DAVID G CHASE, Applicant
QPS STAFFING SERVICES, Employer
LIBERTY INSURANCE CORP, Insurer
LIBERTY MUTUAL MIDDLE MARKET
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on December 5, 2008. QPS Staffing Services and Liberty Insurance Corporation (respondents) submitted an answer to the petition and briefs were submitted by the parties. A compensable right foot injury was conceded as having occurred on January 13, 1995, and temporary disability, together with permanent partial disability were paid for that injury. At issue is whether or not the applicant's subsequent right toe neuropathic ulcer condition constitutes a compensable re-injury, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
The applicant, whose birth date is June 25, 1963, sustained a conceded injury to his right foot on January 13, 1995, when it was crushed between a forklift and metal shelving. He sustained a comminuted fracture of the first metatarsal, and underwent two surgeries to the foot before reaching a healing plateau in June 1995. He was off work for four months and was awarded three percent permanent partial disability to the foot. Subsequently, he worked for various temporary help agencies, but he continued to experience pain, cramping, and sensory loss in his right foot. However, he did not receive medical treatment for this ongoing condition.
In the summer of 2001, he was walking barefoot on a beach when he stepped on a stone or shell and cut his right great toe. He treated the wound himself with Neosporin and gauze, but it did not heal and became infected. He delayed seeking formal medical treatment for the wound, which developed into an open ulcer on the toe. In a clinic note dated December 9, 2002, Dr. Kenneth Lin took a history of the applicant seeking treatment for the toe "six months ago," and again on October 29, 2002, but that he had failed to follow up with recommended treatment at a foot clinic. Dr. Lin's exam revealed a one centimeter ulcer on the plantar surface of the toe. He diagnosed a non-healing right hallux ulcer aggravated by neuropathy secondary to the 1995 crush injury. Dr. Lin debrided the ulcer and set the applicant up for treatment at a wound care clinic.
The applicant received treatment from the wound care clinic under the supervision of Dr. Richard Marks, Dr. Lawrence Maciolek, and Dr. Jonathan Towne. Concerns included the effects of the applicant's alcoholism and cigarette smoking, because they could affect circulation to the foot. The applicant concedes that he drank heavily until 2005, but indicates that since then he has worked hard to control his drinking. Despite the clinical treatment, the applicant's right foot condition continued to decline. In October of 2006, he was admitted to the hospital for an open and draining ulcer on the right great toe, and cellulitis in the right foot. There was also a smaller ulcer on the left great toe with no drainage and no evidence of cellulitis. Intravenous antibiotics were administered together with wound care for both ulcerations. Also noted was the applicant's description of decreased sensation in both feet, right greater than left. The applicant was discharged after several days of inpatient care, with an ongoing course of antibiotics and home wound care treatment.
On February 16, 2007, Dr. Towne examined the applicant and indicated the right toe ulcer was 50 percent healed in depth, width, and length. The left toe ulcer had "...epithelized a little bit although he does have a callous over his toe."1(1) The applicant has continued to perform self-care of his right great toe, using prescription ointment. He keeps his right foot elevated as much as possible and has been prescribed special orthotics.
In a letter dated June 13, 2007, Dr. Towne diagnosed a neuropathic ulcer on the plantar aspect of the great toe. Dr. Towne opined that the 1995 crush injury caused nerve damage that led to the neuropathic ulcer and adversely affected healing.
Dr. James Gosset assumed care of the applicant after Dr. Towne retired. In a letter dated September 25, 2008, Dr. Gosset opined that the applicant developed micro-vascular arterial occlusive disease and associated neuropathy in the right foot, secondary to the crush injury. Dr. Gosset further opined that the applicant had developed a much milder form of peripheral neuropathy in the left foot that could be related to excessive alcohol intake. Dr. Gosset saw no evidence of diabetes, noting that glucose testing done on March 29, 2006, was within normal limits. He further opined that he saw no evidence of major large vessel arterial vascular disease in the applicant's lower extremities. In summary, Dr. Gosset wrote:
"It is my opinion that Mr. Chase's ongoing difficulty since 2002 regarding the ulcerations affecting his right foot is a result of the original crush injury and the impact of that injury on the ability of his foot to heal from the relatively minor laceration that occurred in 2002. While it cannot be ruled out, the fact that excessive alcohol use may have previously contributed to neuropathy affecting both feet, it is clear that the crush injury is the primary factor in his overall difficulty in achieving healing of the right foot. Generalized neuropathies, whether they be diabetic neuropathies, alcoholic neuropathies, or idiopathic neuropathies tend to be bilateral. Since Mr. Chase only has mild neuropathy in the left lower extremity, we would expect that he would only have mild neuropathy in the right lower extremity, but for the crush injury which undoubtedly has resulted in a far denser neuropathic condition in the right foot. This was acknowledged by the IME examiner. Thus, I must attribute a majority of Mr. Chase's difficulties in achieving healing of the right foot ulceration to the residuals of the original crush injury. There may be other factors or causes, but it is fairly obvious that the major contributing cause of his ongoing medical difficulties relating to the right foot are the neurological and vascular deficits caused by the 1995 crush injury."
At the respondents' request, Dr. Richard Steliga examined the applicant and submitted a report dated January 11, 2008. Dr. Steliga diagnosed: "Bilateral pedal neuropathy aggravated on the right by 1995 crush injury on the right, alcoholic peripheral neuropathy on the right, and possible diabetic neuropathy." Dr. Steliga opined that the left foot was not as severely affected as the right, and that the neuropathy on the left was almost certainly due to the applicant's alcoholism and possible diabetes. Dr. Steliga further opined:
"It is also clear that, since the neuropathy is denser on the right as compared to the left, the crush injury and the treatment after the incident of January 13, 1995, has impacted the severity of the neuropathic dysfunction on the right.
It is, therefore, clear that the neuropathy of the right foot is in part due to the crush injury, and partly due to alcohol, and possibly may be deepened by an occult diabetic state.
The right sided condition is aggravated and accelerated by the work-related incident of 1995, and treatment has been reasonable and necessary.
I am in agreement in this regard with Dr. Towne. There is some impact from his old work-related injury, but the major impact appears to be secondary to his alcoholism and possible diabetes."
As the administrative law judge noted in her decision, it was stated in Lange v. LIRC, 215 Wis. 2d 561, 568, 573 N.W.2d 856 (1997), that:
"We agree with this implicit conclusion. A work-related injury that plays any part in a second, non work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable." (Emphasis added).
After acknowledging this language from Lange, the administrative law judge found the applicant's right toe ulcer was not work-related. She described Dr. Steliga's opinion as being that the 1995 crush injury "...had very little impact on the applicant's current right foot condition."
However, the above-quoted excerpts from Dr. Steliga's written opinion demonstrate that he does believe the applicant's current right toe ulcerative condition is "in part" due to the 1995 crush injury; that the current condition "is aggravated and accelerated by the work-related incident of 1995;" that the crush injury "has impacted the severity of the neuropathic dysfunction right;" and that there "is some impact from his old work-related injury."
Therefore, the degree to which the 1995 crush injury has affected the formation and persistence of the right toe ulcer is a medical issue about which there is some disagreement. However, all the physicians of record describe a causal nexus between the 1995 injury and the applicant's ongoing right foot condition. It is therefore evident that the applicant would not have suffered the same injury to his right toe to the same extent, absent the neuropathic dysfunction caused by the 1995 work injury. Of all the medical opinions submitted, Dr. Gosset's opinion is accepted as the most accurate. He opined that the 1995 crush injury was the primary factor in the applicant's overall difficulty in achieving healing of his right foot.
The administrative law judge's characterization of the applicant's barefoot walk on the beach as constituting "a negligent or intentional act" and an "intervening cause," is rejected. While there is some risk of injury from walking barefoot on the beach, it is a commonly-accepted practice that normally does not result in injury. The applicant's walk on the beach is not analogous to the worker's behavior in Kill v. Ind. Comm., 160 Wis. 549, 152 N.W. 148 (1915), wherein that individual sustained an injury to his wrist caused by negligently participating in a boxing bout nine days after sustaining a work-related cut to the same wrist. The other two cases cited in the administrative law judge's decision are fully consistent with the reasoning found in Lange, and with allowance of compensation in the applicant's case.(2)
Accordingly, the commission finds that the applicant sustained a compensable re-injury in the form of a right great toe neuropathic ulcer. The actual date on which the ulcer developed is not specified in the record, but the record does indicate that the first day of missed work attributable to the ulcer was December 9, 2002, which is therefore the date of injury. The applicant claims temporary total disability from December 9, 2002, through the date of hearing on October 30, 2008. However, in a clinic note dated April 18, 2008, Dr. Gosset recorded the applicant's complaint that he had not always been able to stay off his right foot because "he is a cook requiring standing for prolonged periods of time." This leads to the inference that the applicant may have been working for some period or periods prior to seeing Dr. Gosset on that date. Accordingly, the matter will be left interlocutory to allow opportunity for new hearing with respect to the issue of what amount of temporary disability is due between the dates of December 9, 2002 and October 30, 2008.(3)
With regard to the issue of medical expense, the WKC-3 submitted by the applicant is unclear, because it lists medical expense paid by "GAMP Insurance," and does not list specific amounts due to any particular provider. It does document and list the amount of $448.50 due the applicant for medical mileage expense. Accordingly, the matter will also be left interlocutory to allow the parties the opportunity to clarify and document the exact amounts of compensable medical expense, if any, that remain due to the providers; as well as any reimbursement due nonindustrial carriers.
The applicant may require additional medical treatment and/or sustain additional disability, and therefore jurisdiction will be reserved for same.
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 reimbursement for medical mileage expense the sum of Four hundred forty-eight dollars and fifty cents ($448.50).
Jurisdiction is reserved for such further Findings and Orders as may be warranted, consistent with the above findings.
Dated and mailed July 27, 2009
chaseda : 185 : 5 ND § 3.38
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission's reversal of the administrative law judge's decision was based on analysis of the written medical opinions, and undisputed facts, and did not involve any question concerning the credibility of the applicant's testimony given at the hearing held on October 30, 2008.
cc:
Attorney Robert C. Angermeier
Attorney David Topczewski
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