BRIAN D JOHN, Applicant
REINHART FOOD SERVICE LLC, Employer
ACE AMERICAN INSURANCE CO, Insurer
Reinhart Food Service, LLC and Ace American Insurance 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 January 20, 2009. The applicant submitted an answer and cross-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 occupational back injury of June 16, 2006. In their petition, respondents argue for a shorter period of temporary disability. Respondents additionally assert that the applicant voluntarily terminated his employment with the employer, but concede 16 percent loss of earning capacity should the commission find that the applicant's employment was terminated by the employer. In his cross-petition, the applicant argues for a lengthier period of temporary disability. The applicant additionally asserts that he should receive a higher percentage of loss of earning capacity. Both sides agree that the department erred in computing the award made by the administrative law judge.
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 affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is May 29, 1971, was employed as route delivery driver for the employer, a wholesale foods distributor. The work involved daily lifting of anywhere from 800 to 1300 boxes weighing from 5 to 50 pounds apiece. He sustained a conceded occupational low back injury with a stipulated date of injury on June 16, 2006.(1) Temporary total disability was conceded and paid, from June 16, 2006 to August 17, 2006, less short-term disability payments. Respondents stopped paying temporary disability on that latter date based on the opinion of Dr. Stephen Weiss, given in his medical report solicited by respondents on August 27, 2007. The applicant received the last of three epidural steroid injections from Dr. Navtej Purewal on August 17, 2006, and this is the reason given by Dr. Weiss to explain his choice of that date for a healing plateau.
The applicant treated for his back with Dr. Stephen Nord beginning on June 29, 2006, and a lumbar spine MRI performed at Dr. Nord's request on July 7, 2006, was read by the radiologist as showing a disc protrusion at L4-5 with impingement on the right L4 nerve root. Dr. Nord referred the applicant to Dr. Purewal for the epidural injections. On November 2, 2006, Dr. Nord completed a WKC-16-B that found direct work causation for the L4-5 disc and assessed five percent permanent partial disability. Dr. Nord also indicated that further treatment was expected including "epidural, pt., ? of surgery" (which is inferred to state possible additional epidural injections, physical therapy, and the possibility of surgery). Dr. Nord left unanswered the questions that asked when the applicant could return to work with temporary or permanent limitations. Respondents argue in their petition that because Dr. Nord assessed permanency in his WKC-16-B of November 2, 2006, the applicant's healing plateau was reached on that date.
The applicant had been off work and receiving short-term disability payments since June 16, 2006, but he returned to limited duty with the employer in November of 2006, and continued to work in that capacity until late in January of 2007. There is a dispute over whether the applicant stopped working for the employer because the employer told him they had no more light-duty work available for him, or whether the applicant simply quit the employment. However, the employer offered no rebuttal testimony to the applicant's credible testimony that his supervisor told him there was no more work for him. Accordingly, the credible inference is that the employer terminated the applicant's employment in January of 2007. The applicant collected unemployment benefits and subsequently found temporary employment, but as of the hearing date he was still looking for full-time employment.
After the third epidural injection on August 17, 2006, the applicant continued to treat with Dr. Purewal. On September 19, 2006, Dr. Purewal noted that the applicant's pain had been progressively worsening, and that he was off work due to the employer's inability to accommodate his 20-lb. lifting restriction. On September 20, 2006, Dr. Purewal performed a discogram and ordered a post-discogram CT scan. The radiologist read the CT scan as showing disc tears at L3-4 through L5-S1, and a disc herniation at L4-5. On September 26, 2006, Dr. Purewal examined the applicant and recorded his complaints of pain that had progressively increased and radiated into the right hip and leg over the previous three months. Dr. Purewal noted the epidural injections had provided temporary relief for the pain, and recorded the applicant's concern that he would lose his job due to Dr. Purewal's 20-pound lifting restriction. Dr. Purewal indicated the applicant's physical examination remained unchanged, and he recommended continued physical therapy and medication. He did not remove the 20-lb. lifting restriction.
The applicant saw Dr. Marcus Perry for a DOT physical on November 6, 2006, and Dr. Perry opined that the applicant was able to drive a truck, but that he should continue to treat with his pain management specialist for his back. Dr. Perry diagnosed chronic back pain with radiculopathy, and noted Dr. Purewal's 20-pound lifting restriction.
The applicant saw Dr. Purewal again on February 8, 2007, with continuing low back and radicular symptoms. Dr. Purewal gave the applicant a new prescription for a pain reliever, and indicated he would see the applicant on an "as needed" basis. The applicant did not return to Dr. Purewal.
The applicant ultimately did return to see Dr. Nord on August 20, 2007, with continuing symptoms of low back and leg pain. Dr. Nord assessed five percent permanent partial disability, but indicated he was not assessing any weight restriction at that time, and that the applicant would be followed on a "p.r.n. basis." He also wrote:
"The patient has reached a healing plateau. As he has not been seen in a long time, I would recommend that the healing plateau would be as of today's date 08/20/2007."
Dr. Nord also completed a WKC-16-B dated September 29, 2007, which assessed five percent permanent partial disability for the L4-5 disc herniation, and indicated in Box 10 of the form that the applicant could return to work as of August 20, 2007, subject only to his permanent restrictions. Also in Box 10, Dr. Nord wrote a largely illegible note, which does appear in part to indicate that there are no lifting restrictions.
Dr. Weiss examined the applicant on May 14, 2007, and submitted a report dated May 23, 2007, as well as a supplemental report dated August 27, 2007. The May 2007 report addresses an alleged low back injury date of January 24, 2006, and Dr. Weiss opined that there was only a temporary low back strain on that date. However, in the August 2007 supplemental report, Dr. Weiss opined that the applicant sustained an occupational, nonsurgical low back injury with the date of injury being June 14, 2006. Dr. Weiss does not give a specific diagnosis, but assessed two percent permanent partial disability, and as previously noted, opined that healing was reached as of August 17, 2006. He further opined that no additional medical treatment was needed after August 17, 2006, and assessed permanent restrictions limiting lifting to 55 pounds on an occasional basis and 35 pounds on a frequent basis.
It is true that Dr. Nord estimated five percent permanent partial disability in his WKC-16-B dated November 2, 2006. However, he also indicated that additional treatment, including possible surgery, was contemplated. Significantly, Dr. Nord did not indicate that the applicant was released subject to permanent limitations. Considering this evidence, it is inferred that Dr. Nord's estimate of five percent permanent partial disability given on November 2, 2006, was based on his belief that the applicant had sustained a herniated disc, and therefore would have a minimum of five percent permanency. In this instance, the permanency rating did not constitute an opinion that the applicant had reached a healing plateau.
Dr. Purewal, who also treated the applicant in the summer and early fall of 2006, noted progressively worsening symptoms, and recommended conservative treatment. Just as with Dr. Nord, there is no indication that during this time period Dr. Purewal provided a medical release that could be construed as the fixing of a healing plateau. However, on February 8, 2007, Dr. Purewal did not prescribe further treatment other than continued medication, and he indicated the applicant need only been seen on an "as needed" basis. These statements are indicative of fixing a healing plateau. Dr. Nord's assessment of a healing plateau on August 20, 2007, amounted to conjecture because as Dr. Nord noted, he had not seen the applicant for a long time. Dr. Weiss did not see the applicant until May 14, 2007, and his retrospective assessment of a healing plateau in August 2006 is poorly explained and lacks credibility. Based on the entire medical history, the commission infers that Dr. Purewal's clinic note of February 8, 2007, credibly establishes that a healing plateau was reached on that date.
The parties stipulated that the applicant had received full payment of the temporary total disability he was due for the period between June 16, 2006, and August 17, 2006. The record before the commission is unclear with regard to the exact periods of temporary total disability and/or temporary partial disability the applicant is claiming from August 18, 2006, until February 8, 2007. Therefore, the applicant shall be ordered to detail that temporary disability claim and submit it to the respondents for immediate payment, with jurisdiction to be reserved regarding any legitimate dispute over the actual number of days worked and wages earned this period. A 20 percent attorney's fee is due against this additional temporary disability.
Dr. Nord's assessment of five percent permanent functional disability is accepted over Dr. Weiss' two percent assessment. The applicant has an objectively-verified herniated disc with nerve root impingement and substantial, chronic symptoms that include radicular pain. The five percent rating is credible.
Dr. Purewal never removed his 20-pound lifting restriction. Dr. Weiss assessed lifting restrictions of 55 pounds on an occasional basis and 35 pounds frequently. Dr. Nord wrote in his clinic note of August 20, 2007, that he had "...no specific recommendations on weight restriction at this time." However, he also indicated he would follow the applicant on a "p.r.n." basis. The commission infers from this evidence, and from the fact of the applicant's lumbar disc herniation, that he is capable of lifting somewhere between 20 and 35 pounds on a frequent basis. The credible inference is that it is much closer to 20 than 35 pounds.
The applicant was 36 years old on his healing plateau date of February 8, 2007. He is a high school graduate who received an associate degree in cabinet making from Milwaukee Area Technical College, but he never performed any substantial employment as a cabinet maker. Prior to his employment with the employer he worked as a materials delivery driver for a construction company, in stocking and customer assistance at Menards, and as a hardwood floor installer. He began his employment with the employer in August 2000, and was earning approximately $23.75 per hour when injured. Since his employment was terminated by the employer, he has worked temporarily as a truck driver for a friend who owns a small trucking company, and as a painter and a siding installer for another friend who owns a small company. He continues to look for full-time work.
The applicant is relatively young and will sustain a long period of reduced earnings. He has no significant transferable skills other than truck driving and cabinet making, the latter of which was not shown to be a promising field for actual employment. There are truck driving jobs in which light lifting is all that is required, but these are generally not high-paying jobs. The applicant is excluded from a large number of medium and heavier positions due to the fact that he has a herniated disc. He lost a relatively high-paying job with the employer.
Based on all the relevant factors, the commission finds that the applicant's occupational back injury has resulted in a 21 percent loss of earning capacity. That is within 5 percent of the upper range of respondents' vocational expert's assessment of a 5 to 16 percent loss, but well below the applicant's vocational expert's assessment of a 35 to 40 percent loss.
In calculating the award made by the administrative law judge, the department mistakenly used a weekly permanent partial disability rate of $242, when in fact it should have used the correct rate of $252 per week. In addition, the department failed to merge the five percent functional assessment into the loss of earning capacity award. Of course, the actual number of weeks of permanent partial disability to be awarded pursuant to the commission's finding of 21 percent loss of earning capacity is 210 weeks, which includes the merging of the functional award into the award for loss of earning capacity.
Respondents also claim they have made a conceded payment of $5,040 in permanent partial disability, which the commission has no reason to doubt, but which is not recorded anywhere in the official record before the commission. In addition, compensation for permanent partial disability continues to accrue on a daily basis. The commission will not compute the amount of the accrued and unaccrued permanent partial disability award, because it has no legal basis to incorporate into a calculation the alleged fact that $5,040 in permanent partial disability was previously paid. In any case, the matter must be remanded to the parties and the department because the record lacks sufficient information to calculate the amount of temporary disability due the applicant and his attorney.
Accordingly, the commission will order payment of the reasonably required medical expenses set forth in applicant's WKC-3 (Hearing Exhibit F), which are not contested before the commission. The applicant shall immediately provide respondents with the details of the amounts claimed for temporary total or temporary partial disability between August 18, 2006 and February 8, 2007. The department shall immediately recalculate the permanent partial disability award, accrued and unaccrued, in accordance with the commission's findings and in accordance with any amounts respondents previously paid. Respondents shall thereafter make immediate payment of such accrued compensation and continue with scheduled payment of unaccrued compensation. Applicant's attorney's costs of $950.79 shall be subtracted from the award of accrued permanent partial disability. A 20 percent attorney's fee is also due against this award.
The applicant may require additional medical treatment and may sustain additional disability, and therefore this order will also be interlocutory for these purposes.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to Columbia/St. Mary's Physicians the sum of Five hundred nine dollars ($509.00); to Lakeshore Medical Clinic the sum of Two thousand seven hundred eighty-three dollars ($2,783.00); to Dr. Navtej Purewal the sum of Two thousand five hundred fifty-four dollars and four cents ($2,554.04); to Sensia Health (Dr. Seter) the sum of One hundred fifty-five dollars ($155.00); to Medical Diagnostic Imaging the sum of Forty-five dollars and forty-nine cents ($45.49); to Wisconsin Surgery Center the sum of Five hundred sixty-four dollars and forty-three cents ($564.43); and to the applicant for out-of-pocket medical expense the sum of Six hundred forty-two dollars and eighty-six cents ($642.86). Of course, these orders presume such payments have not previously been made.
The applicant shall immediately provide respondents with the details of the amounts claimed for temporary total disability or temporary partial disability for the period between August 18, 2006 and February 8, 2007. Respondents shall thereafter make immediate payment to the applicant and his attorney, subject to any reasonable dispute concerning the accuracy of the details provided.
The department shall immediately recalculate the amount of permanent partial disability due the applicant, less a 20 percent attorney's fee and costs, in accordance with the commission's findings.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed September 30, 2009
johnbri : 185 : 5 ND § 5.6
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission consulted with the administrative law judge regarding the applicant's testimony at the hearing held on January 17, 2008, and learned that he found the applicant to have been a credible witness. The commission also found the applicant's testimony to be credible, but as explained in the commission's findings, it changed the award for loss of earning capacity based on a differing analysis of the relevant facts.
cc:
Attorney Israel Ramon
Attorney Joseph Berger
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