BRAD MILLER, Applicant
ROBERTS ROOFING & SIDING, Employer
W J WOODRUFF ROOFING CONTRACTORS INC, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer
In April 2002, the applicant filed an application for hearing seeking compensation for a September 26, 2001 injury while employed at Roberts Roofing & Siding (Roberts Roofing). Subsequently, a prior employer, WJ Woodruff Roofing and its insurer were impleaded into the action on a July 27, 1999 date of injury.
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 22, 2006. Prior to the hearing, Roberts Roofing conceded jurisdictional facts, the occurrence of an injury arising out of his employment with Roberts Roofing while performing services growing out of and incidental to that employment on September 26, 2001, and an average weekly wage on that date that exceeded the statutory maximum for the purposes of calculating worker's compensation indemnity rates. Roberts Roofing also paid temporary total disability benefits from September 26, 2001 to October 29, 2001. For its part, Woodruff conceded jurisdictional facts, the occurrence of an injury arising out of his employment with Roberts Roofing while performing services growing out of and incidental to that employment on July 27, 1999, and an average weekly wage on that date of $566.40.
At the hearing, the applicant sought temporary total disability from October 30 to November 18, 2001, and from December 4, 2001 to April 9, 2002. He also sought permanent partial disability at two percent compared to the body as a whole for functional disability, and 15 percent for loss of earning capacity. He suggested two alternative dates of injury: July 27, 1999 and September 26, 2001. He sought a prospective order regarding a future item of medical expense, the fusion surgery recommend by Dr. Paul.
The ALJ found that the applicant sustained an injury on September 26, 2001 -- when Roberts Roofing was on the risk -- and that the applicant's continuing low back condition resulted from that injury. She awarded payment of temporary total disability for the periods claimed to April 9, 2002. However, she found that an April 9, 2002 healing plateau date was premature, and so declined to award permanent partial disability either functionally or for loss of earning capacity. She also prospectively ordered payment of the proposed surgical expense under Wis. Stat. § 102.18(1)(b). She dismissed the application as it pertained to Woodruff.
Roberts Roofing subsequently filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1970. He is a journeyman roofer. He has a history of injuries and back problems going back several years.
In 1993, the applicant fell 20 feet from a roof, landing in snow. He treated for back pain in 1994, and was in a motorcycle accident in 1997. None of these events led to any permanent disability or permanent restrictions.
In 1996, the applicant began working for Woodruff doing commercial roofing. On July 27, 1999 he injured his back trying to move a pallet that had become adhered to a rooftop. He left work to obtain treatment, and returned a few days later with no permanent restrictions, receiving temporary disability compensation for his lost time. He testified he still had back pain when he returned to work, but hoped it would go away. He avoided doing the heaviest tasks -- such as moving a 90-pound roll of roofing material.
The applicant next sought treatment on August 21, 2000, after experiencing back pain while moving drywall while working for Woodruff. The applicant testified that while the drywall moving bothered his back, he still was in pain from the July 1999 injury.
The applicant had yet another incident of back pain while working at Woodruff on November 10, 2000, when he hurt himself doing a "tear off." He was pushing a wheel barrow with old roofing material in it when he hit a "blister" on the roof, causing his weight to shift. He was taken to the hospital for treatment, and again missed work during which time he again received temporary disability compensation. He returned to work, with his hours gradually increasing to full time, in December 2000. His back still hurt, however, upon returning to work.
In January 2001, Woodruff laid the applicant off for lack of work. The applicant described his back as still somewhat sore at the time.
The applicant then began working for Roberts Roofing in July 2001. He explained he switched employers because the union pay scale was higher in Milwaukee where Roberts Roofing was located. He described the work at Roberts Roofing as more labor intensive because Roberts Roofing did bigger jobs with less equipment.
The applicant was again injured on September 26, 2001, when his left leg slipped out from under him when he was moving insulation across a roof. He testified he "kind of did the splits" and fell on his right knee. He experienced a lot of pain in his back and buttocks area from the fall, more intense than with his prior injuries. He also had pain radiating down his leg.
The applicant sought treatment, and was taken off work. He was released to work with restrictions in October 2001, with the expectation he could do full duty by October 29, 2001. He tried to return to work, but testified his back began spasming as he drove to Milwaukee, leading him to conclude he could not do roofing work. He sought treatment with Andrew E. Kirsteins, M.D., who took him off work again on November 20, 2001.
Dr. Kirsteins released the applicant to work with restrictions on January 22, 2002. The doctor lessened the work restrictions on March 19, 2002, and finally set permanent restrictions (set out in more detail below) as of April 9, 2002. However, the applicant did not return to work. Since then, through the date of the hearing, the applicant has tried a couple of times to work without success.
The parties have submitted expert medical opinion regarding the cause, nature, and extent of the applicant's disability. Treating doctor Kirsteins prepared a practitioner's report on form WKC-16B dated April 9, 2002 (exhibit J). This identifies of the traumatic event causing injury as the slip when pushing the insulation on September 26, 2001 (while working for Roberts Roofing). Dr. Kirsteins described the disabling condition as:
1. Moderate degenerative disc disease casing back pain with flexion and intermittent leg pain.
2. Myofascial pain hip flexor muscles causing flexed posture and contributing to #1.
Dr. Kirsteins also opined the slip at work on September 26, 2001 precipitated, aggravated, and accelerated beyond normal progression the applicant's pre-existing degenerative condition.
Dr. Kirsteins also stated that on April 9, 2002, the applicant was released subject to permanent restrictions against more than a 75-pound maximum lift, with occasional bending, squatting, kneeling, and a maximum of 5 hours a day of driving. The doctor attached a performance capacity chart which allowed medium/heavy work, with a 75 pound max, frequent lifting and carrying up to 35 pounds; standing/walking for 6 to 8 hours, sitting for 5 to 8 hours; driving 3 to 5 hours, intermediate bending and squatting, and frequent climbing and overhead work. Dr. Kirsteins rated permanent partial disability at 2 percent to the whole body for limitations due to back pain with back motion in flexion and extension.
The applicant also submits a March 16, 2006, report from K.S. Paul, M.D. (exhibit P), a neurosurgeon who was treating the applicant at the time of the hearing. His report identified the "date of traumatic event" as "Occupational event 7-27-1999" which of course would be the initial "stuck pallet" incident while working at Woodruff. Regarding the event or exposure that caused the applicant's disability, the doctor referred to his notes. These state:
[The applicant] is a 35-year old gentleman who works roofer. Work does involve a lot of physical activities. He was at work on July 27, 1999. He was filling a pallet and he injured his back and started getting back pain. He was treated conservatively. On November 15, 2000 he again injured his back and started getting more back pain. In September 2001 he was pushing insulation and his leg slipped and he injured his back again and started getting back and both lower limb pain and since then his pain is so bad that he has not been able to work.
Regarding diagnosis, Dr. Paul again referred to his notes which state that the MRI showed degenerative and bulging disc at L4/5 and L5/S1 and maybe an annular tear at L4/5. He affirmatively marked both the direct causation box and the occupational disease box on the form WKC-16B report. Regarding date of disability as it pertained to theory of causation by occupational disease, the doctor wrote:
9-26-01 - - work attempted 1-2 weeks after this date, but pain caused him to stop working again.
Dr. Paul went to state it was too early to rate permanent partial disability and that surgery might be necessary. Indeed, after further testing including a discogram, Dr. Paul wrote in a May 1, 2006 letter included in exhibit P that he was recommending fusion surgery for the applicant.
The applicant also submits the April 3, 2003, report of Timothy Miller, M.D. (exhibit B). Dr. Miller described the work exposure causing disability as "heavy exertion working for WJ Woodruff Roofing Contractors, 7/27/99 to 2001, injury low back, including injuries 7/27/99 and 11/15/00." His diagnosis was two degenerative discs with an annual tear. While the date of traumatic event listed "Occupational" Dr. Miller marked affirmatively the direct cause box and specifically wrote N/A by the occupational disease causation box. As the commission reads his report, he set a permanent lifting limit at 30 pounds, with a limitation to occasional bending.
Dr. Miller estimated permanent partial disability at 8 percent. Finally, asked about the significance of the later work injury of September 26, 2001 (this would be the slip while working for Roberts Roofing); the doctor responded that it was a temporary aggravation.
Roberts Roofing submits a WKC-16 medical report from Dr. Kirsteins dated October 28, 2002 (or after the April 2002 report submitted by the applicant and discussed above), which states the doctor expected no permanent partial disability from the work injury. (Zurich exhibit 2).
Roberts Roofing also submits a January 4, 2002 report from Anoo Patel, M.D., (Zurich exhibit 4). Upon evaluation, he found the applicant neurologically intact with no positive findings to confirm the subjective symptoms of pain in the lower back. His diagnosis was a mild to moderate muscle strain in the lower back from the September 26, 2001 injury. He thought the applicant should have recovered within one to three weeks of the injury -- that a full and satisfactory recovery should have occurred by October 29, 2001. He added:
In the absence of any objective findings that would confirm and correlate with the level of subjective symptoms, I do not believe that there are any residuals or any permanent disability resulting from this work incident of September 26, 2001.
Dr. Patel added that he did not think further treatment was necessary. He opined that the applicant had reached a plateau of healing with no permanent partial disability or need for work restrictions on October 29, 2001.
Woodruff retained Paul A. Cederberg, M.D., whose January 25, 2006 report is at Wausau exhibit 3. His diagnosis was recurrent lumbar strains and degenerative disc disease with a small disc herniation at L4-5, with a 2 percent permanent partial disability for a small disc herniation that should be treated non-surgically. He felt the applicant had reached a healing plateau, and could work within the restrictions set by his treating doctors.
Explaining his decision, Dr. Cederberg wrote:
I would attribute his low back condition, at the present time, to be due to the work injury on September 26, 2001 while working for Roberts Roofing and Siding. Prior to that time, he had low back pain only, and had always returned to work without restrictions. It is after that injury that he had pain into both legs suggestive of a disk herniation, and required restrictions. It was only after that injury that he had a MRI scan of his low back because of the presumed seriousness of his symptoms, which was not the case prior to the September 26, 2001 injury. As mentioned, he has not worked since 2002.
Dr. Cederberg thought the applicant's treatment for work injury was reasonable to date, reiterating that the applicant had reached a plateau with permanent partial disability at two percent compared to disability to the body as a whole. He felt the applicant should work within the restrictions of his treating doctors.
The record also contains reports from the vocational experts. The applicant's expert, John H. Meltzer, M.D., opined that under Dr. Kirsteins' restrictions, the applicant would be borderline for return to work as a roofer. He did think, however, that with selectivity, the applicant could return to work in the construction industry, perhaps as a siding installer. He therefore opined the applicant would have permanent partial disability on a vocational basis for loss of earning capacity at 15 percent under Dr. Kirsteins' restrictions.
Woodruff submitted a report from its vocational expert, Michael Campbell, who opined that Dr. Kirsteins' restrictions (75 maximum lift, frequent lifting up to 35 pounds, intermediate bending and squatting) would not result in any permanent partial disability on a vocational basis for loss of earning capacity. He opined that with the restrictions set by Dr. Miller, the applicant would have permanent partial disability on a vocational basis for loss of earning capacity at 8 percent.
As set out above, the ALJ found the applicant sustained an injury on September 26, 2001 -- when Roberts Roofing was on the risk -- and that the applicant's continuing low back condition resulted from that injury. She awarded payment of temporary total disability for the periods claimed to April 9, 2002. However, she found that Dr. Kirsteins' healing plateau date was premature, and so declined to award permanent partial disability either functionally or for loss of earning capacity. She also prospectively ordered payment of the fusion expense under Wis. Stat. § 102.18(1)(b). (1)
On appeal, Roberts Roofing argues there is no support for the conclusion that the September 26, 2001 date of injury caused permanent disability. Roberts Roofing points to the applicant's prior injuries while employed at Woodruff, the fact he testified he still had symptoms from them even after leaving Woodruff's employment, and Dr. Kirsteins' "medical report" indicating the applicant would have a complete recovery from the September 26, 2001 date of injury (exhibit Zurich 2).) It also argues the ALJ's conclusion that Dr. Kirsteins was "premature" in finding an end of healing is unsupported by the record. It argues against payment of temporary total disability noting that the applicant admitted the employer had work for him during his healing period. Finally, it asserts there is no support for the prospective order holding it -- as opposed to Woodruff -- liable for the fusion surgery proposed by Dr. Paul.
Like the ALJ, the commission concludes that the applicant's disabling condition, and his current claim for disability, arise out of the injury he sustained while performing service growing out of and incident to his employment with Roberts Roofing on September 29, 2001. As a result, Roberts Roofing is liable for the compensation awarded in this case and the application shall be dismissed with respect to Woodruff and its insurer.
The reports of Drs. Kirsteins and Cederberg credibly associated the applicant's disabling low back condition with the incident on September 26, 2001. Dr. Cederberg makes the commonsense point that despite residual symptoms from the injuries at Woodruff, those injuries did not permanently disable the applicant from work -- the injury at Roberts Roofing did. Not only does that suggest that the September 26, 2001 injury was the most serious -- or had the most serious consequences -- it also undercuts Dr. Patel's apparent conclusion the applicant is inventing or greatly exaggerating his symptoms. The fact a worker twice returns to strenuous work after back injuries, but stops working after a third, indicates the worker is not inclined toward symptom-magnification.
The commission further concludes that the applicant reached a plateau of healing on April 2, 2002 with permanent partial disability on a functional basis at two percent compared to permanent total disability. Treating doctors Kirsteins and Miller found an end of healing, as did Dr. Cederberg. Dr. Paul -- who wishes to do the fusion surgery -- says it is too early to rate permanent partial disability, but the commission concludes that is because the surgery he proposes would result in a five percent minimum award under the administrative code. The commission does not read his report to mean the applicant will remain in a healing period continuously from the date of injury to the time the surgery is done; particularly where other treating doctors were satisfied the applicant had reached a healing plateau and rated permanent partial disability.
The applicant will no doubt re-enter a healing period if he has the surgery proposed by Dr. Paul. However, the supreme court has held that the commission cannot order payment of temporary total disability after a worker's condition has stabilized even though he or she may be awaiting surgery to treat the work injury, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994). On the other hand, the commission has held in some cases that an insurer may not refuse to pay for treatment, then assert the applicant has stabilized by virtue of the nontreatment. Carole Lee v. Famous Fixtures, WC Claim No. 96000857 (LIRC, July 2, 1997). [See also, Irvine v. UPS, WC Claim No. 1998-021734 (LIRC, June 13, 2001); Punzel v. Elliot, et al., WC Claim No. 1996042092 (March 3, 2000); Wagner v. Fox Erectors, WC Claim No. 1999-055504 (LIRC, November 29, 2001).] The difference between Larsen Co. and GTC Auto Holdings and the situation in Carole Lee, Punzel and Wagner in a practical sense 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). [See also: Raelene Anderson v. ServiceMaster Professional, WC Claim No. 2002-025737 (LIRC, April 4, 2005).] In Larsen Co. and GTC Auto, doctors -- including treating doctors -- were willing to rate permanency. In this case, likewise, not only did Dr. Cederberg opine the applicant has reached a plateau, but Drs. Kirsteins and Miller did as well.
The next question is the extent of temporary disability. Roberts Roofing contends that the applicant admitted that Roberts Roofing would have provided work upon his initial release to work in October 2001. However, the applicant also concluded that he could not actually work at that point, and saw Dr. Kirsteins who took him off work again and later issued work restrictions significantly limiting his lifting ability. The payment of temporary total disability is appropriate to the healing plateau date under these facts, especially as the applicant's vocational expert reasonably opined that the applicant could not be expected to do roofing work given his permanent restrictions and as Roberts Roofing brought no witnesses to explain how the work it had would have accommodated the applicant's restrictions set by Dr. Kirsteins.
The commission therefore concludes the applicant was temporarily and totally disabled for the periods claimed. The applicant is therefore entitled to compensation for temporary total disability from October 30 to November 18, 2001, a period of 2 weeks and 3 days, and from December to April 9, 2002, a period of 18 weeks. In total, the applicant is entitled to temporary disability for 20 weeks and three days at the weekly rate of $582 (the statutory maximum for injuries in 2001), or $11,931.
The commission further concludes that the applicant has established permanent partial disability at 2 percent compared to disability to the body as a whole on a functional basis. This amounts to 20 weeks at the weekly rate of $184 (the statutory maximum for injuries in 2001) or $3,680, all of which is accrued.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional compensation awarded ($15,611.00) or $3,122.20. That amount, plus costs of $907.56, shall be deducted from the applicant's award and paid to his attorney within 30 days. The remainder equals $11,581.24.
In this case, the ALJ ordered payment of the full amount of the temporary disability compensation otherwise due the applicant to the Fond du Lac County Child Support Agency. The applicant did not object to this aspect of the ALJ's order and, indeed, seeks affirmance of the ALJ's decision on appeal. The commission thus, infers that payment of the benefits due the applicant to the Fond du Lac County Child Support Agency pursuant to Wis. Stat. s 102.27(2) is warranted in this case. Therefore, the $11,581.24 otherwise due the applicant in compensation for both temporary total disability and permanent partial disability shall be paid to the Fond du Lac County child support agency. (2)
Roberts Roofing also asserts generally in its brief the applicant exceeded his choice of practitioner under Wis. Stat. § 102.42(2). However, Roberts Roofing does not explain how the ALJ's detailed finding on this issue is in error. Having reviewed the record, the commission adopts the ALJ's findings with respect to the choice of practitioner issue, and incorporates those findings as if set forth herein.
The applicant incurred reasonable and necessary medical expense to cure and relieve the effects of his September 26, 2001 work injury as set out in the medical treatment statement at exhibit D. These shall be paid by Roberts Roofing.
The commission further credits Dr. Paul's opinion, as supported by the MRI and discogram findings, that a fusion surgery is warranted. Like the ALJ, the commission shall order for the payment of that treatment expense prospectively under Wis. Stat. § 102.18(1)(b).
As the proposed surgery may affect the applicant's work restrictions, the commission concludes that an award for permanent partial disability on a vocational basis for loss of earning capacity is premature at this time. Likewise, future treatment including surgery may result in additional temporary disability, further permanent partial disability on a functional basis, and more medical expense. Accordingly, this order shall be left interlocutory to allow an award for permanent partial disability for loss of earning, as well as awards for additional temporary disability, permanent partial disability on a functional basis and medical expense that might arise in the future.
NOW, THEREFORE, the Labor and Industry Commission makes this:
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
The application is dismissed as to WJ Woodruff Roofing Contractors, Inc., and its insurer Wausau Underwriters Insurance Company.
Within 30 days, Roberts Roofing & Siding and its insurer, Zurich American Insurance Company shall pay all of the following:
- To the Fond du Lac County Child Support Agency, Eleven thousand five hundred eighty-one dollars and twenty four cents ($11,581.24) under Wis. Stat. § 102.27(2)(a).
- To the applicant's attorney, Thomas A. Schuessler, the sum of Three thousand one hundred twenty-two dollars and twenty cents (3,122.20) in fees and Nine hundred seven dollars and fifty-six cents ($907.56) in costs.
- To Valley Neuro/Microneurosurgery, the sum of Five hundred seventy-two dollars and twenty-five cents ($572.25).
- To Mercy Medical Center, the sum of Three hundred thirty-four dollars and fifteen cents ($334.15).
- To Radiology Associates Fox Valley, SC, the sum of Ninety-three dollars ($93.00).
- To Fox Valley Open MRI, the sum of One thousand three hundred fifty dollars ($1,350.00).
- To Aurora Health Care, the sum of Eight hundred seventy-one dollars and eighty-nine cents ($871.89).
- To Fond du Lac Regional Clinic, the sum of Five hundred twenty-nine dollars ($529.00).
- To Anesthesia & Analgesia, PC, the sum of Six hundred fifty dollars ($650.00).
- To Timothy Miller, M.D., the sum of Two hundred six dollars ($206.00);
- To St. Agnes Hospital, the sum of Six thousand one hundred eighty-nine dollars and seventy-five cents ($6,189.75).
- To Anesthesia Associates, LTD, the sum of Two thousand two hundred sixty-three dollars ($2,263.00).
- To Radiology Group, PC, SC, the sum of Two hundred fifty-nine dollars ($259.00).
- To Genesis Medical Center, the sum of Two thousand three hundred fifty-one dollars and sixty-nine cents ($2,351.69).
Within 30 days of receiving a bill for the services, Roberts Roofing and Zurich American Insurance Company shall pay all expenses associated with the fusion surgery proposed by Dr. Paul as described above.
Jurisdiction is reserved for further orders and awards as are appropriate and consistent with this order.
Dated and mailed July 9, 2007
millerb . wrr : 101 : 1 ND § 5.6 § 5.9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor. The commission did not modify her decision based on a different impression of the applicant's credibility regarding how his work injury happened or what his current symptoms are. Rather, the commission reversed based on a different conclusion as to the effect of the opinions of the medical experts, none of whom testified, given the case law set out above.
In his brief, the applicant suggests the possibility of apportionment among the dates of injury at issue under Wis. Stat. § 102.175(1) which provides:
102.175(1) If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury.
While "medical evidence on the exact percentage contribution by each injury is not necessarily required", (3) the fact is none of the doctors suggest apportioning disability between the accidental events here. The commission is satisfied that the September 26, 2001 incident was by far the most significant in terms of the effect on the applicant's lower back. Thus, the commission declined to apportion disability among the dates of injury in this case.
cc:
Attorney Thomas A. Schuessler
Attorney Edward W. Stewart
Attorney Laura L. Salerno
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