STEPHANIE M GUZIEC, Applicant

SUPERVALU HOLDINGS INC, Employer

OLD REPUBLIC INS CO, Insurer

In September 2013, the applicant filed a hearing application seeking compensation for a head injury on February 17, 2006. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 30, 2014, with a close of record on or about September 2, 2014. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage at the statutory maximum for the purposes of worker's compensation benefits, and an injury arising out of the applicant's employment with the employer while performing services growing out of and incidental to that employment on February 17, 2006. At issue was the nature and extent of the applicant's disability from that injury, and the respondent's liability for medical expenses.

On March 19, 2015, the ALJ issued his decision in this matter. 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. Following its review, the commission modifies and affirms the decision of the ALJ, based on the following:

1. Injury and treatment

The applicant was born in 1965. She suffered a conceded injury on February 17, 2006, in a motor vehicle accident while on duty. Specifically, the applicant was stopped at an intersection when the vehicle she was driving was rear-ended. According to the applicant, the force of the impact forced the trunk of her vehicle into the back seat and the back seat into the front seat. She was pushed through the intersection; however, the airbags did not deploy. She was wearing a safety belt at the time.

The applicant was taken to an emergency room where she complained of pain in the back of her head, in her neck, and in her left leg. The emergency room doctor reported no vertebral tenderness in the thoracic or cervical spine, but he did note spasm in the left paraspinous musculature. The emergency room doctor's diagnoses included acute cervical strain. Exhibit B.

The applicant then saw her family doctor, who referred her to a neurologist, Gene Neri, M.D., whom she first saw on April 13, 2006. In a letter to the family doctor dated May 5, 2006, Dr. Neri reported that the applicant had been stopped at a stop sign and was rear-ended by another vehicle, noting that the airbag did not deploy. There was no loss of consciousness. He added:

... She complains bitterly of headaches, some backaches, neck aches, loss of memory, and loss of concentration. She has some stabbing sensations in her head, posterior cervical area. She denies any definite visual symptomology. ... She states that she feels like the "room was all moving" and though she sleeps a lot, she states that she has a fog and her sleep is rather of poor quality though it has improved some on Neurontin. She also states she has some word finding difficulties, definite irritability, and some mild depression.

Exhibit G. On examination, Dr. Neri noted that "[m]ental status revealed some definite anxiety, depression, and obvious psychomotor retardation, i.e., slowing down of thought process." His diagnoses were:

1. Flexion-extension injury cervical spine.
2. Closed head injury syndrome.

In June 2006, Dr. Neri noted some improvement in the applicant's posterior cervical area, though there was "considerable remaining spasm" for which he recommended hot packs, ultrasound, and stretching. He noted she was sleeping better, but still had headaches.

In August 2006, Dr. Neri noted that the applicant's memory problems were improving with medication, and that her closed head symptoms were slowly improving. He released her to work four hours per day, four days per week. In September 2006, the doctor noted the applicant continued work despite increasing headaches and neck stiffness. He also noted sensitivity to light.

By November 2006, the applicant was back working full time, though Dr. Neri noted severe spasm of the upper trapezius, posterior cervical and sternomastoid muscles bilaterally. In February 2007, the doctor noted

... substantial spasm of the upper trapezius, posterior cervical and sternomastoid muscles bilaterally comparable to how she was on her first visit to me. It appears clear that she is working hard at her job setting up displays and lifting etc. I feel that unless some restrictions are placed on her lifting, pushing, pulling, bending, twisting and so forth, that despite our best medical efforts, she will not be able to improve.

The doctor noted some improvement in a follow-up visit in March 2007, though he also reported that she still had two to three headaches per day. In May 2007, he noted continued slow improvement regarding both the whiplash and closed head injury.

In June 2007, Dr. Neri stated:

Stephanie is still having some cognitive and memory difficulties as well as headaches and conditioning problems. She has substantial spasm in the cervical area i.e. posterior cervical muscles and upper trapezius. The physical therapy was discontinued because of "plateau" however; it is certainly not the plateau that we wish to achieve.

In August 2007, Dr. Neri noted that the applicant had three problems as a result of her injury:

1. Closed head injury.
2. Flexion extension injury of the cervical spine.
3. Cervical radiculopathy

The doctor went on to note, regarding the cervical radiculopathy, that an MRI of the applicant's cervical spine did not reveal a surgical lesion. Regarding the flexion and extension of the cervical spine, the doctor noted the muscle spasms continued to be a problem, but that the applicant was getting better. He added:

Finally the most significant problem is the closed head injury syndrome which has caused ongoing daily headaches, word finding difficulties and difficulties with fluency of speech as well as immediate and recent medical problems. There is also some psychomotor retardation as most closed head injuries do. In this regard, I have strongly recommended that she begin a course of cognitive rehabilitation, particularly with speech therapy, but also including some physical therapy to the posterior cervical area and perhaps occupational therapy with regard to the upper extremities.

In September 2007, the applicant began receiving speech therapy and physical therapy at ResCare Premier. A note from Angela Hill, M.S., of ResCare Premier states that the applicant's presenting problem included decreased attention as well as decreased processing and retention of auditory information. Ms. Hill wondered if the applicant would benefit from medication to improve her attention and alertness.

When the applicant saw Dr. Neri on September 26, 2007, he noted that the evaluation at ResCare showed "as expected significant evidence of cognition problems as well as serious spasms in the upper trapezius, posterior cervical and sternomastoid muscles bilaterally from the whiplash injury."

Dr. Neri's notes of the next few months indicate that the applicant continued to work and undergo both physical therapy for her cervical condition and for "cognitive rehab". By February 2008, the doctor noted "some improvement in her mental status with more facility and less psychomotor retardation," and that her memory was improving but her headaches were worse. He also noted severe spasm in the upper trapezius, posterior cervical and sternomastoid muscles bilaterally. In April 2008, Dr. Neri reported that he could not predict an end of healing, or estimate permanent disability, but did state that the applicant would require a functional capacity evaluation to determine permanent disability.

In June and July 2008, Dr. Neri noted that the applicant experienced an episode of sudden headache followed by personality change and loss of memory. He obtained a 24-hour EEG, which showed no abnormality, so he concluded the episode was of a chemical etiology due to a serotonin imbalance.

In September 2008, Dr. Neri noted a functional capacity evaluation had been done which was showed the applicant was left at a medium duty status. Actually, the functional capacity report itself, which is dated August 27, 2008, and is signed by Kelly Dow, P.T., indicated that the applicant needed to function at the medium category of work for her job, but that

[the applicant] demonstrates the physical capabilities and tolerances to function at the Light category of work (as defined by the US Department of Labor), which is indicative of a 2-hand maximum lift/carry of 20# from 9"-waist level and a 2-hand frequent lift of 8# from 9"-waist level.

Exhibit G, bolding in original.

In November 2008, Dr. Neri described the applicant as still having significant headache and memory difficulties, though she was more spontaneous in her speech. He also described "severe spasm in the upper trapezius, posterior cervical and sternomastoid muscles bilaterally which continue unabated by treatment."

Dr. Neri reported another episode of the applicant "spacing out" in February 2009. Later that month, a "company doctor," George Bridgeforth, M.D., saw the applicant regarding her ability to drive a company car. Diagnosing a closed head injury and history of chronic cervical pain following a traumatic accident, Dr. Bridgeforth stated:

It is my assessment, and I concur with the treating physicians, that the patient has had a significant closed head injury and in addition as a result of the closed head injury does have some very high-level cognitive memory problems as characterized by the flat affect, the emotional lability (basically the anger, the acting out, and the crying), and recurrent problems with the short-term memory loss. I think also she does have posttraumatic headaches, which may be consistent with a posttraumatic migraine type of headache[].

Exhibit E, In May 2009, Dr. Neri noted the applicant had undergone a driver's evaluation, and passed.

In June 2009, Dr. Neri noted the applicant "appears to have much improved executive function initiating conversations and appears more alert than her previous visit." However, he also noted that her headaches continued to be significant on a daily basis and were related to severe spasm in the cervical and upper trapezius muscles from the whiplash injury.

Dr. Neri noted continued slow improvement into March 2010, when the doctor observed her employment had been terminated by the employer, which the doctor felt was related to her mental condition. Treatment notes from Dr. Neri through June 2014 document continued episodes of feeling disoriented or "spaced out." The applicant also continued to complain of spasm in her upper trapezius, posterior cervical and sternomastoid muscles, as well as headache and problems with memory and concentration. The doctor further noted significant cognitive deficits, difficulties with executive function, and mood problems. Instances where the applicant related problems with her job-such as receiving poor performance reviews, problems with her superiors, and finding her relatively simple job challenging and overwhelming-are also documented in the treatment notes for this period.

On June 6, 2012, the applicant saw clinical psychologist Patricia Andrise, Ph.D., for a neuropsychological evaluation on Dr. Neri's referral. Dr. Andrise states:

... The patient had been working as a merchandiser specializing in bakery/deli products for grocery stores. She believes that she returned to work too soon and made many mistakes. Also, she reports that driving was "scary". [The applicant] was laid off from this job. She currently works as a field consultant for 7-11 franchises. [The applicant] reports that this is a "lower" position. She does not believe she is doing her job well and wonders if she should continue working. She notes that she is much disorganized at work and this causes her to make many mistakes. She reports that she does not know "how to fix this". [The applicant] also states that she used to be very good at organizing her work.

The patient reports that, since the accident, she has difficulty with memory, organization, decision-making, and speed of processing. She describes periods of time that she cannot remember and states that she "goes blank". She does not know if she has had a recent MRI or EEG. She reports feeling frustrated, stressed, and anxious. She has some appropriate depressive symptoms, but denies suicidal ideation or plan.

...

The patient reports that she graduated with honors from Romeoville High School. She completed a two-year degree in culinary arts at Joliet Junior College. She reports that she always received excellent grades.

...

Behavioral Observations:
[The applicant] was pleasant and cooperative throughout the testing process. She was very quiet and has a soft, childlike voice. She reported, during the testing, that she had a headache, but did not think it would interfere with her performance to the point of stopping. She showed no exaggerated pain behavior. In fact, her behavior was very constricted as is often seen in chronic pain patients. No medication seemed to interfere with her attention/concentration. In fact, she maintained sufficient attention/concentration to render this an accurate evaluation of her current level of cognitive functioning. All testing was performed at one sitting in order to simulate a normal workday. The patient did not demonstrate an[y] over-exaggerated or malingered behavior. No evidence of a hearing or visual impairment impeded her performance.

Test results:
The patient's performance on the WAIS - IV revealed a Verbal Comprehension score of 85 (low average), a Perceptual Reasoning score of 100 (average) and a Full Scale IQ of 87 (low average).... A significant difference between her VCI and PRI is present suggesting that her verbal abilities are inappropriately different than her perceptual reasoning skills.

[The applicant]'s memory scores revealed auditory memory and delayed memory to be within the low average range. She performed in the average range for visual, visual working and immediate memory. This probably represents a decline from her premorbid abilities.

...

Treatment plan and recommendations:
The results of testing suggest that [the applicant] is suffering from cognitive deficits. The interview/test data taken together with her (self-reported) lack of difficulties with her job or at home functioning prior to the accident, suggests that she probably suffered a brain injury as a result of the MVA five years ago. Additionally, because of the length of time since the accident, [the applicant] has already made some recovery. Also, because of the length of time that this patient has dealt, unsuccessfully, with the cognitive and pain due to her injury, she appears to have developed a depressive condition. This is not unusual for individuals attempting to cope with such a condition.

At this time, it is recommended that the patient participate in a course of psychotherapy. This treatment will focus on compensation strategies for her memory issues as well as the depression which could certainly be contributing to her deficits. Also, we will focus on the appropriateness of gainful employment and her ability to do the job she now holds. She does not want to stop working and every effort will be made to keep her on-the-job.

2. Work before and after the injury.

As Dr. Andrise's report indicates, the applicant graduated from high school in 1983, then obtained an associate degree in culinary arts at a junior college in Illinois in 1985. She worked for the named employer, Supervalu from 1989 to 1993, then as a district deli/bakery manager for Super K-Mart from 1993 to 1997. At Super K-Mart she earned $40,000 to $50,000 and oversaw 13 stores.

The applicant returned to Supervalu in 1997, where she was a "bakery and deli specialist," and oversaw several stores in Wisconsin and Illinois. She trained managers on inventory, merchandising and sanitization. She also attended trade shows and stocked deli cases. She earned $72,626 in 2005, the year prior to the injury.

Before her accident, the applicant received better than average performance reviews at Supervalu. After the injury, however, she received only average reviews and in fact was put on a performance improvement plan. Supervalu laid the applicant off in February 2010, telling her that "downsizing" was the reason.

The applicant was then out of work for nine months, until she began working at 7-Eleven as a business consultant for underperforming convenience stores. She earned approximately what she had made at Supervalu, and had similar perks. She testified that her ability to work at 7-Eleven was impaired by the effects of the work injury, specifically problems meeting deadlines, finding forms, loss of memory, and inability to multi-task. She was discharged by 7-Eleven in August 2013 for performance issues, some of which are documented in the notes of Dr. Neri.

Beginning in December 2013 and continuing to the time of the hearing, the applicant has been working for Jewel as a bakery manager earning $55,000. She describes this job as several levels lower than the job she had at Supervalu. Even so, she testified, the new job was not going well with her having problems with deadlines and prioritizing.

3. Expert medical opinion.

Both sides have offered expert medical opinion regarding the nature and effect of her disability from the work injury.

The applicant offers a practitioner's report from Dr. Neri dated June 17, 2009. Exhibit G. He states that the work-related motor vehicle accident in which the applicant was rear-ended while stopped at a stop sign resulted in disability from:

1. Moderately severe TBI [traumatic brain injury] with decreases in memory and cognitive functioning

2. Flexion/extension injury in the cervical spine with secondary muscle contraction headaches and posttraumatic migraines.

In his practitioner's report, Dr. Neri opined the applicant had permanent work restrictions limiting her to an 8-hour maximum day (including driving and computer time), no overnights, and a 10-pound lifting limit. He rated permanent partial disability at 25 percent to the body as a whole, for pain, suffering, severe headaches, and cognitive, memory, and mood problems. He gave a "guarded" prognosis with a slow recovery if any, and that he expected further treatment to include physical therapy and medication.

In an uncertified medical assessment form dated September 16, 2010 (exhibit G), Dr. Neri indicated the applicant would underperform at work involving: detailed or complicated tasks, strict deadlines, close interaction with coworkers or supervisors, fast paced tasks, and or exposure to work hazards. Regarding restrictions, Dr. Neri indicated that the applicant would have to alternate between sitting and standing at work, and that she could sit for only 30 minutes consecutively and stand for only 10 minutes consecutively. He also stated that she could only walk for less than 2 hours total in an eight-hour work day and sit for only about 2 hours total in an eight-hour work day, in effect limiting her to a 4-hour work day. He added that she would need to take 10 unscheduled work breaks per day, that she could rarely lift up to ten pounds, that she could rarely twist, bend or stoop, that she could only use her hands to grasp, turn, twist or manipulate objects about 10 percent of the time, and that she would miss more than four days of work a month.

The applicant also offers the opinions of a medical expert retained by the respondent,1(1) Douglas Frazin, M.D., who examined the applicant on July 3, 2006, April 23, 2007, and June 18, 2008. Following his first evaluation (exhibit C), Dr. Frazin opined the applicant's diagnosis was

Closed head injury. (It is more than just a concussion because of her extensive symptomology which is more than one would expect with a concussion.) She also has residuals of a cervical flexion/extension injury as well as a lumbar strain.

He added that these diagnoses were directly caused by the motor vehicle accident occurring at work; that there was no evidence of a pre-existing condition that could be causing her symptoms; that she should be evaluated by a speech therapist, occupational therapist, and physical therapist, and that evaluation by a neuropsychologist might also be warranted; that her treatment had been appropriate and necessary; that it was too soon to declare an end of healing or rate permanent disability; but that she could work with restrictions.

After reevaluation on April 23, 2007 (exhibit D), Dr. Frazin diagnosed "residuals of a closed head injury as well as a cervical flexion/extension injury and a resolved lumbar strain." He again opined that the treatment to date had been reasonable and necessary, and that the applicant's symptoms could not be related to a pre-existing condition. He thought she no longer needed physical therapy for her neck complaints, but should consider NSAID medication and possible epidural steroid injections. He thought an end of healing for the cervical complaints could be declared after the injections were done. If she did not improve, she would have a total of 12 percent permanent partial disability to the body as a whole, ten percent for the closed head injury and two percent for the cervical flexion/extension injury.

Regarding work restrictions, Dr. Frazin stated:

[The applicant's] restrictions would be an eight-hour work day, no lifting/carrying more than fifteen pounds, and no bending/twisting at the waist or working at shoulder level or above with her arms on more than an occasional basis. These restrictions would be permanent if she does not show any improvement following the cervical epidural injections I suggested. If she does show improvement, she would have to be reevaluated at that time for any possible further reduction of her restrictions.

Following his reexamination of the applicant on June 18, 2008, Dr. Frazin issued a certified report (exhibit G) stating "physical examination would disclose a diagnosis of residual of a closed head injury as well as a cervical flexion/extension injury." He thought her treatment had been reasonable and necessary, except for the physical therapy that continued after the April 23, 2007 report. He did not think she needed further treatment at the time, however, and opined she had reached an end of healing as of the date of the June 18, 2008 evaluation. He rated permanent partial disability at twelve percent to the body as a whole consistent with his earlier report, adding:

... Ten percent is for the closed head injury residual manifested by headaches, thought process disorder, decreased organizational ability as well as speech and emotional problems. In addition, she would have two percent of the body as a whole due to residuals of her cervical flexion/extension injury manifested by discomfort in her neck as well as the episodic numbness and vasomotor instability in her hands.

Regarding restrictions, Dr. Frazin stated:

[The applicant] should work not more than eight hours per day. It would be my recommendation that consideration be given that the stores she is in charge of be closer to her home so she has to do less driving and therefore will be able to put more hours in on site. In addition to that, restrictions would be that of no working at shoulder level or above with her arms on more than occasional basis, no lifting or carrying more than 15 pounds, and no more than occasional bending or twisting at the waist. These restrictions are permanent.

In a follow up certified report dated September 12, 2008 (Exhibit G), Dr. Frazin stated that the medications that Dr. Neri prescribed were to treat the work injury, adding that when he said no further treatment was needed in his prior report, he meant no further physical therapy.

The respondent then retained Marc Novom, M.D., who examined the applicant in 2010 and issued a follow-up report in 2014. Dr. Novom does not think the applicant's current condition is related to the work injury. In his March 2014 report (exhibit 1), he stated that the applicant exhibited classic features of functional distress, describing the applicant as a particularly fragile and emotionally wounded individual. He added:

...[the applicant] principally sustained cervical hyperflexion/extension injury/whiplash, held consistent with the mechanism of the rear-end motor vehicle accident. It is by no means uncommon for such variety of injury to produce cervicogenic muscle contraction headaches. Even if one assumes [the applicant] may have sustained a minor concussive blow at the time of the impact, the expectant outcome is invariably good, with anticipated gradual improvement over a period of weeks, not exceeding a few months in the majority of cases....

For all purposes, [the applicant's] clinical course is best described as persistent post-concussive syndrome (PPCS). This represents a protracted state of refractory headaches, dizziness, and continued cognitive and emotional embarrassment, long exceeding the customary period for anticipated improvement following concussions.

[The applicant] is now eight years post-rear-end motor vehicle accident, without finding of craniocervical skeletal structural derangement or intracranial bleed. When one carefully examines cases of persistent post-concussive syndrome, there is often recognized some undercurrent of psychosocial unrest. No doubt the loss of [the applicant's] husband in 2012 greatly added to her emotional upset. Loss of job added to low self-esteem.

...

...complaints of impaired memory, concentration, mental slowness, etc., cannot be explained by mechanism injury in connection to the February 17, 2006 motor vehicle accident. It is my opinion to medical certainty [the applicant] has not sustained any permanent traumatic brain injury. Her current state of chronic pain and emotional fragility underscore great psycho-functional overlay. Such state of mind can no longer readily be attributed to a simple reactive depression or stress response to acute painful injuries produced by a rear-end motor vehicle accident.

I then find [the applicant] has sustained 0% permanency in connection to the motor vehicle accident of February 17, 2006, having long ago reached an End of Healing, requiring no further restorative or palliative measures. From the neurologic perspective there is no objective evidence of permanent physical impairment interfering with [the applicant] engaging in any variety of gainful employment consistent with her educational background and work experience.

Dr. Novom went on to state that any disability claim by the applicant two months after the accident (or after April 17, 2006) bears no relation to the motor vehicle accident.

In his earlier report done in March 2010 (exhibit 3), Dr. Novom explained

[the applicant] suffers from a primary functional psychogenic mediated chronic pain state and associated functional cognitive complaints to which the label of persistent post-concussive syndrome is aptly applied. One should not confuse such terminology with post-concussive syndrome. Post-concussive syndrome is a biologic mediated event in response to traumatic head injury. Persistent post-concussive syndrome represents an altogether unrelated process of elaborate chronic pain behaviors and cognitive complaints driven by heightened anxiety and depression without ready biophysiologic substrate or explanation often seen in the context of litigation promulgated by inappropriate protracted courses of treatment only serving to reinforce conviction of injury and often adding to iatrogenic complications of polypharmacy. [Italics added.]

Exhibit 3, March 2010 report of Novom, page 8, response to specific interrogatory 7. That is, "persistent post-concussive syndrome ... no longer relates to initial traumatic event but more so reflects an autonomous self-perpetuating psychogenically mediated chronic pain state with nonorganic based 'cognitive' complaints." Id., page 6. Asked in this earlier report if he agreed with Dr. Frazin's assessment of permanent partial disability, Dr. Novom stated:

Absolutely not. That physician has no basis for assessing 12% permanent partial disability apportioning 10% for closed head injury. Dr. Frazin lacks the medical background, experience and training to sort through the elaborate maze of psychofunctional and psychoneurotic behaviors contributing to expression of persistent post-concussive syndrome. In effect he is entirely reliant on subjective complaints offered by [the applicant]. Dr. Frazin does not rely on standard criteria to establish the severity of head injuries or concussions. In fact, one is struck by Dr. Frazin's assertion that [the applicant] suffers from greater cognitive embarrassment than one would expect from ordinary post-concussive syndrome. It is such realization which should have led Dr. Frazin to challenge conclusions of severe residuals following a closed head injury...

Id., page 8, response to specific interrogatory 8.

4. Expert vocational opinion.

Both parties have submitted expert vocational opinion as well. The applicant relies on the report of Bruce Schuyler (exhibit 3). He opined that, under Dr. Frazin's restrictions, the applicant would have a reasonable access to the labor market, albeit in lower-paying work such as sales representative, food service manager, customer service representative, and first line supervisor or manager of retail sales workers. He stated that the range of annual salaries for such workers is $34,600 to $55,090, for an average of $48,400, compared to her salary with the time-of-injury employer (Supervalu) of $75,592 in 2004 and $72,736 in 2005. He also noted that the applicant would be limited to select employment, even in the lower-paying jobs within Dr. Frazin's restrictions as identified above. Under those restrictions, then, Mr. Schuyler opined that the applicant would have a 40 to 45 percent loss of earning capacity.

Mr. Schuyler further concluded the applicant would be permanently and totally disabled on an odd-lot basis under the restrictions set by Dr. Neri, which, among other things, limited the applicant to a 4-hour work day with at least ten unscheduled breaks.

The respondent relies on the expert vocational opinion of Michael Campbell whose April 16, 2014 report is at exhibit 2. He noted that there would be no loss of earning capacity under Dr. Novom's restrictions. Under Dr. Frazin's restrictions, Mr. Campbell saw three separate scenarios:

a. [The applicant] would not have any loss for worker's compensation purposes if we assume Supervalu could have accommodated these restrictions at her customary pay level.

b. After her employment relationship ended with SuperValu [the applicant] located work with 7-Eleven, and remained there for nearly three years. If I understand her correctly, it was not her physical problem, but difficulties with organization and memory that caused her to lose the 7-Eleven job. If we assume the work was appropriate in purely physical terms, she may have some loss but it would not exceed the 12% functional rating provided by Dr. Frazin.

c. If we set aside both the SuperValu and the 7-Eleven employment situations, and turn to [the applicant's] present job with Jewel Foods as well as consider the other options she has in the employment market, her loss would fall into the 25 to 30% range.

Regarding those "other options," Mr. Campbell opined that under Dr. Frazin's restrictions, the applicant would be able to work as a sales representative, business operations specialist, marketing specialist, production supervisor, and customer service representative earning between $56,310 and $69,960.

Mr. Campbell added that the three scenarios identified above would apply to Dr. Neri's restrictions as well, though he agreed with Mr. Schuyler that under the third scenario the applicant would be permanently totally disabled under Dr. Neri's restrictions.

5. Discussion and award.

Like the ALJ, the commission concludes that the applicant has permanent residuals from both the cervical spine injury and the closed head injury. The respondent initially had the applicant examined by neurosurgeon Frazin who reported "a diagnosis of residuals of a closed head injury as well as a cervical flexion/extension injury," rated permanent partial disability at 12 percent, and set rather limiting work restrictions. On the record before it, the commission adopts Dr. Frazin's opinion as most credible.

While the respondent now contends the opinion of its second retained medical expert, Dr. Novom, is more credible, the commission is not persuaded by that doctor's premise that the applicant is "a particularly fragile and emotionally wounded individual." That observation does not square with the applicant's actual work history. After recovering from her work injury, the applicant returned to work with Supervalu where she worked until she was laid off. After she was laid off from Supervalu, she found work at 7-Eleven where she worked until she was discharged. After she was discharged from 7-Eleven, she found work at Jewel where she was working at the time of the hearing.

Dr. Frazin's opinion better squares with the nature of the conceded injury, the applicant's credible consistent complaints and her treatment history, the corroborating medical opinion of Dr. Neri, and corroborating psychological opinion of Dr. Andrise. Indeed, Dr. Frazin's opinion is supported by employer-retained Dr. Bridgeforth who stated--three years after the work injury--"I concur with the treating physicians, that the patient has had a significant closed head injury and in addition as a result of the closed head injury does have some very high-level cognitive memory problems." The commission thus concludes that the applicant has permanent partial disability on a functional basis at 12 percent and adopts as most credible the work restrictions set by Dr. Frazin.

The next issue is the extent of permanent partial disability on a vocational basis for loss of earning capacity given Dr. Frazin's work restrictions. Because the applicant was able to return to her job with her time-of-injury employer, Supervalu, at her former wage after the injury, she did not have a loss of earning capacity claim until Supervalu laid her off. Wis. Stat. § 102.44(6)(a) and (b) provide:

(6) (a) Where an injured employee claiming compensation for disability under sub. (2) or (3) has returned to work for the employer for whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.

(b) If during the period set forth in s. 102.17 (4) the employment relationship is terminated by the employer at the time of the injury or by the employee because his or her physical or mental limitations prevent his or her continuing in such employment, or if during that period a wage loss of 15 percent or more occurs, the department may reopen any award and make a redetermination taking into account loss of earning capacity.

In order to recover compensation for loss of earning capacity, the applicant does not have to prove that she was discharged by Supervalu for reasons related to her injury. As the supreme court has held:

16 A permanent partial disability that is not scheduled does not always result in compensation for loss of earning capacity. If the employee returns to work, the employee receives compensation for loss of earning capacity if the employee suffers a 15 percent or more wage decrease. Wis. Stat. § 102.44(6)(a)-(b). Otherwise, an employee receives compensation only for "the physical limitations resulting from the injury." Id. Whether or not an employee suffers a 15 percent or more wage decrease, an employee still can receive compensation for loss of earning capacity if the employer terminates the employment relationship for any reason, or the employee terminates the relationship because of physical or mental limitations. Wis. Stat. § 102.44(6)(b).

Mireles v. LIRC, 2000 WI 96, 237 Wis. 2d 69, 16 (emphasis added.). Thus, the commission has held that an injured worker may receive a loss of earning capacity award after being laid off by the time-of-injury employer from a post-injury job paying 85 percent of his or her pre-injury earnings, even where the layoff occurred for economic reasons. Holzem v. Quad Graphics, WC claim no. No. 2001-056923 (LIRC July 30, 2013)(where a worker returned to work with permanent restrictions in February 2004 and was laid off for economic reasons in January 2009).

Further, the 85 percent threshold in Wis. Stat. § 102.44(6)(a) only applies to re-employment by the time-of-injury employer, here Supervalu. Thus, even if the applicant were still working at 7-Eleven at something close to her pre-injury wage, she would have a loss of earning capacity claim, though of course her ability to engage in such employment would be a relevant consideration. Finally, it is worth keeping in mind that a loss of earning capacity is just that: an award for lost earning capacity. It is not based on a straight wage loss calculation. Rather, an assessment of loss of earning capacity is based upon a prediction of impaired earning capacity for the injured employee's working lifetime (or as the supreme court put it, a prediction "made for all time"). See Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76, 30 N.W.2d 217 (1947); see also Kurschner v. ILHR Dept., 40 Wis. 2d 10, 18, 161 N.W.2d 213 (1968). In other words, an award for loss of earning capacity is not based solely on a worker's earnings in a particular post-injury job-though again that might well be a relevant factor-but on the capacity to earn throughout a worker's working life.

The commission gave careful consideration to the three scenarios identified by Mr. Campbell in his vocational report. Regarding the first scenario, while it is true that there could be no loss of earning capacity award if the time-of-injury employer, Supervalu, had continued to accommodate the applicant's restrictions, the fact is they did not. Again, as the court noted in Mireles, even if the reason for the decision to discharge was purely economic as the applicant testified she was told, she can still bring a loss of earning capacity claim.

With regard to Mr. Campbell's second scenario, the commission again notes that the applicant's loss of earning capacity award is not based solely on her actual wage loss in any particular job after leaving Supervalu. Mr. Campbell himself said that the applicant's post-injury capacity is best reflected by jobs paying about 25 to 30 percent less than she made for Supervalu. Further, the record establishes that the applicant was discharged by 7-Eleven for performance problems related to her memory and organization problems. And again, Dr. Frazin noted a substantial part of the applicant's permanent partial disability from the work injury was "for the closed head injury manifested by headaches, thought process disorder, decreased organizational ability,... (emphasis added.)" Exhibit G, June 30, 2008 report of Frazin, page 9.) The commission cannot accept Mr. Campbell's apparent conclusion that a reduced award from loss of earning capacity would be appropriate if the applicant was discharged by 7-Eleven for memory and organizational issues.

This leaves Mr. Campbell's 25 to 30 percent loss of earning capacity rating under his third scenario. Mr. Schuyler of course, rated loss of earning capacity at 40 to 45 percent. The ALJ awarded loss of earning capacity at 35 percent. After careful consideration of the factors in Wis. Admin. Code § 80.34(1), as well as the reports of both vocational experts, the commission concludes that the applicant likely has the capacity to find select work earning about $50,000 to $55,000. The commission further concludes that the applicant has sustained permanent partial disability on a vocational basis at 35 percent, into which is merged the 12 percent functional disability rating.

The applicant is thus entitled to 350 weeks of permanent partial disability compensation at the weekly rate of $242 (the maximum for injuries from January 1 to March 31, 2006), totaling $84,700, all of which is accrued. After accounting for $29,040 in permanent partial disability previously paid on Dr. Frazin's functional disability rating, the department calculates that $42,871.77 is currently due to the applicant in permanent disability compensation, with $11,132.00 due her attorney in fees and $1,656.23 due in costs.

As documented in exhibit A, the applicant has incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury, for which the employer is liable under Wis. Stat. §§ 102.42(1) and 102.30(7), as follows: $7,925.00 for treatment by Gene Neri, M.D., of which $4,146.38 was paid by the worker's compensation insurer, $1,728.62 was adjusted from the bill, and $2,050.00 remains outstanding; for treatment by Jeffery Wayda, D.C., $2,350.00, of which the applicant paid, $430.00, Blue Cross Blue Shield paid $1,524.00, and $396.00 remains outstanding; from Hinsdale Psychological Resources, $4,930.00, of which the applicant paid $3,380.00, Blue Cross Blue Shield paid $1,250.00, and $300.00 was adjusted from the bill. In addition, the respondent is liable to the applicant for $4,244.40 in out-of -pocket prescription expense.

Exhibit 1 also indicates that the applicant is awaiting billings from four other providers: Express Scripts, Zazu Salon & Day Spa, Progressive Physical Therapy, and Ortho. Sports Therapy. This order shall be left interlocutory to permit a future order and award regarding those expenses if necessary. Further, given the nature of the applicant's injury and based on the opinions of Drs. Neri and Frazin, this order shall be left interlocutory to permits further awards for additional disability and medical expense that may arise in the future.

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

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

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

1. To the applicant, Stephanie M. Guziec, the sum of Forty-two thousand, eight hundred seventy-one dollars and seventy-seven cents ($42,871.77) in disability compensation and Eight thousand, fifty-four dollars and forty cents ($8,054.40) in reimbursement of out-of-pocket medical expense.

2.  To the applicant's attorney, Robert T. Ward, the sum of Eleven thousand, one hundred thirty-two dollars and no cents ($11,132.00) in fees and One thousand, six hundred fifty-six dollars and twenty-three cents ($1,656.23) in costs.

3.  To Gene Neri, M.D., Two thousand, fifty dollars and no cents $2,050.00 in treatment expense.

4. To Jeffery Wayda, D.C., Three hundred ninety-six dollars and no cents ($396.00) in treatment expense.

5. To Blue Cross Blue Shield, Two thousand, seven hundred seventy-four dollars and no cents ($2,774.00) in reimbursement of medical expenses paid.

Jurisdiction is reserved for further orders and awards as may be warranted and are consistent with this decision.

Dated and mailed December 10, 2015

guziecs_wrr : 101 :  ND6 6.21 6.22 6.24 6.27

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The commission modified the ALJ's order primarily to reduce the award of permanent partial disability on a functional basis from 25 to 12 percent, a modification that does not affect the additional compensation awarded given that the commission, like the ALJ, found the applicant was entitled to compensation for loss of earning capacity at 35 percent. Because the commission modified the ALJ's award based on a different assessment of the credibility of the opinions of Dr. Neri and Dr. Frazin regarding the applicant's functional disability, and because neither doctor testified before the ALJ, obtaining the ALJ's demeanor impressions was not necessary. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18, 583 N.W.2d 662 (Ct. App. 1998).

In its brief, the respondent argues that there is no support for an award for loss of earning capacity absent wage figures from Jewel, the applicant's employer at the time of the hearing. However, the bar to loss of earning capacity based on actual earnings under Wis. Stat. § 102.44(6) applies only to earnings from the time-of-injury employer, which here is Supervalu not Jewel. Second, as the applicant points out, she testified that she earns $55,000 from Jewel (T. 32) and she is clearly a competent source of testimony about own her wage. If the employer thought she was understating her wage, it could have asked for a continuance of the hearing but did not. Third, the employer's expert Mr. Campbell himself reported a $55,000 wage at Jewel--if he found that figure suspicious or unreliable, he could have challenged it in his report but did not.

cc: Attorney Robert T. Ward
     Attorney Lisa F. Kinney

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(1)( Back ) Dr. Frazin's reports are addressed to the worker's compensation insurer's agent, and he refers to himself as conducting an independent medical evaluation or an "IME". 

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