DIANA BARTLETT, Applicant
MCDONALDS RESTAURANTS
OF WISCONSIN, Employer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
McDonalds Restaurants of Wisconsin and Zurich American Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued is this matter on August 5, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. At the issue are the nature and extent of disablity and liability for medical expense attributable to the conceded work injury of May 22, 2005.
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:
The Commission makes the following:
The applicant, whose birth date is December 31, 1950, was working as a salad maker at a McDonald's on May 22, 2005, when she slipped on ice that had formed on the floor of the freezer. She was carrying a 35-lb. box of chicken filets when she slipped, and to keep from falling she twisted her body and jammed the box against the wall. She immediately felt a sharp pain in her back and reported the incident to her supervisor. She finished her shift but went to Aurora Healthcare Industrial Clinic the next day, May 23, 2005, where Dr. Robert Perchick referred to her Aurora Healthcare Occupational Health Services. There she treated with Dr. Sergio Casaclang, and Physician's Assistant Daniel Sturm.
Initially, a lumbar strain was diagnosed, and after conservative treatment P.A. Sturm released the applicant without restriction on July 7, 2005. He indicated in his clinic note of that date that her low back pain was "much better" and that her "back is stable." At that time the applicant was also complaining about right knee pain, which has not been linked to her work.
The applicant did not return to work after P.A. Sturm's release until August 1, 2005, when she indicated she was experiencing renewed back pain and had been in bed for five days with back spasms. P.A. Sturm ordered a lumbar MRI on August 4, 2005. It showed a paracentral disc herniation at L5-S1 with fragmentation, and migration of the fragment to the left exiting nerve roots. Also seen was a mild central disc protrusion at L4-5, with mild encroachment on the right exiting nerve roots. Dr. Casaclang reviewed the MRI results and examined the applicant on August 8, 2005. He wrote in his clinic note that the applicant's back pain "could definitely be related" to her disc herniation. However, he was noncommittal with regard to whether or not the disc herniation was work-related, noting P.A. Sturm's release on July 7, 2005.
Dr. Casaclang referred the applicant to Dr. Yash Pannu, a neurosurgeon, who first saw her on August 25, 2005, and took a history that included the work incident. Dr. Pannu indicated that at that time the applicant was rating her pain at 7 out of 10. Dr. Pannu referred the applicant to Dr. T.G. Stauss for epidural steroid injections at L5-S1, which did not provide long term relief. The applicant's back pain did not improve, and Dr. Pannu continued conservative treatment. On May 5, 2006, Dr. Pannu saw the applicant for "sharp and aching" back pain, as well as a complaint of left leg pain traveling down the posterior aspect of the leg with numbness and tingling. On June 28, 2007, she complained to Dr. Pannu of ongoing back pain as well as bilateral leg symptoms. Dr. Pannu ordered another lumbar MRI that was performed on July 18, 2007, and which again showed a herniation with some extrusion at L5-S1. It was noted that this herniation/extrusion had "significantly improved" since the August 2005 MRI, and the L4-5 disc protrusion was noted to have "significantly decreased." A discogram was performed on August 9, 2007, and it was concordant for pain at L4-5 and L5-S1. Dr. Pannu recommended a two-level posterior fusion procedure at L4 through S1, and in conjunction with this surgery, a psychological evaluation. Dr. Pannu completed a WKC-16-B dated October 31, 2007, in which he attributed the applicant's low back condition to direct work causation.
At respondents' request, Dr. Stephen Barron examined the applicant on September 12, 2005, and submitted a report dated September 27, 2005. He diagnosed a lumbar sprain from the work incident, with an end of healing reached on July 7, 2005. He further opined that her renewed complaints, beginning with the treatment on August 1, 2005, bore no causal relationship to the work incident.
Dr. Barron reexamined the applicant on June 13, 2006, and submitted a report dated June 20, 2006. He reiterated his opinion that the applicant's back healed from the work injury by July 7, 2005, with no permanency and no need for additional medical treatment.
The applicant's family physician, Dr. Muhammed Kahn, had referred the applicant for a behavioral health evaluation on July 23, 2004. The applicant was diagnosed with depression, possible bipolar disorder, post-traumatic stress syndrome, a history of drug abuse, and a history of abusive relationships. Prior to the work injury, Dr. Kahn had also diagnosed schizoaffective disorder.
The finds it significant that the applicant was working normally until May 22, 2005, when she slipped at work and twisted her back while holding a 35-pound box. Her symptoms waxed and waned to some extent, but their persistence prompted P.A. Sturm to order a lumbar MRI on August 4, 2005. The radiologist read that MRI as showing disc herniation and protrusion as previously noted. These significant, objective MRI findings were consistent with the applicant's symptom complaints, and consistent with the type of disc injury that might be expected from the work incident of May 22, 2005. Dr. Pannu's opinion that the work incident was causative of the applicant's low back condition is credible.
The applicant has a number of personal and medical problems other than the low back injury at issue, and it is inferred that these problems contributed to the inconsistencies pointed out by the respondents, with regard to the applicant's reporting of symptoms. The applicant is clearly a poor historian, but the fact that the work incident occurred as described on May 22, 2005, is uncontested, and the results of the MRI's speak for themselves. Dr. Barron's opinion is read to be that he believes there was no causal relationship between the applicant's lumbar disc pathology and the work incident. However, for the reasons previously noted, Dr. Pannu's opinion is accepted over the opinion of Dr. Barron.
In accordance with Dr. Pannu's opinions, the applicant entered a renewed period of temporary disablity beginning on December 9, 2005, which continued through the date of hearing on March 24, 2008.(1) However, the applicant conceded that she has received Social Security Disability Income payments since 1995, and pursuant to Wis. Stat. § 102.44(5), the applicant's temporary disablity payments may be subject to offset. Additionally, the applicant began employment with the Kenosha County Job Center on a date not specified in the record, and admitted to a wage of $6.00 per hour for her services as a housing and job coordinator. She asserted that this hourly wage was a "stipend" rather than wages. However, it is clear from her testimony that she received hourly wages for services performed, and these wages constituted earnings under Wis. Stat. § 102.11. The matter will be remanded to the department for determination of the dates of this employment, and the amounts earned in each week of such employment, beginning with the date of December 9, 2005. Thereupon, the provisions of Wis. Stat. § 102.42(2), regarding temporary partial disablity shall be applied as applicable. Should there be a dispute concerning the amount of wages actually earned, or the actual dates of employment, opportunity for hearing with regard to those factual issues shall be made available. However, the commission's finding that the payments the applicant received were wages for worker's compensation purposes is final.
Given the unresolved factual issues concerning the SSDI offset, and the dates and amounts of wages earned from Kenosha Job Center, a specific amount of compensation for temporary disability will not be awarded in this order, and will await final computation by the department. The applicant's attorney shall be entitled to a 20 percent fee, together with any reasonable costs, to be paid out of any such award.
Respondents are liable for reasonably required medical expenses as enumerated below in the commission's Interlocutory Order.
Pursuant to Wis. Stat. § 102.18(1)(b), respondents are also found prospectively liable for the proposed fusion surgery, including the pre-surgical psychological evaluation recommended by Dr. Pannu. However, this prospective liability finding is based on the assumption that Dr. Pannu does not change his recommendation for such surgery. Of course, the applicant should also understand that the commission's determination does not require her to go through with the surgery, should she elect not to have it.
Jurisdiction will be reserved with respect to all issues, except those determined on a final basis in this decision.
NOW, THEREFORE, this:
The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, respondents shall pay to Midwest Neurosciences Associates, LLC the sum of Three hundred ninety five dollars ($395.00); to Advanced Pain Management the sum of Twenty three dollars ($23.00); to Enhanced Radiology LLC, the sum of One thousand four hundred forty six dollars ($1,446.00); to Aurora Medical Center of Kenosha the sum of Eight dollars ($8.00); and to Medicaid, as reimbursement, the sum of One thousand seven hundred two dollars and ninety cents ($1,702.90).
The matter is remanded to the department for factual findings and computation in accordance with the above commission findings. Jurisdiction is reserved with respect to all issues, except those determined on a final basis in this decision.
Dated and mailed February 25, 2009
bartldi . wmd : 185 : 1 ND §§5.46, 8.33
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Pamela W. Flores
Attorney Bridget A. Neuson
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