ALEX P SCHULTZ, Applicant
AAMCO TRANSMISSION, Employer
SOCIETY INS 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.
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
September 30, 2013
schultz2_wsd.doc:101: ND6 6.6
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The applicant was born in 1983. He began working as a mechanic for the employer, a transmission repair company, in 2006. He injured his back on February 8, 2011, when he attempted to move a transmission weighing 200 pounds from a cart to a jack.
Based on the opinion of its medical expert, J. Christopher Noonan, M.D., the employer and its insurer (collectively, the respondent) have conceded a compensable work injury on February 8, 2011 that caused a disc herniation at L4-5, necessitating a discectomy procedure at that level. The respondent contends that the applicant reached an end of healing as of the date of Dr. Noonan's report on May 7, 2012, with an 8 percent permanent partial disability.
The applicant relies on the opinion of his treating surgeon, James E. Cain, M.D., who diagnosed
Lumbar degenerative disease with disc herniation L4-5, L5-S1. Low backpain and sciatica.
Regarding causation, Dr. Cain opined that the traumatic incident while lifting the transmission on February 8, 2011, caused the disc herniations and back pain by "precipitation, aggravation, and acceleration of a pre-existing deteriorating or degenerative condition beyond its normal progression." He did opine that permanent disability had resulted and he rated it at 15 percent, 5 percent each for the decompression surgeries and 5 percent for residual symptoms. However, he also recommended that the applicant have a "fusion of the affected segments to reduce the degree of back pain that he has."
At issue, then, is the nature and extent of disability beyond that conceded as well as the employer's liability for medical expenses. Specifically, the issues are whether the applicant injured his L5-S1 disc in the February 8, 2011 work injury resulting in additional permanent disability; whether the commission should order the respondent to pay for the posterior and anterior fusion procedure proposed by Dr. Cain; and whether the applicant remains entitled to temporary total disability to the date of the hearing.
The ALJ resolved these issues in the applicant's favor, relying on the opinion of Dr. Cain. The commission agrees.
Injury to L5-S1 disc.
Regarding causation, the commission is persuaded that the applicant injured both his L4-5 disc and his L5-S1 disc when he moved the 200-pound transmission from a cart to a jack on February 8, 2011. While the applicant's complaints mostly involved the L4-5 disc distribution as Dr. Cain and Dr. Merriman noted, Dr. Cain did note some symptoms in the S1 nerve distribution. More significantly, when he did surgery, Dr. Cain noted extruded disc fragments which appeared to cause at least some level of nerve involvement at both L4-5, and L5-S1. While the applicant did have preexisting degeneration in his spine, it seems likely that the injury from lifting caused the herniations at both levels, as Dr. Cain credibly opined, in this 27-year-old worker who had only one occasion of prior short-term back pain from an earlier lifting injury at work.
Proposed fusion surgery.
The next issue, then, is whether the applicant has reached an end of healing and should undergo the procedure proposed by Dr. Cain. The respondent asserts the surgery is not necessary or warranted based on Dr. Noonan's opinion, or alternatively asks the commission to obtain a third opinion on the issue from a tie-breaker doctor. However, Dr. Cain has treated the applicant on an ongoing basis and he recommends the procedure for the applicant's back pain. Conservative treatment measures have failed and the applicant has been unable to return to his job. Both Dr. Noonan and Dr. Cain have had the opportunity to explain the risks to the applicant, and he is willing to undergo the procedure. The commission is persuaded by the medical record, including Dr. Cain's credible opinion, that the procedure is reasonable and necessary to cure and relieve the effects of the work injury. The ALJ properly ordered the insurer to pay for the costs of the procedure under Wis. Stat. § 102.18(1)(b).
TTD.
The final issue is whether the applicant is entitled to temporary disability to the date of hearing. Temporary disability is generally paid while an injured worker is in a healing period--that is, the period between the injury and the point at which the worker reaches an end of healing from the work injury. Case law requires that generally an injured worker be submitting to treatment in order to be regarded as being in a healing period. Regarding a "healing period," the supreme court has held:
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).
As both parties note, the commission has previously held:
Where a respondent refuses to pay for treatment, the respondent may not point to a worker's unchanging condition after that refusal as an endpoint of healing. Carole Lee v. Famous Fixtures, WC Claim No. 96000857 (LIRC July 2, 1997). See also, LeBlanc v. Laidlaw Transit, WC Claim No. 2005-043498 (LIRC November 6, 2008).
Similarly, in Klein Industrial Salvage v. ILHR Dept., 80 Wis. 2d 457, 461-62 (1977), a case involving a claim of an unreasonable refusal to treat under Wis. Stat. § 102.42(6), the court stated:
In prior cases we have said that a claimant cannot be said to have unreasonably refused treatment if none was offered by the employer. [Citations omitted] To deny compensation to a worker who could not pay the cost of medical treatment personally or who could not find someone to pay the cost would be inconsistent with the statute's purpose.
In other words, a worker's failure to seek treatment at his own or the public's expense should not be viewed as unreasonable refusal or neglect to submit to treatment under § 102.42(6). Id. Thus, up until the date of the commission's first decision in July 2009, failure to treat cannot serve as a basis for denying liability. [Footnote omitted.]
Chase v. QPS Companies, WC Claim No. 1995-003590 (LIRC Aug. 31, 2011). See also:
DeCora v. Northland Evergreens Inc., WC Claim No. 2008-020606 (LIRC July 28, 2011).
When the commission awards temporary disability under those circumstances, it is not making the award past the healing plateau date as a prod to the respondent to pay for a treatment. See:
GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 461 (1994). Rather, because the worker has not had the proposed treatment, he or she has not reached a healing plateau. That is, the worker has not reached the point where his or her condition will--in the words of the
Knobbe court--get no better or no worse, or where improvement as a result of convalescence and treatment is no longer anticipated.
Larsen Co. v. Industrial Commission, 9 Wis. 2d 386 (1960), cited by the respondent's brief, involved quite different facts than those present here. In Larsen Co., the treating doctor had plateaued the applicant with permanent disability and no recommendation for surgery in February 1955; surgery was first recommended in April 1956. The court held the commission's predecessor could not order temporary disability in the interim because the applicant had not been submitting to treatment and convalescing. Larsen Co., at 9 Wis. 2d 392. That is, in Larsen, the doctors agreed that the injured worker had reached an end of healing, but thereafter his condition worsened, making additional surgery necessary and putting him in a renewed period of healing. Here, the applicant never reached an end of healing because he never had full advantage of all the surgical procedures available to him to cure and relieve his current condition. If a worker has sustained a work injury that disables him and which is amenable to treatment, an end of healing does not occur simply because an employer stops or refuses to continue to pay for treatment.
The commission recognizes that Dr. Cain did reluctantly rate permanent partial disability in his May 26, 2012 treatment note.(1) However, Dr. Cain gave that opinion because he believed the worker's compensation insurer required it, and he qualified his opinion with a recommendation for further treatment. Thus, the commission does not read Dr. Cain's report and treatment note to set a genuine healing plateau date.
cc:
Attorney Peter Stanford
Attorney Joseph Danas
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