LINDA STEWART, Applicant
CHARTER MFG CO INC, Employer
TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer
The applicant filed a hearing application in June 2008, seeking compensation for neck, shoulder, arm, hand and finger pain caused by repetitive work. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on November 16, 2009, with a close of record of December 14, 2009.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $443.76. In dispute before the ALJ was whether the applicant sustained an injury arising out her employment with the employer, while performing services growing out of an incidental to that employment, the nature and extent of disability from any such injury, and the respondent's liability for medical expenses.
The ALJ issued his decision in this matter on February 2, 2010. Both parties filed timely petitions for review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant was born in 1956. She began working as a general helper for the employer in 2006. Her job involved operating machines to make dipsticks, which she was required to produce based on a quota. She made as many 1,500 or as few as 300 parts per hour. She averaged 400 to 600 pieces per hour. She worked forty hours a week.
Parts would come to the applicant in a tray, and she would remove them from the tray and put the parts in form that would go into a machine. Sometimes she added handles to the parts before putting them in the form. She would press a button, and the machine would take the form into the machine, process the parts with heat, and pass the form out the other side.
The parts would be in the machine for only a few seconds. The applicant would remove the parts from the form, and reload it to start the process again in about a minute. The parts would come out hot and sometimes were difficult to remove from the form. After she removed the part from the machine, the applicant would inspect them and trim off "flash" with a plastic knife.
The applicant rotated between 6 to 8 machines. She worked at waist level, and did not work above shoulder level. The dipsticks weighed only ounces; a handful might weight a pound.
The employer offers a DVD video of the applicant's job duties, which shows several discrete tasks (none actually being performed by the applicant). At the beginning, two workers are shown putting dipsticks into a machine, one by one, while seated. At the end of the video, another worker is shown doing a similar task, though she removes the dipsticks for packing.
The applicant began having problems with her hands and wrist in April 2007. In particular, she experienced tingling that was "heavy" and pain in her right and shoulder. The pain would start in mid-morning, and got worse as time progressed. She took aspirin and used arm splints which did not help.
The applicant saw Edward Cooney, M.D., on February 25, 2008. The note lists a February 18, 2008 date of injury, and gives this history:
She has worked a Milwaukee Wire as a general laborer for the past two years. She is right hand dominant. She states she works on approximately five different machines and slowly over the past year she has had increasing pain, numbness, and tingling in her index and middle finger. Her symptoms seemed to progress with increased workload and now are radiating towards her right elbow and shoulder. In the last few months, she had had difficulties with her fingers waking her up at night with pain and numbness. She has to shake her arm to relieve the symptomology and this occurs almost every night. She has no symptoms in the left arm. She has been taking Tylenol and aspirin but no relief. She feels she is losing strength in her right hand and she started to drop things at work and at home. Prior to job she had no history of similar symptoms.
Dr. Cooney's diagnosis was probable carpal tunnel syndrome on the right hand. He released her to work subject to the restriction that she wear a splint at work, and prescribed a Medrol Dosepak. He referred the applicant to Dr. Truong for an EMG.
Dr. Truong did the test on February 29, 2008, and it showed a median neuropathy on the right, consistent with mild carpal tunnel syndrome. The test also showed evidence of a mild right C7 radiculopathy. On March 4, 2008, however, Dr. Cooney reported that the EMG showed "rather significant radiculitis findings at the C7 level" which he diagnosed as C7 radiculitis which could not be considered work-related.
On March 8, 2008, the applicant saw her family doctor, David M. Jenks, M.D., who noted this history:
...presents today with a 3-4 week history of pain in her neck w/radiation down right arm. Works in wire factor and uses hands a lot. States that she was seen by company physician and had EMG done showing right carpal tunnel and right sided cervical radiculopathy. She is not sure what level the radiculopathy is at and doesn't know severity of carpal tunnel or radiculopathy. ... Using her left hand also causes neck pain. Does wake up at night with right hand pain and tingling. States she has some weakness of the right hand. No trauma.
Dr. Jenks' doctor's assessment was right cervical radiculopathy. He wanted to get an MRI of the cervical spine. He referred her to Dr. Gaenslen for her carpal tunnel syndrome, and Dr. Nosir for her cervical radiculopathy. He kept her off work to April 1, 2008.
Dr. Nosir saw the applicant on March 8, 2008, and he noted complaints of neck pain referred to the upper right extremity and right upper extremity weakness and numbness. He reported that the applicant told him her pain started "7-8 months ago gradually." He added that the applicant thought her statement was related to her job from using her hands to operate machines. He wanted another EMG, an MRI, and a referral to Dr. Weber for a work status/rehabilitation program.
The applicant then saw Dr. Weber about her radiculopathy. He reported:
The patient having trouble with her neck for the last 6 to 8 weeks with pain radiating down the right arm. No traumas that have set this off. She has had some neck aches in the past but nothing like this. She also complains of numbness in the right hand--thinks she may have carpal tunnel syndrome. She denies frank weakness. She works for Milwaukee Wire doing auto parts assembly. This does seem to bother her a fair amount. She tries to use her left hand more, that that seems to irritate the left hand. Most of her pain in her neck with radiation down into the right arm.
The doctor's impression was right-sided cervical radiculopathy. He kept her off work, as there was no light duty work available, and wanted to order an MRI.
The applicant returned to Dr. Nosir on March 12, 2008. He described the applicant as having a seven to eight month history of neck pain, right upper extremity pain, numbness and tingling. His report includes the following discussion of "Problems/Diagnoses":
1. Chronic axial neck pain.
2. Right upper extremity pain.
3. Right cervical pain.
The patient is claiming her symptoms are work related, as she is using her hand at work to operate machinery and she reported to work on February 4, 2009; however, she denies any specific injury and he symptoms started seven to eight months ago gradually and is getting worse within the last few months.
Dr. Nosir again stated his desire for her to have an MRI and EMG.
When the applicant returned to Dr. Nosir on March 26, he opined she would benefit from a nerve conduction study, and a cervical epidural steroid injection. The applicant also saw a physical therapist. She returned to Dr. Weber on April 2, and was still off work at that time.
The EMG was done on April 9. The note from this visit describes a nine-month history of pain the right hand with radiation to the elbow and neck, as well as numbness on the palmar aspect of the hand and fingers. The EMG showed evidence of minimal carpal tunnel syndrome. It also showed no evidence of a right cervical radiculopathy or ulnar mononeuropathy.
The applicant underwent an epidural injection and April 10, but experienced complications when some of the dye extruded to her brain. The injection itself caused subarachnoidal inflammation and intractable headache. A blood patch was attempted to relieve her symptoms, and it apparently relieved her symptoms somewhat (though the treatment notes are equivocal on this.)
The applicant saw Dr. Gaenslen for evaluation of possible carpal tunnel syndrome on May 9, 2008. He did not believe her symptoms were related to carpal tunnel syndrome, but instead suggested a cortisone injection in her carpal tunnel. She was reluctant to do this if it was not going to help her headache or neck pain.
The applicant saw Dr. Weber again on May 22, 2008, when he noted that she "presented for follow-up on her neck and shoulder pains that seemed to have stemmed from work issues." He noted that she still had a headache after her epidural. His diagnosis was cervicalgia and headaches. However, he added this discussion:
I discussed this diagnosis with Ms. Stewart. She has seen all the neurologists, and no one has found a cause of her headaches. Her neck pain does not appear to have a diskogenic source as the small disk bulge on MRI is unlikely enough to be causing this diffuse pain. I did suggest she may have fibromyalgia. After she left the office I observed her walking down the hallway and she moved her head quite freely but was very limited in font of me in the exam room. I encouraged her to think about returning to work. I was not able to definitively say that her job caused her neck problems.
In June 2009, Dr. Weber noted the applicant continued to have symptoms, and would continue to follow with the cervical spine specialist and the headache specialist. He did not have anything to offer, but kept her off work until she followed up with the spine specialist in July.
Later that month, Dr. Nosir added that he had received a consultation note with another practitioner, Thomas Stauss, M.D., who diagnosed the applicant with persistent headache, neck pain, and generalized weakness of unknown etiology, for which there was no objective evidence to explain her symptoms. Dr. Stauss felt the dural puncture, while a recognized risk during the epidural steroid injection, was appropriately handled and he felt it had resolved fully and did not explain her persistent headache. Dr. Nosir added:
Dr Stauss feels there is a great deal of secondary gain in operation in this situation. Dr. Stauss stated also that Mrs. Stewart has extensive pain behavior and he noted a striking discrepancy in her behavior and appearance when she initially entered the facility as to opposed to when she was in his presence during the interview and examination. At this point in time, Dr. Stauss recommended no further treatment and certainly, no evidence to support disability.
On September 2, 2008, Dr. Nosir wrote in a similar vein:
I have received the neurology note from Dr. Jitendra Barauh, neurology and headache specialist. His final impression ... is that of chronic daily headache with history of migraine, probable possibility that chronic daily headache is a medication overuse headache with use of Tylenol, hydrocodone, etc. Dr. Barauh did not see any indication that she developed any significant problem from the cervical epidural steroid injection that was done on April 10, 2008. ... Dr. Barauh stated at the present time the patient has been overreacting to the whole situation. She has some symptom magnification. She has been overplaying her headache symptoms as well as chronic pain. He advised her to go back to work, however, the patient told him she cannot do so because she has a problem with carpal tunnel in her right hand and she has been waiting for the hand surgeon evaluation.
On September 7, 2008, Dr. Gaenslen documented a follow-up of her right upper extremity. His diagnostic impression was
1. Right rotator cuff impingement
2. Some mild right carpal tunnel syndrome
3. Neck pain
4. Fight lateral epicondylitis.
He suggested her symptoms were centered around her shoulder, and he recommended and performed an injection. He told her to return in six weeks, when he would consider possibly an MRI.
The applicant saw Dr. Block about her headache, neck ache and back pain on September 10, 2008. He told her there was no structural damage after the cervical epidural steroid injection, or from anything else, that explained her symptoms. He wanted her to follow with a headache expert.
That same day, the applicant saw Jerome Lerner, M.D., with complaints of low back pain, right arm pain, and stomach pain. His history recites that:
The onset of pain was sudden with injury. The pain started in 02/2008. The injury occurred at work.
Dr. Lerner's assessment was:
This lady was referred to deal with disability issues today. She is presenting with physical findings of fibromyalgia, accompanied by depressed and anxious behavior. She is here today with her sister, who also admits to dx of FMS and Depression which has been successfully treated with medication and counseling.
Diagnosis:
1. Myalgia/myositis NOS
2. Cervicalgia
3. Headache
4. Depression with anxiety
He completed a form disabling from work due to severe fibromyalgia in conjunction with depression. He noted, too, that she needed to get into active psychological and psychiatric treatment.
The applicant returned to Dr. Gaenslen on October 20, 2008. He noted problems in her right shoulder, mild carpal tunnel syndrome, neck pain (her predominate problem) and lateral epicondylitis. He did another injection into the subacromial space of her shoulder which, again, provided little relief. He thought perhaps her problem originated more proximally or maybe in the shoulder girdle muscles.
The applicant next saw Dr. Gaenslen on April 24, 2009. (This note is not in the applicant's records, which all end in March 2009; rather, it is at exhibit 3.) He noted that when he had seen her last--this refers to the visit of October 2008--he had injected the subacromial space, but that there was no benefit. He reported:
She continues to have symptoms at the side of her neck and posterior shoulder. She does note some mild right carpal tunnel syndrome; this is really a minority of her symptoms. Her main symptoms are related to her neck and shoulder girdle region.
Dr. Gaenslen's impression was posterior right shoulder region pain, neck pain, pain that radiates down the entire upper extremity, and mild right carpal tunnel syndrome. He added:
I am at somewhat of a loss to explain all of her symptoms. She did have an electromyogram done about a year ago by Dr. Lorbeck, which showed only minimal carpal tunnel syndrome. A lot of her symptoms seem to begin following cervical epidural treatment in the past. I told her there might be some value in her seeing Dr. Brad Grunert ... for management of her upper extremity symptoms, particularly given her unusual history related to the development of these symptoms. She will follow up with me on an as-needed basis.
Dr. Gaenslen subsequently wrote a referral letter to Dr. Grunert, whom Dr. Gaenslen described in his practitioner's report as a "pain psychologist." In the referral letter, Dr. Gaenslen noted the applicant had "a variety of upper extremity symptoms including numbness into the hand with radiation of pain from the neck, shoulder and elbow as well." He noted the EMG showed only minimal right carpal tunnel syndrome, and that the applicant did not respond to the injections he had done. He added that "it is certainly unclear as the origin of her symptoms."
Finally, the applicant returned to Dr. Lerner on September 1, 2009. He again listed her diagnoses as "myalgia/myositis NOS, carpal tunnel syndrome, headache, and depression with anxiety." His note states that he had last seen her "about a year ago" and that
Since her last visit, the initial pain has not changed. Patient denies any new type of pain since the last visit. ... The patient denies any diagnostic tests since the last visit.
His assessment at this time was:
She is seen here at the request of her attorney related to WC claim. I do think she has a [right] carpal tunnel syndrome, which would be related to work. Otherwise her clinical findings are of depression and fibromyalgia.
Both sides offer expert medical opinion concerning the nature and extent of injury. The applicant offers a practitioner's report from Dr. Lerner, dated September 1, 2009, which lists the following work exposure:
Employee's highly repetitive work of feeding wire pieces into machine at rate of about 400 pieces per hour, of putting handles on wires, and spraying the floor and machine with air pump to clean numerous times per day began causing finger and hand numbness, pain and tingling about 1 year before February of 2008. The pain and numbness slowly increased over the year and extended into her right arm, shoulder and into the neck leading her to the first seek medical attention on February 25, 2008. Employee was dropping things due to her pain and numbness prior to seeking medical attention.
Asked to provide a diagnosis, Dr. Lerner wrote:
[R] arm/shoulder/hand pain
Carpal tunnel syndrome
Dr. Lerner noted his two days of treatment on September 10, 2008, and September 1, 2009, and stated that the applicant was subject to only permanent restrictions as of September 1, 2009, identifying restrictions of occasionally pushing, pulling, gripping, grasping, with his right arm, and lifting and carrying less than 10 pounds.
Regarding the causal connection between work and the injury, Dr. Lerner marked the occupational disease box1(1) on the form report affirmatively, and listing a date of disability of February 25, 2009 (this was probably meant to be 2008). He rated permanent partial disability at four percent at the shoulder and one percent at the wrist, identifying pain, weakness and numbness as disabling elements.
Dr. Gaenslen also authored a practitioner's report dated June 17, 2009, listing exactly the same work exposure as Dr. Lerner's report. His diagnoses are cervicalgia, joint pain, "shoulder region dis nec," and pain in limb. Dr. Gaenslen recites that the applicant could return to work subject to temporary restrictions as of June 14, 2008 and attaches restrictions set that date by Dr. Weber pending an upcoming visit with Dr. Gaenslen himself.
Dr. Gaenslen marked the "direct causation" and "occupational disease causation" boxes on the form report affirmatively, and opined that permanent disability had resulted. Specifically he estimated:
[R] shoulder pain & stiffness -- 4% PPD [R] shoulder
[R] carpal tunnel syndrome --- 1% PPD [R] wrist.
I will defer any evaluation of disability relating to her neck to Dr. Nosir, and others caring for her neck.
Dr. Gaenslen added that the disability as rated was for pain, stiffness, and weakness of grip. He classified her prognosis as "fair" and stated that he expected further treatment would be necessary (noting the referral to pain psychologist Gruenert.)
Regarding the applicant's carpal tunnel syndrome, the respondent offers the opinion of Michael Weiner, M.D., dated March 28, 2008 (exhibit 14). He opined the applicant had a right C7 radiculopathy and very mild carpal tunnel syndrome. After watching the videotape of the applicant's job duties (presumably the same DVD discussed above and in the record at exhibit 19), Dr. Weiner stated:
Most hand surgeons, occupational medicine specialists, and ergonomic experts would agree that for a cumulative trauma disorder such as carpal tunnel syndrome to develop or abnormally progress secondary to workplace exposure, tasks have to be both repetitive and exertional (i.e., high force/low force/high repetition.) Low repetition/high force or high repetition/low force (as in this case) would not be considered detrimental in regard to this diagnosis. The tasks seen on the video are repetitive to a degree with essentially both upper extremities used in a similar fashion. The air blowing duties seen with the cable forming tasks do require use of the right hand only, but the duration of exposure is minimal and, in my opinion, a nonfactor in determining causation.
...
I am unable to state specifically the etiology of Ms. Stewart's mild right carpal tunnel syndrome. Suffice it to say that this condition has a tendency to develop as one ages and is more common in females. The most common demographic group to have idiopathic carpal tunnel syndrome is middle-aged overweight females, Ms. Stewart meets two of these criteria based on her reported height and weight.
The employer also offers the opinion of Thomas J. O'Brien, M.D., who examined the applicant on October 9, 2009. He opined she had no identifiable pathology or diagnosis to explain her right upper extremity complaints, and that she did not have a diagnosis of carpal tunnel syndrome or cervical radiculopathy. He thought the EMG was a false positive.
Dr. O'Brien added that he thought the applicant suffered no work-related injury, and that her job played no causal role in her current multiple somatic subjective complaints. He did not think she had any permanent partial disability.
The first issue is whether the applicant sustained an injury services arising out of his employment with the employer, while performing services growing of or incidental to that employment. The commission concludes she has.
Both Drs. Gaenslen and Lerner opined the applicant's shoulder, arm and wrist conditions were caused by repetitive use during employment. While both doctors expressed the reservations about casual relationship of the applicant's other complaints--the headache, neck complaints, etc.,--to work, that in no way weakens their opinions about the shoulder, arm and wrist complaints.
Further, the ALJ credited the applicant's testimony about the onset of her symptoms at work, and the symptomatic worsening during the course of a work day. Moreover, while Dr. O'Brien disagrees, even Dr. Weiner acknowledges the applicant has something wrong with her wrist (he diagnoses carpal tunnel syndrome.) Finally, to the commission's viewing at least some of the work duties shown in the DVD video do involve forceful, repetitive use of the hands and wrists.
In sum, the commission's is satisfied that the applicant's disabling wrist, arm and shoulder conditions were caused by an appreciable period of work place exposure that was at least a material contributory factor in the onset or progression of those conditions. Because her injury is the result of occupational exposure or disease, the date of injury is the date of disability, Wis. Stat. § 102.01(2)(g). The date of disability, in turn, is the date on which physical incapacity from the disease rendered the applicant incapable of performing her services to the extent that a wage loss resulted. Virginia Surety Co., Inc. v. LIRC, 2002 WI App 277, 15, 18, 258 Wis. 2d 665. That date was February 25, 2008 when the applicant went to treat with Dr. Cooney.
The next question is the extent of temporary disability from the injury. The applicant has not undergone surgery for either the wrist or the shoulder. The last actual instance of treatment for the wrist or shoulder seems to be the injection Dr. Gaenslen did on October 20, 2008. When he saw the applicant in September 2009, Dr. Lerner said there was little change in symptoms and no additional testing or other treatment since her last visit with him in September 2008. Dr. Gaenslen's note of April 24, 2009 was to the same effect.
A worker generally is entitled to temporary disability for current wage loss while in a "healing period." Regarding a "healing period," the Supreme Court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932). Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
Under the worker's compensation law, an applicant generally has the burden of proving the facts necessary to support his or her claim, and must produce sufficient evidence so that the commission's decision will not rest on speculation and conjecture. Beem v. Industrial Commission, 244 Wis. 334, 337, 341 (1943) and R.T. Madden Inc., v. Industrial Commission, 43 Wis. 2d 528, 548 (1969). Given the facts of this case, the commission concludes that the healing period ended on October 20, 2008, when Dr. Gaenslen did the last injection. Treating doctor Lerner himself reported the applicant's condition did not change thereafter. There was little or no treatment, or recovery, for the shoulder or wrist complaints thereafter.
Accordingly, the applicant is entitled to temporary total disability for the period from February 25, 2008 (the first day claimed(2)) through October 20, 2008. For the period from February 25, 2008 through July 31, 2008 (a period of 22 weeks and 3 days), she was entitled to compensation for temporary total disability at the weekly rate of $295.78 (two-thirds her average weekly wage of $443.67), or $6,655.05. For the period from August 1, 2009 to October 20, 2008 (a period of 11 weeks and two days), the applicant was entitled to temporary total disability at the reduced rate of $225.71 due to the application of the social security reverse offset under Wis. Stat. § 102.44(5), or $2,558.05.
The next issue is the extent of permanent partial disability. Like the presiding ALJ, the commission credits the ratings given by the treating doctors, four percent at the right shoulder and one percent at the right wrist, for pain, weakness and numbness. Given the operation of the multiple injury factor, the amount due in permanent partial disability is 24.64 weeks at the weekly rate of $262 per week(3) (the statutory maximum for injuries between January 1 and March 31, 2008) totaling $6,455.68, all of which has accrued.
The next issue involves the proper reimbursement to be given for the payments made by the employer to the applicant under its Pay Continuation/Short Term Disability (hereafter Pay Continuation) Plan.
Exhibit 6 shows payment of "PC"--which the commission infers is Pay Continuation--in the gross amount of $10,261.60, for the period from March 12, 2008 to September 20, 2008. Exhibit 7 shows the payment of $3,975.52 in long term disability compensation for the period from June 20, 2009 to October 30, 2009. Kristin Strunk, the employer's human relations manager, testified that "there was a gap from short-term to long-term benefits."
Ms. Strunk testified that the employer's workers receive Pay Continuation for 26 weeks at 100 percent of the full salary. She referred to Pay Continuation as short term disability, and testified that those benefits are paid from a self-insured fund. She testified, too, that a worker could receive Pay Continuation, or worker's compensation, but not both simultaneously. Her testimony indicated, too, that if worker's compensation is paid after the payment of short-term or long-term disability, there is supposed to be some reimbursement.
The commission reads exhibit 6 to show that during the period from March 12, 2008 through September 20, 2008, the applicant was paid holiday, vacation, and regular pay. Exhibit 6 also shows the applicant received Pay Continuation for 1016 hours totaling $10,261.60, or $10.10 per hour. This works out to 25.4 weeks at $404, assuming a 40-hour week.
The commission concludes the Pay Continuation is not a sick leave plan of the type contemplated under Wis. Stat. § 102.20(3), which allows for recrediting an employee's sick leave benefits taken during a period when temporary total disability is due. Rather, Ms. Strunk's testimony better supports conclusion that the applicant received Pay Continuation in the nature of short term disability insurance, rather than sick leave benefits. Indeed, the applicant's own exhibit, Exhibit J, refers to a request for "Pay Continuance (Short Term Disability)."
The law provides a mechanism for direct reimbursement to non-industrial insurers--like the employer's Pay Continuation) and long term disability plans-- for payments they made during healing periods from a work-related injury that compensation wage loss when temporary total is due. Specifically, Wis. Stat. § 102.30(7) provides:
(7)(a) The department may order direct reimbursement out of the proceeds payable under this chapter for payments made under a nonindustrial insurance policy covering the same disability and expenses compensable under s. 102.42 when the claimant consents or when it is established that the payments under the nonindustrial insurance policy were improper. No attorney fee is due with respect to that reimbursement.
(b) An insurer who issues a nonindustrial insurance policy described in par. (a) may not intervene as a party in any proceeding
In general, while non-industrial insurers are not allowed to intervene in workers compensation cases, they may make claims directly against the injured workers to recover benefits paid in error in cases of worker's compensation injuries. See: Employers Health Ins. Co. v. Tesmer, 161 Wis. 2d 733, 740 (Ct. App. 1991). The point of Wis. Stat. § 102.30(7)(a) is to provide an administrative mechanism for paying those claims directly. Id., at 161 Wis. 2d 738-39.
In this case, neither the respondent nor the employer have offered any written documents stating whether the employer's Pay Continuation plan is entitled to reimbursement for payments made in worker's compensation cases. No policies or insurance contracts are provided. However, Kristin Strunk, the employer's human relations manager, testified that the disability fund is self-insured, that the disability payments are not for worker's compensation, and that if payments are made from it during periods for which worker's compensation is later paid, there is supposed to be reimbursement.
The commission concludes that Ms. Strunk's testimony establishes that "the payments under the nonindustrial insurance policy were improper" for the purposes of Wis. Stat. § 102.30(7), during the period temporary total disability for current wage loss was paid due to her injury. Reimbursement to the Pay Continuation plan shall be allowed from the temporary total disability award. However, a no deduction shall be allowed against permanent partial disability, since permanent partial disability is paid for permanent lost earning capacity or functional loss, not current wage loss, and permanent partial disability does not "cover the same disability" as Pay Continuation and long term disability benefits. See: Thao v. Oshkosh Truck Corp., WC claim no. 2004-023344 (LIRC, January 31, 2007).
The next question is how much should be deducted. The commission generally calculates the reimbursement on a week-by-week basis. During the entire period that the Pay Continuation was paid, the applicant was entitled to temporary total disability in at a lower weekly rate than she was paid in Pay Continuation.(4) Reimbursement of the non-industrial disability payments shall therefore be made at the temporary total disability rate for the weeks during her healing period when she received Pay Continuation payments. The commission assumes the Pay Continuation was paid at the end of the period of set out in exhibit 6. Working backward from September 20, 2008, then, the employer is entitled to reimbursment of $225.71 per week for the 7-week, one-day period from August 1 to September 20, 2008, amounting to $1,617.59. The employer is also entitled to a reimbursement of $295.78 per week for the 18-week, two-day period from March 25 to July 31, 2008, amounting to $5,422.63. These periods cover the 25. weeks of Pay Continuation, and the total amount to reimbursed to the employer's self-funded Pay Continuation plan, then, is $7,040.22.
The commission realizes that the employer is self-funded for non-industrial disability. However, payment under a non-industrial disability plan, even when employer-funded, is distinguishable from the direct payment by the employer subject to Wisconsin Statute § 102.30(5). The commission thus orders the worker's compensation insurer to reimburse the employer's self-funded non-industrial disability plan. See: Perrins v. JL French Corp, WC claim no. 2005-002249 (December 21, 2006); Connell v. Reedsville Coop Assn., WC claim no. 1999-056430 (November 23, 2003). Not ordering reimbursement of non-industrial disability payments under these circumstances has at least a theoretical possibility of dividing the worker's compensation coverage. See: Wisconsin Statute § 102.16(3) and § 102.31(1)(b).
The next issue is medical expense. On appeal, neither party questions this aspect of the ALJ's order, which is based on a post-hearing letter from the respondent's attorney dated November 24, 2009. As the ALJ observed, the respondent is responsible for the treatment expenses related to the applicant's shoulder, wrist and elbow (which were made necessary by the work injury), but not her neck condition (which did not). As a result of the applicant's February 25, 2008 work injury, she incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury as detailed in the November 24, 2009 letter from the respondent's attorney and summarized as follows: from various providers for the applicant's shoulder, the unpaid amount of $1,239.50; from various providers for the applicant's wrist, the unpaid amount of $3,891.55; and from various providers for the applicant's elbow, the unpaid amount of $230.08. No additional treatment expense is reasonable, necessary or related to the applicant's condition from the work injury.
The last issue is the attorney fee and costs. The effect of the reimbursement for the employer's payments under the Pay Continuation plan is to pay the applicant temporary disability only:
Adding in the fee on the permanent partial disability (twenty percent of $6,455.68, or $1,291.14), the total due in fee to the applicant's attorney within 30 days is $1,772.73. The applicant's attorney has also established costs of $491.32.
The amount due the applicant within 30 days is $6,599.08, which is the sum of temporary disability due from February 25 to March 25 net of the attorney fee ($985.94), the temporary disability subject to the social security reverse offset due from September 20 to October 20, 2008 ($940.46), and the permanent partial disability due net of the attorney fee ($5,164.54), but less attorney costs ($491.32).(6)
Finally, the ALJ's order did not reserve jurisdiction. Neither party raised any issue on appeal with respect to that aspect of the ALJ's order, and a final order is supported by Dr. Lerner's opinion that he does not expect the need for further treatment. Accordingly, this order is final on the nature and extent of disability.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Linda Stewart, Six thousand, five hundred ninety-nine dollars and eight cents, ($6,599.08) in disability compensation.
2. To the applicant's attorney, Lynne A. Layber, the sum One thousand, seven hundred seventy-two dollars and seventy-three cents ($1,772.73) in fees and Four hundred ninety-one dollars and thirty-two cents ($491.32) in costs.
3. To the providers identified in the letter from the respondent's attorney dated November 24, 2009:
4. To employer's self-funded non-industrial disability plan, $7,040.22 in reimbursement under Wis. Stat. § 102.30(7)(a).
Dated and mailed November 11, 2010
stewart . wrr : 101 : 1 ND6 6.6, 6.13
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
The commission consulted with the presiding ALJ concerning witness credibility and demeanor. He told the commission that the applicant was credible in her testimony that she developed pain while at work. He reiterated his belief, however, that some of the later problems were not work-related.
The commission does not dispute the ALJ's assessment of credibility. Rather, the commission modified the ALJ's award because it believes the record lacks support for an award for temporary disability beyond October 20, 2008, as set out in the body of this decision.
cc:
Attorney Lynne Layber
Attorney David Kania
Appealed to Circuit Court. Reversed in part, July 15, 2011 (with respect to deduction for non-industrial disablity insurance).
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