MICHELE LEBLANC, Applicant
LAIDLAW TRANSIT INC, Employer
AMERICAN HOME ASSURANCE CO, 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 November 6, 2008
leblanc . wsd : 101 : 1 ND ? 5.3
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Facts.
The applicant was born in 1966, and began working in about 1990 transporting disabled children to school. The job involved pulling the wheelchairs to a lift, then attaching "tie downs" to hold the chairs in place. She was injured at work on November 18, 2005 when she tripped and fell backward while trying to move a child on a hydraulic lift that was not functioning properly.
The applicant landed on her tailbone, and felt immediate sharp pain from her tailbone to her neck. The next day, her tailbone still hurt and she had headaches. The applicant treated with Kenneth Saydel, D.O., who referred her to James R. Lloyd, M.D. Dr. Lloyd saw the applicant on January 13, 2006, and noted continued coccygeal discomfort and pelvic pain. After an MRI showed no evidence of fracture or soft tissue injury, Dr. Lloyd recommended discography to determine if her problems were discogenic. On March 3, 2006, Dr. Lloyd reported that the discography:
Revealed a markedly positive study at the L4-5 region with internal disc disruption. The L3-4 disk appeared to be completely normal. The architecture of the L5-S1 disc was normal but [the applicant] did develop some back pain with high injection pressures there.
Dr. Lloyd wanted the applicant to restart physical therapy. However, the respondent stopped paying for physical therapy, following an examination on behalf of the employer and its insurer (collectively, the respondent) by Stephen Barron, M.D., in April 2006.
When the applicant returned to Dr. Lloyd in May 2006, she told the doctor her back and leg pain returned after stopping therapy. When the applicant next saw Dr. Lloyd in June 2006, he reported the insurer was still refusing to pay for the applicant's physical therapy, and her symptoms were worsening. His neurological evaluation was unchanged. Dr. Lloyd noted continuing denial of the physical therapy treatment by the insurer into September 2006. In November 2007, Dr. Lloyd ordered nerve testing, specifically, an EMG/NCV. This showed no specific abnormality below the knees. Her physical examination remained unchanged.
2. Expert medical opinion.
Dr. Lloyd's June 19, 2006 practitioner's report diagnoses low back and leg pain, L4-5 and L5-S1 disc disease directly caused by the November 18, 2005 injury when the applicant fell backwards over a ramp at work. The doctor wrote that it was "undetermined" when the applicant would be able to return to work with temporary or permanent restrictions, or what her permanent partial disability would be, if any. The doctor's prognosis was "guarded, more physical therapy needed."
Dr. Lloyd wrote a second report on May 14, 2007, which again diagnoses low back and leg pain and L4-5, L5-S1 disc disease caused by the work injury. Again, he says that the date the applicant would be able to return to work with restrictions was undetermined. On this occasion, however, Dr. Lloyd rated permanent partial disability at 10 percent compared to permanent total disability for a limited range of motion, pain, and lack of endurance.
Dr. Lloyd attached a letter to his May 2007 report, stating that the January 2006 MRI showed disc herniation at L4-5 and lumbar discography was markedly positive. He noted the applicant had started physical therapy, and that the applicant had improved, but then the worker's compensation insurer refused to continue paying after which her discomfort returned to its full extent. He added that the applicant was being treated with medications including Neurontin, Cymbalt, and Lidoderm patches, with only marginal benefits. He added that he believed the applicant's continuing complaints were due to disc disease that was precipitated, accelerated and aggravated beyond normal progression by her work injury.
The first report of Dr. Barron, the examiner retained by the respondent, is dated April 11, 2006. Following an examination on that date, Dr. Barron opined that the applicant sustained a lumbar sprain and coccygeal contusion at the time of her work incident of November 18, 2005. He added:
At the present time she has no objective findings on her examination. She has inconsistent examination findings with her limited range of motion of lumbar flexion in the standing position, but she is able to sit with her back at 90 degrees to her legs in the sitting position. She also has evidence of pain and symptom magnification because she has no evidence of disc herniation or nerve root compression on her MRI. There is no fracture. Because of her lack of objective findings, in my opinion, no further treatment is necessary.
Dr. Lloyd added she could return to work with no limitations or restrictions. As noted above, this report resulted in the denial of the applicant's continuing temporary disability.
Dr. Barron adhered to that opinion when he reexamined the applicant a year later in April 2007. He added that he felt the applicant's treatment from November 18, 2005 to April 1, 2006 was reasonable and necessary to cure and relieve the effects of the work injury, but treatment thereafter was simply for the pre-existing degenerative disease.
3. Discussion.
The applicant seeks continuing temporary disability compensation, while the respondent contended its liability ended with Dr. Barron's April 11, 2006 end of healing date. A worker generally is entitled to temporary--as contrasted with permanent--disability for current wage loss while in a "healing period." Regarding a "healing period," the supreme court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
The commission previously addressed the situation where a respondent refuses to pay for treatment that would help the applicant recover in Carole Lee v. Famous Fixtures, WC claim no. 96000857 (LIRC, July 2, 1997). In that case, the commission held that an employer may not refuse to pay for treatment for a compensable work injury, and then simply point to a worker's unchanging condition after that refusal as an endpoint of healing. It has similarly been stated in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 461-62 (1977):
In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose.
On the other hand, the supreme court has held that the commission cannot order payment of temporary total disability after a worker's condition has stabilized and he or she is awaiting surgery, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450 (1994). In Larsen Co. and GTC Auto, doctors--including treating doctors--were willing to declare an end of healing and rate permanent disability. The difference between the Larsen Co. and GTC Auto holdings and the situation in Carole Lee thus often turns on whether a doctor credibly opines the applicant has reached a healing plateau and is subject only to permanent disability during the period at issue, despite the refusal to pay for treatment. See: ITW Deltar v. LIRC, 226 Wis. 2d 11, 21 (Ct. App. 1999). See also Aurora Health Care Metro v. LIRC and Bernadette Morgan, case no. 08CV05333 (Wis. Cir. Ct. Milwaukee County, October 16, 2008).
In the case now before the commission, following Dr. Barron's examination in April 2006, the respondent denied payment for the physical therapy ordered by Dr. Lloyd which the applicant was willing to undergo. The question here is whether the applicant has established that as long as she does not have that treatment, she remains in the healing period.
Dr. Barron, of course, says no. The respondent argues that treating doctor Lloyd's reports seem to indicate that that doctor is of two minds. On the one hand, Dr. Lloyd has rated permanent disability, an act which normally indicates a healing plateau has been reached, even if the applicant may incur additional disability in the future. See Larsen, supra. On the other hand, Dr. Lloyd indicated that the applicant has not yet reached the point where permanent restrictions may be set. Setting permanent restrictions is generally viewed as declaring an endpoint of healing, or the point at which "there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence" and "the employee is restored so far as the permanent character of his injuries will permit."
In this case, the medical record establishes that the physical therapy ordered by Dr. Lloyd was beneficial, that her condition improved while she underwent the therapy, and that her condition worsened when the therapy was discontinued. The commission reads Dr. Lloyd's notes and reports, including his comments about the discontinued physical therapy and his refusal to set permanent restrictions as credible evidence that there has not "occurred all of the improvement that is likely to occur as a result of treatment and convalescence" in this case. The commission therefore agrees with the ALJ that the applicant remained in the healing a period through at least the date of hearing(1), and affirms his order.
cc:
Attorney Michael J. Donovan
Attorney Kristin S. Bruess
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]