STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RONALD J COSTABILE, Applicant

TIMBERLINE CEDAR WERKS INC, Employer

PEKIN INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-041706


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.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed November 6, 2008
costaro . wsd : 185 : 9 ND § 5.6

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

In their petition for commission review, respondents dispute the administrative law judge's findings that the applicant is entitled to temporary disability (alternating periods of temporary partial and temporary total disability) from January 1, 2007 through the date of hearing on March 3, 2008. Respondents assert that there is no medical evidence to support these awards.

However, Dr. Seipel assessed significant physical restrictions on October 12, 2005 (Applicant's Exh. F). Dr. Noonan did the same on November 3, 2005 (Applicant's Exh. C). Neither physician lifted these restrictions, and the applicant's neck and shoulder symptoms persisted. Respondents point to the fact that the applicant did not receive regular medical treatment during the period in question, but it is inferred from the applicant's testimony and comments found in the medical records that the major reason for the suspended medical treatment was the applicant's lack of medical insurance coverage. Respondents refused to pay for treatment expense during this period because they disputed the applicant's claim. In his WKC-16-B's completed in September and December of 2006, Dr. Didinsky indicated respectively that the applicant's prognosis was "Unlikely to change without surgical intervention," and "Good with surgical intervention." Thus, Dr. Didinsky believed surgical intervention was necessary for the applicant to reach full healing, and the commission finds that opinion credible. Respondents' resistance to liability for the surgery precluded it from being performed.

Respondents point to the fact that in his WKC-16-B dated December 29, 2006, Dr. Didinsky assessed 5 percent permanent partial disability, and argue that this assessment in itself defines a healing plateau date. While Dr. Didinsky's assessment of permanent partial disability on this date might be considered to be inconsistent with the applicant's ongoing healing period, the commission infers that Dr. Didinsky was merely looking ahead to the minimum percentage of permanency that would be due for a cervical disc surgery. Dr. Didinsky's permanency assessment was premature, but when viewed together with his clinic notes and other opinions, it is not reasonably understood to mean that he believed the applicant had reached full healing.

Respondents also point to Dr. Didinsky's statements in his WKC-16-B's to the effect that he did not take the applicant off work.(1) However, in his clinical consultation report dated June 22, 2006, Dr. Didinsky noted the applicant's ongoing care from Dr. Seipel and Dr. Noonan, diagnosed a cervical disc herniation and right shoulder impingement with probable partial insertional tear, noted the applicant's significantly decreased range of cervical motion, injected the applicant's right shoulder, and indicated that he contemplated further treatment including additional injections. As previously noted, Dr. Didinsky subsequently recommended cervical disc surgery. The clear inference is that Dr. Didinsky deferred to Dr. Seipel and Dr. Noonan with regard to the actual statement of work restrictions, and for that reason never believed it was necessary for him to specifically address that issue. Again, Dr. Didinsky's notes and opinions make it very clear that he believed the applicant had work-related physical disability requiring ongoing treatment, including surgery.

Finally, respondents argue that the fact that the applicant worked for various employers during some of the period in question, and at times performed work that exceeded his physical restrictions, means that he was "capable" of unrestricted work and should not receive any temporary disability. The fact that the applicant sought what work he could find, and perhaps unwisely risked further injury by exceeding his physical restrictions, leads to the inference that he has a strong work ethic and that he needed income. It does not lead to the inference that his physical restrictions were medically unnecessary or suspended. The employer does not dispute that it was unable to provide work that would have accommodated his restrictions. The applicant did sustain actual wage loss during the period in question, due to the effects of his cervical and right shoulder work injuries.

 

cc:
Attorney John P. Higgins
Attorney Thomas M. Rohe



Appealed to Circuit Court.  Affirmed on July 28, 2009.  Appealed to Court of Appeals. Affirmed June 16, 2010.

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Footnotes:

(1)( Back ) In Dr. Didinsky's September 2006 WKC-16-B, Box 8 contains the statement: "Not placed on disability through Dr. Didinsky." In Dr. Didinsky's December 2006 WKC-16-B, Box 9 contains the statement: "Patient was not taken off work by Dr. Didinsky."

 


uploaded 2008/11/12