WILLIAM F. ECKLOR, Applicant

WILLIAM SPRINKMAN CORPORATION, Employer

AMERICAN MOTORISTS INSURANCE, Insurer

Pursuant to the timely petitions for review filed by applicant and respondent in the above-captioned matter, the Commission has considered the petitions and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order of the Administrative Law Judge as its own, except as herewith modified:

In the third sentence of the first paragraph of the FINDINGS OF FACT, delete "August 7, 1987" and substitute therefor "August 4, 1987." In the ninth sentence of the first paragraph of the FINDINGS OF FACT, delete "8/4/87" and substitute therefor "August 24, 1987." In the first sentence of the second paragraph of the FINDINGS OF FACT, substitute "myofascial" for "myofacial."

Delete the third paragraph of the FINDINGS OF FACT, and substitute therefor the following:

"Based on a careful review of the testimony given and the evidence received, the opinions of Drs. Lamberson and Karanjia, that the applicant's disabling headaches are muscle contraction headaches secondary to a myfascial pain syndrome and are related to the injury of August 4, 1987, are found credible. In addition to the history they obtained from applicant, Dr. Lamberson and Karanjia based their conclusions on a complete formal neurological examination of the applicant, and on the results of x-ray and MRI testing. Their objective findings on examination of applicant in early 1990 included notable spasm of the left trapezius, mid-thoracic scoliosis with convexity to the right, and some spasm of the paraspinal muscles of the lower lumbar region. Applicant described headaches to them that begin in his neck and then move up into his head, and part of the history they obtained was that he had not experienced this type of disabling headache prior to the work injury on August 7, 1987. This history was accurate; applicant's experience with headaches earlier in his life was with headaches that arose from eyestrain. Although applicant advised Lamberson and Karanjia that his headaches which came on in May 1988 seemed to have no clear precipitating factors, he did describe persistent problems with back and neck pain which was frequently precipitated by certain types of physical activities, and he consistently indicated--with respect to both the headaches which came on in May 1988 and the headaches which came on later that year--that they began with pain in his neck and then moved up into his head. All of these findings and elements of history are considered to provide ample support for the conclusions of Drs. Lamberson and Karanjia.

"The respondent shall be liable for the period of temporary disability from December 15, 1989 through April 1, 1990. The 15 weeks, one day, of temporary disability at the escalated rate of $ 269.51 per week amounts to $ 4,087.57."

Delete the last sentence of the fifth paragraph of the FINDINGS OF FACT, and substitute therefor the following:

"Of that amount, $ 1,987.51 in fees and $ 18.25 in costs shall be paid to Attorney John Becker. The remaining $ 7,931.81 is the amount of accrued compensation payable to applicant."

After the fifth paragraph of the FINDINGS OF FACT, add the following paragraphs:

"In materials submitted after the Administrative Law Judge issued his decision, Kenosha County has claimed an interest in any compensation awarded or paid to applicant in this matter, pursuant to section 102.27 (2)(b), Stats., based on payment to applicant of Aid to Families with Dependent Children (AFDC) and on payment on behalf of applicant and members of his family of medical assistance (MA). The issue presented by this claim of Kenosha County is whether the AFDC payments and the MA payments were "medical costs or living expenses related to a claim under this chapter" within the meaning of section 102.27 (2)(b), Stats. This requires a determination, in the case of the AFDC payments, of whether the payments were intended to provide living expenses for periods of time for which applicant was also entitled to and has now been awarded temporary disability benefits under the chapter, and, in the case of MA payments, of whether the payments were for medical care which was reasonably required to cure and relieve from the effects of an injury subject to this chapter. Based on the materials submitted by Kenosha County, it appears possible to determine the relationship between periods for which AFDC was paid and periods for which TTD has been allowed. It is also possible to determine, from the materials Kenosha County has submitted, that certain of the MA payments are clearly not subject to reimbursement, those being payments made for care of other members of applicant's family, since the statute only anticipates reimbursement for governmental unit provision of medical costs relating to a claim under the Act, i.e., medical costs for treatment of an employe's work-related condition. Also, it appears possible to determine that some of the MA payments made on behalf of applicant by the County were for conditions which are not the subject of his claim for benefits under the Act. However, a significant number of the claimed MA payments may be related to the same condition for which the applicant has sought benefits under the Act. Determination of the entitlement of the County under this statute will thus obviously involved potentially disputed issues of fact, and fact-finding, in which it is not appropriate for the Commission to engage in the first instance without an opportunity for hearing being afforded to all parties, including the County. Therefore, the matter must be remanded for further hearing. However, because under section 102.27 (2)(b), Stats, the reimbursement provided to the governmental unit cannot exceed the lesser of either the amount of assistance provided or two-thirds of the amount of the award or payment remaining after deduction of attorney's fees and any other fees or costs chargeable under chapter 102, it is possible to determine with certainty that applicant will remain entitled to at least one-third of the amount of accrued compensation payable to him. Therefore, the sum of $ 2,643.94 will be ordered immediately paid to applicant. At issue on remand will be the extent of the County's entitlement under section 102.27 (2)(b), Stats., to the balance of $5,287.87 remaining."

"Because Drs. Lamberson and Hall both opine that further symptomatic care will be necessary, jurisdiction will be reserved solely with respect to future medical expense."

Delete the Administrative Law Judge's ORDER and substitute all except the first sentence of the Commission's Modified Interlocutory Order set forth below.

NOW, THEREFORE, this

The Findings and Order of the Administrative Law Judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, the respondent shall pay to Attorney John Becker, One thousand nine hundred eighty-seven dollars and fifty-one cents ($ 1,987.51) in fees, Eighteen dollars and twenty-five cents ($ 18.25) in costs, and to applicant William Ecklor, Two thousand six hundred forty-three dollars and ninety-four cents ($ 2,643.94) in compensation. In addition, respondent shall pay medical expenses of Two hundred fifty dollars ($ 250) to Dr. E. F. Douglas, Two thousand five hundred thirty-five dollars ($ 2,535) to Kenosha Chiropractic Clinic, Two thousand two hundred forty-eight dollars ($ 2,248) to the Marshfield Clinic, One hundred twenty-one dollars and seventy-nine cents ($ 121.79) to Kenosha Medical Associates, and Four thousand eighteen dollars and ninety-nine cents ($ 4,018.99) to St. Catherine's Hospital. This matter is remanded to the Department for further proceedings on the issue of the extent of the entitlement of Kenosha County under section 102.27 (2)(b), Stats., to the balance of Five thousand two hundred eighty-seven dollars and eighty-seven cents ($ 5,287.87) of accrued compensation payable to applicant. This Order is intended to be interlocutory only with respect to the issue of future medical expenses, and is to be considered final with respect to all other issues relating to primary compensation which were or could have been litigated, including loss of earning capacity, except for the issues specified in sec. 102.18 (4)(a), Stats.

Dated and mailed February 6, 1991
ND § 5.44, 8.33

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Respondent's liability for PPD and TTD -- In support of its argument that the applicant's disabling headaches were not caused by the work injury of August 4, 1987, respondent makes a number of arguments. It asserts that applicant gave an inaccurate history to Dr. Lamberson and Dr. Karanjia, both in respect to not disclosing a history of headaches earlier in his life and with respect to not disclosing exacerbations of his problem in 1989; that the Administrative Law Judge ignored the evidence of other medical experts who believed there was no connection; that the Administrative Law Judge ignored the gap in time between the work injury and the onset of the headaches and the correspondence of the onset of the headaches to subsequent employment; and that the Administrative Law Judge's rationale that the headaches were "brought on by specific activities" was inconsistent with certain aspects of applicant's history. The majority did not find these arguments persuasive. As the decision of the Administrative Law Judge has been modified to note, Lamberson and Karanjia arrived at their conclusions based on many considerations, including objective findings such as the presence of severe spasm in the trapezius, and numerous elements of applicant's history which are indisputably true. That the applicant apparently did not indicate to Lamberson and Karanjia that he had suffered eyestrain headaches in his youth is not considered by the majority to be significant. It would be improper speculation to suppose that such a consideration would have altered the considered opinion of Lamberson and Karanjia which was based, as just noted, on a wide variety of factors. The close correspondence between the injury and the resulting persistent back and neck pain, the objective confirmation of persistent muscular problems evidence by the spasm in the trapezius, and the consistent history of onset of the headaches in the neck area followed by movement to the head, render the conclusion drawn by Lamberson and Karanjia reasonable and credible. Furthermore, the majority is not persuaded that applicant did, as respondent argues, fail to disclose exacerbations of this headache problem in 1989 to Lamberson and Karanjia. The history he gave in 1990 included mention of the redevelopment of the headache problems in late 1989.

There is no reason to suppose, as respondent argues, that the Administrative Law Judge ignored the evidence offered by respondent's medical experts, or ignored the fact that there were periods during which the headaches were not prominent and that redevelopment of the headaches in 1989 coincided with applicant's employment in a new job. Rather, it is apparent that the Administrative Law Judge was not persuaded by those contrary opinions and those factual circumstances, that the opinions of Lamberson and Karanjia were not reasonable.

The brief comment about denial of prior headaches in Dr. Karanjia's January 3, 1990 note, relied on by the dissent, leaves unclear what question was posed to applicant by Karanjia that elicited this response. It cannot be determined, for example, if Karanjia asked him if he had ever had headaches before, if he had ever had similar headaches before, or some other questions. Depending on the question, a negative answer might have been appropriate. The majority is unwilling to reject Karanjia and Lamberson's overall opinions on the basis of speculation that the denial was overly broad. The majority also does not share the dissent's concern over Karanjia's statement on January 3, 1990 that he "suspected" that the headaches were muscle contraction headaches. At that point, Karanjia was clearly drawing only preliminary conclusions. Later opinions, after further tests were conducted to rule out other causes, were adequately definite. Finally, the majority finds the lapse in time between injury and onset of the headaches less troubling than the dissent. Applicant accurately informed Karanjia and Lamberson that the back and neck pain which began with the injury persisted through the months before the onset of severe headaches.

This is, in the view of the majority, a mine-run case in which there is conflict between medical experts on the cause of a disabling condition. There is evidence tending both for and against the proposition, that the condition was caused by the work injury. The majority of the Commission has found more persuasive, the evidence that the work injury caused a persistent myofascial pain syndrome leading to secondary muscle contraction headaches.

Respondent's failure to rehire applicant -- Respondent objects to the finding by the Administrative Law Judge, that respondent refused to take applicant back after he was released to return to work on July 22, 1988. It argues that he resigned from employment with respondent after obtaining employment elsewhere. However, respondent does not dispute the testimony of applicant that he was told by respondent that he would not be taken back because of the added expense involved if he was to get sick on a trip, and that it was only after this that he sought other employment.

Medical expenses -- Respondent argues that there was no medical evidence produced to support the bills from St. Catherine's Hospital, Kenosha Medical Associates, or E. F. Douglas, M.D. However, respondent stipulated to the admission into the record of applicant's Exhibit F, the applicant's WC-3 form and attached medical bills, including the bills referred to in respondent's argument. The Commission is not persuaded that any objections were preserved. None are noted in the Administrative Law Judge's synopsis of the proceedings, or decision. The letter to the Administrative Law Judge from counsel for the respondent objecting to the bill from Dr. Douglas, is dated September 26, 1990, the day following the hearing, and therefore is certainly not timely once the hearing has been closed. The respondent's stipulation is not treated by the Commission, of course, as a stipulation that the condition for which the treatment was rendered was caused by the work injury; that issue has been separately resolved against respondent based on the other evidence in the record. However, the Commission is not inclined in these circumstances to hear the respondent now advance other objections to the medical expense evidence.

Nature of the order as interlocutory or final -- Applicant has petitioned for review, objecting only to the final nature of the order. Applicant contends that the order should have been left interlocutory so as to allow for the entry of further orders on such matters as future medical expenses and loss of earning capacity. Respondent argues that nothing in the record precludes the making of a definite determination that there will be no greater percentage of disability in the future. However, both Dr. Lamberson and Dr. Hall indicated that further medical treatment would be necessary, thus opening up the possibility of further medical expense. It is therefore appropriate to leave the matter interlocutory for that purpose.

PAMELA I. ANDERSON, COMMISSIONER Dissenting

I am unable to agree with the result reached by the majority herein and I dissent.

The Administrative Law Judge and the majority accepted the opinions of Drs. Lamberson and Karanjia even though it is true that they were not given an accurate history by the applicant. Dr. Karanjia's note from January 3, 1990 says that "He denies headaches prior to this occasion." Dr. Lamberson's January 3, 1990 notes report "The patient's history is well summarized by Dr. Karanjia." Dr. Lamberson then agrees with Dr. Karanjia's assessment and says, "I feel that the patient's history of headaches is very consistent with a muscular etiology."

I have great difficulty accepting these doctors' reports because they did not obtain a correct history and they did not see the applicant until January 3, 1990 following the August 7, 1987 injury. The applicant did not report any headaches which he related to this injury until over six months after the incident. Dr. Cushman reported a history of headaches all his life in a letter of November 2, 1984. Dr. Gerol treated the applicant for cluster headaches with Medrol tablets and the applicant was symptom free until he ran out of tablets. I also question whether Dr. Karanjia's opinion is really to a reasonable degree of medical probability where he concludes that "This man's headache problems I suspect are muscle contraction headaches secondary to a myofascial pain syndrome."

It is hard to believe that the applicant's headaches are caused by muscle tension when the first reported time occurred while he was sleeping over six months after the work injury.

I would reverse and find no permanent disability related to the headaches because I have reasonable doubt that they were work related.

/s/ Pamela I. Anderson, Commissioner

110 - CD5970

cc:
Attorney Patrick R. Russell
Attorney John A. Becker

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/04/09