DEBRA K OBERMEYER, Applicant
LUTHER REGIONAL HEALTH, Employer
EMPLOYERS INS CO OF WAUSAU, Insurer
LUTHER HOSPITAL, Employer
LUTHER HOSPITAL, Insurer
Luther Hospital submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in his matter on May 29, 2007. Employer's Insurance Company of Wausau and the applicant submitted answers 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 traumatic low back injury of April 27, 1992. Also at issue is whether or not the applicant sustained a compensable occupational back disease with a date of injury on or about May 5, 2004, and if so, what are the nature and extent of disability and liability for medical expense attributable to such occupational disease.
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:
On April 27, 1992, the applicant experienced severe low back and left leg pain when she pushed a bronchoscopy cart at work. She received temporary total disability for approximately seven weeks and was on restricted duty for approximately eight additional weeks. On August 12, 1992, Dr. James Leavitt released the applicant to return to work with restrictions, but she returned to her regular duties.
The symptoms continued and on November 2, 1993, Dr. Stephen Endres surgically implanted a spinal cord stimulator that provided significant relief of the applicant's symptoms, but did not eliminate them. A clinic note dated January 19, 1996, discusses increased low back and left leg pain that was not controlled by the stimulator. Subsequent medical records reveal ongoing low back and bilateral radicular symptoms of increasing intensity. For example, see in Applicant's Exhibit E: clinic note dated May 1, 1996 (Physical Therapist Erika Weiby); clinic note dated May 3, 1999 (Dr. Jay Loftsgaarden); clinic note dated June 13, 2000 (Dr. David Winter); clinic note dated June 15, 2000 (Dr. David Nye); clinic note dated July 15, 2002 (Dr. Peter Wagner); replacement of the spinal cord stimulator by Dr. Endres on September 19, 2003; and Dr. Kerry White's diagnosis on February 25, 2004, of intermittent drop foot on the right.
On May 3, 2004, Dr. Endres referred the applicant to Dr. Joseph Hebl. Dr. Hebl took a history of the applicant's ongoing low back problems that at that time included bilateral leg pain and a right foot drop. Dr. Hebl began treatment and assessed permanent light work restrictions, which kept the applicant off work. On July 1, 2004, Dr. Hebl made the restrictions more severe by limiting the applicant to three eight-hour days of work per week. The applicant was able to return to work three days a week beginning on July 12, 2004, because the employer found work within those restrictions. On October 15, 2004, Dr. Hebl made the three-workdays-per-week restriction permanent, and he discharged the applicant from his care, subject to increased symptoms.
On January 26, 2006, Dr. Hebl opined that the applicant has a 10 percent permanent functional disability, 8 percent of which he attributed to the original work injury of April 27, 1992, and 2 percent of which he attributed to her continued work exposure between August 2002 and May 2004.
At the employer's request, Dr. William Monacci completed two reports. The first is dated March 18, 2005, and was based on a review of the medical records. The second is dated May 9, 2005, and was based on review of updated medical records plus a physical examination of the applicant. In both reports, Dr. Monacci diagnosed chronic pain syndrome of undetermined etiology, unrelated to the work incident of April 27, 1992, or to the work exposure over the years. He opined that the incident of April 27, 1992, did result in a temporary aggravation of the applicant's low back condition, and constituted a musculoligamentous strain with residuals that should have lasted no more than 12 weeks. He further opined that the applicant's work duties were not of sufficient magnitude, duration, or frequency to have caused a permanent aggravation of her preexisting lumbar condition. Nevertheless, Dr. Monacci recommended a 30-pound lifting restriction and assessed 5 percent permanent functional disability, both attributable to the applicant's "idiopathic" low back condition.
The administrative law judge found that the applicant sustained an occupational low back injury with the date of injury being the missed workday of May 5, 2004, and that all the applicant's permanent partial disability was attributable to this occupational injury. These findings would make Luther Hospital 100 percent liable as a self-insured employer, which it became in 2003. In 1992, Luther Hospital was insured by Employer's Insurance of Wausau. Luther Hospital has petitioned and argues that the April 1992 traumatic injury is solely responsible for the applicant's problems or alternatively, that Dr. Hebl's opinion should be accepted and "80 percent of the total PPD" should be attributed to the 1992 injury, with 20 percent attributable to the May 2004 occupational injury.
There is no medical support in the record for the assertion that the April 1992 traumatic work injury is solely responsible for the applicant's back problems. Given the applicant's work exposure between August 1992 and May 2004, and her increase in symptoms during that time period, this is not surprising to the commission. However, there is also no medical support in the record for the administrative law judge's finding that there was no permanency attributable to the April 1992 injury, but that 10 percent permanent functional disability is attributable to a May 2004 occupational disease. The administrative law judge attempted to adopt that part of Dr. Monacci's opinion which says that the April 1992 work injury caused no permanency, while at the same time adopting that part of Dr. Hebl's opinion which says that there was a May 2004 occupational back injury that caused permanent functional disability. However, neither of these physicians opined that was only one permanent injury in the form of an occupational back disease, nor can such an inference fairly be drawn from acceptance of part of each medical opinion. Both medical opinions directly contradict the administrative law judge's finding, and there is no assessment of 10 percent permanent functional disability attributable solely to an occupational back disease.
The commission finds Dr. Hebl's opinion credible. The applicant sustained a conceded traumatic work injury to her low back on April 27, 1992, and never fully recovered from the onset of symptomatology associated with that injury. Dr. Hebl credibly opined that this April 1992 injury "exacerbated beyond its normal level" (1) the applicant's preexisting degenerative disc disease, resulting in low back pain, weakness, and loss of range of motion. Dr. Hebl credibly assessed 8 percent permanent functional disability to this injury.
Additionally, Dr. Hebl credibly opined that the applicant's work exposure with the employer between her return to work in August of 1992 and her missed work day of May 5, 2004, materially contributed to the progression of her degenerative back condition, thereby constituting an occupational back disease with a date of injury on May 5, 2004. (2) Therefore, the applicant's disability and medical expense attributable to her ongoing back condition starting on May 5, 2004, and continuing thereafter, are entirely the liability of Luther Hospital as the self-insured employer on that date. (3)
Employer's Insurance of Wausau is liable for 8 percent permanent partial disability, which amounts to 80 weeks of compensation at the applicable rate of $232 per week, for a total of $18,560. Luther Hospital is liable for 2 percent permanent partial disability, which amounts to 20 weeks of compensation at the applicable rate of $232 per week, for a total of $4,640. The applicant's attorney is entitled to a 20 percent fee plus $2,678.06 in costs, to be shared proportionately by Luther Hospital and Employer's Insurance Company of Wausau. Luther Hospital is liable for any additional compensation, including medical expense, attributable to the occupational back disease with a date of injury on May 5, 2004.
The applicant asserted that the administrative law judge should have awarded temporary total disability benefits for the period from May 5, 2004 through October 15, 2004, because the administrative law judge found that the applicant had been in a healing period between those dates. Dr. Hebl's clinic notes record that he did continue to treat the applicant during this time period, but on occasion released her for restricted work, before assessing permanent work restrictions on October 15, 2004. The applicant also testified that she did work for the employer on unspecified dates during this period, and that she received short-term disability payments during this period. Therefore, based on the record before it, the commission could only speculate with regard to the amount of temporary disability, if any, due for this period. Accordingly, the commission will leave its order interlocutory with respect to the issue of temporary disability beginning May 5, 2004, and continuing thereafter. Consistent with Dr. Hebl's opinion, the order will also be interlocutory with respect to the issues of additional permanent disability including loss of earning capacity, vocational retraining, and medical expense.
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, Employer's Insurance of Wausau shall pay to the applicant the sum of Twelve thousand seven hundred five dollars and fifty-five cents ($12,705.55); and to applicant's attorney, Thomas A. Siedow, fees in the amount of Three thousand seven hundred twelve dollars ($3,712), and costs in the amount of Two thousand one hundred forty-two dollars and forty-five cents ($2,142.45).
Also within 30 days from this date, Luther Hospital shall pay to the applicant the sum of Three thousand one hundred seventy-six dollars and thirty-nine cents ($3,176.39); and to applicant's attorney, Thomas A. Siedow, fees in the amount of Nine hundred twenty-eight dollars ($928), and costs in the amount of Five hundred thirty-five dollars and sixty-one cents ($535.61).
Jurisdiction is reserved solely against Luther Hospital with respect to the possibility of additional compensation attributable to the occupational back injury.
Dated and mailed December 17, 2007
obermde : 185 : 9 ND § 3.4
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission's partial reversal of the administrative law judge's order was based on analysis of the written medical opinions and did not include any disagreements with the administrative law judge's credibility impressions.
cc:
Attorney Thomas A. Siedow
Attorney James Moermond
Attorney Dennis M. Sullivan
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