OLA M GANTT, Applicant
MARTEN TRANSPORT LTD, Employer
The applicant filed an application for hearing in June 2008, seeking compensation for an ankle and foot injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 5, 2010. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury on December 16, 2006, and an average weekly wage at the time of injury of $718.76. The respondent also conceded and paid some disability compensation in connection with this injury.
At issue is the nature and extent of disability beyond that conceded, liability for medical expenses (including a future medical expense), and liability for a travel expense for a medical examination. On May 6, 2010, the ALJ issued a decision dismissing the hearing application. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
1. Facts.
The applicant twisted her ankle at work on December 16, 2006, while working as an over-the-road truck driver. She informed her employer of the injury, and was told to take a cab to an urgent care facility. She did not treat until she returned home on December 27, 2006, when she saw her family doctor, Dr. Vanapalli. He recommended a boot, prescribed physical therapy, ordered an MRI (which was normal) and ultimately referred her to an orthopedist.
The applicant went on the road in mid January 2007 with her husband--also a driver for the employer--but she could not drive because it hurt her ankle to use the clutch. She underwent physical therapy during this month. In February 2007 she saw an ankle and foot specialist, Ketan B. Patel, M.D., whose diagnoses included plantar fasciitis. He recommended light duty work by the employer which did not involve truck driving.
The applicant used orthotics and her condition improved. In April 2007 she was released to work, and from treatment, by Dr. Patel when her plantar fasciitis resolved, but she did not return to work for the employer. Treatment notes between April 2007 and March 2008 do not mention plantar fasciitis or other ankle or foot symptoms.
The applicant began to work for Avis in March 2008 after she separated from her husband. At Avis, applicant had to walk on a car lot which, she said, exacerbated the pain and swelling in her leg. She again experienced plantar fasciitis after starting that employment.
The applicant resumed treatment with Dr. Patel on March 26, 2008. As of that date, he put her on temporary restrictions to limited walking, standing, and transfer of weight. See exhibit L. At that visit, he recommended extracorporeal shockwave therapy treatment (ESWT). Exhibit G. In follow-up visits in April and June 2008, he continued his temporary restrictions. He last saw the applicant on January 7, 2009, when she continued to complain heel pain. He stated:
In my opinion, it is still very consistent that this is aggravation of her plantar fascia and Achilles tendon from the initial injury, and it has been aggravated from her new profession, and it reoccurs. I think this could be reoccurrent problem unless there is full resolution to it. Extracorporeal shockwave therapy would possibly deliver full resolution therapeutically and non-invasively.
Following this visit, Dr. Patel issued a functional limitations form which stated that the applicant was limited to one hour a day of standing and walking; occasional lifting and carrying up to 20 pounds; and occasional bending, squatting, climbing, reaching above shoulder level, and reaching within a normal range of motion.
The parties both provide expert medical opinion regarding the extent of the applicant's current disability and its relationship to the December 2006 work injury. The applicant submits a letter dated February 16, 2007, Dr. Patel stated that the applicant had anterior ankle tendonitis, and posterior tibial tendonitis, leading to aggravation of plantar fasciitis. Exhibit L. The applicant also submits medical reports from Dr. Patel (exhibits C and D) that refer to a left ankle injury while exiting a truck. These reports, which appear to have been done in March 2007 and July 2007, both state there was no permanent disability. The later of these reports diagnoses ankle and foot pain secondary to ankle trauma, with a diagnosis of plantar fasciitis and anterior and posterior tendonitis. The doctor did not expect permanent disability, and gave an April 20, 2007 return to work date.
As noted above, however, Dr. Patel put the applicant back on work restrictions as of March 26, 2008. Two days later, on March 28, 2008, the doctor wrote a letter to her employer stating:
...It has been approximately one year since discharged her from our practice and put her on an as needed basis for her chronic plantar fasciitis and posterior and anterior tendonitis. She returns today with reaggravation of the plantar fascial injury.
I believe this is totally related to the previous injury, where she had the aggravation of the plantar fascia. This has now become a chronic problem, and it is ongoing. It has troubled her for the last year. She said the problem has been vastly exacerbated when she went back to work approximately five weeks ago. She is continuing to have a lot of pain in the medial tubercle and subcalcaneal bursa areas.
Exhibit G.
On April 2, 2008, Dr. Patel wrote a practitioner's report which documented an ankle and foot injury on December 16, 2006, with the applicant continuing to have plantar fascia pain. Exhibit F. He noted the various treatments he had tried, that it had failed. However, he still held out hope that her condition was not permanent, but was treatable. He marked all three causation boxes on the form affirmatively.
On October 5, 2009, Dr. Patel stated the applicant remained in a healing period and that the duties of driver would aggravate her condition. Exhibit M. He opined the applicant remained subject would remain subject to the restrictions set out when he last saw her on January 7, 2009, until she could actually undergo the ESWT treatment.
The applicant also offers the opinion of Dr. Todd, a podiatrist who treated the applicant in the spring of 2008. He opined the applicant was unable to return to work in June 2008, and that the December 16, 2008 injury caused his disability. He also stated the applicant needed a current MRI of her left foot.
The respondent offers opinions from three experts.
Dr. Bodeau did a medical record review, and offered his opinion dated June 13, 2008. He reviewed the medical records, and his report suggests that the recurrence of the applicant's left foot problems with standing and walking at Avis were due to her weight (about 290 pounds)(1) and her diabetes, rather than the work injury. He stated his opinion that the applicant reached an end of healing in April 2007 and that her current treatment represented nonoccupational problems unrelated to the work activities. Exhibit 2.
The respondent also offers the opinion of James L. Beskin, an orthopedic surgeon who practices in Georgia and who examined the applicant on the respondent's behalf on October 22, 2008 (six months after the return of applicant's symptoms while working at Avis). Exhibit 8. His impression was
"residual Achilles tendinitis, plantar fasciitis, and posterior tibial tendinitis associated with a sprain in December 2006."
He included this discussion:
Ms. Gantt appears to have recovered substantially from the sprain injury by April 2007, as indicated in the podiatrist note. However, based on her history, she feels she was still symptomatic and then had an exacerbation associated with other activities. With regard to causation, it does appear, based on her history of no prior foot or ankle problems documented in the medical record, that her injury was the causative factor in the onset of her problems.
Dr. Beskin went on to opine that diabetes and obesity may have contributed to the delay in healing, but that the work injury was "the direct cause of the patient's medical condition under treatment after the injury until April 2007."
Dr. Beskin did opine, however, that she had had recent exacerbation of her problem which probably required continued medical treatment. He did not think a permanent partial impairment rating was warranted, but felt that work restrictions were, and that she could operate a manual transmission vehicle on only a limited basis. He concluded:
In summary, I believe that Ms. Gantt's injury in December 2006 and resultant treatments through April 2007 were appropriate and related to the accident as described.
Given her lack of continued followup care and documented problems after she was released by Dr. Patel in April 2007, I am less certain that her ongoing problems are a direct result of her initial injury and could as easily be related other risk factors such as diabetes, obesity, and preexisting heel spurs.
The respondent then sent Dr. Beskin a follow-up letter to which he responded in part:
Ms. Gantt's need for future medical treatment is probably multifactorial, and although could be related to her original injury, her other risk factors, including obesity, age, and diabetes, are equally significant contributing factors to her condition.
The respondent retained a second medical expert, Anthony A. Ferguson. He did an examination of the applicant in January 2010, and offers this opinion:
Ms. Gantt is currently suffering from insulin dependent diabetes mellitus, morbid obesity, deconditioning, a Haglund's calcaneal exostosis bilaterally producing calcific tendinosis of both Achilles insertions. In addition she has chronic plantar fasciitis. The calcaneal Haglund's exostosis and calcific tendinosis are pre-existing conditions and unrelated to the alleged incident of 12/16/2006. All of her current symptoms are related to her pre-existing conditions and are in no way related to her ankle injury that occurred on 12/16/2006. The injury in question resulted in a left ankle sprain that healed uneventfully by April 2007.
He opined further that the ESWT treatment proposed by Dr. Patel was reasonable for plantar fasciitis, but added that that condition (the plantar fasciitis) was in no way aggravated or contributed to by the work injury. He concluded, again, that she had recovered with disability by April 2007.
2. Discussion and award.
The main issue in this case, of course, is whether the applicant's symptoms and disability beginning in March and April 2008 were caused by the December 2006 work injury. On appeal, the applicant cites Lange v. LIRC, 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App., 1997). In the underlying commission decision in that case, Lange v. Ideal Door Company, WC claim no. 91003958 (LIRC, September 29, 1994, the commission noted:
... a reinjury may be compensable if it is caused by the weakened condition of a worker, or where the work-related injury made the worker more vulnerable to reinjury, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 608-09 (1929) and Burton v. ILHR Department, 43 Wis. 2d 218, 228-228a (1969). In Burton, for example, a fireman who injured himself when he slid down a firepole was found to have so weakened the disc structure so that a disc protrusion caused by a sneezing attack nearly a year later was held to be compensable.
Likewise, Professor Larson states that an off-duty reinjury is compensable when "the episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury." 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). In Wisconsin, if medical proof establishes that the residual effects of a compensable injury cause a subsequent off the job reinjury, the employer is liable for the subsequent reinjury. In such cases, courts will examine whether the work injury is a "substantial factor" in the off-duty reinjury.
The court of appeals in Lange did not accept the commission's ultimate conclusion denying compensation following a subsequent, off-duty slip-and-fall. In finding instead that the disability from the off-duty injury was compensable, the court of appeals observed:
In its decision, LIRC ... did note that a re-injury is compensable if it is caused by the weakened condition of a worker, Western Lime & Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304 (1928), or if the work-related injury made the worker more vulnerable to re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d 196, 200-01 (1969). LIRC also specifically concluded that Lange's second injury "alone was responsible for the dramatic change," thereby implying that if the first injury was related to the results caused by the second injury, the injury would be compensable.
We agree with this implicit conclusion. A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable. Lange v. LIRC, 215 Wis. 2d at 567-68.
On this record, the commission concludes the applicant's work injury caused her to become temporarily disabled after she began employment with Avis in 2008. Dr. Patel affirmatively states that the applicant's job with Avis, which involved standing and walking, aggravated her condition from her prior work injury causing her to again become temporarily disabled. Further, the report and follow-up correspondence from Dr. Beskin, a physician retained by the respondent, prevents the commission from concluding that the December 2006 work injury was not causally related to the exacerbation or recurrence of the plantar fasciitis in March 2008 under the standard set out in Lange v. LIRC. In other words, the commission cannot conclude that the applicant would have suffered the same injury in March 2008, to the same extent, despite the existence of the work-related injury in December 2006.
The applicant therefore is entitled to temporary disability compensation from April 5, 2008 (she waived payment from March 26 through April 4, 2008 in her brief) to January 7, 2009, the date of her last examination by Dr. Patel. Assessment of whether the applicant remained in a healing period after the date will depend on the success of the proposed ESWT treatment.
Accordingly, the applicant is entitled to temporary disability from April 16, 2008 to January 7, 2009. The applicant's weekly temporary total disability indemnity rate is $479.17, given the applicant's conceded average weekly wage of $718.76. However, exhibit A further establishes that the applicant earned wages while working for Avis during this period. Specifically, from April 19 through June 27, 2008 the applicant earned wages from Avis in the sum of $1,161.82.
The period from April 5 through June 27, 2008 is a period of 12 weeks. At the weekly rate of $479.17, the applicant's entitlement to temporary total disability would be $5,750.04. However, under that amount must be reduced to "proportion to actual wages, as determined by comparing her earned wages" for that period. Multiplying the applicant's average weekly wage ($718.76) times 12 yields a product of $8,625.12. Her actual wage loss for that period was thus $7,463.30, ($8,625.12 minus $1,161.82(2)). Dividing by $7,463.30 by $8,625.12 yields an actual wage loss percentage of 0.8653, which when multiplied by the full temporary total disability amount for April 16 through June 27, 2008, yields the amount of $4,975.51 due for that period.
The applicant is entitled to the full amount of temporary total disability from June 28 through January 7, 2009 is a period of 27 weeks and three days. At the weekly rage of $479.17, that amount equals $13,177.27. In all, the respondent's liability for temporary disability under this order is $18,152.78 ($13,177.27 plus $4,975.51)
The applicant agreed to the withholding of an attorney fee for direct payment, set under Wis. Stat. § 102.26 at twenty percent of the amount awarded in temporary disability under this order, or $3,630.56 {0.2 times $18, 152.78)}. That amount, plus costs of $100.20 shall be withheld from the applicant's award and paid to her attorney within 30 days. The remainder, $14,422.02 shall be paid to the applicant within 30 days.
The applicant has also incurred reasonable and necessary expenses to cure and relieve the effect of the work injury, for which the respondent is liable under Wis. Stat. § 102.42. These are documented in exhibit B as showing $1,742.97 in charges from Ankle & Foot Center, of which $76.94 has been paid by the applicant, $902.92 has been paid by the worker's compensation insurer, $452.00 has been written off or adjusted from the bill, $123.92 has been paid by Medicare, $122.30 is identified as "Contr. Agree.", and $61.81 remains outstanding.
The next issue is the applicant's request for an order under Wis. Stat. § 102.18(1)(b) requiring the respondent to pay for the ESWT proposed by Dr. Patel. As noted above, Dr. Ferguson specifically provided that that procedure was a reasonable treatment for plantar fasciitis and a safe alternative to surgery. See exhibit 10. Dr. Ferguson went on to opine that the applicant's persistent plantar fasciitis was not caused by her work injury but, as explained above, the commission rejected that opinion. Accordingly, the commission shall order the respondent to pay for the ESWT treatment.
The last issue involves who must bear the expense of the applicant's trip to Wisconsin for the examination by Dr. Ferguson. It appears from the briefs and ALJ Lake's decision, the parties reached an some kind of understanding at a prehearing before ALJ Richard Smith under which the applicant or her attorney would pay the applicant's travel expenses for a second medical examination in Wisconsin if the respondent did not wish to rely on the results of Dr. Beskin's examination in Georgia.
The respondent in fact arranged an examination by Dr. Ferguson in Wisconsin. The respondent then refused to pay the travel expenses, citing the agreement at the prehearing before ALJ Smith. However, the applicant's attorney contends that he only agreed that the applicant would bear the travel expense if the examination coincided with a hearing originally scheduled in late 2009. That hearing was later postponed to April 2010 and the medical examination in Wisconsin was done in January 2010, so the applicant's attorney claims the applicant should not have to pay the travel expense twice.
There is some documentary support for the contention of the applicant's attorney at exhibit P. However, the parties offer the commission nothing in writing that memorializes their actual mutual agreement regarding the travel expenses. Absent an agreement between the parties on the actual terms--or an actual written agreement the commission may construe--the commission concludes the cost of the trip for the examination by Dr. Ferguson should remain where it is by statute--with the respondent under Wis. Stat. § 102.13(1)(b). The cost of that trip, $467.90, was advanced by the applicant's attorney and he is entitled to reimbursement from the respondent in that amount.
Given the necessity of future treatment, this order shall be left interlocutory to permit future orders and awards, including, potentially, compensation for additional temporary disability, or permanent disability, or both, after January 7, 2009.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Ola M. Gant, the sum of Fourteen thousand four hundred twenty-two dollars and two cents ($14,422.02) in disability compensation and ($76.94) in out-of-pocket medical treatment expense.
2. To the applicant's attorney, John D. Neal, the sum of Three thousand six hundred thirty dollars and fifty-six cents ($3,630.56) in fees, One hundred dollars and twenty cents ($100.20) in legal costs, and Four hundred sixty-seven dollars and ninety cents ($467.90) in reimbursement of the travel costs advanced.
3. To Ankle & Foot Center, Sixty-one dollars and eighty-one cents ($61.81) in treatment expense.
4. To Medicare, One hundred twenty-three dollars and ninety-two cents ($123.92) in reimbursement of treatment expense.
The employer and its insurer shall also pay reasonable costs associated with the extracorporeal shockwave therapy treatment proposed by Dr. Patel.
Jurisdiction is reserved for findings, orders and awards as are consistent with this decision.
Dated and mailed:
January 31, 2011
ganttol:wrr:101:5 ND6 3.39
BY THE COMMISSION:
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission discussed witness credibility and demeanor with the presiding ALJ. While she did find not find the applicant wholly incredible, the ALJ did believe that her testimony at the hearing did not wholly match what she told the doctors while she was treating.
The commission does not dispute this characterization of the applicant's hearing testimony. However, the ALJ did not suggest the applicant provided inaccurate information to Dr. Patel, Dr. Beskin, or Dr. Ferguson. As noted above, the commission reversed the ALJ based its reading of the reports of Drs. Patel and
Dr. Beskin, neither of whom testified at the hearing.
cc:
Attorney John Neal
Attorney Thomas Niemiec
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