MARRIANNE C MUELLNER, Applicant
SCHOOL DISTRICT WINTER, Employer
WAUSAU UNDERWRITERS INS CO, Insurer
WORK INJURY SUPPLEMENTAL BENEFIT FUND , Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 3, 2009. Briefs were submitted by the applicant and by the Work Injury Supplemental Benefit Fund. At issue is the applicant's claim for preexisting disability indemnity, pursuant to Wis. Stat. § 102.59(1).
The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's dismissal of the applicant's claim, but substitutes the following Findings and Order for those of the administrative law judge:
The applicant sustained a compensable back injury while working for Winter School District on April 3, 1987. She underwent a laminectomy on August 24, 1987. In December of 1989, Dr. Ade Dillon assessed seven percent permanent partial disability with permanent light work restrictions that included an eight-hour work day, lifting 10 pounds frequently, and lifting 20 pounds occasionally.
The employer took the applicant back in a new position as a librarian's aide and Spanish translator. This new position paid more per hour than she had been earning as a cook, so she was not entitled to a loss of earning capacity claim, pursuant to Wis. Stat. 102.44(6)(a).(1) While employed in this new position, the applicant sustained another work injury on April 7, 1995, when she fell off a chair and struck her head and back. She was diagnosed with a low back injury, and eventually with avascular necrosis in both hips. Dr. Jerome Lerner opined that the 1995 work incident precipitated, aggravated and accelerated the applicant's preexisting bilateral hip conditions beyond their normal progression. The applicant underwent surgery on both hips and Dr. Lerner assessed 40 percent permanent functional disability at each hip, which equates to 200 weeks of permanent functional disability at each hip. When the applicant reached healing she reapplied for work with the employer but it did not rehire her. The applicant subsequently claimed permanent total disability, but a compromise was reached between her and the employer's insurer in the amount of $ 137,500.00. The department approved this compromise in an order issued on April 6, 2001.
The applicant subsequently filed an application for "Second Injury" compensation from the Work Injury Supplemental Benefit Fund (Fund), claiming such compensation due pursuant to Wis. Stat. § 102.59(1). The Fund submitted an answer to the application that conceded an unspecified work injury or injuries occurring on April 7, 1995, but that contested the extent of disability claimed by the applicant. The applicant's claim is that she is entitled to an additional 350 weeks of permanent partial disability pursuant to Wis. Stat. § 102.59(1), which provides in relevant part:
"If an employee has at the time of injury permanent disability which if it had resulted from such injury would have entitled him or her to indemnity for 200 weeks and, as a result of such injury, incurs further permanent disability which entitled him or her to indemnity for 200 weeks, the employee shall be paid from the funds provided in this section additional compensation equivalent to the amount which would be payable for said previous disability if it had resulted from such injury or the amount which is payable for said further disability, whichever is the lesser."
The applicant's claim is grounded on the opinion of her vocational expert, Jack Casper, who assessed a total of 70 percent loss of earning capacity (LOEC) after the 1995 work injury. Casper apportioned 35 percent of this LOEC to the 1987 work injury, and 35 percent to the 1995 work injury. The applicant points out that because the employer did not rehire her after the 1995 work injury, she became entitled to claim any LOEC that may be found attributable to the 1987 work injury, pursuant to Wis. Stat. § 102.44(6)(b), which provides:
"(b) If, during the period set forth in s. 102.17(4) the employment relationship is terminated by the employer at the time of the injury, or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity."
The applicant argues that based upon Wis. Stat. § 102.44(6)(b), and Casper's vocational assessment of LOEC, it should be found that she sustained two successive work injuries, each resulting in 350 weeks of permanent disability. This would make her eligible for second injury compensation pursuant to Wis. Stat. 102.59(1). However, the applicant's argument fails because she has not submitted credible medical evidence to support Casper's apportionment of LOEC between the two work injuries.
The applicant submitted three medical opinions. Dr. David Bryce administered steroid injections to the applicant's back on numerous occasions prior to the 1995 work injury, and on at least three occasions after that injury. He partially completed a WKC-16-B dated January 20, 1997, in which he listed the dates of injury as "4/3/87 & 4/7/95." He assessed work causation and referred to his "progress notes" which were not submitted into evidence. The only other submission from Dr. Bryce is a letter dated January 20, 1997, in which he wrote: "I think that Mrs. Muellner's bilateral septic necrosis was probably related to her fall [*6] off the chair on April 7, 1995." However, Dr. Bryce gave no explanation for this opinion, and after citing the two work injury dates on his WKC-16-B, he failed to clarify the alleged causative roles of those two work injuries with regard to the bilateral hip conditions.
Dr. John Cragg treated the applicant for her hip conditions, including performance both hip replacement surgeries in 1997. Dr. Cragg completed WKC-16-B's dated January 20, 1997, January 28, 1997, and September 24, 1997, all three of which also list the date of injury as "4/3/87 and 4/7/95." Dr. Cragg checked the direct causation, and/or the precipitated/aggravated/accelerated causation boxes on these forms, and in each form he refers the reader to his notes or letters. None of his clinic notes were submitted and his letters are equivocal. On January 16, 1997, Dr. Cragg wrote:
"As I have stated in my letter to you on December 6, 1996, the exact determination of aseptic necrosis causality is very difficult.
At least 85 to 90 percent of these cases are idiopathic or without known cause.
Because Ms. Muellner did fall on her buttocks in 1995, it certainly may have aggravated, or even possibly caused, her aseptic necrosis:
If I were to guess, I would state that within a range of 60-80 percent the fall on her buttocks combined with the epidural steroid injections caused the aseptic necrosis in her hip joint."
On January 28, 1997, Dr. Cragg wrote:
"As I stated before, I cannot state with 100 percent certainty, or even high probability, that the fall on the buttocks caused aseptic necrosis of Ms. Muellner's hips. It certainly is a possibility, in the range of 60-80 percent, that the fall, combined with the steroid injections, may have contributed to aseptic necrosis."
On March 21, 1997, Dr. Cragg wrote:
"I filled out the WKC-16-B form on Marianne Muellner.
It is filled out, however, contingent on the fact that I cannot predict with 100 percent certainty that the aseptic necrosis is due to her fall at work.
As I have stated before, in the letter of January 28, 1997, I suspect that the possibilities are in the range of 60 percent that the fall may have caused aseptic necrosis, combined with her epidural steroid injections."
On February 23, 1998, Dr. Cragg wrote:
"As I have stated before in September 1997, I'm not able to fully apportion all her problems with her hips due to the fall on her buttocks.
I made an opinion on this in March 1997. I don't feel that this has changed. There is no change in the WC 16-B form from 1997."
As with Dr. Bryce's opinion, nowhere in Dr. Cragg's letters or in the other materials submitted does he apportion a percentage of physical (functional) disability between the two work injuries, and his opinion regarding causation is equivocal.
Finally, at applicant's attorney's request Dr. Lerner evaluated the applicant on January 8, 2001. In his report dated January 31, 2001, Dr. Lerner wrote:
"After reviewing this case and medical literature related to aseptic necrosis, it is my opinion that the multiple steroid injections which occurred between 1987 and 1985 probably caused the bilateral aseptic necrosis, and, therefore the 1987 back injury directly caused the onset of the bilateral aseptic necrosis because it required the injections as a treatment.
Given the fairly rapid onset of hip symptoms following the 1995 back injury, it is my opinion that the 1995 incident precipitated, aggravated and accelerated the bilateral aseptic necrosis beyond its normal progression, which was probably already in the process of development.
With regard to work restrictions for the back injuries, based on the records and interview with Ms. Kinkle-Muellner, the ten pound lifting restriction is appropriate as it relates to the April 3, 1987 back injury. While there is some increased back pain of a permanent nature following the April 7, 1995 incident, I would attribute a relatively small amount of additional functional impairment related to the back for that second injury. Due to this additional impairment she requires additional functional restrictions. She should avoid any repetitive bending and twisting. She should be allowed to sit/stand as tolerated.
With regard to work restrictions as they relate to her bilateral aseptic necrosis, these conditions have resulted in a reduced walking and sitting tolerance. Relative to these injuries, she should be allowed to stand, walk and sit as necessary for pain relief. She should not be required to repetitively climb stairs. She should not perform any squatting maneuvers or single leg stands. She should avoid any repetitive bending and twisting. She should be allowed to ambulate with a cane.
With regard to permanent partial disability, I would attribute seven-percent permanent partial disability as compared to the whole person for the back injury of April 3, 1987. I would attribute an additional one percent permanent partial disability as compared to the whole person for the back injury of April 7, 1995. With regard to permanent partial disability as it relates to her bilateral hip condition, I find forty percent permanent partial disability to the left hip as compared to amputation at that level. I also find a forty percent permanent partial disability to the right hip as compared to amputation at that level. Permanent partial disability is related to lost range of motion, weakness and pain at the hips, bilaterally."
Dr. Lerner assesses an additional one percent permanent functional disability attributable to the applicant's back injury sustained on April 7, 1995, thus effectively apportioning seven percent of his assessed eight percent functional back disability to the 1987 work injury. Perhaps more clearly than Dr. Bryce or Dr. Cragg, Dr. Lerner appears to implicate both the 1987 and 1995 work injuries as being causally related to the 40 percent permanent functional disability he assesses to each of the applicant's hips. One inference the commission might draw from the first paragraph of Dr. Lerner's opinion quoted above is that he appears to believe that the 1987 work incident was substantially more causative of the applicant's bilateral aseptic necrosis than the 1995 work incident. However, without a specific medical apportionment of permanent disability between the 1987 and 1995 work injuries, the commission will not speculate as to relative causation; and similarly, Casper's 50/50 allocation of LOEC between these injuries can only be seen as based on his own speculation.
The additional physical restrictions Dr. Lerner assessed subsequent to the work injuries of April 7, 1995, are quoted above. However, as with his assessment of permanent disability, these physical restrictions not clearly or credibly apportioned between the 1987 and 1995 work injuries. With regard to the 1995 back injury, Dr. Lerner indicates that it resulted in no change to the 10-pound lifting restriction Dr. Dillon assessed for the 1987 back injury; and resulted in "additional" restrictions to avoid repetitive bending and twisting, as well as the need to sit/stand as tolerated. These restrictions are very similar to those assessed by Dr. Dillon on December 11, 1989, when he permanently restricted the applicant to only occasional bending, squatting, and overhead work; no climbing or crawling; and sitting or standing of only one hour at one time, and for 6 hours total during an entire day. While Dr. Lerner's "additional" restrictions might be seen as having added a minimal degree of permanent disability, the apportionment of causation for such disability is unclear at best, given Dr. Lerner's assessments of seven percent permanent functional disability to the 1987 back injury, and one percent permanent functional disability to the 1995 back injury.
The physical restrictions Dr. Lerner attributes to the applicant's bilateral hip conditions are again similar to the restrictions given by Dr. Dillon in 1989, as well as to Dr. Lerner's restrictions assessed for the 1995 back injury, except that Dr. Lerner adds the applicant should be allowed to ambulate with a cane. In this context, it should be noted that the applicant testified that subsequent to the 1987 work injury, she first ambulated with the use of a walker and then with a cane. Regardless, Dr. Lerner's failure to apportion causation for the hip conditions between the 1987 and 1995 work injuries, leaves the commission and Casper to speculate as to apportionment of causation for the physical restrictions caused by those injuries; and therefore to speculate as to the relative causation for LOEC, and as to the number of weeks of permanent partial disability attributable to each such injury.
Accordingly, the applicant has failed to submit competent, credible evidence demonstrating that she sustained permanent disability entitling her to at least 200 weeks of indemnity for each of the two work injury dates at issue. Her claim for additional compensation pursuant to Wis. Stat. § 102.59(1), must be dismissed.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. The application for additional compensation pursuant to Wis. Stat. § 102.59(1), is dismissed. This order is final with respect to the claim made under Wis. Stat. § 102.59(1), but does not address any other issue(s) that may remain unresolved relative to the 1987 and/or 1995 work injuries.
Dated and mailed May 27, 2010
muellma . wrr : 185 : 5 ND § 5.37
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Curtiss N. Lein
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