GUADALUPE M ESTRADA, Applicant
WAL-MART ASSOCIATES INC, Employer
ILLINOIS NATIONAL INS CO, 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, except that it makes the following modification:
1. Delete the last paragraph of the ALJ's findings of fact (the first paragraph of page 7 of his decision), and insert:
"The applicant's treating doctors have indicated that further treatment, including surgery, is or may be necessary. This order shall therefore be left interlocutory to permit future orders and awards regarding medical treatment expense and disability compensation."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed
December 27, 2011
estrada . wsd : 101 : 5 ND6 5.5, 9.33
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
1. Injury and treatment.
The applicant injured her back on June 10, 2009, when she twisted and lifted a box of lettuce weighing 30 to 40 pounds. She was seen in a hospital emergency room that date, and over the next few months treated with a number of doctors, including Vince Masci, M.D., and Dennis Maiman, M.D., for complaints of radiating back pain. On October 22, 2009, Dr. Maiman recommended a laminectomy procedure with foraminotomies at L4-5 and L5-S1. Noting that the applicant and her daughter were uncertain on how to proceed, the doctor told them there was no urgency and that they could get back to him whenever they were ready. The applicant has since elected against the surgery proposed by Dr. Maiman.
2. Expert opinion.
Regarding the issues of causation and extent of disability, the applicant relies on a report from Dr. Maiman dated September 14, 2009 (exhibit C), which describes the accidental event or work exposure to which the applicant attributed her disability as "patient was a lifting a 30-35 lb. crate and twisted awkwardly, causing acute onset of low back pain." Dr. Maiman stated a diagnostic impression of "[l]umbar strain [with] left radiculopathy; L4-5 annular tear [with] disc bulge on the left; L5-S1 foraminal narrowing on the right; [and] inadequate analgesia."
The applicant also offers a later report from Dr. Maiman dated November 24, 2010 (Exhibit A). Referring to his prior reports for a description of the work injury and his diagnosis, he opined that the work injury caused the applicant's current disabling condition by precipitation, aggravation and acceleration of the preexisting progressively degenerative condition beyond its normal progression. Regarding the applicant's permanent restrictions, Dr. Maiman adopted those of the functional capacity evaluation (Exhibit R), which limit the applicant to one to two hours per day of essentially sedentary work. Dr. Maiman rated permanent partial disability at four percent for two-level radiculopathy causing pain symptoms, and indicated that he had recommended surgery but it was declined.
The applicant also offers a report from Dr. Masci dated June 8, 2010 (Exhibit C). Dr. Masci described the accidental event to which the applicant attributed her condition as "patient was lifting a 30-35 lb. crate and twisted awkwardly, causing acute onset of low back pain." The doctor opined that that event directly caused the applicant's disabling condition, which the doctor diagnosed as "lumbar strain [with] left radiculopathy, L4-5 annular tear and disc bulge to the left, L5-S1 disc bulge to the right." He opined she was able to return to work subject to permanent restrictions as of December 7, 2009, and he listed those restrictions as a five-pound maximum lift; standing or sitting for a maximum of 20 minutes; and a maximum four-hour work shift. He also noted that the applicant would require breaks as needed and that she should avoid walking and bending.
Dr. Masci testified at the hearing, where he showed imaging pictures that he said showed fluid in the facet joints two months after her injury. He opined the applicant's pain was caused both by the annular tear which is extremely painful, and also by impingement from the swelling in the facet joint and by subtle disc bulging against the nerve as a result of the work injury. (Transcript 39.) Dr. Masci added that the point of the surgery proposed by Dr. Maiman would be to relieve the pressure and take away the leg pain, though it would not relieve the back pain itself. (Transcript 39-40.)
Dr. Masci also explained at this point Dr. Maiman was not recommending a fusion surgery, but simply a laminectomy to remove the impingement on the nerve root. He added, too, that the surgery proposed by Dr. Maiman would not correct the annular tear. He testified that there was an 80 percent chance she would get better. (Transcript 43.)
The employer and its insurer (the respondent) arranged to have the applicant examined by Thomas Lyons, M.D., in November 2009. His diagnostic impression was musculoligamentous lumbar sprain and his initial report contains the following discussion:
The work incident of June 10, 2009, if the history is accurate, is consistent with a musculoligamentous lumbar sprain. In my opinion to a reasonable degree of medical probability, an injury of this nature should heal in six weeks which would place her end of healing at July 22, 2009.
I cannot substantiate Ms. Estrada's continued complaints by physical examination nor her MRI. The MRI to my eye shows only minimal degenerative changes, and there are no compressive lesions present that would account for her continued complaints. She also exhibits a considerable number of nonorganic signs which are indicative of symptom magnification.
Regarding the work injury, I recommend no further treatment, and she should be able to return to work without restriction.
In response to specific interrogatives, Dr. Lyons made it clear that the lifting injury of June 10, 2009, caused only a lumbar sprain from which the applicant had recovered without permanent disability as of July 22, 2009.
In a follow-up report dated June 4, 2010 (Exhibit 3), Dr. Lyons added that a review of additional medical notes did not change his opinion. He added, too, that he did not see the synovial cyst that Dr. Maiman identified in the MRI. Rather, he said the MRI films showed only minimal degenerative changes.
Dr. Lyons also offered an opinion regarding the "annular tear" identified by the applicant's treating doctor, particularly Dr. Masci. Dr. Lyons stated this term should more accurately be termed as an annular fissure or high intensity zone. He stated the term "annular tear" implied a traumatic etiology. He added:
In fact, many physicians refer to an annular tear being the result of an injury. Although intuitive and seemingly compelling, this rationale is specious. There is certainly no evidence in the mainstream medical literature to support the fact that these annular tears, or more accurately fissures, are traumatic etiology. In fact, they are felt by most physicians treating spinal disease to be part of the normal degenerative process. It is not clear whether they were even a source of pain in this case.
Exhibit 2 is a report dated December 27, 2010, from a radiologist, William Ford, M.D., who reviewed a series of reports and imaging studies at the request of the respondent. His conclusion was that the imaging scan showed degenerative facet changes mild to moderate in degree at L5-S1 and degenerative facet changes at
L4-5 in the mild category, although somewhat more moderate on the left. He did not see any acute findings and opined that the findings were rather chronic and would have predated the work injury.
The parties, of course, offer vocational opinion as well. Exhibit O is a report from the applicant's vocational expert, Bruce Schuyler. He described the applicant as a woman who has worked most of her life generally in unskilled physical positions, including migrant worker as a child and factory and housekeeping positions as an adult. He noted, too, that she dropped out of school in ninth grade and has not completed any formal education since that time.
Regarding the applicant's vocational options under Dr. Masci's work restrictions, Mr. Schuyler opined the applicant would be permanently and totally disabled on an odd lot basis given her limitations physically, educationally and academically. (Exhibit O.) Mr. Schuyler prepared a supplemental report based on Dr. Maiman's adoption of the restrictions in the functional capacity evaluation. Mr. Schuyler opined the applicant was permanently and totally disabled under those restrictions as well. (Exhibit P.)
The respondent introduced the report of Barbara Lemke regarding vocational loss. (Exhibit 4.) She opined that the restrictions set by Dr. Masci in September and December 2009, were either temporary, or it was unclear whether they were permanent or temporary. Accordingly, she could not rate permanent disability based on those opinions. She likewise viewed Dr. Maiman's December 5, 2009, opinion, though it rated permanent partial disability, as premature because of the possibility of surgery. Finally, she opined that based on Dr. Lyons' analysis, the applicant would have no permanent disability.
3. Discussion.
The ALJ found the applicant permanently and totally disabled. The respondent appeals.
a. Nature and extent of disability.
The first issue is whose medical expert opinion is more credible. Like the ALJ, the commission credits the opinions of treating doctors Maiman and Masci. Since her injury, the applicant has consistently complained to her treating doctors of unremitting back pain and pain into her right leg. She tried to return to work, but was unable to continue. The MRI scanning does not show a frank disc herniation, but she does have an annular tear. Her treating doctors credibly point to the annular tear as a pathology caused by the work injury--either directly or as an aggravation, precipitation, and acceleration beyond normal progression.
The ALJ saw the applicant testify and he believed her symptoms. So, evidently, did Drs. Maiman and Masci who treated her on a regular basis. Further, the applicant has a long history of physically demanding work spanning several decades. The commission declines to conclude that she is now inventing or greatly exaggerating her symptoms--as Dr. Lyons suggests--particularly where the record establishes continuing complaints following a clearly traumatic event requiring an emergency room visit on the day it occurred.
The next question is the extent of disability. Only Mr. Schuyler gave an opinion on vocational loss based on the permanent restrictions of the treating doctors. The restrictions set by Drs. Maiman and Masci, particularly those of Dr. Maiman when he adopted the functional capacity evaluation, are extremely limiting. Based on the record in this case and the factors set out in Wis. Admin. Code § DWD 80.34(1), the ALJ appropriately found the applicant is permanently totally disabled under those restrictions.
b. Refusal to undergo surgery.
On appeal, the respondent notes that the applicant was unwilling to undergo the surgery proposed by Dr. Maiman. Wisconsin Stat. § 102.42(6) provides that an unreasonable refusal of treatment can result in the denial of compensation during the period of refusal. See Braun v. Industrial Comm., 36 Wis. 2d 48 (1967). Generally, the commission emphasizes that it is the refusal that must be unreasonable. Simply because a proposed surgery is a reasonable choice, does not mean that the worker is unreasonable in refusing to undergo it. Reed v. Wal Mart Stores, WC claim nos. 2003-039103, 2001-005030 (LIRC May 24, 2005).(1) Indeed, the department has an unwritten policy against cutting off compensation under § 102.42(6) based on a refusal to undergo surgery requiring anesthesia. See Neal & Danas, Worker's Compensation Handbook, Section 5.5 (6th Ed. [2011]).
In this case, however, the respondent is not suggesting the applicant's right to disability compensation be denied as long as she refuses to undergo the surgery. Rather, the respondent argues that since Dr. Masci believes that surgery would have an 80 percent chance at improving the applicant's condition, it would be inequitable to continue to hold it liable for permanent total disability in the event the applicant chooses to pursue the surgery proposed by Dr. Maiman and it improves her to the point where she is no longer permanently and totally disabled.
However, the commission has previously held that it reserves jurisdiction in cases of permanent total disability not only to deal with ongoing medical expenses, but also the possibility a worker might actually improve in her condition and no longer be permanently totally disabled. Carol Thompson v. Cardinal FG., WC claim no. 1994-045301 (LIRC August 30, 2002). Given the concerns raised by the respondent, the commission modified the ALJ's order to eliminate the question on this point in this case.
cc:
Attorney David M. Turim
Attorney Staci M. Flinchbaugh
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]