LINDA DUFEK, Applicant
LUBE DEVICES INC, Employer
VIRGINIA SURETY COMPANY INC, 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 July 9, 2008. Lube Devices, Inc. and Virginia Surety Company, Inc. (respondents) submitted an answer to the petition and briefs were submitted by the parties. At the outset of the hearing respondents appear to have conceded that the applicant sustained an injury in the form of a temporary lumbar sprain arising out of and in the course of her employment with Lube Devices, Inc. on August 1, 2002. However, respondents clearly dispute the nature and extent of disability and liability for medical expense claimed by the applicant.
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 reverses her Findings and Order. The commission makes the following:
The applicant, whose birth date is January 8, 1947, sustained a conceded low back lifting injury with a previous employer on April 24, 1995. She received conservative treatment but her symptoms persisted, and lumbar MRI's revealed a disc herniation at L4-5. On May 6, 1997, Dr. M.E. Ots performed a microdiscectomy at L4-5, removing a disc fragment.
The applicant did well after the surgery but her symptoms did not clear up completely. She went back to work with a 50-lb. lifting restriction on July 2, 1997. She received treatment for her low back that included physical therapy in October and November of 1998. Dr. Ots saw her for increasing low back pain and minor right leg symptoms on June 7, 2000, and prescribed medication. She was rear-ended in a motor vehicle accident in July 2000, but was treated and released. Dr. Ots saw her again on September 20, 2000, for the same low back pain and minor right leg symptoms, and he again prescribed medication. The applicant subsequently spoke over the telephone on several occasions with Dr. Ots' nurse, who relayed Dr. Ots' changes in medication. The nurse noted on December 14, 2000, that the latest medication was working well. The next note is again from Dr. Ots' nurse and is dated September 10, 2001. It indicates that the applicant telephoned with a problem with edema, apparently from the pain medication, and her prescription was changed to Ibuprofen. On June 28, 2002, she was seen by Dr. Joseph DiRaimondo for an unrelated left carpal tunnel problem.
On August 1, 2002, the applicant was lifting a pan of parts from a table on her left to the floor on her right, and when she was twisting and lifting to her right she felt a sharp pain in her low back. She continued working for about 90 minutes until lunch time, but when getting up from lunch she could hardly walk and felt sharp pain in her right leg. She had not felt that kind of pain since before her May 1997 surgery. She did not finish her shift but went home. She was off work for three days and received conservative medical treatment including medication. A lumbar MRI was performed on August 9, 2002, and was read as showing a diffuse annular bulge at L4-5, with focal disc protrusion suggested.
On December 6, 2005, Dr. Ots performed a discectomy and fusion with instrumentation at L4-5. The applicant has had an excellent result from the surgery, and by June 26, 2006, she was performing her full work duties. On March 28, 2006, Dr. Ots wrote a letter in which he opined that the December 2005 surgery was closely related to the work injury of August 1, 2002, and that he believed the injury had aggravated the applicant's preexisting condition beyond normal progression, causing the surgery. In a letter to Dr. DiRaimondo dated November 6, 2002, Dr. Ots had also opined that the work injury aggravated the applicant's preexisting low back condition beyond normal progression.
At respondents' request, Dr. Paul Cederberg reviewed the applicant's medical history and submitted a report dated January 18, 2006. Dr. Cederberg diagnosed degenerative disc disease at L4-5, with history of L4-5 discectomy. He noted that Dr. Ots had performed a repeat MRI and that surgery had been proposed, but indicated that without review of the MRI and updated records from Dr. Ots, he could not give an opinion regarding causation for the proposed surgery.
In an addendum report dated February 17, 2006, Dr. Cederberg indicated he had received updated medical records. He indicated that an MRI had been performed on November 16, 2005, and that it showed secondary post-operative changes at L4-5 without evidence of recurrent disc herniation. Dr. Cederberg opined that there had been no new pathology at L4-5, noted that there had been a gap in low back treatment between July and September of 2003, and opined that the December 2005 surgery was due to age-related degeneration at L4-5, not the August 2002 work injury.
Dr. Ots indicated in a note dated September 10, 2003, that the applicant continued to have low back and right leg pain, and that he felt she was a candidate for L4-5 fusion surgery. He also indicated the applicant had been evaluated for that surgery earlier in the year, but had deferred. The applicant credibly testified that she waited so long after the work injury to have surgery because she knew surgery was painful, and because she is allergic to many drugs. Notably, she waited over two years after her April 1995 work injury to have her first surgery at L4-5. She also credibly testified that during the over-three-year period between August 2002 and December 2005, her back was worse on some days than others, but by the time of the surgery her symptoms were becoming severe.
The applicant gave credible testimony regarding the onset of new and persistent symptomatology beginning with the work injury of August 1, 2002. When that testimony was considered in conjunction with the credible medical opinion of Dr. Ots, who actually viewed the L4-5 disc and disc space in the 1997 and 2005 surgeries, the commission found credible Dr. Ots' opinion that the August 2002 work incident aggravated the applicant's preexisting condition beyond normal progression and caused the need for the December 2005 surgery.(1)
Dr. Ots credibly opined that the applicant was temporarily totally disabled from December 5, 2005 through February 12, 2006, a period of exactly 10 weeks, which at the applicable rate of $257.33(2) equals $2,573.30 in compensation. Travelers Indemnity Company paid the applicant a total of $996.88 for temporary total disability attributable to a carpal tunnel wrist injury during this period of temporary total disability. Travelers made these payments between December 5, 2005 and January 4, 2006, and therefore they overlapped the period of temporary total disability attributable to the low back injury, and shall offset the temporary total disability otherwise due for the low back injury for this period ending January 4, 2006. This leaves the net amount of $1,576.42 due the applicant for temporary total disability.
Dr. Ots noted that the applicant returned to part-time employment on February 13, 2006, and the applicant was therefore temporarily partially disabled from February 13, 2006, and continuing through the date of Dr. Ots' opinion given on March 28, 2006. The applicant claimed this period of temporary partial disability continued until June 26, 2006, and submitted payroll records showing partial employment during this period. However, it is unclear from these records exactly how much money the applicant earned in the week beginning February 13, 2006, and in the week in which Tuesday, March 28, 2006, fell. Temporary partial disability is calculated on a week-by-week basis. Furthermore, it is unclear from the record whether or not respondents conceded temporary partial disability from March 28, 2006, through June 26, 2006, and no party to this proceeding has submitted a current medical opinion regarding this issue. Accordingly, the commission will leave interlocutory the issue of temporary partial disability for resolution of these questions, with the hope that the parties will be able to reconcile them themselves. If they cannot, opportunity for further hearing regarding them shall be made available.
The December 2005 discectomy/fusion surgery results in the payment of 10% permanent partial disability, pursuant to the minimum rating of Wis. Admin. Code ch. DWD 80.34(11). This amounts to 100 weeks of accrued permanent partial disability at the applicable rate of $212 per week, for a total of $21,200.
Medical treatment expenses as set forth in Applicant's Exhibit D were conceded, with the exception that some unspecified portion of these expenses may be attributable to the applicant's carpal tunnel release surgery, and that such expenses would not be the responsibility of the respondents. Given the fact that the record contains no specification of which expenses are or are not attributable to the carpal tunnel syndrome, the matter shall also be left interlocutory for the parties to resolve this issue, with the understanding that respondents are liable for all those medical expenses attributable to treatment for the low back injury. Again, if a dispute arises regarding which of these expenses are attributable to the low back injury, opportunity for hearing on that specific issue shall be available.
The applicant's attorney is entitled to a 20 percent fee to be assessed against the net award for temporary total disability, against the award for temporary partial disability, and against the award for permanent partial disability. Costs in the amount of $53.53 shall also be subtracted from the net award for temporary total disability. This amounts to fees and costs being subtracted from the net temporary total disability award in the total amount of $368.81 ($315.28 in fees and $53.53 in costs); and fees in the amount of $4,240 being subtracted from the award for permanent partial disability.
As of his last medical opinion given on March 28, 2006, Dr. Ots indicated he would be seeing the applicant again to reassess her low back condition, and therefore jurisdiction will be reserved.
Now, therefore, this
The Findings and Order of the administrative law judge are reversed. Within thirty days from this date, respondents shall pay to the applicant compensation for temporary total and permanent partial disability, as detailed above, in the total amount of Eighteen thousand one hundred sixty-seven dollars and sixty-one cents ($18,167.61); and to the applicant's attorney, Michael H. Gillick, fees in the amount of Four thousand five hundred fifty-five dollars and twenty-eight cents ($4,555.28), and costs in the amount of Fifty-three dollars and fifty-three cents ($53.53).
Jurisdiction is reserved for final accounting of the net amounts due the applicant and her attorney for the award for temporary partial disability; and for the amounts due the medical providers, as well as to the applicant for reimbursement of medical expenses that she paid, in accordance with the above findings.
Jurisdiction is additionally reserved for such further findings and orders as may be warranted.
Dated and mailed January 29, 2009
dufekli . wrr : 185 : 6 ND § 3.37
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
When the commission consulted with the administrative law judge she indicated that rather than any significant credibility/demeanor impressions formed from the hearing, her decision was based primarily on the medical records showing a preexisting degenerative condition at L4-5, as well as the long delay between the August 2002 work injury and the December 2005 surgery. The administrative law judge's concerns were also carefully weighed by the commission. However, ultimately the commission concluded that the applicant's testimony was credible; that although there were minor gaps in her treatment after August 2002, the medical evidence reveals an ongoing low back problem that was substantially more severe in nature than it had been prior to August 1, 2002; and that Dr. Ots, who had followed the applicant's L4-5 disc pathology from the May 1997 surgery forward, gave a credible medical opinion regarding the aggravation of that condition beyond normal progression in the work incident of August 1, 2002.
cc:
Attorney Michael Gillick
Attorney Douglas Feldman
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