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

DAVID BREITZMAN, Applicant

V & L TOOL INC, Employer

WEST BEND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2009-003213


In June 2010, the applicant filed a compromise review application. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 13, 2011. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts. By order dated December 20, 2011, the ALJ granted the applicant's request to reopen the compromise agreement.

The respondent filed a timely petition for 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 1954 and has had limited vocational training since high school. He began working for the employer in 1986, first as a machinist and later doing lighter work as a quality control inspector.

The applicant contends that he suffered a work injury on November 25, 2008. On that day, the applicant, who had been doing less physically demanding inspection work, was put back on machining work. Specifically, he was assigned work putting threads on pipes that were an inch and a half in diameter and about six feet long. He had to hold the pipes out from his body to get them on the machine.

By the end of the day, the applicant contends, his lower back was sore, but he continued to work. He did not seek any medical treatment for several weeks until the pain started going from his lower back into his upper back. By January 2009, his back pain led him to seek medical treatment with his family doctor, Bruce Klink, D.O.

Dr. Klink's note for that visit, dated January 16, 2009, states that the reason for the visit was "lower back DOI 12/13/2008-ache so badly he sometimes feels he will break into tears." The doctor noted that the applicant's range of motion was decreased due to spasm and pain of the lumbar paravertebral muscles. A straight leg raising test was negative. The doctor diagnosed lumbosacral spondylosis and ordered x-rays.

On January 22, 2009, the applicant complained his back hurt very badly and he wanted to talk to a doctor right away. In fact, he called the doctor's office twice with that complaint. Dr. Klink then referred the applicant to a spine specialist on a diagnosis of progressive degenerative disc disease. The applicant then asked for an excuse from work, which Dr. Klink provided.

A few days later, on January 26, 2009, the applicant saw James Hackett, M.D., the spine specialist. At this point, the applicant told Dr. Hackett that the problem:

Started on 25th of November while running a job, no injury just soreness that happened in his back came back on the 26th and reported the issue and was told to keep working so ran the same job again on the 26th.

The applicant described his pain as aching, with tightness in the lower back in the morning, and that with prolonged sitting and standing his pain would move to the middle and upper back. In his narrative report, Dr. Hackett recited:

This patient claims that as a result of a heavy job at work 11/25/08, he injured his back. He went in to work the next day with LOW BACK PAIN. He had continued to work without seeing a doctor until 1/16/09. Dr. Klink apparently told him to stay off work on 1/22/08 when he put in the order for consultation. The visit note did not specify if he was having pain in the thoracic or lower cervical spine, but there was a cancelled appointment on 1/8/09 which did mention "neck-and backpain", so there were probably two different area bothering him, as he claims today.
He did mention on a couple of occasions, to his supervisors that there was pain from work activity, but he did not file a work injury report until later.
He was doing some machining of heavy, bulky pipes, on the DOI which is a departure from his usual work. That is why he claims this as being related to work.

Dr. Hackett described the x-rays done on January 16 as showing spondylosis, Scheuermann's disease and narrowed L5-S1 with anterior bone formation. His plan was to treat with steroids, physical therapy, and work restrictions. He appended the following comment:

This is an aggravation of preexisting condition. At present I do not see [any] "breakage" and hopefully we can get him back to his previous status, but because of his documented disease and symptomatic limitation, he will probably need some long term restrictions. This situation might result in chronic pain and it might be necessary before declaring MMI and PPD to get thoracic and lumbar MRIs to document evidence for any acceleration of the preexisting condition. Unfortunately, an MRI might not show this especially now after ~ 2 months from the injury.

The doctor released the applicant with restrictions, including a 20-pound lifting, 10-pound carrying restriction, nothing from floor to waist, and only five hours per day at work. The applicant began to undergo physical therapy as well.

After some physical therapy appointments, the applicant returned to Dr. Hackett on February 19, 2009, and told the doctor that he was improving although he was still bothered by standing and leaning forward to work at a lower table. The doctor noted again:

He was moved from his previous position to his current job which resulted in his having pain. There was no clear "injury" but his new position caused his preexisting condition to become painful. Currently he says he gets pain when he has to work with a partial forward lean required to reach the parts on a low table.

The doctor allowed him to return to full-time work, though he had to maintain the 20-pound lifting restriction. The doctor also hoped that within a month he could declare an end of healing and he did not anticipate any permanent partial disability.

One month later, on March 19, 2009, the applicant returned to Dr. Hackett who noted that the applicant was being seen:

For follow up of his thoracolumbar strain syndrome which is assigned to an industrial etiology.

The applicant returned to Dr. Klink again on April 17, 2009, telling him his back was a little better but it still felt messed up. He told the doctor his pain was at a level of 0 of 10 in the morning, though it would increase to perhaps 6 of 10 over the day as he did work. Dr. Hackett noted at this time that the employer told the applicant it soon would have no more light duty for him. Dr. Hackett noted general improvement but still with limitations and the doctor did not think there was anything else he could offer and that surgery would be uncertain with respect to getting him back to unrestricted work. He concluded that the applicant had reached end of healing.

Dr. Hackett noted on May 14, 2009, the applicant was able to work with restrictions, but wasn't certain he would be able to work long term with the restrictions. The doctor rated permanent partial disability at five percent to the body as a whole, and instructed him to return as needed.

The respondent's examiner, Michael Orth, M.D., examined the applicant in
May 2009. He opined that the applicant did not suffer any work injury and that his symptoms were simply the normal progression of a preexisting condition that manifested itself with pain while he was doing minimal activity.

In late May 2009, the applicant was permanently laid off work by the employer. He underwent chiropractic treatment between June and September of 2009.

The applicant next contacted Dr. Hackett in November 2009, asking for an MRI to be done for social security purposes. The applicant apparently told the doctor that he was still having low back pain radiating into his buttocks for which he was treating with a chiropractor. The applicant did not want an appointment with
Dr. Hackett because he did not have insurance and would have to pay out of pocket for his visits. Dr. Hackett ordered the MRI done because the applicant offered to pay for it himself, though he did not agree with the intent of the study.

The MRI, done on November 20, 2009, was interpreted by the interpreting radiologist as showing changes of lumbar spondylosis, most pronounced at the
L4-5 and L5-S1 levels. A specific finding shows a broad-based herniation with more focal paracentral component at L5-S1.

In early 2010, the applicant began treating with Jeffrey B. Gorelick, M.D., for what the applicant described as lumbar and cervical pain. Dr. Gorelick noted the applicant had a cervical fusion done in 2003 or 2004, but that he had a good recovery and was able to return to work as a machinist. Regarding the current injury at issue, Dr. Gorelick in a note dated January 11, 2010 stated:

...While at work, sometime in November 2008, he injured his back. He performed normal job duties at his company, but on that particular day there were six to 10 feet long bars that were "moving in front of me. I had to reach over, take them out, flip them over, and feed them back into the machine." He does not know exactly how many bars he had to do that day, but he believes it was somewhere in the range of 20. He had to reach fairly far to do this. By the end of the day he was experiencing new onset low back pain. He slept poorly that night and the next morning when he went to work reported the injury, but was told 'you are just out of shape.' He finished that job on that particular day, approximately six more units. Then he returned to his normal job. Unfortunately low back pain continued and escalated to the point that by January 'it was terrible.' Not only was he experiencing low back pain but now symptoms had migrated up into the mid back.

Dr. Gorelick subsequently opined that the applicant's work exposure on
November 25, 2008, not only created new pathology at the lower two lumbar levels, but also aggravated preexisting lumbar degenerative disease beyond its normal progression. He rated permanent partial disability at six percent to the body as a whole. (Exhibit A, item b).

In June 2009, after he stopped treating with Dr. Hackett, but before he started treating with Dr. Gorelick, and shortly after he was laid off by the employer, the parties entered into the compromise agreement at issue here. During the negotiations, during which neither party was represented by an attorney, the adjuster for the insurer told the applicant that if he filed an application for hearing, the respondent would seek recovery of the previous payment of $2,100 in temporary disability under the theory that it had been by mistake of fact. The applicant understood that he could have retained an attorney, and does not claim the adjuster misrepresented any facts to him. Transcript, pages 29, 52-53.

The parties ultimately compromised the claim for $6,800--this was 2.5 percent permanent partial disability to the body as a whole. The applicant had previously been paid about $2,100 in temporary disability. An administrative law judge for the department approved the compromise by order dated July 3, 2009.

In June 2010, the applicant filed a compromise review application pursuant to Wis. Stat. 102.16(1).

The commission has previously observed that the standard for reopening a compromise is a fairly rigorous one:

The commission has consistently held that compromises should not be reopened absent gross inequity, important newly-discovered evidence, fraud, duress, or mutual mistake. Michael Blenke v. American Can Company, WC claim no. 87-037750 (LIRC, September 9, 1992); Julie Stuart-Giese v. Schoeneck Containers, Inc., WC claim no. 85-060165 (LIRC, February 5, 1990.) The commission has also stated the test as requiring a showing of fraud, duress, important newly discovered evidence, overreaching, or a reasonable misinterpretation of the terms of the compromise. Haffner v. Amery Constant Care, Inc., WC claim no. 85-05202, (LIRC, September 4, 1990).
The alternative formulations are in some respects two ways of saying the same thing, as over-reaching or a reasonable misinterpretation of the terms of the compromise may well add up to "gross inequity" see Toni Palmer v. Toro Company, WC claim no. 86-012679 (LIRC, June 10, 1993). Compromises are not lightly set aside because a compromise of a worker's compensation claim under sec. 102.16 (1), Stats., encompasses qualities of comprehensiveness, finality and risk. Indeed, "[b]y using the word `compromise' we usually mean that we assume the risk of a mistake for which otherwise one would be entitled to a different result." C.F. Trantow v. Industrial Commission, 262 Wis. 2d 586, 589 (1952).

Meyer v. Milliken Millwork, WC claim no. 930023332 (LIRC Feb. 27, 1998). Further,

Mutual mistake involves an error or misunderstanding made by all parties to a compromise, resulting in a mutually unintended consequence. An example might be all parties miscalculating the applicable average weekly wage when completing a compromise agreement. With regard to what constitutes gross inequity, the commission reserves the right in any particular case to consider all the relevant factors that might demonstrate such inequity. The commission has routinely found that simply agreeing to a "bad deal" does not constitute gross inequity.

Roemer v. Rowley Construction, WC claim no. 2004-041873 (LIRC July 9, 2009).

After carefully considering the record in this case, the commission is not persuaded that grounds exist to reopen the compromise. The applicant's financial situation and his eagerness to accept a settlement does not constitute duress by the insurer, nor does the insurance adjuster's statement that the insurer would try to recover the previously paid temporary disability. The applicant's attorney correctly notes a repayment of temporary disability cannot be ordered by the commission. However, the commission can find that temporary disability has been overpaid, and an insurer may use that finding as a basis for attempting to recover from the applicant presumably under Wis. Stat. § 102.20. Sandridge v. Mid American Long Distance, WC claim no. 89023179 (LIRC July 17, 1996). Informing the applicant of its right to pursue an overpayment in previously-paid compensation does not, under the facts of this case, constitute duress by the insurer. See Roelvink v. Milwaukee, 273 Wis. 605, 608 (1956)

Nor is the commission persuaded that the November 2009 MRI is truly "important newly-discovered evidence." The medical record establishes that Dr. Hackett ordered it only with reluctance. Even so, the ultimate conclusion of the interpreting radiologist was simply spondylosis, which is what Dr. Hackett stated the January 2009 x-ray showed in his January 26, 2009 treatment note. There is additionally a finding of a disc herniation at L4-5, but the interpreting radiologist did not specifically mention it in his general impression of the scan. Further, after the MRI was done, Dr. Gorelick estimated functional permanent disability at one percent more than Dr. Hackett had. While Dr. Gorelick did say in the March 2011 letter appended to his practitioner's report that he thought the applicant had a "lumbar surgical condition," his treatment notes themselves did not prominently recommend surgery or a surgical consultation.

The commission realizes that Wis. Stat. § 102.16 does contemplate that compromise agreements may be set aside. The commission also realizes that the basis for the compromise--permanent partial disability of 2.5 percent based on the functional disability rating given by Dr. Hackett--is small in comparison to a potentially much larger award for permanent disability based on loss of earning capacity. However, an award for loss of earning capacity, and indeed in any award for permanent disability, was by no means certain based on the record outlined above. The record also reflects that the applicant's decision to proceed to compromise without an attorney was knowing and voluntary. Neither the decision to compromise nor the amount of the compromise (which was approved by a department ALJ in the first instance), was the result of duress, overreaching by the insurer, or mutual mistake by the parties.

Based upon the foregoing, the commission does not believe adequate grounds exist to set aside or modify the compromise in this case. The application for compromise review shall be dismissed.

ORDER

The findings and order of the administrative law judge are reversed. The application for compromise review is dismissed.

Dated and mailed
August 30, 2012
breitzm . wrr : 101 : 5 ND6 11.5

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not confer with the presiding ALJ. Its reversal of his decision was not based on a different view of witness credibility, but on a different legal conclusion as to whether relief from the compromise was appropriate based upon the facts.

 

cc: Attorney Robert Angermeier
Attorney Richard Mueller


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