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

JULIE L HAESE, Applicant

COUNTY OF ROCK, Employer

COUNTY OF ROCK, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-014106


The applicant filed her application for hearing seeking compensation for a back injury on June 30, 2008. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on October 8, 2008. Prior to the hearing, the self-insured employer conceded jurisdictional facts, an average weekly wage of $546.80, and that the applicant sustained a compensable low back injury on April 20, 2007. The employer has paid temporary disability from the date of injury through June 8, 2008, permanent partial disability at 20 percent to the body as a whole, and various medical expenses. At issue is the applicant's entitlement to additional temporary total disability from June 8 to October 8, 2008 (the date of hearing).

On December 22, 2008, the ALJ issued his decision in the applicant's favor. The employer has filed a timely petition for commission review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Background and facts.

The applicant, a nursing assistant, sustained a compensable back injury on April 20, 2007, while transferring a patient. She ultimately required a fusion from L5 to S1 in October 2007. As stated above, the issue in this case is the applicant's entitlement to temporary total disability from June 6 to October 8, 2008 (the date of hearing).

This issue arises from a disagreement between the parties' medical experts. The applicant's treating doctor, Dr. Sturm, kept the applicant off work through the date of hearing while she underwent physical therapy and work hardening. The employer's medical examiner, Dr. Weiss, opined the applicant reached an end of healing and could return to work with restrictions as of May 27, 2008. The employer also argues that, even if the applicant remained in a healing period after that date, its temporary total disability liability ended because it offered the applicant work within her restrictions as of July 7, 2008.

The relevant medical record may be quickly recited. The applicant's treating surgeon, Christopher Sturm, M.D., wrote a note on February 13, 2008, following the lumbar fusion, which kept the applicant off work until "cleared by neurosurgery."

On April 24, 2008, Dr. Sturm opined the applicant could return to work on May 7, 2008, subject to the very light restrictions of light lifting only up to 2 pounds and

May work 2hrs/day. No prolonged flexion/extension. No repetitive bending/twisting at waist. Must change positions frequently.

Then, on April 28, 2008, before those restrictions even took effect, Dr. Sturm rescinded them, stating:

Cont'd off work until additional therapy/massage therapy has work [with] patient to address the pts. ability to put on socks & shoes. Will reassess at next appt.

You will need to be off work until: cleared by neurosurgery.

On June 11, 2008, Dr. Sturm wrote a treatment note indicating that the applicant had been having very slow improvement in low back pain and left leg pain. He noted physical therapy provided little improvement, that she was not taking narcotics, but that she experienced back pain which she thought was muscle related. She had difficulty holding herself in a flexed position. She had no radicular pain, but a subjective dragging feeling in the left foot. Dr. Sturm's impression was continued low back pain with slow improvement postoperatively. he added:

...I have discussed with her that a functional capacity examination may be requested in the next few months. This would be difficult for her to do at this point. I would recommend physical therapy prior to this.

Between June and August 2008, the applicant underwent physical therapy twice a week.

On August 20, 2008, Dr. Sturm again stated the applicant needed to remain off work until cleared by neurosurgery because:

1 yr. s/p PLIF[(1)] referred to work conditioning, will reassess after completion.

The applicant then underwent a functional capacity evaluation on August 29, 2008. The physical therapist administering the test stated it yielded a valid result. The therapist noted the applicant had been off work since the injury, and "presents today with orders to evaluate and treat for Work Hardening to establish highest level of functional ability/return to work."

The physical therapist also opined the applicant could not return to work as a nursing assistant, that her abilities fell between the light and medium work levels, that she had limited tolerance to mid level and elevated reaching, and that she should not crouch. The therapist recommended she try work hardening with a goal of a "good" or better fitness level, and a medium work level.

After the functional capacity evaluation, the applicant began work hardening at Mercy Health Mall on or about September 4, 2008. She underwent one session, then fractured her left foot, and so she could not continue. The applicant then saw Dr. Reinicke, or his assistant, on September 30, 2008, and was told to go to occupational medicine on October 15, 2008.(2) As of the date of hearing on October 8, 2008, that was her plan. She did not know how long the work hardening would last.

Amy Spoden, apparently an employee of the employer, contacted the applicant about work as an activity specialist on or about July 7, 2008. The job Ms. Spoden offered involved reading to patients three days a week. However, the applicant declined the job because she had not been released to work by her doctor.

At the time of the job offer, of course, Dr. Sturm had taken the applicant off work completely until cleared by neurosurgery. The employer did not contact Dr. Sturm to see if he would revise his restrictions to allow her to do the job offered by Ms. Spoden. The applicant herself spoke with Dr. Sturm's physician's assistant, Kelly Casper, but that conversation did not result in a release to work. Certainly, Dr. Sturm never formally released the applicant to return to work.

The employer's attorney told the ALJ at the hearing that the job offered by Ms. Spoden was based on the work restrictions set by the employer's examiner, Dr. Weiss, discussed below. The applicant testified she did not know if the job was within Dr. Weiss' restrictions. She did acknowledge that Ms. Spoden told her the employer would accommodate her restrictions.

The most recent practitioner's report from Dr. Sturm is dated September 12, 2008. He indicated the applicant's healing period extended through at least October 8, 2008, and that she required therapy and medication. He did not know when she could return to work under either temporary or permanent restrictions. He did rate permanent partial disability at 20 percent, citing the administrative code minimum for a two-level fusion procedure.(3) He stated expected future treatment included follow-up office visits, x-rays, and work conditioning.

The employer relies on the reports of its medical examiner, Stephen Weiss, M.D., who initially examined the applicant on September 18, 2007. At the time, he diagnosed pre-existing lumbar degenerative disc disease, aggravated by the April 20, 2007 work incident, with L3-4 and L4-5 radiculopathy. He thought then she would have been able to return to work as of May 2007 had it not been for intervening cancer treatment, and that she should reach an end of healing in about five weeks (six weeks after an epidural steroid injection performed a week earlier.)

A few weeks later, in a note dated October 2007, Dr. Weiss wrote:

I note that Dr. Sturm describes [the applicant's] left lower extremity as becoming increasing[ly] weaker. I also noted weakness when I examined her, but [the applicant] informed me that she had noticed significant improvement with regards to her leg pain as a result of epidural steroid injections. With his improvement in mind,, it was my opinion that she would continue to improve in terms of her weakness with yet another epidural injection, if necessary. Unfortunately, Dr. Sturm's report of increasing weakness cannot be ignored, and if this is the case, then I agree completely with Dr. Sturm's recommendation regarding surgery. [Underlining in original.]

The most recent report Dr. Weiss, M.D., is dated May 27, 2008, following an examination on May 19, 2008. He reported that she had undergone a L4-S1 disc excision with fusion since his last report, that her pain had improved, and that while she continued to have back pain, her previous radicular complaints had resolved.

In his May 2008 report, Dr. Weiss also noted the applicant was seven months post fusion and opined she had reached an end of healing. He acknowledged her continuing symptoms were the result of her work injury and resulting surgery. He thought she could perform full time light duty activities with lifting limited to 10 pounds frequently and 20 pounds occasionally. He stated further that the applicant should not do any lifting from below the mid-thigh level or deep or prolonged bending. He also rated permanent partial disability at 20 percent to the body as a whole.

2. Discussion.

a. Which doctor is more credible?

The most important aspect of this case is the conflict between the medical opinions of Dr. Sturm and Dr. Weiss about the applicant's ability to work from June 6, 2008, to the date of hearing, October 8, 2008. If Dr. Sturm is correct that the applicant remained in a healing period to at least the date of hearing and should not work while she underwent work hardening and physical therapy, then the applicant is entitled to temporary total disability during that period. In that case, Dr. Weiss's opinion that the applicant had reached an end of healing and could work within restrictions by May 2008 should be rejected. Indeed, the fact that the employer may have offered to accommodate Dr. Weiss's (rejected) restrictions would be irrelevant.

"If there are contradictory medical reports, it is for [the commission] to decide if one expert's testimony is more persuasive than another's." Conradt v. Mt. Carmel School, 197 Wis. 2d 60, 69 (Ct. App., 1995). The presiding ALJ weighed the opinions of the two doctors and found Dr. Sturm's to be most credible. The ALJ reached this conclusion in part because Dr. Sturm directed the applicant's post surgical care over several months, which the ALJ believed put him in a better position than Dr. Weiss to evaluate the applicant's condition.

The employer correctly notes that Wisconsin worker's compensation law does not presumptively favor a treating physician's opinion. Indeed, the appeals court has specifically rejected such a presumption. Conradt, at 197 Wis. 2d 69. Discussing that holding, however, the commission has previously noted:

In Conradt v. Mt. Carmel School, 197 Wis. 2d 60 (Ct. App., 1995), the court rejected establishing a presumption in favor of treating doctors, to prevent the commission from disregarding the opinion of the treating doctor in favor of a one-time examiner absent "good and substantial grounds." Conradt, at 197 Wis. 2d 66-70. But nothing in Conradt prevents an ALJ from crediting a treating doctor, if the ALJ so chooses, because of his greater familiarity with the applicant's case. Conradt simply holds the ALJ is not required to make that presumption.

Krolikowski v. Divine Savior Nursing Home, WC claim no. 1997012872 (October 31, 2000).

In this case, the ALJ was not alone in giving significant consideration to Dr. Strum's familiarity with the applicant's condition based on his day-to-day treatment. In his report dated October 11, 2007, the employer's examiner, Dr. Weiss, changed his own opinion regarding surgery based largely on Dr. Sturm's observations during his ongoing treatment.

Beyond that, the ALJ noted the applicant appeared to him to be deconditioned and in need of work hardening. The employer suggests the ALJ is therefore making his own medical opinion, but commission cannot disagree. When one doctor says a worker can return to work with no further therapy or work hardening, but another says the worker needs more therapy and work hardening before returning to work, the factfinder may reasonably weigh the two opinions based on its view of the worker's current condition.

Moreover, as the ALJ noted, the medical record documents the applicant's severe deconditioning, supporting the decision to keep her off work to undergo therapy and work hardening:

In addition, the physical therapist conducting the functional-capacities evaluation recommended work-hardening prior to the resumption of employment, adding further support to Dr. Sturm's opinion.

After carefully considering the evidence, the commission, like the ALJ, credits the opinion of Dr. Sturm over that of Dr. Weiss. It therefore concludes that the applicant did not reach a healing plateau in May 2008, eight months out from her two-level fusion as Dr. Weiss opined, but remained in a healing period and unable to return to work until the date of the hearing as Dr. Sturm opined.

b. The job offer.

What of the job offer made by Ms. Spoden in July 2008? Again, the commission credits the opinion of Dr. Sturm, who stated on August 20, 2008 that that the applicant should remain off work, and indicated in his September 12, 2008 practitioner's report that he could not yet determine when the applicant would be able to return to work with even temporary restrictions. Therefore, the work offer based on Dr. Weiss's restrictions made in July 2008 cannot serve as a basis for ending the employer's liability for temporary total disability compensation.

Wisconsin Stat. § 102.43(9) provides:

102.43(9) Temporary disability, during which compensation shall be payable for loss of earnings, shall include the period during which an employee could return to a restricted type of work during the healing period, unless any of the following apply:

(a) Suitable employment that is within the physical and mental limitations of the employee is furnished to the employee by the employer or some other employer. For purposes of this paragraph, if the employer or some other employer makes a good faith offer of suitable employment that is within the physical and mental limitations of the employee and if the employee refuses without reasonable cause to accept that offer, the employee is considered to have returned to work as of the date of the offer at the earnings that the employee would have received but for the refusal. In case of a dispute as to the extent of an employee's physical or mental limitations or as to what employment is suitable within those limitations, the employee may file an application under s. 102.17 and ss. 102.17 to 102.26 shall apply.

...

The department's interpretative footnote states:

191This subsection was created by 2005 Wis. Act 172, effective April 1, 2006, and codifies an employer's liability for benefits to an employee where there is a medical release of the employee for restricted work in the healing period, as found in Rule DWD 80.47 and as interpreted in Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623 (1997). "Misconduct" terminations of employment, in general, continue to not be a defense to liability for temporary disability benefits. This subsection now establishes 3 exceptions to that general rule. The exceptions are ... the employee's refusal to suitable employment without reasonable cause. If there is a dispute as to which of competing medical limitations are applicable to an employee under par. (a), the department retains the current practice of determining the appropriate restrictions and liability resulting from the application of such restrictions. This subsection applies to injuries occurring on and after April 1, 2006.... [Emphasis supplied.]

DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007 (WKC-P-1 (R.03/2008)).

In other words, an employer remains liable for temporary disability during a worker's healing period even though the worker can return to restricted employment. However, if an employer offers work within the worker's restrictions during the healing period, but the worker refuses the work without reasonable cause, the worker is considered to have returned to work as of the day of the offer at the wages he or she would have received. If a dispute arises as the physical restrictions, it is to be resolved by an ALJ at the hearing.

That is precisely the course followed in this case. Regarding the applicant's ability to return to work, there was a dispute as to which of the competing opinions of Drs. Strum and Weiss actually applies to the applicant. A hearing was held on the matter, and the ALJ, and now the commission, have found Dr. Sturm's opinion to be more credible than Dr. Weiss's. Since Dr. Sturm has opined the applicant was unable to work from the date of surgery to the date of hearing while she underwent treatment including work hardening, the work offered by Ms. Spoden--whatever its terms and conditions--is not "within the physical and mental limitations of the employee" under Wis. Stat. § 102.43(9)(a).

3. Award.

The ALJ's calculation of the temporary disability compensation due is not in dispute and is restated in substance. For her temporary total disability from June 6, 2008 to October 8, 2008, the applicant is entitled to 17 weeks and 4 days at the rate of $364.54 per week, or a total of $6,440.21, all of which has accrued. The applicant agreed to the direct payment of an attorney fee, set at 20 percent of the additional amount awarded, or $1,288.04. The fee, plus costs of $31.04, shall be paid to the applicant's attorney within 30 days. The remainder, $5,121.13, shall be paid to the applicant within 30 days.

Because the applicant had not yet reached an end of healing as of the date of the hearing, this matter is left interlocutory to permit orders and awards regarding disability compensation and medical expense as may arise after the hearing.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 21 days of the date of this order, the self-insured employer shall pay all of the following:

1. To the applicant, Julie Haese, Five thousand one hundred twenty-one dollars and thirteen cents ($5,121.13) in disability compensation.
2. To the applicant's attorney, James A. Meier, the sum of One thousand two hundred eighty-eight dollars and four cents ($1,288.04) in attorney fees and Thirty-one dollars and four cents ($31.04) in costs.


Jurisdiction is reserved for such further orders and awards as are warranted and consistent with this decision.

Dated and mailed September 8, 2009
haeseju.wrr : 101:5 ND 5.10

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

On appeal, the employer contends the ALJ erred by concluding that the employer failed to prove it offered work within the restrictions of its medical examiner, Dr. Weiss. On this point, the employer notes that the applicant testified that Ms. Spoden told her the employer would accommodate her restrictions, whatever they were. However, the ALJ also found that treating doctor Sturm had taken applicant off work completely at the time Ms. Spoden made the offer. He went on state that he found Dr. Sturm's complete release from work to be more credible than the work restrictions set by Dr. Weiss. Since the commission and the ALJ have found the opinion of Dr. Sturm to be more credible regarding the applicant's ability to return to work, the fact that the employer might have accommodated Dr. Weiss's restrictions does not provide a defense to temporary disability liability.

The employer also contends the ALJ erred by holding that the employer was required to obtain the opinion of treating physician Sturm before offering work, professing itself altogether mystified by that finding. The ALJ did observe that the employer failed to contact Dr. Sturm to learn if he would release the applicant to the job offered by Ms. Spoden. Such a contact, of course, could have strengthened the employer's case if it expected to prevail in the event the ALJ credited Dr. Sturm's opinion. Again, proof that the employer would accommodate the restrictions set by its own examiner (here, Dr. Weiss) does not establish a work offer that permits the reduction of temporary disability compensation under Wis. Stat. § 102.43(9) where the opinion of the treating doctor (here, Dr. Sturm) is more credible.

The employer also questions the ALJ's observation that there was no evidence of the wages for the job offered by Ms. Spoden. Again, since Dr. Sturm's opinion regarding the applicant's ability to work is more credible than Dr. Weiss's, this point is moot. Assuming for the sake of argument that Dr. Weiss's restrictions had been more credible, however, evidence of the wage would have been necessary under Wis. Stat. § 102.43(9)(a) if the employer intended to argue that the applicant should be "considered to have returned to work as of the date of the offer at the earnings that [she] would have received but for the refusal."

The employer also is troubled by the ALJ's observation that the employer did not contend the applicant's left foot fracture in September 2008 was a personal ailment that could result in the suspension of the temporary disability benefits. The employer characterized this finding as a "wonderment," suggesting that the ALJ must have failed to understand that Dr. Weiss had already found the applicant's healing had ended in his May 2008 report that pre-dated the September 2008 injury. The employer also suggests that is no legal basis for an argument that benefits should be suspended based on a personal ailment.

However, the potential effect of disability caused by a purely personal ailment has been the subject of prior commission and appellate court decisions. Raelene Anderson v. Servicemaster Professional, WC Case No. 2002-025737 (LIRC, April 4, 2005) and ITW Deltar v. LIRC, 226 Wis. 2d 11, 19 (Ct. App. 1999). See also 4 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 80.03[5] (LexisNexis 2008). While the personal ailment issue would not have arisen if the ALJ had accepted Dr. Weiss's opinion on the end of healing, again, the ALJ adopted Dr. Sturm's opinion. The ALJ noted the personal ailment issue in an attempt to address thoroughly all the potential issues pertaining to the applicant's claim that arose at the hearing--to tie up loose ends, in other words--a practice that the commission does not regard as a wonderment.

Finally, the ALJ noted prior commission decisions suggesting that an employer would be liable for temporary disability based on worker's good faith reliance on his or her treating doctor's work restrictions in rejecting job offers, even if an employer-retained medical expert gave reasonable, but less limiting restrictions. Burns v. Cargill, WC claim no. 2003-038773 (LIRC, May 23, 2006), Heredia v. Superior Linen, WC claim no. 94043118 (LIRC, October 3, 1996). Continued reliance on those cases, however, may be questionable in light of the subsequent(4) enactment of Wis. Stat. § 102.43(9)(a), which provides that a dispute as to the extent of an employee's physical or mental limitations is subject to hearing and decision by an ALJ and the commission. Because treating doctor Sturm's opinion is more credible than examiner Weiss's, however, reliance on Heredia and Burns in this case is in any event unnecessary.

 

cc: Attorney James A. Meier
Attorney Jerome A. Long


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Footnotes:

(1)( Back ) This is reference to the fusion surgery.

(2)( Back ) On a return to work or school form, the doctor circled the word "work" in a sentence saying the applicant "is able to return to work/school on" and then added the words "10/15/08 Occ Med."

(3)( Back ) A doctor may estimate permanent disability based on the administrative code minimums before an end of healing. Susan King v. Department of Transportation, WC Claim no. 2001-007515 & 2003-012619 (LIRC, April 27, 2005).

(4)( Back ) Heredia was decided before the enactment of Wis. Stat. 102.43(9), and Burns involved an injury before the provision became effective on April 1, 2006.

 


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