PATTIE R NOVOTNEY, Applicant
DEPT OF HEALTH & FAMILY SERVICES, Employer
DEPT OF ADMINISTRATION, Insurer
The Wisconsin Department of Health and Family Services and its insurance carrier, Wisconsin Department of Administration, submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on December 12, 2006. The applicant submitted an answer to the petition and briefs were submitted by the parties.
At issue are the nature and extent of disability and liability for medical expense attributable to the conceded low back injuries of March 9, 2004, and April 10, 2004. A corollary issue is whether or not the administrative law judge erred by allowing into evidence the applicant's vocational expert report, even though that report was not timely submitted pursuant to Wis. Stat. § 102.17(1)(d)3. An average weekly wage of $465.20 was conceded. Various periods of temporary disability have been conceded and paid, and 7 percent permanent partial disability has also been conceded and paid.
The commission has carefully reviewed the entire record in this matter and hereby modifies and affirms the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW. The commission makes the following:
The applicant, whose birth date is July 9, 1950, was employed as a nursing assistant for the employer. She sustained two conceded low back injuries while dealing with patients, the first on March 9, 2004, and the second on April 10, 2004. She first received treatment from her primary physician, Dr. Paul Ippel, who ordered a lumbar MRI on April 16, 2004. This was read as showing a large central disc protrusion at L3-4, and Dr. Ippel referred her to Dr. Michael Ebersold, a neurosurgeon. On April 26, 2004, Dr. Ebersold performed a laminectomy and removal of the extruded disc material at L3-4. The surgery did not have a good result in relieving the applicant's symptoms, which consist of continued low back pain and left leg pain.
Dr. Ebersold referred the applicant to Dr. Donald Bodeau on June 4, 2004. Dr. Bodeau took a history of a gradual improvement after the April 2004 surgery, but of continuing symptoms. He began conservative treatment and on June 24, 2004, recorded the applicant's pain level at 8 or 9 on a scale of 10. He ordered a lumbar MRI on June 25, 2004, which did not show any recurrent disc problem. On June 28, 2004, Dr. Bodeau noted the intensity of the applicant's pain was 8 on a scale of 10. He prescribed medication and released her to sedentary work for four hours per day. On July 21, 2004, he changed this to six hours per day.
Conservative treatment continued as did the applicant's symptoms, with her left leg pain being the most prominent symptom. Dr. Bodeau referred her for consultation to Dr. James Manz on October 1, 2004. Dr. Manz ordered a lumbar discogram and CT scan on November 10, 2004, and the results were unremarkable, showing only the laminectomy at L3-4. Dr. Manz recommended a referral to a pain clinic.
On December 1, 2004, Dr. Bodeau noted the applicant's pain was still at 8 on a scale of 10. He had taken her off work again. However, he wrote that regardless of whether or not the applicant went to work, there was remarkably little change in her symptoms. He saw no evidence that performing sedentary or even light work would cause adverse effects. Therefore, he released her again to sedentary work two hours per day four days per week. He thereafter gradually increased the number of hours she could work, until he saw her on February 17, 2005.
Dr. Bodeau's clinic note of February 17, 2005, documents the applicant's ongoing and severe back/leg pain, for which he continued to recommend a spinal cord stimulator or morphine pump. He diagnosed post-laminectomy back and leg pain, and gave the applicant substantial physical restrictions of occasional lifting up to 20 lbs., occasional bending, squatting, twisting, reaching, etc., and frequent sitting or standing. He also assessed 7 percent permanent partial disability, released the applicant for work within her restrictions, and contemplated future medical treatment from Dr. Ippel and/or himself. The applicant did not thereafter receive care from Dr. Bodeau. The employer laid her off work permanently on March 19, 2005, and she has not found or actively sought new employment.
When the applicant saw Dr. Bodeau on February 17, 2005, she told him she had been to see Dr. Ippel, who had told her she should go back to the pain clinic. The applicant testified that Dr. Bodeau reacted to this news by throwing her chart across the table and telling her she could go back to Dr. Ippel and the pain clinic for all her care. Dr. Bodeau's clinic note of February 17, 2005, recounts that the applicant was being laid off from work on March 19, 2005, and would thereupon stop receiving disability benefits under Wis. Stat. § 230.36, which provides full payment to state employees injured in the performance of hazardous duty. Dr. Bodeau wrote that the applicant had many concerns about the legal and administrative aspects of her case, her employment status, and union issues. He also noted that the applicant had continued to work with Dr. Ippel for her medication management.
The commission inferred that the applicant most probably exaggerated the extent of Dr. Bodeau's reaction to her mention of Dr. Ippel's treatment on February 17, 2005. However, Dr. Bodeau's reference to Dr. Ippel in the clinic note, his detailing of the applicant's concerns about the "legal and administrative aspects" of her case, and the fact that he never thereafter treated her, support the inference that her testimony concerning his impatience with her has a basis in fact.
On April 22, 2005, Dr. William Monacci examined the applicant at respondents' request. In his report dated May 23, 2005, Dr. Monacci opined that she had sustained a permanent aggravation of her lumbar spondylitic condition, and developed interfascicular scarring at the surgical site causing radicular pain. He indicated this was difficult to treat. He also indicated that there was no significant motor impairment but there was moderate restriction of range of motion. He recommended that the applicant return to sedentary work five days a week, with a permanent 20-lb. lifting restriction. He also recommended that she refrain from frequent bending or stooping, that she be allowed to change positions at will throughout the workday, and that she be allowed to engage in stretching of her low back several times per hour. He agreed with a 7 percent permanent partial disability assessment. Dr. Monacci submitted two supplemental reports in July 2006, which reiterate the opinions found in his original report.
Dr. Ippel completed a WKC-16-B dated July 7, 2006, in which he opined that the applicant was permanently and totally disabled as a result of her work-related injuries.
Respondents' vocational expert, John Meltzer, submitted a report dated September 2, 2005. He recounted the applicant's medical history, and that she told him she only gets about 3-1/2 hours of sleep each night due to her back/leg pain. She takes Methadone for the pain and does not work or seek work. She graduated from high school in 1968 and has poor math skills but average reading skills. She can make change. She has worked as a nurse's aide, cook, custodian, and egg packer/inspector. Her highest annual wage was in 2003 while working for the employer, when she earned $25,216. She has been living on income continuation insurance, her permanent partial disability payment, and a small pension from the Wisconsin Retirement System. She has applied for SSDI. Meltzer opined that because Dr. Ippel simply indicated that the applicant should not be working, and did not offer any specific functional limitations, a loss of earning capacity assessment could not be made based on Dr. Ippel's opinion. Based on Dr. Bodeau's physical restrictions, Meltzer assessed loss of earning capacity at 25-30 percent. Based on Dr. Monacci's physical restrictions, Meltzer assessed the loss at 30-35 percent.
INADMISSIBILITY OF APPLICANT'S VOCATIONAL REPORT
The administrative law judge made an oral ruling (Hearing Tr., p. 9) allowing submission of Jeanne Krizan's vocational report. He cited the fact that the department had recently accelerated the number of hearings held in the Eau Claire area. The applicant's attorney asserted that this change by the department had resulted in both applicants and respondents "scrambling" to meet hearing deadlines.
However, the applicant filed her claim on April 11, 2005. The Notice of Hearing was mailed on June 23, 2006, seven weeks prior to the hearing and five weeks prior to the deadline for timely submission of expert reports. Respondents would almost certainly have been aware of the fact that the applicant intended to claim permanent total disability. However, it is not the respondents' knowledge of the claim that is the sole concern of Wis. Stat. § 102.17(1)(d)3. Respondents' counsel is entitled to the full statutory period of 15 days to prepare arguments in response to a vocational report. The department is also entitled to the full 15-day period to review the evidence and prepare for the hearing. Most important, deadlines are a necessity for the orderly adjudication of worker's compensation claims, and if those deadlines are to have any meaning or usefulness they must be enforced. The applicant was given ample notice and had ample time to submit a vocational report by July 26, 2006. The fact that the number of hearings in the Eau Claire area had accelerated should have prompted the applicant to be better prepared for obtaining such reports, rather than more poorly prepared. The applicant did not demonstrate good cause for failing to timely file Jeanne Krizan's vocational report, and that report is not admitted into evidence.
PERMANENT AND TOTAL DISABILITY
John Meltzer accurately noted that Dr. Ippel's opinion that the applicant is "permanently and totally disabled" suffers from an absence of any articulation of physical restrictions attributable to the effects of the work injuries. However, both Dr. Bodeau and Dr. Monacci gave detailed physical restrictions attributable to the work injuries. As previously noted, the applicant's claim for permanent total disability must be resolved without reference to Ms. Krizan's vocational report, which is excluded from the evidence, and Mr. Meltzer assessed loss of earning capacity at between 25 and 35 percent, depending upon whether Dr. Bodeau's or Dr. Monacci's restrictions are accepted.
Any award for loss of earning capacity must be based upon some kind of prediction as to impairment of earning capacity. (1) While the preferred methodology for making that prediction includes opinions from vocational experts, a prima facie showing of permanent total disability may be determined by the department itself, if it finds sufficient evidence supporting such disability. (2) As noted in Beecher v. LIRC, 2004 WI 88, at ¶ 32, the "odd lot" doctrine established in Balczewski v. ILHR Dept., 76 Wis. 2d 487, 495, 251 N.W.2d 794 (1977), operates as a rule of evidence in cases involving a claim for permanent total disability. Where a claimant makes a prima facie case that she has been injured in an industrial accident and, because of her injury, age, education, and capacity, she is unable to secure any continuing and gainful employment, the burden of showing that the claimant is in fact employable and that jobs do exist for her shifts to the employer.
When the applicant was laid off from her employment on March 19, 2005, she was 54 years old. She has a high school education, and limited skills beyond what is now her essentially unusable training as a certified nursing assistant. While Dr. Bodeau's and Dr. Monacci's assessments of physical restrictions attributable to the work injuries are similar, Dr. Monacci clearly explained that the applicant must be allowed to change positions at will throughout the workday, and to engage in stretching her low back several times per hour. These are extremely limiting restrictions which preclude any employment involving extended standing or sitting, and which require breaks from employment duties several times per hour. The commission's analysis of Dr. Monacci's credible permanent restrictions, and of the other factors relevant to the odd lot analysis of Balczewski, lead to the inference that the applicant did establish a prima facie case for permanent total disability. The commission additionally infers that John Meltzer's vocational report failed to credibly demonstrate that the applicant is actually employable in regular and continuous work, or that there is any job she could perform that is actually available to her. Respondents failed to rebut the prima facie case for permanent total disability.3(3)
The administrative law judge found that the date of permanent total disability was February 17, 2005, when Dr. Bodeau released her with permanent restrictions. However, the employer provided the applicant with part-time employment until she was laid off on March 19, 2005. The date of this permanent layoff is found to be the date she became permanently and totally disabled.
CALCULATIONS
The applicant may have additional claims for temporary partial disability for periods up to March 19, 2005, and this order will be interlocutory with respect to any such claims. The applicant has received income continuation insurance payments for periods during which she should have been receiving compensation pursuant to the commission's findings. Respondents shall reimburse the income continuation insurance carrier for such payments, and receive credit for such reimbursement against the compensation amounts otherwise due. It appears from correspondence in the file that the applicant has qualified for SSDI, and is receiving payments for same, which would invoke the offset provisions of Wis. Stat. § 102.44(5). The applicant's attorney is also due a 20 percent fee against all awards made herein, plus costs in the amount of $1,127.66.
The record does not contain full and updated information to allow computation of exact amounts due at this time to the applicant, his attorney, and the income continuation insurance carrier. The commission will order payment of $800.00 in compensation for permanent total disability to the applicant, and $200.00 in fees to his attorney, so that this order may be appealable. However, the matter will be remanded to the department for calculation of the amounts due in accordance the commission's findings, and for payment in accordance with the department's calculations.
NOW, THEREFORE, this
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June 25, 2007
novotpa . wpr : 185 : 8 ND § 5.31 ND §
8.24
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission modified the administrative law judge's finding regarding the date the applicant became permanently and totally disabled. This modification was based on uncontroverted testimony regarding the date the employer permanently laid off the applicant from his employment. The commission had no disagreement with the administrative law judge's credibility impressions of the witnesses at hearing.
cc:
Assistant Attorney General R. Duane Harlow
Attorney Steve M. Jackson
Laura Ellingson
Appealed to Circuit Court. Affirmed May 5, 2008.
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