CHARLES HOULE, Applicant
JENKINS RESEARCH & MFG, Employer
ERIE INSURANCE EXCHANGE, Insurer
The applicant and the respondents (Jenkins Research & Manufacturing and Erie Insurance Exchange) each submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on December 19, 2007. Briefs were submitted by the parties. Respondents have conceded that the applicant sustained a compensable thoracic back injury on July 24, 2003, and have paid 1 percent permanent partial disability consistent with the opinions of Dr. Kenneth Yuska and Dr. Anoo Patel. Respondents also concede that the medical treatment the applicant received up to April 15, 2004, was reasonably required by the work injury. Respondents dispute the awarding of any additional compensation subsequent to April 15, 2004. The applicant claims additional temporary disability, additional permanent partial disability, and additional medical expense.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:
At respondents' request, Dr. Anoo Patel examined the applicant on October 23, 2003, and submitted a report dated November 6, 2003. Dr. Patel diagnosed a work-related, permanent aggravation/acceleration of the applicant's preexisting degenerative disc disease of the thoracic spine. He assessed 1 percent permanent functional disability together with lifting, bending, and twisting restrictions. Dr. Patel noted that the applicant had been asymptomatic prior to the work incident.
The applicant began treating with Dr. Craig Dopf in November 2003, and Dr. Dopf ordered another thoracic MRI on November 25, 2003. The radiologist read this as showing "a minor disc osteophyte complex" at T6-7 that slightly indented the thecal sac but did not produce any cord compression. Dr. Dopf recommended a series of epidural injections and recommended against surgery. The applicant was also examined by Dr. Ronald Zerofsky in November 2003, and Dr. Zerofsky concurred with Dr. Dopf's opinions. The applicant received the epidural injections but they did not relieve his symptoms.
The applicant was seen by Dr. Timothy Moore on March 9, 2004. Dr. Moore and his orthopedic resident, Dr. Wade Jensen, opined that the MRI showed a mild disc bulge at T6-7, probably not pressing on the nerve roots. Drs. Moore and Jensen diagnosed "a little bit of Scheuermann's kyphosis,"(1) but opined that the applicant would not benefit from surgery.
The applicant next treated with Dr. Kenneth Yuska, whom he saw on March 19, 2004. Dr. Yuska reviewed the MRI and opined that there was a small disc protrusion at T6-7, but that the conservative treatment the applicant had received was appropriate, and that the long-term approach to the problem should be exercise without surgery.
On July 28, 2004, the applicant began treating with Dr. Paul Anderson, who diagnosed a T6-7 disc bulge and mild Scheuermann's disease. On September 13, 2004, Dr. Anderson performed a discectomy and fusion at T6-7, which did not have a good result in relieving the applicant's symptoms.
At respondents' request, Dr. Yuska again examined the applicant on December 8, 2004. In his report dated December 22, 2004, Dr. Yuska opined that the applicant had sustained a thoracic strain in the work incident, and acknowledged the disc herniation at T6-7, but ambiguously wrote:
Based on the thoracic strain, my diagnosis, and the disc herniation of the T6 disc treated conservatively, a 1-percent permanent partial disability would ordinarily be appropriate
Based on surveillance of the applicant performing construction work on April 15, 2004, Dr. Yuska further opined that a healing plateau had been reached as of that date. He noted that he and several other physicians had not recommended surgery, and opined that no medical treatment was related to the work incident after April 15, 2004.
On March 28, 2005, Dr. Anderson performed a second surgery that consisted of anterior discectomies/fusions at T4-5, T5-6, T6-7, T7-8, and T8-9; as well as posterior fusions without discectomies but with instrumentation at T2-3, T3-4, T9-10, T10-11, T11-12, and T12-L1. The five anterior discectomies/fusions each qualify for the minimum 10 percent permanent partial disability provided for in Wis. Admin. Code ch. DWD 80.32(11). The six posterior fusions without discectomies each qualify for the minimum 5 percent permanent partial disability provided for in the same administrative code section. The anterior discectomy/fusion performed at T6-7 on March 28, 2005, was a separate surgical procedure from the original, posterior discectomy/fusion performed at that vertebral level on September 13, 2004. An additional 10 percent minimum permanent partial disability would be due for the September 2004 surgery. Pursuant to the administrative code, the aggregate, minimum permanent partial disability due for the procedures performed in the surgeries of September 13, 2004, and of March 28, 2005, would be 90 percent. Dr. Dopf and Dr. Anderson both opined that the September 2004 surgery was causally related to the work incident. Dr. Dopf deferred to Dr. Anderson regarding causation for the March 2005 surgery, and Dr. Anderson opined that it also was causally related to the work incident.
Respondents asked Dr. Yuska to again review the applicant's medical records, and in a report dated July 13, 2005, Dr. Yuska repeated his opinion that the first surgery had not been necessary. He further opined that the second surgery "was specifically designed to correct a condition called Scheuermann's disease." Dr. Yuska opined that he was "hesitant to state" that the second surgery was not required to treat the preexisting Scheuermann's disease, but that no surgical treatment was required as a result of the work incident.
The commission concurs with the administrative law judge that the credible medical evidence supports the finding that both the September 2004 and the March 2005 surgeries were causally related to the work injury of July 24, 2003. Dr. Anderson's, Dr. Dopf's, and Dr. Patel's opinions all credibly support the finding that the applicant's previously asymptomatic thoracic spine condition was precipitated, aggravated, and accelerated beyond normal progression by the work incident. While Dr. Yuska and most of the other physicians counseled against the medical wisdom of performing any surgery on the applicant's back, Dr. Anderson prevailed in that medical controversy, and the applicant in good faith acceded to these invasive procedures. Accordingly, even if the surgeries are deemed to have been unnecessary medical treatment, pursuant to Wis. Stat. ? 102.42(1m),(2) they are compensable. Pursuant to the administrative code, the minimum permanent partial disability attributable to these surgeries is 90 percent.(3)
Respondents argue that the case is analogous to City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 N.W.2d 882 (1982). They argue that Dr. Yuska's opinion that there was no work-related aggravation/acceleration of the preexisting Scheuermann's disease establishes a valid dispute over whether or not either surgery was related to the work incident. In other words, respondents are arguing that the symptoms the applicant experienced after April 15, 2004, and the surgeries done in response to those symptoms, were solely attributable to the preexisting Scheuermann's disease. They appear to interpret Dr. Yuska's opinion to be that any permanent thoracic back condition the applicant may have, including the T6-7 disc herniation, is causally unrelated to the work incident of July 24, 2003.
Accepting their interpretation of Dr. Yuska's opinion, respondents are correct that there is a valid dispute over whether or not the work incident was causative of the applicant's surgical treatment; or in other words, whether or not the work incident caused a disc herniation and/or a permanent aggravation of the applicant's preexisting condition. However, the commission finds that even assuming the respondents have accurately characterized Dr. Yuska's opinion, that opinion is incredible. The applicant was asymptomatic prior to the work incident, and even Dr. Patel, whose opinion was secured by the respondents, credibly opined that there had been a permanent aggravation of the applicant's preexisting thoracic spine disease. There was also the objective MRI evidence of a T6-7 disc protrusion, which Dr. Anderson credibly opined was causally related to the work incident. Dr. Anderson also credibly opined that the surgeries were causally related to the work injury.
On October 4, 2005, Dr. Anderson opined that the applicant was doing well and that he would see the applicant again in six months. Also on that date, Dr. Anderson and his colleague, Dr. Andrew J. Okas, together assessed permanent physical restrictions. Accordingly, the applicant's healing plateau date is found to have been October 4, 2005. It is unclear from the record how much temporary disability the applicant received up to October 4, 2005, but he is entitled to temporary disability for any period of partial or total unemployment attributable to his work injury that he sustained between the dates of July 24, 2003 and October 4, 2005. This order will be left interlocutory so that this issue may be resolved between the parties. If the parties cannot agree on the exact amount due for temporary disability for this period, opportunity for additional hearing on that issue will be granted.
As noted by the administrative law judge, the applicant's claim for additional temporary total disability between the dates of January 24, 2006 and April 24, 2006, was not supported by credible wage records outlining the employment he performed during this period. Therefore, that claim is denied.
Dr. Anderson's light-duty restrictions are accepted as credible. The applicant's vocational expert assessed the applicant's loss of earning capacity at between 30 and 40 percent, somewhat higher than the assessment given by respondents' vocational expert. The mandatory permanent functional disability in this case far exceeds the highest loss of earning capacity assessment, rendering the loss of earning capacity assessments nondeterminative. The applicant is entitled to 90 percent permanent partial disability pursuant to Wis. Admin. Code ch. DWD 80.32(11). The commission recognizes that from an equitable standpoint, this extremely large permanent partial disability award may not seem justified. However, the Worker's Compensation Act is statutory, and the statute in this instance is implemented through the administrative code. The commission must follow the law regardless of its equitable instincts.
A 90-percent permanent partial disability award results in 900 weeks of compensation at the applicable rate of $222 per week, for a total of $199,800. This compensation began to accrue as of the healing date of October 4, 2005. The record is also unclear as to how much permanent partial disability respondents previously paid to the applicant. In addition, the commission's file contains a copy of a department order approving a limited compromise agreement entered into by the parties on February 10, 2006. However, no copy of the limited compromise agreement itself is provided, nor is there any discussion of it in the record or in the briefs submitted to the commission. The commission is left to wonder whether or not any payment that it might order herein would be inconsistent with matters previously resolved in the limited compromise.
Accordingly, the commission will remand this matter to the department for final calculation of the compensation due the applicant and his attorney in accordance with the above commission findings.
Reasonably required medical expenses shall be paid as set forth below in the commission's Interlocutory Order. The applicant may require additional medical treatment and/or sustain additional disability as a result of his work injury. Accordingly, this order will be interlocutory.
NOW, THEREFORE, this
The matter is remanded to the department for calculation of the temporary disability and permanent partial disability due the applicant, less attorney fees and costs, in accordance with the above commission findings.
Jurisdiction is reserved for such further findings and orders as may be necessary.
Dated and mailed September 9, 2008
houlech . wpr : 185 : 8 ND § 5.18
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission consulted with the administrative law judge and learned that it had no disagreement with his credibility impressions of the hearing witnesses. The administrative law judge acknowledged that in accordance with his findings regarding causation, the applicant was due the minimum permanent partial disability in accordance with Wis. Admin. Code ch. DWD 80.32(11).
cc:
Attorney Charles M. Soule
Attorney David Styer
Appealed to Circuit Court. Affirmed on January 13, 2009. Appealed to the Court of Appeals..
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