RUTH KLUG, Applicant
QUIZNOS SUBS, Employer
CONTINENTAL CASUALTY CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 21, 2007. Quiznos Subs and Continental Casualty Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained a compensable work injury on May 18, 2005, and if so, what are the nature and extent of disability and liability for 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 makes the following:
On May 18, 2005, the applicant was wiping a counter at Quiznos and reaching to her left to move a pan when her assistant manager asked her a question. She turned her head to the right to respond to the manager, but as she did so she felt a strong, stabbing pain in the right side of her neck. She was unable to continue working and went home. On May 19, 2005, she went to her chiropractor, Dr. Michael Drout, and her head was by then tilted to the right. Dr. Drout administered chiropractic treatment.
On June 14, 2005, the applicant began treating with Dr. Thomas Lass, a pain management specialist. Dr. Lass took a history of the work incident and the onset of right neck pain "that she had not had in the past." Dr. Lass noted severe muscle spasm and distortion of her neck to the right. He diagnosed spastic torticollis and prescribed medications together with Botox injections for the applicant's neck.
On July 12, 2005, the applicant saw Dr. John R. McGuire and his resident, Dr. Jennifer Kennedy. They took a history of the work incident and diagnosed "cervical dystonia and right laterocollis," and indicated the applicant would need 200 to 300 units of Botox for treatment. On July 20, 2005, Dr. McGuire assessed 21% whole body impairment based on AMA guidelines. On August 20, 2005, Dr. McGuire wrote a letter indicating the applicant was in good health until developing cervical torticollis after a work-related injury on May 15, 2005.
On June 17, 2007, Dr. Drout wrote a letter in which he stated that the applicant's torticollis:
". . . is clearly and directly related to her work injury of 5-18-05. She had a very well defined injury while on the job which was not present prior."
On July 2, 2007, Dr. Drout wrote:
"Mrs. Klug had been seen as a patient at my clinic prior to the work related injury. She was seen primarily for lower back issues with the occasional subjective complaints of mild neck pain as well. These episodes were fully resolved and were not related to her work injury. Her diagnosis following the incident at work was much more complicated, involving the Torticollis and Dystonia of her cervical spine. Her symptoms were far more severe which required the referrals for more extensive evaluation and treatment. Prior to the event of 5-18-2005 she did not have any notable or similar complaints pertaining to her cervical and upper thoracic region, including the lateral flexion deformity which was then obviously evidenced. It is my professional opinion that any prior complaints in these areas are not related to the work injury."
On July 20, 2007, Dr. Drout wrote:
"Mrs. Klug's current condition is clearly and directly related to her work injury on 5-18-2005. She had a very well defined injury while on the job which was not present prior. I had been treating her before this injury, but primarily for low back pain. She had no Torticollis; her sporadic cervical complaints were different in nature and far less severe."
At respondents' request, Dr. Neal Pollack, a neurologist, examined the applicant and submitted a report dated August 19, 2005. Dr. Pollack diagnosed a cervical strain occurring in the work incident of May 18, 2005, that should have resolved within 6 to 8 weeks. However, Dr. Pollack further opined that the applicant's neck symptoms are not related to an organic illness and are not the result of malingering, but that stress is causing a conversion reaction. Dr. Pollack opined that the conversion reaction manifests itself in the cervical dystonia. He recommended hypnotherapy and neck exercises, and opined that additional chiropractic treatment and Botox treatments will not address the actual cause of the applicant's problem, which he believes is psychological.
On June 14, 2006, Dr. Francisco Sanchez, a neurosurgeon, submitted a report at respondents' request. He had examined the applicant on May 23, 2006. Dr. Sanchez diagnosed idiopathic spasmodic torticollis. He opined that the work incident was not causative, and noted that in the vast majority of adults, spasmodic torticollis occurs without any apparent precipitating cause. Dr. Sanchez opined that the onset of symptoms was merely coincidental to the work incident. He did not assess any permanency because he did not believe there had been a work injury. He did agree with the need for Botox treatments, but again, unrelated to any work causation.
The applicant had been seeing Dr. Drout for some time prior to May 18, 2005, for cervical, thoracic, and lumbar spine symptoms. Dr. Drout ordered an x-ray of the applicant's entire spine on October 1, 2004, and among the findings were "partial straightening and minor scoliosis of the cervical spine." The applicant saw Dr. Drout on May 17, 2005, with neck and back symptoms including the complaint: "Hurts to move head." She had treated with Dr. Drout since October 1, 2004, for neck and back symptoms, including recurring headaches. She saw Dr. Drout on May 18, 2005, sometime prior to going to work at Quiznos, and complained of headache. At that time he gave chiropractic treatment to her cervical, thoracic, and lumbar spine.
The commission consulted with the administrative law judge, who had no credibility or demeanor impressions of the applicant specific to the hearing held on August 9, 2007. The administrative law judge reiterated the conclusions he made in his order dated December 21, 2007, which were primarily based on the opinion of Dr. Sanchez. The commission carefully considered the opinion of Dr. Sanchez, together with the other medical and chiropractic opinions of record. All the practitioners except Dr. Pollack diagnosed cervical torticollis. Dr. Pollack diagnosed a conversion reaction. He failed to specify whether or not he believed the applicant's "stress related issues" causing the alleged conversion reaction included the work incident of May 18, 2005, which Dr. Pollack believed resulted in an acute cervical strain.
It is clear that the applicant did have a preexisting cervical scoliosis with neck symptoms that included chiropractic treatment continuing through the date of injury. However, Dr. Drout credibly explained that the applicant did not have a preexisting torticollis, and that the applicant's neck symptoms were far more severe and extensive after the work incident of May 18, 2005. This opinion is supported by the treatment records, and by the applicant's torticollis itself. There is no allegation of malingering, and in fact Dr. Pollack specifically excluded that as a diagnosis. The applicant did not have torticollis prior to the work incident, but did develop it immediately afterwards. While the incident itself involved only minor physical strain, Dr. Drout's opinion leads to the inference that it amounted to sufficient strain on the applicant's scoliotic cervical spine to have caused torticollis.(1)
In June and July of 2007, Dr. Drout indicated that the applicant remained disabled from her employment with the employer due to the effects of the work injury, that she continued to require Botox injections in conjunction with physical therapy and chiropractic treatment, and that further progress and improvement might be attained with continued treatment. He noted that without further medical intervention the applicant's maximum medical improvement date would likely be at the conclusion of her physical therapy treatment. The applicant's continued treatment was uncertain due to respondents' denial of liability. Based on this record, it is found that the applicant was temporarily totally disabled from June 13, 2005, through at least July 2, 2007, the latter date being Dr. Drout's most recent update concerning disability. The matter will be left interlocutory with respect to the issues of temporary disability from July 3, 2007, forward. It will also be left interlocutory with respect to the issue of permanent disability including loss of earning capacity.
Reasonably required medical expenses are due to Medical College Physicians in the amount of $5,052.00; to Chiropractic Associates, S.C. (Dr. Drought) in the amount of $1,881.53; to Advanced Healthcare, S.C. in the amount of $193.71; to Community Memorial Hospital of Menomonee Falls in the amount of $5,194.36; to Advanced Pain Management of Greenfield in the amount of $294.00; and to the applicant as reimbursement for out-of-pocket expense the sum of $245.00. The summary of medical expenses indicates that substantial expense was paid by a third party carrier, that may be due reimbursement pursuant to Wis. Stat. § 102.30(7). The summary does not clearly differentiate between medical expense paid and expense that was written off by the providers, with the latter not being reimbursable. Accordingly, the remand shall address this reimbursement issue.
Jurisdiction will also be reserved for additional chiropractic and/or medical care.
NOW, THEREFORE, This
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date respondents shall pay to the applicant compensation for temporary total disability in the amount of Eleven thousand eight hundred forty-three dollars and thirty-four cents ($11,843.34); to applicant's attorney Robert T. Ward, fees in the amount of Two thousand nine hundred sixty dollars and eighty-three cents ($2,960.83); to Medical College Physicians the sum of Five thousand fifty-two dollars ($5,052.00); to Chiropractic Associates, S.C. (Dr. Drout), the sum of One thousand eight hundred eighty-one dollars and fifty-three cents ($1,881.53); to Advanced Healthcare, S.C., the sum of One hundred ninety-three dollars and seventy-one cents ($193.71); to Community Memorial Hospital of Greenfield the sum of Five thousand one hundred ninety-four dollars and thirty-six cents ($5,194.36); to Advanced Pain Management of Greenfield the sum of Two hundred ninety-four dollars ($294.00); and to the applicant as reimbursement for out-of-pocket expense the sum of Two hundred forty-five dollars ($245.00).
The matter is remanded to the department to address the issues of additional temporary disability and/or permanent disability, as well as reimbursement of third party medical expense. The parties should first attempt to resolve these issues among themselves, however, if agreement cannot be reached then there shall be opportunity for additional hearing.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed Spetember 9, 2008
klugru . wrr : 185 : 9 ND 3.31
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Robert T. Ward
Attorney Michael D. Stotler
Appealed to Circuit Court.
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