CYNTHIA L PARRIS, Applicant
WALKER STAINLESS EQUIPMENT, Employer
AMERICAN HOME ASSURANCE CO, Insurer
The applicant filed an application for hearing in April 2006. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 31, 2007. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, the occurrence of an injury arising out of the applicant's employment with the employer on June 21, 2000, while performing services growing out of and incidental to that employment, and an average weekly wage at that time of $613.64. Other concessions and procedural facts are set out below.
On March 15, 2007, the ALJ issued his findings and order in this matter. The respondent 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:
1. Facts and posture.
The applicant was born in 1965. She was working as a welder for the employer on June 21, 2000, when she hurt her left ankle as she stepped down from a ladder and twisted the ankle on a hose. Thereafter, she underwent several surgical procedures on her ankle including, finally, a talar arthroplasty or total ankle joint replacement surgery done on July 8, 2004. In a practitioner's report prepared shortly before the hearing, the applicant's treating surgeon, Robert Gall, M.D., opined that the applicant had not yet reached an end of healing in her ankle as of January 4, 2007, and declined to rate permanent partial disability for the ankle injury at that point.
The medical expert retained by the respondent, Ellen O'Brien, M.D., estimated permanent partial disability at 50 percent at the ankle with a July 8, 2005 (one-year post arthroplasty surgery) healing plateau date. Based on Dr. O'Brien's opinion the employer paid temporary disability for various periods up to July 8, 2005, and was making monthly permanent partial disability payments for a 50 percent loss of use at the ankle.
At the hearing, the applicant claimed
The ALJ found the applicant continued to be disabled by her ankle injury during the period from August 1 to September 11, 2002, the intervening hysterectomy notwithstanding, and awarded the temporary total disability claimed for that period. Crediting the opinion of applicant's treating surgeon Gall, the ALJ also awarded the temporary total disability for the ankle injury to the date of hearing and ongoing. The ALJ found, too, that the applicant sustained at least 50 percent permanent loss of use at the ankle, and so ordered the respondent to resume paying the 50 percent permanent partial disability when the payment of the additional temporary disability ends with the end of healing. Finally, satisfied the respondent had sufficient notice of the claim for non-scheduled permanent partial disability to the body as a whole arising from the back injury, the ALJ also awarded 3 percent for that.
On appeal to the commission, the respondent disputes the award of the unscheduled permanent partial disability for an injury to the back, claiming a lack of notice and raising a due process issue. The respondent also continues to assert the applicant is ineligible for the temporary total disability from August 1 to September 11, 2002. On this point, the respondent argues that the post-injury, nonwork-related hysterectomy surgery, not the ankle condition, disabled her from work during this time. Finally, the respondent argues the ALJ's order inconsistently states the applicant is still healing from her ankle injury while awarding permanent partial disability for the ankle. If the applicant in fact is still healing from her ankle, the respondent argues, any attempt to rate permanent partial disability at the ankle now is purely speculative.
What the respondent does not challenge however, is the ALJ's decision to credit the treating surgeon Gall's opinion that the applicant sustained a compensable injury on June 21, 2000; that she sustained temporary disability from June 25 to November 26, 2000, from November 26, 2000 to May 7, 2001, and from September 10, 2002 to January 11, 2006 (all of which has been paid); and that she was entitled to temporary total disability from January 11, 2006 to the date of hearing and continuing. Nor is there any dispute to the ALJ's finding regarding medical expenses.
2. TTD from August 1 to September 11, 2002
The first issue is the applicant's eligibility for temporary disability from August 1 to September 10, 2002. The applicant testified that, on June 19, 2002, Dr. Gall, who had been treating her for her ankle, took her off work entirely until the next appointment which was on September 18, 2002. See transcript, pages 50 et seq. and Exhibit J.
During this period, however, the applicant underwent a hysterectomy on or about August 1, 2002. Even after she recovered from the hysterectomy and was released by her gynecologist, Dr. Kiel, however, she remained off work due the ankle. This is documented in a September 11, 2002 note from Dr. Kiel stating that the applicant had healed from her hysterectomy, but her ankle and foot care was ongoing. See second page of exhibit J.
This is borne out, too, in the treatment notes at exhibit A. The notes establish that the applicant indeed saw Dr. Gall on June 19, 2002 for recheck of her ankle. A talar joint replacement surgery was discussed (as it had been at a prior visit in March 2002); this was put on hold because of an ongoing staph infection following a prior ovarian surgery. Dr. Gall told the applicant that he did not want to do an ankle replacement surgery if she had an infection, because the surgery was elective and he wanted conditions as close to perfect as possible. He concluded by noting he would see her again in three months. Again, the doctor completed a "practitioner's status report" dated June 12, 2002, stating that the applicant was totally disabled until her next appointment.
The next treatment note from Dr. Gall is dated September 18, 2002. This noted the applicant had been considered for a talar joint replacement surgery, but the doctor held off because of a possible systemic infection. Meanwhile, Dr. Gall reported, Dr. Keil had done the hysterectomy. The doctor noted the applicant now was no longer on antibiotics, but also that
The patient is only 37 years old. Two-thirds of the ankle joint still is satisfactory. It is difficult to recommend a total ankle arthroplasty whole-heartedly at this point. I told the patient that it is possible an allograft might help.
Dr. Gall mentioned calling a doctor at the University of Minnesota, Dr. Coetze, to see if an allograft would be worthwhile. However, Dr. Gall still had not called Dr. Coetze at the time he (Gall) next saw the applicant on October 23, 2002. Subsequently in February 2003, Dr. Coetze did an OATS procedure.
Based on this history, the commission cannot conclude that the August 2002 hysterectomy delayed the applicant's ankle treatment including the ankle joint replacement that had been proposed as far back as March 2002. Nor was the staph infection the deciding factor in not proceeding with the surgery in 2002. After her recovery from the hysterectomy and the infection concern dropped from the picture, Dr. Gall still declined to do the joint replacement surgery. He opted instead, after waiting a few more months, to have the OATS procedure done.
On this issue, both parties cite ITW Deltar v. LIRC, 226 Wis. 2d 11 (Ct. App. 1999). In that case, the worker injured her knee for which surgery was recommended, but delayed, because the injured worker was pregnant. Ultimately, after her childbirth and recovery, the worker underwent surgery. The commission paid the temporary total disability to the point of the childbirth, but denied temporary disability while the worker was disabled due to the birth of her child. The applicant points out that in ITW Deltar, the injured worker had been released to work with temporary restrictions after injuring her leg at work but was unemployed due to a layoff, then was taken off work completely following childbirth. By contrast, the applicant here was taken off work totally on June 19, 2002, before the hysterectomy surgery was done. Thus, the applicant argues, it was the original injury that caused the wage loss here, not the hysterectomy.
The applicant goes on to contend the hysterectomy provides no reason to cut off benefits, based on the supreme court's holding in Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 634 (1997), which states:
worker's compensation is a statutory program and there is no provision in Chapter 102 which would allow the cutoff of temporary disability benefits as long as the work injury continues to cause disability
That holding was cited recently cited -- and arguably expanded -- by the court of appeals in the recent case of Emmpak Foods, Inc. v. Labor & Indus. Review Comm'n, 2007 WI App 164 , ___ Wis. 2d ____, 737 N.W.2d 60. In that case, the court of appeals in held that a worker who was discharged after returning to work in his healing period with restrictions was eligible for temporary disability because the work injury remained part of the reason for the worker's economic loss given the severe restriction on his ability to find other work.
Further, in Raelene Anderson v. Servicemaster Professional, WC Case No. 2002-025737 (LIRC, April 4, 2005), the commission concluded that while ITW Deltar permitted the denial or suspension of temporary disability during a healing period from a work injury due to a nonwork-related personal ailment, the non-work related condition must be both independently disabling and delay treatment. Here, of course, while it may be that the applicant would have been independently disabled from the hysterectomy for some period of time, it does not appear the hysterectomy delayed the treatment for the ankle injury in any material fashion. It was not the hysterectomy surgery that Dr. Gall cited as the basis for not immediately proceeding with the ankle replacement surgery, but the staph infection. There is no evidence the staph infection itself required the applicant to miss work. Further, as set out above, even after the staph infection was no longer a concern, Dr. Gall still declined to proceed with the ankle replacement surgery opting instead
-- after several more weeks -- to contact Dr. Coetze about the OATS procedure before doing the talar arthroplasty many months after that.
In sum, it does not appear the staph infection or the hysterectomy made the applicant disabled for some period when she would not have been otherwise, or even delayed the applicant's ankle treatment. After the applicant recovered from both of those conditions, Dr. Gall still waited before arranging for the OATS procedure and, much later, doing the talar joint arthroplasty. Under these facts, the commission concludes that the ALJ appropriately awarded temporary disability from August 1 to September 11, 2002.
3. PPD at ankle despite continued ankle healing
The respondent also asserts that it is inconsistent to find the applicant remained in a healing period through the date of hearing, January 31, 2007, and continuing, but yet that she has sustained at least a fifty percent permanent partial disability to the left ankle. The commission has held that when a person has had a surgery for which a code minimum is set, an ALJ may award the minimum even before the end of healing for payment during periods when TTD is not accruing. See King v. Department of Transportation, WC claim Nos. 2001-007515 & 2003-012619 (LIRC, April 27, 2005). At least arguably, a factfinder might similarly base a permanent partial minimum award on competent medical opinion, as where a doctor credibly states that a worker is continuing to heal but when he finishes healing he will have -- at the least -- a certain minimum loss of use of the affected joint or part.
However, neither situation applies in this case. The commission recognizes that the respondent's medical expert, Dr. O'Brien, does state:
In accordance with the Wisconsin Worker's Compensation Guidelines, there is 50% permanent partial disability assessment of the left ankle that is established compared with to an amputation to the left ankle for a total arthroplasty with persistent pain.
However, Dr. O'Brien also opined that the applicant had reached an end of healing as of July 8, 2005, which by definition means Dr. O'Brien felt the applicant's condition had stabilized and no further improvement was expected. The ALJ instead found that the applicant remains in a healing period to at least the date of hearing based on treating orthopedist Gall's contrary opinion.
The respondent argues that the ALJ's finding that the applicant remained in a healing period as of the date of hearing must necessarily be reversed. However, if the applicant is in fact still in a healing period, further healing -- and improvement in the condition of the ankle joint -- may be expected. Indeed, Dr. Gall, whose opinion the ALJ adopted on this point, flatly refuses to estimate permanency at the ankle for the very reason that the applicant is in a healing period. Exhibit A. Nor do the administrative rules or the WC Division's Wisconsin Worker's Compensation Guidelines publication set a minimum permanency rating for an ankle joint replacement or talar arthroscopic surgery. See Wis. Admin. Code DWD 80.34(5).
The applicant argues that the respondent conceded permanent partial disability at a minimum of 50 percent and should be held to its concession. However, the commission cannot accept that characterization of the respondent's concession. The respondent conceded payment under Dr. O'Brien's opinion that the applicant sustained permanent partial disability at 50 percent at the ankle upon an end of healing. If Dr. O'Brien's opinion that there was an end of healing is rejected, the respondent should not be held to its "concession" a 50 percent permanency rating.
Consequently permanent partial disability at 50 percent at the ankle, or at any other amount, may not be made at this time. When the applicant ends healing, he will very likely have permanent disability which may be rated by Drs. Gall and O'Brien. The respondent is required by law to begin making payments on such a rating very soon after it is given, unless it has a good faith reason for disputing it. See Wis. Stat. § 102.32(6) and Wis. Admin. Code § DWD 80.52. Rather than make an award for permanency at the ankle at this time, the commission shall retain jurisdiction on that issue to permit the department to take further action on this issue, including a hearing and a decision if necessary, after the end of healing.
4. Back or hip PPD claim.
The last issue is the permanent partial disability rating for the unscheduled back injury.
In June 2006, the department served the respondent with the applicant's application for hearing, which described "the nature of the disability, parts of the body affected, [and] how the injury occurred" as follows:
Injured left ankle at work. Because of continuing left ankle symptoms and change in gait due to pain and ankle brace, has developed injury to left knee, right knee, right hip and low back
Where the hearing application provides for the type of compensation being sought, the applicant only listed temporary total disability from "July 9, 2005 to present." As treating practitioners, she listed Dr. Gall at Gunderson Clinic, Dr. Owens at Active Health Chiropractic, and Tomah Memorial Hospital.
On November 27, 2006, the department issued a notice of hearing on January 31, 2007, which identifies the issues as "primary ccmpensation" and "medical expense." Thus, the respondent notes, while the hearing notice stated broadly that primary compensation was at issue and the healing application listed a back injury, the hearing application only listed temporary disability as the compensation that was being sought. In its brief, the respondent states that "on January 4, 2007, applicant's counsel notified respondent's counsel that he intended to present a claim for spinal permanent partial disability at the hearing" and filed reports supporting that claim with the respondent and the department on January 15, 2007.
The respondent contends it was denied due process issue based on the inadequacy of the notice to the respondent that the spinal permanent partial disability claim would be heard on January 31, 2007. The respondent points to the court holdings that due process in quasi-judicial administrative hearings turns on the presence or absence of "fair play" the elements of which are
(1) the right to reasonably know the charges or claims; (2) the right to meet such charges or claims with competent evidence; and (3) the right to be heard by counsel upon the probative force of the evidence presented by both sides of the applicable law.
Wright v. LIRC, 210 Wis. 2d 289, 296 (Ct. App. 1997). Here, the respondent basically argues that it has been denied due process because the unscheduled permanent partial disability relating to the back injury was not included in the hearing application, because the doctor on whose opinion it is primarily based -- Dr. Harbst -- was not listed in the hearing application, and because it did not receive notice of the back-related permanent disability claim until shortly before the work injury with insufficient time to get a countering medical opinion.
The applicant counters by citing to Zimbrick v. LIRC, 235 Wis. 2d 132 (Ct. App., 2000). There, the court of appeals stated that the fundamental requirements of procedural due process are notice and an opportunity to be heard, and that that to be adequate
must be reasonably calculated to inform the person of the pending proceeding and to afford the person an opportunity to object and defend his or her rights.
Id., 235 Wis. 2d at 138.
In Zimbrick, the court held that the notice provided in a worker's compensation hearing was inadequate because it failed to inform the applicant that she had the burden of proof. However, the court went on to state that even where a notice is inadequate, or partially inadequate, the party seeking relief must demonstrate prejudice. Id, at 235 Wis. 2d 139. The court went on to state that in order to show prejudice, a party must show evidence or an argument that she could have made but that the ALJ did not consider. Id., at 235 Wis. 2d 140, 141.
Zimbrick, of course, proceeds from a finding that notice was inadequate. However, the commission believes the applicant is arguing the respondent had actual notice, or at least constructive notice of her unscheduled permanent disability claim related to the back injury.(1) In addition to the broadly written hearing notice which defines the issue as to be heard as "primary compensation" without limitation to back or ankle disability, the applicant points out that
While arguments may be made either way on the due process issue, the commission has the discretionary authority to set aside the findings of an ALJ in whole or in part or to direct the taking of additional evidence in any case on review under Wis. Stat. § 102.18(3). After careful consideration, the commission believes the most reasonable course is to set aside the ALJ's findings on the issue of permanent disability based on either a back or hip injury at this point, but to remand this case for further hearing to allow the parties to submit whatever evidence they desire on those claims before a decision by the department.
5. Award.
Based on the foregoing, the applicant is entitled to temporary to total disability from August 1 to September 11, 2002 at the weekly rate of $482.13 in the total amount of $2,652.72. She is further entitled to temporary total disability from January 11, 2006 to the date of the hearing, January 31, 2007, a period of 54 weeks and 5 days, and continuing. At the weekly rate of $482.13 (two-thirds of the average weekly wage of $613.64, the applicant is entitled to temporary total disability for this period at $26,437.28. The total in temporary disability awarded under this order is $29,090.00.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded or $5,818.00 (0.20 times $29,090.00). That amount, plus costs of $598.84 shall be paid to the applicant's attorney within 30 days.
The amount due the applicant within 30 days is $12,583.83. That equals the award for both periods of temporary total disability as of the date of the hearing ($29,090), less the attorney fee thereon ($5,818), less costs ($598.84), and less the amounts paid from January 11, 2006 to January 31, 2007 in permanent partial disability ($10,089.33).
The applicant has also incurred reasonable and necessary medical expenses to cure and relieve the effects of her work injury as outlined in exhibit I,(2) which include: from Gunderson Clinic, $5,073.70, all of which is outstanding; from Active Health, $662, of which $1.86 was adjusted from the bill and $660.14 remains outstanding; from Tomah Memorial Hospital $457.00, all of which is outstanding; and from Phillip's Pharmacy, $56.97, of which $1.30 was paid by the applicant and $55.67 was paid by BCBS. The applicant has also incurred $443.11 in medical mileage.
Because Dr. Gall credibly opined the applicant remained in a healing period as of January 4, 2007, this order shall be left interlocutory to permit additional awards and awards for disability and treatment expense accruing after that date including the claim for permanent disability at the ankle, and to resolve the hip and back permanent disability claims.
NOW, THEREFORE, the Labor and Industry Review 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 set aside in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, the sum of Twelve thousand five hundred eighty-three dollars and eighty-three cents ($12,583.83) in disability compensation.
2. To the applicant's attorney, the sum of Five thousand eight hundred eighteen dollars and no cents ($5,818.00) in fees and Five hundred ninety-eight dollars and eighty-four cents ($598.84) in costs.
3. To Gunderson Clinic, Five thousand seventy-three dollars and seventy cents ($5,073.70) in medical expenses.
4. To Active Health, Six hundred sixty dollars and fourteen cents ($660.14) in medical expenses.
5. To Tomah Memorial Hospital, Four hundred fifty-seven dollars and no cents ($457.00) in medical expenses.
6. To BCBS, Fifty-five dollars and sixty-seven cents ($55.67) in reimbursement of medical expenses.
7. To the applicant, the sum of One dollar and thirty cents ($1.30) in reimbursement of out-of-pocket medical costs and Four hundred forty-three dollars and eleven cents ($443.11) in medical mileage.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed November 6, 2007
parricy . wrr : 101 : 8 ND §§ 5.6,
5.9, 5.15, 5.18, 8.18
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Charles E. Hanson
Attorney Michael C. Frohman
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