RAYMOND JABER, Applicant
HELLENBRAND WATER COND, Employer
SECURA SUPREME, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed October 29, 2007
jaberra . wsd : 101 : 1 ND � 5.6
� 5.24 � 5.25 � 8.33
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Facts and posture.
The applicant was born in 1943. He is 5'1" and weighed between 250 and 280 at the time of his injury. He seeks compensation related to an ankle injury he claims he sustained in his worked as salt deliveryman for the employer. Specifically, on the date of injury, June 9, 2005, the applicant was walking down stairs into the basement of an apartment with two bags of salt on his shoulders. His eyes had trouble adjusting from the sunlight to the darker basement, and misjudged the bottom two stairs. He fell, twisted his right ankle, and felt something tear or break in his right ankle.
Regarding the cause, nature and extent of disability, the applicant submits a practitioner's report from his treating doctor, Dr. Rabago, dated November 2, 2006. The report lists a June 9, 2005 date of traumatic event described as "fell carrying bags of salt down stairwell at work." In his report, the doctor diagnoses an "avulsion fracture (R) medial malleolus (broken ankle) with chronic pain." The doctor assessed permanent partial disability at 25 percent to the right ankle, identifying the following elements of disability:
The doctor described the applicant's prognosis as good, though he noted it was unlikely the applicant would regain the full use of the right ankle.
However, reports from Dr. Rabago conflict somewhat with his final report described above. For example, a medical report dated October 28, 2005 and practitioner's reports from November 2005 and March 2006 indicate the doctor did not expect the injury to result in permanent disability. See exhibits 2 through 4.
Finally, the employer and its insurer (collectively, the respondent) offer a report from David J. Rolnick, the independent examiner retained by the employer. Dr. Rolnick examined the applicant on September 26, 2005. He noted the injury falling down the stairs, and that the applicant felt like something was going on with his ankle. On examination, he noted:
With subtalar supination there is lateral ankle pain and with pronation there is medial ankle pain. He has some tenderness at the anterior aspect of the medial malleolus in a broad area over the lateral ankle.
His report includes the following "Discussion"
Mr. Jaber has a good history of having had a moderately severe ankle sprain on June 9, 2005. He also had a history of prior sprain, and it is unfortunate that old films were not obtained for comparison purposes. However, he appears to have sustained acute injuries to the medial and lateral aspects of his ankle, most likely soft tissue. The small bone fragments represent avulsions of undetermined age. In this situation, instead of a ligament tearing, the ligament at its bony attachment pulls off a small flake of bone. These are treated as ankle sprains and not as fractures.
Mr. Jaber has had an unusually long period of time to recover. I m sure this is made more difficulty by his significant obesity. At the time of this examination, he has a normal exam and is able to walk normally and maintain himself in heel and toe gait. It is clear that Mr. Jaber had had at least two separate significant ankle injuries. Accordingly, it would appropriate and wise for him to continue a self directed home exercise program. In addition, to protect his ankle until he fully strengthens it, it would be reasonable for him to wear his aircast stirrup while working. However, I see no reason to limit his work or restrict his lifting in any way.
The doctor did diagnose a right ankle sprain with possible avulsion injuries, directly related to the June 9, 2005 injury. He saw no current objective findings related to the ankle injury, however, and felt he had reached an end of healing with no permanent disability attributed to the ankle. He added use of ankle brace would be appropriate to prevent future injury, but that this was because of the applicant's large size and the fact he caried heavy objects on stairs in poor lighting, not his injury.
The ALJ awarded a permanent partial disability at 20 percent at the ankle, crediting the report of Dr. Rabago over that of Dr. Rolnick. He did not credit Dr. Rolnick's report because the doctor noted pain in the right ankle--and did not suggest malingering--but also did not set work restrictions or opine there would be permanent partial disability or continued healing. The ALJ also thought that Dr. Rolnick's recommendation of continued use of the ankle brace was inconsistent with the rating of no permanent disability especially as the doctor did not suggest the use of a brace for the uninjured left ankle.
2. Discussion.
a. TTD
On appeal to the commission, the respondent first argues that no competent evidence exists to support the temporary disability award. The ALJ also paid temporary disability from October 10, 2005 to January 5. 2006. He rejected Dr. Rolnick's earlier end of healing date in September 2005, and explained that while Dr. Rabago's practitioner's report could have been clearer, it indicated the applicant remained in a healing period and was subject to restriction until January 5, 2006.
On this point, the respondent points prior commission holdings that a temporary disability award must be supported by expert medical opinion. It notes, too, that during temporary disability, an injured worker must generally be in a healing period during which the worker's condition must not yet be stationary, and the worker must be submitting to treatment, convalescing, still suffering from his injury, and unable to work because of the accident. Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932); Larsen. Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). The respondent argues that, in this case, after September 2005 the applicant's condition was stationary and the applicant was not submitting to active treatment.
However, the commission cannot sustain the respondent's contention in light of Dr. Rabago's notes. In September 2005, Dr. Rabago reported the applicant had a "workman's comp injury progressing at expected pace for a significant traumatic ligamentous injury and fracture. [Italics supplied.]" On October 28, 2005, the doctor wrote a medical report on form WKC-16 which noted it could take two to six months to reach an end of healing. On November 9, when Dr. Rabago saw the applicant "in follow-up", the doctor diagnosed "right malleolar fractures, healing. [Italics supplied.]" On January 5, 2006, the applicant saw Dr. Rabago again, and told him "his ankle is much improved. [Italics supplied.]" It cannot be said the applicant was not treating during this period, nor can it said the applicant's condition was stationary in that healing and improvement were noted in Dr. Rabago's notes.
b. PPD
The respondent also argues there is insufficient support for the permanent disability award, noting the ALJ found the reports ambiguous and unclear, and that worker's compensation awards cannot be based on speculation. Of course, a finding based on what the fact-finder determines a medical report to mean does not mean the finding is speculative.(1) Taken as a whole, the only reasonable reading of Dr. Rabago's reports is that while he may have initially felt the applicant would finish healing without permanent disability, the doctor eventually concluded that the applicant's ankle problems had not completely resolved leaving him with permanent residuals for which the doctor assessed a permanent loss at 25 percent compared to loss at the ankle.
The respondent further asserts that the 25 percent rating is out of line with the administrative code minimums for various degrees of ankylosis in the talar joint set out in Wis. Adm. Code § DWD 80.32(5). Of course, as the supreme court noted recently in DaimlerChrysler v. LIRC, 2007 WI 15, � 26, 299 Wis. 2d 1, the code itself states those are the "minimums" and that additional disabling elements may result in an award higher than the listed minimum. Wis. Admin. Code § DWD 80.32(1)
Here, Dr. Rabago listed additional disabling elements in his November 2006 practitioner's report. The respondent disputes these, noting particularly Dr. Rabago did not specifically mention a decreased range of motion in his last treatment note. In fact, an earlier note in September 2005 the doctor expressly said the range of motion was "intact." On the other hand, both Dr. Rabago and Dr. Rolnick noted continuing symptoms in the ankle, and the applicant testified to continuing symptoms including swelling and a limited ability to walk. Nor are continuing symptoms and disability following a severe sprain to an ankle had pre-existing degenerative pathology particularly surprising from a lay point of view.
In this case, the ALJ was warranted in making the five percent reduction under Wis. Stat. § 102.18(1)(d). However, the fact that the ALJ thought 25 percent was too high mean that Dr Rabago's opinion that permanent disability had resulted from the work injury must be rejected in toto. Indeed, Wis. Stat. § 102.18(1)(d) states that awards departing from disability estimates given by experts may be presumptively reasonable.
c. Interlocutory order
The respondent suggests there is no basis for an interlocutory order. However, the discretion to issue an interlocutory order is broad. Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:
...Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards.
In general, an interlocutory--as opposed to final--order is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). When the words "in its discretion" were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included an explanatory note to its annotated version of the Worker's Compensation Act stating:
This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate.
DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27. See also DWD, Worker's Compensation Act of Wisconsin, with amendments to December 2004, note 91.
In this case, the applicant sustained fracture in a bone in his ankle and the record is more than sufficient to support reserving jurisdiction, even if Dr. Rabago does not currently expect future treatment will be needed.
d. Worsening symptoms after work stopped.
In considering this case, the commission did note that the applicant's restrictions increased as he remained off work. Dr. Rabago released the applicant subject to a 50-fifty pound restriction in September 2005 then released him completely in January 2006 before assessing the 20-pound restriction in his final reports. However, two points can be made here: First, the January 2006 complete release was sought by the applicant so he could go back to work. Dr. Rabago agreed to release the restrictions, but his note makes it clear the release was motivated by the applicant's desire to work. Second, the applicant's final condition, simply stated, seems to be than Dr. Rabago expected at the outset and may be worse than what is normal for ankle fractures. While this could mean the applicant was exaggerating his symptoms, but the ALJ who saw him testify did not believe that to have been this case.
cc:
Attorney Mark A. Ringsmuth
Attorney Margaret Stafford
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(1)( Back ) Thus, a commission award based on an ambiguous report will be upheld. In Miron Construction v. Kampfer and LIRC, case no. 96-3556, 1997 Wisc. App. LEXIS 1298 (Wis. Ct. App., November 5, 1997):
Merely because LIRC and the ALJ interpreted [Dr.] Tadych's opinion differently does not make the opinion incredible as a matter of law. It is for LIRC to resolve conflicts in the testimony of medical witnesses, and LIRC's acceptance of evidence from one medical witness over another is conclusive. See E.F. Brewer Co., 82 Wis. 2d at 637, 264 N.W.2d at 224.
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