CYNTHIA L PARRIS, Applicant
WALKER STAINLESS EQUIPMENT, Employer
AMERICAN HOME ASSURANCE 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 June 30, 2009
parricy . wsd : 101:6- ND ?? 5.3,
5.6, 5.15
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Posture.
The applicant was working as a welder for the employer on June 21, 2000, when she hurt her left ankle as she stepped down from a ladder and twisted the ankle on a hose. Thereafter, she underwent several surgical procedures on her ankle including, finally, a talar arthroplasty or total ankle joint replacement surgery. In his first decision, ALJ Thurow awarded temporary disability continuing to the date of hearing, but also
The commission affirmed the temporary disability and medical expense awards, but set aside the permanency award for the ankle because the applicant's doctor refused to rate permanent disability as the applicant was still healing from the talar arthroplasty and the respondent's doctor's estimate assumed the surgery had not been done. The commission also set aside the permanency award for the back/hip injury because the applicant first made that claim(1) in a medical opinion filed shortly before the work injury with insufficient time to allow the respondent to get a countering medical opinion. The commission left its order interlocutory
to permit additional awards and awards for disability and treatment expense accruing after that date including the claim for permanent disability at the ankle, and to resolve the hip and back permanent disability claims.
Since the first hearing, the applicant has had a pre-surgical trial of a spinal cord stimulator. Her treating surgeon for her ankle condition, Dr. Gall, has recommended a subtalar arthrodesis or refusion. Exhibit Q.
The subtalar refusion procedure was scheduled for November 18, 2008, or about two months after the September 26, 2008 hearing held by ALJ Thurow leading to his second decision now on review. In his second decision, ALJ Thurow ordered payment of temporary total disability continuing to the date of subtalar refusion surgery and beyond, until the applicant ends healing from the refusion surgery. He also ordered payment of permanent partial disability disability at 3 percent to the body as a whole for the applicant's back-related disability claim. The applicant has a claim for knee injuries as well, but the ALJ deferred decision regarding disability or treatment for the claimed knee injuries.
2. Medical opinion.
Dr. Harbst, the physical medicine specialist who has treated the applicant's back complaints, states:
The patient was originally injured at work when she was climbing down a ladder and stepped on an air line and rolling her left foot and severely injuring her left ankle. As a result of this work injury, the patient developed a significant antalgic gait that, in turn, caused her to develop a chronic low back problem.
In his practitioner's report, Dr. Harbst also referred to his clinic note of February 27, 2008, in which he noted that because of a compensatory gait due to her ankle injury, the applicant developed some back symptoms. He went on to report treatment for "musculoskeletal back and girdle problems" and added:
From my perspective, it appears that she has sustained a permanent partial impairment rating for the ongoing musculoskeletal symptoms involving the back and hip girdle region secondary to her ankle injury. I think it is reasonable to issue her a 3% impairment to the body as a whole for her back and hip girdle pain she is having.
He released her to return as needed. Dr. Harbst saw her again on April 16, 2008, noting:
...As a result of the ankle injury, she had altered gait and developed back pain. I had seen her for assessment of her back symptoms. I thought that they were primarily musculoskeletal in nature. She has been issued permanent restrictions and permanent partial impairment rating for all this...
Pain diagram shows that she has discomfort ongoing in the lumbosacral junction midline and into the buttock area bilaterally; also into the lower extremities. ....
...I shared with this young lady that it does not appear to me that her status has changed nor, and in my opinion, has the impairment rating, permanent restriction and causation of the back pain.
Referring to the issue of permanent partial disability in his practitioner's report, Dr. Harbst stated:
With regard to the patient's chronic low back problem caused by the work-related antalgic gait, the patient has a 3% permanent partial disability as compared to the person as a whole.
He stated the disabling elements were pain limitation, and lack of motion. He thought her prognosis was fair, though she could expect flare-ups or exacerbations, and might need medication, physical therapy, and chiropractic care for her chronic low back problem.
Dr. Gall, the orthopedist treating the applicant's ankle, opines:
...The altered gait from the left ankle injury has also resulted in permanent damage to her low back for which she was treated by Dr. Harbst at Gunderson Lutheran and I defer to Dr. Harbst...
Exhibit Q, addendum to Gall's September 20, 2008 practitioner's report. Dr. Gall also stated in his practitioner's report that the applicant had not yet ended healing with regard to her ankle and knees, but
Per Dr. Harbst's clinic notes ... patient has a 3% permanent partial disability compared to the person as a whole concerning the back.
The applicant also has reports from chiropractors who affirm 3 percent PPD rating. Exhibits S and T.
The employer and its insurer (collectively, the respondent) relies on the report of its medical examiner, Ellen Marie O'Brien, M.D., whose practitioner's report is at exhibit 5. Dr. O'Brien states that the applicant has "transient complaints of low back pain without radiographic or clinical evidence of low back pathology..." She observed that the applicant had a prior back injury in 1994, that medical records document recovery from greater trochanteric bursitis, that x-rays showed minimal spurring in the upper and lower spine, and that low back pain was described as on and off with physical therapy in May 2005. She opines that the applicant's low back pain is likely myofascial and transient, in response to physical therapy, and not resulting in permanent disability.
3. Discussion.
The respondent challenges the permanency award for the applicant's back. Its argument is that because the genesis of the back problem is the applicant's altered gait from her ankle injury, an award for permanency related to the back injury is premature, as the applicant continues to heal from the ankle injury.
The respondent asserts its argument is primarily a legal one, and that it is a matter of statutory and administrative policy to delay determining permanent partial disability until healing for all affected body parts is completed. As authority for this proposition it refers to the supreme court's explanation that:
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...
However, Knobbe and Larsen Co. do no actually say that when more than one body part is injured in a work injury, no permanent partial disability may be rated or awarded until the end of healing for all body parts. It makes little sense, for example, to delay an award for a healed amputation to a toe on the right foot, because a worker may be still be healing from an eye injury from the same accident.(2)
The respondent's argument in this case is more nuanced, of course, and it relies on the applicant's assertion that
"the basis for the applicant's claim of PPD is that her ankle condition has caused her to limp, and that by limping for an extended period of time, other body parts such as the back, knees and hips have been affected adversely. If the applicant's ankle condition remains in a healing period, i.e, not yet 'stationary,' it seems evident that the condition of the other body parts affected by the ankle also remain non-stationary and subject to potential improvement or worsening as the ankle treatment continues. ... Dr. Harbst describes spinal symptoms due to soft tissue strains from an altered gait. Once the ankle condition and altered gait problems are resolved, the spinal symptoms may also resolve."
However, the commission does not view this as a purely legal argument. The question is whether a worker has reached an end of healing with respect to a back injury so that permanent disability may be awarded for that condition, even though the worker is still healing from the ankle injury that caused the back injury. This is not a question of law or policy, per se, but one of medical fact on which the record now contains expert medical opinion from both sides.
First, the ALJ and commission must weigh the opinion of the applicant's doctors that the applicant's altered gait caused her permanent disability of a musculoskeletal nature against respondent's medical examiner that the applicant's back problems are transient rather than permanent and arise from physical therapy. The commission, like ALJ Thurow, concludes that expert medical evidence warrants the payment of permanent disability for the back injury caused by altered gait.
Like the ALJ, the commission credits the opinions of the applicant's treating doctors. The applicant has had ongoing ankle problems from the work injury for years. She walks with a limp and weight 273 pounds. Based on these facts, it is reasonable to conclude that the applicant's altered gait caused the back/hip problem.
Next, the commission must determine whether the medical evidence supports the rating for permanent disability at the back, or establishes that such a rating is premature. Dr. Harbst does describe the applicant's condition as musculoskeletal in nature. However, Dr. Harbst, Dr. Gall, and the chiropractors are not persuaded the condition will resolve without disability once the applicant reaches an end of healing from her ankle injury. Dr. O'Brien, of course, does describe the back pain as transient and does not rate permanent disability. However, she does not actually address the issue of permanency to the back caused by an altered gait. On this record, the commission concludes Dr. Harbst's rating of permanency at three percent to the body as a whole is not premature.
cc:
Attorney Charles Hanson
Attorney Michael Frohman
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