RONALD MANDEL, Applicant

KUHN KNIGHT INC, Employer

TRAVELERS CASUALTY & SURETY 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, except that it makes the following modifications:

1. Delete the fifth and sixth sentences of the third paragraph of the ALJ's Findings of Fact and Conclusions of Law, and substitute:

"Whether the applicant's disabling symptoms are due entirely to a physical condition caused by the work injury, or in part to a psychological or psychogenic condition caused by the work injury, the symptoms exist and prevent him from returning to work."

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed January 29, 2009
mandelr . wmd : 101 : 1 ND §§  5.39,  9.2

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant was born in 1972. He is a high school graduate, and attended a technical school where he studied dairy farming and diesel mechanics. He operated his father's farm after graduating from high school in 1991. In 1998, the applicant bought his own farm, which he ran with his wife. He milked a herd of 70 cows, and grew cash crops on about 300 acres.

On February 17, 2005, the applicant took a job with the employer. His job for the employer was to build a TMR mixer, a piece of farm equipment shown in exhibit N. Part of the applicant's job was get beneath the mixer on a dolly or "creeper" and tighten down bolts on its metal plate flooring.

On February 22, 2005, the day of injury, the applicant was underneath the mixer on a creeper when it tipped back on its rear tires, so that the rear bumper of the mixer crushed the applicant's head. The top picture in exhibit N shows the part of the mixer that pushed on the applicant's head.

The applicant screamed and yelled for help. In less than 30 seconds, his coworkers got the trailer off his head, and he instinctively got up. He was bleeding from his forehead and areas near his ears. His coworkers got him to lie back down, and summoned an ambulance.

The applicant treated in an emergency room, where it was noted he had never lost consciousness. He was treated for lacerations, bleeding in the inner and headache. A CT scan showed no acute traumatic injury of the brain. The applicant returned to work after about a week.

Since the injury, the applicant has treated with a number of doctors for a variety of symptoms including headache, dizziness, neck and back pain, and disequilibrium. He has stopped working. At issue now is the nature and extent of the applicant's disability from that injury.

The ALJ found that the work injury caused his headaches, dizziness, lightheadedness, neck and back pain, and that those complaints prevent the applicant from working. She concluded the applicant still had not reached an end of healing, and so awarded temporary total disability to the date of hearing.

The employer and its insurer (collectively, the respondent) appeal. The respondent first takes issue with the finding that there was no end of healing. It points out that Dr. Richmond opined, many times, that the applicant had reached an end of healing. It asserts further that the applicant is not totally disabled on a permanent basis, as he has continued to work on the farm.

The respondent argues as well that the applicant really has not tried hard to help himself, that he has stopped taking medicines, and stopped treating with Dr. Seeger. It asserts that his ongoing symptoms and treatment for headaches started well after the work injury, and that his testing really did not show any pathology that can explain his problem. Finally, the respondent argues that the commission should withhold any permanency award until the applicant undergoes vocational retraining.

The commission affirms. It is persuaded that applicant's complaints, including headaches, dizziness, balance problems, and neck and back pain were caused by the work injury. He suffered a serious head injury, and he complained of headache during his emergency room treatment on the day of injury. While he did not seek continuing care for several months following his injury (he started seeing Dr. Cates in August 2007), the applicant testified credibly that that was because he had been told by treating doctors that he should expect headaches but that they would go away. Instead, the headaches continued and worsened.

The commission appreciates the CT scan did not show evidence of an acute brain trauma. In addition, the applicant has been resistant in taking medications which make him ill, and so did not follow with Dr. Seeger as was recommended. But Drs. Cates, Khabbaz, Seeger and Richmond clearly treated him as if he had a genuine injury. The commission does not believe the headaches are invented--Dr. Cates actually appreciated the swelling or inflammation in the area of the temporal artery and gave him prednisone for it. Continuing symptoms after an injury such as that sustained by the applicant are quite credible. The applicant's employment history also seems inconsistent with symptom exaggeration or magnification. In addition, the ALJ, who could observe the applicant as he testified, found that his symptoms did exist.

The commission is also satisfied that the applicant remained in a healing period as of the date of the hearing. While Dr. Richmond did declare an end of healing with regard to vestibular (ear, nose and throat) problems, he recommended continuing treatment for the headaches. In particular, the commission reads Dr. Richmond's February 4, 2008 treatment note to indicate that the doctor does not believe the applicant has reached an end of healing from the work injury.

The commission does note that the applicant continues to perform some chores on his farm. However, the ALJ--who observed the applicant firsthand at the hearing--credited his testimony that he does very light chores not inconsistent with his claim for temporary total disability.

Regarding the respondent's assertion that the commission should require the applicant undertake vocational retraining, the Supreme Court has held that:

"The ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages."

Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278 (1972). In this case, however, it does not appear either of the vocational experts recommends the applicant pursue vocational retraining, at least at this juncture. In any event, it seems reasonable to hold off on retraining until further treatment for the applicant's headache, dizziness, and dsequilibrium symptoms.

For his part, the applicant argues in his brief that the commission should award permanent total disability. However, he did not file a timely petition or cross-petition for commission review of the ALJ's decision. As explained in Larry Schmidt v. Metropolitan Milwaukee Auto Auction, WC Claim No. 1998-012175 (LIRC April 13, 2001), while the commission retains the authority to review all issues when a timely petition has been filed by one of the parties, it generally accords arguments for reversal or substantial modification of an ALJ's decision raised only in responsive briefs less weight than if they had been raised in a timely cross-petition or petition. For the reasons set out above, the commission is satisfied the applicant has not finished healing, and that the ALJ properly declined to reach the issue of permanent total disability in this case.

cc: Attorney Douglas Phebus
Attorney Catherine A. Thomas

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