REBECCA A REAGOR-DUSS , Applicant
WAL MART STORES INC, Employer
ILLINOIS NATIONAL INS CO, Insurer
In September 2005, the applicant filed an application for hearing seeking compensation for an injury occurring on March 18, 2004. Administrative law judge (ALJ) Ryan O'Connor of the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 17, 2007 and April 16, 2007.(1)
Prior to hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $313.60, and that the applicant sustained a compensable injury on March 18, 2004. The respondent also conceded and paid temporary total disability compensation for various periods from March 18, 2004 to March 12, 2005 totaling $8,519.07, permanent partial disability on a functional basis at 20 percent compared to disability to the body as a whole, and medical expenses. At issue is the nature and extent of disability beyond that conceded (specifically, the applicant's claim for permanent total disability compensation as of January 25, 2005) and the respondent's liability for medical expenses.
Before rendering a decision, ALJ O'Connor left the employment of the Worker's Compensation Division, and the matter was assigned to ALJ Roberta Arnold. On August 28, 2007. ALJ Arnold issued an interlocutory order awarding compensation for permanent partial disability at 25 percent (or an additional five percent) and for certain of the claimed medical expenses, but denying the claim for permanent total disability compensation.
The applicant filed a timely petition for commission review. The commission has considered the petition and the positions of the parties, consulted with presiding ALJ O'Connor concerning witness credibility and demeanor, and reviewed the evidence of record. Based on its review, the commission makes the following:
The applicant was born in 1962. She began working for the employer as a cashier in 2002. As noted above, the respondent concedes that she injured her neck on March 18, 2004. On that date, while lifting a case of soda to scan it, the applicant heard a "pop," and experienced stabbing neck pain and decreased sensation in her arms.
An MRI performed on March 25, 2004 showed a massive left C6-7 disk extrusion that compromised the left C7 root in the lateral recess and the proximal foramen. In addition, the MRI showed a left foraminal herniation at C5-6 with a posterolateral extrusion, and a compromise of the left C6 root in the natural recess and foramen.
Shortly thereafter, the applicant saw Kamal Thapar, M.D., who recommended a two-level anterior cervical diskectomy and instrumented fusion. After additional imaging scans, Dr. Thapar performed the surgical procedures on April 2, 2004.
Following surgery, the applicant had relief of the numbness in her right arm, leaving her a trace of numbness in her arms. She still had headaches and right arm pain, however. On April 20, 2004, treating surgeon Thapar noted a little bit of numbness in her arms. His plan was for follow-up in a month, with a return to work on July 2, 2004.
When the applicant saw Dr. Thapar again on May 18, 2004, she noted improvement in the numbness, but told her doctor she was getting headaches, with some right shoulder and upper middle back pain. Noting what he described as an excellent recovery, Dr. Thapar stated that the applicant would be going back to work with a 10 pound lifting restriction.
The applicant testified that she returned to work helping customers fill out credit applications. However, she was experiencing back and neck pain by the end of her shifts. On June 1, 2004, Dr Thapar reported that the applicant:
...called me today stating that she had been back to work full time and this was too much for her. After about 4-5 hours of work she was complaining of headaches and upper back pain and she could not work her full eight hour shift. I will decrease her work to working half time five days a week, four hours at a time. When I follow up with her on June 29th I will see how she is doing at that time and increase her work hours as she is able.
When the applicant saw Dr. Thapar again on July 2, 2004, he reported a "great result since surgery," noting reduction in arm pain, increase in strength but with some residual numbness and intermittent pain between the shoulder blades. A CT scan showed excellent positioning of the graft and a thorough decompression. Dr. Thapar wanted her to continue working on a part-time basis and not engaging in any physical activity with a ten pound weight lifting limit. He asked the applicant to follow-up with Jane Stark, M.D., an occupational medicine specialist whom she had seen pre-surgery, regarding formal recommendations.
The applicant saw Dr. Stark on July 15, 2004. The doctor noted the surgery, and that the applicant was doing well, but that she had resumed smoking which is a concern for the allograph fusion. The applicant told Dr. Stark:
The patient indicates that she will have symptoms, especially in the right medial scapular area and the paracervical area. She states that she wakes up feeling fine. After about 4-5 hours of being up, she will [be] having neck pain and significant headaches. She will then lay down and rest and then get up feeling much better. ... Symptoms are worse with sitting for prolonged periods of time such as when she was doing the credit card table at work, long car rides, and other activity.
The applicant told the doctor she was currently working work at WalMart as a greeter, which went well as long as she was able to keep moving. However, the applicant complained that the constant sitting and forward flexion of her neck at the card table made her feel awful. Dr. Stark diagnosed status post discectomy and fusion, myofascial pain, paresthesia, and arm pain. The doctor estimated permanent partial disability at 20 percent, with possibly another five percent, but noted she could not be sure until an end of healing which might not be until a year post surgery.
The doctor wanted the applicant to continue to work on light duty for four hours a day with a 10-pound weight limit, frequently alternating between positions. She was to seldom bend or twist her neck and to avoid kneeling, crawling, and climbing ladders. She was told to wok only seldomly below waist height and not cashier. Indeed, the doctor was not certain if the applicant would ever be able to return to cashiering. At a minimum, Dr. Stark felt, it would be quite a few months before the applicant could return to cashiering work.
The applicant retuned to Dr. Stark's office on August 9, 2004, at which time she saw Carol Matthys, a nurse practitioner. The applicant told Ms. Matthys that she generally awoke feeling well, but that tightening into the posterior neck ensued as the day wears on. Ms Matthys continued Dr. Stark's work restrictions.
The applicant returned to Dr. Stark's office on August 16, 2004, when the doctor reported continued pain in the right scapular region and headaches. The doctor noted the applicant had missed three days of work due to the headaches and that "she is reminded that she needs to contact our office and come in for an appointment if she feels that she cannot attend work." The doctor continued the light duty restrictions and four hour per day restriction. Dr. Stark also thought a referral to a neurologist was warranted.
Consequently, the applicant saw Anil Nair, M.D, on August 16, 2004, who noted complaints of daily headache in the back of her neck, and upper back and neck pain. She also complained of some finger numbness. Dr. Nair's assessment was a cervicogenic headache, rhomboid strain with local pain, and also tension headache. He wanted to try treatment by injection.
On August 20, 2004, prior to having the injections, the applicant saw an urgent care doctor who took her off work until she could be seen on follow-up because of the sedation effect of some medication she was taking. The applicant then underwent injections done by Dr. Schlimgen. She saw Dr. Stark thereafter, who wanted her to have more injections and kept her off work "due to pain medication." The second round of injection did not help, and the applicant wanted to try Soma medication again, noting this did seem to improve the symptoms. The doctor agreed to prescribe the medication as a bridge until another follow-up evaluation.
The reevaluation was on September 21, 2004. Dr. Stark noted additional injections were planned for October 1, 2004, and she wanted the applicant to talk to Dr. Schlimgen about them, even though she felt the most recent round made her worse. Dr. Stark adjusted her medication and kept her off work.
At Dr. Schlimgen's recommendation, the applicant underwent Botox injections. The injections made her ill, and Dr. Stark kept her off work until October 11, 2004, when she was released to return to two hours per day of work, followed by a four-hour day on October 13.
The applicant then saw Dr. Stark again on October 27, 2004, when she told the doctor that the botox injections had not helped at all. The doctor recommended a five pound weight limit, with seldom bending or twisting of the neck, and a four hour work day until November 17, 2004, when she was released to work a five-hour day. Noting that the applicant was deconditioned, the doctor wanted a gradual return to work. The applicant returned to Dr. Stark on November 16, 2004, when the doctor noted she had been working toward progressively increasing her hours of light duty at WalMart. At this visit, after discussing possible physical therapy or pain treatment, the doctor released the applicant to two hours per day of work.
The applicant returned to Dr. Stark on December 8, 2004, telling the doctor she had to take the past few days off for continued pain which the doctor felt was reasonable. Regarding her work status, the doctor stated:
I did elect to keep the patient off work. She was advised that we have tried multiple treatments postsurgically including physical therapy, injection, rest, medication and aggressive return to work. She is not tolerating the return to work program. As a result, I do feel it is to her best interest to avoid working. I do not feel that she at any rate can be gainfully employed to the point where she is supporting herself in any real sense of the word. Therefore, I have taken her off of work indefinitely. From a psychological standpoint, I am also concerned that she is attempting to return to work, having worsening pain and then "fails" and must back off of even two hours a day. I do feel that this individual from a psychological standpoint needs to start to develop a standard routine of daily activities that she can tolerate. I feel this is in her best interest and, therefore, do feel that it is appropriate to take her off work at this time.
A subsequent note from Dr. Stark dated December 22, 2004 indicates the applicant was being kept off work for pain management, which was scheduled to begin in January 2005. Meanwhile, Dr. Stark continued to prescribe medications, including narcotics. On December 23, 2004, the applicant told Dr. Stark the medications were wearing off quickly, and that she wanted to discontinue the narcotic medications which weren't working well either. Dr. Stark told her she respected this approach to medication.
When the applicant returned to Dr. Stark on January 26, 2005, she noted the pain clinic visit had occurred, and they felt the medication management was very appropriate. The applicant did continue to have problems with weakness in her arms, tingling and numbness in her right upper extremity which waxed and waned unpredictably. Dr. Stark noted that the applicant had been seen post-surgery by her surgeon, Dr. Thapar, who did not recommend further surgical intervention.
Dr. Stark also noted that the applicant had had an examination by the insurer, and that the insurer's case manager, was present at the examination. The question of return to work was discussed, with Dr. Stark noting:
I have tried multiple times to get this patient back into a work environment. She certainly can tolerate the work on a periodic basis, but she also has significant days of pain at which time she needs to call in sick for work. As the patient indicates she may get up at 2-3 in the morning to do her own light house work or dishes as she is awake, not having problems and can do that. However, to be fully employed with this type of a schedule is very difficult. We did discuss options for working at home....
At this point, Dr. Stark declared maximum medical improvement, or an end of healing. Regarding permanent partial disability, she stated:
The patient has undergone an anterior instrumented fusion at C5-6 and C6-7. She also underwent a C5-6 and C6-7 anterior cervical discectomy. This was performed on 04/02/2004. She is left with a C6 and C7 radiculopathy, chronic pain in her neck and upper back region and weakness in her upper extremities. This has significantly affected not only her work life, but also her home life.
I will assign a 5% PPD rating as to the body as a whole for each level discectomy and each level fusion which would be a total of 20% PPD for the surgery itself.
I will assign another 5% PPD rating for the radicular symptoms she has and an additional 5% for the chronic pain, which has significantly affected not only her work, but also her personal life. As a result, I assign a total of 30% PPD rating for this.
WORK STATUS: I have assigned permanent total disability. Although she can be active, I do not feel given her pain, as outlined above, that she can be active in any functional type of way that will allow her to maintain any permanently regularly scheduled type of employment. Certainly this can be reviewed in the future if her condition significantly changes.
On the same day, Dr. Stark issued a functional capacity evaluation. This states the applicant is permanently unable to work, though it also states that she can work in very light duty work, with less than 10 pounds of lifting, at home. She can bend or twist her neck only 10 percent of the time. She can never work over her shoulder. The doctor added the comment:
Low activity as tolerated. Exercise as directed. Take medication as directed. May cause drowsiness-do not take before/during work or driving. Stretch pause every 30-60 minutes.
Dr. Stark recommended the applicant undergo a functional capacity evaluation, which was done on February 22 and 23, 2005. The physical therapist who did the report noted the applicant gave a maximum, consistent effort on both days of the test, even though she complained of a headache on the second day. The therapist performing the test stated the applicant could, in an 8-hour day, engage in activities including:
Restrictions were also placed to permit forward bending and rotational sitting to 33 to 67 percent of a work day.
When she examined the functional capacity evaluation on March 2, 2005, Dr. Stark noted the test did not take into account pain complaints. She also felt there should be more positional restrictions, including restrictions limiting elevated work to a rare basis, forward bending to an occasional basis, and crawling on a rare basis, and kneeling and crouching on an occasional basis, sitting and standing on an alternating basis, and step ladder climbing on a rare basis.
Turning more directly to the question of whether the applicant could work, Dr. Stark stated:
She is still kept off work. Mary Wheeler [the insurer's rehabilitative nurse] did ask whether she would be able to work given the results of the Functional Capacity Evaluation and the fact that they indicate that she could do these activities for an 8 hour period of time. I did inform the patient and Ms. Wheeler that I certainly think that the patient can perform these activities. However, she has been off work for a period of time and a gradual return to the work environment would be indicated. However, we have to realistically understand that the patient had undergone a significant cervical procedure and has chronic pain that has been consistent throughout her treatment. She has consistently been able to try to return to work in light duty and has put up with chronic headaches and neck pain with this. She simply has shown that she has not had any tolerance of increasing her activity at work. Also with the recurrent pain, she requires narcotic pain medication to decrease her symptoms and these make her sleepy and, therefore, would be unsafe for her to take this in a work environment. At least at this point in time, I do not feel that reasonable employment would be available to Ms. Duss and, therefore, have kept her off of work.
The doctor did recommend another try at pain management, referring specifically to the Sister Kenny Institute of Abbott Northwestern Hospital, Chronic Pain Management program.
Meanwhile, the applicant underwent more injections by Dr. Schlimgen. See Schlimgen's note for April 5, 2005. In May 2005, the applicant was seen by Dr. Monsein at the Sister Kenny Institute, and he thought she was a good candidate for pain management, emphasizing coping techniques and weaning her off medication. According to Dr. Stark's note dated May 16, 2005, Dr. Monsein was not optimistic about returning to work at full time employment, but he did think her functional activity could be improved.
The applicant underwent the chronic pain program at the Sister Kenny Institute. She apparently was weaned off narcotics while there, and x-rays showed a stable cervical fusion. She returned to Dr. Stark, who noted on July 8, 2005 that "in her rehab, they felt that vocational evaluation, career counseling, and job seeking skills would be beneficial," and Dr. Stark agreed, adding "[i]deally, I think it would be better for her to have some type of even part-time gainful employment."
After completing the Sister Kenny Institute program, the applicant also had another functional capacity evaluation, this one done on August 2, 2005. This functional capacity evaluation reported a maximum five pound level lift and weight-carry, but no standup lift or overhead lift. She could push 19 pounds, and pull 30 pounds. The physical therapist administering the testing noted that the applicant's performance gave "an indication of her pain tolerance to activity rather than physical maximums" that is, her safe capabilities as she perceived them. While the therapist felt her physical capacities fell within the sedentary work level, he added "the client's current physical capacities do not appear feasible for competitive employment."
In a subsequent report dated October 4, 2005, Dr. Stark suggested the applicant remained at maximal medical improvement, and reiterated her 30 percent permanent partial disability rating. She did not expect her symptoms to change over the next few years. Dr. Stark advised the applicant she would be kept off work permanently. Dr. Stark added that the applicant would always have chronic pain, and should continue to have her pain monitored on a periodic basis. Dr. Stark discharged the applicant to return as needed.
An MRI was done on November 23, 2005. This showed a satisfactory post-surgical appearance of the C5-6 and C6-7 levels, but mild to moderate degenerative change with borderline central canal stenosis due to posterior disc bulging.
Subsequent notes indicate a relapse with alcohol abuse in 2006, and concern regarding narcotic medication.
Michael Orth, M.D, an orthopedic surgeon retained by the respondent, examined the applicant for the employer about 7 months post-surgery on November 4, 2004. He diagnosed cervical radiculopathy C5-6 and C6-7, status post anterior cervical discectomy and fusion with instrumentation. He opined she still had residual symptoms, an apparent reference back to her then-current complaints of pain in the cervical area, in the left trapezius along with headaches. He opined this diagnosis was causally related to the work injury.
Dr. Orth added that the applicant's complaints were consistent with the tenderness and limitation in motion he observed on examination, substantiating her symptoms. He noted that, while it can take up to a year to recover from a cervical surgery, she was 7 months postsurgery when he examined with continuing complaints of neck pain and headache when she increased her activity, with four hours being the most she could stand at work.
Dr. Orth added that while he had no quarrel with the applicant's treatment with Dr. Stark to the date of his report, which he characterized as "waiting it out," he thought she should see a neurosurgeon--though he acknowledged nothing more in the way of treatment might be recommended. He agreed with the work restrictions Dr. Stark had set as of October 6, 2004, but he thought she could add an hour to her work day on a weekly basis.
The respondent also offers a report from Wanda Blaylark, M.D., who examined the applicant for the insurer on August 25, 2006. She rated permanent partial disability at 20 percent, and set work restrictions allowing an 8-hour day, but no reaching at or above shoulder level, no work involving static neck flexion or extension, nor lifting or carrying more than 10 pounds, and no pushing or pulling more than 20 pounds. She saw no reason the applicant could not work in a sedentary capacity. Exhibit 1.
Gilbert Westreich, M.D., a neurologist, examined the applicant on October 16, 2006. He did not think her headache problems were related to the work injury and he was concerned about her use of pain medication. He would not place any restrictions on her based on her headaches. Exhibit 2.
The respondent's vocational expert is Francis Maslowski. He noted the comment by Dr. Stark that the applicant should be kept permanently off work, and the comment in the Sister Kenny Institute functional capacity evaluation that competitive employment was not feasible. However, Mr. Maslowski felt that these comments did not give adequate consideration to the applicant's education, work history, or skill level. Mr. Maslowski noted passing grades at the University of Minnesota where the applicant left school for financial reasons, and an associate's degree in alcohol and drug abuse counseling at Chippewa Valley Technical School. He noted, too, an employment history including work as a restaurant manager, a super-market bank branch manager, and an office manager. He estimated loss of earning capacity at 10 to 15 percent even if the applicant could only return to modified sedentary activity.
The applicant's expert is Jeanne Krizan. She felt that if one considered the reports of Dr. Stark, Dr. Monsein, and the later functional capacity evaluation done at the Sister Kenny Institute, the applicant was permanently totally disabled as a result of the work injury. Considering instead the opinion of Dr. Blaylark's restrictions, the loss of earning capacity would not exceed the 30 percent functional permanent partial disability assessed by Dr. Stark. Under Dr. Westreich's opinion regarding the headaches, there would be no loss of earning capacity.
The respondent also introduced surveillance videotapes. They show the applicant engaged in activity including cleaning up dog feces from her yard in the snow with a hand spade for about 8 minutes, loading items in her car at a shopping center, putting gasoline in her car, and sweeping snow off a door mat.
Dr. Stark did not think the activities were inconsistent with her complaints. Dr. Blaylark characterized them as working in a squatted position with neck flexion and at a forward bent position at the waist. He described the items at the shopping mall as light.
The commission conferred with presiding administrative law judge Ryan O'Connor concerning witness credibility and demeanor.(2) He informed the commission he recalled the case and the witness testimony quite well. He found the applicant, in particular, to be a credible witness.
ALJ O'Connor informed the commission that the applicant appeared to be in substantial physical distress while testifying at the hearing. He described her appearance as uncomfortable and stiff. He had no difficulty believing she was quite injured. He described testimony as emotional, but not exaggerated, combative or argumentative.
ALJ O'Connor added that he observed the applicant during two non-consecutive days of hearing, including during breaks in the proceeding, and believed her appearance to be consistent with her testimony and Dr. Stark's treatment records. He doubted whether she could have withstood two consecutive days of hearing, and stated flatly that she could not have worked an 8-hour day with a 20 pound lifting restriction.
The commission gave careful consideration to the fact that imaging testing such as the MRI and CT scans did not point to a clear pathology as a source for the applicant's continuing pain after the two-level discectomy/fusion procedure done by Dr. Thanpar. On the other hand, the applicant did have a serious injury causing two disc herniations, both compromising nerve roots in the cervical spine, and necessitating a two-level surgical fusion. She has consistently complained of residual pain since, and tried physical therapy, injection therapy, and medication for treatment. The treatment records do suggest that the applicant was relatively more involved regarding treatment and medication choices than some injured workers. However, the applicant, who is a recovering alcoholic who has an associate's degree in drug counseling, at times opted for the non-narcotic medication choice, causing Dr. Stark to say she respected the applicant's approach.
The commission also considered the functional capacity evaluation, ordered by Dr. Stark and performed on February 22 and 23, 2005, which indicates that the applicant could work in sedentary duty. The commission notes that the physical therapist who did the report noted the applicant gave a maximum, consistent effort on both days of the test, even though she complained of a headache on the second day. The fact that the applicant gave a full and consistent effort, of course, supports the conclusion that the applicant is not exaggerating her complaints or attempting to manipulate treatment providers.
Dr. Stark, of course, did not agree with the restrictions set following the functional capacity evaluation, and instead kept the applicant off work. Dr. Stark, an occupational medicine specialist, has spoken and treated the applicant on many occasions. Early in the treatment, she reminded the applicant "that she needs to contact our office and come in for an appointment if she feels that she cannot attend work." One of the respondent's medical examiners, Dr. Orth, agreed with Dr. Stark's treatment plan and that that the applicant still had serious symptoms several months out from the fusion surgery. Indeed, Dr. Orth recommended a more aggressive approach--another surgical consultation--to deal with her complaints. ALJ Ryan, who observed the applicant as she testified, credited her symptomatic complaints. On this record, the commission declines to conclude the applicant somehow managed to manipulate or deceive Dr. Stark.
The commission also declines to find that Dr. Stark, and for that matter Dr. Monsein and the physical therapist doing the second functional capacity evaluation at the Sister Kenny Institute, are giving vocational opinions beyond their competence in concluding that the applicant cannot work competitively. While medical doctors may not be competent to give vocational opinions, this is not a case where, for example, a doctor speculates that a worker who is able to return to work with certain restrictions has lost a certain percentage of earning capacity based on those restrictions. See, for example, Balczewski v. ILHR Department, 76 Wis. 2d 487, 498 (1977). Rather, the question is whether Dr. Stark (as well as Dr. Monsein and the therapist performing the August 2005 functional capacity evaluation) may disagree with the results of the February 2005 functional capacity evaluation which allows sedentary duty. The commission is persuaded that a doctor remains within the realm of medical expertise in opining that while a worker may be functionally capable of a certain amount of lifting or working in certain positions in some absolute sense, a return to competitive employment would be medically inadvisable due to a worker's pain or lack of endurance in doing those activities. In other words, the commission is satisfied that, where warranted by medical facts, a doctor may competently state that a worker is not able to work under any set of restrictions.
The commission appreciates that Mr. Maslowski believes that the applicant retains the ability to work, based on the her grades while attending the University of Minnesota, her associate's degree at Chippewa Valley Technical School, and her employment history (including work as a restaurant manager, a super-market bank branch manager, and an office manager.) However, while the applicant's educational and employment history might well militate against a total loss of earning capacity if the applicant were in fact capable of sedentary work, they do not eliminate the applicant's disabling pain and its effect on her endurance or capacity to perform sedentary work. That is, the fact that the applicant might be able to obtain relatively better-paying sedentary jobs than a typical worker does not mean her doctor must opine that she therefore has the capacity to do sedentary work.
In sum, the applicant underwent a two-level cervical discectomy fusion with degenerative changes documented by MRI. Her treating doctor, Dr. Stark, has opined that the applicant's physical capacity following the work injury leaves her unable to perform work on a permanent basis. That opinion is supported by the opinion of Dr. Monsein, as well as the results of the functional capacity evaluation done at the Sister Kenny Institute on August 2, 2005. Finally, ALJ O'Connor, who presided at the hearing, informed the commission with no equivocation that her appearance and demeanor during two days of hearings before him was consistent with that opinion.
In light of the credible opinions of Dr. Stark and Dr. Monsein, as well as a careful consideration of the record as a whole, the commission is satisfied that the applicant has shown she is not able to perform gainful work on a permanent basis.(3) The credible reports of Drs. Stark and Monsein and Ms. Krizan, make a prima facie case that the applicant has been injured in an industrial accident and, because of her injury, age, education, and capacity, she is unable to secure any continuing and gainful employment. Based on that finding, the burden of showing that the applicant is in fact employable and that jobs do exist for her shifts to the respondent,(4) and it has not made that showing.
Accordingly, the applicant is entitled to permanent total disability compensation as of January 26, 2005, the day that Dr. Stark opined the applicant reached an end of healing and was permanently unable to work.
From January 25, 2005 to June 25, 2008, a period of 178 weeks, permanent total disability benefits have accrued in the amount of $209.07 per week (two-thirds the average weekly wage of $313.60), totaling $37,249.31. According to information received from the Worker's Compensation Division, the applicant has been overpaid temporary disability compensation in the sum of $1,677.80 and has been paid $35,820.66 in accrued permanent disability compensation, resulting in a net overpayment of $249.15.
The amount accruing monthly after June 25, 2008, for permanent total disability compensation is $905.97. However, in order to recover the net overpayment of $249.15 and attorney costs of $1,654.03 (a total of $1,903.18), no monthly payments shall be made on July 25, 2008, and August 25, 2008, and $91.24 shall be deducted from the payment due on September 25, 2008. On September 25, 2008, then, the respondent shall pay the applicant $814.73. On October 25, 2008 and November 25, 2008, the respondent shall pay the applicant $905.97.
As noted above, the respondent conceded permanent partial disability at 20 percent compared to permanent total disability, which will have completely accrued on November 25, 2008. Because the attorney fee under Wis. Stat. § 102.26 is set at 20 percent of the additional compensation awarded (subject to the 500-week limit under Wis. Admin. Code § DWD 80.43(3)), the attorney fee begins to accrue after that date and will therefore first be deducted from the award with the payment made on December 25, 2008. On December 25, 2008, and on the 25th day of each month thereafter through June 25, 2018, the respondent shall pay the applicant $724.78 per month and pay her attorney $181.19 per month. Beginning on July 25, 2018, the respondent shall pay the applicant $905.97 per month for life.(5)
The applicant is further entitled to compensation for medical expenses incurred to cure and relieve the effects of the work injury. The applicant documented the treatment expenses in exhibits L, but these amounts were adjusted by ALJ Arnold in her order. As there is no objection to the adjustments made by ALJ Arnold, the commission shall adopt her figures and concludes that the applicant incurred reasonable and necessary treatment expense as follows: from Sacred Heart Hospital, $4,667.50, of which the applicant paid $2,435.00, Blue Cross/Blue Shield paid $1,025.38, $23.08 was adjusted from the bill, and $1,184.04 remains unpaid; from Chippewa Valley Emergency Care, $1,520.00, of which the applicant paid $99.39, Blue Cross/Blue Shield paid $1,420.61; and from various providers for prescription expense, $2,664.96 of which the applicant paid $395.16 and Blue Cross/Blue Shield paid $2,269.80.
This order shall be left interlocutory for further orders and awards regarding disability compensation and medical expense as are warranted.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified according to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Rebecca A Reagor-Duss, Two thousand nine hundred twenty-nine dollars and fifty-five cents ($2,929.55) in out-of-pocket medical expenses.
2. To the applicant's attorney, One thousand six hundred fifty-four dollars and three cents ($1,654.03) in legal costs.
3. To Sacred Heart Hospital, One thousand one hundred eighty-four dollars and four cents ($1,184.04) in medical treatment expense.
4. To Blue Cross/Blue Shield Four thousand six hundred fifty-two dollars and eleven cents ($4,652.11) in reimbursement of medical treatment expense.
On September 25, 2008, the employer and its insurer shall pay the applicant Eight hundred fourteen dollars and seventy-three cents ($814.73) in disability compensation.
On October 25, 2008 and November 25, 2008, the employer and its insurer shall pay the applicant Nine hundred five dollars and ninety-seven cents ($905.97) per month in disability compensation.
Beginning on December 25, 2008, and continuing on the twenty-fifth day of each month thereafter through June 25, 2018, the employer and its insurer shall pay all of the following:
To the applicant, Seven hundred twenty-four dollars and seventy-eight cents ($724.78) per month in disability compensation.
To the applicant's attorney, One hundred eighty-one dollars and nineteen cents ($181.19) per month in attorney fees.
Beginning on July 25, 2018 and continuing on the twenty-fifth day of each month thereafter, the employer and its insurer shall pay the applicant Nine hundred five dollars and ninety-seven cents ($905.97) per month for life.
Jurisdiction is reserved for further findings, orders and awards as are warranted and consistent with this decision.
Dated and mailed July 10, 2008
reagere . wrr : 101 : 1 ND §§
5.21, 5.31, 8.24, 8.32, 9.2
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
cc:
Attorney Steve Jackson
Attorney Richard D. Duplessie
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]