on future loss of earning capacity, cover the same disability as do the long-term disability benefits paid based on current wage loss.
cc:
Attorney Beth Osowski
Attorney David L. Styer
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