MARCUS R RIZER, Applicant

WISCONSIN BELL INC, Employer

WISCONISN BELL INC, 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

Dated and mailed
September 30, 2013
rizerma_wsd.doc:101:  ND6 6.3; 6.6; 6.11

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case was tried on stipulated facts and a short hearing. At issue is whether the applicant, having undergone a functional capacity evaluation (FCE), having been assigned permanent restrictions and permanent disability, and having returned to work, subsequently reentered a healing period making the self-insured employer liable for additional temporary disability.

The applicant and his employer stipulated that the applicant sustained a compensable right shoulder injury on October 18, 2010, that he underwent surgery performed by John F. Orwin, M.D., on February 7, 2011, and that the surgery was done to cure and relieve the effects of the work injury. Thereafter, Dr. Orwin released the applicant subject only to permanent restrictions as set out in an FCE on June 21, 2011. The doctor essentially adopted the restrictions set out by the physical therapist who did the June 2011 FCE: medium duty work with restrictions against overhead lifting or working. Dr. Orwin also rated 10 percent permanent partial disability at the shoulder at that time. However, the doctor indicated that the applicant's shoulder was better but that he still had aches and pains in it.

The applicant returned to work in August 2011 and worked until April 2012, except for about six weeks at the end of the year when he was off work for an unrelated hernia surgery. He testified, however, that while his shoulder was better, it was still occasionally painful, and that between August 2011 and April 2012, his right shoulder condition worsened. Specifically, he testified that his ability to raise his arm decreased and he could do less. He added that his shoulder pain became constant rather than merely occasional.

The applicant contacted Dr. Orwin in January 2012, and he ordered physical therapy. The applicant continued to work, and attended physical therapy which did not help. Then, on April 17, 2012, the applicant returned to Dr. Orwin. On that date, the doctor noted:

The patient is a 55-year-old male who is coming back for followup after having surgery on February 7, 2011, which involved arthroscopy of the right shoulder with extensive debridement and biceps tenotomy. Today, the patient is reporting that even though his shoulder pain improved since the surgery, the shoulder is still painful and gets worse with activity, especially overhead activity. He states that his pain is about 3 out of 10 at rest currently and never goes below it, and it gets up to 6 out of 10 with activity. He occasionally takes over-the-counter pain medications with some minor relief. . . . The patient strongly feels that his abilities have worsened since his last functional capacity evaluation.

On assessment, the doctor noted that the applicant's pain had improved following the February 2011 surgery, but then worsened after the June 2011 FCE. Therefore, Dr. Orwin wanted the applicant to undergo a repeat functional evaluation to determine new restrictions, and took him off work in the interim.

The ALJ awarded temporary total disability through the date of hearing. On appeal, the employer argues: (1) the functional capacity evaluation is not necessary under the guidelines set out by department rule, and (2) even if a functional capacity evaluation is necessary, the applicant has not established that he reentered a period of healing making him eligible for a renewed period of temporary disability.

As the ALJ explains in her decision, the guidelines in Wis. Admin. Code Ch. 81 apply to the alternative dispute resolution procedure under Wis. Stat. § 102.16(2m). The administrative rules do not apply to any determination of liability under Wis. Stat. ch. 102, nor do they apply to cases which, like this one, are heard before an ALJ under Wis. Stat. § § 102.17 and 102.18.

Moreover, the guidelines allow for departure under specified circumstances. Wis. Admin. Code § § DWD 81.01(2) and 81.04(5). Like the ALJ, the commission believes that a worker who is released to work under one set of restrictions, actually returns to work and performs job duties for several months, and then experiences increased pain while working under the restrictions, should be entitled to a second functional capacity evaluation. While a second capacity evaluation may not be necessary if an injured worker is successfully working within the restrictions set in a first functional capacity evaluation, that is not the case here.

The next issue is whether the applicant should be entitled to compensation for a renewed period of temporary disability beginning in April 2012. In general, injured workers are entitled to temporary disability compensation during their "healing period" or until they reach an end of healing or "healing plateau." The supreme court has stated:

The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.

Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).

Citing that definition, the supreme court in Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) stated:

An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...

Larsen Co., 9 Wis. 2d at 386. Under these holdings, the commission "does not have the authority to order an employer to pay an injured employee TTD benefits for the period after the employee's medical condition has stabilized and before the employee undergoes surgery." GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460-61 (1994).

In this case, the applicant had been working, but then had an increase in symptoms that were significant enough for Dr. Orwin to take him off work. His shoulder condition at this point was no longer "stationary." By returning to Dr. Orwin, who ordered him off work until he could undergo a functional capacity evaluation, the applicant submitted to treatment, was convalescent, was still suffering from his injury and was unable to work because of the accident. Thus, the commission is persuaded that the applicant reentered a healing period when Dr. Orwin took him off work in April of 2012. It therefore affirms the ALJ's decision.

cc: Attorney James A. Meier
Attorney Douglas M. Feldman

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