RODNEY ZABEL, Applicant

KOHLER CO, Employer

KOHLER CO, Insurer

In January 2005, the applicant filed an application for hearing seeking compensation for a lumbar spine injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on December 13, 2006, with a close of record on January 8, 2007.

Prior to the hearing, the self-insured employer conceded jurisdictional facts, an average weekly wage of $535.12, and a compensable back injury on June 5, 2000. The employer had paid temporary total disability benefits for various periods to October 28, 2003 and permanent partial disability at 25 percent (1) compared to permanent total disability on a functional basis.

At issue are nature and extent of disability.

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:

The applicant was born in 1964. After graduating from high school, he served in the U.S. Marines. Following his honorable discharge, he worked for 15 years at J.L. French Foundry and several months for Johnsonville Sausage before beginning work with the employer in late 1999.

The applicant was injured on June 5, 2000, when he was bending to pick up a 75 pound part. After a discogram, he underwent an intradiscal interthermal annuloplasty on November 10, 2000. James Stoll, M.D., then performed an L4-S1 fusion surgery on March 9, 2001. The applicant returned to work in September 2001, but went off work again due to pain in December 2001. On April 19, 2002, Dr. Stoll performed another surgery, a refusion to repair a non-union following the first fusion surgery. On November 6, 2002, the doctor ordered a functional capacity evaluation.

The evaluation was done on November 14, 2002. The recommendations of the evaluating occupational therapist, Sally Perronne, OTR, were:

1) During an eight hour day, client be allowed to perform frequent position changes and perform each of sitting or walking for no greater than 3 hours each

2) Client to perform work within sedentary work level.

Exhibit C, Aurora Health Care, Industrial Rehabilitation, Functional Capacities Evaluation, dated November 14, 2002. The therapist noted, too, that the applicant appeared to give a maximum effort, and her report specifies a maximum 15 pound lift.

Dr. Stoll saw the applicant on November 25, 2002, when he stated:

The patient was able to do two of the three-hour assessment. His functional capacities put him at maximum sedentary capacity. I doubt very much he can do with the limited sitting tolerance he is in.

The doctor's plan was:

1. I recommend no further therapy.
2. Assess plateau of healing
3. Follow up appointment every 2 months to monitor medications.

Then on November 27, 2002, the doctor completed a form medical report stating the applicant had reached an end of healing and assessing permanent partial disability at 25 percent to the body as a whole, which the doctor stated included five percent for pain. Dr. Stoll also stated that the applicant's prognosis was poor and, regarding work restrictions, referred to the functional capacity evaluation. The employer stopped paying temporary disability at that point.

On December 10, 2002, Dr. Stoll outlined permanent restrictions as follows:

Part-time work, 1 to 3 hours a day, five days a week, no overtime
Sitting, standing and walking 1-3 hours a day each
Must be able to change position every 20 minutes.
A one-time maximum lift of 15 pounds.
Occasional lifting up to 10 pounds.
No repetitive bending or repetitive twisting
No squatting, kneeling, or climbing
Occasional carrying and pushing/pulling
No above shoulder reaching

In March 2003, Dr. Stoll noted increasing back pain and bilateral leg pain, and that the doctor told him the pain medication was becoming less effective. A CT scan was ordered after which the doctor wrote this note:

The patient came for a follow up appointment to discuss pain control. He is having great difficulties with managing his pain. When he is active, he has a lot of pain. When he is not active, he has very little pain. I reviewed his clinical condition with him and the test results from his CT scan and indicated that he appears to have a solid arthrodesis, and there is little more that I can do here other than manage his pain. We agreed to stay on the same pain medication regimen. I told him that if the situation deteriorates, we could review the possibility of a dorsal column stimulator and implant.

On June 5, 2003, Dr. Stoll wrote a letter to the applicant's lawyer explaining the work restrictions he set noting that while he felt the applicant had achieved a solid fusion he still had persistent pain significantly exacerbated by physical activity. Only a moderate level of increased activity greatly increased the applicant's pain, leading him to the conclusion that the applicant's capacity for work was limited to one to three hours. Dr. Stoll did not believe the applicant's pain was the result of psychological factors, but was organic. He added "I expect that he will have ongoing requirements for significant pain medication and that his condition is not likely to improve."

On July 29, 2003, the applicant was admitted to the hospital for implantation of a dorsal column spinal stimulator, and the procedure was done that day.

When the applicant was seen in follow-up on September 18, 2003, Dr. Stoll reported:

The patient's incision is still a little tender at the medial end. Leg pain is improved significantly. Back pain is still only mildly to moderately improved. If he does any bending or twisting, the pain level increases dramatically.

The doctor's assessment was some irritation at the stimulator pocket, but improved pain control.

On October 9, 2003, Dr. Stoll authorized an electric scooter to allow the applicant to continue to function in the day-to-day environment outside the home. He noted the applicant had chronic lumbar radiculopathy, that he had "optimized maximum medical treatment," and that his walking tolerance was severely impaired for any distance over 100 yards. He did not think the applicant could work, and doubted that that situation would change.

On October 16, 2003, Sue Zimmer, a nurse for the employer's third party administrator wrote to Dr. Stoll, asking if the applicant was back to the level of function he was at prior to the surgical implantation of the dorsal column stimulator. In a reply to Ms. Zimmer dated October 22, 2003, the doctor responded:

I believe that Mr. Zabel's level of functioning is essentially the same as they were in November 2002 at his functional capacity assessment.

Interpreting this to mean the applicant had ended healing and reached a healing plateau, the employer stopped paying temporary disability after it received Dr. Stoll's letter on October 27, 2003.

On November 20, 2003, Dr. Stoll reported the applicant still had moderately intense back pain, but that his leg pain had improved with the stimulator. His assessment was "stable chronic radiculopathy reasonably controlled by stimulator." His plan was:

Continue quarterly visit for Oxycontin and Percocet prescriptions.
Recheck in 3 months with no x-ray...

When the applicant returned to Dr. Stoll on February 19, 2004, he noted the applicant's back and leg pain were reasonably well controlled with the stimulator, that his medications were working without side effect, and that his pain levels were tolerable. His treatment plan was for a recheck in 6 months and to continue with the medication regimen.

The applicant underwent evaluation by the department's Division of Vocational Rehabilitation in May 2004. Attempts to return to work as part of this process were not successful, as the applicant was unable to work for more than an hour or so at time due to pain. The private counselor to whom he was referred for a situational assessment did not believe a return to competitive employment was feasible, noting the applicant did not appear capable of even very light duty work for more than an hour at a time or two hours total. The counselor recommended he continue to pursue social security disability.

On recheck on August 12, 2004, Dr. Stoll again described the applicant as stable, stating a plan of continuing the prescribed medications and rechecking in six months. On August 26, 2004, Dr. Stoll wrote to the applicant expressing his concern about the applicant's "unacceptably high use of narcotics."

In his next six month check-up, the applicant told Dr. Stoll that he felt terrible, complaining of a progressive decline in function. Adjusting the stimulator did not help, and the doctor noted a possible abnormality with the fusion. After testing, however, it turned out there was no abnormality. The doctor thought there might possibly have been an aggravation of the scar around his nerve roots, but had no other explanation. The applicant's next few doctor's visits dealt with prescriptions and testing the battery in the dorsal column stimulator.

Then, on June 22, 2005, the applicant saw Dr. Lippman, the medical examiner retained by the employer. Dr. Lippman watched the videotape at exhibit 1. In his letter report dated June 27, 2005 (exhibit 6), he opined that the applicant did not need any of the surgeries done on him, that he was addicted to narcotics, and that the applicant had been over-treated and over-surgerized with no beneficial response. He felt, given the activities depicted on the tape the applicant and his physical examination, that the applicant could work upwards of 6 hours a day, five days a week, lifting repetitively 10 to 15 pounds and upwards of 30 pounds 50 percent of the time.

On appeal to the commission, the employer does not contend that the work injury did not necessitate the surgeries the applicant underwent, or that his disability following those surgeries was not caused by the work injury. Rather, the dispute between the parties centers on the extent of the applicant's temporary and permanent disability after the employer stopped paying temporary disability on October 27, 2003.

The first issue, then, is the extent of temporary disability following the implantation of the spinal cord stimulator in July 2003. Regarding the healing period--the end of which generally sets the end of temporary disability--the Supreme Court has said:

The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.

Knobbe v. Industrial Commission, 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).

Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) emphasized that the end of a healing period is not determined simply by finding the point at which a condition becomes stationary, or when it is apparent the condition will get no better or worse. Rather, the Knobbe definition of a healing period is qualified by the additional conditions that the injured worker still be submitting to treatment and convalescence, and that the disability be of a temporary nature. The court added:

An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...

Larsen Co., 9 Wis. 2d at 386. The Larsen Co. court went on to say that if the record before the commission "indicates that a definite determination cannot then be made that the employee will not sustain a greater percentage of disability in the future" the commission should reserve jurisdiction, but not continue to pay temporary disability until the maximum amount of permanent partial disability that may occur in the future could be determined. Id., at 9 Wis. 392-93.

In the current case, the employer argues that the applicant's condition had stabilized and that he was not undergoing active treatment--at least not treatment aimed at improving his condition--as of October 22, 2003. On that date, Dr. Stoll said the applicant had returned to the physical capacity the applicant had had back in November 2002 when the functional capacity evaluation was performed and when Dr. Stoll completed a medical report stating the applicant had reached an end of healing from the second fusion surgery. Accordingly, the employer argues, the end of healing following the dorsal column stimulator implantation--and end of temporary disability liability--occurred in October 2003 when the applicant returned to his baseline capacity, not almost two years later when Dr. Lippman wrote his second report.

The commission agrees. The treatment after October 22, 2003 was primarily aimed at treating pain symptoms with medication and periodic check-ups with no active treatment in the sense of surgical intervention, physical therapy, or medicine aimed at improving function or correcting the underling pathology. Dr. Stoll consistently noted the applicant's condition was stable, indeed his notes from October 2003 indicated he did not expect improvement.

Further, Dr. Stoll had said in June 2003 before the dorsal column stimulator device was implanted that he did not expect improvement in the applicant's condition. Thus, when Dr. Stoll said on October 22, 2003 that the applicant was back to his November 2002 level of functioning--the level for which permanent work restrictions had previously been set--it is reasonable to conclude that the doctor meant the applicant had reached an end of healing from the stimulator implantation surgery, and that the renewed period of temporary total disability that began with the dorsal column stimulator surgery had ended.

One may argue that Dr. Stoll's October 22, 2003 letter to Ms. Zimmer is not crystal clear on this point. However, Dr. Stoll is the applicant's treating doctor and his medical expert. Under worker's compensation law, an applicant generally has the burden of proving the facts necessary to support his or her claim, and must produce sufficient evidence so that the commission's decision will not rest on speculation and conjecture. Beem v. Industrial Commission, 244 Wis. 334, 337, 341 (1943) and R.T. Madden Inc., v. Industrial Commission, 43 Wis. 2d 528, 548 (1969). Stated simply, the record here does not establish that the applicant remained in a healing period after October 22, 2003.

The next issue is the extent of permanent disability. The employer has conceded permanent partial disability on a functional basis in the amount estimated by treating surgeon Stoll, with an additional 15 percent to reflect his permanent disability on a vocational basis for loss of earning capacity. The ALJ awarded permanent partial disability based on loss of earning capacity at 65 percent. On petition for review, the applicant asserts the ALJ's award understates his disability and that he is actually permanently and totally disabled.

The applicant's vocational experts, Karrie Grady and Timothy Riley, and the employer's expert, Michael Campbell, agree that the applicant would be permanently and totally disabled under Dr. Stoll's December 10, 2002 restrictions. However, Mr. Campbell, noting that Dr. Stoll later said it would be "medically acceptable" for the applicant to work part-time as a counselor under those restrictions, suggested a possibility of only an 80 percent loss of earning capacity rating.

Under Dr. Lippman's restrictions to a six-hour day lifting 10 to 15 pounds repetitively, and up to 30 pounds fifty percent of the time, the applicant's vocational experts, Ms. Grady and Mr. Riley, estimated a loss of earning at 65 to 70 percent under Dr. Lippman's restrictions. The employer's vocational expert, Mr. Campbell, estimated loss of earning capacity at 55 to 65 percent. Mr. Campbell suggested a lower loss of earning capacity if the applicant could work full time, but the formal restrictions of neither Dr. Lippman nor Dr. Stoll permit full-time work.

The ALJ adopted restrictions set out by Dr. Lippman in his June 2005 letter report, noting that Dr. Lippman set them after watching the videotape at exhibit 1.⁽²⁾ Dr. Stoll, on the other hand, did not view the videotape. The ALJ's award of permanent partial disability based on loss of earning capacity at 65 percent is, of course, at the point of intersection of the estimates given by the vocational experts under the work restrictions set by Dr. Lippman.

The surveillance tape shows the applicant, a woman whom the ALJ identified as the applicant's wife, and another, apparently older, man unloading U-Haul trailer filled with what appears to be bedroom furniture. The applicant, who keeps his cane with him at all times, mostly dragged the furniture to the open end of the trailer where his wife and the other man carried it away. The applicant is shown to do some lifting however. He carried some of the furniture a short distance, notably a mirror which he moved by himself and which likely would have been quite heavy. He does a lot of bending at the waist as well. He does appear to be disabled to some extent--he allowed the others to do most of the heavier lifting and carrying, and he dragged, more than carried the mirror, allowing gravity do a lot of the work. He also used his cane to walk at times, though other times he held the cane between his thighs to free his hands.

The videotape also showed the applicant detaching the U-Haul trailer from his truck. He lifted the trailer off the hitch, then rolled the trailer backward a short distance by the tongue that attached to the hitch, and carefully set the tongue down on the ground. Then he bent and kneeled in the back of his truck to remove parts from the hitch.

The commission, like the ALJ, adopts Dr. Lippman's work restrictions, which more credibly reflect the applicant's residual capacity than Dr. Stoll's restrictions. In light of Dr. Lippman's work restrictions, and having considered the reports of the vocational experts and the various factors set out in Wis. Admin. Code § DWD 80.34(1), the commission agrees with the ALJ's conclusion that the applicant has sustained permanent partial disability for loss of earning capacity at 65 percent compared to permanent total disability into which is merged his permanent disability on a functional basis.

The parties have requested that the commission make findings on the substantive issue of the extent of disability, but allow the parties to attempt to reach a stipulated resolution of the payment issues (the calculation of the dollar amounts of the award) with assistance from the department if necessary. Based on the request of the parties, the commission shall modify the ALJ's findings and order to conform to this decision finding an end of healing (and end of temporary disability) as of October 22, 2003 and permanent partial disability at 65 percent compared to permanent total disability, but refrain from making findings on the dollar amounts actually due to allow the parties to attempt to reach a stipulated resolution of the payment issues.

Given the nature of the applicant's condition and treatment this order shall be left interlocutory to permit additional orders or awards on permanent and temporary disability and medical expense claims that may arise in the future. This order shall also be left interlocutory to allow the parties to seek help from the department concerning the calculation of the compensation mandated by this decision, including an order by the department awarding the compensation upon application or request by either party if the parties cannot agree on the proper amounts.

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 reversed in part.

No amounts are awarded at this time, so that the parties may attempt to reach a stipulated resolution of the payment issues.

Jurisdiction is reserved for future orders and awards as may be consistent with this decision.

Dated and mailed November 29, 2007
zabelro . wrr : 101 : 1 ND §§ 5.3, 5.6

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Because the commission's modification of the ALJ's decision turned largely on its reading of the reports of the medical experts, neither of whom testified at the hearing, no credibility conference was held with the presiding ALJ. See Hermax Carpet Marts. v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).

cc:
Attorney Robert C. Angermeier
Attorney William R. Sachse, Jr.

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(1)( Back ) As of the date of its initial brief, the respondent had conceded an additional 15 percent in PPD, bringing the total PPD concession to 40 percent.

(2)( Back ) At the hearing, there was substantial testimony about the applicant's activities while deer hunting with friends. A chiropractor and minister testified to the effect that the applicant went on a hunting trip, but did not actually kill a deer or do any walking in the woods but instead stayed at the hunting cabin. He took one shot at deer from the vicinity of the cabin, but missed. He did bring a deer home, but it had been shot by another man. Like the ALJ, the commission concludes the applicant did not engage in strenuous activity during the deer hunting trip.

uploaded 2007/12/03