BARRY G DAVIS, Applicant
AMERICAN CAT EMPORIUM, Employer
TORO COMPANY, Employer
TRAVELERS CASUALTY & SURETY CO, Insurer
TORO COMPANY, Insurer
c/c GALLAGHER BASSETT SERVICES INC
In July 2005, the applicant filed an application for hearing seeking compensation for an injury to the ankle and foot after jumping off a table while working for American Cat Emporium on November 8, 1988. In October 2005, the applicant filed an application for hearing seeking compensation for an injury to the ankle and foot due to work exposure at Toro Company (Toro) with a May 7, 2005 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on October 11, 2006 and March 27, 2007.
Prior to the hearing, American Cat Emporium and its insurer (Travelers Casualty & Surety Company (collectively, American Cat) conceded jurisdictional facts, and an average weekly wage of $178.00 as of the alleged November 8, 1998 date of injury. Toro Company, and its insurer, Toro Company c/o Gallagher Bassett Services, Inc., (collectively, Toro) conceded jurisdictional facts and an average weekly wage of $606.00 as of the alleged May 7, 2005 date of injury.
At issue was whether the applicant sustained an injury arising out of his employment with either American Cat or Toro, or both. Also at issue is the nature and extent of disability from such an injury or injuries, liability for medical treatment expenses for such an injury or injuries, and the applicant's entitlement to an interlocutory order.
On June 25, 2007, the ALJ issued her findings and order. American Cat and the applicant filed timely petitions 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.
The applicant was born in 1966. In August 1985, before starting work for either American Cat or Toro, the applicant hurt his right foot when he dropped a post on the dorsum of his right foot while working for an earlier employer. He had pain over the plantar aspect of the distal first metatarsal, and mild swelling of the medial dorsum of his foot. X-rays appeared negative, and he was given sprain care.
In September 1988, shortly before the first injury that is at issue here, the applicant saw a doctor about spots on the superior aspect of the medial malleolus of his foot. He told the doctor he had had the spots since junior high school, but had noticed swelling over the last week. The doctor's diagnosis was right heel swelling with dermatitis, etiology unclear.
a. Injury at American Cat.
From June 1988 to November 1990, the applicant worked at American Cat, a company that makes pet and cat products. He was injured a week or two before November 8, 1988 when he jumped from a 34-inch high table to the floor, striking his foot on the corner of a pallet. The applicant testified he reported the injury to a supervisor, Brad Inks, and was told to continue working.
The accident was witnessed by the applicant's coworker and then-roommate, Peter Malinger. Mr. Malinger described the accident as set out above, stating the applicant landed funny, and that "[i]t looked bad but he kind of shrugged it off." According to Mr. Malinger, a supervisor asked the applicant if he was okay and the applicant said he was.
Mr. Malinger testified that, starting about a week after the injury, the applicant complained about his ankle bothering him. The ankle appeared swollen and dark pinkish. The applicant and Mr. Malinger remained roommates into 1989. According to Malinger, the applicant's ankle continued to bother him the whole time the men shared rooms.
American Cat denies the injury happened. Its owner, Linda Brinkman, testified that the applicant never reported a foot injury, though he did report other injuries. Ms. Brinkman specifically referred to cuts with utility knives. When these occurred, the office manager would put a bandage on the wound, and document the cut in the worker's file. According to Ms. Brinkman, the first that American Cat learned of the injury was in November 1990, when it received a letter from its insurer informing it of the applicant's claim. Around that time, the applicant, who was having surgery on his foot, stopped working for American Cat.
Ms. Brinkman was aware of the applicant's injury when the applicant dropped the post on his foot in 1985, because the applicant wore special, high top shoes to provide cushioning. But he never complained to her of pain from the prior 1985 injury; she testified the special shoes were precautionary. She testified that the applicant did not report for work after the injury in crutches and never had any work restrictions she was aware of from 1988 to 1990. She also provided paper work showing that the applicant discontinued his group health insurance in November 1990 -- which of course is about when he filed his claim for worker's compensation.
Ms. Brinkman further testified that Mr. Malinger could not have witnessed the event as he was off work for the entire month of November 1988 due to a cut finger. She brought in his personnel record to support that testimony. March 2007 transcript, pages 38-39. She testified, too, that while the applicant had missed time in November 1988, it was for deer hunting. March 2007 transcript, page 45.
On cross examination, Ms. Brinkman testified that the employer challenged every worker's compensation case it was aware of, unless "there was ... some validity to it." She admitted, too, that when Mr. Malinger was off work in November 1988 for his cut finger, the employer gave him a sick leave and paid his medical expenses directly, rather than report the injury to its worker's compensation carrier. March 27, 2007 transcript, pages 48-49.
On November 8, 1988, about two weeks after the injury at American Cat allegedly occurred, the applicant went to a Med-Night clinic. The examining doctor (the commission believes Dr. Mulrennan) reported the applicant was seen:
for a rash that [the applicant] has had for eight months and also for a second problem which [the doctor believed was] unrelated which is swelling and pain of his right heel. No known trauma. He did injure it apparently several years ago. Denies fevers or chills. He has been able to work despite the discomfort.
Exhibit J. At the hearing, the applicant denied telling the doctor he had not injured his foot, but could not, 18 years later, recall exactly what he told the doctor. October 2006 transcript, page 92.
At any rate, on examination, Dr. Mulrennan noted obvious swelling of the applicant's ankle, evidence of eczema, and that the heel was slightly ecchymotic. The area was tender to palpation and extremely boggy. The doctor's diagnosis was swollen, painful right foot, with a concern about osteomyelitis. The doctor was waiting for the results of some blood tests that had apparently been done three weeks earlier, before deciding what to do next.
A bone scan was ordered the next day, November 9, 1988. It was read as being consistent with a stress fracture rather than osteomyelitis, and Dr. Mulrennan noted the applicant had an appointment with Dr. Tompkins.
The next note, from Dr. Tompkins, is dated November 12, 1988. It states:
History is as noted above with the exception of the fact that today he states that he jumped from a height landing on his right heel approximately 2 week ago and that the pain and swelling commenced at that time.
Unsure what was going on, the doctor put the applicant on crutches with limited weight bearing. On follow-up on November 17, 1988, the doctor indicated the applicant was to continue on crutches. Improvement was noted in December 1988, with minimal tenderness and slowly resolving swelling.
On December 13, 1988, the applicant was seen by a dermatologist who diagnosed lichen planus. (1) The applicant cancelled an orthopedic appointment for December 17, 1988.
The applicant apparently did not treat for his ankle again until the summer of 1990 when he saw Michael Quinn, M.D. Based on symptoms of a non-healing
ulcer on the posterohumeral aspect of his right ankle, Dr. Quinn referred the applicant to a surgeon, Dr. Schaldach, who saw the applicant on October 19, 1990 and took this history:
..on referral from Dr. Mike Quinn with a non-healing ulcer on the posteromedial aspect of his right ankle. Barry gives a story of having a heavy object fall on the right forefoot in 1984 or 1985. He apparently was on crutches for a while after this but then recovered without further incident. He is unaware of any fracture from that injury. He seems to have had no further difficulty with the extremity until the development of an ulcer some weeks ago. This has persisted in spite of local care, and he is sent here for further evaluation.
On examination, the doctor noted a skin ulcer. He told the applicant that an AV (arteriovenous) malformation was causing his symptoms, and that he needed surgery. Accordingly, the applicant was admitted for surgery on October 26, 1990, and following a right lower extremity angiogram, Dr. Schaldach performed a right posterior tibial artery venous malformation ligation on October 29, 1990.
In the discharge summary from this procedure, Dr. Schaldach noted a history of
He has been in previous good health; however, he did sustain a significant injury to his right ankle and foot with some swelling and irritation in this area. He was seen by Dr. Quinn in July 1990 with a complaint of a rash on the inside of his ankle and this appeared to some stasis dermatitis. This was initially treated with topical antifungal and antibacterial cream and it seemed to respond pretty well. This did recur, however, ... and he noticed a soft tissue mass in the area increasing over the last few weeks at the base of his heel. He noticed that the heel seemed to be throbbing also....
Exhibit J.
Post surgery, the applicant apparently had some delay in healing. The doctor did an additional ligation under local anesthesia on December 13, 1990. After further delay in healing, he was readmitted to the hospital for further surgery in February 1991.
In the February 5, 1991 hospital admission report, this history was recorded by Gregory Dodge, M.D, and Lynn Martin, M.D.:
This 24-yearl old, white male has a rather longstanding history of development of an AV malformation of his right heel. He states that he sustained injury to his foot in 1986 when a large, heavy object, weighing approximately 250 pounds fell on his right foot. After that time, he had a subsequent development of AV malformation and presented to his local doctor for evaluation. This led to treatment including ligation of the tributary vessels in October of 1990...
Exhibit J.
On February 6, 1991, Dr. Martin performed a radical excision of arteriovenous malformation of the right heel and coverage with a microvascular free latissimus dorsi muscle flap and split thickness graft. In follow-up from the skin graft surgery, there was some talk of additional skin grafting, but it appears the applicant eventually healed. He did sprain his ankle in the spring of 1991 while healing from the grafting. The applicant essentially stopped following for his skin graft after May 1991.
In October 1992, the applicant retuned to Dr. Martin at the request of his lawyer. The doctor noted the problem with breakdown of the skin beneath the graft cleared up, and that the applicant was able to stand for 21/2 hours without a problem. The doctor did think the applicant would be better off with a job at which he could sit down at least periodically to reduce trauma to the heel area of the foot. Regarding causation, the doctor stated:
I explained to Barry that I felt that the AV malformation was something that he had had since he was born and that he didn't have any problems with this until the injury at work which caused the abnormal blood vessels to dilate and produce the problem that he had, which was really quite disabling.
Exhibit J.
The applicant also treated at the Mayo Clinic. See exhibit I. In March 1994, a Mayo doctor, Franklin H. Sim, M.D., wrote:
...Barry Davis has a very difficult and somewhat unusual problem with his right leg. He has a large and unstable soft tissue heal flap, which tends to break down because of the split thickness skin graft. He is making an effort to function by padding his heel and with shoe modifications and by limiting his activity level.
The alternative would be a below-knee amputation which Mr. Davis was seriously considering in view of his present problems and continued limitations. There currently is no coding for his present soft tissue problem related to his foot. Since the alternative procedure would be a below knee amputation, one could utilize the same rating system for that procedure. I do note on page 89 of the Wisconsin standards that a patient with a complete motor and sensory loss below the knee would have a 25% disability. Since it is not complete in Mr. Davis' case 15% would seem a reasonable figure.
The applicant saw Dr. Martin again for an orthotic in 1996, and saw an orthopedist after dropping a heavy object on his toe in 1996. He did not treat again until 2005. October 2006 transcript, page 66. During his hiatus in treatment from 1996 to 2005, the applicant continued to have problems with the ulcer breaking open, and drainage, but he understood he was to treat it himself with antibiotic cream. Transcript, page 67.
b. Work exposure at Toro.
The applicant began working for Toro, where he drove a forklift, in 1993 or 1994. He worked 8 to 10 hour days, and got off and on the forklift 25 to 30 times a day. He would have to get out of his truck to align or adjust the forks, and at times did heavy lifting. He used his foot to apply the gas and brake in the forklift, which of course involved a lot of back and forth motion. October 2006 transcript, pages 72 to 77.
The applicant resumed active medical treatment for his right ankle after his ulcer became infected in May 2005. The applicant ran a fever with his infection, and reported to a hospital emergency room. A report from Toro's medical examiner states that:
The next significant medical record is an emergency room evaluation at the Tomah Hospital on May 7, 2005. At that time, the examinee was complaining of fever and body aches. His heel was examined, and he was felt to have cellulitis.
Exhibit Toro 1, page 8.
The applicant had his heel rechecked on May 9, 2005. The doctor's note says:
He is in today for a recheck from the ER. He was seen in the emergency room on Saturday, May 7, for cellulitis of the right heel. He had an ulcer there and it got infected. The ulcer he says seems like was healing up on Wednesday, and he has been dealing with it for some time. He says it seems like it is irritated through work when is on the forklift bouncing. His heel hits the back of his shoe and it opens up. He usually waits for layoff every year, and then it will heal up and close, and then he struggles with it throughout the year, but this time it just seemed to open up and got infected. He struggles with it all the time at work, but it has also flared up with some of his activities when he is up on it at home also. He had surgery to reconstruct it and skin grafts approximately 14 years ago. He cannot feel the heel but he watches it every day.
Exhibit Q. At the time of this visit, the applicant's body temperature was normal. The heel did not appear hot or inflamed. The doctor wanted to see him back in 3 days. On that occasion, the doctor said the heel did not appear as red or inflamed, and that the ulcerated area had decreased in size. When he was seen again on May 19, 2005, continued healing was noted, but it was slow and the doctor was worried bout the quality of the granular tissue, so he referred the applicant to a podiatrist.
Accordingly, the applicant saw Margaret Shelton, D.P.M., on May 23, 2005. She noted:
Past history is significant for an AV malformation on the right foot medially. He probably has had this since birth but it was asymptomatic until he jumped off a table and abraded the area while at his work at that time. He never did heal. The AV malformation was discovered, resection was attempted then he ended up with a musculoligamentous flap from his back, probably latissimus dorsi. He has had no feeling in the foot since then. It intermittently breaks down on the plantar aspect of the heel. He works at Toro. It typically breaks down in November when he does deer hunting but his wife states it often breaks down more frequently than that and she said it seems recently that it has been healed for only a day or two and then re-occurs.
Dr. Shelton's assessment was neuropathy status post AV malformation with reconstruction, and a neurotrophic ulceration, improving. She cleaned the ulcer, prescribed orthotics, and kept the applicant off work for another three weeks.
Over the next few months, Dr. Shelton described the ulcer as slowly improving then stabilized, though there continued to be drainage. In August 2005, Dr. Shelton diagnosed "right neurotrophic ulceration, worsening" and referred the applicant to Dr. Martin for possible surgical intervention and redo of the myocutaneous flap.
The applicant returned to Dr. Martin on September 9, 2005. Exhibit K. He noted the AV malformation that he had previously covered with a skin graft in the earlier 1990s. He added:
He is quite happy with the results from this. He has been able to work and hunt and get around. He presently works driving forklift for the past 4 months or so. He has been sidelined with an ulcer that has developed over the heel. He was seen at Tomah Memorial Hospital Emergency Room on May 7 with a fever and a plantar ulcer. ... Dr. Shelton thought that perhaps I could revise the skin graft over this area. I really do not think that is the best approach here. I think the patient needs to spend less time on his heel. He needs to have his leg elevated more.
The doctor told the applicant that the skin graft was not as durable as normal plantar skin and
...this will heal if he stays off of it. This patient is an avid hunter, so he tends to have more trouble in the fall when he is out hunting, walking on uneven terrain.
Exhibit K, page 2, September 9, 2005 note of Martin.
In a note for September 13, 2005, Dr. Martin told the applicant he should use crutches at home. On October 11, 2005, Dr. Martin wrote:
...re-evaluation of his heel wound. This has not improved since I saw him last. Barry still has been doing a little bit of hunting. He shot a turkey this morning, so I know that he has been walking on this, and I really do not think he is going to heal as long as he is doing that. ... Barry says he will not do anymore hunting and will stay off of it completely. He will use a crutch to go the bathroom, which I think he really needs to do.
In a letter to Dr. Shelton that same day, Dr. Martin stated he had debrided the applicant's wound, but had nothing else to offer, but he would refer the applicant to a wound clinic. Exhibit Toro 3.
At Dr. Martin's referral, then, the applicant treated at a wound clinic in LaCrosse later that fall on October 19, 2005, with Silvia A. Friary, M.D. She noted a long history of post traumatic right heel AV malformation. She recorded this history:
Essentially, he states in 1988 he jumped off a table and hit the corner of a board at the edge with his right heel. He had pain but not severe after that and the[n] he slowly developed swelling and was eventually found to have the arteriovenous malformation.
Dr. Friary's diagnostic impression was right heel ulceration, recalcitrant to healing.
The applicant returned to Dr. Martin on October 25, 2005. At this point, Dr. Martin suggested a surgery to excise the wound, and close it with sutures. He emphasized to the applicant that he would need to stop smoking. Dr. Martin performed the suggested surgery on November 3, 2005.
The applicant returned to Dr. Martin for suture removal on November 22, 2005. The doctor noted he had received a letter from the applicant's attorney, and stated:
I told him I do not think there is anything wrong with his working environment, It is just that his heel does not have hardly enough coverage to handle his regular activities be they at work or not at work.
Exhibit K. In a note from December 9, 2005, Dr. Martin stated:
...We talked again about what he should do from here out. I think that if he goes back to work, that this will probably not get any better, or it may get worse. He could check into vocational rehabilitation to try to find a job that would allow him to be more sedentary, though that is no guarantee that he will not continue to have problems with breakdown with his other activities. I think he ought to consider BK [(2)] amputation.
Exhibit K. Dr. Martin also noted the applicant would be seeing Dr. Weiner for a disability evaluation, and that Dr. Shelton could refer him to a practitioner in the Mayo Clinic system to consider doing the BK amputation. Dr. Shelton's January 17 and 31, 2006 notes at exhibit Q, page 27, 31, and a January 5, 2005 letter at exhibit Toro 3, indicates such a referral.
The applicant then saw Mark G. Costopoulos, M.D., at the Mayo Clinic on January 30, 2006. Dr. Costopoulos took this history:
Mr. Davis injured his heel in 1988 jumping off a table at work. He was off work for one year as a result of this. He was subsequently discovered to have an AV malformation of the right heel and underwent a reconstruction of this with muscle wrapping and skin grafting in 1990.
He has had significant problems with heel ulceration ever since then. He saw Dr. Franklin H. Sim for this in 1991 for second opinion as he was advised by his local physicians to consider an amputation procedure. Dr. Sim recommended against an amputation procedure, and Mr. Davis has been treating his chronic recurrent heel ulceration conservatively.
Exhibit I.
Dr. Costopoulos noted the applicant went off work in May 2005, and that he underwent the November 2005 surgery after which "the area remained open but it has been healing and improved dramatically." Dr. Costopoulos noted, too, that the applicant had been referred for a second opinion on the healing of the ulceration and how to prevent a recurrence.
Regarding his diagnostic impression, Dr. Costopoulos stated:
...Chronic, recurrent heel ulceration.
This is in the setting of an injury with reported AV malformation and a subsequent excision reconstructive surgical repair. Mr. Davis is currently off work because of this problem. He has tried various footwear which have been unsuccessful in terms of preventing recurrence. Currently, he appears to be healing the wound, although I am concerned about future breakdown. I believe proper footwear will be essential for him, and he may also benefit from physical therapy ...
Dr. Costopoulos wanted some studies done, including a plain right x-ray and MRI scan.
Meanwhile, the applicant continued to treat at Dr. Shelton's clinic (Franciscan Skemp Healthcare) where he saw Charles Nolte, D.O., on March 7, 2006. Noting the applicant's wound looked good, Dr. Nolte released the applicant to return to work 4 hours a day, five days a week as of April 3, 2006. Exhibit Q, pages 35 and 36.
The applicant returned to Dr. Costopoulos on March 20, 2006, by which point the applicant had been released to work. It appears his ulceration had improved and the doctor gave him some direction on wound care. Indeed, the applicant again saw Dr. Sim, the surgeon, who stated the wound "looks very good today."
The applicant saw Dr. Shelton again on March 28, 2006. She noted the release to work by Dr. Nolte, and assessed the applicant's condition as "right heel ulceration, resolved." She added that while it was great to see the resolution of this ulcer site, the applicant needed to be careful and continued close observation. The doctor agreed with the part time work restriction (with no lifting over 40 pounds) but added that "forklift driving is certainly acceptable."
Dr. Shelton added that while the applicant should not do forceful push/pulling, squatting or climbing, he could sit, occasionally stand, walk, drive, stoop and reach. In April, Dr. Shelton allowed a release to full time work. The applicant did not appear for his next visit at the Mayo Clinic.
In May 2006, the applicant complained of some swelling, which Dr. Shelton put down to increased activity with work hardening. She felt his heel looked good. When the applicant next saw Dr. Shelton in July 2006, he inquired about a disability rating. Noting that the applicant "continued to be at risk for redevelopment of this, particularly in his line of work" (exhibit Q, page 39), she concluded he was a candidate for permanent restrictions and a disability rating, and referred him to occupational health for that purpose, where he saw Susan Quinn, M.D, on August 30, 2006, whose note is set out below.
c. Expert medical opinion.
On the question of whether the employment with American Cat in 1988 caused the applicant's disability before he began working at Toro, the applicant offered an opinion from treating doctor Schaldach, who opined by letter dated December 29, 1990:
It is my opinion to a reasonable degree of medical certainty that Mr. Davis' AV malformation of his heel developed as a consequence of the trauma he received when he jumped off a table and landed on his heel in 1988. Development of such an AV malformation from a rash is simply not a consideration.[(3)]
Exhibit C.
The applicant also offers an opinion on a practitioner's report form from Dr. Sim, whom the applicant saw at the Mayo Clinic. Dr. Sim's report is dated October 13, 1992. Exhibit D. Regarding causation, the nature and extent of disability, and diagnosis, Dr. Sim writes:
This is a 24-year old male who indicated that he jumped off a table at work in 1989. He suffered an inversion injury to his right foot. He developed heel pain and swelling over the next couple of weeks.
Following the patient's injury noted above, the swelling returned to normal About one year later, he developed increased swelling along the side of the foot and heel and this progressed into skin breakdown. He noted this heel became pulsatile with distended veins. An angiogram was performed at the time which showed inner arterial venous malformation. He had surgery to ligate feeding vessels to the AV malformation. He had persistent problems and repeat angiogram was done which showed a persistent AV malformation. He then underwent resection of this with skin coverage and free latissimus muscle transfer and a split thickness skin graft. At the time he was seen in Mayo Clinic he was non-weight bearing on the right forefoot. He had evidence of skin breakdown over the distal flap with no sensation in the heel. There was also considerable dependant swelling. On examination he had a painful heel and was unable to bear weight. His calcaneus was very prominent. There was enlargement of the right foot secondary to the latissimus free flap which was quite bulky. There was evidence of mild skin breakdown over the plantar aspect of the flap.
Dr. Sim opined that the table jumping incident caused disability by aggravation or acceleration of a pre-existing condition. The doctor estimated permanent partial disability at 75 percent at the foot, and 15 at the leg for "painful heel restricting weight bearing activities." Asked if he felt the permanent partial disability would increase, or the condition might improve, the doctor noted
If symptoms persist with further breakdown and lack of function, patient would do better to have a below-knee amputation.
Dr. Sim did not believe there was previous disability. He attached a treatment note stating that trying to get a sedentary type work would be better for his "life long problem."
Turning to the effect of the subsequent work exposure at Toro from 1993 to 2005 with respect to the period of renewed disability beginning in May 2005, consideration should be given to Dr. Bowman's report. (Exhibits P and Toro 3.) Dr. Bowman is an occupational health specialist in the same clinic as Dr. Shelton, and he saw the applicant on July 31, 2005 (and maybe one other time.) His report states:
...He believes back in early 1990 while he was at work at the American Cat Emporium he was standing up on a table cutting out carpet pieces, apparently for scratching posts. [Lunch] time came around and a friend picked him up and walked by his work station so that they could go to lunch together. He jumped off the table, struck his heel on an edge of a pallet and essentially twisted his ankle. He was eventually found to have an AB [AV] malformation and that apparently was treated extensively at Gunderson Lutheran [another clinic] I do not have any of these records.... Initially, he apparently did not heal, eventually underwent a musculoligamentous flap from his back. It is my impression this was eventually brought to a close and after talking with his current attorney it sounds as though he was given a relatively generous permanent partial disability rating.
[]Dr. Shelton's note indicates that [the applicant] would occasionally have problems with breakdown in the plantar aspect of his heel. He indicated at that point it would typically breakdown in November when he was deer hunting but his wife would indicate that it would breakdown more frequently than that. No new specific incident as he had had at the American Cat Emporium. He apparently had breakdown in 2005 and eventually went back to see Dr. Martin at Gunderson Lutheran. Dr. Shelton followed [the applicant] extensively...
[]...He has essentially been referred here today to consider any further permanent disability rating and any permanent restrictions. Question that has arisen after I have talked with his attorney is whether work at Toro is currently responsible for his problem. ...
[]It is my impression that he has been taken back to work to eight hour days mainly driving forklift at Toro. That seems to be working out well and he currently has no issues with breakdown. He is not complaining of pain, in fact the area over the wound is not painful.
On examination, Dr. Bowman noted a large skin flap over the Achilles and the heel, with no real swelling or edema and no open areas of skin. The applicant walked without a limp. The ankle range of motion was functional in dorsiflexion, plantar flexion, inversion and eversion.
The doctor's assessment was right lower extremity AV malformation with recurrent plantar heel neurotrophic ulcerations. Noting the applicant's 131/2 years of employment with Toro, the doctor concluded:
As far as work relatedness goes, I truly think the responsibility at this point is to the American Cat Emporium. As far as we know, Mr. Davis would have had absolutely no problems with his foot were it not for the original injury. Since he continues to have problems, I believe that the responsibility belongs to the American Cat Emporium. He has no new injury, problems have been continuous, he has never really had a period where he has been completely healed or completely better. Even after he believed his case was closed he has had problems with recurrent ulceration which are all the result of the original injury, [but] for the original injury as far as we know Mr. Davis would have absolutely no problems. I really do not believe this is an issue for Toro. I think Mr. Davis has an underlying condition that is purely manifesting symptoms while at work at Toro, does not have issues caused specifically by work.
The doctor went on to note that he would contact the State of Wisconsin regarding his reasoning and the potential apportionment of injury.
Dr. Bowman also opined there was no physical therapy program that would help, and that restrictions were mainly a matter of guesswork. Dr. Bowman stated the applicant really needed to sit down at work or he could face another infection and possible below the knee amputation. Dr. Bowman believed that the applicant would continue to be active off-duty and stressed that any restrictions he set would have to be followed at work as well as home. Dr. Bowman concluded by suggesting that the applicant's prior compensation for permanent disability back in the 1990s -- Bowman stated this was 75 percent at the ankle and 15 percent at the hip -- was generous even taking into account his condition in 2006. In other words, there was no additional permanent partial disability.
Dr. Bowman fleshed out his opinion on causation in a letter to the applicant's attorney which is at exhibit Toro 3 (and the last page at exhibit O). He stated that he had contacted the worker's compensation division, and having done so still did not think the applicant's current problems were related to his employment at Toro. He stated:
The reason is, considering his condition, we cannot say that standing at work or sitting on a forklift at work were the cause of his more recent breakdown in his heel, and subsequent surgery. I could not say with a reasonable degree of medical certainty that any apportionment of his injury should be given to Toro Company. I believe were it not for his previous injury at the American Cat Emporium, then he would not have had any current problems or concerns.
I also believe the previous PPD rating given is very generous, and would not consider anything further.
I believe that he has a previously existing problem that manifested symptoms at work, but were not caused by his work at Toro.
Dr. Quinn, the occupational health specialist to whom Dr. Shelton referred the applicant, stated in her August 30, 2006 note at exhibit Q:
In approximately 1990 while working at American Cat Emporium cutting carpet pieces for scratching posts, he jumped off a table as he left for a lunch break, striking his left heel on the edge of a [plate] and twisting his ankle.
Dr. Quinn noted the surgeries in the early 1990s discussed above, and that the applicant was never able to return to work. She noted that the applicant started working at Toro in 1993 and 1994, and was working up to 10 (and rarely 12) hours per day on his feet. She noted he had a major breakdown of the skin on his heel at this time, then shifted to different jobs including a forklift job, but this required some heavy lifting. Dr. Quinn noted a series of breakdowns, the revision surgery by Dr. Martin in November 2005, and the applicant's subsequent improvement in condition.
Turning to the question of permanent disability, Dr. Quinn noted:
At this time, he has made significant alterations in his lifestyle. He walks on his right forefoot and avoids putting pressure down on the heel for fear of a breakdown. He can't go hunting individually and needs to go with a team of friends that do the set up for him and help haul the deer. He uses a nylon stocking to control swelling. He needs to buy two different shoe sizes. He has lost foot sensation... He also had some pain near the right hip, which he thinks is probably due to strain from his altered gait pattern. He can't swim, wear sandals, or go barefoot. He wears high top tennis shoes to help support the ankle. In addition, his surgery was apparently complicated by a blood clot.
At work things are going fairly well. When he drives a forklift he needs to move his heel around and he thinks that might be aggravating his skin.
Dr. Quinn noted the report of Dr. Bowman (set out below) and that Dr. Martin had suggested the applicant get another job. On examination, she noted a scar between the graft and the intact skin, and a purple hue to the heel. Her assessment was right heel trauma, apparent arteriovenous malformation requiring reconstructive surgery in approximately 1990, and recurrent skin breakdown of grafted heel.
Dr. Quinn went on to opine a functional capacity evaluation was not necessary. She set a lifting restriction at 50 pounds, with avoidance of standing and walking for more than 30 minutes at a time without a position change. She wanted the applicant to wear boots or shoes with orthotics at work and at home, and agreed he should not work more than a forty hour week. Dr. Quinn also thought the applicant would be more prone to a musculoligamentous strain or degenerative arthritis due to his altered gait pattern, and thought he was still subject to a skin breakdown or infection and, in a worst case scenario, a below the knee amputation.
The applicant also offers a report on form WKC-16-B from Dr. Quinn. Exhibit G. Regarding causation, Dr. Quinn noted the applicant had a congenital or pre-existing arteriovenous malformation, and that
"on 11/8/88 while at work he jumped off a table striking the right heel on a pallet and twisted his ankle. This set off swelling and eventually breakdown of the arteriovenous malformation."
Describing the physical and mental disability and diagnosis, the doctor stated:
Status post excision of the AV malformation with overage of heel and foot with free muscle flap from the back then coverage with split thickness skin graft. Currently healed after repeat surgery to close the wound in November 2005.
Dr. Quinn stated the applicant could work with permanent restrictions including a maximum 50 pound lift, and a restriction against standing or walking for more than 30 minutes at a time.
Dr. Quinn marked the Lewellyn causation box -- precipitation, aggravation and acceleration of a pre-existing degenerative condition beyond normal progression -- and rated permanent partial disability at the 75-percent-at-the-foot rating previously given by Dr. Sim. As elements of disability, she cited skin grafting with an insensate heel, lack of normal plantar skin with greater risk of breakdown of grafted skin, and altered gait pattern. She described his prognosis as fair to guarded, noting he could ultimately need a below the knee amputation.
In a supplemental report, Dr. Quinn opined that work at Toro was a material contributory causative factor to his current foot problems including the need for surgery in 2005. She attributed the need for the 2005 surgery at 80 percent due to the original injury, 10 percent to the job at Toro, and 10 percent to "other factors." Exhibit G.
Finally, the applicant offers the November 18, 2005 opinion of Margaret Shelton, M.D, the treating podiatrist. Exhibit F. Although her report lists a "date of traumatic event" as November 8, 1988 -- the date of the event at American Cat Emporium -- she describes the accident or work exposure causing disability as
Driving a forklift; constant work with right heel resting on base. Also gets on and off forklift frequently, sorting and repackaging boxes and loading them on the forklift. Weight lifted can be anywhere from 20-80 or more pounds. He wears a typical workboot with a visco elastic heel cushion.
Asked to describe the injury and diagnosis, Dr. Shelton stated:
Myocutaneous flap to plantar right heel with decreased sensation and skin thickness not same (thinner) than plantar skin results in intermittent chronic plantar ulceration.
Regarding causation, Dr. Shelton marked the occupational disease box, and stated the work at Toro was a contributing factor. She declined to rate permanency.
Like Dr. Quinn, Dr. Shelton also authored a supplemental report (exhibit F) in which she opined that work at Toro was a material contributory causative factor to his current foot problems including the need for surgery in 2005. She declined attributing the need for the 2005 surgery to specific percentages, however.
Dr. Shelton also attached to exhibit F a "To Whom It May Concern" note that added this explanation:
The flap on the plantar aspect of his heel has decreased sensation, and the skin does not afford the typical thick plantar protection required for this level of activity. Because of this, I feel that his current work requirements have contributed to his current skin breakdown.
American Cat relies on the opinions of Michael Weiner, M.D. His first report dated September 19, 2005 (exhibit American Cat 4) followed a records review -- there was no actual examination. This report would have been before the November 2005 surgery by Dr. Martin, and the subsequent healing in the spring of 2006. Dr. Weiner's diagnosis at that time was a non-healing trophic ulcer of the right heel. The doctor noted the applicant had a congenital arteriovenous malformation involving the plantar and posterior aspects of his right foot.
Discussing whether the applicant's foot problems were related to "the alleged October 1988 incident," Dr. Weiner thought not, pointing to inconsistencies in the medical record including:
Dr. Weiner suggested flatly that the table jumping incident did not occur, but that it was something the applicant thought up after the fact which "took on a life of its own" by having been repeated enough. However, the applicant did not keep his facts straight -- describing what his heel struck differently at different points and sometimes mentioning the 250-pound falling object.
Dr. Weiner added:
In my opinion, the arteriovenous malformation enlarged, as is often the case, due to a natural progression of increased blood flow between the venous and arterial intercommunications. The amount of force applied to the right heel from jumping approximately 3 feet did not cause the arteriovenous malformation to enlarge, if indeed, this event actually occurred. I find it very unlikely that this amount of force would have been greater that what would have been applied to the right foot during training and exercises while Mr. Davis was in the Army prior to this. Recall that he had seen Dr. Tompkins in June 1988 for right shoulder problems which he related to the physical activities while in the service.
Dr. Weiner also stated he could not say if work as a forklift driver for Toro irritated the applicant's healing, causing it to reopen. He said it was possible, but it would depend on a number of factors including how long he had been driving the forklift and how much it vibrated, whether it correlated with deer hunting season, and how long he bad been wearing shoe inserts.
Dr. Weiner then did a follow up report in December 2005 (exhibit American Cat 7), which followed Dr. Martin's November 2005 surgery. On this occasion, Dr. Weiner did associate the work at Toro with the applicant's disability. He acknowledged the work did not directly cause the congenital arteriovenous malformation (AVM), but
...his condition of chronic heel ulcerations was precipitated and aggravated by his job duties as a forklift operator. However, this was not the only factor resulting in this condition. Given the extent of the AVM and aggressive treatment, a generally overall successful reconstruction has resulted. Once this surgery was performed, the reconstructed heel pad/skin graft was always at greater risk for tissue breakdown. The normal plantar surface on the foot has thickened, highly specialized skin which can withstand the chronic wear and tear secondary to our bipedal posture and full weightbearing. ... In Mr. Davis' case, the soft tissue coverage of the bone was adequate, but the thinner than normal insensate skin graft was at risk for ulceration. Any time he bore weight on the right heel, whether at work, at home, or "hunting", the potential for ulceration was present.
His job duties, as described, while on the forklift caused direct pressure on his right heel through his work boot and insert, even while "in the sitting position." He described an even greater than expected degree of right heel pressure due to his height and the location of his seat in the relation to the accelerator/brake pedals. He relates being unable to transfer greater pressure to the anterior aspect of his foot as would when walking, due to the confines of the forklift cab. Even when walking by placing increased pressure on the "front" of his foot, he still would not be able to relieve all heel pressure. Therefore, in my opinion, in addition to the workplace exposure, his every day non work-related walking, driving, or other lower extremity weightbearing activity played a role in the development and perpetuation of this chronic problem.
In my opinion, Mr. Davis also has to bear some responsibility for the previously ongoing problem. This would include continued cigarette smoking, a known vasoconstrictive activity which is detrimental to any healing area and not seeking medical attention sooner before developing a fever in May 2005.
Toro obtained an opinion from Hani S. Matloub, M.D., and Brad K. Grunert, Ph.D., who examined the applicant in May 2006. Regarding diagnosis, they opined he had a healing ulcer, with residuals of venous malformation apparent on an MRI. The doctors noted the applicant had a large insensate latissimus dorsi free flap that has been placed over his heel, with thinner skin and less padding over the calcaneus than his contralateral foot.
The doctors went on to note an arteriovenous malformation that developed in his foot during the course of his life, which is not an injury process but rather a congenital abnormality, which the medical records indicated had gone back to his teen years.
Regarding causation, the doctors ruled out any work related cause, stating the applicant's condition was the normal progression for an arteriovenous malformation. The doctors opined the work at Toro did not aggravate his condition beyond its normal progression, noting that normal walking -- indeed any activities that involve weight bearing on the foot -- will cause ulceration of the area. The doctor noted the major problem was that the applicant would not feel when he has excessive pressure on the heel, so the heel will break down, but this could not be attributable to anything more than the applicant's normal everyday activities.
In short, the doctors attributed all of the applicant's symptoms to his pre-existing condition, that his problems were due to the normal wear and tear on an asensate flap with a split thickness skin graft over it, and that the wear and tear would occur when he was walking, driving or doing anything else that would place a weight on his free tissue transfer. They indicate he should not engage in hunting, and should not do more than two hours per day in weight bearing in short segments.
2. Discussion
The ALJ found the table jumping incident in 1988 did occur, making his previously asymptomatic arteriovenous malformation symptomatic, and leading to the skin graft surgery in 1990 and the renewed disability in 2005. Crediting Dr. Bowman's opinion, she found all of the disability was based on the 1988 injury while working with American Cat, and dismissed Toro from the action. She awarded the TTD and medical expenses as claimed.
American Cat and the applicant both sought commission review. American Cat arguing in part that the evidence establishes that the work exposure at Toro was causative and, under the non-apportionment rule for occupational disease, Toro should be solely liable for the temporary disability and medical expense now at issue. Toro, noting report of Dr. Bowman and the applicant's off duty activities (including hunting), contends that the ALJ correctly declined to find it liable based on occupational exposure.
The first question is whether the October or November 1988 jumping-from-table incident at American Cat occurred and did it cause the disability? The ALJ found it did, crediting the testimony of the applicant and Mr. Malinger on that point. It is, of course, true, that the early medical record is inconsistent about that incident. As Dr. Weiner pointed out at length in his report, the applicant at times seemed to associate his condition to an entirely different event -- dropping the weight on his foot in 1986. Equally significantly, the very first note after the alleged table jumping incident in 1988 does not mention the incident at all, but instead says the applicant recalled no trauma.
Of course, the applicant says that note did not reflect what he said. Further, on the second date of treatment on November 12, 1988, the medical note does mention the table jumping incident. The applicant and Mr. Malinger, moreover, testify that the applicant jumped down from the table and hurt himself. Owner Winkler, of course, says the injury was never reported, but she does not say it could not have happened as described, and in fact such an injury in a relatively young man seems quite plausible.
Ms. Winkler does say that Mr. Malinger did not work in November 1988 -- due to a work injury of his own -- and so could not have witnessed the accident. Of course, even before Ms. Winkler testified, the applicant said the incident occurred about two weeks before his doctor's visit on November 8, 1988 -- that the injury itself did not happen that day. This would put the injury back to late October 1988 when Mr. Malinger presumably was still working. Also of note is Ms. Winkler's testimony that Mr. Malinger's injury was not reported to the worker's compensation carrier, but instead she and her husband directly paid Mr. Malinger his sick pay and his medical bills.
The commission also notes that the ALJ observed the applicant, Ms. Brinkman, and Mr. Malinger as they testified. The ALJ was persuaded the applicant hurt his heel when he jumped from the table at American Cat in the fall of 1988. Having carefully considered the testimony and treatment record, the commission adopts the ALJ's credibility assessment and finding on this point.
The ALJ went on to find the table jumping incident at American Cat in 1988 caused the applicant's disability. Like the ALJ, the commission cannot agree with the opinion of Dr. Weiner that the 1988 table jumping incident at American Cat would have had no causal effect assuming it occurred. First, the more credible testimony in the record establishes that the applicant's heel became symptomatic immediately. Second, it seems speculative to suggest, as did Dr. Weiner, that if the applicant's heel were prone to injury while jumping from a table in 1998, he would have hurt it earlier while training in the U.S. military. On this point, Dr. Weiner observes that the applicant had had a shoulder injury in the service, but the record does not establish what stress the applicant's military service had on his heel. Further, the applicant did not simply jump down 32 inches and land flatfooted -- the more credible testimony is that his heel struck a pallet or other object in the jump.
While the injury at American Cat did cause the need for the initial surgeries and treatment through the early 1990s, the applicant's disability and liability for medical expenses for that period is not at issue here.(4) The dispute in this case involves the liability for disability compensation and medical expenses incurred after the applicant resumed treatment in 2005. This dispute implicates not only the jumping-from-the-table incident at American Cat in 1998, but the 12 years of work exposure at Toro prior to the applicant's resumption of treatment in 2005.
In Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, 288 Wis. 2d 206, the court of appeals recently stated:
"¶10 Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. See Zabkowicz v. Industrial Comm'n, 264 Wis. 317, 319, 58 N.W.2d 677 (1953). An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." Shelby Mut., 109 Wis. 2d at 661 (citations omitted). An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." Id. (citations omitted). Here, we address the law regarding occupational disease injuries.
¶12 ... In Shelby Mutual ... we also recognized that a compensable occupational disease injury may occur in the absence of identifiable traumatic events. In particular, we observed that a compensable occupational disease injury may be "'acquired as the result ... of working in an industry over an extended period of time.'" Id. at 661 (quoting Rathjen v. Industrial Comm'n, 233 Wis. 452, 460, 289 N.W. 618 (1940)). We quoted the Rathjen court's example of hernia cases:
"The difference between an occupational disease and an affliction resulting from an accident [both of which are compensable] is illustrated in hernia cases. Where hernia follows as a result of a definite accident the employee suffers an accidental hernia, ... but where it develops as the result of certain types of lifting for a number of years, the employee may have an occupational hernia ...."
Shelby Mut., 109 Wis. 2d at 662 (quoting Rathjen, 233 Wis. at 460-61; citations and emphasis omitted). Thus, in Shelby Mutual we recognized what is simple common sense: repetitive work activities may cause a compensable occupational disease injury even though the disease causing the injury is not caused by identifiable traumatic events.
Dr. Bowman, of course, flatly states Toro should have no responsibility, the applicant merely experienced a manifestation of his underlying condition while working at Toro. However, the commission is persuaded that the work the applicant did at Toro through 2005 was a material contributory causative factor in the progression of his condition. The applicant's testimony and the medical record indicate that the applicant's heel problems -- while not completely resolved -- were at least stable by the mid-1990s. Dr. Martin had advised the applicant to get a job where he could sit down to avoid traumatizing the heel back in October 1992. While working at Toro, the applicant used his right foot to drive the forklift, which put pressure on his skin graft. He also had to get on and off the forklift. Dr. Susan Quinn reported the applicant was on his feet frequently at points during his employment with Toro, and did heavy lifting. Dr. Bowman himself opined the applicant really needed to sit down at work or he could face another infection and possible below the knee amputation. Dr. Weiner's December 2005 report also discusses in detail the ergonomic forces on the applicant's heel as he drove a forklift given the conditions of the cab.
Indeed, Drs. Shelton and Quinn both opine that the exposure at Toro was a material contributory causative factor in the onset or progression of the applicant's condition. The commission credits that opinion on the record in this case. It therefore concludes the applicant sustained an injury arising out of his employment with Toro, while performing services growing out of and incidental to that employment.
Dr. Quinn, of course, assigns only a 10 percent causative role in the applicant's condition to the work exposure at Toro, with 80 percent assigned to the injury at American Cat and 10 percent to activities of everyday life. Dr. Weiner attributes the progression of his condition to both the work activity at Toro and off duty activity.
However, an injured worker's employment exposure need not be the sole cause or the main factor in his or her disability for the exposure to be compensable. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Ibid; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).
The supreme court has also held
"The fact that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee 'as is' and if he is suffering from a disease predisposing to breakage and an exertion required by the employment causes the breakage at the moment of exertion, the employer is liable under the act."
Brown v. Industrial Commission, 9 Wis. 2d 555, 570 (1960). The court has also applied the "as is" rule even when the "as is" condition is the result of a prior work injury. See: Semons v. ILHR Dept., 50 Wis. 2d 518, 529 (1971). Dealing with the situation where there are two work injuries, the supreme court in M. & M. Realty Co. v. Industrial Comm., 267 Wis. 52, 63 (1953) reiterated that:
Numerous decisions of this court have held that employer takes an employee `as is' and the fact that he may be susceptible to injury by reason of a pre-existing physical condition does not relieve the last employer from being held liable for workmen's compensation benefits if the employee becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual.
In M. & M. Realty, of course, the court added that when the first work injury causes permanent disability, the percentage of disability due from the first injury should be subtracted from the total percentage of disability found to exist after the second injury. M.& M. Realty Co. 267 Wis. at 63. In this case, there is no claim for additional permanent disability. Rather, at the hearing, the applicant sought temporary disability, medical expense, and an interlocutory order for future payment of future medical expense. October 2006 transcript, pages 8 and 9.
Wis. Stat § 102.175(1) permits apportionment of disability and treatment expense between two accidental injuries which each contribute to a condition. However, as discussed in Virginia Surety Co., Inc. v. LIRC, 2000 WI App 277, ¶ 20, 258 Wis. 2d 665, the courts have long held disability due to occupational disease is not apportionable among insurers. As the parties note in their briefs, the commission has held that that rule was not changed by Wis. Stat. § 102.175(1) which by its terms is limited to accidental injuries. Thompson v. Villa Maria Health Care, WC claim nos. 2000-052327, 1999-032346 (LIRC, May 13, 2005). Thus, the law does not permit apportionment between an accidental injury and a later occupational disease. See Jay M Williams v. County of Rock, WC claim nos. 2002-025204; 2002-036217 (LIRC, December 22, 2004), citing Kretschmer v. General Stamping Company, WC claim nos. 1997-012273 (LIRC, August 30, 2000).
Accordingly, the commission finds that Toro is liable for the entire amount of temporary disability and reasonable and necessary medical expenses at issue in this case.
3. Award.
The applicant is entitled to temporary total disability (TTD) and temporary partial disability for the periods claimed (May 6, 2005 to August 24, 2005) -- based on a weekly TTD rate of $404 (two-thirds the average weekly wage of $606) -- as set out in applicant's exhibit T which is incorporated herein by reference.(5) The sum of temporary disability compensation, thus, is $13,384.89. However, Exhibit T shows what appears to be the payment of sickness and accident benefits by Aetna for the period at issue in the sum of $4,267.30, for which Aetna is entitled to reimbursement under Wis. Stat. § 102.30(7).
The temporary disability award, after deduction of the amount to be paid Aetna, equals $9,117.59. The applicant agreed to an attorney fee set at twenty percent of the additional amounts awarded or $1,823.52. That amount, plus costs of $1,229.58, shall be paid to the applicant's attorney within 30 days. The remainder, $6,064.49, shall be paid to the applicant within 30 days.
The applicant has incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury, documented in exhibits Y and S, as follows: $1,763.20 from Tomah Memorial Hospital, of which non-industrial insurer Health Traditions has paid $1,507.52, $88.17 has been adjusted from the bill, and $167.51 remains outstanding; $1,001.10 from Gunderson Clinic, all of which remains outstanding; a total of $5,717.75 from Franciscan Skemp Healthcare, of which American Cat's WC insurer (Travelers) has paid $753.71, Health Care Traditions has paid a total of $856.06, WI Medicaid HMO has paid $130.46, a total of $3,465.29 has been adjusted from the bill, and a total of $512.23 remains outstanding; $580.00 from Prosthetic Laboratories of Rochester, of which Travelers has paid $178.50, $55.50 has been adjusted from the bill, and $349.00 remains outstanding; $2,715.00 from the Mayo Clinic, of which Medicaid has paid $733.66, and $1,981.34 has been adjusted from the bill; $9.98 from Walmart Medical Supplies which was paid by the applicant; $15.47 from Phillips Pharmacy which was paid by the applicant; $1,898.88 from Wal-Mart Pharmacy, of which the applicant has paid $136.63, PCS has paid $1,253.96, and SXC has paid $508.29. In addition, the applicant has incurred $656.46 in medical mileage.
Given the nature of the applicant's condition, and Dr. Quinn's credible opinion that he may require additional treatment including, possibly, an amputation, this order shall be left interlocutory to permit future orders and awards for additional disability compensation and medical expense as may arise in the future.
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.
Within 30 days, Toro Company and its insurer, Toro Company c/o Bassett Services, Inc., shall pay all of the following:
1. To the applicant, Barry G. Davis, the sum of Six thousand sixty-four dollars and forty-nine cents ($6,064.49) in disability compensation; One hundred sixty-two dollars and eight cents ($162.08) in out-of-pocket medical expense, and Six hundred fifty-six dollars and forty-six cents ($656.46) in medical mileage.
2. To the applicant's attorney, Mark A. Seifert, the sum of One thousand eight hundred twenty-three dollars and fifty-three cents ($1,823.53) in fee and One thousand two hundred twenty-nine dollars and fifty-eight cents ($1,229.58) in costs.
3. To Tomah Memorial Hospital, One hundred sixty-seven dollars and fifty-one cents ($167.51) in medical treatment expense.
4. To Gunderson Clinic, One thousand one dollars and ten cents ($1,001.10) in medical treatment expense.
5. To Franciscan Skemp Healthcare, Five hundred twelve dollars and twenty-three cents ($512.23) in medical treatment expense.
6. To Prosthetic Laboratories of Rochester, Three hundred forty-nine dollars and no cents ($349.00) in medical treatment expense.
7. To Health Traditions, Two thousand three hundred sixty-three dollars and fifty-eight cents ($2,363.58) in reimbursement of medical treatment expense paid.
8. To Travelers, Nine hundred thirty-two dollars and twenty-one cents ($932.21) in adjustment of medical expenses paid.
9. To WI Medicaid, Nine hundred thirty-two dollars and twenty-one cents ($932.21) in reimbursement of medical expenses paid.
10. To PCS, One thousand two hundred fifty-three dollars and ninety-six cents ($1,253.96) in reimbursement of medical expenses paid.
11. To SXC, Five hundred eight dollars and twenty-nine cents ($508.29) in reimbursement of medical expenses paid.
Dated and mailed March 13, 2008
davisba . wrr : 101 : 9 ND §§ 3.4,
3.37, 3.42, 3.43
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On appeal, the applicant asks the commission to specify as part of its interlocutory order that Toro is liable for future medial expenses. Toro, on the other hand, contends that the applicant has fully recovered from any effects of his work exposure at Toro, so that the ALJ's interlocutory order should specify that any further disability and medical expense should be paid by American Cat. Toro argues this would be the more equitable result.
However, the commission declines to specify who is liable for continuing, post-hearing treatment expense in its interlocutory order. The record provides an insufficient evidentiary basis for entering a prospective order against either employer for treatment that occurs, or may occur, in the future. Nor may such an order be based on mitigating inequity as Toro requests. Chapter 102 is a legislative act, and the commission and the department are statutory bodies empowered to administer ch. 102, Wis. Stats.; they have no power to do equity. David Smiezek v Moorhead Machinery & Boiler Co., WC claim no. 2004-006745 (LIRC, April 28, 2005), citing South Side Roofing & Material Co. v. Industrial Commission, 252 Wis. 403, 409, 31 N.W. 2d 577 (1948).
American Cat also contends that Dr. Bowman's report should not have been admitted, because it was not submitted within the 15-day deadline of Wis. Stat. § 102.18(1)(d)3. That statute provides that practitioners' reports and medical records be submitted at least 15 days before the hearing unless good cause is shown.
This issue may have been mooted by the commission's decision in this case, which relies on the opinions of Dr. Quinn and Dr. Shelton rather than Dr. Bowman. Still, the commission notes that while Dr. Bowman's report was submitted on September 28, 2006, or fewer than 15 days before the first hearing on October 11, 2006, it was submitted 6 months before the concluding hearing on March 27, 2007. The manifest purpose of the 15-day rule is to prevent surprise at hearing and to allow the opposing party to be able to respond to records and opinions in advance of hearing.(6) Clearly, that purpose is satisfied when a record or report is submitted months in advance of a concluding hearing.
The commission did not discuss witness credibility and demeanor with the presiding ALJ. As noted above, the commission agrees with the ALJ's decision to credit the testimony of the applicant and Mr. Malinger about the jumping-from-the-table incident in the fall of 1988. The commission did reach a different conclusion as to the liability of Toro based on a different assessment of the credibility of the medical experts, but none of those experts testified at the hearing before the ALJ. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Mark A. Siefert
Attorney Catherine A. Thomas
Attorney Todd J. Thun
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