ALAN BILDER, Applicant

HOME DEPOT USA INC, Employer

ILLINOIS NATIONAL INS CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 30, 2009
bildeal : 175 : 5 ND 5.31

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant is permanently and totally disabled on an odd lot basis as a result of his work-related back and cervical injury on May 31, 2004. The employer contends the administrative law judge should have credited the opinion of Dr. Lyons, who examined the applicant on behalf of the employer in 2007, and opined that apparently the applicant's cervical problems were not related to the work incident based on his discussion with the applicant. Dr. Lyons stated the mechanism of injury on May 31, 2004, was musculoligamentous in nature. Dr. Lyons opined the applicant's work injury on May 31, 2004, did not lead to the need for cervical or thoracic surgery. Dr. Lyons stated he believed that the surgeries were due to the applicant's pre-existing degenerative conditions that were not aggravated or accelerated beyond normal progression by the work injury. Dr. Lyons opined the applicant should have reached an end of healing within 12 weeks from the date of the initial injury on May 31, 2004. Dr. Lyons assigned the applicant 45 percent permanent partial disability based on his surgeries regardless of cause.

The employer points to the fact the applicant testified that he did not notice any neck pain following the work incident. The employer states that although the applicant clearly had a pre-existing degenerative neck condition, he consistently reported that he experienced absolutely no neck pain or symptoms in relation to the May 31, 2004 work event. However, the evidence indicates the applicant did suffer cervical symptoms following the work injury, which were not present prior to May 31, 2004. The applicant treated with Dr. Ahuja, a spine surgeon, in the summer of 2004, who recommended cervical surgery following the work incident. The applicant admitted that at the time he saw Dr. Ahuja and subsequently Dr. Maiman, he did have radiating pain down his upper extremities into his hands and fingers.

The evidence includes a letter from Dr. Maiman dated September 9, 2004, which indicated the applicant has been having progressive problems since the work injury in May 2004, with paresthesias in his arms, as well as some weakness on the right side. The applicant has bilateral radicular complaints worse on the left than on the right, and Dr. Maiman noted the applicant's cervical range of motion was significantly decreased to the left with mild paravertebral spasm, and motor examination found significant weakness of his biceps and triceps. The applicant had decreased touch sensation in the right C6 distribution, as well as at T11 and T12 in the thoracic spine. Although the applicant may have not experienced any cervical pain immediately following the work incident, the medical evidence indicates the applicant developed symptoms of cervical radiculopathy, which were not present prior to the work incident.

In addition, Dr. Maiman stated the MRI scan of the cervical spine demonstrates congenital cervical stenosis and there is actual cord compression at C4-5 and
C5-6, with generalized stenosis. Dr. Maiman did note the applicant has a much larger disc herniation and osteophyte in the lower thoracic spine consistent with the searing pain that he suffered with the original injury.

Dr. Maiman stated in a letter dated May 20, 2007, the applicant had an injury on May 31, 2004, with the onset of mylopathy and it was determined that he had significant cord compression both in the neck, as well as the mid-back. Dr. Maiman stated there was no question the May 31, 2004 injury aggravated, accelerated and precipitated his pre-existing degenerative changes beyond normal progression. Dr. Maiman stated on July 13, 2007, the applicant is limited to light duty avoiding repetitive neck bending, twisting on a permanent basis and he is to do no lifting more than 10 pounds on a regular basis or 15 pounds occasionally.

The employer states that as shown by the applicant's prior work experience, he is more than qualified to perform numerous job duties within his physical restrictions. The employer states the applicant has extensive experience dealing with the public through his work as a police officer, chief of police, senior customer service representative for Harley Davidson and the general manager of a Harley Davidson dealership. The employer states that given the applicant's prior work experience and the multiple occupations provided to him within the restrictions assessed by Dr. Maiman, it is clear the applicant is not permanently and totally disabled. The evidence indicates that the applicant is 65 years of age with significant physical restrictions in his ability to perform work. The applicant has undergone multiple surgeries to his cervical and thoracic spine, and has a history of a prior heart attack as noted by the administrative law judge. The administrative law judge appropriately noted that while Ms. Engebose, who performed a vocational evaluation on behalf of the employer, listed occupations the applicant might handle, her report does not seem to sufficiently consider several factors including the amount of medication the applicant takes on a daily basis and the affect this might have on those suggested occupations.

Mr. Modder, the applicant's vocational expert, indicated in his report dated June 10, 2008, that when considering the opinions of his treating physician, Dr. Maiman, and taking into account the applicant's age, training, education and work experience, as a result of the work injury on May 31, 2004, the applicant is so limited in his ability to perform services that a reasonably stable market does not exist for him. Mr. Modder noted the applicant has no clerical skills or formal training that would allow him to perform exclusively sedentary clerical work. Additionally, Mr. Modder noted the applicant would be limited with respect to the ability to perform bending and twisting necessary for filing, and shipping and receiving clerk type jobs.

Given the lack of evidence of any ongoing need for treatment or complaints due to cervical or thoracic spine degenerative condition prior to May 31, 2004, and given the evidence of the applicant's cervical radiculopathy following the work injury and need for treatment, as well as surgery with Dr. Maiman, and his subsequent surgery and treatment for thoracic spine problems following the work incident and based on Dr. Maiman's report, as well as Dr. Ahuja's records, the evidence was sufficient to establish that the applicant's need for cervical surgery and thoracic surgeries were caused by the work incident on May 31, 2004.

The commission also credits Dr. Modder's assessment the applicant is permanently and totally disabled on an odd lot basis as a result of his work injury. The commission did not find Ms. Engebose's vocational assessment to be persuasive. The evidence does not indicate the applicant had good results from his surgeries, and still requires significant pain medication. The applicant clearly has significant restrictions in his ability to work. The applicant has a high school degree, as well as experience in police work, shipping and receiving and customer service. However, the applicant is limited to lifting only 10 pounds on a frequent basis and has significant restrictions in bending and twisting. Ms. Engebose did not point to any specific current jobs which were available to the applicant given his restrictions.

The applicant is 66 years old and significantly restricted. Although the employer brought out testimony the applicant has not made a rigorous search for work, the applicant did indicate that he would be willing to accept work available within his restrictions. As noted in Beecher v. LIRC 273 Wis. 2d 136 (2004), the applicant is not required to establish an ongoing work search to make a prima facie case for permanent and total disability on an odd lot basis. In this case, the applicant based on Dr. Maiman's assessment as well as Mr. Modder's vocational report, did establish a prima facie case for permanent and total disability. The applicant credibly testified to his ongoing pain and restrictions following his three surgeries for cervical and thoracic back injuries due to the incident on May 31, 2004. Therefore, the administrative law judge appropriately determined that the applicant is permanently and totally disabled on an odd lot basis as a result of the work injury on May 31, 2004.

cc: Attorney Thomas M. Domer
Attorney Douglas M. Feldman

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