CALVIN F KROES, Applicant

ALLIED HOLDINGS INC, Employer

COMMERCE & INDUSTRY INS CO, Insurer

The respondents conceded jurisdictional facts, an average weekly wage of $1,500.00 and that the applicant sustained a compensable injury on November 9, 2007. They have conceded and paid temporary total disability benefits from November 9, 2007 to April 26, 2008, totaling $18,648.00; functional permanent partial disability benefits at the rate of 60 percent as compared to the body as a whole, totaling $117,811.36 paid to the date of the hearing (although that figure may include the lump sum payment pursuant to a department order approving a limited compromise agreement); and some treatment expenses. Attorney Frohman was to check the status of payments made to the applicant and Attorney Soule and to promptly make payment of any underpayment.

A hearing in this matter was held on October 24, 2012.

The only issue in dispute at the hearing was whether the prospective recommended physical therapy treatment by Mark C. Moore, M.D., is necessitated by the injury.

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 makes the following:

The applicant, Calvin F. Kroes, was born on March 27, 1948. He began his full-time semi-tractor truck driving work with the respondent, Allied Holdings, Inc., in 1990. His treatment and the respondents' doctor's records are incorporated herein by reference.

The applicant sustained a conceded, compensable traumatic cervical and right shoulder injury at the respondent on November 9, 2007, when:

On that day, he was . . . loading Chrysler products onto the trailer of his truck and was ratcheting down the chains using a 30 pound bar that he typically uses. In the process of putting his full weight leaning back pulling on the bar, the gear on the ratchet shattered and he flew back with sudden release of force, landing on his buttocks and back per his recollection. He had no other bruises, did not strike his head, had no immediate discomfort except for an achiness in his shoulder and neck . . . An MRI was performed at that time and revealed multiple degenerative changes with a diffuse disk bulge and asymmetrical narrowing of the neural foramina on C3-4, significant disk desiccation at C4-5 with disk protrusion and almost complete obliteration of the anterior space and C5-6 disk ridging and foraminal encroachment, and C6-7 central disk protrusion and narrowing of the space along with the foraminal narrowing.

At least three practitioners have treated the applicant following the accident; Christopher Sturm, M.D., Ronald A. Garcia, M.D., and Stephen A. Lindahl, M.D. The MRI scan test results and clinical findings did not warrant surgery, according to Dr. Sturm, who nevertheless, ordered an EMG/nerve conduction velocity study which confirmed no evidence of any radiculopathy or myelopathy. Conservative treatment was recommended, including a cervical home traction unit, a TENS unit, electrical stimulation, a hard and soft cervical collar, physical therapy, medication, a shoulder injection, and massage therapy. Some modalities, including the use of a stationary bike and water therapy in a Jacuzzi tub at home, provided relief while others did not.

By April 2008, Dr. Sturm referred the applicant to Dr. Garcia for an evaluation of continuing neck and right shoulder and arm pain. Dr. Garcia noted his relevant history, including some improvement in pain and range of motion of the neck with physical therapy, improvement in numbness and tingling in both arms, and right upper arm and shoulder pain despite treatment. His physical examination showed:

. . . the patient does not exhibit any spinal deformities or postural abnormalities. [The applicant], however, has markedly limited range of motion of the neck with only about 10 degrees cervical flexion, 10 degrees extension, 10 degrees neck rotation to the right and 10 degrees to the left, and only 5 degrees of lateral flexion bilaterally. Spurling test, however, is negative bilaterally, but, of course, Spurling test is limited by the marked decrease in range of motion in the cervical spine. There is no tenderness elicited on palpation of the cervical spinous processes of the paraspinal muscles. On examination of the upper limbs, he has palpable radial pulses. There is no joint swelling or deformities. There is no color asymmetry or temperature asymmetry. [He] has full passive range of motion at the shoulders, elbows, wrists, and fingers. He, however, has positive impingement test in the right shoulder. There is also reproduction of pain in the right shoulder and upper arm with resisted shoulder external rotation. [He] also has tenderness on palpation of the right subdeltoid bursa. [He] other[wise] has normal strength, sensation, reflexes, and coordination in both upper limbs.

Dr. Garcia assessed multi-level spondylosis and disc injuries at C4-5 and C6-7, markedly limited range of motion in the neck, and no physical findings of any radiculopathy or brachial plexopathy, but signs and symptoms of right rotator cuff impingement syndrome, and outlined a treatment regime. It began with a trial steroid injection into the right shoulder which provided significant relief in reducing the applicant's right shoulder pain and proceeded to physical therapy which resulted in minimal relief of neck pain. He found an end of healing and imposed permanent restrictions (sedentary to light-work with no lifting above the shoulder on the right side and rare twisting at the neck) but referred him to Dr. Lindahl for a disability assessment.

Soon thereafter, Dr. Lindahl reviewed relevant records, noted the applicant's report of only mild improvement in range of neck motion of no significance with physical therapy, use of a cervical home traction unit to relieve the spasms and a helpful TENS unit, temporary relief following the shoulder injection, and recurrent symptomology thereafter, suggesting nerve root impingement within the neck. Regarding his pain, it increased with physical activity (8-9/10), but was not present during sleep. The neck was:

Tender in the midline and paracervical right and left from C4 through T1. Marked pain response judged to be a genuine pain response. When asked to demonstrate active range of motion of the neck he can flex about 5 degrees and extend minimally above the horizontal. Rotation actively right and left is about 5 to 7 degrees. With strength testing which today is 3/5 but at this point he is uncomfortable but no fasciculations noted. Palpation of the sternocleidomastoids is unremarkable. Palpation of the trapezii bilaterally shows discomfort, right more than left. There is atrophy in the supraspinatus fossa of the light scapula compared to left. Mild, nonspecific tenderness in the same area.

Dr. Lindahl affirmed previous opinions of the cause and nature of the applicant's disability, found permanent disability, and recommended an MRI scan of the right shoulder to check for a tear of the supraspinatus tendon.

Respondents' doctor, Paul A. Cederberg, M.D., performed an examination of the applicant in June 2008. He agreed with the treaters' opinions, but imposed slightly different permanent restrictions (no use of his arms above the waist level and no lifting of more than ten pounds with either arm in any position). He, like Dr. Lindahl, was silent with respect to the need for future treatment other than the scan. The MRI showed a thinning of the distal supraspinatus tendon without evidence of full-thickness tearing, and the IME assessed additional restrictions associated with it (concerning limited use and lifting).

The applicant sought independent treatment from Dr. Moore, for numbness in both index fingers, markedly decreased range of motion of the neck, muscle spasms, and chronic pain, but principally, to manage his medication (Tramadol and Relafen) in a more efficacious manner. He reported the previous physical therapy did "not help," but home traction, a TENS unit, and a stationary bike provided some relief. An examination of January 6, 2010, by Dr. Moore demonstrated:

Neck range of motion right and left rotation 20 degrees. Forward flexion 1/2. Backward flexion nil. Right and left side bend nil. He has no neck tenderness. He can abduct the left shoulder to 170 degrees. Forward flex to 170 degrees. Backward flex 45 degrees. On the right, he can backward flex 45 degrees. He cannot forward flex or abduct beyond 90 degrees. . . His deltoids, biceps, triceps, wrist flexors and wrist extensor strength is normal bilaterally. His hand grip is strong. Deep tendon reflexes are hyporeflexic and symmetrical in the upper extremities.

Dr. Moore replaced Dr. Sturm's prescribed Relafen with Ibuprofen and evaluated the applicant's response about one month later. His right index finger was swollen but nontender. He could not make a full fist easily and his range of motion of the neck was: left rotation 30 degrees, right rotation 20 degrees, forward flexion 1/2, backward flexion nil, and right and left side bend nil- all demonstrating continued markedly decreased range of neck motion and a probable right arm dystrophy-type of problem from it. His intake of Ibuprofen was adjusted, new physical therapy was recommended, and a six-month follow-up was scheduled.

The applicant's physical therapist's medical record entries revealed that she performed "manual therapy in supine for cervical manual traction, sideglide mobilizations, direct pressure techniques to decrease muscle spasm [with prone] soft tissue work to bilateral rhomboids and upper traps [and] a low load prolonged stretch to the CT juncture [and] upper trap stretching. . . to tolerance with deep breathing techniques." The physical therapist noted that the goal was to discharge the applicant to a home exercise program after 12 weeks. He participated in two, three-month programs. Each session improved his neck mobility, relieved his pain, and allowed for significantly greater functionality, but the improvements were only temporary.

In February 2012, Dr. Cederberg conducted a medical record review of the applicant's 2011 treatment, after a third, very short course of renewed therapy ended. He found additional physical therapy was not medically necessary, based upon purported Minnesota treatment guidelines establishing a maximum 12-week program after injury; but, they do not apply here.

Wisconsin Admin. Code. § DWD 81.01(1)(b) provides:

The guidelines contained in this chapter are factors for an impartial health care services review organization and a member from an independent panel of experts established by the department to consider in rendering opinion to resolve necessity of treatment disputes arising under s. 102.16(2m), Stats., and s. DWD 80.73.

Wisconsin Admin. Code § DWD 81.07(3) sets out passive treatment modalities for neck pain and limits the use of passive treatment modalities in a clinical setting to 12 calendar weeks after the treatment is initiated but states that a health care provider may direct an additional 12 visits for the use of passive treatment modalities over an additional 12 months, if certain conditions set forth in the administrative code apply.

Wisconsin Admin. Code § DWD 81.04(5) does allow a healthcare provider to depart from a guideline that limits the duration or type of treatment in this chapter under certain circumstances.

However, this case arose as the result of an application for hearing under Wis. Stat. § 102.17. Thus, while the ALJ could use the administrative code as a guideline, she was not required to follow it.

The applicant testified that physical therapy was the only thing which really provided him with any relief from his pain, and it also increased his range of motion.

At the outset, the commission declines to conclude that treatment is unnecessary because it only relieves pain but does not improve the underlying condition.

"Moreover, the fact the treatment appears to be palliative, that is directed at pain relief, does not make it noncompensable or unnecessary. Wisconsin Stat. § 104.42(1) specifically refers to payment of expense to cure and relieve the effects of a work injury, and the commission has previously found palliative-only treatment (including most obviously pain medication) to be reasonable and compensable. The commission did indicate in its first decision that it might not keep a worker, who has recovered as much as he is going to from surgery following a work injury, in a healing period indefinitely pending the trial of palliative measures. The commission did not hold that palliative treatment is inherently suspect or not compensable."

Irvine v. United Parcel Service and Liberty Mutual Fire Ins. Co., WC Claim No. 1998-021734 (LIRC March 6, 2003).

With respect to the criteria listed in Wis. Admin. Code § 81.07(3), the commission did not find the criteria were all met in this case. Treatment was to be given on a regular basis and apparently for an indefinite amount of time. The applicant was not seeking active treatment as defined in Wis. Admin. Code § DWD 81.07 (4) at the same time he was seeking passive treatment.

Regardless of the factors set out in the administrative code, after reviewing the record in this matter, the commission finds the opinion of Dr. Moore to be more persuasive than that of Dr. Cederberg. Dr. Cederberg opined that the applicant should have been transitioned to a self-directed home exercise program. He did not give a persuasive, medical rationale for ceasing the applicant's passive treatment. Instead, he mainly relied upon the guidelines set out in the Minnesota code. The commission notes that the applicant in this case has a conceded work injury and testified that the only relief he received was from physical therapy and some medication.

Dr. Moore, in a note of March 21, 2012, indicated that the PT, which the applicant had been getting about 3 or 4 times per month, was really helping his range of motion. He reported that the applicant got a letter from the insurer denying further PT because the respondents' doctor decided he should not have more than 12 weeks of therapy. "The fact is, this therapy was very efficacious for him. This man does not have run-of-the-mill cervical DJD, it is very severe. He is unable to work, and the therapy gave him increased range of motion, which he has totally loss (sic) since he stopped the therapy about 6 weeks ago." Dr. Moore further noted that the patient has severe cervical DJD, which had been improving nicely with the medications and the therapy. "His range of motion today is markedly decreased from the way it was when he was receiving the therapy. I also felt the musculature posteriorly, and it is rock-hard. It would be medically prudent to allow this man to have physical therapy probably on a weekly basis for an indefinite amount of time, since without it his neck is almost motionless except for forward flexion. This obviously interferes with his lifestyle significantly." (Applicant's Exhibit A).

Thus, Dr. Moore's notes reveal that the applicant's physical therapy helped with his pain and range of motion. The physical therapy also loosened the applicant's muscles.

Dr. Cederberg's opinion does not provide a credible defense to support denial of liability for payment of the Moore-recommended physical therapy expenses, and a review of the applicable law, medical records, and the applicant's credible testimony supports a finding that they are necessitated by his accidental neck injury. Under the law, treatment expenses incurred to cure and relieve one from the effects of an injury, either by providing a permanent improvement in or preventing a permanent deterioration of, a condition, are necessary.

Based upon the record, the claimed prospective Moore-recommended physical therapy constitutes medically necessary treatment, necessitated by the conceded injury. The commission shall direct their payment under Wis. Stat. § 102.189(1)(b). The applicant testified that he last had physical therapy on January 27, 2012, as Dr. Moore said he would not offer the therapy because it was denied by the carrier. Dr. Moore's note of March 21, 2012, indicates that the therapy should be weekly for an indefinite amount of time. On the other hand, the notes of Melissa Staskal, PT, of October 8, 2010, indicate that the applicant is progressing toward his goals, and that his long-term goals are to independently demonstrate HEP for self management of symptoms.

The commission is reluctant to order prospective treatment which is not specifically delineated and which is vague as to cost. See Zierfus v. Shorty's Bar & Grill and Wilson Mutual Ins. Co., WC Claim No. 2007-018488 (LIRC March 25, 2013). Nonetheless, the only medical evidence in the record supports a conclusion that physical therapy is necessary for an indefinite time in the future. Given the lack of specificity as to the ending date of the treatments, the respondents have the right to challenge ongoing treatment in the future based on any changes in the applicant's medical condition or if they believe that they have persuasive medical evidence which would support a cessation of the physical therapy at some future date.

An interlocutory order is appropriate in this matter to preserve the applicant's right to make any and all additional claims as a result of this injury, including but not limited to a claim for additional disability and treatment expenses, consistent with this decision and order.

No attorney's fee is appropriate, given the procedural posture of the applicant's claim and alternative coverage through Medicare.

NOW, THEREFORE, this:

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

The respondents are liable for the payment of the applicant's reasonable (in cost) expenses associated with Dr. Mark C. Moore's recommended physical therapy treatment.

Jurisdiction is reserved to issue further findings of fact, conclusions of law, and orders as warranted, consistent with this decision and order.

Dated and mailed
September 24, 2013
kroesca_wrr.doc:145:ND6 5.1;  5.3

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The respondents have petitioned for commission review of the ALJ's decision. The respondents indicate they became concerned about the applicant's continued physical therapy given that notes indicate that the applicant's condition was aggravated by playing golf in Arizona. The respondents became concerned that the applicant's need for physical therapy was no longer necessitated by the work injury.

Thus, the respondents sent Dr. Cederberg copies of Dr. Moore's records and the physical therapy notes. He concluded that the applicant should have been transitioned to a self-directed home exercise program. The respondents point out that Minnesota Rule 5221.6205 is almost word for word the same as the administrative rule used in Wisconsin.

The respondents assert that criteria listed in DWD Section 81.07(3) were not met. The commission agrees. However, the commission did not find the opinion of Dr. Cederberg to be persuasive. The opinion, based on the Minnesota treatment guidelines, is more a legal, than a medical, opinion. He did not opine, for example, that the applicant's golfing activities caused him to need physical therapy. Dr. Moore, on the other hand, explained the benefits of the physical therapy and the resulting problems which occurred after the treatment ceased. The applicant provided credible testimony as to the benefit of the therapy to his range of motion and his pain level.

cc: Attorney Charles M. Soule
Attorney Michael C. Frohman

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