VERONICA L MCNAUGHTON, 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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed
July 23, 2012
mcnauve . wsd : 145 : 5 ND 6.19; 6.22

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant has petitioned for commission review of the ALJ's decision. The applicant requests that the commission modify the ALJ's findings to conclude that the applicant suffers from chronic regional pain syndrome (CRPS) as a sequela of her March 17, 2005, work injuries. The applicant asserts that Dr. Kipp believed that the applicant was suffering from lumbar radiculopathy and he could not make a finding that the applicant had CRPS because the diagnostic criteria for that condition require there be no other diagnosis that better explains the signs and symptoms present. Dr. Kipp believed that there were two possible diagnoses that better explained the applicant's condition. The applicant asserts that Dr. Kipp's opinion was not persuasive for this reason and because he suspected that the applicant might have an L5-S1 lumbar radiculopathy even though she had an EMG study performed two months following the mid-October 2009 onset of severe left leg symptoms and low back pain. The applicant further asserts that some of her providers found symptoms and objective signs of CRPS.

The applicant in this case had a serious injury to her foot. She also had three foot surgeries. However, Dr. Konzen and Dr. Kipp did not see any objective signs of CRPS when they examined the applicant. Further, the applicant's history was not typical for CRPS, since as Dr. Konzen noted there was a significant amount of time between her injury and her surgeries and when the applicant first began to experience symptoms that led to a diagnosis of CRPS. He also relied, when reaching his decision, on his physical examination of the applicant. Dr. Konzen did not rely solely on the fact that there were two other potential causes for the applicant's symptoms which had not been tested for when he made the determination that he believed she did not have CRPS.

The guidelines for treatment, Wis. Admin. Code § DWD 81.10 are not criteria to diagnose CRPS but rather, are for the purposes of resolving necessity of treatment disputes.

In this case, even if the applicant had CRPS, the applicant has not established that she had more than a scheduled injury to her leg. Dr. Hebl rated the applicant's disability at 7 percent to the body as a whole because he likened her to a patient with a herniated disc who undergoes surgery with poor results. He did not indicate in what way the applicant's leg problems resulted in any pain or limitation in an unscheduled part of her body. "In order to establish a claim for permanent total disability, as the applicant asserted at the hearing, the applicant must establish that at least an ascertainable portion of the total disability is attributable to an unscheduled injury." Murawski v. Contract Transport Services Inc., WC Claim No. 2000-041229 (LIRC November 26, 2003). Regardless of whether the applicant believes that the respondent forfeited the right to argue that the applicant's foot condition caused a disability to her back, the commission would not have departed from its prior precedent to find that the applicant had an unscheduled injury if this finding was not supported by the facts of the case and the pertinent law.

Tomasovich v. County Transit Corp., WC Claim No. 1995-055411 (LIRC June 6, 2003) requires a persuasive medical opinion which supports a conclusion that the pain from the scheduled injury caused pain or limitations to an unscheduled part of the body. The applicant in Tomasovich "credibly testified that he has pain radiating from his arm to his upper back. Dr. Zondag provides a credible explanation of how the arm injury is related to that pain." The medical evidence in Tomasovich demonstrated that a substantial portion of the applicant's permanent total disability was due to disabling pain extending to an unscheduled part of his body. The commission notes that the Tomasovich case was reversed on appeal. See County Transit Corporation and Wausau General Insurance Company v. Tomasovich and the Labor and Industry Review Commission, Eau Claire County Circuit Court Case No. 03CV434 (February 10, 2004). The circuit court judge noted that while Tomasovich testified that he told six different physicians he was suffering from low back pain, the "medical records make no reference to any such complaint. There are only two references to the back (actually the neck) in the entire medical record." The court concluded it could not find credible and substantial evidence to support the award for Tomasovich's back pain.

In the present case, Dr. Hebl responded to the question about whether CRPS is a disability at or near the dorsal horn of the spinal column, i.e. a back injury, in the affirmative stating that "the patient has an abnormality or dysfunction of her sympathetic nervous system, which traverses the entire body and travels up and down the spinal cord. The only successful treatment for this patient has been sympathectectomies which involve treatment by Pain Clinic specialist at the spinal column." He rated her disability at 7% to the body as a whole because she underwent "seven procedures involving her low back and these procedures have given her only temporary relief lasting one to two months. So I would recommend a disability rating of 7% of the body as a whole due to her complex regional pain syndrome." He is clearly referencing the site of the treatment and not the site of the disability. He never explained what disability to her back or spine resulted from the CRPS. He did indicate that the CRPS caused a dysfunction of the sympathetic nervous system which traveled up and down the spinal cord but did not explain why this caused any disability. The applicant did have a history of lumbar spine complaints and suffered from low back pain in 2009 and 2010. The applicant was seeking chiropractic treatment for this pain. She had chiropractic treatment for lumbago in 2002. Thus it is extremely important, before concluding that the applicant's foot condition caused disability in her back to have an accurate and persuasive medical opinion to support such a conclusion. The applicant in this case has no such medical opinion.

cc: Attorney Jeffrey Klemp
Attorney Melissa Kirschner

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded  2012/10/01