JOHN F HUBENY, Applicant

DEPT OF NATURAL RESOURCES, Employer

DEPT OF ADMINISTRATION, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed April 14, 2008
hubenjo . wsd : 175 : 8 ND §  9.2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review that it disputes the amount of compensation awarded the applicant in this case. The administrative law judge found that the applicant suffered 8 percent permanent partial disability to the body as a whole as a result of his work-related back injury on May 29, 2006. Dr. Barron, who examined the applicant on behalf of the employer, stated in his report dated March 19, 2007, the work incident on May 29, 2006 resulted in a lumbar strain which aggravated, accelerated and precipitated his preexisting degenerative disc disease at the L4-5 and L5-S1 level beyond its normal progression. Dr. Barron found the applicant had reached a healing plateau as of the date of his examination on March 19, 2007. Dr. Barron opined that if the applicant does not have surgery, he has sustained 3 percent permanent partial disability to the body as a whole as a result of the work injury in May 2006. Dr. Barron restricted the applicant to no lifting over 25 pounds or repetitive bending from the waist.

Dr. Ihle evaluated the applicant on May 15, 2007, two months after Dr. Barron. Dr. Ihle opined that the applicant could do no lifting over five to ten pounds, lifting overhead. Dr. Ihle diagnosed the applicant with degenerative disc disease with a combination of facet hypertrophy and bone spurs compounded by a herniated disc at the L4-5 and L5-1 causing significant radiculopathy involving the right leg. Dr. Ihle noted the applicant had a significant progression of his symptoms in the last five weeks and recommended surgery. Dr. Ihle opined that the applicant suffered 20 percent loss of use of the body as a whole, secondary to his spinal disease due to the work injury in May 2006.

The administrative law judge appropriately noted that Dr. Ihle's rating was predicated at least upon a worsening of the condition just before his evaluation and may reflect in part a temporary fluctuation in the applicant's symptoms. The applicant testified to his worsening symptoms and restrictions as a result of his work injury. The applicant testified that his current back pain is excruciating and causes restrictions in his ability to perform his household duties, as well as other functions. Based upon a review of the medical evidence in the record, as well as the applicant's testimony and the reports from Dr. Barron in March 2007 and Dr. Ihle in May 2007, the commission finds that the applicant suffered 8 percent permanent partial disability as a result of his work injury. The commission agrees with the administrative law judge that the applicant's permanent partial disability has increased from the time he saw Dr. Barron in March 2007. However, the evidence does not indicate the applicant's worsening may not reflect in part a temporary fluctuation in his symptoms. Therefore, the administrative law judge appropriately awarded the applicant 8 percent permanent partial disability to the body as a whole as a result of his work injury, as well as temporary total disability benefits from May 29, 2006 through March 19, 2007, and medical expense.

NOTE: The commission received a request from the applicant's attorney dated March 21, 2008 requesting a briefing schedule in this matter. However, at the time the commission received this request the commission had completed its review of the employer's petition and the record in this matter. Pursuant to Wis. Admin. Code § LIRC 1.07 the commission may deny a request to file a brief which is not made in a petition or answer if the commission has all ready reviewed the case, but not yet issued its decision at the time the request is made. Therefore, the commission denies the request for a briefing schedule in this matter.

cc: Attorney Curtiss Lein
David Hart, Assistant Attorney General

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