DENNY PASSIALIS, Applicant
GRAND GENEVA LLC, Employer
ZURICH AMERICAN INS CO, Insurer
The applicant filed a hearing application in December 2009, seeking compensation for a recurrent hernia in 2008 allegedly caused by a work injury on August 11, 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on April 14, 2011.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $677.88, and that the applicant sustained a compensable injury arising out of his employment on August 11, 2005. At issue was the nature and extent of the applicant's disability and the respondent's liability for medical expense.
The respondent paid temporary disability compensation from September 1, 2005 to January 5, 2006, and again from February 15 to 26, 2009, in the total amount of $8,413.56, but asserted that any compensation paid after January 5, 2006 was paid by mistake of fact. The applicant claims additional temporary total disability from November 28, 2008 to November 20, 2009, permanent partial disability on a functional basis at 25 percent to the body as whole, and permanent partial disability on a vocational basis for loss of earning capacity at 48 percent.
On May 12, 2011, the ALJ issued her decision dismissing the application. The applicant filed a timely petition 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. Injury and treatment.
The applicant was born in 1963. In 1998, while working for another employer, the applicant suffered a blunt trauma to his abdomen that damaged his liver. He needed surgery to repair the liver and, as a result, an 18 inch long incision was made in his abdomen. He recovered from the surgery and was able to engage in relatively heavy employment for a number of years.
In 2004, the applicant began working as a maintenance mechanic for the employer. On August 11, 2005, while working, the applicant tried to lift a mixer that weighed about 200 pounds. As he did so, he felt a pop and pain in his umbilical area.
On August 25, 2005, the applicant saw P. Olszewski, M.D., (Exhibit J) who noted the applicant was:
Here with a ventral hernia. He has a history of surgery for a lacerated liver. Quite a large scar in the midabdomen. He thinks he lifted something heavy at work, and he thinks he is having some bulging. No significant pain.
On examination, Dr. Olszewski noted the applicant, while in no distress, had a scar on his mid abdomen and a couple of areas that were consistent with bulging hernias. He referred the applicant to a surgeon.
Accordingly, the applicant saw Thomas H. Hirasa, M.D., on September 9, 2005 (Exhibit J). The applicant returned to Dr. Hirasa on October 13, 2005, when the doctor noted the applicant reported "more bulging and more discomfort over the area." On examination that day, the doctor noted:
The abdomen is soft, nontender. The area of the incisional hernia just above the umbilicus is still present. However there appears to be a new protuberance just above this that may be an expansion of this hernia. The patient has a known diathesis recti(1) which was observed on previous examination over the site of his entire laparotomy incision.
The doctor's impression was a symptomatic incision or hernia. He noted that the progression of the hernia over a short period of time called into question "whether or not the integrity of the thinned area above the umbilicus is indeed simply thinning from a diathesis versus a potential hernia." Uncertain how to proceed, Dr. Hirasa referred the applicant to another surgeon, Dr. Starling.
The applicant saw Dr. Starling on October 20, 2005, when the doctor reported the applicant had "periumbilical discomfort with a small defect as well as a diastasis recti.(2) He told the applicant he spent about 20 minutes "talking about surgery for diastasis and its limited success [emphasis supplied]." The doctor explained that his approach with "the occasional patient I agreed to try to fix is to plicate with permanent sutures then place a sheet of AlloDerm on top of that [emphasis supplied]." See exhibit I.
Dr. Starling recommended a surgery to the applicant which he performed on November 1, 2005 (exhibit I). As indications for the procedure, Dr. Starling noted:
Mr. Passialis is a 42-year-old gentleman who had previously undergone an exploratory laparotomy. He has an uneventful recovery until several months ago, when he was lifting a heavy object at work as a laborer and experienced some pain in his periumbilical region. The patient was evaluated, including CT scan of the abdomen and pelvis which revealed several areas of weakness in his fascia and an obvious hernia defect superior to his umbilicus. After understanding the risks and benefits of the procedure, including hernia recurrence, the patient elected to undergo operative intervention. [Underlining added].
During the surgery, the doctor made an incision using the prior laparotomy scar from approximately two centimeters below the umbilicus to the top edge of the midline scar. The doctor completely opened the fascia, "took down" some preperitoneal adhesions and then placed a "piece of thick AlloDerm" which was anchored by suture to the fascia.
The applicant apparently had a fairly normal recovery from the surgery, for which the respondent conceded liability. He was able to return to work without restrictions as of January 20, 2006. In fact, after his employment with the employer ended in March 2006, the applicant worked in several other relatively heavy jobs.
Then, in November 2008, the applicant felt a pop and sudden pain in the umbilical area while straining at the stool due to constipation.
The applicant treated on three occasions in late 2008 in an emergency room. The last two times he was seen by Franz Keilhauer, M.D. The doctor noted the applicant had initially been diagnosed in the emergency room with a muscle strain. However, Dr. Keilhauer felt he had problems associated with his past surgery, specifically some scar tissue or adhesions. (See Exhibit K).
The applicant subsequently saw a number of physicians including K.A. Blumofe, M.D., whom he saw first on January 15, 2009. She noted he had been having upper left quadrant abdominal pain that had been going on for some time. She noted, too, that he was told he might have adhesions but he thought his hernia was back. On examination, she could not appreciate a hernia defect though adjacent to the umbilicus she noted some bulging that feels more consistent with a small hernia. She told the applicant she did not feel he was having pain from a hernia, but that he might have adhesions from his previous surgery, and that the best way to check was through a laparoscopy. She wanted him first to have a colonoscopy/endoscopy and if this turned out normal, then she would recommend a surgical laparoscopy with lysis of adhesions.
After the colonoscopy/endoscopy evaluation in the GI clinic was negative, the applicant returned to Dr. Blumofe. She explained that:
I really do not believe that the hernia is causing his left upper quadrant pain. I do think that it would be reasonable to place a laparoscope into his abdomen to evaluate for possible adhesive disease. If he has significant adhesions he can undergo lysis of adhesion. He is also interested in having the incisional hernia repair and I reviewed with him the risks and benefits of surgery.... I explained to Denny due to his heavy smoking history he is at a higher risk of having a hernia recurrence. (Exhibit L)
Dr. Blumofe proceeded to surgery on February 16, 2009. Her preoperative and postoperative diagnosis was "chronic left upper quadrant pain, midline incisional hernia." She performed an exploratory laparoscopic lysis of adhesions and an incisional hernia repair. During the surgery, she noted the applicant's liver, which previously had trauma to it, was adhering to the anterior abdominal wall. She did not want to remove it because of fear of liver injury, but she did clear off any other adhesions. She also identified the hernia and, having completed lysis of the adhesions, she removed the ports for the laparoscopy and did the repair of the incisional hernia in the periumbilical region.
The applicant left the hospital against medical advice after this procedure. According to the applicant, he did not recover well. He was treated in an emergency room for postoperative abdominal pain on February 19, 2009. When the applicant returned to Dr. Blumofe on February 25, 2009 (Exhibit J), she told him she would treat him for another 30 days, but because he had left the hospital after her surgery against medical advice, he would have to find another surgeon. She reported the applicant said that his left upper quadrant pain had resolved, but he was continuing to have some discomfort in his umbilical region.
The applicant apparently continued to have pain complaints. On June 30, 2009, he saw M. A. Rauter, M.D., who took the following history:
This 46-year-old man is seen as a referral from the Rockford Memorial Hospital Emergency Department regarding upper abdominal pain and bulging. The pertinent history begins in 1998 when he suffered blunt abdominal trauma and underwent an exploratory laparotomy for intraabdominal hemorrhage. He was found to have a liver laceration which was repaired, and no other injuries were noted. He then seemed to do well until 2005 when, following some heavy lifting at work, he noted abdominal pain and bulging. He was subsequently found to have an incisional hernia and underwent repair at the University of Wisconsin. According to reports I have available (I have not yet seen the actual operative report), this hernia repair involved placement of Alloderm. He states that he had a difficult postoperative course, and among other problems, he developed pneumonia. He improved and then seemingly did reasonably well until November of 2008 when he again began to notice abdominal pain after doing some stretching. He eventually underwent a diagnostic laparoscopic procedure in Beloit and was told that he had extensive adhesions. At that time, he also had a primary repair of what was described as a small hernia at the level of the umbilicus.
After examination, Dr. Rauter's diagnostic impression was "abdominal pain, apparently secondary to recurrent incisional hernia with intermittent involvement of bowel, reducible; history of trauma with laparotomy for blunt liver injury and subsequent incisional hernia repairs x 2 with reportedly fairly extensive intraabdominal adhesions." He wanted to obtain the applicant's earlier operative report and again recommended he cease smoking before being scheduled for a repeat laparotomy and hernia repair.
The applicant returned to Dr. Rauter on August 4, 2009, when Dr. Rauter noted he had reviewed prior surgical reports. Based on them, Dr. Rauter noted the applicant had had a primary closure of the hernia defect at about the level of the umbilicus along with closure of a diastasis recti and placement of an AlloDerm graft. He added "as previously noted, he developed a recurrent hernia and underwent a laparoscopic procedure in February of 2009, and following this again seems to have a recurrent incisional hernia." On examination, the doctor noted "a tender, but reducible hernia" located at the level of the umbilicus with some diastasis above that level. He told the applicant he would need a surgery to reduce the hernia and that it would include lysis of adhesions to the extent necessary, along with the possible placement of a prosthetic mesh for repair.
Dr. Rauter went ahead with the procedure on September 3, 2009. His operative note is at Exhibit M. His preoperative and postoperative diagnoses were "multiply recurrent incisional hernia of upper abdominal midline." He described the operation he performed as "repair of multiply recurrent incisional hernia with implantation of Composix 11 x 14 cm underlay patch." The doctor reported he made a midline incision below the umbilicus and encountered a good deal of scar tissue. Extensive adhesions were cleared from the greater omentum and bowel. The doctor noted multiple areas of facial breakdown which led him to proceed with a repair with a Composix mesh as an underlay. As with Dr. Blumofe's surgical note, there is no mention of the AlloDerm mesh that was put in place in 2005.
The applicant had a postoperative seroma which slowed the healing of his surgical wound. The repair, however, continued to be intact and secure. The applicant did have some postoperative incisional pain. He is subject to work restrictions which prevent him from returning to heavy work.
2. Expert medical opinion.
The parties have submitted expert medical opinions on cause, nature and extent of disability. Dr. Rauter prepared a practitioner's report on August 8, 2009, which would have been before his surgery (see Exhibit M). This listed a date of traumatic event as 1998, which, of course, was the time of the liver injury. Describing the accidental event or work exposure to which the applicant contributed his condition, Dr. Rauter noted:
Initial abdomen trauma/laparotomy 1998. Incisional hernia repair 2005. Laparoscopy, repair of recurrent incisional hernia 2/09 now with recurrent incisional hernia; failed repair.
The doctor's diagnosis was symptomatic, reducible, recurrent incisional hernia of the mid-abdomen. He opined the applicant had permanent disability which would always restrict him from work involving heavy lifting or similar duties. He described his prognosis, however, as good, assuming he had a further repair or a repeat surgical repair.
The applicant's former attorney sent Dr. Rauter a letter (exhibit M) asking him to clarify the date of injury. The attorney indicated that the work-related injury occurred on August 11, 2005--the date of the mixer-lifting injury--rather than 1998. Dr. Rauter then prepared a second practitioner report, this one dated August 8, 2009.(3) (Exhibit B). In this report, Dr. Rauter identifies the date of traumatic event as August 11, 2005, which is when the applicant was injured lifting the large mixer. Dr. Rauter stated that the injury resulted in a hernia repair in 2005 and a laparoscopic repair of recurrent incisional hernia in 2009, now leaving the applicant with a recurrent incisional hernia and a failed repair. The diagnosis on this practitioner report, again, was listed as "symptomatic, reducible, recurrent incision hernia of mid-abdomen." The doctor opined that the event listed in Box 4--this would be the August 2005 injury with the mixer and subsequent surgery--directly caused the applicant's disability "in conjunction with a previous injury and surgery." The doctor estimated a 25 percent permanent partial disability and advised a permanent lifting restriction of 20 pounds, apparently with a December 1, 2009 healing plateau date.
The respondent, for its part, relies on the expert medical opinion of Louis C. Bernhardt, M.D. (Exhibit 3). Dr. Bernhardt stated a diagnostic impression of recurrent or persistent periumbilical hernia, diastasis recti, abdominal adhesions and status post the surgeries in 1998, 2005, 2009. He stated his opinion, in narrative form, as follows:
The claimant experienced a traumatic ventral hernia in August 2005 relating to his lifting of a heavy object. This lifting in which he felt a pop caused pain in the abdomen, and this pain had persisted until he sought medical attention and was subsequently operated on by Dr. Starling November 1, 2005. His workup was appropriate. Prior to his lifting, he had not experienced a bulge nor had he experienced discomfort which was immediate after he felt something pop.
To a reasonable degree of medical probability, the abdominal pain secondary to stretching in November 2008 was due to an incarceration of omental fat in the periumbilical hernia. In my opinion, this caused the significant left upper quadrant pain which was referred to the umbilicus, as with incarcerated omentum and fat one can experience significant pain. Some of the discomfort may have been contributed to from the underlying adhesions. Both the lysis of adhesions and the ventral hernia repair in February 2009 by Dr. Blumofe seemed to help the severity of the pain.
In response to specific interrogatives, Dr. Bernhardt stated he believed the applicant had chronic discomfort in the upper abdomen, some of which might have been caused by a recurrent or residual periumbilical small bulge. Regarding causation, he stated the diagnosis of a work-related injury in 2005 with the onset of the periumbilical hernia was quite clear. He stated the symptoms and bulge occurred shortly after lifting a very heavy object and feeling the pop. However, he stated the relationship of the stretching in November 2008 was an incarceration of omentum in a periumbilical hernia and no documentation of heavy lifting that aggravated the condition. Regarding the 2008 stretching incident, the doctor opined that in his opinion the applicant should abstain from heavy lifting, undergo vocational rehabilitation, and have a "sedentary type of work" in that he will always experience some upper abdominal discomfort due to the condition.
Dr. Bernhardt flushed out this opinion somewhat in a subsequent report (Exhibit 5). In his supplemental report, Dr. Bernhardt stated:
[The applicant] did well following his first hernia repair in
November of 2005....He did not complain of recurrent hernia until November 2008, and his symptoms occurred following stretching. He has been noncompliant with his treatment and had no hernia established until 2008. Therefore, I believe the applicant's hernia diagnosed in 2008 is not secondary to his previous hernia diagnosed in 2005. I believe that the applicant's recurrent hernia and subsequent surgery in 2009 are not the result of his 2005 work injury but rather due to his heavy tobacco use and his other health conditions. In addition, his 1998 surgery (secondary to the blunt abdominal trauma) may have contributed to his recurrent abdominal wall herniae.
Finally, the respondent relies as well on a letter from Dr. Blumofe, who did the first 2009 hernia surgery. She states:
[The applicant] is a patient who I initially saw in January 2009, who presented to me with left upper quadrant abdominal pain as well as possible hernia recurrence. The patient had had previous abdominal surgeries including a laparotomy and ventral hernia repair at UW Madison in 2005. In February 2009, he was taken to the operating room where he underwent exploratory laparoscopy, lysis of adhesions, and repair of a small periumbilical hernia. Ultimately, I dismissed the patient from my care because he was noncompliant with medical advice. It is of my opinion that the patient's recurrent hernia in February 2009 was probably a result of his chronic tobacco use and noncompliance with medical advice.
3. Discussion.
In cases involving recurrent injuries, the rule the commission must follow is stated by the court of appeals in Lange v. LIRC, 215 Wis. 2d 561, 568 (Ct. App. 1997). In that case, court of appeals held:
...A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.
Stated another way, in order to deny compensation here, the commission would have to assume that the applicant would have suffered the same disabling abdominal condition at the same time to the same extent regardless of whether or not he had undergone the 2005 surgery requiring an abdominal incision. The record does not support that finding in this case, the absence of an express surgical finding in 2009 of a failure of the Alloderm patch placed in 2005 notwithstanding.
When he did the 2005 surgery, Dr. Starling forthrightly noted the significant possibility of a recurrent hernia, referring to patients with similar conditions he had "tried to fix." Dr. Starling did an abdominal incision as part of the surgery; the recurrent hernia in 2008 was described by Drs. Blumofe and Rauter as an incisional hernia. Further, the reports of the doctors, all of them, refer to the role that adhesions or scar tissue played in the applicant's development of pain and need for surgery. The early notes of Drs. Keilhauer and Blumofe that refer to scar tissue from the previous surgery do not distinguish between 1998 and 2005 surgeries.
The commission realizes that the applicant's surgery in 1998 also required an abdominal incision. However, the applicant was able to engage in heavy work for many years thereafter without work restrictions. The medical evidence in this case does not, in the commission's view, provide a basis for apportionment under Wis. Stat. § 102.175(1). And while Dr. Rauter's initial practitioner's report (exhibit M) listed the 1998 date of traumatic event, in that report he referred to the 2005 hernia repair surgery in discussing the event or exposure which he opined caused the applicant's disability. Based on Dr. Rauter's medical opinion expressed at exhibit B, which the commission credits, the commission finds that the recurrent hernia, continued abdominal pain, abdominal incisions, and consequent need for treatment arose out of and were caused by the August 11, 2005 injury, occurring while the applicant was lifting the large mixer and treatment for that injury.
The commission considered Dr. Blumofe's assertion that the applicant's condition was due to his noncompliance with medical care. Wisconsin Stat. § 102.42(6) provides in part:
102.42(6) TREATMENT REJECTED BY EMPLOYEE. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary....
However, the supreme court has held that a worker may not be said to have unreasonably refused treatment if the employer offered none. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457, 461 (1978). Exhibit D does not indicate that the respondent paid any of the applicant's treatment expense with Dr. Blumofe.
Moreover, in light of the other medical opinions in this case, including that of Dr. Bernhardt and especially Dr. Rauter, the commission declines to view the applicant's noncompliance with medical advice as causing the hernia or aggravating his disability. And while the applicant did engage in chronic tobacco use--he testified that he smoked a pack a day--the commission declines to view that as the cause, or a superseding cause,(4) of the applicant's disability. The commission cannot conclude that, absent the work-related hernia in August 2005, the applicant would have sustained an incisional hernia in 2008 due to cigarette smoking. Additionally, the commission is generally reluctant to regard noncompliance with a recommendation to stop smoking as a disqualifying failure to treat. In this respect, the commission has noted a general discussion of the issue in Larson, Workers' Compensation Law § 10.10 [intro.], [4] (LexisNexis, 2011), which includes 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.
See Algis Vilunas v. Bob Radtke Inc., WC claim no. 1998-019745 (LIRC May 19, 2003) and Chase v. QPS Companies, Inc., WC claim no. 1995-003590 (LIRC Aug. 31, 2011). Applying the test of reasonableness to the facts of this case, which include two prior abdominal surgeries requiring incision and Dr. Rauter's persuasive medical opinion, the commission declines to deny or reduce compensation for the recurrent abdominal hernia based on the applicant's tobacco use.
The next question is the extent of disability. The applicant seeks temporary total disability from November 28, 2008 to November 30, 2009. In November 2008, again, the applicant felt the recurrent hernia while straining at the stool and began the course of treatment, including the emergency room visits with Dr. Keilhauer, leading to surgery by Dr. Blumofe in February 2009 and by Dr. Rauter in September 2009. An end of healing on December 1, 2009, is supported by exhibit B, Dr. Rauter's second practitioner's report, in which the doctor made the 20-pound limit permanent.
Accordingly, the commission concludes that the applicant is entitled to temporary total disability for the period claimed. The commission further finds that any amount previously paid by the respondent for temporary total disability in February 2009 was not paid under mistake of fact.
Regarding permanent partial disability on a functional basis, the commission adopts the 25 percent rating given by Dr. Rauter. The amount is reasonable given the considerable amount of treatment, residual symptoms, and work restrictions, as substantiated even in the report of the respondent's expert Dr. Bernhardt.
The next issue is permanent partial disability on a vocational basis for loss of earning capacity. The applicant's vocational expert, Ross K. Lynch, Ph.D., opined the applicant would have a 48 percent loss of earning capacity given Dr. Rauter's 20-pound lifting limit. Although the applicant would not be able to continue in the heavy work he had been doing, he would be able to perform, Dr. Lynch believed, work as a cashier, clerk, driver or sales worker, service station attendant, or hand packager. (Exhibit A)
The respondent's vocational expert, Michael Campbell, opined that the applicant would be able to find work similar to that listed by the applicant's vocational expert Lynch, although Mr. Campbell estimated a loss of earning capacity of 35 to 40 percent. He opined that that same range of loss of earning capacity would apply under the restrictions from Dr. Bernhardt, who also indicated the applicant should avoid heavy work. Mr. Campbell also recommended the applicant undergo DVR retraining because he thought it could restore his earning capacity with an 80-week program.
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 Aug. 31, 1994); David Vallier v. Best Fireplace Co, Inc., WC claim no. 2004-006710 (LIRC April 29, 2009).
Here, the applicant sought compensation for vocational retraining in his original application and, again, Mr. Campbell indicates the applicant should undergo it. On the other hand, the applicant is now 49 years old, and apparently is not interested retraining. His academic and educational history--he has not graduated from high school--also is a factor that weighs against ordering retraining. The commission declines to order vocational retraining under these facts.
Considering these factors in light of the applicant's residual physical capacity and the other factors under Wis. Admin. Code § DWD 80.34(1), the commission concludes that the applicant has sustained a loss of earning capacity at 35 percent into which the rating for permanent partial disability on a functional basis is merged. While the applicant's restrictions clearly warrant an award for loss of earning capacity, the commission is satisfied that Mr. Campbell more accurately approximates the actual loss in earning capacity sustained by the applicant as a result of the permanent work restrictions set by Dr. Rauter.
4. Award.
Based on the foregoing, the applicant was entitled to temporary total disability compensation from September 1, 2005 to January 5, 2006, a period of 18 weeks, at the weekly rate of $451.92 (two-thirds his average weekly wage of $677.88), amounting to $8,134.56. He is additionally entitled to temporary total disability compensation from November 28, 2008 to November 30, 2009, a period of 52 weeks and 2 days, at the renewed disability rate under Wis. Stat. § 102.43(7) of $511.67, amounting to $26,777.27. The sum for both these periods equals $34,911.83, but the respondent has previously paid $8,413.56, leaving a net amount due in temporary total disability of $26,496.27.
The applicant is further entitled to compensation for permanent partial disability for loss of earning capacity at 35 percent, totaling 350 weeks at the weekly rate of $242 (the statutory maximum for injuries between April 1 and December 31, 2008), amounting to $84,700. As of March 8, 2012, 272.667 weeks amounting to $65,985.33 have accrued,(5) while 77.333 weeks amounting to $18,714.67 remains unaccrued.
The applicant appeared pro se at the hearing and before the commission. However, he was represented by Attorney James A. Carney when he filed his hearing application and agreed to the direct payment of up to 20 percent of his award to Mr. Carney. It appears that Mr. Carney did considerable work in this case, obtaining medical records, expert medical opinion, and expert vocational opinion. He likely has incurred costs, as well.
The commission cannot tell from the file what, if any, financial agreement the applicant and Mr. Carney reached, or the circumstances under which Mr. Carney stopped representing the applicant. Still, the commission concludes his efforts justify some compensation. Accordingly, the commission sets an attorney fee and costs to Mr. Carney at ten percent of the amount awarded in additional disability compensation under this order.
The total amount awarded in additional disability compensation under this order is $111,198.27 ($26,496.27 in additional temporary total disability and $84,700 in permanent partial disability). The future value of attorney fee due Mr. Carney, then $11,119.83. However, the fee is subject to an interest credit of $68.72 for advance payment of the portion attributable to unaccrued permanent disability benefits, leaving a present value fee of $11,051.10. That amount, which is deemed to include costs, shall be paid to Mr. Carney within 30 days.
The amount to be paid the applicant within 30 days equals $83,235.24. This is the sum of the temporary total disability ($26,498.27) plus the permanent partial disability accrued to March 8, 2012 ($65,985.33), less the 10 percent fee thereon ($9,248.36).
The amount remaining to be paid to the applicant in monthly installments of $1,048.67(6) as it accrues after March 8, 2012, is $16,843.20, This is the unaccrued portion of the permanent partial disability award ($18,714.67) less the ten percent fee thereon ($1,871.47).
The next issue is medical expense. The applicant has sustained reasonable and necessary medical expense to cure and relieve the effects of his injury as outlined in exhibit D, subject to three exceptions documented in exhibits 18, 19, and 20. First, the expenses shown as outstanding to Beloit Clinic which are attributable to the colonoscopy/endoscopy procedure ordered by Dr. Blumofe in January 2009 as outlined above, were paid by a different insurer and were not incurred to treat his injury related to this claim. Second, Beloit Memorial Hospital has been paid in full by "Illinois Public Aid" and there are no amounts outstanding against the applicant. Third, Illinois Department of Health Care and Family Services, Bureau of Collections, Technical Recovery Section(7), claims reimbursement of $9,193.73 for amounts paid toward medical expenses associated with this claim. Exhibit D also documents $2.00 in unpaid medical expense due Rockford Surgical Service. The commission shall order payment accordingly.
Finally, while Dr. Rauter does not expect further treatment, the commission is satisfied that this case warrants an interlocutory order to permit further orders and awards regarding disability and medical expenses that may arise in the future.(8)
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Denny Passialis, Eighty-three thousand two hundred thirty-five dollars and twenty-four cents ($83,235.24) in accrued disability compensation.
2. To the applicant's former attorney, James A. Carney, Eleven thousand fifty-one dollars and ten cents ($11,051.10) in fees.
3. To Rockford Surgical Services, Two dollars and no cents ($2.00) in medical treatment expenses.
4. To the Illinois Department of Health Care and Family Services, Bureau of Collections, Technical Recovery Section, Nine thousand one hundred ninety-three dollars and seventy-three cents ($9,193.73) in reimbursement of medical expenses paid.
Beginning on April 8, 2012, and continuing on the eighth day of each month thereafter, the employer and its insurer shall pay the applicant One thousand forty-eight dollars and sixty-seven cents ($1,048.67) per month in permanent partial disability compensation, until the additional amount of Sixteen thousand eight hundred forty-three dollars and twenty cents ($16,843.20) has been paid.
Jurisdiction is reserved for further orders and awards as a warranted and consistent with this decision.
Dated and mailed
February 29, 2012
passial . wrr : 101 : 9 ND6 3.39, 5.5, 6.40
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did not consult with the presiding ALJ concerning witness credibility and demeanor. She found that the applicant failed to show by credible evidence that his 2005 work injury played any part in his subsequent recurrent hernias in 2008 and 2009. On this point, she observed that even Dr. Rauter's practitioner reports indicated that a significant cause of the applicant's recurrent hernias was the abdominal trauma and laparotomy in 1998. She noted, too, that the operative reports from the 2009 surgeries did not mention the AlloDerm netting at all, indicating to her that it was not a failure of the AlloDerm netting or graft that led to the recurrent hernia. It is evident from her decision that she dismissed the application based on her reading of the reports and opinions of the medical experts, none of whom testified before her. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Robert Ochowicz
Appealed to Circuit Court. Compromise pending.
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