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

LARRY HAMILTON, Applicant

KENOSHA AUTO TRANSPORT, Employer

PROTECTIVE INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1985-030252


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. In the ALJ's Order, after the clause "to EMPI, the sum of Five dollars and nineteen cents ($5.19);" insert the clauses "to Medicare, the sum of Seventeen thousand six hundred forty-six dollars and one cent ($17,646.01); to Wellmark BC/BS the sum of Ten thousand three hundred fourteen dollars and fifteen cents ($10,314.15);".

ORDER

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

Dated and mailed March 11, 2009
hamiltl . wmd : 101 : 1 ND § 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In 1985, the applicant hurt his neck and shoulder when he fell from the top of a car transport vehicle. He now claims permanent total disability. The ALJ, crediting the restrictions of the applicant's treating orthopedic surgeon, John Bailey, D.O., found the applicant to be permanently totally disabled. Both sides appealed.(1) The employer and its insurer (collectively, the respondent) challenges the award of permanent total disabilty on several grounds.

First, the respondent asserts that it was a cardiac condition that resulted in the applicant being taken off work. However, upon examination, Dr. Harclerode diagnosed only mild coronary artery disease, and further treatment was aimed at the cervical condition not the heart. Dr. Harclerode did not regard the applicant's heart condition as disabling when the doctor released the applicant for surgery.

The respondent also points out that the applicant was able to work for several years after the 1999 surgery, and went back to work briefly on Dr. Bailey's release in July 2004 after his second fusion surgery. However, the applicant's condition got worse in February 2004; so that he could not work at the trucking job he obtained in 2000. The applicant also testified credibly that he asked Dr. Bailey to release him to driving in July 2004, only a few months after his second cervical fusion surgery. The commission finds it credible that Dr. Bailey would issue a release to let the applicant try going back to work if he wanted to, and declines to draw any adverse inferences from the attempt.

The respondent also suggests Dr. Aschliman's restrictions are more credible than Dr. Bailey's as Dr. Aschliman noted non-physiologic symptoms and exaggerated responses. But Dr. Aschliman himself set very significant restrictions for this injured worker who has undergone several major surgeries to treat his work injury. Further, the applicant's return to driving work in 2000 after his shoulder replacement despite receiving SSDI, and the attempt to return to work from July to September 2004 following the May 2004 cervical fusion, satisfy the commission that the applicant is willing to work when he is able to work. The commission, like the ALJ, finds the restriction set by Dr. Bailey regarding the applicant's cervical condition more credible than those of Dr. Aschliman.

Moreover, even assuming for the sake of argument that Dr. Aschliman's cervical restrictions were more credible, the applicant correctly points out that consideration would have to be given to the shoulder restrictions under Mireles v. LIRC, 2000 WI 96, ¶¶ 63, 64, 71, 237 Wis. 2d 69, where the court held that an award for permanent total disability may be based on a combination of injuries affecting both scheduled and unscheduled parts of the body. See also: Secura Insurance v. LIRC, 2000 WI App 238, 17, 239 Wis. 2d 315. Indeed, the Mireles court quoted with approval language from the court of appeals decision in Langhus v. LIRC, 206 Wis. 494, 505 note 9 (Ct. App. 1996), where the court noted that a worker could prove permanent total disability stemming from both scheduled and unscheduled injuries, under the directive in Wis. Stat. § 102.44(2) for the department (and the commission) to "find the facts." Mireles, at 237 Wis. 2d 69 63(2)

In this case, the applicant's vocational expert, Mr. Birder, concludes that the applicant was permanently and totally disabled if the cervical restrictions of Dr. Aschliman and the shoulder restrictions of Dr. Bailey are considered together. The vocational expert, Mr. Campbell, does not offer an opinion considering the combined effect of both the applicant's neck restrictions and shoulder restrictions. However, the respondent suggests the restrictions from the neck and shoulder conditions cannot be combined, arguing in its reply brief:

...this is not a Mireles type of case where both scheduled and unscheduled disability can be combined under Section 102.44(2). The shoulder disability was reduced by medical treatment to the point where the applicant felt capable of working as a full time truck driver. The subsequent and final neck surgery on May 28, 2004 contributed to the unscheduled claim now on review.

In other words, the respondent suggests that because the applicant could work in some capacity after the 1999 shoulder surgery, and only claims permanent total disability after the 2004 neck surgery, only the restrictions from the 2004 neck surgery may be considered in analyzing the permanent total disability claim. However, in Mireles, the court noted:

Mireles suffered an "unscheduled" back injury while working for Ametek-Lamb Electric (Ametek) of Racine. She eventually returned to work and subsequently suffered a "scheduled" wrist injury that precluded her from continuing employment at Ametek.

Mireles, at 237 Wis. 2d 69 1.

In short, Mireles involved a partial recovery from an unscheduled injury and return to work until continued employment was precluded by a scheduled injury, while this case involves a partial recovery from the scheduled injury and return to work until continued employment was precluded by the unscheduled injury. However, the respondent does not explain why that distinction would lead one to conclude that the restrictions from both the scheduled and unscheduled injuries should not both be considered in assessing the applicant's permanent total disability claim.

The respondent also points out that as result of the agreement of the parties; Dr. Aschliman did not render an opinion regarding the applicant's shoulder as the respondent had previously had the applicant's shoulder condition examined by another examiner, Dr. Allen. However, the question is not the completeness of Dr. Aschliman's report, but the completeness of the report of the employer's vocational expert, Mr. Campbell. Simply because Dr. Aschliman did not give shoulder restrictions does not mean Mr. Campbell could disregard the shoulder restrictions in assessing vocational disability, or that he could not have issued an opinion that considered shoulder-related restrictions obtained from Dr. Allen.

In the final analysis, of course, the adequacy of Mr. Campbell's report on this point does not matter, because the commission concludes--as did the ALJ--that Dr. Bailey's cervical restrictions are more credible than those of Dr. Aschliman. Even employer's vocational expert Campbell concludes the applicant is permanently totally disabled on an odd-lot basis under Dr. Bailey's cervical restrictions.

 

cc: Attorney Mark P. McGillis
Attorney Michael C. Frohman


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Footnotes:

(1)( Back ) The applicant raises a drafting error in the order--pointing out that that the ALJ did not include medical expense reimbursement to two non-industrial insurers. The respondent does not challenge this point, and the commission has amended the order to address it, based on the figures set out in the applicant's petition and an Amended WKC-3 Statement of Treatment expense filed by the applicant and dated April 25, 2008.

(2)( Back ) Of course, the Langhus court stated that the commission may properly require a worker to show that an ascertainable portion of his or her permanent total disability was from an unscheduled injury. Langhus, at 206 Wis. 2d 506. See also: Mireles, 237 Wis. 2d 96, 68. In other words, in cases of claims for permanent total disability based on combinations of scheduled and unscheduled injuries, the commission acts within its authority to require the applicant to show that an ascertainable portion of the total disability is attributable to an unscheduled injury. Secura, 239 Wis. 2d at 351, 20. That showing has been amply made under the record in this case.

 


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