DALE STEINER, Applicant
WHEATON FRANCISCAN ST FRANCIS INC, Employer
WHEATON FRANCISCAN ST FRANCIS INC, Insurer
Wheaton Franciscan-St Francis Inc. and Sentry Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 26, 2007. The applicant also submitted a petition for commission review. Briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded low back injury that the applicant sustained while working for the employer on February 2, 2004. Also at issue is the applicant's correct average weekly wage.
The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The first issue is whether the applicant's low back lifting injury of February 2, 2004, resulted in just a temporary low back strain, or resulted in a disc protrusion at L5-S1 that led to a percutaneous discectomy performed by Dr. Bhupinder Saini on September 2, 2005. Dr. Saini's opinion that the disc problem and surgery were caused by the work incident is credible. Even though the applicant had experienced back complaints in 2002, for the two years prior to February 2, 2004, she was essentially symptom free and working without a problem. (1) After the work injury she continued to have a back problem until she had the surgery.
On April 11, 2005, Dr. Stephen Robbins examined the applicant at the request of the respondents. He opined that the work incident caused a temporary aggravation of the applicant's preexisting "discogenic low back pain," but that she had healed without permanency by August 2, 2004. Dr. Robbins further opined that the applicant's ongoing low back problems were caused by her preexisting condition and her morbid obesity. In their petition, respondents focus on Dr. Saini's initial consultation note dated October 27, 2004, which records: "...the patient has noted she has had no back pain prior to this injury..." Respondents argue this undercuts Dr. Saini's opinion because he apparently did not know about the applicant's prior back trouble that she experienced in 2002 and 2001.
The commission infers that the applicant told Dr. Saini that she was without back pain prior to the February 2004 incident, which was true. It had been two years since she had experienced back trouble, and she had been working without incident until February 2, 2004. Her dramatic onset of symptoms, coinciding with the lifting incident of February 2, 2004, is consistent with Dr. Saini's opinion that this incident caused the L5-S1 disc protrusion.
On March 3, 2006, the applicant was examined by Physician's Assistant Earl Beam, under the supervision of Dr. Saini. It was noted that the applicant had been doing quite well subsequent to a flare-up of symptoms in December 2005. The applicant asked to be granted another month off work to continue her exercise regimen and to increase her stamina. P. A. Beam noted his reluctance to extend the applicant's time off work, but indicated that he would accede to the applicant's request and excuse her from work until the following month. Dr. Saini concurred in this action. It is clear from this clinic note that the applicant was healed by March 3, 2006, and that the additional work release after that date was a highly subjective decision and not medically necessary. Accordingly, it is found that the applicant reached a healing plateau from her work injury on March 3, 2006. Dr. Robbins did not examine the applicant until April 11, 2005, but opined that a healing plateau had been reached on August 2, 2004, eight months prior to his examination. This was also over a year prior to the percutaneous discectomy performed on September 2, 2005. Dr. Robbins' diagnosis of a work-related back sprain is rejected, as his assessment of the healing plateau.
As noted by the administrative law judge, the record is unclear with respect to the actual days and hours worked between February 2, 2004 and March 3, 2006. In addition, the correct figures applicable to the SSDI offset pursuant to Wis. Stat. § 102.44(5), are not in the record. The applicant petitioned regarding the accuracy of the administrative law judge's calculations for a period of temporary total disability between November 14, 2004 and April 17, 2005. However, the lack of evidence regarding the hours worked and the SSDI offset make it impossible for the commission to perform final calculations. Accordingly, the commission will remand the matter to the department with regard to the issue of temporary disability. The parties should attempt to reach a stipulation regarding this issue, based on the commission's findings regarding the average weekly wage and a healing plateau date of March 3, 2006. If agreement cannot be reached between the parties, then a new hearing will be required to resolve the issue of temporary disability, consistent with the commission's findings.
The percutaneous discectomy results in a minimum award of 5 percent permanent partial disability, pursuant to Wis. Admin. Code ch. DWD 80.34(11). This amounts to 50 weeks of compensation at the applicable rate of $232.00 per week, for a total of $11,600.00. This award is also subject to the offset provisions of Wis. Stat. § 102.44(5), and therefore this issue will also be remanded to the department for final calculation of the amounts due.
The applicant's attorney is entitled to a 20 percent fee against disputed compensation awarded herein, as well as $315.26 in costs.
In addition, reasonably required medical expenses are due as follows: reimbursement to Aetna Insurance in the amount of $12,706.68; payment to Advanced Pain Management in the amount of $8.35; payment to VNA Partners in Care in the amount of $73.62; and reimbursement to the applicant for medical and mileage expense in the amount of $571.24.
Dr. Saini's opinion leads to the inference that additional medical treatment and/or medical expense may result from the effects of the work injury, and therefore jurisdiction will be reserved.
Average weekly wage
The applicant began her employment as a full-time registered nurse for the employer in 1992. In 2003, she transferred to a .5 position, which meant 40 hours of work in each two-week period. She testified that she chose to go from full-time to half-time so that she could spend more time with her family, and also because she believed there was more job security for a part-time nurse than for a full-time nurse. She also testified that she went to part-time because she did not like working weekends or holidays, and she conceded that full-time nursing positions were available at the employer's hospital. In the half-time position the applicant sometimes worked more than 40 hours in a two-week period, and sometimes less. This depended on the employer's needs relative to patient census, as well as the availability of other nurses. According to Hearing Exhibit F, the applicant's two-week hourly work totals in the year prior to her injury ranged from 17 to 74, and she averaged approximately 38 hours for each two-week period. The administrative law judge found:
There appears to be little evidence that applicant refused or would have refused more work hours. There is little evidence demonstrating that applicant was not in fact available to work full time hours. Considering the other reasons cited for being classified as a permanent part-time worker, including flexibility of schedule and better pay, reasons which do not affect the number of hours applicant was available to work, the evidence therefore supports the conclusion that applicant did make herself available for more hours, and did not restrict her availability in the labor market to part-time work. I conclude that her wage rate for purposes of worker's compensation benefits should be escalated to full time wages.
The commission finds that the applicant quite clearly did limit herself to part-time work with the employer. Full-time nursing positions were available in other areas of the hospital, and the applicant conceded that fact, but indicated that she wanted to stay in her unit. She also wanted to avoid working weekends, avoid working holidays, and spend more time with her family. The fact that she worked more than 20 hours per week when the employer needed extra help is reflected in her total earnings, but it is not a legitimate reason to expand her wage to full-time. By her own choice, she was not available for full-time nursing work. The applicant's average weekly wage is found to be $642.86, based on the hours actually worked pursuant to Exhibit F. This is as opposed to the full-time wage of $936 per week.
NOW, THEREFORE, this
Within 30 days from this date, respondents shall pay to the applicant as reimbursement for medical and mileage expense the sum of Five hundred seventy-one dollars and twenty-four cents ($571.24); to Advanced Pain Management the sum of Eight dollars and thirty-five cents ($8.35); to VNA Partners in Care the sum of Seventy-three dollars and sixty-two cents ($73.62); and to Aetna Insurance reimbursement in the amount of Twelve thousand seven hundred six dollars and sixty-eight cents ($12,706.68).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed July 31, 2007
steinda . wpr : 185 : 8 ND § 4.8 § 4.11
James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission's partial reversals of the administrative law judge's findings were based on review of the written medical records, and on analysis of the undisputed facts concerning the applicant's restriction to part-time employment.
cc:
Attorney Israel Ramon
Attorney Joseph G. Gibart
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