SUSAN L. GROH, Applicant

SINAI SAMARITAN MEDICAL CTR, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

This matter originally came before the commission on a petition for review of the findings and order of an Administrative Law Judge (ALJ) Neil L. Krueger dated August 27, 2007. By order dated May 13, 2008, the commission directed the taking of additional evidence under Wis. Stat. § 102.18(3). Pursuant to that order, the parties submitted

•  a narrative report of John E. Brusky, M.D., dated December 19, 2008 (under a cover letter from the applicant's attorney dated January 19, 2009).
  a practitioners report signed by Dr. Brusky dated January 21, 2009, which includes the doctor's December 19, 2009 report (under a cover letter from the applicant's attorney dated February 6, 2009).
•  a certified vocational expert report and curriculum vitae from Keith Moglowsky dated March 9, 2009 (under cover letter from the respondent's attorney dated March 10, 2009)
• a certified vocational expert report and curriculum vitae from Daniel C. Kuemmel dated May 26, 2009 (under cover letter of the applicant's attorney dated June 4, 2009).

These documents are hereby admitted into evidence as part of the hearing record in this case. Having considered these documents, the evidence submitted to the ALJ, the petition, and the positions of the parties, the commission makes the following:

The applicant is a registered nurse who began working for the employer in 1985. In an unappealed decision ALJ Nancy Schneiders held that the applicant injured her back, but not her neck, in a May 23, 2001 work incident. ALJ Schneiders awarded permanent partial disability on a functional basis, but deferred decision on loss of earning capacity.

The loss of earning capacity issue was then heard by ALJ Krueger. The applicant sought compensation for loss of earning capacity at 60 to 65 percent, based on the report of its vocational expert, Daniel Kuemmel. Mr. Kuemmel's estimate was based on the restrictions of treating doctor John Brusky, who set restrictions against lifting, carrying, pushing and pulling more than 15 pounds, reaching above shoulder level more than 1 to 3 hours, and working more than 2 to 3 hours per day.

The vocational expert retained by the employer and its insurer (collectively, the respondent) is Keith Moglowsky. He rated loss of earning capacity at 11 percent based on the employer-retained examiner Clark's back-only restrictions. He rated loss of earning capacity at 26 percent based on Dr. Brusky's restrictions, but noted that Dr. Brusky did not separate the back restrictions from the cervical restrictions.

The effects of the work-related back injury and non-work related neck condition must be separated for worker's compensation purposes as far as possible.(1) On this basis, ALJ Krueger's August 27, 2007 order rejected Mr. Kuemmel's loss of earning capacity estimate based on Dr. Brusky's restrictions, and awarded loss of earning capacity at 20 percent. As noted above, in its order in this matter dated May 13, 2008, the commission directed the taking of additional evidence so that treating doctor Brusky could set back-only restrictions and Mr. Kuemmel and Mr. Moglowsky could issue vocational reports based on those restrictions.

On remand, Dr. Brusky wrote a letter dated December 19, 2008, stating:

...I have reviewed my own records and [the applicant's] three functional capacity evaluations (FCE) to formulate my opinions. I understand that I am not to consider her chronic neck pain complaints.

...

Overall, I concur with the 2004 FCE by Dr. Robert Zoeller. Specifically, I believe she can work full time at medium heavy with a maximum lifting of 50 lbs. (rare). She should avoid excessive bending, twisting, squatting and climbing. Furthermore, she should be able to change her position from sitting > standing as needed to lessen her chronic low back pain. Because of the need for a L4-5 anterior spinal fusion after her May 23, 2001 injury, I would rate her partial permanent disability at 10%.

The respondent's vocational expert, Mr. Moglowsky, then issued his March 9, 2009 report considering restrictions set out in Dr. Brusky's December 19, 2008 letter. He estimated loss of earning capacity at 0 to 5 percent based thereon, comparing the applicant's pre-injury wage with the actual wage at which the employee returned to work after her injury.(2) Alternatively, he estimated loss of earning capacity at 10 to 15 percent, based on her restrictions and comparing her return to work wage with what registered nurses make in the general labor market.

In his May 26, 2009 report, the applicant's vocational expert, Daniel Kuemmel noted Dr. Brusky's December 19, 2008 letter set out above. He then added:

Dr. Brusky in a hand-written note of April 16, 2009 states: "Please amend Ms. Groh's 1/19/06^[(3)] work restrictions to read "2-3 days week, but no more than 2 days in a row, then at least one day off before working again."

Based on that asserted April 16, 2009 revision made by Dr. Brusky--which he described as allowing only part-time modified sedentary work--Mr. Moglowsky estimated loss of earning capacity at 55 to 60 percent.

However, the material submitted to the commission following its remand for additional evidence does not include the April 16, 2009 revision made by Dr. Brusky. The only post-remand restrictions the commission received from Dr. Brusky are those in his December 19, 2008 letter which allow full time work with a 50-pound lifting limit.

The respondent's attorney wrote to Chief ALJ Janell Knutson, of the Worker's Compensation Division, stating that he had never seen Dr. Brusky's revised restrictions of April 16, 2009. He and the applicant's attorney agreed that the respondent's attorney should look through Dr. Brusky's records to see if he could find the April 16, 2009 revision.

The applicant's attorney then sent the respondent's attorney "all the reports of Dr. Brusky in the above matter." Dr. Brusky's April 16, 2009 revision is not in the records. The respondent's attorney then wrote to ALJ Knutson, and objected to Mr. Kuemmel's report as based on a document that was not provided to the respondent and may not even exist. See August 13, 2009 letter from Mr. Gilbert to Ms. Knutson.

While the commission has included Mr. Kuemmel's May 26, 2009 report in the hearing record, it agrees that the respondent's concerns about its foundation render the report incredible. Dr. Brusky's April 16, 2009 revised restrictions have never been located, are not in the record, and cannot serve as the basis for expert vocational opinion. Indeed, there is a legitimate question as to whether Dr. Brusky even intended to revise his post-remand December 2008 back-only restrictions, or his pre-remand January 2006 back-and-neck restrictions that (as explained above) may not serve as a basis for a loss of earning capacity award. The commission therefore sees no basis for paying more compensation for loss of earning capacity than that awarded by ALJ Krueger in his August 27, 2007 order.

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

The findings and order of the administrative law judge are modified to incorporate the foregoing Findings of Fact and, as modified, are affirmed.
Dated and mailed September 28, 2009
grohsu . wsd : 101 : 1 ND 5.20, 5.27

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Michael H. Gillick
Attorney Daniel Zitzer

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(1)( Back ) This is consistent with a prior court holding emphasizing that an injured worker "shall not be compensated for that portion of his disability which, clearly established, is due to a pre-existing industrial or non-industrial injury." Mednis v. Industrial Commission, 27 Wis. 2d 439, 442 (1964). Similarly, the court noted in Employers' Mutual v. Industrial Commission, 212 Wis. 669, 670, 250 N.W. 578-59 (1933):

The effect of a disease or infirmity existing before an accident occurs is to be separated from the effect of the later injury so far as that is possible in the administration of the workmen's compensation law. ... Where the pre-existing condition is so thoroughly established and is of such a serious nature that what happens thereafter cannot reasonably be held to be the result of a subsequent accident, no award would be allowed. There appears to be no questioning of the rule that no compensation is payable where a pre-existing condition causes the disability independent of any subsequent mishap.

Summarizing Mednis and Employers Mutual, the supreme court has held:

A workmen's compensation applicant should not be compensated for a pre-exiting disability where the pre-existing disability can be separated from the effect of the later work injury. Semons Department Store v. ILJR Department, 50 Wis. 2d 518, 524 (1971)

(2)( Back ) Following the injury, the applicant returned to part time work at another hospital.

(3)( Back ) The January 19, 2006 restriction is a reference back to the restrictions set for both the applicant's "post-laminectomy syndrome -- cervical and lumbar." While Mr. Moglowsky reads Dr. Brusky's April 16, 2009 handwritten note to revise his post-remand December 19, 2008 lumbar-only restriction, it could also be read to be a revision only to the cervical and lumbar restrictions set in January 19, 2006 itself.

uploaded 2009/10/19