GEORGE MEYERS, Applicant

THYSSENKRUPP WAUPACA INC, Employer

SENTRY INSURANCE A MUTUAL 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.

Conceded were jurisdictional facts and a wage of $773.72. In dispute were whether the applicant suffered a compensable occupational disease injury of May 6, 2008, the nature and extent of disability and liability for treatment expense.

Indemnity was not previously paid.

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:

The worker commenced employment with the respondent in 1998. On December 19, 2004, the worker became a grinder inspector for the employer.

The applicant attended school through the 11th grade. He did not obtain a GED or an HSED. The applicant has no vocational or other specialized training. The applicant passed a pre-employment physical before working for the employer. The applicant had no restrictions prior to working for the employer. Prior to working for the employer the applicant had worked in construction, truck driving and logging. He operated heavy equipment as a logger and earned about $10-12 per hour. He rough framed houses and did some finish work. He earned between $11 and $15 per hour. When he was doing that other work he suffered no physical problems.

The applicant's last position at the employer involved taking a part off, reaching out, turning it, grinding it and turning it the other way, back and forth and looking down all the time. The applicant worked full-time from eight to 12 hours per day. He testified that the parts ranged in weight from a quarter of a pound up to 170 pounds.

In January of 2008, he experienced neck pain, which started down the back, middle part of his neck and became worse when he turned to the right. He felt a "jabbing" when turning to the right. This problem occurred at work and he would get pain down his right shoulder and to his arm. It did not radiate at first. It became worse until by May 7, 2008, he rated his pain as a seven or eight out of ten.

He mentioned to Beth Goetzman, nurse practitioner, that he had neck pain for about two months. He tried using different pillows but his neck pain did not go away. He saw Ms. Goetzman again on May 1 and reported that his neck pain definitely got worse the longer he was at work. He told her on May 3 that he recalled no specific injury but mentioned that he was working more hours at work.

Ms. Goetzman referred the applicant to Dr. Gardon. Dr. Gardon noted, on May 7, 2008, that the applicant had neck pain since the beginning of the year and had tried different pillows at home. Dr. Gardon reviewed radiology imaging and felt that the disc osteophyte complex at C6-7 caused severe neuroforamen compromise and that non-surgical treatment did not help.

It is the worker's position that he suffered a cervical injury which resulted in a fusion surgery, performed by Dr. Gardon, at the C6-7 level on May 21, 2008. Dr. Gardon concluded, in his operative report, that the applicant suffered from severe cervical spondylosis with radiculopathy at C6-7.

By the applicant's reckoning, the surgery did not work. It appeared to have very little effect on the worker's condition. He now claims to be so substantially disabled as to be permanently totally disabled on a loss of earning capacity basis (odd lot).

As the worker proceeded over time and continued to have symptoms, he treated with other practitioners, namely Drs. Revord and Stanko, who took a history from the worker that he engaged in repetitive heavy lifting, up to 100 pounds at a time, and that caused Dr. Revord and Dr. Stanko to conclude that the worker had an occupational disease cervical injury.

Dr. Stanko completed a WKC-16-B which found that the applicant had cervical spondylosis, and reached his healing plateau on March 31, 2009. She determined that the applicant's work either precipitated, aggravated and accelerated a pre-existing condition beyond its normal progression or that the applicant was suffering from an occupational disease. She believed he had permanent restrictions and rated the applicant's permanent disability at ten percent. She agreed with the restrictions set by Dr. Ihle but as modified in her note which indicated he should not be lifting weights greater than ten pounds. He needed to limit repetitive motions. He is unable to climb, twist, push, pull or carry objects more than occasionally. The functional capacity evaluation indicated he could continuously lift, from a table, objects that are 5 to 10 pounds and frequently lift 10 to 20 pounds. He can frequently lift up to ten pounds from the floor but rarely lift 10 to 20 pounds from the floor. He can frequently carry five to ten pound objects. He could only occasionally push or pull and could never or rarely bend or climb.

The Administrative Law Judge received information from the employer which could describe the worker's job as "heavy" as noted in Applicant's Exhibit O, tab No. 10. The Administrative Law Judge believed, based on the testimony of a witness, specifically, Phil Eatherton, that the work was not as heavy as the applicant or the employer's document, suggested.

The respondent provided a list of the work the applicant had done prior to the injury and the Administrative Law Judge required that this data be communicated to the doctors for further opinions. Dr. Stanko and Dr. Klemme after being provided with the information reaffirmed their earlier opinions.

Dr. Stanko reviewed a list of parts handled by the applicant and in a WKC-16-B dated June 22, 2011, still opined that the applicant's cervical neck impairment was caused by his work.

Dr. Revord in a WKC-16-B found that the applicant had right C3-4 facet arthrosis and the work he described was repetitive lifting of foundry products. Dr. Revord last saw the applicant on July 15, 2011, and found that the applicant's work aggravated, accelerated and precipitated his degenerative condition beyond normal progression. He gave the applicant a permanent disability rating of two percent compared to the body as a whole, because of persistent cervical pain. Dr. Revord opined that the applicant would need further treatment.

The worker was seen by Dr. Ihle, who simply asserted that the worker had a work injury and did not get into much detail on the subject.

The respondent relies, in large part, on Dr. Klemme's opinion that the worker was simply suffering a manifestation of his ongoing degenerative condition.

The commission finds credible the opinions of Drs. Stanko and Revord with respect to whether the applicant's injury was a material contributory factor in the onset or progression of his cervical disc problems. Dr. Stanko spent a great deal of time treating the applicant as well as reviewing the applicant's medical records and his job duties. The commission further notes that the applicant had passed a pre-employment physical prior to working for the employer and experienced no neck problems in employment he held prior to working for the employer. The applicant felt pain after working. Further, the applicant's testimony with respect to his work duties was corroborated by his co-worker. In addition, the respondent provided documentation of the weight the applicant was lifting. The commission therefore adopts as credible her disability rating of ten percent. The rating of Dr. Revord is too low, given the fact that the applicant had surgery, and had no permanent disability prior to the treatment. The applicant reached a healing plateau on March 31, 2009.

With respect to loss of earning capacity, the commission adopts as credible the opinion of Keith Moglowsky, who reviewed the applicant's medical records and work history. The applicant earned about $20 per hour at the employer and his average weekly wage was $772.72. He was discharged in June of 2009 and testified that at the time of the hearing he was receiving a monthly SSDI benefit.

Mr. Moglowsky found that the applicant had reading skills equivalent to 6.4 years of school and math skills equivalent to 8.7 years of school. Based on Dr. Ihle's medical restrictions, the applicant could return to sedentary, light-level production, driving, retail and service-related positions. The applicant could do work as a packaging & filling machine operator, helper, production worker, hand packer/packager, stock clerk, courier, security guard, hotel desk clerk and retail salesperson. He would have an average wage of $10.74 per hour with a post injury capacity of $429.60 per week and a loss in the range of 45 to 50 percent.

The commission credited the opinion of Dr. Stanko on causation for the reasons noted above. However, the commission was skeptical about the applicant's testimony as to his ability to work after the surgery. The applicant is no longer interested in working. He testified at the first hearing that he was looking for work, but testified that the work suggested in the survey was too far away. He also mentioned to the DVR counselor that the suggested work paid much less than he had been earning. He was not willing to pursue vocational rehabilitation because he said that he suffered from headaches. He testified that riding in bumpy vehicles bothered his neck. However, he was able to sit in a semi for a month while driving with a friend. He had also mentioned to his doctors that he was engaging in activities such as riding his ATV and starting his lawnmower. He renewed his CDL in September of 2010, ostensibly to drive his friend's camper. These things cast doubt on his assertion that driving a vehicle a fairly long distance to work would bother his neck.

While applicant is not looking for work, removal of the applicant from the labor market is not sufficient to render him ineligible for a loss of earning capacity award. See Hurd v. Harley Davidson Inc. and Valley Forge Ins. Co., WC Claim No. 2004-033443 (LIRC August 28, 2008).

On the other hand applicant suggests that being awarded social security disability meant that he was permanently and totally disabled. As such, it would not make sense for him to look for work. In Fay v. Emerson Electric Co., WC Claim No. 2000-028695 (LIRC August 5, 2008) the commission held that the "fact the applicant has been found totally disabled for social security purposes, does not establish that she is permanently and totally disabled on an odd lot basis for worker's compensation purposes."

Wisconsin case law makes it clear that once an applicant establishes a prima facie case for permanent total disability, i.e., that he/she is in the odd-lot category, the burden shifts to the employer/insurer to show that regular and continuous work is available to that applicant. Balczewski v. DILHR, 76 Wis. 2d 487, 493, 251 N.W.2d 794 (1977).

Respondent's vocational expert, Mr. Moglowsky, understood the standard because when looking at work for applicant, he considered work that was the same distance as work the applicant had done in the past. The employer was in Marinette and he had worked for his brother in Green Bay. Further, Mr. Moglowsky contacted employers and found actual employers with work available within the applicant's restrictions.

The applicant's vocational expert, on the other hand, engaged in what the commission considered speculation. For example, he doubted that the applicant could be a customer service representative at APAC because that company services Fortune 500 companies and thus would be unlikely to allow the applicant to take four or five unscheduled breaks.

The commission notes that the applicant was not willing to move or to commute the same distance that he had commuted in the past. The record, with respect to applicant's limitations, is inconsistent. He had reported to his doctors that he was doing certain activities that he testified at the hearing he could not do. Applicant was approved for DVR services and decided, because of his headaches that he did not want to participate in those opportunities. His lack of candor and his unwillingness to travel or attend retraining support an award on the lower end of the scale provided by Mr. Moglowsky.

Therefore, the commission agrees with the conclusion of respondent's vocational expert that the applicant sustained a 45 percent loss of earning capacity.

Temporary total is due from May 7, 2008 (the date the applicant stopped working) through March 31, 2009 (the healing plateau date set by Dr. Stanko), a period of 46 weeks and five days. At the weekly rate of $515.81 (two-thirds the average weekly wage of $773.72), the award for temporary total disability is $24,157.26.

The applicant testified that he received non-industrial long term disability from Sun Life Financial. January 2011 transcript, page 28. However, the commission could not locate any information as to the amount he received, nor whether those amounts were improper given the finding of a compensable injury. See Wis. Stat. § 102.30(7). The commission shall reserve jurisdiction to permit reimbursement under that statute, if warranted.

As stated above, the applicant incurred permanent partial disability on a vocational basis for loss of earning capacity at 45 percent, into which Dr. Stanko's estimate of permanent partial disability on a functional basis is merged. Accordingly, the applicant is entitled to 450 weeks of permanent partial disability, at the weekly rate of $272 (the statutory maximum for injuries between April 1 and December 31, 2008), or $122,400. As of September 19, 2012, 181.1667 weeks of permanent partial disability totaling $49,277.33 have accrued; the remaining 268.833 weeks totaling $73,122.67 remain unaccrued.

The applicant approved the direct payment of an attorney fee, set at 20 percent of the amounts awarded under Wis. Stat. § 102.26. The future value of the fee is thus $29,311.45 - 0.20 times ($24,157.26 plus $122,400). However, because the fee is attributable in part to permanent partial disability compensation that has not yet accrued, it is subject to an interest credit of $1,742.74 to reflect the fee's present value of $27,568.71. That amount, plus costs of $11,028.62 shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $47,719.05, which equals the amount of temporary total disability ($24,157.26), plus the permanent partial disability accrued to September 19, 2012 ($49,277.33), less fees thereon ($27,568.71), less costs ($11,028.62).

The amount remaining to be paid to the applicant as it accrues after September 19, 2012, is $58,498.13, which equals the unaccrued portion of the permanent partial disability award ($73,122.67) less the fee thereon ($27,568.71). The amount remaining to be paid shall be paid beginning on October 19, 2012, in monthly installments of $1,178.67, as it accrues.

The applicant incurred reasonable and necessary medical expenses in the amount of $67,123.83, as a result of his work injury. The applicant incurred charges of $728.00 at Neurology Consultants, $480.60 which was paid by Humana (according to supporting documentation in Exhibit H), $53.40 was written off and $194 remains to be paid. He received treatment which cost $2,197.00 at the Neuro Spine Center of Wisconsin, of which $1,081.89 was paid by Choice Care, and $1,115.11 was written off. He has an unpaid balance of zero. He incurred charges at the Bay Area Orthopaedic Consultants of $121 of which $108.90 was apparently paid by an insurer identified by the initials "TW" (Exhibit H) and $12.10 was written off. The applicant received medical care costing $5,594.00 at the Bay Area Medical Center. $82 was paid by the applicant, $5,009.58 was paid by TW and $502.42 was written off; the applicant incurred medical expenses at North Reach Health Care in the amount of $1,183.00 of which $466.44 was paid by TW, $608.40 was paid by Humana, and $108.16 was written off; the applicant incurred medical expenses in the amount of $55,191.00 at the Bay Care Clinic of which $19,967.49 was paid by an unidentified insurer; $33,132.51 was written off and there is an unpaid balance of $91. The applicant incurred expenses for prescription medication in the amount of $79.34, and medical mileage of $2,030.49.

Drs. Stanko, Revord and Ihle have all opined that further treatment will be necessary. Given these opinions and the fact the applicant has undergone a cervical fusion, this order shall be left interlocutory to permit further orders and award for disability and medical expense that may arise in the future.

Further, the applicant has qualified for social security disability payments as he testified at the hearing, which may result in the application of the social security reverse offset under Wis. Stat. § 102.44(5), affecting the award and requiring recalculation. This order also shall be left interlocutory to permit that recalculation if required. Moreover, this order shall be left interlocutory if necessary to identify the unnamed insurer(s) who paid medical expenses, and to determine whether reimbursement to Sun Life Financial for non-industrial long term disability payments to the applicant is appropriate under Wis. Stat. § 102.30(7) and, if so, how much.

NOW, THEREFORE, this

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, George Meyers, Forty seven thousand seven hundred nineteen dollars and five cents ($47,719.05) in disability compensation, as well as Two thousand and thirty dollars and forty-nine cents ($2,030.49) in medical mileage, Seventy-nine dollars and thirty-four cents ($79.34) in prescription costs, and Eighty-two dollars ($82.00) as reimbursement for expenses paid to the Bay Area Medical Center.
2. To the applicant's attorney, Curtis Lein, Twenty seven thousand five hundred sixty-eight dollars and seventy-one cents ($27,568.71) in attorney fees.
3. To Neurology Consultants, One hundred ninety-four dollars and no cents ($194.00).
4. To the Bay Care Clinic, the unpaid balance of Ninety-one dollars and no cents ($91.00).
5. To Humana Insurance, Six hundred eight dollars and forty cents ($608.40).
6. To Choice Care, One thousand eighty-one dollars and eighty-nine cents ($1,081.89).
7. To the insurer identified on Exhibit H as "TW" Five thousand five hundred eighty-four dollars and ninety-two cents ($5,584.92).
8. To the unnamed insurer who paid expenses at Bay Care Clinic, Nineteen thousand nine hundred sixty-seven dollars and forty-nine cents ($19,967.49).

Beginning on October 19, 2012, and continuing on the seventh day of each month thereafter, the employer and its insurer shall pay George Meyers the sum of One thousand one hundred seventy-eight dollars and sixty-seven cents ($1,178.67) per month until the additional amount of Fifty-eight thousand four hundred ninety- eight dollars and thirteen cents ($58,498.13) has been paid.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed
September 27, 2012
meyerge . wrr : 145 : 6 ND6 6.22; 6.29; 6.32

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The commission concluded, for the reasons set forth in its decision, that the opinions of Drs. Ihle and Stanko are the more credible with respect to causation, and the applicant's medical limitations. The record established that the applicant handled a large number of parts and that his job was repetitive. The applicant had to repetitively rotate his neck left to right while looking down. While all of the items were not heavy, the commission is satisfied that Drs. Ihle and Stanko understood the applicant's job well enough to determine whether the work was a material contributory causative factor in the onset or progression of his cervical problems.

With respect to loss of earning capacity, the commission considered the fact that the applicant is an older worker without a high school diploma. His math and reading skills do not correspond to his level of education. He has little in the way of vocational training. The ALJ who held the hearing had a very strong impression of the applicant's credibility. The ALJ found that the applicant seemed reluctant about his physical capacity, he was hesitant and did not sound good. The applicant was not credible when he testified at the first hearing he had been looking for work. The commission agrees with the ALJ that the applicant was not motivated to return to work. The functional capacity evaluation indicates that the applicant can do some work. However, after considering all of the above-mentioned factors, the commission concludes that the opinion of Mr. Moglowsky, that the applicant suffered a 45 percent loss of earning capacity to be credible.

cc: Attorney Curtiss Lein
Attorney Daniel Zitzer

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