JEFFREY A HABERMAN, Applicant
SHORELINE REAL ESTATE, Employer
EMPLOYERS ASSURANCE CORP, Insurer
The applicant filed an application for hearing in October 2006, seeking compensation for a back injury sustained on November 19, 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 8, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury occurring on or about November 19, 2005, and an average weekly wage at the time of injury of $911.62. Specifically, the respondent conceded a compensable injury to the L4-5 level of the lumbar spine, but not the L5-S1 level. Prior to the hearing, the respondent paid temporary disability in the sum of $57,627.33 and permanent partial disability in the sum of $22,022.
In dispute at the hearing was the compensability of the applicant's claimed injury to the L5-S1 level of the lumbar spine, the nature and extent of disability beyond that conceded, and the respondent's liability for medical expense. The ALJ issued his decision on July 15, 2010. Both parties petitioned for commission review.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in 1961. He worked for the employer from June 8, 1998 through November 19, 2005. He was a maintenance worker, doing plumbing and electrical work. He also updated apartments, replaced appliances and did snow removal.
In 2002, while working for the employer, the applicant suffered a herniated disc in his back. This was treated surgically and he was off work for a year. After that he returned subject to a 50-pound lifting restriction.
The applicant sustained the back injury now at issue on November 19, 2005. At the time of the injury he was bleeding a radiator, which required him to get on the floor and reach under the radiator enclosure. After he performed this task, he could not straighten up. He stopped working and reported the injury to his supervisor.
Shortly after the injury, on November 23, 2005, the applicant presented to Dr. Gilson, complaining of right-sided low back pain radiating into his thigh and leg. Dr. Gilson ordered an MRI which was done in November 2005 and showed a central L4-5 disc bulge and mild bulge with left foraminal narrowing at L5-S1. This MRI report, dated November 30, 2005, at exhibit 16.
The applicant returned to Dr. Gilson on December 2, 2005 (exhibit 16). Dr. Gilson took the following history:
The patient has two-week history of bilateral low back pain radiating to the gluteal area and both legs, greater in the right than in the left. He was seen last week and found to have a positive straight leg raising sign and was given Medrol Dosepak, which did not help. He was also put on Aleve, and this did not help either. He has been taking Vicodin, but this does not relieve his pain. The pain the right leg goes all the way to the foot and left leg to the knee. It hurts more when he is bending and feels better when he is supine.
Dr. Gilson's assessment was:
The patient probably has a bilateral radiculopathy related to a central disk bulge or herniation, and he will probably benefit from a trial of epidural steroids.
Dr. Gilson recommended the applicant see Igor Levin, M.D., for a series of epidural injections.
Accordingly, on December 8, 2005, the applicant saw Dr. Levin. He completed an "initial pain management questionnaire" in which he indicated he was experiencing throbbing, gnawing, aching and tiring pain in his back, part way down his left leg and all the way down his right leg. He rated the pain at 4 at its least severe and 5-1/2 as most severe. In the pain management questionnaire, the applicant indicated the date of onset of November 19, 2005 from an accident at work.
In his treatment note of December 8, 2005, Dr. Levin took the following history:
[The applicant] ... was previously seen by me back in 2002 for a series of epidural steroid injections stemmed from a work related injury. He also underwent percutaneous disk decompression at L4-L5 following a diskogram. That treatment relieved his pain, and he was comfortable for several years. The patient noticed increasing work load this summer and also increasing pain during the last month or so.
CHIEF COMPLAINT: Pain, mostly in his buttocks on the right side and radiates all the way down to his right leg, mostly at the posterior part of his thigh down to his calf and ankle area. He has much less pain on the left, it also goes down to the knee only. This pain is constant, throbbing, annoying, aching pain. Mr. Haberman also describes a sensation of some suddenly he is catching in his back and would not allow him to stay straight.
His symptoms are overall similar to the pain he had during his last treatment back in 2002 and for that reason, I believe it is still part of the same work-related injury.
Dr. Levin's diagnostic impression was a clinical picture of lumbar radiculopathy most likely stemming from the L5 nerve root given the distribution of symptoms. He wanted to proceed with an epidural steroid injection and then a middle branch nerve block at L5-S1.
The doctor went ahead with the injection on December 23, 2005. When he returned for follow-up on January 13, 2006 the doctor noted he was doing somewhat better after the first injection and performed a second one. Dr. Levin performed a third injection on January 26, 2006 noting that the first injection was much more helpful than the second one, but that the applicant continued to have some numbness and weakness in his right leg.
On February 13, 2006, the applicant returned to Dr. Levin. Noting the applicant's continued complaints, he referred the applicant to see Spencer Block, M.D., regarding surgical intervention. Meanwhile, Dr. Levin performed a medial branch nerve block at L4-5 and L5-S1 on the right side.
The applicant in fact saw Dr. Block on February 24, 2006. His note to Dr. Gilson dated that day at Exhibit M:
The patient is a 44-year-old man who while at work on November 19, 2005 was reaching up and under a radiator and had significant increase in low back pain. He reported the accident to his boss on November 25, and on November 22 went to the emergency room with significant low back pain. The plaintiff complains of low back and right hip pain. He describes a significant burning and stabbing-type pain down the posterior aspect of his legs bilaterally, right worse than left. He also complains of pain in the lateral aspect of the right leg. He finds that there is tightness and aching in his calf. He reports that his leg sometimes gives out. The left leg symptoms stop at the knee while the right leg symptoms travel down the leg. He reports that his leg pain is more significant than his back pain. The patient a history of low back pain with a previous MRI scan in 2002 after a different work accident. The patient was seen by Dr. Levin with two epidural steroid injections which he feels provided some benefit to his leg pain.
Dr. Block noted that an MRI of the lumbar spine showed significant degenerative disc disease at L4 with foraminal narrowing bilaterally. The doctor's assessment was "significant leg pain as well as low back pain with degenerative changes noted on the MRI." His plan was to do an EMG to determine whether a fusion or a decompressive surgery might help.
The applicant saw an examiner retained by the respondent, Stanley E. Robbins, M.D., for an examination in March 2006. Dr. Robbins opined to a reasonable degree of medical certainty that the applicant had discogenic low back pain that was recently aggravated by an injury on November 19, 2005, while working for the employer. Specifically, Dr. Robbins opined the applicant sustained a lumbar strain and temporary aggravation of his preexisting condition of discogenic back pain. He opined the applicant's symptoms were related to the previous surgical intervention and ongoing employment with the employer. He did not believe the applicant had reached an end of healing as of the time of his examination and he recommended he undergo physical therapy. See exhibit K.
On March 17, 2006, the applicant returned to Dr. Block, who reported that a review of the EMG was negative without any signs of radiculopathy. However, the applicant continued to complaint of low back and bilateral leg pain. Specifically, he described a numbing, tingling and burning type pain with loss of sensation. The doctor was "suspicious of the L4-5 disc space" and wanted to try a back brace as a prelude to considering a fusion.
When the applicant returned to Dr. Block on March 31, 2006, the doctor noted that while the EMG was negative for radiculopathy he suspected that the applicant's condition was being caused by irritation of the nerve root. He noted that another physician, Dr. Robbins, had recommended physical therapy before attempting surgery. Dr. Block thought this was reasonable although because physical therapy had not been particularly helpful in the past, Dr. Block felt that the applicant should "under the auspices of a physical medicine and rehabilitation position." To this end, he referred the applicant to Jeffrey Gorelick, M.D.
Dr. Gorelick's April 16, 2006 treatment note at exhibit D recommended physical therapy. However, Dr. Block reported on June 22, 2006 that physical therapy did not help but in fact increased his pain symptoms. As of the date of Dr. Block's June 2006 report, therefore, the applicant had ceased physical therapy. Dr. Block added that
[The applicant] has failed all conservative measures. Therefore this would certainly make him an appropriate surgical candidate, especially since his TLSO brace was helpful in reducing all of his symptoms.
The applicant returned to Dr. Gorelick on July 26, 2006, and the doctor did a right buttock trigger point injection at that time. On August 16, 2006, Dr. Gorelick's assessment was:
[The applicant] was involved in a work injury on 11/19/2005. He continues to have residual effects from this injury. He did not respond favorably to a recent trigger point injection. Given the fact that he has ongoing right L4-L5 paracentral disc herniation and sciatic complaints, I recommend that he seriously be considered for surgical intervention. I believe he has failed nonsurgical management.
The applicant returned to Dr. Block in January 2007. At that point, Dr. Block ordered a new MRI. On January 31, 2007, Dr. Block reported that the updated MRI showed degenerative disc disease at L5-S1 with some erosion of the disc space there. As a result of the findings on the new MRI, Dr. Block felt that he should do a two-level fusion, at both L5-S1 and L4-L5, because if he did not, the increased strain placed on the L5-S1 level after an L4-L5 fusion would cause acceleration of the current arthritis in recurrent symptoms in the future.
The applicant went ahead with a posterior lumbar interbody fusion at L4-L5 and L5-S1 on February 26, 2007. On follow up on March 23, 2007, Dr. Block noted that after surgery the applicant did not have any leg pain other than occasional aching into his left hip. Overall, the applicant felt significantly improved and told Dr. Block that the surgery had been a success.
Dr. Block reported that the applicant was doing well post operatively in May and July of 2007. In September of 2007, Dr. Block noted increasing back pain but felt that this might be because the applicant was decreasing his pain medication while increasing his activity to a more normal level. Dr. Block did believe the applicant's fusion mass appeared to be solidifying and that there was not any problem shown in the X-ray. He recommended physical therapy to address the applicant's pain complaints.
When the applicant returned to Dr. Block on November 16, 2007, the doctor reported that the applicant had a favorable post-operative outcome but experienced ongoing low back pain which was aggravated during a recent course of formal physical therapy. The doctor noted that the applicant's recent CT scan showed a well healed lumbar fusion from L4 to the sacrum, though the applicant continued to experience low back pain which worsened with any physical activity.
Dr. Block continued:
...At this point in time his therapist has recommended that he be discharged to home exercise program. I have no objection to this. Additionally I believe that his functional capacity evaluation should be revised as this seems to exaggerate his current abilities. I do not think Mr. Haberman is likely to be able to lift over 20 lbs. on any type of ongoing basis and I also believe likely that he will only be appropriate for sedentary or lighter duty work activities in the future.
Noting the possibility that the applicant's complaints might be due to his fusion hardware, Dr. Block recommended injection over the pedicle screws.
On December 7, 2007, Dr. Block reviewed the applicant's updated imaging scans, including a new MRI. He noted, too, that the applicant had a favorable response to trigger point injections over the pedicle screws. Dr. Block continued:
This indicates that his lumbar fusion hardware may be playing a role in his pain symptoms. There is a pedicle screw fracture, which has been previously noted. This is unchanged over time. There is no erosion around the pedicle screw itself and the fusion mass appears to be robust. I believe that once we hit the
one-year post operative mark, that we should continue removing [the applicant's] lumbar fusion hardware.
Dr. Block concluded that he did not believe the applicant was capable of returning to his previous employment and therefore kept him off work until the recommended surgery was accomplished.
On January 28, 2008, Dr. Block removed the fusion hardware. On follow-up on February 8, 2008, Dr. Block noted that the applicant reported that his
pre-operative pain had clearly improved. He denied any lower back pain symptoms. Dr. Block noted the applicant continued to do very well on February 29, 2008.
On April 25, 2008, Dr. Block reported that he was pleased with the applicant's post operative progress but that he continued to describe low back pain. He did not think the applicant had reached a point where he could return to work yet, however. He referred the applicant to Dr. Gorelick for rehabilitation consultation and expected that he would reach an end of healing within three months.
When the applicant returned to Dr. Block on July 25, 2008, Dr. Block reported that the applicant had been seen by Dr. Gorelick, but continued to complain of low back pain which he felt was musculoskeletal in nature. Dr. Block felt the applicant had reached his healing plateau but he kept him off work until August 2008 when he would be seen again by Dr. Gorelick. At this point, Dr. Block released the applicant from his care.
There is a treatment note from Dr. Gorelick dated January 9, 2009 at Exhibit C. Dr. Gorelick states that when he least saw the applicant in October of 2008, he recommended the applicant continue with his medications, remain off work for medical reasons, and follow-up with DVR. In January of 2009 the applicant told Dr. Gorelick that he was ten percent worse. He told the doctor is pain was mostly in the lower back though he did have some right leg symptoms, too. He also had pain in both hips. Dr. Gorelick's assessment was:
[The applicant] has been experiencing low back pain since he was involved in a work injury on 11/19/2005. He continues to experience the effects of that injury. He has been through extensive testing over the years. He has had a least two functional capacity evaluations. He continues to rely on Hydrocodone....
The doctor diagnosed chronic bilateral lumbosacral sprain/strain status post L4-5 fusion; coccydynia, chronic; intermittent right sciatica, chronic; and functional limitations due to chronic low back pain. He recommended the applicant remain off work until he could follow with the Division of Vocational Rehabilitation.
He also set the following work restrictions based on chronic low back pain and sciatic symptoms:
The applicant saw Dr. Gorelick again a year later in March of 2010 when the doctor opined the applicant had, if anything, gotten worse since January of 2009. Accordingly, Dr. Gorelick made a new functional capacity evaluation. In March 2010, then, Dr. Gorelick set the following work restrictions:
Treating surgeon Block and treating doctor Gorelick have opined that the applicant's work injury in November 2004 caused his current disability, and made necessary his fusion surgery at both levels in January 2007 (and inferentially the hardware removal procedure in January 2008). See especially Dr. Block's report at Exhibit J and Dr. Gorelick's note at Exhibit O. See also Dr. Gorelick's report at exhibit C, and his hearing testimony.
In his hearing testimony, as well as his report at exhibit C, Dr. Gorelick rated permanent partial disability at 46 percent. He explains that the original two-level fusion done on February 26, 2007 resulted in permanent partial disability at 20 percent, which is the minimum under the administrative code for a two-level fusion. He stated that the January 28, 2008 "re-exploration" procedure increased the functional permanent partial disability to 40 percent, and that persistent pain increased the rating to 46 percent. Dr. Gorelick's permanent work restrictions are set out at length above.
The respondent relies on the reports of Dr. Robbins who opines that the surgery at the L4-5 level was reasonable and related to the work injury but the surgery at the L5-S1 level was not work-related but due to ordinary aging.
Specifically, in his September 25, 2007 report at Exhibit 7, Dr. Block stated:
To a reasonable degree of medical certainty, based on a review of this patient's history, physical examination and medical records, it remains my opinion that (the applicant) has a diagnosis of degenerative disc disease at L4-5 with chronic lumbar radiculopathy. The degenerative changes were aggravated and accelerated as a result of an industrial injury on 11/19/2005. He has had a previous herniated disc diagnosed in 2002 that was treated with a percutaneous discectomy. The injury of 11/19/2005 caused aggravation and acceleration of his pre-existing condition of degenerative disc disease changes at L4-5. According to the records, Dr. Block proceeded with a PLIF (translaminar interbody fusion) procedure involving both the L4-5 and L5-S1 levels. The surgical intervention was directed at the L5-S1 level, is secondary to disc disease changes and has not been aggravated or accelerated as a result of the claimed injury.
The surgical intervention at the L4-5 level was reasonable and appropriate and was directly related to the injury of 11/19/2005. The surgical procedure at L5-S1 is not work related and is secondary to degenerative disc disease changes that occurred as a result of normal aging.
.... He has sustained 10 percent permanent partial disability of the lumbar spine as a result of the L4-5 arthrodesis. He has an additional 10 percent permanent partial disability as a result of the L5-S1 arthrodesis, although that is not work related.
... In view of his chronic and radicular symptoms, Dr. Block proceeded with hardware removal and re-exploration of the fusion on January 28, 2008. The fusion mass is solid. This certainly was a reasonable procedure and he sustained an additional 2 percent permanent disability as the result of hardware removal with a plateau of healing as of April 28, 2008. He therefore has sustained a 12 percent permanent partial disability of the lumbar spine as a result of the November 19, 2005 injury.
Mr. Haberman has permanent work restrictions of 20 lbs. of lifting. He is capable of working 8 hours per day. He should avoid repetitive bending, lifting and twisting not to exceed 5 to 7 episodes per hour. He requires the ability to alternately sit or stand every 30 minutes. He is capable of working an 8 hour a day, 5 days a week. In my opinion he will not miss 2 to 3 days per month as a result of the previous injury and subsequent surgical intervention. He appears to have a significant functional behavior that is presently limiting his functional status to 4 hours per day with 2 to 3 days off per month.
The L4-5 interbody fusion was performed as a direct result of the injury of November 19, 2005. The surgical intervention at the L5-S1 level was related to his pre-existing condition of discogenic changes.
He does not require any ongoing treatment other than the use of pain medication and participation in a home exercise program. He does not require any going treatment as the result of the injury of November 19, 2005.
2. Discussion and award
The ALJ found that the work injury caused the need for both the L4-5 and L5-S1 fusions, as opined by Dr. Block. On appeal, the respondent asserts that only the L4-5 fusion was made necessary by the work injury, as opined by Dr. Robbins.
The commission, like the ALJ, finds the opinion of Dr. Block more credible on this point. Dr. Block persuasively explained in his pre-surgery note of January 31, 2007, he recommended fusing the L5-S1 level because he felt that if he did not do so, the increased strain placed on that level after the L4-5 fusion would cause acceleration of the current arthritis and recurrent symptoms.(1) Further, while the procedure at L5-S1 may arguably be viewed as necessary because of the treatment of the injury at L4-5, rather than the injury directly, it remains compensable. See Jenkins v. Sabourin, 104 Wis. 2d 209, 315 (1981). See also Neal & Danas, Worker's Compensation Handbook § 3.41 (6th ed. 2010). In short, while the applicant's pre-existing condition may have contributed to the need for the L5-S1 fusion, it too was caused by the work injury.
The next issue is the extent of temporary disability. As set out above, Dr. Robbins set an April 28, 2008 end of healing date, while Dr. Block set a July 25, 2008 date. Dr. Robbins explain he chose the April 28, 2008 date because it was three months after the procedure in which the fusion hardware was removed. On the other hand, Dr. Block actually examined the applicant in April and July of 2008. In April 2008, he expressly declined to set a healing period, stating he did not think the applicant had reached a point where he could return to work, and referred the applicant to Dr. Gorelick for rehabilitation consultation. In July 2008,
after re-evaluation following further x-rays, Dr. Block declared an end of healing. On this basis, the commission finds the July 25, 2008 end-of-healing date more credible.
The department's records show that the respondent paid temporary disability from the date of injury through August 2, 2008 in the sum of $68,311.10. According to the department's calculations, the respondent is liable for:
In all, the department calculated the respondent's liability for temporary disability for the period from November 19, 2005 to April 28. 2008 (or through April 27, 2008) to be $57,627.33. The department thus calculated an overpayment in temporary disability at $10,683.77 ($68,311.10 minus $57,627.33).
However, the commission concludes that the applicant remained temporarily and totally disabled to July 25, 2008, when Dr. Block declared and end of healing. The respondent is thus liable for temporary total disability affected by the social security reverse offset from April 28, 2008 through July 24, 2008, a period of
12 weeks and four days, at the weekly rate of $349.76, totaling $4,430.30, and an attorney fee for that period at the weekly rate of $87.44 totaling $1,107.57. The additional sum in temporary disability and fee under this order, then is $5,537.87 ($4,430.30 plus $1,107.57), reducing the overpayment of temporary disability to $5,145.90 ($10,683.77 minus $5,537.87).
The next issue is the extent of permanent disability once the applicant reached an end of healing on July 25, 2008. On a functional level, Dr. Robbins assessed permanent partial disability at 22 percent: 10 percent each for fusion at two levels (see Wis. Admin. Code § DWD 80.32(11)), and two percent for the hardware removal. Dr. Robbins, of course, did not think that the L4-S1 fusion is due to the work injury. However, as explained above, the commission, like the ALJ, concluded otherwise.
As stated above, Dr. Gorelick rates permanent partial disability at on a functional basis at 46 percent. However, the commission concludes that the applicant's permanent partial disability on a functional basis is 22 percent. The commissions cannot accept Dr. Gorelick's significantly higher rating, which effectively doubles the permanent disability rating after the hardware removal procedure of January 2008. On this point, the commission notes that Dr. Block's notes suggest improvement in pain and functional after that procedure.
The next issue is the extent of loss of permanent partial disability on a vocational basis for loss of earning capacity. The applicant contends he is permanently and totally disabled. The respondent asked that the commission to defer any rating for permanent disability until the applicant undergoes vocational retraining.
In her most recent report for the respondent and in her hearing testimony, Barbara K. Lemke opines that under the second set of restrictions of Dr. Gorelick in March 2010, the applicant would be permanently and totally disabled under an odd lot basis. Ms. Lemke also testified at the hearing that the applicant would have a 45 to 50 percent loss of earning capacity under Dr. Gorelick's first set of restrictions given in January 2009. Given the permanent work restrictions assigned by Dr. Robbins, however, Ms. Lemke thought the applicant would have a loss of earning capacity in the 30 to 40 percent range via direct placement in the open market. See Exhibits 1, 2, and 20.
In reaching this conclusion, Ms. Lemke noted that the applicant had acquired various skills through his employment as a general maintenance worker, including use of various tools and the ability to read manuals and blueprints. She thought he could find work in the production and manufacturing settings under
Dr. Robbins' restrictions. Specifically, she thought he could find work as an electrical assembler, and engine assembler, a team assembler, a production inspector, or a production tester. See Exhibit 2.
Finally, Ms. Lemke opined that the applicant would be able to complete an associate level degree if he pursued vocational retraining with the Division of Vocational Rehabilitation, and that doing so would minimize his loss of earning capacity. She opined further that a course of retraining could be undertaken in
80 weeks or less.
The applicant's vocational expert is Martha Johnson. She opined the applicant would have a 60 to 65 percent loss of earning capacity under Dr. Robbins' restrictions and, indeed, under the first set of restrictions offered by Dr. Gorelick. She felt he could find work in jobs such as parking lot attendant, hand packager, motor vehicle operator, cashier, security guard, usher, counter retail clerk, retail salesperson, and counter attendant. Based on the more recent restrictions set by Dr. Gorelick, however, she, like Ms. Lemke, opined the applicant was permanently and totally disabled on an odd-lot basis.
Ms. Johnson also opined that:
Given (the applicant's) relatively young age retraining is still an option at this time, but he reported he does not want to pursue this option.
The applicant's own statements regarding vocational rehabilitation have been inconsistent. His vocational expert, Ms. Johnson, reported in her July 25, 2009 report that the applicant was not interested in retraining. Exhibit B, page 4. Yet three days later, on July 28, 2009, the applicant told the respondent's vocational expert Lemke that while he had not actually applied for services he had contacted DVR and "intends to apply with the DVR after his work compensation matter is resolved." At the hearing, the applicant testified that he in fact made that statement and added he would like to find a job if possible. However, he stated he did not go to DVR because he did not feel he could be retrained. Dr. Gorelick, who testified at the hearing, acknowledged that he referred the applicant to DVR, but stated that he was unsure whether DVR would be able to help him under either of his set of restrictions.
As the parties point out, the commission has the authority to order a worker to undergo vocational rehabilitation before awarding permanent disability. The Supreme Court has held that:
"The ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages."
Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278 (1972). In prior cases, the commission has required retraining before reaching the issue of loss of earning capacity. See for example Luthra Cole v. Modern Products Inc., WC claim no. 91024321 (LIRC, August 31, 1994); David Vallier v. Best Fireplace Co, Inc., WC Claim No. 2004-006710 (LIRC, April 29, 2009).
On the other hand, willingness to undergo vocational rehabilitation or retraining is one of the factors that may be reasonably considered in making an award for loss of earning capacity under Wis. Admin. Code § DWD 80.34(1)(j). Thus, the commission may proceed to assess permanent disability for loss of earning capacity, while keeping in mind in making the award that the applicant does not want to pursue retraining.
That course seems particularly appropriate here. The applicant is now a relatively older worker, faced with a retraining program of up to 80 weeks. His attitude toward retraining is ambivalent to say the least. Looking at the record taken as a whole, the commission concludes that the applicant really has no interest in pursuing vocational retraining. While neither expert suggests that the applicant's age would have precluded the applicant from pursuant the associate level degree suggested by Ms. Lemke, the commission declines to require retraining as a precondition to an award for permanent disability for loss of earning capacity under the facts of this case.
The ALJ saw the applicant testify and he did not credit the second set of restrictions, given by Dr. Gorelick in 2010. The commission agrees. The record discloses little basis for Dr. Gorelick to issue new, more limiting work restrictions in 2010, except for the applicant's subjective complaints of a worsening condition which the ALJ did not credit. Further, Dr. Block, the applicant's surgeon, noted relatively good results when he plateaued the applicant following the fusion instrumentation removal. The commission therefore concludes that the restrictions set by Dr. Robbins, and by Dr. Gorelick's in his first set of restrictions, more accurately state the applicant's current physical capacity.
The applicant's vocational expert opined that the would have a 65 percent loss of earning capacity under either Dr. Robbins' restrictions or under Dr. Gorelick's first set of restrictions. The respondent's expert rated loss of earning capacity at
45-50 percent under Dr. Gorelick's first set of restrictions, but opined it was only 30 to 40 percent under Dr. Robbins' restrictions.
The commission, again like the ALJ, credits the opinion of the applicant's expert, Ms. Johnson. The commission concludes that the respondent's expert,
Ms. Lemke, understates the vocational effect of the work restrictions upon the applicant's capacity to obtain and retain employment performing the various semiskilled, but relative strenuous, tasks he could do before his injury. Taking into account the applicant's disinclination to undergo vocational retraining as well as the other factors under Wis. Admin. Code § DWD 80.34, the commission accepts Ms. Johnson's rating of loss of earning capacity at 65 percent. The record does not support the finding the applicant that the applicant is permanently and totally disabled.
The applicant has therefore sustained permanent partial disability on a vocational at 65 percent, into which the functional disability of 22 percent is subsumed, and so is entitled to 650 weeks of permanent partial disability. At the weekly rate of $242 (the statutory maximum for injuries in 2005), the total due in permanent partial disability $157,300, accruing beginning on July 25, 2008.
As of March 8, 2011, 136.667 weeks of permanent partial disability (or $33,073.33) have accrued, while 513.333 weeks (or $124,266.67) remains unaccrued. Department records indicate that the respondent had, by the date of the hearing, paid 91 weeks of permanent partial disability totaling $22,022.(2) Subtracting that amount ($22,022), as well as the overpayment in temporary total disability ($5,145.90), from the amount of permanent partial disability currently accrued ($124,266.67) leaves total currently due in disability of $5,905.43.
The applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. s 102.26 at twenty percent on the additional amount awarded by this decision.3) The fee on the accrued portion of the award is $1,181.09 (0.20 times $5,905.43). The future value of the fee on the unaccrued portion of the award is $24,845.33 (0.20 times $124,226.67). However, that portion of the fee is subject to an interest credit of $5,243.28 for its advance payment, leaving a present value fee on the unaccrued award of $19,602.05. The total present value fee, then is $20,783.14 ($19,602.05 plus $1,181.09). That amount, plus attorney costs of $1,924.58 shall be paid to the applicant's attorney within 30 days.
The amount due the applicant within 30 days is $2,799.76, which equals the total currently due in disability ($5,905.43), less the fee thereon ($1,181.09), and less costs ($1,924.58). The due the applicant in monthly installments of $1,048.67 as it accrues after March 8, 2011 is $99,381.33, which equals the total unaccrued award ($124,226.67) less the future value of the fees thereon ($24,845.33).
The applicant incurred medical expenses to cure and relieve the effects of the work injury, as documented in exhibit L. It does not appear the respondent challenges the treatment expenses documented exhibit L per se, or that part of the ALJ's award based on exhibit L, except with respect to the issue of the compensability of the L5-S1 fusion procedure addressed above. Accordingly, the commission finds that the respondent is liable for the outstanding expenses documented in exhibit L, as well as the amounts paid by non-industrial insurers, assuming those amounts have not already been paid by the worker's compensation insurer.
The final issue is whether to issue an interlocutory order. The discretion to issue an interlocutory order is broad. Interlocutory orders are authorized by Wis. Stat.
§ 102.18(1)(b) which states in part:
...Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards.
In general, an interlocutory--as opposed to final--order is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the 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). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992).
The applicant has undergone a significant surgical operation and Dr. Gorelick opined that further treatment for medication management would be necessary. Applying the above standards, the commission reserves jurisdiction to permit additional awards for disability and medical expense that may arise in the future if any.
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, Jeffrey A. Haberman, the sum of Two thousand seven hundred ninety-nine dollars and seventy-six cents ($2,799.76) in disability compensation and Three thousand eighty-eight dollars and eighty-three cents ($3,088.83) in medical treatment expense and medical mileage.
2. To the applicant's attorney, James Carroll, the sum of Twenty thousand seven hundred eighty-three dollars and fourteen cents ($20,783.14) in fees and One thousand nine hundred twenty-four dollars and fifty-eight cents ($1,924.58) in costs.
3. To Aurora St. Luke's, Two hundred thirty-three dollars and sixty-eight cents ($233.68) in medical treatment expense.
4. To Wisconsin Health Center, Four hundred nineteen dollars and ninety-five cents ($419.95) in medical treatment expense.
5. To Affiliated Health Plan/Pain Rehabilitation Associates, Four hundred three dollars and ninety-one cents ($403.91) in medical treatment expense.
6. To Milwaukee Neurological Institute, One hundred sixteen dollars and eighty-two cents ($116.82) in medical treatment expense.
7. To United Healthcare, Twenty-nine thousand thirty-five dollars and twenty cents ($29,035.30) in reimbursement of medical treatment expense paid.
8. To Blue Cross, Seven hundred thirty-seven dollars and fifty-five cents ($737.55) in reimbursement of medical treatment expense paid.
9. To Title XIX, One thousand five hundred sixty seven dollars and ninety-eight cents ($1,567.98) in reimbursement of medical treatment expense paid.
Beginning on April 8, 2011, and continuing on the eighth day of each month thereafter, the employer and its insurer shall pay the applicant, Jeffrey A. Haberman, One thousand forty-eight dollars and sixty-seven cents ($1,408.67) per month until the remaining sum of Ninety-nine thousand three hundred eighty-one dollars and thirty-three cents ($99,381.33) in disability compensation has been paid.
Jurisdiction is reserved for further orders and awards as are consistent with this decision.
Dated and mailed: February 28, 2011
BY THE COMMISSION:
habermj:wrr:101:5 ND6 6.40, 9.33
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Because the commission's modification of the ALJ's decision turned largely on its reading of the reports of the medical experts, neither of whom testified at the hearing, no credibility conference was held with the presiding ALJ. See Hermax Carpet Marts. v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney James M. Carroll
Attorney Joseph Danas
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