MICHAEL J BUTTERFIELD, Applicant

ABF FREIGHT SYSTEMS INC, Employer

ABF FREIGHT SYSTEMS INC, 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, except that it makes the following modification:

1. Delete the fourth and fifth (last two) sentences in the sixth paragraph of the ALJ's Findings of Fact and Conclusions of Law.

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

Dated and mailed December 22, 2009
buttefi . wmd : 101 : 1 ND 5.3, 5.46

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

1. Facts and posture.

The applicant was born in 1955. He worked for 25 years as a dockworker for Consolidated Freightways, before taking his job with the employer in 2002. The applicant worked as a dockworker and city driver for the employer until he retired under a 30-and-out plan in 2008.

The applicant has a history of right shoulder/neck problems. The medical records submitted by the employer and its insurer (collectively, the respondent) and the report of Dr. Aschliman, the respondent's medical examiner, documents a number of instances of treatment, including chiropractic treatment, for right arm, shoulder, neck, and upper back complaints from July 1994 through September 2001.

The applicant's claim, however, involves an incident at work on May 11, 2006, when he was trying to break apart a set of doubles trailers. This involved pulling on a handle that was apparently stuck. As the applicant pulled on the handle or lever, he felt pain from the base of his neck down through the back of his shoulder and down into his fingers. He described the onset of pain as sudden. He testified he reported the injury to his immediate supervisor, who delayed in filling out the accident report for a number of days, causing the applicant to report the injury to the operations manager. The operations manager then set up an appointment with Theodore Bonner, M.D.

Dr. Bonner's diagnosis was a stretch injury, most likely to the brachial plexus involving the C5-C6 nerve roots. Because the applicant had not had improvement, however, he referred the applicant to a neurologist, Dr. Goldman, who assessed cervical radiculopathy with symptoms of numbness and pain, and referred him to Dr. Perlewitz. Dr. Perlewitz recommended a course of epidural steroid injection, which were performed by Dr. Edwards between August and October 2006. The applicant returned to full duty work in November 2006. The applicant returned to Dr. Perlewitz several months later in October 2007, complaining of headache and persistent, relatively constant tingling of the right upper extremity. Later that month, Dr. Perlewitz suggested surgical intervention with decompression at this visit.

The ALJ's decision found that the applicant sustained a compensable injury on May 11, 2006; that temporary disability paid for various periods between June 5 and November 14, 2006 were not paid in error; and that:

...the cervical surgery, involving an anterior discectomy, decompression, and fusion at C3 to C7, recommended by Dr. Perlewitz, is reasonable, necessary and related to the compensable May 11, 2006 injury. Finally, even though applicant retired from his employment at the respondent, respondent employer would have to establish applicant had withdrawn from the labor market before it could deny payment of temporary total disability should applicant undergo the required surgery. Respondent employer did not establish that applicant had withdrawn from the labor market in the current record.

The ALJ went on to award a dollar in medical mileage, so as to establish an award of compensation to ensure jurisdiction for commission review, and ordered the respondent to pay for the treatment proposed by Dr. Perlewitz should the applicant choose to undergo it.

2. Discussion.

a. The respondent's position on appeal.

The respondent appeals, arguing:

1. Dr. Perlewitz did not opine the proposed surgery was reasonable and necessary to the required degree of medical certainty.

2. Even if he did, Dr. Aschliman's opinion that the surgery would not be related to the work injury is more credible because (a) he better accounted for the pre-existing condition, and (b) the applicant actually misled his treating doctors (including Perlewitz) about his pre-existing condition.

3. The applicant should not be awarded temporary disability while recovering from the surgery because he has withdrawn from the labor market due his 30-and-out retirement.

Wisconsin Stat. § 102.18(1)(b) authorizes the commission and ALJs to include:

in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury.

When this language was added to Wis. Stat. § 102.18(1)(b), it worked an important change to the worker's compensation law because prospective orders for compensation were disfavored by the courts. See: Levy v. Industrial Commission, 234 Wis. 670, 675 (1940). Consequently, while the commission will award medical treatment payment prospectively, it generally declines to award accompanying temporary disability prospectively. In such cases, however, the commission has noted that

"of course, employers and their insurers are liable under the workers compensation law for compensation due to disability from a work injury, and they are potentially liable for penalties if they stop payment without reason."

Krumnow v. Cintas Corporation, WC claim no. 2006-016493 (LIRC, July 16, 2009). See also McDuffy v. Kennedy Hahn TV & Appliance, WC Claim No. 2000-030626 (LIRC, October 8, 2002) and Irvine v. UPS, WC claim No. 1998-021734 (LIRC, March 6, 2003).

b. Prospective award for treatment expense.

The first question is whether the applicant's work injury caused his condition to change or progress to the point that surgery was recommended. The commission is persuaded that the May 11, 2006 work injury caused the need for the surgery as Dr. Perlewitz opined. First, the applicant's condition worsened in a relative sense after the injury. He had not treated for the shoulder or neck complaints since 2001, and in the years before 2001 had generally obtained only infrequent chiropractic treatment. Treatment after May 2006 involved considerable work-up, a course of physical therapy, and epidural steroid injections. Even Dr. Aschliman opined the May 11, 2006 injury required treatment into December 2006. Further, Dr. Perlewitz credibly points to the disc herniation disclosed in the August CT scan--likely caused in the work injury--as a cause of the applicant's complaints.

The commission also declines to reverse the ALJ's decision based on the applicant's failure to tell his doctors about his prior right shoulder and neck treatment. Again, the prior treatment, the most recent of which was chiropractic treatment nearly five years before the date of injury, does not seem that significant compared to the treatment he required after the injury. And Dr. Perlewitz was quite clearly aware of the substantial degenerative changes in the applicant's cervical spine.

Nor is the commission persuaded that Dr. Perlewitz failed to state his opinion that the proposed surgery was reasonable and necessary to the requisite degree of medical certainty. The doctor did fail to mark the "yes" box on the form practitioner's report at exhibit A in response to the question "Do you expect that any further treatment will be necessary for this condition?" While the doctor did not mark the "yes" box, he did write "anterior cervical discectomy, decompression and fusion is recommended." It is reasonable to conclude the doctor meant to mark the box affirmatively, especially since the form report states immediately after the spaces for marking the "yes" and "no" boxes: "If YES, explain." The doctor's surgical recommendation is written in the space provided for explanation.

Beyond that, the commission has previously held:

Read together, Wis. Stat. § § 102.17 and 102.42(1) permit the reimbursement of treatment expense, but only if a physician, chiropractor, or practitioner specified in Wis. Stat. § 102.17(1)(d) somehow indicates the treatment is necessary. This is done ordinarily by the physician providing the service himself (the department or the commission may reasonably infer a physician would not provide treatment he believes is not necessary) or by prescribing or recommending the applicant obtain the treatment from another provider

Widiker v. Hoffman Construction, Inc., WC claim no. 1993061724 (LIRC, December 29, 1999). Following the Widiker holding, since Dr. Perlewitz recommends the surgery, it is reasonable to assume he believes to a requisite degree of certainty that it is reasonable and necessary--that he is not recommending surgery he is uncertain about or feels is unnecessary. Finally, even Dr. Aschliman's report indicates that he believes the fusion surgery proposed by Dr. Perlewitz is reasonable; Dr. Aschliman rather disputes that it was caused by the work injury.

c. Prospective order for TTD?

The last issue is the question of temporary disability while the applicant is healing from the proposed surgery. The commission has held that a retired worker who is not attached to the labor market may be ineligible for temporary disability arising from a post-retirement surgery. However, the commission modified the ALJ's decision to eliminate any findings on that issue at this time.

As the commission reads the hearing transcripts, the issues indentified were causation, the appropriateness of the prior payments of temporary disability, and the prospective payment of the treatment expense. Post-surgery temporary disability and the question of the applicant's attachment to the labor market were not actually at issue. Further, as discussed above, the commission generally declines to award temporary disability prospectively.

cc: Attorney David J. McCormick
Attorney Karla A. Walther

Appealed to Circuit Court.  Affirmed July 7, 2010.  Appealed to Court of Appeals.

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