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

JOHN BUSCHMAN, Applicant

KEIDING INC, Employer

TRAVELERS CASUALTY & SURETY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-027293


Keiding, Inc. and Travelers Casualty & Surety 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 October 17, 2007. 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 of April 23, 2003.

On May 29, 2009, the commission ordered the taking of additional evidence pursuant to Wis. Stat. § 102.18(3). That additional evidence was received, together with supplemental briefing by the parties, and the matter is back before the commission for decision.

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:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is February 26, 1959, began his employment with the employer in December 2002. He performed machine construction and maintenance duties. On April 23, 2003, he sustained a conceded low back injury when he lost control of a 12-inch pipe that he was installing overhead, and twisted his back as he grabbed the pipe to keep it from falling. The applicant was subsequently referred to Dr. Arvind Ahuja, who on September 5, 2003 performed a two-level laminectomy/fusion with instrumentation at L4-5 and L5-S1. The surgery caused a cerebrospinal fluid leak that resulted in Dr. Ahuja performing a second surgical procedure on September 24, 2003. This consisted of an additional laminectomy and attempt to repair the fluid leak. The fluid leak repair was initially unsuccessful, and the applicant again developed post-surgical headaches.

Dr. Ahuja wanted to perform a third surgery but the applicant had lost confidence in him, and he began treating with Dr. Shekar Kurpad on October 2, 2003. Dr. Kurpad noted on October 30, 2003, that the applicant was completely free of the spinal headaches, but continued to experience a significant amount of low back pain for which he was on large doses of narcotic medication. Dr. Kurpad continued treatment with narcotic medication, physical therapy and pain management. He ordered a CT myelogram that he indicated showed significant epidural stenosis and arachnoiditis. A bone growth stimulator was implanted in the applicant's back at the time of his fusion, and Dr. Kurpad removed that on or about March 18, 2004. Dr. Kurpad did not recommend additional surgery. In an August 2004 WKC-16, he opined that the applicant was "permanently disabled for an indefinite period of time." Respondents conceded liability for the work injury and resulting surgeries.

For evaluative purposes, Dr. Kurpad referred the applicant to Dr. B. Kopell, a neurosurgeon. Dr. Kopell opined that the applicant's low back pain was nociceptive (resulting from injury), and indicated placement of an intrathecal catheter for dispensing morphine might be helpful.

On October 13, 2004, Dr. Kurpad drafted a letter indicating he had last seen the applicant on September 2, 2004, and at that time the applicant indicated his pain was about the same, if not slowly getting worse. Dr. Kurpad indicated the applicant had undergone a functional capacity evaluation (FCE), and based on the results of that evaluation and his own treatment, he believed the applicant was "permanently and totally disabled and will be unable to tolerate a job in any work category secondary to his low back pain and his arachnoiditis." The FCE had been performed on May 10, 2004, and indicated that the applicant required use of a cane for ambulation, frequent change in position, and avoidance of bending, twisting and squatting. The physical therapist evaluator also opined that it was "questionable whether [the applicant] could tolerate a job in any work category secondary to continuing low back pain and frequent change in position required due to tolerate functional positions."

On January 12, 2005, the applicant had an intrathecal pump successfully implanted at Froedtert Pain Management Center. On October 10 and 11, 2005, he underwent a second FCE. The physical therapist evaluator indicated the applicant was able to tolerate sitting work without limitation, that he had good balance, that he demonstrated no limitation to sitting or standing tolerances, but that he should be able to perform position changes as needed. The physical therapist indicated the applicant could perform light work, defined as exerting full force up to 20 pounds occasionally, and up to 10 pounds frequently. Also noted were the occasional liability to do overhead work and crouch or squat, and the ability to frequently walk, kneel, crawl, or rotate in a sitting position. The applicant's ability to stair climb was rated as frequent, but he was precluded from climbing ladders. The recommendation was for light work on an eight-hour-per-day, five-day-per-week basis, with position changes as needed, and decreased trunk rotation.

At respondents' request, Dr. Richard Karr examined the applicant on August 15, 2005. Dr. Karr concurred with the finding of a work-related low back injury resulting in the surgeries, but opined that "behavior factors" were influencing the applicant's current pain and disability complaints. He noted positive Waddell signs of overreaction, contradictory supine versus straight leg raising pain, and pain complaint with simulated spine rotation. Dr. Karr assessed 30 percent permanent functional disability with restrictions of maximum 20 pounds lifting, maximum repetitive lifting/carrying of 10 pounds, no repetitive or prolonged bending in excess of 35 degrees, no work on ladders or unprotected heights, and the latitude to change positions as needed. He opined that full-time work was permissible.

Based on this medical history, the vocational expert opinions vary from permanent total disability to 55 percent permanent partial disability, depending primarly upon whether one accepts the 2004 FCE restrictions or the 2005 FCE restrictions.

Pursuant to the commission's remand order, an additional medical opinion was secured from Dr. Jerome C. Ebert, but Dr. Ebert refused to subject himself to cross-examination as required under Wis. Stat. § 102.17(1)(d). Dr. Ebert also refused to order the additional FCE ordered by the commission. Therefore, Dr. Ebert's opinion has not been entered into the record and was not considered by the commission.

Additional medical evidence was submitted from Dr. Thomas A. Lyons, which included another FCE performed on April 30, 2009. Dr. Lyons recounted the medical history stemming from the work injury and opined:

"This is an unfortunate situation, in that, Mr. Buschman has progressed to a state of chronic pain and is still on a significant number of narcotics.

He also continues to exhibit a significant number of nonorganic signs, implicating, at the very least, symptom exaggeration.

His complaints are far out of proportion to any neurological findings, and, in fact, he has essentially a normal neurological examination aside from the sensory findings which are subjective. Therefore, in my opinion, beyond a reasonable degree of medical probability, his findings do not support his claim or the claim of total disability in this setting. My opinion is also supported further by an imaging examination (MRI) that rules out any compressive or organic lesion.

Putting all this together, it is my professional medical opinion that this examinee is able to perform duties in the light medium category, namely lifting 30 pounds maximum with frequent lifting and/or carry of objectives weighing up to 20 pounds. From the most recent Functional Capacity Evaluation, I agree that his parameters fall below his 50-pound weight limit of his current job description, but, in my opinion, beyond a reasonable degree of medical probability, he should be able to perform light medium work."

The FCE performed on April 30, 2009, is not entirely consistent with Dr. Lyons' opinions. It indicates the applicant is capable of light work involving occasional lifting of approximately 25 pounds, except for above-shoulder lifting which is limited to 10 pounds. The evaluator limited the applicant to sitting for 35 minutes before requiring a break, and to a maximum of four hours sitting in one work day. Standing is limited to 15-minute durations before requiring a break, and a maximum of two hours in one work day. The work day itself is limited to six hours with regular breaks. The evaluator opined that the applicant provided a full effort resulting in a valid representation of his physical capabilities.

Dr. Lyons noted that the FCE had been performed on April 29, 2009, and that the evaluator placed the applicant in the light duty, 25-pound-lifting category. Dr. Lyons provided no direct opinion regarding his assessment of the FCE results.

After review of Dr. Lyons' opinion and the April 2009 FCE, additional vocational expert opinions were also submitted. The applicant's vocational expert, Karrie A. Grady, opined that based on Dr. Lyons' restrictions and the other relevant factors, the applicant could perform light and select medium work resulting in a loss of earning capacity of between 55 and 65 percent. Based on the results of the FCE, Ms. Grady assessed 60-70 percent loss of earning capacity if the applicant is able to work an eight-hour day and permanent total disability if he is only able to work a six-hour day.

The record provides a large body of evidence that includes significant divergence of opinion concerning the applicant's physical capacities, and concerning the credibility of his symptom complaints. Dr. Lyons failed to comment on the April 2009 FCE's limitation to a six-hour work day, or on the significant sitting and standing limitations also set forth in that FCE. Dr. Lyons believed the applicant had exaggerated his symptoms, but nevertheless assessed substantial physical restrictions. Dr. Karr's opinion is essentially consistent with Dr. Lyons' opinion, while Dr. Kurpad assessed substantially more severe disability.

The applicant underwent major surgery involving a two-level fusion, and has not had a good result. He takes narcotic pain medication, and even under Dr. Lyons' restrictions, should not lift more than 20 pounds on a frequent basis. The October 2005 FCE also limited the applicant to 20-pound lifting, but on an occasional basis. The sitting and standing limitations set forth in the April 2009 FCE are consistent with the May 2004 FCE, but not with the October 2005 FCE.

The commission infers from all the evidence presented that the applicant has on occasion exaggerated his symptoms, but not to the extent that the work day restrictions assessed in the April 2009 FCE are invalidated. The FCE evaluator credibly opined that the applicant put forth a valid effort, and Dr. Lyons' failure to dispute that evaluator's limitation to a six-hour work day is inferred to constitute acceptance of that limitation. Furthermore, Dr. Kurpad's opinion is consistent with the April 2009 and May 2004 FCE's, and with the applicant's continued need for narcotic medication to relieve his low back pain.

In summary, from the various opinions submitted, the commission finds that the applicant is limited to light duty, part-time positions with a maximum six-hour work day. He could lift approximately 25 pounds on an occasional basis, and up to 20 pounds on a frequent basis. The sitting and standing restrictions set forth in the April 2009 FCE are accepted as credible.

The applicant is currently 50 years old and a high school graduate. In 1986, he completed a course in electrical wiring at Milwaukee Area Technical College. He has minimal computer skills. The Department of Vocational Rehabilitation evaluated the applicant for retraining, but despite indicating the applicant was cooperative, the DVR counselor could find no retraining program he believed would be suitable for the applicant in his circumstances. The applicant has worked in mechanical maintenance jobs throughout almost his entire work life, and was earning approximately $21.50 per hour when he was injured in April 2003. He had also begun his own limousine service business in 2002, but had to close down that business after his injury because he could no longer tolerate the extended driving. Based on the credible physical restrictions and other relevant factors, the commission finds that the applicant has presented a prima facie case for permanent total disability. Michael Campbell's mere listing of suggested job categories falls far short of rebutting that prima facie case. The listings do not demonstrate "...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.

Accordingly, the commission finds that the work injury of April 23, 2003, caused the applicant to become permanently and totally disabled as of October 13, 2004. The matter will be remanded to the department for calculation of the accrued and unaccrued compensation due the applicant, together with attorney fees and costs. These calculations shall take into account an updated review of social security disability income payments, pursuant to Wis. Stat. § 102.44(5).

The applicant shall be reimbursed for out-of-pocket medical expense in the amount of $1,505.13, and for medical mileage expense in the amount of $2,633.71. Reasonably required medical expense is also due to the Medical College of Wisconsin in the amount of $210.00; and as reimbursement to Comp Care in the amount of $3,929.63.

Jurisdiction will be reserved for such further findings and orders as may be necessary.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutor 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 pay to the applicant as reimbursement for out-of-pocket medical and medical mileage expense the total amount of Four thousand one hundred thirty-eight dollars and eighty-four cents ($4,138.84); to Comp Care reimbursement in the amount of Three thousand nine hundred twenty-nine dollars and sixty-three cents ($3,929.63); and to the Medical College of Wisconsin the sum of Two hundred ten dollars ($210.00).

The matter is remanded to the department for updated calculation of compensation due for permanent total disability, together with attorney fees and costs in accordance with the above findings. Payments will be due within 10 days of completion of the department's calculations.

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

Dated and mailed September 8, 2009
buschjo : 185 : 5 ND § 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc: Attorney Gordon R. Leech
Attorney John A. Griner IV


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