THOMAS L BODY, Applicant
PRAXAIR, Employer
OLD REPUBLIC INS CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 30, 2008. Praxair and Old Republic Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the conceded work injuries of April 27, 2006, and September 14, 2007. Respondents paid the applicant's prior medical expense; however, liability for future medical expense also remains at issue.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
The applicant, whose birth date is June 17, 1954, was employed as a laborer for the employer. The job involved loading and unloading metal cylinders (welding tanks) which could weigh anywhere from 40 pounds to 700 pounds apiece. He used a hand cart for the heavier lifting, and lifted hundreds of cylinders every work day.
He sustained a conceded low back injury on April 27, 2006, when two, 100-150 lb. cylinders fell off a hand cart that a coworker had pushed up behind the applicant. One cylinder hit the applicant in the low back and the other hit his hip. The impact pushed him forward a couple of feet, and he immediately reported the incident to his supervisor, but then went back to work. The next day he felt "like something was moved in my back." The employer referred the applicant to Aurora Occupational Health Services, where he was first seen by Physician's Assistant Camilla Pignotti on May 1, 2006. Conservative treatment began and the applicant was assigned a 10-pound lifting restriction. The employer provided work within the restrictions, and after receiving treatment from Dr. Corazon Tan at Aurora, the applicant was referred to Dr. James Hollowell.
Dr. Hollowell first saw the applicant on June 14, 2006, and he ordered a lumbar MRI on June 20, 2006. It was read by the radiologist as showing an anterolisthesis (spondylolisthesis) of L5 on S1, likely due to osteoarthropathy and laxity. Dr. Hollowell prescribed physical therapy, but when the applicant's pain continued, he ordered another MRI due to the "poor imaging quality" of the first one. The new MRI, done on September 6, 2006, was read by the radiologist as showing mild disc bulging at L4-5 and L5-S1, and mild to moderate facet hypertrophy at L5-S1. Dr. Hollowell indicated the imaging studies had showed spondylolisthesis at L5-S1, and he recommended facet injections. In his clinic note of October 18, 2006, Dr. Hollowell noted that planned injections were not done in early October 2006, due to denial of coverage by the insurance carrier. The applicant did subsequently receive injections from Dr. Thomas Brusky, and they offered relief but only for about one week. The applicant experienced severe constipation after these injections, and for that reason decided not to undergo any more of them. Dr. Hollowell disagreed with this decision because he believed more injections would help. On December 6, 2006, Dr. Hollowell indicated the applicant was not a surgical candidate, and he had no further recommendations if the applicant would not consent to more injections.
The applicant sustained another conceded low back injury while at work on Friday, September 14, 2007. He was still restricted to light duty, but on that date his supervisor ordered him to paint some tanks that weighed about 100 pounds each. The applicant had to move these tanks around as part of the painting process, and after doing this all day he could not get out of bed the next morning. The applicant was off work until sometime in late October 2007. The employer discharged him on an unspecified date in November 2007, because it could no longer accommodate his light duty restriction.
At the insurance carrier's request, Dr. Paul Cederberg examined the applicant on September 26, 2006, and submitted a report dated October 4, 2006. He diagnosed a work-related strain and contusion of the applicant's mid back and lower back superimposed on mild degenerative disc disease. He opined that the end of healing should occur by October 27, 2006, and he anticipated no permanent disability from the work injury. He assessed temporary restrictions of no repetitive lifting over 30 pounds, the ability to sit or stand as tolerated, and avoidance of bending and twisting of the low back. He opined that facet injections were not medically indicated or expected to be successful.
The applicant began treating with Dr. Neal Pollack on January 15, 2007. In his clinic note dated April 18, 2007, Dr. Pollack diagnosed a light sacroiliac sprain and aggravated lumbosacral changes. He prescribed physical therapy and self-directed strengthening exercises. Dr. Pollack completed a WKC-16-B dated May 25, 2007, in which he found direct work causation and assessed two percent permanent partial disability. He gave permanent restrictions of lifting/pushing up to 30 pounds, and bending only six to ten times per hour.
Dr. Cederberg reexamined the applicant and submitted a second report on November 6, 2007. He opined that the applicant's work activities on September 14, 2007, "...at least temporarily aggravated a prior back injury of April 27, 2006, and aggravated a preexisting degenerative condition at two levels in his lumbar spine." He further opined that "no additional permanent partial disability" was incurred as a result of the injury of September 14, 2007, and that by October 24, 2007, healing had been completed from that additional injury. Finally, he opined that the applicant was currently manifesting symptoms of degenerative disc disease in his lumbar spine, and had reached an end of healing for the April 2006 injury by February 9, 2007. Dr. Cederberg rated one percent permanent partial disability for one-level degenerative disc disease, regardless of causation. He assessed permanent work restrictions of no lifting over 30 pounds, sitting and standing as tolerated, and no bending more than six to ten times per hour. These are identical to Dr. Pollack's restrictions, except that Dr. Pollack did not indicate that sitting and standing should be as tolerated. Dr. Cederberg opined that the applicant's restrictions were due to "the preexisting condition."
In a supplemental report submitted on November 14, 2007, Dr. Cederberg indicated:
"This 1 percent permanent partial disability rating, in my opinion, is due to a pre-existing condition which was not permanently aggravated by the work injury of April 27, 2006, or September 14, 2007, due to the lack of objective findings clinically that correlate with his symptoms and degeneration in his lumbar spine."
The applicant's vocational expert, Michael Ewens, opined that based on either Dr. Pollack's or Dr. Cederberg's physical restrictions, the applicant's employment options are so limited in scope that he falls within the "odd lot" category.(1) In arriving at this conclusion, Ewens took note of the applicant's physical restrictions, together with his age (53 years old when discharged in November 2007), his tenth grade education without a G.E.D., his lack of transferable skills including no computer skills, and his work history that is limited to general labor such as the heavy work he performed for the employer beginning in 1977. In addition, Ewens noted the applicant uses a cane for walking assistance, and periodically uses a TENS unit or pain patches for pain relief. Respondents' vocational expert, Michael Campbell, opined that assuming work causation for the physical restrictions assessed by either Dr. Pollack or Dr. Cederberg, the applicant could find regular employment as an unskilled worker, but would sustain a loss of earning capacity between 52 and 57 percent. Campbell supplemented his initial report of February 27, 2008, with an October 2008 survey that lists jobs "either currently or recently available," and Campbell opines that these jobs "would fit the restrictions assigned by Dr. Pollack." These include jobs as a driver, door person, assembler, lot attendant, and security guard.
Dr. Pollack's opinion that the work incident of April 27, 2006, caused a sacroiliac sprain that resulted in two percent permanent partial disability to the applicant's lumbar spine is credible. The applicant was asymptomatic prior to that work incident, and in fact was performing repetitively heavy work for the employer on a daily basis. His lower back was never asymptomatic after the work injury, and the employer was ultimately unable to accommodate his physical restrictions. Even Dr. Cederberg acknowledged that the applicant now has permanent disability in his lower back, and assessed permanent restrictions that are identical to those assessed by Dr. Pollack, except that Dr. Cederberg added the restriction that the applicant must be allowed to sit or stand as tolerated. In his report dated November 6, 2007, Dr. Cederberg attributed the applicant's back condition to a manifestation of pre-existing degenerative disc disease in the lumbar spine. However, in his report dated October 4, 2006, Dr. Cederberg opined that the applicant's back condition was not a manifestation of his preexisting degenerative disc disease; rather he opined that the work injury "...appears to have contributed to his current back symptoms and situation." The only way to reconcile these opinions would be to infer that Dr. Cederberg believed the applicant's preexisting degenerative disc condition became symptomatic at some unspecified time subsequent to October 4, 2006, and did so coincidentally and independently of the work injuries. Given the traumatic onset of lower back symptoms on April 27, 2006, and the subsequent persistence of those symptoms, the commission infers that Dr. Pollack credibly attributes such symptoms to the work injury.
In consultation with the commission, the administrative law judge indicated that his subjective impressions of the applicant were that he was not as seriously disabled as he claimed, and that he was using his work injury as a means to retire from the labor market. The administrative law judge did not relate any specific demeanor observations that led him to form these impressions. The commission could not agree, because even Dr. Cederberg found the applicant to be permanently physically disabled, and assessed restrictions that are actually more severe than those assessed by Dr. Pollack. Dr. Cederberg stated in his supplemental report that he believed there was a lack of objective findings clinically that correlate with the applicant's symptoms and lumbar spine degeneration. However, Dr. Cederberg did not elaborate on this statement, which is problematic given his own assessment of permanent restrictions; given the spondylolisthesis, disc bulging, and facet hypertrophy described by the radiologists and by Dr. Hollowell; and given the ongoing low back symptoms consistently described in the clinical treatment records. The commission found the applicant to be credible with regard to his description of symptoms, and inferred that he would have continued to work had the employer been able to accommodate his physical restrictions.
The applicant's credible testimony, the physical restrictions assessed by Dr. Cederberg and Dr. Pollack, and the report submitted by Michael Ewens, together constituted a prima facie case for "odd lot" permanent total disability submitted by the applicant. It thus became the employer's burden to rebut that prima facie case by showing "...that the injured employee is actually employable and that there are actual jobs available to him." Beecher v. LIRC, 2004 WI 88, ? 44, 273 Wis. 2d 136, 682 N.W.2d 29.
As recounted by Ewens, the applicant's age, education, work history, and physical restrictions severely limit his availability for employment on the general labor market. As also noted in Beecher:
"The employer does this [rebuts the prima facie case] by bringing forward evidence of actual job availability, making it more probable than not that the claimant is able to earn a living." Id. at ? 55.
In his report dated February 27, 2008, Michael Campbell listed several categories of employment in which he indicated he believed the applicant could find work under either Dr. Pollack's or Dr. Cederberg's restrictions. In his job survey report dated October 22, 2008, Campbell listed 13 specific job openings that he believed the applicant would be able to pursue, based on Dr. Pollack's permanent restrictions. However, Dr. Cederberg has credibly assessed the additional physical restriction of being able to sit or stand as tolerated, and this restriction would impact upon most, if not all, of the jobs listed in Campbell's survey. All of the jobs in the survey would involve either extended periods of driving, or extended periods of standing or repetitive bending. The commission concludes from Dr. Cederberg's and Dr. Pollack's restrictions, and from the applicant's credible testimony, that he could not physically tolerate such activities. Respondents have not successfully rebutted the prima facie case for permanent total disability, and therefore the commission must find that the applicant is permanently and totally disabled as a result of the work injury of April 27, 2006. Permanent total disability began on the date on which the employer terminated the applicant's employment in November 2007.
There was no claim for temporary disability. As previously noted, the record before the commission does not contain the exact date in November of 2007, on which the applicant's employment with the employer was terminated. This would be the date the applicant became permanently and totally disabled. Additionally, there is indication in the record that payments of nonindustrial disability and/or social security disability income were paid after permanent total disability would have begun. Accordingly, the matter will be remanded to the department for determination of the exact date in November of 2007 when the applicant became permanently totally disabled. The department shall also determine what offsets and/or reimbursements may be due pursuant to Wis. Stat. § 102.30 and/or 102.44(5). In order to make the commission's order appealable, the commission will order payment of $500 towards the permanent total disability award, less a 20 percent attorney's fee.
NOW, THEREFORE, this
The findings and order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant as compensation towards permanent total disability the sum of four hundred dollars ($400); and to applicant's attorney, Fred N. Tabak, fees in the amount of one hundred dollars ($100).
The matter is remanded to the department for determination of the exact date in November 2007, when permanent total disability began, and for assessment of any applicable offsets and/or reimbursements due pursuant to the statutes.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June 30, 2009
bodyth . wrr : 185 : 5 ND § 5.31
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Fred N. Tabak
Attorney Robert Ochowicz
Appealed to Circuit Court.
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