REBECCA WOOD, Applicant

POLARIS INDUSTRIES MFG LL, Employer

POLARIS INDUSTRIES MFG LL, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 11, 2006. The applicant submitted an answer to the petition and briefs were submitted by the parties. On February 12, 2007, the commission ordered the taking of additional evidence, which has now been received. At issue are whether or not the applicant sustained a compensable work injury on August 25, 2004, and/or on April 6, 2005; and if so, what are the nature and extent of disability and liability for medical expense attributable to such injury or injuries.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is February 17, 1949, began working for the employer's predecessor in 1979. In 1990, the employer purchased the company and the applicant switched from a position as an inspector to production welding. Her primary job involved lifting a muffler overhead and placing it into a fixture in a welding booth, and then using a welding torch to perform welding tasks on the muffler and associated parts. She worked on a piece rate basis. She developed pain in her neck and shoulders beginning in 1997. In 1999, she was opening a tub of parts when the parts slipped forward and the shifting weight pulled on her arms, shoulders and back. She was treated for neck and back pain and underwent physical therapy.

The applicant continued her regular welding job until shortly after the 1999 incident, at which time she changed to a job that involved loading and unloading parts, and clamping and unclamping them. The clamps were sometimes tight and the job involved a considerable amount of pulling and gripping. It also required an hour or so of overhead welding each day, in order to repair bad welds on the parts. The applicant's neck and back symptoms increased, and on August 25, 2004, she called her chiropractor from work with complaints of neck and upper back pain, swollen and stiff hands, and right heel pain. He took her off work and treated her that day and the next day, resulting in the claim for an occupational injury claim with a date of injury on August 25, 2004.

The employer gave the applicant an office job pursuant to her chiropractor's request, but the applicant remained symptomatic. She began treating with an orthopedic surgeon, Dr. Thomas Rieser, who first saw her on September 8, 2004, with complaints of neck, shoulder, back, bilateral arm, bilateral hip, and bilateral leg pain. An MRI performed on October 1, 2004, revealed a small disc protrusion at T7-8, to which were added diagnoses of overuse syndrome as well as cervical, thoracic, and lumbar degenerative changes. Dr. Rieser completed a WKC-16-B on April 31, 2005, in which he opined that the applicant sustained a work-related aggravation/acceleration of her degenerative conditions, and assessed 6 percent permanent partial disability. Dr. Rieser also completed a functional capacities evaluation which limited the applicant to a six-hour workday with lifting up to ten pounds, and occasional bending, squatting, and twisting.

At the employer's request, Dr. William Simonet examined the applicant on November 24, 2004. He diagnosed neck and back pain without objective physical findings, mild and age-appropriate degenerative disc disease, moderate obesity, and depression. He attributed her symptoms to deconditioning and depression and found no evidence of a work injury. He further opined that the applicant required no physical restrictions.

On April 6, 2005, the applicant tripped on a pallet at work and fell, striking her head and losing consciousness. She received emergency treatment that same day from her own physician, Dr. Kari Smith. Dr. Smith's note recounts the work incident and the applicant's complaints of pain in her head, neck, back, right shoulder, and left hip, as well as nausea. The applicant testified that she passed out on the bathroom floor the night of this incident, although she subsequently testified that this could have occurred on the morning of April 7, 2004. Still later in her testimony, she again recalled it as occurring the night of April 6, 2005. Dr. Smith saw the applicant again on April 8, 2005, but there is no mention of the applicant having passed out at home. A CT scan of the applicant's head was done on April 6, 2005, and it was negative. Dr. Smith diagnosed a concussion with multiple contusions and exacerbation of degenerative changes. Another CT scan of the applicant's head was done on April 8, 2005, and it was again normal.

The applicant thereafter complained of chronic headaches and sensitivity to light. Dr. Smith's medical notes also recount complaints of dizziness. The applicant was referred to Dr. David Dorn, a neurologist, on June 22, 2005. He took a history of the fall with continuing symptoms of headache, dizziness, and vision problems. He prescribed medication and ordered a brain MRI which was normal, except for:

"Single tiny focus of nonspecific T2 hyperintensity in the left centrum semiovale, most compatible with a tiny focus of chronic small vessel ischemic change which is of doubtful significance."

The MRI incidentally showed some degenerative changes at the C4-5 and C5-6 disc levels. In a clinic note dated October 11, 2005, the applicant told Dr. Dorn she had experienced two blackouts associated with severe headaches, one on September 19, 2005, and the other on September 29, 2005. She also indicated she had experienced episodes in which she felt like she was "fading out," and then she would lie down for a few minutes, feeling like she might pass out. Dr. Dorn continued conservative treatment and referred her to a cardiologist, Dr. Linda Long, to see if there was a cardiac component to the alleged losses of consciousness. In her exam on December 2, 2005, Dr. Long found no evidence of cardiac disease other than elevated cholesterol, and no link to the alleged blacking out. She also diagnosed depression.

On December 2, 2005, the applicant was referred for a psychiatric assessment with Psychiatric Physician's Assistant Darrel Cotch. She told Cotch that she was having daily headaches and had fainted and fallen five times, each time injuring herself. Cotch diagnosed depression, chronic headaches after trauma, chronic back pain, and moderate to severe stress.

Dr. Dorn completed a WKC-16-B on March 14, 2006, in which he diagnosed headaches with associated syncope, cervical and thoracic pain, memory loss, photophobia, dizziness, the increased signal shown in the MRI, and degenerative changes at C4-5 and C5-6. He indicated direct work causation attributable to the fall on April 6, 2005, and assessed a total of 52 percent permanent partial disability for "memory loss, depression, syncope, muscle spasm, [and] variable degrees of restrictive range of motion of neck." With regard to work restrictions, Dr. Dorn indicated that the applicant should be allowed to lie down or take off work when she experienced headaches.

At the employer's request, Dr. Daniel Randa, a neurologist, examined the applicant on May 31 2005. He diagnosed a cerebral concussion with photosensitivity secondary to the fall on April 6, 2005. However, he found the applicant's objective neurological exam to be normal, with no evidence of a significant structural intracranial event. Dr. Randa assessed 2 percent permanent partial disability attributable to recurring vascular headaches accompanied by nausea and vomiting. He opined that the applicant had reached maximum medical improvement and required no additional medical care.

Dr. Randa subsequently received additional medical records which he reviewed, and thereafter submitted an additional report dated March 20, 2006. He noted that a MRI scan of the brain had been performed on June 2, 2005, and was normal except for the hyperintensity in the centrum semiovale. Dr. Randa opined that this anomaly was "compatible with a tiny focus of chronic small vessel ischemic change of doubtful significance." An MRI of the cervical spine was performed on July 16, 2005, and showed mild degenerative changes with a shallow foraminal disc protrusion at C4-5, and spurring at C5-6. Dr. Randa also described neuropsychometric testing done on August 4, 2005, which showed indications of inconsistent or suboptimal effort, along with moderate to severe difficulties on memory tasks. Dr. Randa indicated that he would not expect to see this level of memory difficulty based on the injury described. Dr. Randa diagnosed cerebral concussion. He opined that the objective testing (MRI, CT scan, and EEG) provided no evidence of an abnormality other than the increased T2 signal, which he believed was of no clinical significance. He reiterated his assessment of 2 percent permanent partial disability based on the subjective complaints of headaches, but opined that psychological factors were significantly contributory to the applicant's clinical picture.

The neuropsychological evaluation Dr. Randa referred to was performed on August 4, 2005, by Dr. Gregory Lamberty, a clinical neuropsychologist. Dr. Dorn referred the applicant to Dr. Lamberty. Dr. Lamberty opined:

"The present evaluation reveals generally average performance with respect to intellectual abilities. The patient actually performs within normal limits or better on sensitive measures of attention and executive functioning. Unfortunately, there are some indications of inconsistent or suboptimal effort along with moderate to severe difficulties on memory tasks. I would not expect to see the level of memory difficulty noted in this evaluation, as a function of the injury described. Further, there is a strong indication of somatization or stress-related physical and cognitive complaints. While a neurologic cause for the patient's memory difficulties cannot be fully ruled out, the most likely explanation for such difficulties would relate to a progressive dementing condition, rather than a trauma related cause. I think it very unlikely that the patient has a significant dementia at this time, given her clinical and family history."

Dr. Lamberty also wrote in his report:

"While I do not think that the patient was making a conscious effort to perform poorly, she seemed very distressed and distractible and this seemed to interfere with her ability to put forth a strong and consistent effort."

The applicant's vocational expert, Francis Maslowski, opined that the physical restrictions given by Dr. Rieser and Dr. Dorn together result in very select light employment opportunities for the applicant, and render her permanently and totally disabled.

The employer's vocational expert, Jan Lowe, opined that considering Dr. Rieser's physical restrictions, the applicant could perform a substantial number of available jobs that have a starting wage of between $8.00 and $10.00 per hour. However, Lowe opined that accepting Dr. Dorn's physical restrictions, the applicant's chances of finding employment would be remote.

Pursuant to the commission's remand order, the applicant was examined and evaluated by Dr. Brian Bell, Ph.D., an assistant professor of neuropsychology at the U.W. Hospital and Clinics. Dr. Bell interviewed the applicant on March 30, 2007, and at that time recorded her complaints of poor concentration, almost constant headaches, neck/back/shoulder/elbow pain, insomnia, and reportedly passing out a couple of weeks prior to her seeing him. Dr. Bell also performed comprehensive mental, psychological, and dexterity testing. He indicated that the applicant did poorly on three tests designed to be sensitive to the level of test-taking motivation and effort, and that she performed worse on these measures than the average patient who has sustained moderate-to-severe traumatic brain injury. Dr. Bell was unwilling to state that the applicant deliberately put forth an inadequate effort in the test taking. However, he opined that because of the results the neuropsychological test scores falling within the impaired range could not be taken at face value. He opined that the mild nature of the applicant's work-related head injury would not be expected to result in the chronic memory impairment reflected in her testing, and that her complaint of cognitive impairment was not substantiated. Dr. Bell further opined:

"Mrs. Wood's complaints of mood disorder and chronic pain are largely subjective and difficult to objectively quantify, especially in the context of litigation. It appears from the patient's history that she had significant emotional distress and chronic pain complaints prior to the 2005 work injury, although her complaints intensified after the April 2005 fall at work. Mrs. Wood's reported history of being a victim of childhood abuse and pre-2005 conflict with her employer probably contributed to the intensity of her symptoms after the 2005 injury. That is, a mild head injury alone typically would not be expected to result in chronic and severe head pain and severe depression and it is believed that pre-existing psychological facts as well as litigation issues play a role in the minority of individuals who do report debilitating, chronic postconcussive symptoms. In regard to her emotional status, Mrs. Wood's current symptoms are consistent with Depression Not Otherwise Specified (DSM-IV 311).

The severity of her symptoms does appear to be out of proportion to the nature of the injury, but Mrs. Wood is not believed to be deliberately malingering. In addition, her activity level and emotional state do appear to have declined since the 2005 head injury. Mrs. Wood's current psychological status, including her self-perception as significantly disabled, is considered unlikely to improve substantially."

Dr. Bell permanently restricted the applicant to employment in a relatively low stress environment, with relatively low physical demands and low sensory stimulation. He assessed 2 percent permanent partial disability for recurrent headaches and 5 percent permanent partial disability for depression. He recommended continued psychological and psychiatric treatment.

The employer submitted an updated opinion from Dr. Randa, in which he recounted Dr. Bell's findings and opinions. Dr. Randa opined that Dr. Bell's conclusions were consistent with his own, in that preexisting psychological factors and litigation appear to be playing a role in the applicant's symptom presentation, which was out of proportion to the nature of her injury. Dr. Randa opined that the applicant could resume full-time employment consistent with the restrictions given by Dr. Bell, but that those restrictions could be liberalized over time as her functional status improved.

The applicant presented an updated vocational opinion from Francis Maslowski, in which Maslowski opined that given the combination of Dr. Rieser's and Dr. Bell's physical restrictions, he continued to believe that the applicant is permanently and totally disabled. The employer submitted an updated vocational opinion from Jan Lowe, in which she opined that considering the opinions of Dr. Bell and Dr. Randa, the applicant is able to perform full-time employment with starting earnings in the $8.00-to-$12.00-per-hour range. Lowe also submitted a summary of local and available job listings.

In consultation with the commission, the administrative law judge indicated that he found the applicant to have been a credible witness whose physical and psychological conditions were permanently altered by both work injuries. He relied upon the medical opinions of Dr. Rieser and Dr. Dorn to find a compensable occupational back disease with a date of injury on August 25, 2004, as well as a compensable traumatic head injury occurring on April 6, 2005. He also accepted Maslowski's vocational opinion that the work injuries had resulted in permanent and total disability. 
  

Occupational Back/Neck Injury

The commission agreed with Dr. Rieser's credible opinion that the applicant sustained an occupational back/neck injury. The applicant's employment with the employer resulted in substantial stress to her spine over a period of many years. Her neck and back symptoms gradually increased to the point that she first missed work for this occupational back disease on August 25, 2004, which was the occupational date of injury. Dr. Rieser's assessment of 6 percent permanent functional disability of the whole body attributable to this occupational back disease is accepted as credible, as are his light-duty physical restrictions. However, his limitation to a six-hour workday, even with light duty, is not credibly explained and is not credible to the commission. Compensation for the six percent permanent functional disability will be subsumed into the award for loss of earning capacity.

Dr. Dorn referred the applicant to Dr. L. Michael Espeland and Dr. James Anderson for treatment of her spine condition, and the record documents reasonably required treatment for this condition through January 13, 2006. No additional temporary disability has been claimed for this particular injury. 
  

Head Injury

With regard to the work injury of April 6, 2005, it is clear from Dr. Bell's and Dr. Randa's opinions that the incident resulted in recurrent headaches. Both Dr. Bell and Dr. Randa assessed 2 percent permanent partial disability attributable to these headaches. Dr. Bell also assessed 5 percent permanent partial disability for depression, but nowhere in his report did he specifically attribute this depression to the work injury of April 6, 2005. He discounted as unreliable the applicant's neuropsychological test scores, based on results that were out of portion to the severity of her head injury. He indicated that individuals with a history of mood disorder, such as the applicant, may make "retribution errors." He describes these as errors in which an individual with a history of mood disorder may underestimate her level of premorbid problems, and become focused on perceived symptoms from a physical trauma, because it is thought that dysfunction due to physical trauma is more socially acceptable than an emotional dysfunction.

Dr. Bell's report is not clear with respect to how many of the applicant's current complaints he believes are attributable to her preexisting psychological condition, and how many he believes are attributable to her work injury. In this respect, the commission finds Dr. Randa's and Dr. Lamberty's opinions credible. Dr. Lamberty's testing revealed the same lack of reliability in the applicant's performance as was revealed by Dr. Bell's testing, particularly with respect to her exaggeration of memory loss. Dr. Lamberty identified a strong indication of somatic or stress-related complaints, which the administrative law judge concluded were simply elements of the applicant's work-related disability. However, Dr. Lamberty did not indicate that he believed this somatization was due to the applicant's work injury. Dr. Lamberty indicated that the most likely explanation for the applicant's difficulties would relate to a progressively dementing condition, rather than a trauma-related cause.

Dr. Randa clearly opined that the work injury resulted in a mild cerebral concussion with no objective evidence of a neurological residual, except for the post-traumatic headaches. He pointed to the applicant's preexisting psychological difficulties as causative of her perceived cognitive symptoms. The commission did not find the applicant credible with respect to her alleged blackouts. As previously recounted, the medical records contain inconsistent statements regarding the frequency and times of such alleged blackouts. Additionally, Dr. Smith's clinic note of April 8, 2005, contains no mention of a blackout. The applicant asserted in her testimony that she did tell Dr. Smith that she had blacked out the previous evening, and asserted that Dr. Smith must have neglected to record this in her clinic note. It is not credible that Dr. Smith would have neglected to record such a significant medical fact. Furthermore, no medical practitioner expressed particular concern with the alleged blackouts, leading the commission to infer that the practitioners also found the applicant incredible with respect to them.

After weighing all this evidence, the commission finds Dr. Randa's and Dr. Lamberty's opinions concerning the effect of the April 2005 work injury to be credible. The applicant sustained a mild cerebral concussion that has resulted in intermittent headaches, for which a 2 percent permanent partial disability is awarded. It is clear from the psychological testing that the applicant's complaints concerning her memory loss are exaggerated and unreliable. Her depression and complaints of dizziness, nausea, decrease in sense of smell, insomnia, loss of appetite, and irritability are found to be attributable to her preexisting psychological difficulties rather than to the work injury of April 6, 2005.

Dr. Randa's opinion concerning the lack of significance of the nonspecific hyperintensity in the left centrum semiovale revealed in the June 2005 head MRI, is also accepted as credible. This opinion is consistent with the opinion of the radiologist who administered the MRI, Dr. Theodore Passe. Dr. Passe indicated this finding was of doubtful significance, and that the applicant's MRI was "essentially negative."

Dr. Randa's opinion of May 31, 2005, in which he released the applicant without restriction from the effects of the April 2005 work injury, is accepted as credible. Accordingly, the applicant was entitled to temporary total disability for the period beginning April 6, 2005, and ending May 31, 2005. This is a period of exactly eight weeks, which at the applicable rate of $416.00 per week amounted to a total of $3,328.00. However, the self-insured employer previously paid $3,547.92 in temporary total disability to the applicant for this injury. No overpayment was claimed, and there will be no offset of the overpayment against the compensation due for the April 2005 claim, because that is a separate claim. No statutory authority exists for offsetting overpayments from one claim against another claim. 
  

Loss of Earning Capacity

The applicant was 56 years old on May 31, 2005, and is a high school graduate. Prior to 1979, she spent most of her time as a homemaker and parent, but did briefly work as a waitress and in a factory. She accepted employment in production work for Northern Metal in 1979. In 1990, Polaris Industries purchased Northern Metal and the applicant accepted training as a welder. She was working as a production welder and earning $16.63 per hour when injured.

Dr. Dorn restricted the applicant to light duty with lifting up to 20 pounds. Dr. Rieser restricted the applicant to 10 pounds of lifting with no repetitive bending, lifting, or twisting. The commission finds Dr. Rieser's restrictions attributable to the occupational back injury to be credible.

Jan Lowe identified a number of job opportunities she believed were available to the applicant, but several of them have lifting requirements that exceed Dr. Rieser's lifting restrictions. The applicant did not present a prima facie case for permanent total disability, because that claim was based not only on permanent restrictions from the applicant's occupational back injury, but also on alleged permanent restrictions attributable to the April 2005 head injury, which the commission has rejected. The permanent restrictions attributable to the occupational back injury are severe, and do severely limit the applicant's ability to find suitable employment. However, she is capable of performing light assembly work, waitressing, light cleaning or housekeeping, and retail cashier or clerking jobs. The commission infers that she has lost access to a substantial number of job opportunities, but will be able to find employment in the range of $8.00 per hour. This would equate to a 50 percent loss of earning capacity, but given her restrictions, it will be more difficult for her to locate employment with businesses that will continue until her retirement age. Thus, she may experience additional job searches in which she would be burdened by her physical restrictions. Considering all the relevant factors, the commission finds that the applicant has sustained a 60 percent loss of earning capacity attributable to the work injury of August 25, 2004.

A 60 percent loss of earning capacity entitles the applicant to 600 weeks of permanent partial disability at the applicable rate of $232.00 per week, for a total of $139,200.00. The applicant's attorney is entitled to a 20 percent fee in the amount of $27,840.00, less an interest credit of $5,830.68, for a present value fee of $22,009.32. As of October 3, 2007, the applicant will be entitled to accrued permanent partial disability in the amount of $22,643.20, leaving an unaccrued balance of $88,716.80.

As a result of the work injury of August 25, 2004, the applicant incurred reasonably required medical expense as follows: $3,390.00 to St. Croix Regional Medical Center; $1,047.15 to Health Partners as reimbursement for payments made to St. Croix Medical Center; $1,075.00 to Edling Chiropractic; $558.00 to Midwest Spine Institute; $110.00 to St. John's Hospital; $2,493.84 to BC Insurance as reimbursement for payments to St. John's Hospital; $418.00 to The Physical Therapy Center; and $1,075.00 as reimbursement to the applicant for expenses he paid to Edling Chiropactic ($200.00) and to Truhlsen Chiropractic ($1,175.00).

As a result of the work injury of April 6, 2005, medical treatment expense claimed through the date of May 31, 2005, is found to have been reasonably required. Claims for medical treatment expense incurred subsequent to May 31, 2005, are rejected as being attributable to the applicant's preexisting psychological condition. The applicant should resubmit a WKC-3 to the self-insured employer, completed in accordance with these findings, and thereafter the employer should make immediate payment absent any reasonable dispute.

The applicant was discharged from physical therapy in February 2005, and from occupational therapy in April 2005. There is no credible basis for an interlocutory order with respect to either work injury.

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, the self-insured employer shall pay to the applicant as compensation for accrued permanent partial disability the sum of Twenty-two thousand six hundred forty-three dollars and twenty cents ($22,643.20); to applicant's attorney, David Erspamer, fees in the amount of Twenty-two thousand nine dollars and thirty-two cents ($22,009.32); to St. Croix Regional Medical Center the sum of Three thousand three hundred ninety dollars ($3,390.00); to Health Partners as reimbursement the sum of One thousand forty-seven dollars and fifteen cents ($1,047.15); to Edling Chiropractic the sum of One thousand seventy-five dollars ($1,075.00); to Midwest Spine Institute the sum of Five hundred fifty-eight dollars and twenty-four cents ($558.24); to St. Johns Hospital the sum of One hundred ten dollars ($110.00); to BC Insurance as reimbursement the sum of Two thousand four hundred ninety-three dollars and eighty-four cents ($2,493.84); to The Physical Therapy Center the sum of Four hundred eighteen dollars ($418.00); and to the applicant as reimbursement for medical expense that he personally paid, the sum of One thousand three hundred seventy-five dollars ($1,375.00).

Beginning on November 2, 2007, the self-insured employer shall pay to the applicant the monthly amount 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 Eighty-eight thousand seven hundred sixteen dollars and eighty cents ($88,716.80).

Jurisdiction is reserved solely with respect to the proper payment of medical expenses incurred between April 6, 2005 and May 31, 2005, in accordance with the above findings.

Dated and mailed October 17, 2007
woodre . wrr : 185 : 8  ND § 5.27

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney David M. Erspamer
Attorney Edward Q. Cassidy

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