JAVIER RAMOS, Applicant

J & J RENTALS & CONSTRUCTION, Employer

RURAL MUTUAL INS CO, 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 April 26, 2007. J & J Rentals & Construction and Rural Mutual Insurance Company (respondents) submitted a cross-petition also alleging error in the administrative law judge's decision. At issue are the nature and extent of disablity and liability for medical expense attributable to the conceded work injuries to the applicant's low back and right ankle that occurred in the work incident of August 26, 2002. This includes respondents' assertion that the administrative law judge incorrectly calculated the amount of compensation due in accordance with his findings.

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

The applicant, whose birth date is February 2, 1967, was repairing a roof for one of the employer's clients when he slipped and fell 25 to 30 feet below, landing on the sidewalk. This occurred on August 26, 2002. He sustained a vertebral fracture at L4-5, a comminuted fracture of his right ankle, and a broken left wrist. The left wrist was casted and healed, although the applicant's physician assessed 3% permanent partial disability for it. On August 30, 3002, Dr. Shekar Kurpad performed a three-level lumbar fusion from L3 to S1. Dr. Richard Marks initially set the broken ankle, but ankle fusion surgery was required on November 2, 2004, again performed by Dr. Marks. These surgeries and treatments are all conceded as having been work related.

Dr. Marks completed a WKC-16-B dated August 9, 2005, in which he assessed 50% permanent partial disability at the fused right ankle. Videotape evidence verifies that the applicant walks with a pronounced limp and requires the use of a cane. One of the applicant's primary treating physicians subsequent to the work injury was Dr. Trinh Truong, a physical medicine and rehabilitation specialist. Dr. Truong completed a WKC-16-B dated August 4, 2006, in which he opined that the applicant was totally disabled due to his loss of ankle motion together with his severe low back pain/radiculopathy.

Medical practitioners have also diagnosed depression and post-traumatic stress disorder (PTSD) resulting from the work injury. The applicant received treatment for depression from Dr. Bruce Stevens, a psychiatrist. Dr. Stevens diagnosed major depressive disorder with psychotic features, PTSD, and personality disorder. In his WKC-16-B dated June 26, 2006, Dr. Stevens declined to offer an opinion regarding permanent disability; however, from his statements made in the WKC-16-B and attached notes, it is inferred that he believed he was being asked to comment on the disability attributable to the applicant's physical injuries. Dr. Stevens indicated that assessment of such physical disability percentages was beyond his area of expertise.

Another treating psychiatrist, Dr. Kenneth Johnson, diagnosed work-related depression and PTSD. In his WKC-16-B and narrative letter, both dated September 7, 2006, Dr. Johnson opined that the applicant is not able to work and is 100% psychologically disabled.

At the applicant's attorney's request, Dr. N.M. Reddy, a pain and rehabilitation specialist, examined and evaluated the applicant on August 23, 2006. Dr. Reddy diagnosed chronic low back pain with L5 radiculopathy, right ankle fusion, chronic pain syndrome, psychophysiologic pain with improved coping skills, probable narcotic medication dependence, depression and anxiety, and significant functional impairment. Dr. Reddy opined that the applicant was capable of performing tasks in the light work category with lifting up to 20 pounds and 10 pounds carrying. He also indicated the applicant could not perform jobs involving prolonged standing or walking, or climbing ladders. Dr. Reddy recommended a predominantly sitting job with no repetitive bending or twisting. He also recommended that the applicant be "cleared by the psychiatrist before returning to work." He estimated 30% permanent partial disability attributable to the back fusions, and 20% permanent partial disability at the right ankle.

The applicant received chronic pain management treatment at Columbia Saint Mary's with William A Stewart, M.D., and John R. Galbraith, Ph.D. Diagnoses were chronic leg pain due to severe skeletal trauma; features of panic/anxiety disorder and probable PTSD with notable irritability, hostility, and suspicion; and chronic pain syndrome. In his report of November 25, 2003, Dr. Stewart wrote:

"His sense of entitlement is huge and he clearly misperceives benign statements from people if he thinks his disability under worker's compensation is being challenged. His statements and behaviors always serve to emphasize his severe level of disability."

At respondents' request, Dr. Richard Lemon examined and evaluated the applicant on December 21, 2004, and again on June 28, 2005. In his 2004 report, he diagnosed the physical injuries together with symptom magnification and narcotic dependence. He opined that the applicant was poorly motivated to return to the workplace, and had been noncompliant with his rehabilitation. He assessed a 20-pound lifting restriction and no climbing of ladders. He assessed 40% permanent partial disability at the right ankle and 30% at the back. In his 2005 report, he again opined that there were signs of symptom magnification. He raised his permanent partial disability assessment for the right ankle to 55%, but otherwise reiterated his opinions from 2004.

Dr. Lemon submitted a third report dated October 23, 2006, that was based on review of updated medical records. His opinions remained the same, and he indicated that Dr. Reddy and Dr. Stewart had also recorded evidence of symptom magnification.

Also at respondents' request, Dr. Calvin Langmade, Ph.D., a clinical psychologist, examined the applicant twice and submitted reports dated May 12, 2005, and November 6, 2006. In the 2005 report, Dr. Langmade opined that his examination of the applicant revealed behavior inconsistent with PTSD or psychotic disorder such as depression, and that the applicant was very resistant to any inquiry. He also opined that the applicant gave bizarre descriptions of symptoms. Dr. Langmade diagnosed malingering.

In his November 2006 report, Dr. Langmade gave a long and somewhat inconsistent answer regarding diagnosis. He opined that it was difficult to render any diagnosis, given the applicant's noncompliance with treatment and unreliable description of symptoms; however, he opined that in addition to malingering, the applicant presented with some symptoms of depression and PTSD. Ultimately, Dr. Langmade's "Diagnostic Impressions" included major depressive disorder and chronic PTSD. Dr. Langmade assessed a 5% "psychological disability," but indicated that he did not believe the applicant was permanently and totally disabled.

Applicant's vocational expert, Charles McReynolds, submitted a report dated March 8, 2006. He assessed 60% loss of earning capacity (LOEC) based on the opinions expressed by Dr. Lemon and Dr. Langmade. He assessed permanent total disability based on the opinions of Dr. Truong and Dr. Johnson. In a supplemental report dated September 18, 2006, McReynolds opined that based on the opinions of Dr. Reddy and Dr. Johnson, he would also assess permanent total disability.

Respondents' vocational expert, Bruce Schuyler, opined that based on the opinions of Dr. Truong and Dr. Johnson, the applicant is permanently totally disabled. Based on the opinions of Dr. Lemon and Dr. Langmade, there was LOEC of 40 to 50%. In a supplemental report dated November 10, 2006, Schuyler assessed 50 to 55% LOEC based on Dr. Reddy's and Dr. Johnson's opinions. Schuyler also listed several specific jobs he believed the applicant could undertake based on the lesser restrictions, including courier, light packaging and delivery, manufacturing inspector, and valet driver.

The applicant established a credible prima facie case for permanent total disability.(1) He sustained devastating physical injuries to his lower back and right ankle, which resulted in severe physical restrictions credibly assessed by Dr. Reddy to include maximum lifting of 20 pounds, no repetitive bending or twisting, and no prolonged standing or walking. The videotape evidence revealed that at least in isolated instances, the applicant could stay on his feet for a substantial period of time. However, it also verified the fact that he walks with a pronounced limp and does require the use of a cane. The administrative law judge found it significant that at times the applicant switched the cane from his right hand to his left, but in viewing the videotape the commission noted that this switching occurred infrequently, and in conjunction with activities such as getting into or out of a vehicle.

The applicant's physical restrictions are in themselves severely debilitating to an individual whose only significant work exposure in this country includes employment as a roofer, masonry worker, and landscaper, all physical jobs.(2) He was enlisted in the army for three years in his native Honduras, and achieved the rank of sergeant. While this military experience would presumably be viewed favorably by prospective employers in the security field, the applicant's physical and mental limitations attributable to his work injuries present overwhelming obstacles to obtaining employment with such employers.

The administrative law judge indicated in his decision and in his credibility conference with the commission that he found it significant that the applicant had been non-compliant with some of the medical treatment recommended to him, that Dr. Lemon diagnosed symptom magnification, and that Dr. Langmade diagnosed malingering. The commission carefully reviewed the record in light of these opinions. The commission concluded that while the applicant has at times been non-compliant with medical treatment, and at times has acted in a hostile and suspicious manner, he is not a malingerer. He has understandably been defensive with regard to his worker's compensation claim, which in substantial part has been resisted by the respondents, including refusals to pay for certain treatments recommended by his physicians. It must also be recalled that the applicant has been credibly diagnosed with depression and PTSD attributable to the effects of his work injuries. The commission infers that these psychological injuries have affected the applicant's demeanor and behavior. Dr. Langmade, who was the only medical practitioner to apply the term "malingerer" to the applicant, undercuts his own opinion in this regard by ultimately making the same psychiatric diagnoses of depression and PTSD that Dr. Stevens and Dr. Johnson made. While Dr. Johnson perhaps entered the realm of vocational opinion by indicating that from a psychiatric perspective the applicant is not able to work, his report gives detailed explanation of the applicant's psychological disabilities. Dr. Johnson noted the applicant has difficulty concentrating and focusing, is internally distracted by his obsessive ruminations over the work accident, is depressed, experiences crying spells, and has difficulty sleeping. Dr. Johnson specifically opined that based on his treatment of the applicant over a period of several years, he found the applicant to be "a very genuine individual" and he had not noticed signs of malingering.

Dr. Lemon recounted the fact that Dr. Langmade had described the applicant as showing "malingering and anti-social disorders," and in his final opinion, Dr. Lemon indicated that he agreed with Dr. Langmade. However, Dr. Lemon's reports repeatedly describe the applicant's behavior as demonstrating "symptom magnification." Dr. Lemon describes this "symptom magnification" as excessive and non-physiologic reactions to clinical testing of the degree of low back and ankle pain. Dr. Lemon is an orthopedic surgeon not a psychiatrist, and his examinations of the applicant clearly focus on the applicant's physical injuries. The commission is unpersuaded by Dr. Lemon's or Dr. Langmade's opinions. The commission concluded that Dr. Reddy, Dr. Stevens, and Dr. Johnson credibly described permanent physical and psychological injuries attributable to the effects of the work incident of August 26, 2002.

It is also significant that the applicant's physical and psychological injuries require the use of a narcotic pain medication (OxyContin), an anti-convulsant used for pain (Lyrica), and anti-depressant (Cymbalta), and an anti-psychotic also used for the treatment of depression (Seroquel). The commission infers that the applicant's physicians would not have prescribed these powerful drugs without good medical reason, and that the drugs have side effects that impact upon the applicant's personality.

The commission further finds that respondents failed to credibly rebut the prima facie case of permanent total disability. Bruce Schuyler's suggested employment centers on courier and light delivery positions. However, the applicant credibly testified that he stopped driving in January of 2007 because he almost ran over a pedestrian and his "mind is not right." The lengthy videotape evidence shows that all of the trips taken in the family vehicle after January 8, 2007, were taken with a female as the driver (presumably the applicant's common law wife), and the applicant as a passenger. Schuyler also suggested employment as a parts inspector or security guard, but the applicant's physical and mental restrictions make it improbable that he would be able to obtain regular and continuous employment in either of these fields.

As in every case in which permanent total disability is found, the commission's order will be interlocutory to address the contingency that respondents would be able to locate regular and continuous employment actually available to the applicant. However, based on the evidence presented, the credible inference is that the applicant is permanently and totally disabled as a result of the work injuries sustained on August 26, 2002.

As noted by the administrative law judge in his decision, the record is unclear with respect to which of the claimed medical expenses have yet to be paid. The applicant should make a new listing of outstanding medical expenses and present this listing to respondents for immediate payment. Jurisdiction will be reserved with respect to the reasonableness and necessity of such expenses. The commission agrees with the administrative law judge that Dr. Lemon credibly opined that a motorized scooter is not reasonably required.

The parties have indicated in their briefs to the commission that errors were made in the administrative law judge's computations of previous disability payments, and it also appears that non-industrial disability payments have been made for certain periods of time. Therefore, the commission will not attempt to calculate the exact amounts of compensation and attorney fees/costs due at this time. The matter will be remanded to the department for calculations to be made in accordance with the commission's findings, and with the input of the parties concerning them. Of course, jurisdiction will also be reserved with respect to disputes concerning these calculations. The commission will award the applicant $100.00 in compensation towards his permanent total disability, so that this order may be appealable.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of One hundred dollars ($100.00).

The matter is remanded to the department for calculation of the amounts due in accordance with the commission's finding of permanent total disability, as well as for resolution of outstanding medical expense claims.

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed January 15, 2008
ramosja . wrr : 185 : 1 ND § 5.29  8.33

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

As noted in the above findings, the commission disagreed with the administrative law judge's credibility determination that the applicant ". . . may be malingering to increase his recovery." The respondents' own videotape evidence confirmed the fact that the applicant walks with a pronounced limp and the use of a cane. He no longer drives. He additionally underwent a 3-level fusion that has resulted in chronic low back pain and prescribed narcotic pain medication. Even respondents' psychologist, Dr. Langmade, ultimately diagnosed a permanent psychological disability attributable to PTSD and depression, and these work-related psychological conditions require the use of prescribed anti-depressant and anti-psychotic medication. The commission inferred that the applicant had not always been compliant with recommended medical treatment, and had most probably been guilty of some symptom magnification when being examined by Dr. Lemon. However, the applicant's disabilities and restrictions as diagnosed by Dr. Reddy and Dr. Johnson are genuine and severe in their degree. Considering the physical and psychological effects of the applicant's work injuries sustained on August 26, 2002, together with the applicant's education, age, training, and overall capacity to work, he did establish a prima facie case for "odd lot" permanent total disablity. Respondents did not successfully rebut this prima facie case.

cc:
Attorney Jeffrey J. Strande
Attorney Martin D. Stein

Appealed to Circuit Court.  Affirmed October 20, 2008.  Appealed to the Court of Appeals.  Affirmed October 22, 2009.

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(1)( Back ) See Beecher v. LIRC, 2004 WI 88, 57, 273 Wis. 2d 136, 682 N.W.2d 29.

(2)( Back ) The applicant also worked in "plastering on new home construction" for a few months in 1999, which the commission infers would require standing, bending, and lifting beyond his physical restrictions.

uploaded 2008/01/22