DAVID VALLIER, Applicant
BEST FIREPLACE CO INC, Employer
WEST BEND MUTUAL INS 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed April 29, 2009
vallier . wsd : 101 : 1 ND 5.3; 5.6; 5.40
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The applicant, who was born in 1982, injured his back on February 10, 2004 while he was installing a fireplace for the employer. At the time of his injury, he was squatting while lifting and pulling a tool box weighing over 100 pounds. Following conservative treatment, the applicant underwent a two-level fusion surgery from L3 to L4 on November 24, 2004.
The employer and its insurer (collectively, the respondent) have conceded temporary disability to June 27, 2006, and permanent disability at 20 percent, the code minimum for a two-level lumbar fusion. At issue before the ALJ was the employer's liability for additional disability. In October 2008, the ALJ issued his decision awarding temporary disability from June 27, 2006 to January 16, 2007. He deferred any award for additional permanent partial disability beyond the conceded 20 percent until the applicant at least followed through with DVR.
The respondent appealed, contending the applicant had reached an end of healing when it stopped paying temporary disability on June 27, 2006. The applicant did not file a petition or cross-petition, but now contends the applicant is permanently totally disabled, and at the very least permanent partial disability for loss of earning capacity should have been paid at the 35 percent figure given by the applicant's own expert.
1. Temporary disability.
On March 28, 2006, while the respondent acknowledges the applicant was still in a healing period, the applicant saw his neurosurgeon, Alexander T. Hawkins, M.D., who noted the applicant had not been helped a great deal by his fusion surgery, and was still complaining of low back pain. The doctor noted that postoperative imaging showed no evidence of foraminal stenosis, and no obvious evidence of pseudoarthrosis. While the doctor was concerned about pseudoarthrosis, he noted that the applicant had had a CT scan which reported the applicant was status post fusion, with all levels patent and no disc herniation, and a complete posterior fusion. Dr. Hawkins scheduled follow-up in three months, and added it was unlikely the applicant would need a re-exploration of the fusion.
On June 27, 2006--the day the respondent contends its liability for temporary ends--the applicant returned to Dr. Hawkins complaining of significant post operative low back pain which he rated 7 to 9 of 10, together with a shooting pain into his left leg. The doctor's diagnostic impression was "24-year old male who has a history of posterior lumbar interbody fusion ... who is continuing to experience lumbar radiculopathy." The doctor wanted to have the applicant evaluated at Froedtert Pain Service for a pain pump. He added:
"He was told to remain off work at this time. Mr. Vallier was told to follow-up with our office in approximately two months."
When the applicant returned to Dr. Hawkins on August 29, 2006, the doctor noted the applicant had been seen at Froedtert, and was going to see them again for nerve blocks. Dr. Hawkins kept the applicant off work, and again asked him to return to work in two months time.
According to the summary of medical records provided by the employer's medical examiner, William Monacci, M.D., an October 13, 2006 note from Dr. Gaphings indicates the applicant underwent diagnostic blocks on September 8, 2006 without substantial improvement. The applicant was not viewed as a good candidate for an intrathecal pain pump. He was also viewed as a poor candidate for radiofrequency ablation. The pain clinic's plan was to continue the OxyContin prescription, and to try transcutaneous neurostimulation.
The applicant returned to Dr. Hawkins on October 24, 2006, complaining of shooting pain to his back which radiated down his bilateral lower extremities, left worse than right. He reported that a recent nerve block did not relieve his pain. Dr. Hawkins suggested the applicant talk to the pain specialist about a possible repeat discogram, and also asked that he follow up in three months.
The applicant then saw Dr. Hawkins on January 16, 2007, still complaining of low back pain and bilateral lower extremity pain. At this point, Dr. Hawkins described the applicant as unchanged in regard to his pain, and stable at the current time. Dr. Hawkins released him from his care, stating he need only follow up with his pain doctor. In a subsequent practitioner's report (exhibit A), Dr. Hawkins stated the applicant was subject to permanent restrictions on January 16, 2007 (though he report the applicant was actually unable work then because of his chronic pain and limited range of motion).
The applicant's family doctor, T.A. O'Connor M.D., did a functional capacity evaluation on April 2, 2007, which basically restricted the applicant to work lifting and carrying 10 pounds or less, and imposed very limiting positional restrictions as well. He opined the applicant could return to work subject to those limits on April 2, 2007.
William T. Monacci, M.D., opined on December 28, 2006, that the applicant had reached an end of healing on June 27, 2006. Dr. Monacci noted Dr. Hawkins's March 2006 treatment note reporting that postoperative imaging disclosed no obvious evidence of pseudoarthrosis, and that it was unlikely the applicant needed a re-exploration of the fusion. Dr. Monacci added:
In my opinion, regardless of causation, the examinee reached an end of healing as of June 27, 2006, when the examinee was deemed to have not had a significant pseudoarthrosis requiring surgical intervention. As of this date, in my opinion, no further treatment is necessary. Given the examinee's multiple failures with interventional pain management prior to surgical intervention, it is unlikely that it would benefit the examinee postoperatively. The examinee attempted to use a stimulator which was not effective, and thus, in my opinion, no further use of this stimulator is indicated. It is unlikely that Mr. Vallier will continue with low back pain which he should manage with the use of medications and a self directed exercise program.
The ALJ, as set out above, found an end of healing on January 17, 2007, based on Dr. Hawkins' opinion. In its petition for review, the respondent asserts that the medical record indicated the applicant's condition had stabilized as of June 2006. It notes that while the applicant continued to complain of back pain thereafter, treatment did not help, indicating he had reached the point of where all of the improvement that was likely to occur had occurred.
As the respondent points out, a worker generally is entitled to temporary--as contrasted with permanent--disability for current wage loss while in a "healing period." Regarding a "healing period," the supreme court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
It is true that the medicals do not document a great deal of physical improvement after June 27, 2006, but Dr. Hawkins was still recommending treatment and did keep the applicant off work. There is no definitive statement from Dr. Monacci, or other medical expert, that the treatment the applicant underwent after June 27, 2006 was solely palliative--that is designed to simply alleviate pain temporarily--not diagnostic or aimed at restoring function. Indeed, Dr. Hawkins recommended a possible repeat discography, which generally is regarded as a diagnostic test.
The respondent also points to the surveillance videotape taken shortly before the March 2008 hearing. The applicant is shown using a cane at some points, and not at other. He is shown moving furniture: one relatively light piece he moved with a woman who was herself carrying a drink at the same time, but also an apparently heavier desk he moved up some stairs with another man.
The surveillance was all done in December 2007 or later. It does not provide a direct basis for reversing the temporary disability award which ended in January 2007. However, regarding his current condition, the applicant testified that his back hurts and he limps, and he is unable to sleep because of the pain. Transcript, pages 25 to 27. The respondent suggests that the applicant exaggerating his current condition, and inferentially exaggerated his condition and subjective complaints in the June 2006 to January 2007 period as well, supporting the earlier June 2006 end-of-healing.
However, the applicant had a two-level fusion at the relatively young age of 22. He is still a young man by any standard, which must be kept in mind in evaluating the activity shown in the videotape. In any event, the commission's viewing of the videotape does not persuade the commission that the applicant misrepresented his condition to Dr. Hawkins--who examined and treated him on an ongoing basis--causing the doctor to opine he remained in a longer healing period than was warranted. The commission further concludes the applicant did not reach an end of healing--the point at which all healing that was likely to occur had occurred--until surgeon Hawkins released him in January 2007.
2. Vocational retraining
The next issue is whether the ALJ properly declined to reach the issue of permanent partial disability on a vocational basis until the applicant undergoes vocational retraining. The applicant first raised this issue in briefs; he did not file a petition for commission review on this issue. He contends that vocational experts did not address retraining because it is not an option for him, and that Dr. Hawkins has now stated he cannot work on a permanent basis. The applicant asks the commission to find the applicant is permanently totally disabled, or at least to award permanent partial disability on a vocational basis for loss of earning capacity at 35 percent, which is the minimum under the rating given by the respondent's own expert.
In support of its assertion, the applicant's lawyer points out that the respondent's vocational expert rates his IQ in the bottom 8 percentile. See exhibit 2, page 8. He quite school in 9th grade and has fourth grade math skills. Thus, the applicant would need substantial remedial work before being accepted in an associate degree program at a vocational school. On the other hand, the applicant did tell the employer's vocational expert he took an engine course at MATC in the late 1990s. Exhibit 2, page 2.
The ALJ and the commission have the authority to order the applicant to at least the attempt vocational retraining before reaching the issue of permanent partial disability on a vocational basis for loss of earning capacity. 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 prior cases, the commission has required retraining before reaching the issue of loss of earning capacity. See for example Luthra Cole v. Modern Products Inc., WC claim no. 91024321 (LIRC, August 31, 1994).
Here, the commission concludes that the ALJ quite reasonably required the applicant to follow through with DVR before reaching the issue of loss of earning capacity. He is 27 years old. While the applicant suggests the vocational experts implicitly ruled out retraining under his restrictions, neither has done so explicitly.
He himself has expressed some interest in pursuing retraining. And, as the
respondent points, out, this is an issue that was first raised in briefs, not in
a timely petition for review.(1)
cc:
Attorney Lynne A. Layber
Attorney Eric W. Lengell
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