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

BETTY ARCHIE, Applicant

LAKEVIEW NEUROREHAB CENTER, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-025735


The applicant and the respondents (Lakeview Neurorehab Center and Liberty Mutual Insurance Company) each submitted petitions for commission review alleging error in the administrative law judge's Findings and Interlocutory Oder issued in this matter on June 23, 2008. Briefs were submitted by the parties. At issue are whether or not the applicant sustained a low back injury arising out of her employment with the employer on June 19, 2006, 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 hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:

MODIFIED FINDINGS OF FACT

In the first line of the final paragraph on page 3 of the administrative law judge's decision substitute "July 14, 2006" for "June 14, 2006."

In the first line of the third full paragraph on page 4 of the administrative law judge's decision substitute "July 2, 2007" for "July 2, 2006."

The rest and remainder of the administrative law judge's Findings and Interlocutory Order are affirmed and reiterated as if set forth herein.

Now, therefore, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 27, 2009
archibe . wrr : 185 : 6 ND §§ 5.29, 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Confusion arose in this matter with regard to whether or not the issue of an injury arising out of employment was conceded at the administrative hearing held on April 21, 2008. That issue was not conceded in respondents' answer filed on February 28, 2007. In discussion prior to testimony, the administrative law judge asked whether the ". . . matter is set for hearing today as to the nature and extent of disability and liability for medical expenses." Counsel for the applicant and for the respondents indicated agreement with this framing of the hearing issues. During testimony, when respondents' counsel began questioning the applicant concerning what she did or did not tell medical personnel when treating at All Saints Medical Center on June 20, 2006, objection was made by applicant's counsel on the basis that: "There is no dispute about the injury." The administrative law judge indicated at that point that he thought an injury had been conceded, and the remaining issue was liability for the applicant's surgery. Respondents' counsel replied: "It is the core issue. But I think it's also important to know how everything came about and when things were reported . . ."

In post hearing correspondence to the administrative law judge, respondents' counsel reiterated arguments concerning timely reporting of the injury, and alleged inconsistent histories had been given by the applicant, in arguing for acceptance of Dr. Ellen O'Brien's opinion. Dr. O'Brien examined the applicant on October 28, 2006. She opined that while the applicant may have experienced "a little nagging pain" at work on June 19, 2006, her L2-3 disc pathology was preexisting, and the severe symptoms that began after she had gone home that evening were simply a manifestation of a preexisting degenerative law back condition unrelated to the applicant's work. In supplemental reports dated July 2, 2007, November 5, 2007, and November 20, 2007, Dr. O'Brien reiterated her opinion that the applicant's low back symptoms were unrelated to her work with the employer, and added that the July 2007 surgery was also not work-related. The administrative law judge understood respondents' post hearing correspondence to be an indication that the "arising out of" aspect of the applicant's claim remained contested. Indeed, in respondents' counsel's answer to the applicant's petition for commission review, counsel asserted that the administrative law judge properly addressed the "arising out of" issue in his decision.

Respondents have confused the "arising out of" issue, which is a legal issue relevant to the question of whether or not there was a work injury, with the issues of nature and extent of disability and liability for medical expense that arise after a work injury has been legally determined. Dr. O'Brien very clearly did not believe that there had been any work injury, or in other words, that any injury to the applicant's low back arose out of her employment with the employer. Dr. O'Brien opined that the applicant's low back symptoms, as well as her surgery, were attributable to a preexisting degenerative condition that spontaneously manifested itself after the applicant came home from work on June 19, 2006. In arguing for acceptance of Dr. O'Brien's opinion, respondents have always argued that no injury to the applicant's low back arose out of her employment with the employer. There was much confusion concerning respondents' legal argument in this case, particularly since respondents' counsel agreed in the preliminary hearing discussion with the administrative law judge's framing of the issues as "nature and extent of disability and liability for medical expenses. However, whether or not the applicant sustained an injury arising out of her employment with the employer has remained at issue throughout this proceeding. Accordingly, the administrative law judge properly addressed that issue in his decision.

With regard to the histories taken by the nurse and the physician at All Saints Medical Center on June 20, 2006, the commission's experience has taught it that busy health professionals, particularly in an urgent care or emergency room setting, frequently fail to take accurate histories of work incidents. Their primary concern is diagnosis and immediate treatment. Each case much be carefully reviewed in its entirety to accurately weigh the significance of a history that is inconsistent with an applicant's description of the work incident. In this case, the nurse wrote a history of the applicant's symptoms as: "Started yesterday no trauma." The physician wrote a history of ". . . lower back pain which she has had since 06/20/2006. There is no specific injury." These two medical professionals, who spoke to the applicant at virtually the same time, did not agree in their notes as to the date of symptom onset. Nor do we know exactly what the applicant told these individuals. When she was asked at the hearing what she did tell them, an argument ensued between counsel regarding the relevance of the question. Ultimately, respondents' counsel simply made an offer of proof of the treatment notes, without any testimony from the applicant regarding what she had told the nurse or the physician. The commission infers from the applicant's other hearing testimony that at that early time in her symptom onset, she most likely was not certain about the connection between the work incident and her symptoms, and may not have described the incident to the nurse and physician. Regardless, subsequent events and the credible medical opinions of Dr. Lippman and Dr. Byron demonstrate that the work incident precipitated, aggravated, and accelerated the applicant's preexisting degenerative disc condition beyond normal progression.

Respondents additionally argued that the administrative law judge's finding of permanent and total disability is not supported by credible and substantial evidence, and is premature. However, Dr. Lippman and Dr. Byron assessed credible permanent physical restrictions. The applicant's vocational expert, John D. Birder, credibly opined that these restrictions, when considered with the other relevant factors, lead to the conclusion that the applicant is permanently and totally disabled. The applicant presented a credible prima facie case for permanent total disability, which respondents' vocational expert, Michael Campbell, failed to rebut.

Respondents argue that the finding of permanent total disability is premature because as of the hearing date, it had not been definitively determined whether the applicant's L2-3 fusion was solid. However, Dr. Lippman and Dr. Byron assessed permanent restrictions based on the applicant's low back condition as of the date of hearing. These restrictions are credible. Awards for permanent total disability are always made on an interlocutory basis to address the contingency of changed circumstances. Should it be determined that the applicant's fusion is not solid, additional surgery may be required. Were there to be additional surgery, or other change resulting in improvement of the applicant's permanent physical restrictions, respondents would be entitled to ask the department to reassess the permanent total disability finding. However, as of the date of hearing, Dr. Lippman's and Dr. Byron's restrictions are permanent and credible.

cc: Attorney Mark McGillis
Attorney Peter Topczewski


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