DAVID G CHASE, Applicant
QPS COMPANIES INC, Employer
LIBERTY INSURANCE CORP, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed
August 31, 2011
chaseda.wsd:101:5 ND6 5.5; 6.6; 6.10
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
1. Posture.
The applicant suffered a crush injury to his right foot at work in 1995. Following an off-duty re-injury to his foot, he developed a non healing ulceration on his right toe as the result of the damage done from the earlier work injury. He thus claimed a period of renewed disability beginning in 2002. The employer and its insurer (collectively, the respondent) initially denied the claim and the matter went for hearing.
After a decision by an ALJ in the respondent's favor, the commission issued a decision in July 2009 which reversed and found the respondent liable for the
re-injury under the Lange case.(1) Specifically, the commission's decision stated:
Accordingly, the commission finds that the applicant sustained a compensable re-injury in the form of a right great toe neuropathic ulcer. The actual date on which the ulcer developed is not specified in the record, but the record does indicate that the first day of missed work attributable to the ulcer was December 9, 2002, which is therefore the date of injury. The applicant claims temporary total disability from December 9, 2002, through the date of hearing on October 30, 2008. However, in a clinic note dated April 18, 2008, Dr. Gosset recorded the applicant's complaint that he had not always been able to stay off his right food because "he is a cook requiring standing for prolonged periods of time." This leads to the inference that the applicant may have been working for some period or periods prior to seeing Dr. Gosset on that date. Accordingly, the matter will be left interlocutory to allow opportunity for new hearing with respect to the issue of what amount of temporary disability is due between the dates of December 9, 2002 and October 30, 2008.
The parties disagreed about what the commission's July 2009 order meant. The applicant took the position that the only issue on remand was whether the respondent could prove that the applicant had other employment during the period from December 9, 2002 to October 30, 2008 which would reduce his temporary disability to temporary partial disability. The employer, on the other hand, asserted that the commission had not decided whether there was any liability for temporary disability during the identified period, so the applicant had to prove he had been taken off work due to a work injury.
2. Discussion.
a. Healing period and restrictions from work
The commission's July 2009 decision found the applicant had sustained a compensable injury, and that there was at least some period of temporary disability. While the commission's decision stopped short of expressly stating that the applicant was entitled to temporary disability from December 9, 2002 to October 30, 2008 unless he had worked during the period specified, the order was meant to convey that.
In any event, the record amply establishes the applicant was in a healing period and subject to work restrictions during the period at issue, and so entitled to temporary disability. As the respondent points out, the case law requires that generally an injured worker be submitting to treatment in order to be regarded as being in a healing period. Regarding a "healing period," the supreme court has held:
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
In this case, numerous medical treatment records establish that the applicant was limited in the type of work, if any, he could perform due to the condition of his toe. Indeed, the respondent's own independent medical examiner, Dr. Steliga, stated a diagnostic impression of:
Right foot/toe microvascular arterial occlusive disease secondary to a crush injury of 1995 associated with neuropathy causing neurotrophic ischemic ulceration.
Dr. Steliga further stated in his May 10, 2010 practitioner report at Exhibit 1:
It is clear from my evaluation, as well as Dr. Gosset's letter that the examinee was in a healing stage for this condition from December 2, 2002, to the present and continuing.
Dr. Steliga added that the applicant could pursue gainful employment that would involve a sedentary activity, but that standing and walking would aggravate his great toe ulcer.
In other words, the respondent's vocational expert has stated that the applicant is in a healing period, and can only work subject to work restrictions, due to a complication from the work injury. This is significant because, by statute, temporary disability includes the period during which an employee could return to a restricted type of work during the healing period, subject to certain exceptions. However, an employee may be ineligible for temporary disability if suitable employment is furnished to him or her or if the employer or some other employer makes a good faith offer of suitable employment. See, Wis. Stat.
§ 102.43(9)(intro.) and (a).
In this case, there is no assertion that the employee has returned to work for the named employer or that the named employer has offered him employment within his restrictions. Rather, the case was remanded because of the possibility that the applicant might have been working elsewhere. At the hearing, he flatly denied he ever worked anywhere else during his healing period. As the ALJ notes at length in his thorough findings on this issue, some of the treatment medical notes indicate the applicant had been working, or expected to return to work, while many other medical notes indicate the applicant was not working at all.
The commission is persuaded that the applicant has established that he was not employed during his healing period, assuming it is his burden to prove. Admittedly, some medical records seem to suggest he worked or intended to return to work, but he denied returning to work and the ALJ who saw him testify found that denial credible. Further, many other records indicate he was unable to work and indeed should avoid work that would place a load on his foot (which includes the cooking work the respondent suggests he performed). Finally, even if he was employed briefly on a few occasions for a couple of days, which he denies, the commission does not believe it warrants reversal of the ALJ's decision in this case.
The respondent also argues the applicant failed to show that a doctor ever took him off work. However, as recited above, the respondent's own medical examiner gives an opinion that is sufficient to establish liability for temporary disability under Wis. Stat. § 102.43(9). While the new changes to § 102.43(9) took effect in 2006, or after the beginning of the applicant's claim for temporary disability, the court of appeals has indicated that they are reflective of the statutory scheme as it existed before the enactment of the law. See Emmpak Foods, Inc., v. LIRC, 2007 WI App 164, 15, 303 Wis. 2d 771. Indeed, the current statutory language tracks the long-existent Wis. Admin. Code § DWD 80.47.
In short, the applicant has established that he was in a healing period, that he was subject to work restrictions, that he was treating for his big toe ulcer during that period, and that he has not worked or been offered work within his restrictions during that period. Consequently, the applicant is entitled to temporary disability.
b. Failure to treat.
However, the respondent argues further that the applicant has missed some medical treatment appointments and has failed to follow advice such as to stop smoking, lose weight and not walk on his toe. The respondent contends the applicant has failed to treat, or failed to follow reasonable treatment recommendations, thus ending his claim for disability under Wis. Stat. § 102.42(6).
The commission does not agree. First, for much of the period of temporary disability awarded by ALJ Martin, the employer was disputing its liability for the great toe ulcer. Where a respondent refuses to pay for treatment, the respondent may not point to a worker's unchanging condition after that refusal as an endpoint of healing. Carole Lee v. Famous Fixtures, WC Claim No. 96000857 (LIRC July 2, 1997). See also, LeBlanc v. Laidlaw Transit, WC Claim No. 2005-043498 (LIRC November 6, 2008).
Similarly, in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 461-62 (1977), a case involving a claim of an unreasonable refusal to treat under Wis. Stat. 102.42(6)(2), the court stated:
In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [Citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose.
In other words, a worker's failure to seek treatment at his own or the public's expense should not be viewed as unreasonable refusal or neglect to submit to treatment under § 102.42(6). Id. Thus, up until the date of the commission's first decision in July 2009, failure to treat cannot serve as a basis for denying liability.
Dr. Steliga states in his report:
His poor compliance to recommended treatment is a chronic recurring theme as indicated above. He would see his medical provider at which time good care was rendered and the ulcer would start to close. Appointments were then missed, smoking was continued, and ambulation was embarked upon at which point the ulceration worsened or at best became static in nature.
However, the commission is not persuaded that the treatment records bear out Dr. Steliga's characterization of many missed appointments or ambulation beyond what was medically permitted. Indeed, the applicant treated on many occasions for his foot between 2002 and 2010.
The medical notes indicate that the applicant has been prescribed an orthotic which he is supposed to use when he walks to avoid placing weight on the part of his toe that is ulcerated. He does not always use his orthotic (T.47), but he testified that he has been given some discretion regarding his orthotic use by his doctor. (T. 52-53). Further, the medical notes in Exhibit 2 document satisfactory orthotic use in 2009 and 2010.
On this point, the commission also notes Braun v. Industrial Comm., 36 Wis. 2d 48 (1967). There, an injured worker underwent skin grafting on his foot to treat a work injury, but left the hospital, walking on his feet, against medical advice shortly after the surgery. Two medical experts testified that act delayed his healing significantly. Nonetheless, the court affirmed the commission's award of temporary disability to the date of hearing. The court did, however, instruct the commission to look at continuing temporary disability with strict scrutiny noting the unreasonableness of a worker's actions in failing to treat is an objective standard. The court added that while an employer may have to take an employee as he is with regard to his physical injury, it does not with regard to his refusal or neglect to follow competent or reasonable treatment. Id., at 36 Wis. 2d 61. Applying the Braun standard, the commission is satisfied the applicant in this case remains entitled to temporary disability.
Finally, the commission is generally reluctant to regard noncompliance with a recommendation to lose weight or stop smoking as a disqualifying failure to treat. In Algis Vilunas v. Bob Radtke Inc., WC Claim No. 1998-019745 (LIRC May 19, 2003), the commission noted a general discussion of the issue in Larson, Workers' Compensation Law § 10.10 [intro.], [4] (LEXIS NEXIS, 2002), which included the following observation:
...when the prescribed treatment involves weight reduction, although in principle the cases should be assimilated to the exercises cases, courts have been less stern, perhaps because almost everyone has some personal experience of good-faith but ineffective weight-reduction efforts -- and are reluctant to stigmatize these all-too-human failures as "wilful refusal." Here, as in the case of surgery, the test of reasonableness applies.
Applying the test of reasonableness, the commission concludes the applicant is entitled to temporary disability as awarded by ALJ Martin despite his failure to stop smoking.
cc:
Attorney Robert Angermeier
Attorney Peter Topczewski
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