ERIC WUERZBERGER, Applicant
TRADESMEN INTERNATIONAL INC, Employer
NEW HAMPSHIRE INS CO, Insurer
Tradesmen International, Inc. and New Hampshire 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 February 22, 2007. 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 injury that occurred on December 2, 2004.
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 applicant returned to work on March 3, 2005, but stopped working after he felt back pain while moving a window. He came back to work on March 4, 2005, but again experienced back pain when lifting a window, this time radiating into his left leg. He stopped working on March 4, 2005, and began treating with Dr. Jeffrey Gorelick, a pain management specialist. Dr. Gorelick ordered another MRI on March 15, 2005, and it again showed a small central disc herniation at L5-S1. Dr. Gorelick administered an EMG test on March 23, 2005, and he indicated that the applicant had a high pain threshold, but that there was no evidence of lumbosacral radiculopathy or left lower extremity neuropathy. Dr. Gorelick referred the applicant to another pain management specialist, Dr. David Stein, who continued conservative treatment including lumbar injections. On June 24, 2005, Dr. Stein performed a lumbar discogram at L3 through S1, the results of which were consistent with anular tearing and pain at L5-S1.
On September 1, 2005, Dr. Gorelick referred the applicant to an orthopedic surgeon, Dr. Clay Frank. Dr. Frank opined that on December 2, 2004, the applicant had sustained "an acute breakage event in the form of an internal disc disruption at L5-S1." He cited the complete absence of prior back problems, failure to respond to appropriate treatment, and correlating findings on Dr. Stein's discogram and post-discogram CT. Dr. Frank agreed with Dr. Stein's recommendation for a laser disc decompression.
On November 4, 2005, Dr. Stein performed a percutaneous lumbar disc decompression at L5-S1. This did not have a good result, and caused a new symptom of left-sided radiculopathy. On February 27, 2006, Dr. Frank performed an L5-S1 fusion with insertion of hardware. This resulted in gradual improvement of the applicant's symptoms. On January 9, 2007, Dr. Frank completed a WKC-16-B in which he indicated there had been direct work causation for the applicant's surgeries, and in which he assessed 10 percent permanent partial disability. Dr. Frank assessed permanent physical restrictions of frequent lifting up to 25 lbs., occasional lifting up to 60 lbs., occasional bending, twisting, and climbing, and the necessity of changing position every 30 minutes.
At the insurer's request, Dr. Mark Aschliman examined the applicant on July 12, 2005, and on January 17, 2006. He submitted reports dated July 21, 2005, January 23, 2006, and a supplemental report dated February 8, 2006. In his first report Dr. Aschliman diagnosed ". . . discogenic low back pain with a prior component of left-sided radiculopathy with some underlying degenerative disc disease." He opined that the work incident caused a "temporary symptomatic aggravation" of the preexisting degenerative disc disease. He recommended epidural steroid injections (apparently he was unaware that these had already been done), use of oral anti-inflammatory medication on a more routine basis, and a self-directed, core-strengthening program. He opined that a healing plateau may be attained 12 weeks after the beginning of his recommended treatment.
In his second report, Dr. Aschliman opined that the percutaneous decompression was inappropriate, and that the applicant's symptom complaints were greater than one would expect given the diagnostic findings. Dr. Aschliman recommended against any further surgery because he believed there was a high risk of an unsatisfactory clinical result. He cited Dr. Lincer's release of the applicant on February 22, 2005, and opined that the applicant had reached an end of healing on that date without permanency. However, Dr. Aschliman opined that there had been another symptomatic aggravation of the applicant's preexisting L5-S1 "spondyloarthropathy" at work on March 3, 2005, and that he was still healing from that.
In his supplemental report of February 8, 2005, Dr. Aschliman opined that with epidural steroid injections, narcotic analgesic medication, and a core-strengthening program, the applicant would have reached a healing plateau within six weeks from the beginning of that regimen. Dr. Aschliman again opined that the applicant's symptoms at work on March 3, 2005, were the result of another aggravation of his underlying degenerative disc disease.
The commission finds credible the medical opinions of Drs. Frank, Gorelick, and Stein, all of whom agreed that the applicant sustained a permanent injury to his L5-S1 disc in the work incident of December 2, 2004. The objective testing and clinical records support this conclusion. Dr. Lincer's release without restriction on February 22, 2005, was ill-advised, considering the applicant's ongoing symptoms and objectively-verified central disc herniation.
The percutaneous disc decompression Dr. Stein performed at L5-S1 constituted reasonable medical treatment for the applicant's central disc herniation. The fact that this procedure did not have a good result does not mean that it was unreasonable treatment. Even were this procedure deemed to have been unnecessary, the applicant undertook it in good faith. Pursuant to Wis. Stat. § 102.42(1m),(1) respondents would be liable for this invasive treatment. Dr. Frank also credibly opined that the L5-S1 fusion surgery was attributable to the December 2004 work injury.
Pursuant to the medical opinions of Dr. Gorelick and Dr. Frank, the applicant is entitled to additional temporary total disability from October 8, 2005 to August 28, 2006, a period of 46 weeks and 2 days. At the applicable rate of $480 per week this results in total compensation of $22,240. The applicant was also underpaid temporary total disability in the amount of $328.70 for the period between March 7, 2005 and October 8, 2005.
Dr. Frank assessed 10 percent permanent partial disability to the February 2006 fusion surgery, which included removal of disc material. This is the minimum permanent partial disability due pursuant to Wis. Admin. Code ch. DWD 80.32(11). The percutaneous disc decompression that Dr. Stein performed on November 4, 2005, also involved removal of disc material and entitles the applicant to an additional 5 percent permanent partial disability, pursuant to the same administrative code section. The total permanent functional disability is 15 percent, which entitles the applicant to 150 weeks of compensation at the applicable rate of $232 per week, for a total of $34,800.
The applicant's attorney is entitled to a 20 percent fee against the award for permanent partial disability, the temporary total disability awarded for October 8, 2005 through August 28, 2006, and the $328.70 in underpaid temporary total disability. This results in a future value attorney's fee of $11,473.74, from which an interest credit in the amount of $253.58 will be subtracted to yield a present value fee of $11,220.16. Applicant's attorney is also entitled to reimbursement for costs in the amount of $1,068.75. After subtraction of the future value attorney's fee and costs, the applicant is entitled to total accrued compensation in the amount of $27,843.81, leaving an unaccrued balance of $16,982.40.
With regard to the issue of loss of earning capacity (LOEC), Wis. Stat. § 102.44(6)(a), provides that where an injured employee has returned to work for the employer at a wage equaling or exceeding 85 percent of his wage at the time of the injury, the permanency award shall be based on the functional assessment without regard to LOEC. Wis. Stat. § 102.44(6)(g) provides that if an employee, without reasonable cause, refuses a good faith offer of employment by the employer, the employee shall be considered to have returned to such employment. The applicant was earning $18.00 per hour at the time of the injury, and the employer's offer was initially for $15.30 per hour (exactly 85 percent of $18.00). However, on January 26, 2007, the employer indicated that the actual rate of pay was to be $18.50 per hour. It is inferred that the employer's offer was made in good faith, and the applicant offered no valid excuse for his decision to not even attempt the work. One of the employer's managers indicated that the job offered to the applicant was expected to last at least one year. Accordingly, the applicant is precluded from making a LOEC claim for one year from January 26, 2007 (the date of the last letter/offer). The commission rejects respondents' argument that the applicant's LOEC claim should be dismissed forever based on this job offer. Wis. Stat. § 102.44(6)(b), provides that if the 85-percent employment is ended during the 12-year period under Wis. Stat. § 102.17(4), there shall be a determination of LOEC. The issue will be reviewable again as of January 26, 2008. The administrative law judge appropriately urged the applicant to seek vocational rehabilitation. The applicant needs to make up his mind about what he is going to do.
Medical treatment expenses, including reimbursements, were claimed as set forth in Hearing Exhibit G. In his decision, the administrative law judge directed the insurance carrier to timely review those claims and pay them, unless during its review the carrier discovered reasonable defense to payment. The parties did not address the medical expense/reimbursement issue in their argument to the commission. It is therefore presumed that respondents have already acted in accordance with the administrative law judge's directive concerning it. The commission's order will be left interlocutory with respect to this issue, in case it has not been fully resolved. The order also will be interlocutory with respect to the possibility of future medical expenses.
In accordance with Dr. Frank's medical opinion, jurisdiction also will be reserved with respect to the possibility of future, additional disability.
Now, therefore, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondent shall pay to the applicant the sum of Twenty-seven thousand eight hundred forty-three dollars and eighty-one cents ($27,843.81); and to applicant's attorney, Daniel R. McCormick, fees in the amount of Eleven thousand two hundred twenty dollars and sixteen cents ($11,220.16), and costs in the amount of One thousand eighty-six dollars and seventy-five cents ($1,086.75). Also within 30 days from this date, respondents shall pay any unpaid medical expense/reimbursement set forth in Hearing Exhibit G, unless a reasonable defense arises with respect to any of these claims.
Beginning on October 26, 2007, and continuing monthly thereafter, respondents shall pay to the applicant the sum of One thousand five dollars and thirty-three cents ($1,005.33), until the currently-unaccrued permanent partial disability has been paid in the total amount of Sixteen thousand nine hundred eighty-two dollars and forty cents ($16,982.40).
Jurisdiction is reversed for such further findings and orders as may be warranted.
Dated and mailed September 25, 2007
wuerzer . wrr : 185 : 6 ND § 5.23
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The partial reversal of the administrative law judge's decision, by which the commission awarded 15 percent permanent partial disability in lieu of 10 percent permanent partial disability, was by operation of law as required by Wisconsin Administrative Code ch. DWD 80.32(11). This partial reversal did not involve any credibility determination.
In his brief, the applicant asserted that because the administrative law judge found that it would be premature to address the issue of loss of earning capacity, there could be no commission review of that issue because no decision had been made awarding or denying compensation with respect to it. Wis. Stat. 102.18(1), authorizes the commission to review an administrative law judge's decision "awarding or denying compensation," as long as a timely petition is filed. There is no requirement in this statute that compensation must have been awarded or denied with respect to each and every issue in the administrative law judge's decision. Wis. Stat. § 102.18(1), additionally provides that upon review of the administrative law judge's decision, the commission shall ". . . either affirm, reverse, set aside or modify the findings in whole or in part . . ." (emphasis added). The statute provides authority to the commission to conduct a de novo review of the administrative law judge's decision.
cc:
Mr. Daniel McCormick
Ms. Jan Schroeder
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