STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RACHEL VREELAND, Applicant

WAL-MART ASSOCIATES INC, Employer

ILLINOIS NATIONAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-050183


In December 2010, the applicant filed a hearing application seeking compensation related to a June 4, 2001 injury occurring when the applicant fell backward off a ladder at work. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on June 7 and August 9, 2011.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $346.40, and a compensable injury on June 4, 2001. The respondent had also paid temporary total disability from June 5 to July 12, 2001 in the amount of $1,231.68, and permanent partial disability at one and one-half percent compared to disability to the body as a whole in the amount of $2,760, but contended at the hearing these payments had been made under mistake of fact.

At issue before the ALJ was the applicant's claim for disability beyond that previously paid, including a claim for permanent total disability on a vocational basis. Also at issue were certain medical expenses.

On November 8, 2011, the ALJ issued his decision in this matter. 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in December 1953. She worked as a stocker for the employer. On June 4, 2001, she was injured when she fell from a ladder while performing her stocking duties. Specifically, the applicant was descending from the second or third step of a ladder when she misstepped in the belief she was actually at the ground level. She fell to the concrete floor, striking the ground, landing on her buttocks, then her left shoulder, then her head.

The applicant testified that she began experiencing pain in her lower back, shoulder and neck immediately with the fall and that she had not experienced pain in those regions before then. There is no record of ongoing treatment for back pain or shoulder pain at the time of the injury.

On the date of injury, the applicant treated at the Riverview Hospital where the doctor noted the applicant fell less than four feet from a ladder while stocking shelves, landing on her back. The doctor diagnosed a contusion/sprain of the left shoulder and lumbar spine and recommended she see her family doctor in two days.

Accordingly, the applicant saw her family doctor, Richard W. Clasen, M.D., on June 7, 2001. See exhibits Q or 1. He noted she had fallen off a ladder at work and injured her right shoulder and the lumbar area. He reported she was still having a lot of pain in the back and diagnosed a fall with contusion of the back.

The applicant returned to Dr. Clasen on June 13, still complaining of back pain. He noted her back bending was limited and he prescribed medications. On June 20, 2001, Dr. Clasen noted continuing back pain, at 7 on a scale of 10, without true radiation. He stated a diagnostic assessment of muscle spasms versus sub-acute fracture in the lumbar spine. Accordingly, the doctor ordered a bone scan, which was done on June 26, 2001, and showed a "minor occult fracture involving the inferior most portion of the sacrum." Dr. Clasen then diagnosed a recent coccyx fracture documented by bone scan for which he ordered physical therapy and released her from work for two weeks.

On July 24, 2001, Dr. Clasen noted that the physical therapy had been providing minimal improvement. However, when the applicant returned to the doctor on September 4, 2001, he reported

She came in for follow-up of low back pain. Her low back pain is a fair amount better. She is back to working full-time and still has difficulty pushing and pulling on pallets and heavy objects ...
...The back bending is now up to 90 degrees and side bending is 12 to 15 degrees bilaterally. She is able to walk on the heels and toes and straight leg raising is excellent.

Dr. Clasen went on to diagnose low back strain markedly improved.

The applicant next returned to Dr. Clasen on December 14, 2001, when she told him that she had some back pain which sometimes radiated down her upper legs and that her back bending was limited, though the doctor himself noted it was "only limited to about 80 degrees." She told the doctor that the lifting and pushing and pulling she did at work aggravated her back condition and he noted that she did sustain a coccygeal fracture after the fall at work. The doctor noted that she was interested in having a work restriction, and he authorized a three-month restriction to a 15-pound lifting limit. At this point, the doctor diagnosed low back syndrome.

The applicant returned to Dr. Clasen again on January 21, 2002, for a re-check on depression and low back pain. At this point the doctor noted back bending to 90 degrees, bending to at least 12 degrees, and that "[s]traight leg raising is totally normal." When the applicant saw Dr. Clasen again on January 31, 2002, she reported pain at a level of 2 or 3 in the back though sometimes it seemed to radiate down the left leg. He noted back bending to about 90 degrees and side bending about 12 degrees on the right and 15 degrees on the left. Straight leg raising was normal. His assessment was chronic low back syndrome, probably aggravated by obesity. He wanted to see her again in two weeks.

The applicant did not appear at the next scheduled appointment on February 12, 2002, but did appear the following week on February 19, 2002. On this occasion, Dr. Clasen noted the applicant's back felt better and that she had been working. He reported normal forward movement to 90 degrees and side bending at 12 to 15 degrees without discomfort with a normal straight leg raising test. His plan was for no further therapy for the back strain and he released her to return on an as-needed basis.

On July 9, 2002, the applicant saw Oluremi Ojo, M.D., an urgent care doctor who noted that he was seeing her for a work-related injury that occurred approximately a year earlier on June 4, 2001. He noted that she had been having low back and hip pain since then and that she had been taking medication on a continuous basis as well. X-rays documented degenerative findings but no real changes since an earlier set done before the work injury. Dr. Ojo continued her on that medication and referred her to the clinic's occupational medicine department.

On July 9, 2002, the applicant saw John Williams, M.D., in the occupational medicine department. He noted that the applicant had last seen Dr. Clasen in February and would not see him again until December. She reported she was being seen by Dr. Williams at the direction of her employer and he took a history of chronic back pain which the applicant related to a work injury that occurred over a year earlier. Dr. Williams referred the applicant to Dominic S. Chu, M.D.

The applicant first saw Dr. Chu on July 26, 2002. He noted that most of her pain was in the lumbosacral junction and the sacroiliac joint. His diagnosis was a contusion to the lumbar spine with residual back and left thigh pain probably associated with disc degeneration. He released her to light work with a restriction to lifting ten pounds frequently and occasional lifting and carrying up to 15 pounds. He also limited her bending, squatting, twisting and pivoting, to an occasional basis, and ordered an MRI.

Dr. Chu noted on September 19, 2002, that the MRI showed foraminal stenosis on the L5-S1 because of bulging of the disc as well as central protrusion and some facet changes. He wanted to begin a course of injection and radiofrequency ablation depending on her response. He also recommended she continue doing exercises. In a follow-up visit on October 10, 2002, Dr. Chu discussed with the applicant

the need to control her weight. In fact, I asked her to see one of the dieticians, but she did not want to do it because of insurance coverage, and she has no time to follow-through with those recommendations as well. I emphasized to her that the body size and heaviness will have some effect on the degenerative changes on the back and pain symptoms. She does not want to do it at this point. I cannot force her.

He added in a follow-up letter to the applicant that for effective management of her back pain she would need weight control and posture control and otherwise any injection would provide only short-term relief.

The applicant continued to follow with Dr. Chu for back pain. On January 28, 2003, the applicant saw Dr. Chu for "pain over the back which is still bothering her somewhat, especially with extension of the back and pain down the thigh when she does walking on the right side especially." When he examined her, she had difficulty with extension of more than five degrees and forward bending up to 60 degrees. She told the doctor she believed her back pain was getting worse but his clinical diagnosis was lumbar radiculopathy improving slowly and degenerative disc disease. He added that her condition was stationary, so to speak, and he did not expect any change in the future. She told the doctor she had been exceeding her work restrictions because the employer was making her do it. He also recommended a "final functional capacity evaluation" as a prelude to getting permanent work restrictions.

The applicant underwent the functional capacity evaluation in February 2003 after which Dr. Chu opined in a note dated February 7, 2003, that "she probably should be limited to light duty work and also avoid a lot of bending and twisting of the trunk." He noted that while the examining doctor believed that the applicant required restrictions, though they were not related to the injury but degenerative joint disease, he, Dr. Chu, felt the restrictions were obviously associated with the industrial exposure on the basis of an injury aggravating the underlying pathology beyond its normal progression. Dr. Chu did, however, on this occasion, release the applicant to return for treatment only as needed. He later rated permanent partial disability on April 1, 2003.

The applicant apparently returned to Dr. Chu on May 13, 2003, after which point he sent her a letter that stated:

I believe you can do light duty work; I gave you the restrictions the last time in February, and I do not believe there should be any change. You will be able to do those restrictions on a permanent basis.

On August 14, 2003, the applicant saw Donald Kelman, M.D., on referral from Dr. Chu. His diagnostic summary was chronic degenerative disease of the lumbar spine, musculoskeletal back pain, but no clinical finding suggestive of radicular involvement. He noted, however, "complicating factors of chronic significant obesity and work injury and probably prior injury, contributing to the back and leg problem." He stated that the treatment notes he reviewed indicated that probably her fall at work aggravated preexisting problems of degenerative disease in the back. However, he also noted a very significant factor in the patient was that she was chronically and significantly obese at 5' 1-1/2" tall and 240 pounds.

Dr. Kelman added in his note:

It is quite clear that she is adamant that all of her problem began with the work injury, and on specific questioning about prior back pain, she was adamant that she never had back problems or back treatments prior to the fall at Wal-Mart. This does not fit well with the record. The observation that I made immediately on discussing her issue was the fact that she had an unusual benign smile as she described the severe pains that she was suffering and this seemed inappropriate and of the type of response that one sometimes sees with non-organic issues.

Dr. Kelman did not believe that she had a surgical indication and thought her most pressing issue was weight reduction and that without losing weight it was highly unlikely she would be comfortable in her low back. He added that he did not think weight reduction would be easy because "I do not sense that she really feels that this is the issue and she is extremely focused on the compensation elements and difficulty she is having in relation to her employment."

The applicant continued to treat with Dr. Chu who noted Dr. Kelman's recommendation against surgery and noted that a repeat MRI did not show much difference. He again emphasized the need for weight loss and released her to return as needed in October of 2004.

Thereafter, the applicant continued to treat for her back complaints, most recently with Mazin Ellias, M.D.

The employer discharged the applicant in February 2009 for excessive absenteeism. Its store manager, Troy Tammen, testified that other performance issues were also factors in the discharge.

Dr. Chu, as outlined above, permanently restricted the applicant to light duty work, with avoidance of a lot of bending and twisting of the trunk, on February 7, 2003 when he released her to return for treatment as needed. On April 12, 2003, he rated permanent partial disability at 3 percent to the body as a whole, which he said was caused by the June 2001 injury.

The applicant also offers the expert medical opinion of Dr. Ellias. Exhibit D. He rated permanent partial disability at 2 percent compared to disability to the body as a whole for reduced range of motion of the lumbar spine, directly caused by the work injury when she injured her hip, back and arm falling off a ladder. Dr. Ellias also adopted the work restrictions set in a February 23, 2010 functional capacity evaluation. These may be summarized as lifting up to 15 pounds from a knee height on a rare basis, 10 pounds above crown level on a rare occasion, and that she could carry 15 pounds for 10 feet rarely. The restrictions also require that the applicant be able to alternate her static positioning and could frequently sit but only occasionally stand and walk. She was also limited in terms of forward bending.

The employer's medical examiner, William Monacci, opined that the applicant suffered at most a temporary aggravation of her underlying condition on June 4, 2001, and that she had a chronic low back condition that was caused by her obesity and chronic tobacco usage. He did not think she had permanent disability or required permanent restrictions from the work injury.

This opinion was shared by a doctor retained by the respondent, David Mellencamp, M.D., who noted an x-ray done of the lumbar spine apparently related to hip complaints in February 2000, or the year before the work injury, showed significant degenerative disc disease and spurring. The doctor opined the applicant had a history of preexisting disc disease and that all of the treatment that was rendered thereafter was necessary because of that and not because of any work injury on June 4 or 5, 2001. He did not think that she had any permanent disability related to the fall or that permanent restrictions were necessary because of the injury. Exhibit 1.

The parties also submit expert medical opinion regarding the applicant's permanent disability on a vocational basis for loss of earning capacity. The applicant's expert, John Joseph Woest, found the applicant was permanently totally disabled on a vocational basis, based on the restrictions set by Dr. Ellias.

The employer's expert is Francis Maslowski, who opined that the applicant would have only a 10 to 20 percent loss of earning capacity based on the restrictions adopted by Dr. Ellias, assuming that one compared her wage of $13.32 when she left the employer's employment in February 2009 to her much lower $8.86 wage when she was injured on June 4, 2001. Mr. Maslowski did not rate permanent disability under Dr. Chu's restrictions because the applicant continued to work under them. He opined that there would be no loss of earning capacity under the restrictions of Dr. Monacci because the doctor set none associated with the work injury.

The commission, like the ALJ, credits Dr. Chu's opinion (and the similar opinion of Dr. Mazin) that the applicant's June 4, 2001 work injury caused the applicant to sustain permanent partial disability at 3 percent compared to disability to the body as a whole. The work injury was conceded, and a coccygeal fracture was disclosed by x-ray shortly after injury. The applicant's complaints of continuing pain were credible, and documented in the medical records. While the x-rays and other imaging show degenerative changes, it does not appear the applicant had any significant treatment for lumbar spine problems before the injury. The commission is satisfied that the work accident of June 4, 2001 caused the applicant to sustain permanent partial disability at 3 percent compared to the body as a whole on a functional basis, as Dr. Chu opined.

The commission also concludes, again based on the opinion of Dr. Chu, that the applicant reached an end of healing on February 7, 2003, when the doctor set permanent restrictions and released her from treatment. Since the temporary disability the applicant now seeks is after that date, that claim is denied.
The next issue is the extent of disability, if any, on a vocational basis for loss of earning capacity. The ALJ did not reach this issue because he found there was insufficient testimony about why the applicant's employment with the employer ended. The commission disagrees, and concludes that the record made by the parties, including the reports of the medical experts, permits resolution of this issue.


Wisconsin Stat. § 102.44(6)(a) precludes a claim for loss of earning capacity if the applicant is returned to work paying 85 percent of his or her pre-injury wage. However, Wis. Stat. § 102.44(6)(b) provides for "reopening" a loss of earning capacity award if the employment relationship is thereafter terminated by the employer. That essentially is what happened here. The supreme court has held that the statute applies -- and the claim for loss of earning capacity may be reopened -- even when the employer terminates a worker for reasons other than the limitations from the work injury. The supreme court has also made it clear that a loss of earning capacity award may be reopened, even if an employer discharges a worker for reasons unrelated to an unscheduled injury. See Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 35 (holding that under Wis. Stat. § 102.44(6)(b), an employee may revisit an award if terminated by the employer and "no reason for the termination is required").

An award for loss of earning capacity, however, may not be supported when an employer terminates a worker due to conduct that is the analytic equivalent of refusing work under Wis. Stat. § 102.44(6)(g). The commission has also held that misconduct may justify not exercising its discretion to reopen a loss of earning capacity award under Wis. Stat. § 102.44(6)(b). Wellsandt v. Chippewa County, WC Case No. 93050745 (LIRC Nov. 28, 1997). A detailed discussion of some of the commission's prior decisions on this point is set out in Terry Ann Mallette v. Hartford Finishing, Inc., WC Claim No. 93036016 (LIRC July 31, 1995), affirmed case no. 95 CV 402 (Wis. Cir. Ct. Dodge County, March 22, 1996). See also Tassone v. Bluegreen Corporation, WC Claim No. 2007-018047 (LIRC July 22, 2010).

There was some dispute about the facts of the applicant's separation from employment with Walmart. As noted above, the employer's store manager, Troy Tammen, testified that Walmart discharged the applicant based on her attendance record, while other job performance factors played a role as well. However, after carefully considering the testimony of Mr. Tammen and the applicant on this issue, the commission cannot conclude the applicant was intentionally engaging in misconduct or that she was deliberately attempting to lose her job with the employer. The applicant's work injury resulted in restrictions which affected her ability to perform her work duties for the employer, and which have adversely affected her earning capacity on a permanent basis as well. At most, the applicant's attendance record--that is her willingness to do work within her restrictions--is a factor that may be considered in deciding how much to award for loss of earning capacity under Wis. Admin. Code § DWD 80.34(1). While the applicant's job performance might not have met Walmart's standards, her employment record for the more than seven years following her work injury does not support denying her loss of earning capacity claim.

On the other hand, the commission concludes the applicant has not shown that she is permanently and totally disabled from the work injury. In Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W2d 29, the court stated:

54 Balczewski [v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977)] holds that certain basic facts---the claimant's injury, age, education, capacity, and training---may in combination demonstrate an inability to secure continuing, gainful employment such that these basic facts constitute prima facie evidence of another (presumed) fact, namely that the claimant is permanently and totally incapable of earning a living. Ordinarily this is accomplished through expert testimony. The employer may introduce expert evidence in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising. Under Balczewski, however, if the claimant brings forward the basic facts sufficient to satisfy the DWD that a prima facie odd-lot case has been made, the presumption is triggered and an obligation is imposed upon the party against whom the presumption runs--here, the employer. (Emphasis added) In this case, having considered the opinions of both vocational experts in light of the more credible expert medical opinion stating work restrictions, the commission is not satisfied that a prima facie odd-lot case has been made.

Again, the applicant continued to work for the employer for more than seven years after her injury. While she is subject to work restrictions as set by Dr. Chu, the commission does not conclude that the restrictions prevent her from obtaining work. Mr. Maslowski's vocational opinion is "expert evidence in contradiction of the basic facts of the employee's prima facie case [that] prevent[s] the [odd-lot] presumption from arising." That is, the record, including Mr. Maslowski's opinion, does not "demonstrate an inability to secure continuing, gainful employment" as a result of the applicant's restriction to light duty work.

However, an award of permanent partial disability on a vocational basis is appropriate. Mr. Maslowski rated the applicant's loss of earning capacity at 10 to 20 percent based on Dr. Mazin's restrictions. Given the applicant's age (48 at the time of injury), her education culminating in a GED from a technical school, her ability to work under Dr. Chu's restrictions until she was discharged by the employer, and her varied work experience in relatively unskilled work, some of which she can no longer perform under the restrictions set by Dr. Chu, the commission is satisfied the applicant sustained loss of earning capacity at 20 percent into which her functional rating of 3 percent is merged.

The applicant is therefore entitled to 200 weeks of compensation for permanent partial disability at the weekly rate of $184, totaling $36,800. The respondent previously conceded and paid $2,760 in permanent partial disability, so that the amount of additional permanent partial disability awarded under this order is $34,040.00.

The applicant agreed to the direct payment of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded or $6,808. That amount, plus costs of $1,388.86, shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The amount remaining to be paid to the applicant in disability compensation within 30 days is $25,843.14.

The next issue is medical expense. The ALJ denied the claimed expenses under Dr. Monacci's opinion that the applicant's continuing treatment was not related to the work injury. On this point, the commission reads Dr. Chu's opinion to be that the applicant's underlying obesity made necessary her need for treatment after February 7, 2003. Certainly Dr. Kelman, who was again a treating doctor, likewise emphasized the role played by the applicant's obesity in her ongoing need for treatment.

Obesity may be regarded as an "as is" condition, so that if a worker suffers an injury and her disability from the injury is worse because of his or her weight or general deconditioning, the employer remains liable for the full amount. This case, however, poses something different. Here, the medical record suggests that the applicant's weight is actually a separate or superseding cause of the applicant's need for additional treatment after she recovered from the work injury, not a pre-existing condition that made the effect of the work injury worse. Consequently, the commission concludes that the respondent is liable only for medical expense to Dr. Chu's end of healing date, February 7, 2003. The commission appreciates that the end of healing does not necessarily end an employer's liability for medical expense, Wis. Stat. § 102.42(1), but in this case, the commission is satisfied that treatment after February 7, 2003, was not undertaken to cure or relieve the work injury.

At least some of the treatment expenses documented in the Medical Treatment Expenses at exhibit A are for treatment before February 7, 2003. The applicant may submit to the respondent and the department a Medical Treatment Statement on form WKC-3, or similar document, itemizing the specific claimed treatment expenses that are compensable under this decision. The respondent shall pay those expenses within 30 days, unless it does not agree that the claimed items (incurred on or before February 7, 2003) were to treat the applicant's June 4, 2001 work injury.

This order shall be left interlocutory to permit further orders and awards to determine which specific items of claimed expenses are related to the conditions for which the applicant is entitled to recover medical expense, in the event the parties cannot agree.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Rachel Vreeland, Twenty-five thousand eight hundred forty-three dollars and fourteen cents ($25,843.14) in disability compensation.
2. To the applicant's attorney, Mark W. Parman, the sum of Six thousand eight hundred eight dollars and no cents ($6,808.00) in fees and One thousand three hundred eighty-eight dollars and eighty-six cents ($1,388.86) in costs.

Within 30 days of the receipt of a statement from the applicant identifying the expenses that are compensable under this decision, the employer and its insurer shall pay those expenses, or contest them as provided in this decision.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
August 30, 2012
vreelan . wrr : 101 : 9 ND6 6.21; 6.24; 6.32

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the presiding ALJ. Its modification of his decision did not depend on the credibility of the witnesses, but rather on its legal conclusion that the record made by the parties over two days of hearing permitted resolution of the issue of loss of earning capacity.

 

cc: Attorney Mark Parman
Attorney Richard Duplessie


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