DALE EDWARD RENDERMAN, Applicant
WAAS BORING & CABLE CO, Employer
REGENT INSURANCE CO, Insurer
In November 2007, the applicant filed a hearing application involving two separate injuries: an accidental injury to the lumbar spine which occurred on April 5, 2000, and an occupational injury to the cervical spine with a January 10, 2002 last-day-of-work date of injury.
On September 15, 2010, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $819 for both injuries. The respondent also conceded the April 5, 2000 back injury and it entered into a limited compromise agreement regarding permanent disability for that injury as discussed below. It also paid temporary disability for periods ending May 21, 2001, which it now claims was made under mistake of fact.
At issue is the nature and extend of disability for the April 5, 2000 injury. Also at issue is whether applicant sustained an injury arising out his employment on January 10, 2002, while performing services growing out of an incidental to that employment and, if so, the nature and extent of disability from such an injury. Finally, the respondent's liability for medical expenses associated with both injury dates is also at issue.
On October 5, 2010, the ALJ issued his decision in this matter. Both parties filed timely petitions for commission review.
The commission has considered the petitions 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. Background
The applicant was born in 1951. He worked for the employer in 1979 until January 10, 2002. When he began working for he employer, he had no back problems. He worked a 50 to 60-hour week.
Part of the applicant's job involved locating buried cable. This required use of a wand to locate buried wire, and a three-foot long spade to dig in the ground to uncover wires. His job also involved considerable walking to locate cable. While he did this job in rural areas, he would sometimes step in holes or slip and fall as he passed over rough terrain.
In addition to locating the buried wire, the applicant's job also involved operating a backhoe to uncover and bury cable. While operating the backhoe, the applicant experienced a great deal of vibration, particularly when digging concrete with an air hammer. He testified that the backhoe might bounce up and down as much as a two feet while digging through frost or concrete. In addition, he operated a jackhammer and operated vehicles over rough terrain.
In 1990, well before the April 5, 2000 back injury at issue here, the applicant underwent a left L4-5 laminotomy and micro-dissection which included the removal of a small herniated disc and decompression of the disc space. He treated periodically for back and radicular complaints thereafter, including nerve testing, epidural injection, and MRI imaging. Following a fall around October 1, 1999, and subsequent symptoms radiating into the right leg, he was treated conservatively which helped resolve his complaints. By January 29, 1999, his back and leg pain was gone.
2. April 2000 injury to the lumbar spine.
a. Initial treatment and limited compromise.
The applicant then suffered the accidental back at issue here on April 5, 2000, occurring when he stepped into a hole while working jarring his back. The applicant underwent a series of epidural injections followed by a surgery on December 12, 2000, specifically a L4-5 laminotomy and excision of herniated disc at L4-5 on the right.
After some physical therapy, the applicant saw his treating surgeon,
K.S. Paul, M.D., on March 26, 2001. Dr. Paul released the applicant to
light-medium duty work, with a limit on lifting up to 35 pounds occasionally, progressively increasing his hours of work beginning at 4-5 hours per day.
On May 14, 2001, the applicant returned to Dr. Paul who reported that the applicant was "left with back and left lower limb pain and numbness, which are residual symptoms from his herniated disc." Dr. Paul opined the applicant would have those symptoms permanently. He noted the applicant had been able to work at his job doing a lot of physical activity operating heavy equipment. The doctor stated the applicant was working a ten-hour day, which aggravated his symptoms no worse than if he had worked a four-hour day. The applicant asked the doctor if he could work a 14-hour day, so Dr. Paul released him to work a 14-hour day as tolerated. Dr. Paul also stated during this appointment on May 14, 2001, that the next appointment would be "as needed" but that if he was unable to tolerate work, the applicant should return to reconsider retraining and restriction of working hours.
The respondents examining doctor, James Gmeiner, M.D., opined that the applicant sustained a permanent partial disability at 5 percent following the surgery, but he was uncertain that the April 5 2000 work injury caused the disc herniation. Nonetheless, the respondent conceded an injury to the applicant's back on April 5, 2000. In addition, it conceded and paid permanent partial disability at 5 percent, and various periods of temporary disability, based on the April 5, 2000 injury date.
In a practitioner's report dated May 29, 2001, Dr. Paul estimated permanent partial disability from the April 5, 2000 work injury at 11 percent to the body as a whole. The applicant sought permanent disability at that amount.
In the fall of 2002, the parties entered into a limited compromise agreement under which the employer paid the applicant another $5,500 in return for being credited as having paid a total of 11 percent permanent partial disability due to the April 5, 2000 injury. The limited compromise further gave the applicant the right to claim permanent partial disability from the April 5, 2000 work injury beyond 11 percent. Exhibit Department 1.
That is what happening now. Specifically, the applicant claims additional permanent partial disability from a laminectomy at T9 in May 2004, as well as from a laminotomy with excision of disc material at L4-5 and a laminotomy at L3-4 on May 19, 2008.
b. Post-limited compromise treatment.
On September 8, 2003, Dr. Paul reported that he saw the applicant for a chief complaint of back and lower limb pain of two or three months in duration. The doctor noted the laminotomy and excision of disc material at L4-5 performed in December 2000. He also noted the applicant thereafter had some residual back and lower limb pain. The doctor reported that for the last couple of months the applicant's symptoms have been getting "really bad" with back and left lower limb pain and now right lower limb pain. The doctor's impression was back and right lower limb pain status post laminotomy and he thought the applicant needed an MRI of the lumbar spine to see if there was any compression of nerve roots, herniated disc, or scar tissue formation to explain his problem.
An MRI was done on September 24, 2003. The interpreting radiologist reported it as showing:
1. Right paracentral disc extrusion at L4-5 surrounded by scar tissue which is increased slightly from the prior study from 6/14/00.
2. Presumed resorption of the left-sided disc protrusion at the L5-S1 level.
In October 2003, the applicant saw Joel C. Jacobson on referral from Dr. Paul. Dr. Jacobson stated a diagnostic impression of "bilateral radiculopathy, right greater than left, secondary to postoperative changes and scar formation at L4-5 and L5-S1 as well as residual disk material compression the L5 nerve root."
On November 4, 2003, the applicant returned to Dr. Paul who wrote as follows:
...He continues to have a lot of back and right lower limb pain. We tried epidural steroid injections, which have not helped him. He has scar tissue formation. He had three epidural steroid injections, which did not help him. He continues to have a lot of back and right lower limb pain and some left leg pain too.
Plan: I discussed the possibility of doing spinal cord stimulation. He says that pain is his main problem. If it could be relieved by spinal cord stimulator, then he would be happy. Considering that I am referring him to Dr. Joseph for trial of spinal cord stimulator. If that helps, we can insert permanently.
On March 31, 2004, the applicant returned to Dr. Paul, who noted that since his last evaluation in November of 2003, the applicant had seen John Joseph, M.D., about trial of a spinal cord stimulator. Dr. Paul continued:
According to Dr. Joseph's report on spinal cord stimulator, he had good relief of back and right lower limb pain; at least 70 percent improvement. Leg pain improved. He has some back pain and some right leg pain, but he said he was a lot better. He was able to sleep and he was very comfortable with the trial. Dr. Joseph thinks that he is a good candidate for spinal cord stimulator doing laminectomy and putting in the laminectomy spinal cord lead.
The applicant wanted to proceed with the spinal cord stimulator surgery.
On May 6, 2004, Drs. Paul and Joseph performed a T9 dorsal laminectomy and insertion and implantation of a T9-T8 laminectomy spinal cord stimulator lead and insertion of a spinal cord stimulator post generator. This procedure was done on a pre and post-operative diagnosis of intractable chronic back and right lower limb pain, status post failed back syndrome.
When the applicant returned to Dr. Paul on May 14, 2004, the doctor noted the applicant had had the dorsal laminectomy and insertion of the spinal cord stimulator for back and right lower limb pain on March 6, 2004. In the ensuing visits, Dr. Paul noted satisfactory progress. On June 22, 2004, Dr. Paul reported that the applicant told him he had little pain and that he was following with Dr. Joseph, the surgeon who had done the spinal cord stimulator implantation surgery. Dr. Paul discharged the applicant at that time.
Several years later, on March 26, 2008, the applicant returned to Dr. Paul for a check-up. During this visit, Dr. Paul noted:
He previously had surgery done at L4/5, L5/S1 and excision of the current disc. He had a lot of scar tissue formation. In 2004 he had insertion of spinal cord stimulator which was giving good relief. He says that since the end of January he had started getting back and right leg pain. I'm not very sure what is happening, whether the post-generator batteries have exhausted...
Dr. Paul wanted to do a lumbar myelogram to see what was happening. On April 15, 2008, the applicant returned to Dr. Paul for a check-up. The doctor reported the lumbar myelogram and CT scan showed a very large herniated disc at L4/5 on the right compressing L5 and L4 nerve roots. The doctor discussed with the applicant the possibility of:
Doing opening of lumbar laminotomy L4/5 on the right side and excision of recurrent herniated disc and end some scar tissue from previous surgery and also doing bilateral decompressive lumbar laminotomy, medial facectomy, foraminotomy and L3/4 and decompress.
On May 19, 2008, Dr. Paul operated on the applicant. His pre-operative diagnosis was large recurrent sequestered L4-5 disc on the right side and lumbar spinal stenosis at L3-4, back and right lower limb pain. He described the procedure as follows:
1. Opening of L4-5 laminotomy on the right side and excision of recent large sequestered L4-5 disc on the right side and right L5 nerve root.
2. Bilateral decompressive lumbar laminotomies, medial facectomies, and foraminotomies L3-4, decompression of lumbar spinal theca and both L3-4 nerve roots bilaterally.
The applicant returned to the doctor on May 22, 2008, and Dr. Paul reported the back and leg pain were gone. The doctor released him to return as needed on June 17, 2008.
c. Expert medical opinion.
With respect to the applicant's lumbar complaints, the first question is whether the surgeries and treatment that the applicant had after the December 12, 2000 surgery relates back to the April 5, 2000 injury when the applicant stepped into a hole at work.
In response to a set of written interrogatories on September 14, 2009 (exhibit B), Dr. Paul opined that he believed that both the May 6, 2004 surgery for implantation of the neuro-stimulator and the May 19, 2008, surgery at L4-5 were related to the applicant's work accident of April 5, 2000. The doctor rated 5 percent permanent partial disability for laminectomy at T9 for the neuro-stimulator placement in May of 2004, and 7 percent (5 percent for the L4-5 laminotomy and excision of the recurrent disc plus 2 percent for residual numbness) following the surgery on May 19, 2008.
Subsequently, on February 19, 2010,(1) Dr. Paul amended his report to address that part of the May 19, 2008 surgery that involved the procedure at L3-4 (exhibit D). He stated that he believed the applicant was entitled to 12 percent permanent partial disability to the body as a whole as a result of his May 19, 2008 two-level lumbar laminotomy (10 percent for the two-level laminotomy and 2 percent for residual numbness to the feet). He noted that in the previous interrogatory he was only asked about information regarding the herniated disc, not the laminotomies. He added:
It is my opinion that the surgery at the L4-5 level was necessitated due to the original work injury of 4-5-00 as were the additional surgeries Mr. Renderman has had. The surgery was necessary at the L3-4 level due to the related surgery at L4-5 and the recurrence of the herniated disc on at least two separate occasions.
Added to the five percent for the implantation of the neural cord stimulator procedure of May 6, 2004, then, Dr. Paul rated permanent partial disability at a total of 17 percent for disability to the lumbar spine.
The respondent, for its part, relies in part on the opinion of James Gmeiner, M.D. As indicated above, Dr. Gmeiner's initial opinion rendered on March 4, 2002 (exhibit 1), was that the applicant had a 5 percent permanent partial disability at five percent following his one-level decompression surgery performed by Dr. Paul in 2000, but that he did not believe that the applicant's alleged injury of April 5, 2000 was consistent with an acute disc herniation.
In a subsequent report dated March 25, 2008, (exhibit 5) Dr. Gmeiner diagnosed the applicant as status post discectomy and implantation of a spinal cord stimulator, but added that he believed the applicant was attempting to portray himself as disabled from an objective standpoint when this could not be verified on physical examination. He did not think the applicant had any disability beyond the 5 percent he had previously rated. He thought the spinal cord stimulator placement was unreasonable and unnecessary.
d. Discussion.
In the case now before the commission, ALJ Falkner, who saw the applicant testify, credited the opinion of his treating doctor, Dr. Paul, and found that the applicant had indeed sustained additional disability from the April 5, 2000 injury after the time of the limited compromise. The commission agrees, noting that Dr. Paul reported residual symptoms from the time of the very first surgery. Subsequent established scarring and a recurrent herniated disc impinging on the applicant's nerve roots. The medical notes also establish that the applicant's condition grew progressively worse as time passed.
Consistent with the ALJ's findings, the commission finds that the applicant was in a healing period and temporarily disabled due to the May 6, 2004 surgery from May 6, 2004 through March 1, 2005. The commission further finds that the applicant was in a healing period and temporarily disabled due to the May 19, 2008 surgery from May 19, 2008 through June 17, 2008.
Turning to the extent of the applicant's permanent disability related to the April 5, 2000 injury, the commission begins with the ALJ's finding that the applicant sustained a 9 percent permanent partial disability for the original surgery in 2000, for which the limited compromise gave the employer a credit of 11 percent. The commission adopts the ALJ's 9 percent rating for the 2000 surgery, which is based on the code minimum five percent for the discectomy plus four percent for residual symptoms.
The commission also adopts Dr. Paul's estimate of permanent disability at 5 percent for the May 6, 2004 neuro-stimulator surgery (which involved a laminectomy but not disc material removal) and 12 percent for the L3-4 and L4-5 procedures done in the May 2008 surgery. Dr. Paul did not in either case expressly state that he based those awards on the minimum ratings he was compelled to give under the administrative code. The commission does not rule out the conclusion that Dr. Paul felt that those were appropriate estimates for those surgical procedures in the exercise of his own independent medical opinion.
Moreover, as the applicant's attorney points out, while the text of Wis. Admin. Code § DWD 80.32(11) setting the minimum rating for specified surgeries does refer only to "removal of disc material" and "spinal fusion"--not laminectomy or laminotomy procedures per se--there is a note attached to Wis. Stat. § DWD 80.32(11), and it provides:
It is the subcommittee's intention that a separate minimum 5% allowance be given for every surgical procedure (open or closed, radical or partial) that is done to relieve from the effects of a disc lesion or spinal cord pressure. Each disc treated or surgical procedure performed will qualify for a 5% rating. Due to the fact a fusion involves two procedures a 1) laminectomy (discectomy) and a 2) fusion procedure, 10% permanent total disability will apply when the 2 procedures are done at the same time or separately.
Reading the attached note appended to the rule, it seems clear that the department intends to allow the 5 percent minimum for laminectomies or laminotomies, assuming they are part of a decompressive procedure. Discussing this very point, the commission previously held:
The respondent ... argu[es] that a two-level fusion without removal of disc material mandates a total minimum assessment of only 10 percent. ... In support of this argument, the respondent notes that the code provides for an additional five percent per level for a discectomy, but the applicant here did not have a discectomy procedure.
However, the commission concludes that the treating surgeon and the ALJ appropriately rated permanent disability at 20 percent. True, the text of the administrative rule itself refers to spinal fusions and removal of disc material as separate procedures, but does not similarly refer to a laminectomy as a separate procedure. However, the Note appended to the rule states:
[Text of subcommittee note omitted.]
In the commission's view, the subcommittee's Note resolves this issue. The persuasive value of the department's interpretive notes is generally acknowledged [citing Lisney v. LIRC, 171 Wis. 2d 499, 513 (1992)], and the commission observes that the subcommittee's Note was promulgated as part of the rule itself. The first sentence of the Note indicates that five percent permanent partial disability is given for any procedure, including partial procedures, done to relieve spinal cord pressure. In this case the operative report and the treating surgeon's letters establish that the purpose of the partial laminectomy was "decompression" or to relieve spinal cord pressure. Indeed, the operative note distinguishes between the decompression (laminectomy) procedure and the instrumentation (fusion) procedure.
Beyond that, of course, the third sentence of the subcommittee's Note states that the minimum award for a surgery including both a laminectomy procedure and a fusion procedure is 10 percent per level involved. The commission declines to read from the inclusion of the parenthetic term "(discectomy)" that the subcommittee erroneously thought that discectomy and laminectomy are the same procedure, and that the ten percent rating applies only when a discectomy is actually involved. Read in conjunction with the first sentence of the note and the examples provided after the Note, the commission infers the parenthetical term "(discectomy)" was included to make it clear that a 15 percent rating would not be given for a surgery involving all three procedures (fusion, laminectomy, and discectomy). In any event, the commission is satisfied that the most reasonable reading of the rule requires a minimum of 20 percent permanent partial disability on a functional basis (10 percent per level) in this case.
Donald Falk v. Cummins Great Lakes Inc., WC claim no. 1995034834 (LIRC, December 8, 1999).
In this case, Dr. Paul's note states opinion that the L3-4 laminotomy done on May 19, 2008 was a decompressive procedure. The commission is satisfied that the applicant is entitled to the full 12 percent estimated by Dr. Paul for the May 19, 2008 procedures. That percentage, added to the five percent for the May 6, 2004 neuro-stimulator surgery, and the nine percent for his condition as of the time of the limited compromise totals 26 percent. Deducting the 11 percent for which the applicant is entitled credit under the limited compromise, the applicant is entitled to an additional 15 percent in permanent disability due to the lumbar injury on April 5, 2000.
3. Occupational exposure to January 2002 and the cervical spine injury
a. Facts.
The next issue is the applicant's cervical condition. At the outset, it is worth noting that the employer's medical examiner, Steven E. Barron, M.D., agrees the applicant's treatment was reasonable to cure and relieve the effects of his spine condition. To summarize, the applicant began complaining of cervical symptoms in October of 2000 when he told the doctor that his right hand and arm were going numb. This was followed by an MRI which showed mild disc bulging at C5-6 in November of 2000.
The applicant stopped working in January 2002. After a visit to Kirtida Ringwala, M.D., on April 9, 2002, during which the applicant complained of right hand numbness and shoulder pain (exhibit H), the applicant saw Dr. Paul on May 21, 2002. During this visit, the applicant stated a chief complaint of cervical and right upper limb pain for about 2 years in duration. During this visit, Dr. Paul noted the applicant had begun experiencing right arm and elbow pain two years earlier. The pain started in the neck, and then went to the shoulder, arm, and elbow, with associated numbness and tingling in both hands. Activity made the pain worse, and the pain had been getting progressively worse, and had become intolerable. Stating a diagnosis of cervical and right upper limb pain and numbness in the hand, Dr. Paul ordered an MRI.
The applicant then underwent an MRI on May 31, 2002. This showed more right sided disc protrusion at C5-C6 and degenerative changes at C6-7 and C4-3. After ordering and considering a cervical myelogram and CT scan of the cervical spine, Dr. Paul recommended conservative treatment during the summer of 2002. Accordingly, the applicant underwent physical therapy and epidural injections in the months that followed. Dr. Paul eventually released the applicant to work with restrictions in December 2002.
When the applicant had persisting symptoms in 2007, he returned to Dr. Paul who did get another myelogram and CT scan and this showed cervical spondylosis at C5-6 and an osteophyte at that level compressing the C6 nerve root giving rise to right upper limb pain. Accordingly, in November of 2007, Dr. Paul performed a cervical discectomy at C5-6 with decompression at that level and a cervical fusion.
In a follow-up note, Dr. Paul noted the applicant was doing well as of March 26, 2008.
b. Expert medical opinion.
Regarding the November 5, 2007 cervical discectomy, decompression and fusion at C5-6, Dr. Paul has opined that the applicant's work exposure was a material contributory causative factor in the onset or progression of the applicant's cervical condition and the need for cervical surgery. See Exhibits A and C. Dr. Paul also opined that the applicant was entitled to permanent partial disability at 10 percent to the body as a whole for the disability to the cervical spine, which is the minimum under the administrative code for a cervical discectomy and fusion procedure.
Dr. Paul's opinion is consistent with that expressed in a treatment note from November 27, 2002, when the doctor stated:
As far as the cause for his cervical pain and upper limb pain is concerned, his work does involve a lot of physical activity, lifting, carrying, bending, and using heavy jack hammers, vibrating tools, and a lot of neck movements. He has sustained chronic injury to his neck. ... In Dr. Ringwala's notes there is mention of cervical spine injury at his work on October 17, 2000, and again in her notes on May 6, 2000 treatment for his cervical spine, which is related to work . Also on June 18, 2000, also indicated cervical spine pain related to work. Once again in April , 2002, there is note of cervical pain and upper limb pain. He had been getting on-going cervical pain and upper limb pain and had been treating with Dr. Ringwala. Dr. Ringwala's notes indicate these are repeated neck injuries at work. In my opinion, chronic exposure to trauma and repeated injuries to his neck is the cause for his cervical or spondylitic changes in his neck, which is the cause for his present symptoms. In my opinion, it's related to his work.
The respondent retained the opinion of Steven E. Barron, M.D., who, as noted above, opined that the applicant's treatment was reasonable, but gave a diagnosis of degenerative disc disease of the cervical spine, which he believed was the natural progression of preexisting degenerative disc disease unrelated to his work exposure. Indeed, Dr. Barron asked the applicant about his work duties which Dr. Barron describes as follows:
He told me he was a heavy equipment operator. He had to use a backhoe, a trencher, a plow and a Cab. Prior to 2000, his neck and right upper extremity began having pain. There was no specific injury. He states he had to jackhammer only a few times per year. He basically ran the heavy equipment. He told me had to shovel dirt one hour a day. He had to use a locator to find cable with a wand. The wand weighed three or four pounds. He had to use the wand in fields and on the roads. He stated when he used the equipment, he was bounced around. After reviewing the type of activities he did at work, my opinion holds that his work as a described is of insufficient magnitude, duration and frequency to precipitate, aggravate and accelerate degenerative disc disease beyond its normal progression. It is still my opinion that the occurrence complained of is a mere manifestation or appearance of symptoms of a definitely preexisting deteriorating condition unrelated to his work.
In his supplemental report dated August 27, 2010 (exhibit 3), Dr. Barron opined that the applicant remained in a healing period from his cervical surgery until November 5, 2008, when he reached a healing plateau with permanent partial disability at ten percent compared to disability to the body as a whole.
c. Discussion.
Between these two opinions, the commission, like the ALJ, finds Dr. Paul's more credible. The commission does not accept Dr. Barron's opinion that the applicant's work duties were not a material contributory causative factor in the onset or progression of the applicant's degenerative disc disease at the cervical spine. The applicant not only had to walk substantial distance on uneven terrain to locate cable, and dig with a spade on a regular basis, but he also operated a jackhammer. The applicant also credibly described the bouncing he experienced while operating machinery on rough or frozen ground. Dr. Paul accurately states these duties in his report, and the commission adopts his opinion.
The commission is satisfied that the applicant has established that he sustained disability to the cervical spine from an injury caused by a material period of workplace exposure that was a material contributory causative factor in the onset or progression of his disabling cervical condition. In other words, the applicant has established a cervical injury arising out of his employment with the employer, sustained while performing services growing out of or incidental to that employment.
The next issue is the applicant's claim for temporary disability related to his cervical injury. The first period the applicant claims is from January 10, 2002 through December 2, 2002. The ALJ recognized that the applicant provided an opinion by Dr. Paul that the applicant could return to work with certain restrictions as of December 2, 2002. However, the ALJ concluded that the record was insufficient to establish that the applicant was in a healing period during that time.
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...
The commission is persuaded that the medical record in this case establishes that the applicant was in a healing period from May 21, 2002 (when he began treatment for his neck problems with Dr. Paul) to December 2, 2002 (when Dr. Paul released him to return work subject to restrictions. Dr. Paul noted on May 21, 2002 that the applicant could not tolerate his cervical pain, that the pain was progressive and getting worse, and that he got numbness and tingling in both hands that was worse with activity.
Further, the functional capacity evaluation done in October 2002 identifies a flare-up in May 2002 that sent the applicant to see Dr. Paul. Even the opinion of the employer's independent medical examiner, Dr. Barron, indicates the applicant was receiving substantial treatment between May and December 2002.
As of May 2002, the applicant was off work, treating for his cervical problems, and only released to work with restrictions in December 2002. Dr. Paul had the applicant undergo a functional capacity evaluation in October 2002, a step that is normally a prelude to declaring an end of healing and a return to work. Dr. Paul's November 2002 treatment note (and his November 27, 2002 endorsement of the functional capacity evaluation) refers to a planned "release back to work" indicating that--as of November 2007--the doctor believed he could not work.
In short, it seems the commission concludes that the applicant off work and subject to temporary restrictions limiting his ability to work due to his cervical condition well before Dr. Paul released him to work subject to restrictions in December 2002. It is reasonable to infer from the record that the applicant was disabled from work due to his cervical condition when he began treating with Dr. Paul.
Nor has the employer has not shown that there was limited duty work available for him before December 2, 2002 when Dr. Paul released him. The applicant testified that he did not work after January 10, 2002 when he was told by Marlene, an employee of the employer, that he could not return to work "until [he] was fixed." The employer's owner and superintendent testified at the hearing, and he did not contradict the applicant's testimony on that point.(2)
The ALJ did not pay for this period because he believed there was insufficient support for the conclusion that applicant could not work due to his cervical spine condition during this period. He noted also that the applicant was symptom excessive. However, the fact that Dr. Paul began taking steps to return the applicant to work in the fall of 2002 leads to the reasonable inference he could not have done his strenuous job with the employer for at least some period before then. Further, the applicant received considerable treatment from May to December 2002 for cervical symptoms. Again, even the employer's examiner, Dr. Barron, agreed that the cervical treatment was reasonable for the symptoms at that time. The applicant's job was physically demanding, with a great deal of bouncing, and performing relatively strenuous tasks as described above. The record sufficiently supports the payment of temporary total disability for the May 21 through December 2, 2002.(3)
The commission further finds the applicant is entitled to temporary total disability related to his cervical injury from November 5, 2007 (the date of the cervical fusion surgery) to March 26, 2008 (when he saw Dr. Paul post-surgery), the period of temporary disability awarded by the ALJ.
In addition, the applicant is entitled to permanent partial disability related to his cervical condition at ten percent compared to disability to the body as a whole. This is the administrative code minimum for the cervical fusion procedure that theapplicant underwent, and the estimate given by both Dr. Paul and Dr. Barron.
4. Award.
As a result of the two injuries at issue in this case, the applicant incurred reasonable necessary medical expense to cure and relieve the effects of the work injuries, from the providers and in the amounts shown in exhibit I. According, the respondent is liable for those expenses, and they shall be ordered paid within
30 days.
With respect to the April 5, 2000 injury to the lumbar spine, the applicant is entitled to a total of $47,305.50 in compensation, calculated as follows:
With respect to the April 5, 2000 injury, the applicant's attorney is entitled to an attorney fee of $11,826.43, calculated as follows:
With respect to the January 10, 2002 injury to the cervical spine, the applicant is entitled to a total of $34,041.29 in disability compensation, calculated as follows:
With respect to the January 10, 2002 injury, the applicant's attorney is entitled to an attorney fee of $8,510.37, calculated as follows:
For both injuries, the, the sum due the applicant in disability compensation is $81,346.79 and the sum due in attorney fee is $20,336.80. The respondent shall pay these amounts within 30 days.
The applicant has undergone substantial surgery to treat his conditions, and further treatment and disability seems likely. An interlocutory order is appropriate where, as here, it may not definitely be determined that the injured worker will not sustain additional 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). See also Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Accordingly, this order shall be left interlocutory to permit orders and awards regarding disability regarding future claims for temporary and permanent disability and medical expense.
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:
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
March 30, 2011
renderm.wrr:101:5 ND6 6.6, 6.21.
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
Laurie R. McCallum, Commissioner
The commission did not consult the administrative law judge concerning witness credibility, because the modifications it made were not dependent on a different impression of witness credibility. The modification to the permanent disability award for the April 5, 2000 injury was based solely on a difference in the application of Wis. Admin. Code § DWD 80.32(11) to the same set of facts. The ALJ denied compensation for temporary disability award for the January 10, 2002 injury for the period from January 10 to December 2, 2002 because he did not think it was supported by the medical record, specifically, the absence of an opinion that restricted the applicant from working on temporary basis. As explained in the body of this decision, the commission determined that the medical record adequately supported the conclusions that the applicant's ability to work was restricted due to his cervical condition and that the employer did not provide restricted duty work to him during this period.
cc:
Attorney John Edmondson
Attorney Daniel Pedriana
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