P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 2001-012595

Aurora Consolidated Healthcare and Sentry Insurance Company (Respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 21, 2008. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to the conceded low back injury the applicant sustained on February 27, 2001.

On September 18, 2008, the commission remanded the matter to the department for additional medical evidence from an independent physician. On February 24, 2009, the commission remanded the matter a second time for an additional medical opinion from the independent physician. The opinions of the independent physician now have been received, together with additional vocational opinions and arguments from the parties.

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 July 10, 1961, began working for the employer in 1981, originally as a material handler. He had a two-level, work-related cervical fusion performed by Dr. James Cain in June of 1995. He had a good recovery from the surgery, but was left with the restriction of no overhead lifting over 20 pounds. He subsequently returned to work for the employer as a courier.

In March of 2000, the applicant developed right leg radiculopathy from unexplained, nonindustrial causes. On May 12, 2000, Dr. Cain performed an L5-S1 microdiscectomy that had a good result, and after six or seven months Dr. Cain released the applicant without restriction.

The applicant had no significant residual problems from the May 2000 surgery, but on February 27, 2001, he slipped on the ice while making a delivery for the employer and fell onto the concrete. He was generally shaken up, but the most significant pain was in his low back and right leg. He was available to finish his shift and went back to Dr. Cain. On June 5, 2001, Dr. Cain performed a repeat discectomy at L5-S1 and a two-level fusion at L4 through S1. The fusion had to be redone eight months later on February 19, 2002.

The applicant developed right hip pain sometime in 2005, and on August 15, 2006, Dr. Rory Wright performed a right total hip replacement that had a good result. There is no claim of work-relatedness for the applicant's hip problem, and since it developed after the 2001 work injury, its residual effects will not be taken into account when assessing the applicant's disability for worker's compensation purposes.

After the work-related fall, the applicant continued to have low back and right leg radicular symptoms, and on March 13, 2007, Dr. Stephen Delahunt performed surgical removal of the fusion hardware. Dr. Delahunt found that the fusion was solid.

In December of 2004, Dr. Cain had referred the applicant to Dr. Ali Sadeghi, for treatment of ongoing right buttock and right leg pain. Dr. Sadeghi treated the applicant with medication and injections, and on July 10, 2006, he completed a Lumbosacral Spine Impairment Medical Assessment Form. In that form Dr. Sadeghi diagnosed post-laminectomy pain syndrome and bilateral avascular necrosis of the hips. Dr. Sadeghi assessed severe physical restrictions, that if adopted, all parties agree would mean the applicant is permanently and totally disabled. In a letter dated October 11, 2007, Dr. Sadeghi wrote that he intended these restrictions to apply only to the applicant's lumbosacral spine condition, and not to anything related to the applicant's hips. Respondents argue that Dr. Sadeghi is not telling the truth about the reasons for his restrictions, and that they are due in part to the applicant's hips. The commission rejects this argument, given Dr. Sadeghi's unambiguous assurance to the contrary, and the substantial degree of disability inferred from all the evidence to be attributable to the work-related back injury.

Dr. Cain opined in a letter dated January 31, 2006, that the work incident of February 27, 2001, caused the recurrent L5-S1 disc herniation, and was a substantial causative factor for the fusion surgeries. Dr. Cain rated 40 percent permanent functional disability attributable to the February 2001 work injury. Dr. Cain also completed a Musculoskeletal Impairment Medical Assessment Form on August 8, 2006, in which he indicated that the applicant was capable of sedentary work. However, in this form Dr. Cain did not answer several significant questions regarding the applicant's restrictions, including whether or not he believed the applicant's back condition would cause him to be absent from work on a recurring basis. Dr. Cain's only response to these unanswered questions was to enter question marks.

Respondents' primary reliance is upon the medical opinions of Dr. Sridhara Vasudevan. In his report dated October 28, 2005, Dr. Vasudevan diagnosed a lumbosacral muscular strain occurring on February 27, 2001, and opined that the disc herniation at L5-S1 is attributable to the nonindustrial L5-S1 disc pathology and surgery occurring in 2000. In another evaluation dated October 22, 2007, Dr. Vasudevan reiterated his diagnosis of a work-related lumbosacral strain that resolved without permanency. Dr. Vasudevan attributes the applicant's surgical fusions to his preexisting low back condition. However, irrespective of causation, Dr. Vasudevan assesses 35 percent permanent functional disability attributable to the applicant's back condition. He additionally gives restrictions for the back that include 20-lbs. maximum lifting, 10-lbs. frequent lifting, avoiding getting in and out of trucks, and a sedentary level of work.

Pursuant to the commission's first remand order, the independent physician, Dr. Jerome Ebert, examined the applicant on November 6, 2008. In his report of that same date, Dr. Ebert assessed physical restrictions attributable to the applicant's back condition that include one-half hour limits on sitting, standing, and driving. Dr. Ebert indicated the applicant could walk a maximum of one-half mile, lift a maximum of 20 pounds, lift 10 pounds frequently, and that he needs to change position every one-half hour. In response to the commission's second remand order, Dr. Ebert indicated the applicant would be able to work eight hours if his restrictions were followed, and if he could take two, unscheduled 10-minute breaks each day. Dr. Ebert also estimated the applicant's chronic back pain would flare up approximately twice each month, causing him to miss work on such days.

There are a number of different loss of earning capacity (LOEC) assessments from the vocational experts, depending upon which set of physical restrictions is accepted. The amounts range from permanent total disability to 25 percent. Of course, there would be no LOEC if Dr. Vasudevan's opinion that the work injury amounted only to a muscular strain were to be accepted.

Respondents have requested another remand to elicit additional testimony from Dr. Ebert, or in the alternative, that Dr. Ebert be asked to respond to three questions: (1) whether or not his opinion that the applicant's back condition will cause missed work approximately twice a month is given to a reasonable degree of medical probability; (2) whether or not his opinion concerning this missed work would change if the applicant could work only part-time within his restrictions; (3) what "level of work" the applicant could perform without having to miss any work, and what functional limitations would be necessary for this to be possible.

The commission declines to order another remand to Dr. Ebert. The commission is familiar with Dr. Ebert, because he has provided tiebreaker medical opinions in numerous cases, and the commission is satisfied that his medical opinions are routinely given to a reasonable degree of medical probability. There is no ambiguity in the opinions he has provided in this case, and the commission sees no reasonable basis to question whether they were given to a reasonable degree of medical probability.

The commission also fails to see any useful purpose in questioning Dr. Ebert regarding part-time work or theoretical "levels" of work. Dr. Ebert's functional restrictions are credible, and Vocational Consultant Bruce Schuyler has credibly opined that based on those restrictions, the applicant falls into the "odd lot" category as described in Beecher v. LIRC, 2004 WI 88, 31, 273 Wis. 2d 136, 682 N.W.2d 29. The applicant therefore submitted a prima facie case for permanent total disability, which the commission finds that respondents have not successfully rebutted. Vocational Consultant Cynthia Engebose's updated vocational opinions propose that if the applicant were to obtain retraining in one of several two-or-four-year degree programs, he could obtain employment in skilled jobs that would allow unscheduled breaks. Also, Ms. Engebose suggests that the applicant could overcome the limitation of habitually missed work days by invoking the provisions of the Family Medical Leave Act (FMLA).

However, the applicant can only sit comfortably for one-half hour at a time, and he takes a narcotic-based pain medication, Avinza, on a daily basis. He also takes a narcotic analgesic, Vicodin, as needed for his back and leg pain. He credibly testified that these medications interfere with his ability to think. The commission infers that the combination of the effects of the applicant's medication, together with his sitting restriction and need to take unscheduled breaks, would make retraining extremely difficult, if not impossible. As acknowledged by Ms. Engebose, the Wisconsin Statues make the FMLA applicable only to employers that employ at least 50 individuals on a permanent basis; but of even greater importance, the FMLA is only applicable to employers who would have employed the applicant for more than 52 weeks for at least 1,000 hours during those 52 weeks.(1) As opined by Mr. Schuyler, it is unlikely that any suitable employer would find the applicant's absenteeism and other restrictions acceptable in a permanent employment setting. It is therefore unlikely that he could ever reach the 52-week threshold that would allow him to invoke the provisions of the FMLA.

The applicant is currently 47 years old and has a G.E.D. After working as a security guard in 1979-80, he performed various unskilled work duties for the employer from 1981 until he was terminated in July of 2006, due to the employer's inability to accommodate his various physical restrictions. The employment suggestions submitted by Ms. Engebose are not realistic, given the applicant's physical restrictions attributable to his back condition, and his practical inability to obtain useful retraining. Unfortunately, he is accurately described as fitting within the parameters of an "odd lot" worker.

As found by the administrative law judge, the effective date of permanent total disability was April 5, 2005. The applicant, his attorney, and the medical providers shall be paid as detailed on pages 5 and 6 of the administrative law judge's decision issued on February 21, 2008, and as enumerated in the administrative law judge's Interlocutory Order set forth at the end of that decision. Such provisions of the administrative law judge's decision are adopted and incorporated as if set forth herein. Any additional interest payments due pursuant to Wis. Stat. § 102.22, shall also be paid.

Due to the possible need for additional medical treatment, and as is the case for all orders finding permanent total disability, jurisdiction will be reserved for such further findings and orders as may be warranted.



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 make all payments as set forth in the administrative law judge's Interlocutory Order issued on February 21, 2008, together with any applicable interest payments due pursuant to Wis. Stat. § 102.22.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed May 28, 2009
schaeje : 185 : 5 ND § 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


cc: Attorney Robert Ward
Attorney Daniel Zitzer

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Appealed to Circuit Court.  Affirmed December 10, 2009.  Appealed to Court of Appeals.  Affirmed sub nom. Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2010 WI App 173, 330 Wis. 2d 804, 794 N.W.2d 520. Affirmed in Supreme Court, Aurora Consolidated Health Care & Sentry Ins. v. LIRC & Jeffrey Schaefer, 2012 WI  49, 340 Wis. 2d 367, 814 N.W.2d 824.


(1)( Back ) See Wis. Stat. 103.10(1) and (2).


uploaded 2009/06/19