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

JUAN RODRIQUEZ, Applicant

REDSCO INC GENERAL PARTNERSHIP, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-037681 and 2006-022810


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.

ORDER

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

Dated and mailed July 30, 2009
rodrigj . wsd : 101 : 5 ND ?? 3.43, 5.46, 5.48

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The ALJ did a thorough job in setting out the facts and expert opinions which the commission shall not reduplicate at length here. Very briefly, the applicant hurt his left groin on March 7, 2003. He worked with restrictions, and improved to the point he was almost 100 percent better. Then, on May 9, 2003, he had the same sharp pain in his groin while helping a coworker lift a conveyor belt.

Subsequent treatment led to surgery for a direct left inguinal hernia performed by Dr. Picone on September 19, 2003. The applicant had continuing pain after the surgery, and in May 2004, the applicant decided to go to Mexico for further surgery. One of his treating doctors, Dr. Fechter issued a note indicating she had discussed this plan with the applicant, issued a work release covering his travel time. The applicant in fact underwent surgery in Mexico, during which the surgeon removed scar tissue and some of the wire mesh put in place in the original surgery, but noted no recurrent hernia.

After this surgery, the applicant was released without restriction; he estimated he had an 80 percent improvement in condition. He treated again in February 2005, after his groin pain returned, or perhaps increased, when he was shoveling meat. He was excused from work during much of early to mid-March 2005.

On March 20, 2005, the applicant had another traumatic injury while shoveling meat. While his groin was painful, he did not immediately treat. When he did treat in April 2005, he was put on work restrictions and eventually returned to Dr. Wasiljew who suspected a recurrent, direct left inguinal hernia. In September 2005, a surgeon (Dr. Garner) suggested the applicant's pain might be related to scar tissue, and referred him to another doctor for treatment of chronic pain.

The applicant was discharged by the employer on September 1, 2005. Since his discharge, the applicant has been self-employed at selling furniture and car parts. He admits he at times exceeded his restrictions in this work.

Regarding expert medical opinion, the applicant relied on the report of Dr. Sanchez who opined the applicant's traumatic work injury on March 7, 2003, caused an inguinal hernia resulting in the need for surgery. He went on to opine the March 20, 2005 incident aggravated the original hernia, and that his condition thereafter warranted a temporary 20-pound lifting limit until he reached a healing plateau.

Dr. Sanchez also imposed a permanent lifting restriction to 20 pounds with other positional limits, suggested laparoscopic surgery, and rated permanent partial disability at 10 percent. After seeing a videotape of the applicant's activities, he relaxed his permanent work restrictions to 30 pounds with fewer positional restrictions and set an 8 percent permanent partial disability. He did not apportion between the injuries.

Insurer Employers Insurance of Wausau retained Dr. Zupnick as its examiner. He acknowledged that the applicant had a direct inguinal hernia, but thought it predated the March 2003 events. He opined that the treatment to the date of his report, January 9, 2004, had been reasonable and necessary.

Insurer Federal Insurance's examiner was Dr. Kelley. He did not think the hernia occurred as a result of the March 7, 2003 incident, as pain medication was not prescribed, a bulge was not appreciated after the accident, and the operative note did not detail the findings or magnitude of the fascial defect. He did, however, acknowledge that that applicant had sustained a direct inguinal hernia at some point before surgery, and attributed all of the applicant's ongoing symptoms to the initial surgery done by Dr. Picone.

The ALJ, as noted above, found for the applicant and awarded compensation for temporary disability, permanent disability, and certain medical expenses. He held the insurer on the risk for the first injury (Employers Insurance of Wausau) liable for the permanent disability (including compensation for loss of earning capacity), but held the insurer on the risk (Federal Insurance) for the second injury liable for the temporary disability following that injury to a July 15, 2005 date of healing. He reserved jurisdiction to deal with potential apportionment issues regarding other medical expenses.

The 2003 insurer (Employers Insurance of Wausau) appeals, making essentially three arguments:

(1) the applicant failed to prove a work injury,
(2) the ALJ should have apportioned the permanent disability compensation between the two injuries, and
(3) the mileage to drive to Mexico should have been denied.

Wausau's position on appeal is based in large part on its contention the ALJ introduced a third, untried and unpleaded date of injury, May 9, 2003. However, the applicant was able to work at his heavy- to medium-duty job with no noted hernia symptoms before March 7, 2003. He then had the onset of groin pain with a shoveling incident on that date. The ALJ's order specifically states that liability is based on March 2003 and March 2005 dates of injury. He mentioned the May 9, 2003 increase in pain mainly to counter Dr. Zupnick's assertion that the medical record did not indicate any strenuous, dramatic increase in pain with particular activities. The ALJ stated that to reach his conclusion, Dr. Zupnick had to overlook what happened both in March 2003 and May 2003. That is not the same as saying the applicant's disability was caused by an injury on May 9, 2003.

Wausau Insurance notes the applicant's ability to engage in lifting in self-employment following his work injuries. However, the applicant has had a hernia surgery, a subsequent exploratory surgery, and sought treatment on an ongoing basis thereafter. On this record, the commission declines to conclude that he is malingering or greatly exaggerating his symptoms. And Dr. Sanchez did reduce both the assessment of functional permanency, and his work restrictions, after seeing the videotapes.

The commission also cannot conclude that apportionment is mandated because Dr. Sanchez opined there were two dates of injury. Neither he, nor Dr. Zupnick, nor Dr. Kelley gives an apportionment in percentage terms, or states even generally that apportionment between the injuries is warranted. Dr. Sanchez did say that the March 2005 incident aggravated the original hernia and ultimately led to him not being able to return to work. Again, the ALJ's order recognizes that the second injury in March 2005 prevented the applicant from returning to work, at least temporarily, and he ordered Federal Insurance to pay temporary disability compensation for wage loss following the second injury on that basis.

However, Dr. Sanchez's report does not mean that, once the applicant had recovered from the aggravating event of March 2005, that that event must be a contributing causal factor in the applicant's residual permanent disability in including loss of earning capacity. Dr. White attributed all of the applicant's disability to the original surgery done in September 2003, and Dr. Sanchez actually set less limiting work restrictions after the recovery from the second work injury in March 2005 (and stated a plateau was reached in only four months) than he set before the second injury. As the ALJ stated succinctly, the applicant was better off after the March 2005 work injury in terms of work restrictions than before it. It is thus reasonable to decline to apportion liability for permanent disability to the March 2005 injury.

This leaves the mileage for the trip to Mexico. As the applicant notes, Dr. Fechter issued a note approving the trip to Mexico. Surgery was also recommended by a doctor with whom the applicant treated in the United States, but it was not performed when the worker's compensation and the applicant's group health insurer denied coverage. The applicant then underwent surgery in Mexico at his own expense, for which he paid approximately $2,500. On this record, the ALJ properly concluded that the mileage expense was incurred to treat the work injury, and compensable under Wis. Stat. § 102.42(1).


cc: Attorney Russell W. Devitt
Attorney Laura Salerno
Attorney Peter Silver


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