GAYE LYNNE LAWRENCE, Applicant

EMPIRE LEVEL MFG CORP, Employer

LIBERTY INSURANCE CORP, Insurer

In July 2008, the applicant filed an application for hearing seeking compensation for disability from an injury to the back sustained while lifting levels on June 24, 2003. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (the department) heard the matter on March 24, 2009, with a close of record on December 3, 2009.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $458.00, and compensable injury--in the nature of a strain and temporary aggravation of a pre-existing back condition--on June 24, 2003, for which the respondent intermittently paid temporary disability totaling $9,917.28 through July 26, 2004. At issue is the nature and extent of disability beyond that conceded. Specifically, while the applicant seeks no further temporary disability compensation, she claims that has been permanently and totally disabled since September 24, 2008. She also seeks compensation for additional medical expense.

The ALJ issued his decision on December 14, 2009. The applicant filed timely petition 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 1963, and had several injuries before the June 2003 back injury now at issue. In 1986, the applicant was in a snowmobile accident, in which she injured her neck muscles. She was in a car accident in 1993 when she was hit by a drunk driver and pulled her upper back and neck muscles. She had a serious injury in 1999 when she was kicked by a horse, breaking four ribs and injuring her liver (she denies a back injury in this incident.)

In June 2001, the applicant started working at Empire Levels. While she had that job, she also worked weekends for another employer as a certified nursing assistant at a nursing home for the elderly.

At Empire Levels, the applicant was an assembler, work which required a lot of bending and twisting while standing on a concrete floor. She worked under a piece rate, for an eight-hour shift. The applicant pulled something in her back while working in 2001 or 2002, while she was lifting levels 4 or 5 at a time. She received worker's compensation for a period, but returned to wok without restrictions.

The applicant experienced the injury now at issue on June 24, 2003, when she was lifting four or five 48-inch levels. She felt a bad pop in her lower back, with pain in lower back radiating into her right buttocks. She was off work for a time, then returned part-time in light duty, but had to be taken off work again due to back pain. She was eventually discharged by the employer.

The applicant underwent treatment with her family doctor, Anthony Norelli, M.D. A discogram done in 2004 showed an annular tear. She had an MRI in November 2007. It showed a small broad-based central disc protrusion at L5-S1, but was otherwise negative, though it did not result in spinal or foraminal narrowing, and the nerve roots exited freely. A doctor she saw on referral by Dr. Norelli, Julie Wilson, M.D., described the MRI as unremarkable. Follow up notes document continued treatment for chronic pain. On September 25, 2008, Dr. Wilson stated an impression of longstanding back pain, for which the applicant had been started on opiates by her primary care physician, with a working diagnosis of "a work injury in 2001 and 2003, myofascial back pain."

The primary issue is the extent of the applicant's permanent disability from the injury. Again, the applicant claims that, as of September 28, 2004, she has been permanently totally disabled from the injury. The respondent contends the applicant has no permanent disability.

The applicant relies on a December 20, 2007 report from Dr. Norelli. He described the work injury as occurring when the applicant was working with levels and felt a severe pulling sensation in her lower back. He stated that it was definite that the event caused her disability, and that permanent disability resulted. He diagnosed chronic low back pain, with limitation in range of motion and sacroiliitis. He also rated permanent partial disability at 3 percent for pain and limitation in range of motion.

Regarding work restrictions, Dr. Norelli opined that the applicant would not be able to do anything that requires physical exertion. He noted she was studying nursing and opined that--between her injury and body habitus--it would not be appropriate for her to lift or position patients.

The respondent relies on the opinion of its medical examiner, Kenneth Yuska, M.D. In his most recent opinion, Dr. Yuska opined that the applicant has a problem with depression. He noted, too, that because she only weighs 100 pounds, Dr. Norelli felt she could not turn patients (this is a reference back to the applicant's part-time work as a nursing assistant). Dr. Yuska also noted that the subjective findings on the MRI showed a very mild protrusion of the L5 disc. He stated that there was no evidence of neurological dysfunction, and little support on examination or in the MRIs to support the applicant's subjective complaints. He added:

In my opinion, the incident of June 24, 2003, was a lumbar strain. The incident was of very low intensity situation. She did not fall, she simply backed up and felt a popping sensation in her back.

He added that she has reached a healing plateau by December 1, 2003 were necessary, without permanency or need for treatment. He did not think work restrictions due to the work injury.

Dr. Yuska had also written a prior report dated July 20, 2004 (or about eight months after his proposed healing plateau date). In that report, Dr. Yuska opined that while no restrictions were necessary for the work injury:

Given that there is a pre-existing condition where she is treated for back pain for at least two years and has had prior trauma to her back and given that this patient only weighs 97 pounds, she should be restricted to a 20 pound lifting limit occasionally and 10 pound frequent lifting with limited bending and twisting of the spine. These restrictions are relative to her pre-existing condition and not related to the incident of June 24, 2003. These limitations would ordinarily preclude one from participating in nursing training and nursing practice.

The applicant's vocational expert is Daniel C. Kuemmel. He opined the applicant was neither employable nor retrainable under the restrictions set by Dr. Norelli. He thought the restrictions eliminated her from all the jobs she had performed in the past (nursing assistant and assembler) and that were no jobs in the general labor market that she stood a reasonable chance of qualifying for, performing, or being hired for. Looking at Dr. Yuska's opinion--basically that the injury caused only a temporary aggravation of back pain--Mr. Kuemmel opined there would be no loss of earning capacity.

The respondent's vocational expert is Rodney K. Ross. Under Dr. Yuska's opinion that the work injury did not cause any permanent disability, Mr. Ross opined there would be no loss of earning. Under Dr. Yuska's restrictions regardless of cause, however, Mr. Ross opined that the applicant would have a 30 to 40 percent loss of earning capacity.

Under Dr. Norelli's restrictions--that the applicant cannot return to anything requiring physical exertion--Mr. Ross rated loss of earning capacity at 35 to 45 percent, assuming that the applicant could be successfully trained in the telesurvey industry. If she could only work half-time, her loss of earning capacity would be 75 to 85 percent. If she could not be retrained in the telesurvey industry, she would be permanently and totally disabled.

Like the ALJ, the commission concludes that the applicant has established that the injury caused permanent partial disability. The applicant is a slight woman, whose job required repetitive lifting, twisting and bending. She was able to work for Empire Levels--and indeed in engage in work for another employer as a nursing assistant--before the injury but not after. The commission finds it credible of that the work injury while working with levels on June 24, 2003, caused not simply a "temporary aggravation" of her preexisting condition, but rather precipitated, aggravated and accelerated the applicant's pre-existing degenerative condition beyond its normal progression to the extent that permanent disability resulted. The commission therefore concludes that the applicant has sustained permanent partial disability on a functional basis at 3 percent, based on the opinion of Dr. Norelli.

The applicant's injury is a nonscheduled injury, that is, one compensable for permanent disability under Wis. Stat. § 102.44(3), not the statutory schedule at Wis. Stat. § § 102.52 to 102.56. Thus, a consideration of the effect of the applicant's injury on her earning capacity, not merely her bodily function, is required. The Supreme Court has stated that permanent disability in nonscheduled cases is to be compared with injuries that would render a person permanently and totally disabled for industrial purposes, and not to injuries that would totally disable a person functionally without regard to loss of earning capacity. Kurschner v. Industrial Commission, 40 Wis. 2d 10, 18 (1968). See also Bituminous Casualty Co. v. ILHR Department, 97 Wis. 2d 730, 736 (Ct. App. 1980) (an award for PPD resulting from an accident must be based on some kind of prediction as to the impairment of earning capacity.)

Along the same lines, the court has held that awards for permanent disability in cases of nonschedule injuries must be based on some kind of prediction of impairment of loss of earning capacity. Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d. 522, 528 (1976); Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947). The court has stated:

"In a number of cases we have said that a finding of permanent partial disability by the Industrial Commission must be based on a consideration of both factors -- loss of bodily function and loss of earning capacity. Consideration of both factors is necessary to implement the objective of the Worker's Compensation Act, namely `to compensate in some measure injured workmen for loss of wage-earning power sustained in the industry...'" [Citations omitted.]

Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d 522, 527-28 (1979).

In this case, while the commission accepts Dr. Norelli's opinion that the work injury caused permanent disability and resulted in the need for work restrictions, it adopts Dr. Yuska's opinion regarding the specific work restrictions that apply. The commission has the authority to accept parts of doctor's restrictions and reject others. See Manitowoc County v. DILHR, 88 Wis. 2d 430, 437-441 (1979). In accepting Dr. Yuska's opinion regarding the appropriate level of work restrictions, while rejecting his opinion that the restrictions were not made necessary by the work injury itself, the commission again notes that the applicant was able to work without restriction until she was injured. On the other hand, in rejecting Dr. Norelli's significantly more limiting work restrictions, the commission notes that the injury, while causing permanent disability, did not result the need for surgery and that Dr. Norelli himself only rated functional disability at three percent for chronic pain.

Under Dr. Yuska's restrictions, Mr. Ross opined that the applicant would be able to obtain employment in a variety of lighter duty work including work as a cashier, a clerk, telesurvey worker, and retail salesperson. He went on to rate loss of earning capacity at 30 to 40 percent in these occupations. Having considered the opinions of Mr. Ross, and the factors in Wis. Admin. Code § DWD 80.34 as they apply to this case, the commission concludes the applicant is not permanently and totally disabled, but instead has sustained permanent partial disability on a vocational basis at 30 percent compared to permanent total disability into which the functional rating of 3 percent is merged.

The applicant is therefore entitled to 300 weeks of permanent partial disability compensation at $222 per week (the statutory maximum for injuries in 2003), totaling $66,600, all of which has accrued. The applicant agreed to the withholding of a fee for direct payment to her attorney, set under Wis. Stat. § 102.26 at 20 percent of the amount awarded, or $13,320. That amount, plus costs of $1,340, shall be deducted from the applicant's award and paid to her attorney within 30 days. The remainder, $51,940, shall be paid to the applicant within 30 days.

The next issue is the applicant's claim for medical expenses. On July 20, 2009, before the close of the hearing record, the applicant's attorney wrote a letter to the department submitting a Medical Treatment Statement on form WKC-3. While this letter was submitted after the hearing, and the expenses it documents differs from this documented by exhibit G, the ALJ noted at hearing that he was leaving the record open for additional documentation, and the respondent does not appear to have objected to the July 20, 2009 letter. The applicant has established permanent disability from the conceded work injury, and the commission concludes that she incurred the medical expenses identified in the Medical Treatment Statement included in with July 20, 2009 letter were reasonable and necessary to cure and relieve the effects of the work injury. The respondent is thus liable for medical expenses as documented in that letter under Wis. Stat. § 102.42 and, accordingly, the commission shall order those expenses paid.

However, neither exhibit G, nor the July 20, 2009 letter from the applicant's attorney, identifies the "other insurer" who paid the medical expenses claimed and are entitled to reimbursement under Wis. Stat. § 102.30(7). The applicant shall promptly provide that information to the respondent, who shall then reimburse that insurer (or insurers) within 30 days.

Finally, the commission is persuaded that the applicant will not sustain additional periods of disability from the June 24, 2003 injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). Consequently, this order is final on the issue of temporary and permanent disability.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

The findings and order of the administrative law judge are modified to conform with the foregoing and, as modified, are affirmed in part and reversed in part.

Within thirty days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Gaye Lynne Lawrence, the sum of Fifty-one thousand, nine hundred forty dollars and no cents ($51,940.00) in disability compensation and Seven thousand, five hundred thirteen dollars and seventeen cents ($7,513.17) in out-pocket medical expense including mileage.
2. To the applicant's attorney, Michael H. Gillick, the sum of Thirteen thousand three hundred twenty dollars and no cents ($13,320.00) in fees and One thousand three hundred forty dollars and no cents ($1,340.00) in costs.
3. To Ingenix, Three dollars and no cents ($3.00) in treatment expense.
4. To Waukesha Memorial Hospital, Two hundred seventy-two dollars and fifteen cents ($272.15) in treatment expense.
5. To State Collection Service/Waukesha Memorial Hospital, Two hundred eight dollars and ten cents ($208.10) in treatment expense.
6. To Oliver Adjustment Company/Radiogology Waukesha, SC, One hundred fifty dollars and sixteen cents ($150.16) in treatment expense.
7. To PRM/Waukesha Health Care, Forty-six dollars and eight cents ($46.08) in treatment expense.
8. To St. Luke's Medical Center, One hundred thirteen dollars and twenty-five cents ($113.25) in treatment expense.
9. To Financial Control Solution, Three hundred and fifty dollars and no cents ($350.00) in treatment expense.

Within 30 days of receiving supporting documentation, the employer and insurer shall reimburse, under Wis. Stat § 102.30(7), any non-industrial insurers who have paid the Twenty-two thousand, five hundred sixty-seven and nineteen cents ($22,567.19) in medical expenses identified in the Medical Treatment Statement included with the letter from the applicant's attorney to the department dated July 30, 2009.

Dated and mailed November 11, 2010
lawrenc . wrr : 101 : 1 ND6 6.22, 9.12, 9.24

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission agrees that the applicant's condition does not render her permanently totally disabled. Nor does the commission doubt that her presentation at hearing may have suggested she was more disabled than she actually is. However, the fact remains that the applicant--despite the prior injuries--was able to work both for the employer for three years and as a certified nursing assistant until she was injured. After the injury, the respondent's medical expert set work restrictions which the respondent's vocational expert opined restricted the applicant to relatively lighter duty work and resulted in at least a 30 percent loss of earning capacity.

cc: Attorney Michael Gillick
Attorney Daniel Jungen

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