JOHN SMOCZYK, Applicant
XCEL ENERGY SERVICES INC, Employer
ACE AMERICAN INS CO, Insurer
The applicant filed an application for hearing in May 2008. The employer and its insurer (collectively, the respondent) have conceded jurisdictional facts, an average weekly wage of $1,165.50, and that the applicant sustained a compensable injury on January 26, 2007. The respondent has also conceded its liability for certain disability compensation and medical expenses.
The applicant seeks compensation for permanent total disability. As set out below, his claim has been the subject of two hearings and two decisions by administrative law judges (ALJs) for the Worker's Compensation Division of the Department of Workforce Development. The most recent decision denied the applicant's claim for permanent total disability and instead awarded permanent partial disability at 60 percent for loss of earning capacity. The applicant filed a timely petition for review of that decision.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted, and conferred about witness credibility and demeanor with the ALJ who issued the decision now on review. Based on its review, the commission makes the following:
1. Facts.
a. Injury and treatment.
The applicant was born in 1951. He has a GED, and went through a one-year technical school welding program. He is a construction laborer, and has been an iron worker since 1980.
The applicant began working for the employer in about 1999. He was injured on January 25, 2007 when he tried to roll a 300-400 pound beam to punch holes in it. Specifically, he felt "kind of real different feeling" in his back and it hurt. He stopped for a little while, felt a little better, and kept working with the beam.
The applicant worked a four-day week, and so was off the next day, a Friday. However, the pain worsened over the following weekend, and he told the employer that Monday that he had hurt himself.
The applicant first treated with Jane Stark, M.D., on February 1, 2007. The doctor's diagnosis was low back pain, and back sprain/strain (sacroiliac) "left." She released him to work without restriction but advised him to use caution with lifting, and recommended physical therapy. Dr. Stark anticipated an end of healing in 4 to 6 weeks if the applicant had a minor strain, but closer to 6 to 12 months if it was a disc problem.
The applicant started physical therapy on February 7, 2007. He continued to work. On February 21, 2007, believing that Dr. Stark was not acting in his best interests, the applicant began treating with Joseph Hebl, M.D.
Dr. Hebl's assessment was:
1. Acute lumbar strain with persistent radiculopathy related to patient's work activities on or about January 25, 2007, with persistent symptoms in spite of conservative care and passage of one month's time.
2. Cervical strain secondary to work injury, still problematic.
Wondering if the persistence of his back and leg symptoms might be due to the continued activity at work, he recommended that the applicant be allowed to work in light duty, lifting nor more than 20 pounds on an occasional basis. Dr. Hebl added that the applicant could rarely bend, kneel, squat, twist or crouch. He allowed occasional reaching above shoulder level, forward reaching, standing, walking or sitting, with a position change every half hour. The doctor added that "if work is not available within these restrictions, the patient is temporarily disabled until he is reevaluated by me next week." The doctor wanted the applicant to have an MRI, and that he continue physical therapy.
The applicant told Dr. Hebl that when he gave the employer the restrictions the doctor had provided at the February 21 visit, he was laid off. At the hearing, however, the applicant testified on direct examination that, on February 28, 2007, the employer laid off all its workers, including the applicant. The employer brought out on cross examination that this was a kind of seasonal layoff that happened every year, but the applicant was not recalled. The applicant has not worked since his layoff.
When the applicant returned to Dr. Hebl on March 3, 2007, he noted that the MRI showed evidence of multi-level annular disk bulging at L2-3, L3-4, L4-5, and L5-S1. Given the MRI findings, the doctor recommended the applicant continue to work with restrictions and undergo physical therapy. When the applicant's condition did not improve over the next few months, Dr. Hebl referred him to a pain clinic for further evaluation and treatment.
The applicant saw Mark Schlimgen, M.D., on July 13, 2007. On review of the MRI, Dr. Schlimgen reported two main areas of significant pathology. At L2-3 there was some moderate central canal stenosis. At L5-S1, there was an area consistent with an annular tear. The doctor's assessment was back-related posterior leg pain, secondary to posterior annular disruption of the L5-S1 disc, and numbness and tingling in the legs anteriorly, associated with L2-3 stenosis. Regarding the plan of treatment, Dr. Schlimgen states:
The patient does have spinal stenosis at L2-3. It has given him some symptoms into the anterior thigh but these are not his primary complaint, and I do not think at this point that this is an area that would be worth treating. His main complaint is an acute onset of low back pain and lifting injury consistent with internal disc disruption. There is evidence of annular disruption of the L5-S1 on his MRI. This would be very consistent with the location of the pain and the location of his radiating symptoms in the S1 distribution. Therefore, I think the treatment of choice at this point would be epidural steroid injection.
The doctor went ahead with the injections. The injection evidently decreased his pain level from a 3 or 4 to a 2 for a short period of time.
Over the next few months, Dr. Hebl noted the applicant's condition deteriorated. At a visit on October 3, 2007, Dr. Hebl developed this plan:
Patient will be taken off work. He will continue to work to get Social Security Disability. It is my opinion that the patient is unable to return to his form of work and that will be a permanent restriction. Furthermore it is my opinion that patient is currently unable to gain substantial gainful employment and I anticipate that he will never be able to return to gainful employment.
The applicant returned to the pain clinic on November 26, 2007, to discuss his treatment options with Dr. Schlimgen. He told the doctor he primarily had right sided low back pain with hip, posterolateral thigh, and lateral lower leg pain. Dr. Schlimgen noted that an examiner retained by the respondent, Dr. Dowdle, had recommended workup for radiofrequency rhizotomy as a possible treatment. Dr. Schlimgen informed the applicant that generally radiofrequency treatments help back and hip pain, but not leg pain, so it seemed unlikely to the doctor that the radiofrequency treatments would yield a complete result. He thought it would be reasonable to do a medial branch blockade to determine if the facet joints were contributing to his pain.
Dr. Schlimgen added that it would not be unreasonable for the applicant to consider a transforaminal epidural injection, and felt this was the best place to start. He stated:
If we can get pretty good control of his leg pain with a transforaminal epidural but the patient still has some remaining low back pain, then a little more serious consideration of radio frequency rhizotomy could be entertained.
On December 19, 2007, the applicant returned to Dr. Hebl who recommended the applicant consider his treatment options over the next two months. When the applicant returned to Dr. Hebl on February 13, 2008, he told the doctor that while he was in significant pain, he was concerned that additional injections or rhizotomy might worsen his pain or cause him additional pain that he did not currently experience. He wanted to wait and see how much worse his back got.
Dr. Hebl concluded that the applicant had reached an end of healing. He felt the applicant would need future treatment, but for now was putting it on hold. Dr. Hebl decided to close his case, with the anticipation he would be re-opening it in the next year. Regarding permanent disability, he opined:
Based on [the administrative code] I would recommend a disability rating of the low back at 20%. This 20% disability rating is based on the patient's chronic, severe low back pain, weakness, and los of range of motion and multilevel annual tears and disk bulging at L2-3, L3-4, L4-5 and L5-S1. In addition, I recommend a disability rating of 3 percent to the neck due to chronic neck spasm and pain and loss of range of motion.
A hearing was held before the ALJ Nia Enemuoh-Trammel on December 16, 2008. In her decision dated March 9, 2009, ALJ Enemuoh-Trammel declined to decide the claim for permanent total disability or loss of earning capacity, noting that Dr. Schlimgen had recommended treatment but the applicant, by his own choice, had deferred treatment. She felt she was left with questions about the cause of the applicant's complaints, and whether treatment would help.
Citing Wis. Stat. § 102.42(6), ALJ Enemuoh-Trammel suggested that if the medial branch blockade procedure suggested by Dr. Schlimgen were attempted, she would be in a better position to decide the permanency issues. She therefore left her order interlocutory. She did award temporary disability to the February 13, 2008 end of healing date given by Dr. Hebl, and the claimed medical expenses.
After this decision, the applicant returned to Dr. Hebl on March 31, 2009 (exhibit C from August 2009 hearing) who noted concerns with the applicant's medications, and reported:
Since the patient's last visit with me, he was given a copy of the judge's decision in his worker's compensation claim. The administrative law judge recommended that the patient pursue further treatment at the Pain Clinic, specifically, the medial branch blockade as recommended by Dr. Schlimgen. Today I spent some time trying to get a hold of Dr. Schlimgen to get his current view of radiofrequency treatment. ... I am not sure that Dr. Schlimgen will currently be recommending radiofrequency rhizotomy for this patient.
In addition to some medication changes, the plan was for the applicant to see Dr. Schlimgen as soon as possible.
The applicant, in fact, saw Dr. Schlimgen on April 10, 2009. August 2009 hearing exhibit A. He reported:
John is a gentleman with annular disruption at L5-S1. This is the most likely source of his pain. This is disk generated pain with pseudoradicular symptoms secondary to nerve root inflammation near the injury. He has had this now for quite some time. It is not likely that his injury is going to heal. It is also not possible to facilitate his healing at this point, so I feel this is a permanent injury for him. We can mitigate his symptoms with corticosteroid injections. This will decrease his pain, but will not result in a cure for him. He does a very good job with his physical therapy. Physical therapy and exercise can also mitigate his symptoms, but also is not a cure. I have encouraged him to continue with his lumbar stabilization program. As far as rhizotomy is concerned, rhizotomy is a treatment for the facet joints in the lumbar spine. Facet joint pain is almost always exclusively back pain, This gentleman does have significant component of his pain come from his back, but his legs also bother him quite a bit. Since he also has a prominent component of his pain in his legs, it is unlikely that rhizotomy would give him meaningful relief. Therefore I have recommended against this as a treatment option. Corticosteroid injection today could easily last him six months or longer, but it is also very likely he will need to repeat this.
Dr. Schlimgen went ahead with the injections.
The applicant has resumed his claim for permanent total disability. The matter was then heard at a hearing before ALJ Mary Lynn Endter on August 11, 2009. It is ALJ Endter's September 3, 2009 decision following this hearing that is the subject of the petition for review now before the commission.
b. Expert medical opinion.
At the hearing before ALJ Endter, the parties continue to rely on the expert opinions given at the earlier hearing before ALJ Enemuoh-Trammel. Specifically, the applicant offers a letter from Dr. Hebl dated April 11, 2007 (exhibit B), in which he opined
The work activity of January 25, 2007, precipitated, aggravated or accelerated a pre-existing degenerative condition beyond normal progression. Clearly, the injury at work did not produce the multi-level annular disc bulging at four levels and the multi-level prominent and severe canal stenosis at multiple levels. Much of his pathology was most likely pre-existing. However, it should be noted that the patient was symptom free prior to January 25, 2007.
The applicant also offers a practitioner's report dated February 13, 2008 from Dr. Hebl which gives a diagnosis of
1. Chronic low back pain, weakness and loss of range of motion, and chronic persistent bilateral lower extremity radiculopathy, in patient with multilevel annular tears and disk bulges, especially at L2-3, L3-4, L4-5 and L5-S1 with the most prominent stenosis seen at L2-3, and mild to moderate stenosis at L3-4.
2. Persistent neck pain, spasm, and radiculopathy.
As noted above, Dr. Hebl rated permanent partial disability at 3 percent for the neck and 20 percent for the back. Regarding the applicant's ability to return to full time work subject to work restrictions, the doctor stated: "Patient is off work permanently because of severe low back pain and radiculopathy." He opined the applicant would need treatment in the future.
The employer relies on John Dowdle, M.D., whose October 1, 2007 report is at exhibit 1. Dr. Dowdle did a physical exam of the applicant in late September 2007, noting he reported complaining of pain in the lower back with bilateral leg pain. Dr. Dowdle's diagnostic impression was:
1. Mechanical low back pain.
2. Multilevel degenerative disc disease.
3. Juvenile discogenic disease
4. Lumbar spinal stenosis at L2-3.
5. Intermittent radiculitis into both legs.
In the discussion portion of his opinion, Dr. Dowdle added:
[The applicant's] medical condition is one of juvenile discogenic disease. He has a very characteristic pattern of degenerative disc changes in the lower thoracic area and also involving the lumbar discs at multiple levels. He also has spinal stenosis at the L2-3 level. These are all long term, preexisting conditions.
My diagnoses are as indicated above. It is my opinion that [the applicant] sustained an aggravation to his underlying preexisting spinal condition that occurred as a result of the work incident of January 2007. I do not have any previous medial records indicating that he had been seen or derived treatment for this condition prior to this event. Based on that, his ongoing care and symptoms, including pain with movement, paraspinal muscle spasm and limited side bending, are related to an aggravation of his underlying pre-existing condition that occurred at the time of his work incident in January 2007.
Dr. Dowdle went on to opine that the applicant's treatment to the date of the examination had been reasonable, noting that he had he had therapy, chiropractic treatment, and injections. The doctor set out a number of treatment options including a medical branch block in the lower lumbar area and possible radiofrequency facet denervation.
Dr. Dowdle went on to indicate the applicant was at an end of healing if he elected not to undergo the treatment suggested. He stated:
[The applicant] is capable of working, but he needs to be on restrictions. I would have him on a 20-25 pound maximum lifting limit and I would also have him avoid repetitive bending and lifting. I would also have him avoid single positioning. These restrictions should be applied to his non-work activities. Specifically, it is my opinion that [the applicant] could do gardening type work, I suggest that he use the low back support doing that type of activity. It is my opinion that shoveling snow needs to be avoided.
He concluded:
[The applicant] does have a permanent condition, that of multilevel degenerative disc disease that is pre-existing. It is my opinion that he has had a permanent aggravation of that condition that occurred at the time of the incident of January 25, 2007. The appropriate permanency rating is 5%.
The respondent's vocational expert is John M. Meltzer. While noting that the applicant performed skilled work throughout his adult life, he did not think DVR retraining was appropriate given his age and educational background. He added that skills the applicant had in the construction industry would not transfer into light duty occupations, so he would have to seek unskilled to low level semi skilled work if he could do light duty.
Under Dr. Dowdle's restrictions, Mr. Meltzer opined, the applicant could do light duty, unskilled work including cashier, sales clerk, hotel clerk, and security guard. He went on to say that there were perhaps 1700 such jobs in the area where the applicant worked, though his report does not appear to identify how many of those jobs are open. He suggested a 60 to 70 percent loss of earning capacity in the applicant's case based on Dr. Dowdle's restrictions. Under the medical opinion of Dr. Hebl, Mr. Meltzer continued, the applicant would be permanently and totally disabled.
The applicant's vocational expert is Sidney Bauer. His report is at exhibit I. Like Mr. Meltzer, he believed the applicant was permanently and totally disabled under Dr. Hebl's opinion.
Mr. Bauer also found the applicant would be permanently and totally disabled on an odd-lot basis under Dr. Dowdle's restrictions. Mr. Bauer suggested the only potential vocational change for the applicant was to the service industry in very select jobs. He did not think the applicant could do computer operation at a competitive work pace, nor did he think he could do such work given the restriction against prolonged sitting. He thought work in the manufacturing industry was also inappropriate. He concluded:
[the applicant has never worked in the service or manufacture industry and at age 57 years, making the occupation change to service employment, which would require face-to-face communication/contact with the general public and others performing very select light employment in a relatively limited labor market area within commuting distance from Stanley, Wisconsin, leaves employment options so limited that reasonable stable market is viewed not to exist, [the applicant would be viewed to fall under the Odd Lot doctrine, and is permanently and totally disabled for Worker's Compensation purposes, based on Dr. Dowdle's opinion.
The applicant testified at the December 2008 hearing that sitting, standing, lifting, twisting, and turning increases his pain. He estimated that he could sit comfortably for ten or fifteen minutes, and stand for a half-hour. He admitted to gardening, but testified it caused him pain and that he could not do it for an eight-hour day. He still hunts, does not walk as much as he used to. He rated his pain at three on a scale to ten on a good day, five on an average day, and eight on a bad day. At the September 2009 hearing, he testified his condition, if anything, had gotten worse.
The applicant owns a motorcycle, which he had ridden "on the last good day," sometime in August 2008 at the time of the December 2008 hearing. The applicant has not applied to DVR for retraining with respect to his current injury, nor has he made much effort to find work. He qualified for social security as of August 2007.
2. Discussion and award.
The applicant's claim raises the question of the presumption of permanent total disability under odd-lot rule. Under the odd-lot rule, an injured worker makes a prima facie case by showing that he or she has been injured in an industrial accident and, because of her injury, age, education, and capacity, is unable to secure any continuing and gainful employment. If a worker makes that showing, then the burden of showing that the applicant is in fact employable and that jobs do exist for him shifts to the employer.(1)
The first question, then, is whether the applicant has shown that he is unable to secure any continuing and gainful employment. On this point, the commission, like the ALJ, finds the restrictions set by Dr. Dowdle to be most credible. While he later opined that the applicant could not return to gainful employment, Dr. Hebl had for several months released the applicant to work with restrictions very similar to those set by Dr. Dowdle.
However, the inquiry does not end simply because the commission adopts Dr. Dowdle's opinion regarding work restrictions. The commission must next consider the vocational effect of those restrictions. Dr. Dowdle agrees the applicant's symptoms are real and disabling, though he does not go as far as Dr. Hebl to say they disable him from employment on a medical basis. Dr. Dowdle's restrictions, however, significantly affect the applicant's off-duty activities as well as his ability to work. Dr. Dowdle stated, for example, that the applicant could garden, but should avoid shoveling snow.
Indeed, the applicant's vocational expert, Mr. Bauer, has opined under Dr. Dowdle's restrictions, the applicant would be permanently and totally disabled on an odd-lot or vocational basis. After carefully considering the applicant's injury, age, education, capacity, and training, the commission finds Mr. Bauer's vocational opinion on this point to be more credible than Mr. Meltzer's.
The applicant is in his late 50s, and a lifelong construction worker or ironworker with a GED. He has no transferrable skills. He has not applied for retraining with DVR, but neither vocational expert suggested DVR retraining was warranted. Given Dr. Schlimgen's change of mind about the rhizotomy procedure, the commission declines to draw an adverse inference from the applicant's reluctance to undergo surgical treatment, assuming that the commission may even consider that factor in assessing whether the applicant has made his prima facie case.(2)
While the applicant did work after his injury, Dr. Dowdle's work restrictions rule out a return to construction work or ironworking. Indeed, even the employer's vocational expert, Mr. Meltzer, identifies a few kinds of work the applicant can do: sales clerk, hotel clerk and security guard. The applicant's expert, Mr. Bauer, persuasively opines that the restriction against sitting makes these jobs problematic. He also questions the applicant's ability to compete for the work in the labor market given his age and education.
Accordingly, the applicant has made his prima facie case under Dr. Dowdle's restrictions. The respondent has not rebutted that showing by persuading the commission that a job exists that the applicant can do or showing available work that he can do. There is no evidence of actual openings or an employer willing to hire the applicant; in any event, Mr. Bauer's opinion persuasively rules out the types of jobs that Mr. Meltzer identifies.
The commission therefore finds that the applicant was permanently and totally disabled as of the February 13, 2008 end of healing date found by ALJ Enemuoh-Trammel in her March 9, 2009 decision. As of May 13, 2010, 117 weeks and one day of permanent total compensation at the weekly rate of $777 (two-thirds of the conceded wage of $1,165.50 and the statutory maximum for injuries in 2007) has accrued, totaling $91,038.50.(3)
The applicant approved the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the amount awarded for permanent total disability, subject to the 500 week limit under Wis. Admin. Code DWD § 80.43(3). As of May 13, 2010, the accrued fee is $18,207.70. That amount, plus costs of $21.26, shall be deducted from the total accrued award and paid to the applicant's attorney within 30 days. The remainder, $72,809.54, shall be paid to the applicant within 30 days.(4)
Beginning on June 13, 2010, the permanent total disability award shall accrue at the monthly rate of $3,367.00. The applicant's attorney is entitled to a fee for the first 500 weeks of permanent disability compensation. Accordingly, from June 13, 2010 through September 13, 2017, the respondent shall pay the applicant $2,693.60 per month and her attorney $673.40 per month, during the applicant's lifetime. Beginning on October 2017, the respondent shall pay the applicant $3,367.00 per month, for life.
While the applicant submitted a medical treatment statement (exhibit D) at the hearing before ALJ Endter, she did not order the payment of any expense and the applicant does not challenge that portion of her order. The commission assumes the expenses documented in exhibit D have been paid, and likewise makes no award.
This order shall be left interlocutory to permit future orders and awards as may be warranted and consistent with this decision.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to confirm the foregoing and, as modified, are reversed.
Within 30 days, the employer and its insurer shall pay the following
1. To the applicant, John R. Smoczyk, Seventy-two thousand eight hundred nine dollars and fifty-four cents ($72,809.54) in disability compensation.
2. To the applicant's attorney, Steve Jackson, the sum of Eighteen thousand two hundred seven dollars and seventy cents ($18,207.70) in attorney fees and Twenty-one dollars and twenty-six cents ($21.26) in costs.
Beginning on May 13, 2010 and continuing on the 13th day of each month through September 13, 2017, the employer and its insurer shall pay the following during the applicant's lifetime:
1. To the applicant, Two thousand six hundred ninety-three dollars and sixty cents ($2,693.60) per month in disability compensation.
2. To the applicant's attorney, Six hundred seventy-three dollars and forty cents ($673.40) per month in attorney fees.
Beginning on October 13, 2017 and continuing on the 13th day of each month thereafter, the employer and its insurer shall pay the applicant Three thousand three hundred sixty-seven dollars and no cents ($3,367.00) per month for life.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed May 6, 2010
smoczyk . wrr : 101 : 9 ND
5.31.
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission conferred with the ALJ Endter, who presided at the hearing from which this appeal is taken, concerning witness credibility and demeanor. She informed the commission she had no clear recollection of the applicant, and based her decision more on the record than on witness credibility and demeanor. The commission, like the ALJ, credited Dr. Dowdle's work restrictions. However, for the reasons explained above, the commission found the vocational report of Mr. Bauer more credible than that of Mr. Meltzer. Neither vocational expert testified at the hearing. See
Hermax Carpet Marts. v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Steve Jackson
Attorney Timothy S. Crom
Appealed to circuit court. Affirmed 12-15-2010. Appealed to the
court of appeals. Reversed with directions to dismiss Xcel's complaint
January 24, 2012, sub nom.
Xcel Energy Services, Inc., v. LIRC and John Smoczyk, 2012 WI App 19, 339
Wis. 2d 413, 810 N.W.2d_865. Petitioned to supreme court. Court of
Appeals decision directing dismissal reversed, LIRC's decision affirmed, July
11, 2013, sub nom.
Xcel Engery Services, Inc., v. LIRC and John Smoczyk,
2013 WI 64, 349 Wis. 2d 234, 833 N.W.2d 665.
..
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