DONALD LAPP, Applicant

ECKLUND LOGISTICS INC, Employer

WEST BEND MUTUAL INS. CO., Insurer

In September 2013, the applicant filed a hearing application seeking compensation for permanent disability and medical expenses, as well as an order directing the payment of future medical expenses, related to a July 13, 2011 date of injury. An administrative law judge heard the matter on February 5, 2015.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $883.00, and a compensable injury occurring on July 13, 2011. At issue was the nature and extent of disability from the conceded injury and the respondent's liability for medical treatment expense.

The ALJ issued his decision on May 4, 2015. The respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and obtained the ALJ's impressions of witness demeanor. Following its review, the commission affirms in part and reverses in part the ALJ's decision and order, based on the following:

1. Injury and treatment.

The applicant, a truck driver, seeks compensation for a work-related motor vehicle accident on July 13, 2011. Prior to the accident, the applicant underwent a right shoulder rotator cuff repair in 2005. He required little if any treatment for right shoulder complaints after recovering from that surgery to July 13, 2011.

However, chronic low back pain was documented in a treatment note dated March 16, 2004, from Elvis Peter, M.D. The applicant's past medical history was noted to include chronic back pain in a treatment note dated June 25, 2007, from Jeffrey Jones, M.D., and chronic back pain was included as a discharge diagnosis in a note on that same day from Michael J. Blick, M.D. Chronic back pain was also noted by James Zelinski, M.D., on July 7, 2007.

On the date of injury, July 13, 2011, the applicant was driving his semi-truck in an area of road construction. As he made a turn, "the rear front drive axle on the tractor came loose and put [him] in a spin." Transcript pages 8-9. The applicant ended up in the construction and hit a pile of dirt. When he hit the pile of dirt:

I went up in the air. When I did, I came down, the seat belt had, I don't know what you call want it call it, pinched my leg and just about tore the skin off my leg, and I also pulled the steering wheel out of the holders with my hands because I had ahold of it so tight. There was a pile of people there and they helped get me out of the truck, because I couldn't at that time hardly walk.

Transcript, page 9. According to the applicant, he had immediate pain in his right leg and hip, his shoulder, and his right leg down by the calf. He added that the hip pain "went right up into the back." He was taken by ambulance to a hospital.

The medical treatment notes are at exhibit 3. The note from the ambulance personnel on the date of injury reports a primary impression of shoulder pain and a secondary impression of knee injury. The history in the note states:

Pt was the driver of a semi tractor trailer that lost control on Hwy 41 while exiting onto Hwy 76 and jack-knifed his truck and ran over a pile of stones. Pt says he was thrown around a little in the cab but wasn't seriously hurt. Pt left the vehicle on his own and was [ambulatory] on scene prior to police and 1st Responder arrival.

The note further states:

Pt found standing on scene with complaint of right shoulder pain. Pt has Hx of rotator cuff surgery but says the pain is worse now. He also has scrapes to the left knee and pain to the fingers of his left hand. Pt denied any head, neck, or back pain,.... [Emphasis added.]

The applicant was seen in the emergency room by Nekole Ecklor, APNP, who noted a chief complaint of "Jack-knifed semi, complains of left knee pain, laceration, left hand pain, shoulder pain." Ms. Ecklor's history states:

Jack-knifed semi, complains of pain to the left knee, right hip, right shoulder, fingers of left hand. Belted driver, 25-30 miles an hour. Denies loss of consciousness.

The emergency room notes also include a pain diagram which shows shoulder, hip and knee pain. On musculoskeletal examination Ms. Ecklor noted:

Full range of motion to the right hip, left knee. Positive pedal pulses. There is hematoma noted to the right hip area. That area is tender with palpation. Decreased range of motion to the right shoulder. Patient is only able to abduct the right arm to about 90 degrees. Strength is strong and equal bilaterally to upper extremities. Sensation intact. The superior anterior right shoulder is tender with palpation.

While in the emergency room, ointment and dressings were applied to the applicant's abrasions. The applicant was advised to wear a sling for comfort and follow up with an occupational health clinic. His discharge diagnoses were:

1. Left knee abrasion.
2. Right shoulder pain.
3. Right hip hematoma.

The applicant was next seen on July 18, 2011, by William E. Raduege, M.D., who recorded the following history:

The patient is a 56-year-old gentleman who was involved in a truck accident on July 13, 2011 while working for Ecklund Trucking Company. He apparently jack-knifed his semi in the Oshkosh, Wisconsin area, was subsequently seen in the emergency room at Mercy Medical Center in Oshkosh where he had evaluation of the right hip hematoma and contusion, a painful right shoulder and a painful left knee. ... He had no loss of consciousness. No head injury

[]He comes in now with follow-up of his right hip with the large hematoma causing some discomfort, but his major problem being his right shoulder, which has significant pain on trying to elevate above horizontal. He does report that 3 years ago, he had a torn rotator cuff, which was repaired and had not been giving him significant problems since the repair. But, since the accident, has not been good.

Dr. Raduege's diagnosis was shoulder pain. He ordered an MRI of the shoulder, based on what he described as "physical evidence of recurrent rotator cuff tear."

The MRI of the right shoulder was done on July 20, 2011, and described by radiologist James S. Collison, M.D., as showing:

T-2 hyperintensity within the supraspinatus distally compatible with full thickness perforation. Fluid within the subacromial/subdeltoid bursa as a secondary sign.

On August 1, 2011, the applicant saw Hugh P. Bogumill, M.D., who took the following history:

This is a 57-year-old right hand dominant man who was driving a semi truck on 07/13/2011. He was coming off a highway. He was required, because of road construction, to make a left turn then made another left turn. As he was making the second left turn, the truck went out of control. The patient was thrown around inside the cab, injuring his right thigh area as well as his right shoulder. He currently complains of burning dysesthesia over the lateral aspect of his anterolateral thigh. It is especially worse at night but bothersome during the day when he has been sitting.

His shoulder was injured as well. He has pain and weakness with reaching to the front, out to the side. He gets a pop and a sharp shooting pain that goes down into the deltoid insertion, radiates up into the neck. It is worse at night and better with rest. It is also worse with neck motion and reaching overhead, across his back or out to the side.

Of note is the fact that the patient had a shoulder arthroscopy with open rotator cuff repair done on the right shoulder 02/10/2005, however, the patient made a complete recovery. He was having some residual discomfort, had been released to regular duties at work and had been doing very well until this accident according to the patient. He has been using hydrocodone. He has not had any physical therapy for this. He has had an MRI scan.

On examination, the doctor noted that inspection of the right shoulder showed no obvious deformity, but that on palpation he was minimally tender over the greater tuberosity and non-tender over the bicipital groove, AC joint, levator scapula, and rhomboids. On examination of the right leg, the doctor noted an area of hyperesthesias, dysesthesias in the anterolateral proximal thigh in the area "innervated by the lateral femoral cutaneous nerve."

Dr. Bogumill further noted that his personal review of the MRI scan done on July 20, 2011, showed:

previous surgery involving the supraspinatus portion of the rotator cuff and it appears he has a partial thickness, possibly a small full thickness tear in this area. There is no way to determine if this is acute or chronic.

The doctor's assessment was right shoulder injury with the differential diagnosis of a re-tear of the right rotator cuff tendon versus a new tear. His plan at the time was to treat the shoulder condition non-surgically, and he referred the applicant to physical therapy. Regarding the anterior lateral thigh, Dr. Bogumill felt the anterior femoral cutaneous nerve was most likely injured by the seatbelt and that the best treatment was simply observation with a possible future referral to a neurologist. The doctor took the applicant off work for about a month.

The applicant returned to Dr. Bogumill on August 29, 2011. The reason for the visit was "follow-up, work-related right hip and right shoulder injury." The applicant told Dr. Bogumill that his pain around the hip was a little better but he still had some burning discomfort when he lay down. The shoulder was progressively improving though he still had discomfort. On examination, the doctor noted a soft tissue prominence over the greater tuberosity consistent with a hematoma in the right hip. In the right shoulder, the doctor noted minor tenderness over the greater tuberosity. On range of motion in the hip, the applicant did not have discomfort into the groin, but only over the lateral thigh area. Dr. Bogumill again diagnosed a right hip contusion with the hematoma and nerve injury, as well as a right rotator cuff tear per the MRI scan. He released the applicant to work subject to restrictions.

The applicant again saw Dr. Bogumill on September 14, 2011. The note for this visit contains the first mention of back pain that appears in a physician's note following the injury, though gluteal pain was noted in a physical therapy note for August 29, 2011. On this occasion, the doctor noted that the reason for the visit was "[f]ollow-up of right work-related right shoulder injury, right lower back and right leg injury." The applicant told the doctor that his shoulder pain was getting worse and regarding his back that:

The back bothers him a lot when he travels. He had to go down to Neenah and by the time he got there his son was driving, he could barely get out of the vehicle and had a lot of discomfort. The burning pain into the lateral thigh persists, as does the tightness of the muscles and that does not seem to be getting any better either, if anything it is somewhat worse.

On examination, the doctor noted tenderness, pain, weakness, and limitation in motion in the shoulder. He also noted discomfort with flexion and extension of the lumbosacral spine. His assessment was a right rotator cuff tear and right back and leg pain. While Dr. Bogumill expected the applicant would ultimately need surgery in his shoulder, his immediate plan was to have the back and leg pain evaluated. He ordered an MRI scan, noting that if the applicant had disc pathology he might benefit from either injections or surgery.

The MRI was done on September 26, 2011, and the results are at exhibits 1 and D. The diagnostic impression of the interpreting radiologist, David L. Isaacs, M.D., included:

1. Moderate multilevel degenerative disc disease of the lumbar spine. Moderate and severe facet arthropathy of the lumbar spine.
2. Mild-moderate L3-L4 central spinal canal narrowing and moderate L4-L5 central canal narrowing.
3. L2-L3 moderate bilateral foraminal narrowing.
4. L3-L4 moderate bilateral foraminal narrowing.
5. L4-L5 moderate right and moderate-severe left foraminal narrowing.

The applicant returned to Dr. Bogumill on October 3, 2011, when the applicant told him that his shoulder was doing no better and that his back pain and leg pain continued. The doctor noted that the applicant's MRI showed facet arthropathy, especially in the lower lumbar area, and also bulging with corresponding foraminal stenosis at L3-4, L4-5, and L5-S1. He did not see evidence of a herniated disc, "but he had definite canal stenosis."

The doctor's assessment was:

1. Right rotator cuff re-tear secondary work-related accident.
2. Right lower back and right leg pain associated with spinal stenosis and foraminal stenosis, again secondary to work-related accident.

The doctor believed that the applicant was going to need his shoulder re-repaired. With regard to the applicant's back, the applicant either would have to learn to live with it or possibly undergo an epidural or facet blocks. The doctor arranged to have the applicant seen at a pain clinic for the back problem.

A pain diagram that preceded his treatment at the pain clinic refers to the applicant's pain as "R[igh]t leg gets burning really [and] hard. Lower back has very sharp pain [and] aching." In a diagram, the applicant indicated his right lower back, right thigh, and right shoulder as areas where he had pain.

On October 10, 2011, the applicant saw Raj Jain, M.D., at the pain clinic. Dr. Jain took the following history:

This is a 57-year-old male who was referred to the Pain Clinic by Hugh P. Bogumill, M.D. ... with a history of lower back pain going into his right lower leg after his motor vehicle accident on 7/13/11. He stays that this was a work-related injury and the onset of pain was sudden. He denies any back pain prior to the accident. He states that the pain starts in the middle of the back and goes down on the right side into the right buttock and posterior side of the right thigh up to the knee level. He also complains of numbness and tingling in the back of his right thigh. He also complains of right shoulder pain and says it is very sore secondary to the rotator cuff tear. Dr. Bogumill is treating him for this rotator cuff and he is undergoing physical therapy for that. He describes his pain as burning, cramping, throbbing pain. Sometimes the pain is sharp, shooting and stabbing. The pain is worse at night and also at the end of the day. Bending over, sitting still for too long, and sleeping over three hours at a time makes his pain worse. ... Long car rides, getting out of the bed in the morning, exercising and lifting also make the pain worse.

Dr. Jain's diagnosis was

1. Degenerative disc disease and arthritis of the lumbar spine with broad-based disc bulge at L4-L5 with neuroforaminal narrowing and right lumbar radiculopathy.
2. Facet arthropathy of the lumbar spine with mid axial back pain with aggravation from recent motor vehicle accident.

He referred the applicant to Gukirpal S. Sikka, M.D., for a transforaminal epidural steroid injection at L4-5, and possible facet joint blocks later on. Dr. Sikka's history was:

pain in the low back area, right side of hip, going into the right leg. The patient has had this pain since his accident on 07/13/2011. He claims he did not have too much back pain or any issues with back beforehand, and his pain started after that.

Dr. Sikka examined the applicant and noted:

Localized tenderness in the mid back area. Some tenderness in the paramedian region on the right side. I do feel taut muscle band along the lower lumbar facet areas. Straight leg raising test positive around 30 degrees. ... Hyperextension and rotation is painful. Flexion/extension does make the pain worse.

Dr. Sikka agreed the applicant needed an injection. After checking with an insurer, the doctor performed a transforaminal epidural steroid injection on the right side at the L4-5 level under fluoroscopic guidance on October 11, 2011. His diagnosis at the time was similar to Dr. Jain's:

1. Degenerative disc disease, arthritis of the lumbar spine with broad-based disc bulging at L4-L5 with right lumbar radiculopathy.
2. Facet arthropathy, lower lumbar spine with recent aggravation after an accident, and mid axial right-sided hip and back pain.

The applicant returned to Dr. Sikka on October 17, 2011, when the doctor noted that the applicant felt 40 percent better for three days after having the first transforaminal epidural steroid injection. The doctor did a second transforaminal epidural steroid injection on that day.

The applicant returned to Dr. Sikka on October 26, 2011, when the doctor noted that the pain in the applicant's right leg was feeling 50 to 80 percent better, though pain in the mid-axial back area on both sides continued to bother him. The doctor did a third transforaminal epidural steroid injection on this occasion.

The applicant returned to Dr. Sikka on November 4, 2011, when the doctor reported the pain in the leg was gone, and that most of the applicant's pain was in the mid-axial back area. On examination, the doctor noted localized tenderness in the mid back area and some tenderness in the paramedian regions on both sides. He also felt a taut muscle band in the lower lumbar facet area. The doctor performed:

Multiple facet joint blocks lumbar spine done on the right-side at L1-2, L2-3, L3-4, L4-5, and L5-S1 levels under fluoroscopic guidance.

When the applicant returned to Dr. Sikka on November 11, the doctor noted that the applicant felt a lot better on the right side, and felt 50 percent improvement. On this occasion, Dr. Sikka also noted

Patient does have some tenderness and dysesthetic sensations and numbness along the anterolateral leg on the right side. Sometimes he cannot feel on the anterolateral leg that he is touching.

The doctor accordingly included a diagnosis of "meralgia paresthetica"(1) and, in addition to doing the L1-2, L2-3, L3-4, L4-5, and L5-S1 facet joint blocks, this time on the left side, he performed a right lateral femoral cutaneous nerve block.

The applicant saw Dr. Sikka one last time on November 14, 2011. On this occasion the doctor noted the applicant felt 65 percent better. He added that after the lateral femoral cutaneous nerve block that pain also improved, but his back pain was coming back. The doctor stated the following plan:

At this stage, we have done the facet joint block, his pain was gone indicating the pain originates in the facet joint. After the accident he sprained his joints from this turning movement after the accident with the seatbelt on. I think the patient would benefit from medial branch block and radiofrequency ablation if the pain continues to be a problem. We might have to do one more lateral femoral cutaneous nerve block.

The doctor wanted to see the applicant again in a week.

The applicant saw Dr. Bogumill again about his rotator cuff on November 28, 2011. Although the applicant's range of motion and strength had increased somewhat, the doctor still assessed a right rotator cuff tear, and recommended surgery to repair it. He explained:

Based on his exam and based on his history and the fact that he has had prior surgery and now has a new injury and MRI scan showing at least a partial and probably a full-thickness tear, the recommendation is surgery as I think this really has the only chance of getting the shoulder better in the long term to allow him to return to work.

The applicant agreed to proceed with the shoulder surgery. Dr. Bogumill added:

In regard to the work-related back injury, the recommendation is to have him seen by a spine surgeon to determine if there is anything else that can be done before determining that he has a permanent disability in relation to the back.

To a reasonable degree of medical certainty, the patient's current back complaints are a direct result of his motor vehicle accident. The patient does have underlying evidence on x-ray and MRI scan of a preexisting arthritis. However, this has been aggravated beyond what would be expected by natural history because of the work-related injury. Further care is required at this time.

Dr. Bogumill took the applicant off work until April 1, 2012 noting "surgery rehab after." He scheduled the shoulder surgery for January 6, 2012.

However, the insurer declined to pay for the shoulder surgery. A note documenting a telephone call from Dr. Bogumill's office to the insurer states:

Received voicemail from carrier that an IME was done and all further care will be denied. Talked with the patient who stated the IME physician indicated he had a "bruise" on his thigh and shoulder and could RTW regular duty. In discussion of surgery, [the applicant] says he has no other insurance as he stopped his insurance after the injury when he became responsible for total payment. I did provide the patient with the state DWD phone number and suggested he contact the state for guidance. At this point he had done nothing about seeking attorney assistance, and understands the surgery tentatively scheduled for Jan6th will be cancelled until we hear he is ready to move forward.

Dr. Bogumill released the applicant to light duty until December 5, 2012, and to full duty thereafter.

2. Expert medical opinion.

Both parties, of course, offer expert medical opinion regarding the applicant's condition.

a. Applicant's experts.

The applicant first offers the July 8, 2013 practitioner's report of Dr. Bogumill (exhibit A) who refers to his clinic notes for both a history of the accident to which the applicant attributed his condition and for a complete description of the disability or diagnosis. As indicated above, the doctor's initial treatment note on August 1, 2011, describes the work injury. His October 3, 2011, note gives an assessment of:

1. Right rotator cuff re-tear secondary work-related accident.
2. Right lower back and right leg pain associated with spinal stenosis and foraminal stenosis, again secondary to work-related accident.

The doctor essentially reiterated those diagnoses in this last visit with the applicant on November 28, 2011. In the form practitioner's report, however, Dr. Bogumill noted that he had not seen the applicant to the end of healing, and so while he opined that the work accident directly caused the applicant's disability as diagnosed, he did not rate permanency or set work restrictions.

The applicant offers a certified report from Joseph T. Hebl, M.D., who is not actually a treating doctor, though he did examine the applicant. Exhibit B.
Dr. Hebl's report states a diagnostic impression which includes:

1. A 59-year-old male, status post single vehicle motor vehicle accident on or about July 13, 2011, resulting in an injury in which the patient was the seat-belted driver of a company owned semi that lost control while exiting off a highway that was undergoing road construction, whereupon the semi became unstable, struck a pile of dirt, was airborne, and then flipped upside down with the front axle separating from the truck. Status post multiple musculoskeletal and neurologic problems resulting from this motor vehicle accident.

2. Status post right rotator cuff supraspinatus tendon re-tear, in patient with previous work-related rotator cuff tear and subsequent repair of same ... with good results, with recurrence of right shoulder pain, weakness and loss of range of motion, following the motor vehicle accident of July 13, 2011. Status post MRI of the right shoulder on July 20, 2011 showing partial-thickness or full-thickness tear of the supraspinatus tendon, interpreted by Dr. Bogumill to be a re-tear or new tear of the same shoulder that he repaired six years prior.

...

4. Chronic low back pain, weakness and loss of range of motion with chronic right lower extremity radiculopathy, in patient with no history of significant low back pain or lower extremity radiculopathy, prior to the motor vehicle accident of July 13, 2011. ...

...

6. Chronic right hip pain, weakness and loss of range of motion, secondary to right hip contusion, secondary to #1, with post-injury hematoma over the right hip, and subsequent development of a meralgia paresthetica. Status post right lateral femoral cutaneous nerve block on November 11, 2011 with some improvement of the right hip symptoms.

7. Left knew contusion and abrasion and laceration.... This condition is stable.

8. Left hand pain secondary to left hand contusion. This condition is stable.

Exhibit B. Dr. Hebl added:

It is my opinion, based on my extensive review of the patient's past medical records, including extensive review of his previous work-related right shoulder injury, from a different employer, as well as my extensive examination of the patient, that all of the above-mentioned diagnoses are causally and directly related to the motor vehicle accident of July 13, 2011.

The patient had no preexisting history of any problems with his low back, right hip, lower extremities, knees, or radiculopathy, prior to July 13, 2011. The patient did have a preexisting history of a right shoulder rotator cuff tear, from a work injury that occurred on November 19, 2004 while the patient was employed at the DeBoer Trucking. This injury, involving the right shoulder, resulted in right supraspinatus tendon tear, which required surgical repair. Following the surgical repair by Dr. Bogumill, the patient was able to return to regular work, approximately 11 months after surgery. So, at the time of the motor vehicle accident July 13, 2011, the patient's right shoulder was stable.

Dr. Hebl added that he felt that the treatment to date had been reasonable and necessary to cure and relieve the effects of the work injury.

Noting that further treatment had been denied by the insurer, Dr. Hebl declared an end of healing for the shoulder injury. He rated permanent partial disability at 7 percent at the right shoulder "due to the patient's chronic, severe right shoulder pain, weakness and loss of range of motion." He added that the applicant should undergo a surgical repair of the rotator cuff tear, and that the 7 percent rating was in addition to the permanent disability rated for the previous injury of 2004.

Dr. Hebl agreed with Drs. Bogumill and Sikka that the work injury of July 13, 2011 "aggravated, accelerated, and permanently worsened any pre-existing problems the patient might have had with respect to his low back, and for the first time caused the applicant to experience right lower radiculopathy, a condition which he had never known." Although Dr. Hebl thought the applicant should have a neurosurgical evaluation, he declared an end of healing for the back condition because the respondent had refused to pay for further treatment. He estimated permanent partial disability to the body as a whole at 7.5 percent due to the applicant's multilevel disc herniation, with severe low back pain, low back weakness, spasm, and loss of range of motion, with chronic lower extremity paresthesias, dysesthesias, and weakness.

Dr. Hebl also felt the applicant had reached an end of healing for his hip injury though he recommended an MRI of the hip to see if he would benefit from injection. He estimated permanent partial disability at 3 percent for the applicant's posttraumatic meralgia paresthetica condition that had necessitated the right lateral femoral cutaneous nerve block performed by Dr. Sikka.

b. Respondent's experts.

The respondent relies in part on the December 1, 2011 report of Timothy O'Brien, M.D., (exhibit 1) who gives the following history of the accident:

...on July 13, 2011, [the applicant] was involved in a single-vehicle accident when he jackknifed his trailer; it ran off the road. He was thrown about the inside of the cab. He does not recall the rate of speed at which he was driving. He states the injury was so significant the axle separated from the front of the truck. His seatbelt cut him across the greater trochanter. His right hand was on the shifter. He pushed it into the dashboard. He cut his knuckles. He indicates that he went to the emergency room immediately. ... At the scene of the accident he noted right shoulder pain, right hip pain, left knee pain and abrasions. He also noticed pain in his left hand. He was complaining of all of these different symptoms at the scene of the accident.

Exhibit 1. Dr. O'Brien opined that the accident resulted in

1. Right shoulder strain/sprain.
2. Right hip contusion.
3. Left knee abrasion.
4. Left hand contusion.

The doctor noted that the reports of the ambulance room personnel and the emergency room nurse practitioner stated that the areas of pain were the right shoulder, left hand, left knee and that the applicant had left knee abrasions, right shoulder pain, and right hip hematoma. Dr. O'Brien opined further that the right hip, left knee and left hand conditions had fully healed without permanency by August 1, 2011, noting that no complaints of hip pain or a hip hematoma were mentioned when the applicant saw Dr. Bogumill on that date.

Dr. O'Brien added that the motor vehicle accident did not result in a low back injury, stating that the onset of back pain occurred on or about September 14, 2011, and had no relationship to the July 13, 2011 injury. He added that the ambulance note clearly indicated that the applicant was asked if he had injured his back and that he denied a back injury. There was no mention of back pain in the emergency room evaluation, and no mention of treatment for the back in the following weeks until September 14, 2011.

Dr. O'Brien further stated that his examination demonstrated no significant limitations of motion or findings consistent of a rotator cuff tear. He did not believe the MRI demonstrated significant pathology other than the leakage of dye from an old repair. Indeed, he considered the findings in the MRI normal given the applicant's prior history of the rotator cuff tear. He opined that the treatment of the shoulder was reasonable to the date of his examination on November 16, 2011, 2011, but that he had reached an end of healing with no permanent disability or need for restrictions at that point.

The respondent also had the applicant examined by Dr. David Goodman, M.D., on November 18, 2013 (exhibit 2). He states the injury occurred as follows:

He was operating his semi truck, exiting HWY 41 by Oshkosh WI. There was construction and he had to turn to the right and then the left. When he made his left turn the truck jack-knifed and went into the ditch. He had his seatbelt on. He recalls the seatbelt grabbed him by the right thigh, and he held tightly to the wheel which he thinks injured his right shoulder. He points to a crease in his right lateral thigh which keeps shooting pain down his right thigh mostly just the lateral thigh area, and also up his lower back. He went to the local emergency room, was evaluated and treated.

Exhibit 2.

As to diagnosis, Dr. Goodman stated:

The examinee has internal derangement of the right shoulder. He has chronic low back pain. He reports chronic right hip pain/thigh pain. He reports paresthesias of the right lateral thigh consistent with meralgia paresthetica.

The doctor added:

With respect to the right shoulder, the examinee sustained a strain injury to the right shoulder from the accident at issue on 7/13/11. However, he previously had his right shoulder operated on and therefore has a clinically significant pre-existing problem with his right shoulder. There is no evidence to suggest that the accident caused a precipitation, aggravation and or acceleration of his pre-existing right shoulder problem beyond its usual and normal progression. The examinee indicates he has been successfully driving semi-truck since 4 months after the accident at issue. This history is not consistent with his having sustained a clinically significant precipitation, aggravation and/or acceleration of his pre-existing right shoulder condition beyond its usual and normal progression. Rather, it is consistent with a strain injury.

With respect to the low back/regional right hip pain, the examinee did sustain a contusion/hematoma of the right hip region. This resolved in accordance with usual and normal principles of healing by 8/1/11. Any persistent symptoms beyond 8/1/11 are related to his pre-existing history of chronic low back pain as well as morbid obesity. There is no evidence to suggest that the accident caused a precipitation, aggravation or acceleration of the regional the low back/regional right hip pain. ...

With respect to the Meralgia Paresthetica, the examinee's history does not support any causal relationship to the accident at issue. There are no complaints of this condition early on that would indicate a traumatic relationship to the accident at issue. Rather, the examinee is morbidly obese with poorly controlled diabetes. It is well known and established that Meralgia Paresthetica occurs in such individuals regardless of biomechanical exposures.

Exhibit 2.

In sum, Dr. Goodman concluded that the applicant reached an end of healing by August 1, 2011 in regards to the right shoulder, right hip, and low back conditions. He agreed with Dr. O'Brien that the applicant sustained only minor injuries in the accident. He felt that the imaging studies documented the existence of multi-level degenerative disc disease of the spine that predated the accident at issue. He added, too, that the applicant had documented instances of prior low back pain. He did not believe the applicant had any permanent disability.

3. Discussion.

a. Shoulder.

The commission credits the expert medical opinions of Drs. Hebl and Bogumill that the work event of July 13, 2011, caused a rotator cuff tear. While Dr. Goodman felt the applicant sustained only a sprain in the work event and Dr. O'Brien did not believe the MRI showed a rotator cuff tear, the diagnosis of the rotator cuff tear was not made just by Drs. Hebl and Bogumill. As set out above, within a week of the accident, Dr. Raduege ordered an MRI of the shoulder, noting "physical evidence of recurrent rotator cuff tear." Dr. Collison, the interpreting radiologist who read the MRI, described it as showing:

T-2 hyperintensity within the supraspinatus distally compatible with full thickness perforation. Fluid within the subacromial/subdeltoid bursa as a secondary sign.

The "full thickness perforation" or tear, shown in the MRI provides objective proof of injury. While the applicant had had an earlier repair done, and while he may have been more susceptible to a re-tear as a result, employers take their workers as they are, and work injuries that are due in part to a pre-existing weakness or predisposition to injury are still compensable. See E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978) and Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971).

On appeal, the respondent criticizes Dr. Hebl's report because on the WKC-16B form report he marked the box asking about pre-existing disability "no" when the applicant clearly had pre-existing disability at the shoulder. The respondent suggests that Dr. Hebl either forgot about the 2005 rotator cuff surgery or was trying to mislead the ALJ or commission. However, Dr. Hebl's attached narrative report discusses the preexisting disability at length, and explains why the doctor thinks the applicant sustained a re-tear or new injury. On this basis, the commission concludes the "no" on the form report was simply a mistake or inadvertent error.

The respondent also argues that Dr. Bogumill did not assess permanent disability and released the applicant without restrictions with respect to the shoulder in December 2011. However, that is not entirely accurate. Rather, Dr. Bogumill was ready to proceed with surgery on January 6, 2012, and when the insurer would not pay for it, told the applicant to come back when he was ready to proceed. Notably, Dr. Bogumill stated in his July 2013 report that he "did not see the patient to end of healing."

On this record, the commission concludes that the applicant's condition from the work injury requires a surgical repair of the right rotator cuff as proposed by Drs. Bogumill and Hebl. Pursuant to its authority under Wis. Stat. § 102.18(1)(b), the commission shall therefore order the respondent to pay for the surgery proposed by Dr. Bogumill should the applicant elect to undergo it.

At the outset of the hearing, the ALJ noted:

Applicant's attorney indicated that there is an issue of prospective surgery and the question then whether permanency would be premature at this time.

Transcript, page 6. The commission agrees that it is premature to award permanent disability until the applicant has either undergone the surgery proposed by Dr. Bogumill or decided against it, and this order shall be left interlocutory on that issue.

b. Hip.

The commission also concludes that the work injury caused permanent disability to the applicant's hip by causing the meralgia paresthetica symptoms. The hematoma at the hip was consistently noted in early treatment notes, as was hip and thigh pain. On examination of the right leg on August 1, 2011, Dr. Bogumill noted an area of hyperesthesias and dysesthesias in the anterolateral proximal thigh in the area "innervated by the lateral femoral cutaneous nerve."  At the time, Dr. Bogumill felt the anterior femoral cutaneous nerve was most likely injured by the seatbelt and that the best treatment was simply observation with a possible future referral to a neurologist.

Dr. Bogumill's opinion was shared by Dr. Sikka, who noted on November 11, 2011 that:

Patient does have some tenderness and dysesthetic sensations and numbness along the anterolateral leg on the right side. Sometimes he cannot feel on the anterolateral leg that he is touching.

The doctor accordingly included a diagnosis of "meralgia paresthetica" and performed a right lateral femoral cutaneous nerve block to treat the symptoms. In a follow up note, Dr. Sikka noted that the lateral femoral cutaneous nerve block helped the thigh pain symptoms, but a repeat block might be necessary. On this record, the commission concludes that permanent partial disability at three percent compared to amputation of the leg at the hip is appropriate based on Dr. Hebl's rating.

Respondent's examiner O'Brien opined that the hematoma fully healed by August 1, 2011, because it was no longer documented in the medical notes after that date. However, Dr. Bogumill noted the hematoma in in his August 29, 2011 treatment note. Dr. Goodman discounts the conclusion that the meralgia paresthetica diagnosis is related to the work injury because (1) there were no complaints of this condition early in the treatment that would indicate traumatic relationship to the accident at issue and (2) it is well-known and established that meralgia paresthetica occurs in such individuals with poorly-controlled diabetes regardless of biomechanical exposures. But again, Dr. Bogumill credibly suggested a connection between the traumatic injury, the applicant's thigh complaints, and an injury to the anterolateral proximal thigh in the area "innervated by the lateral femoral cutaneous nerve" as early as his note of August 1, 2011.

c. Back complaints.

The commission cannot conclude that the applicant's back complaints are due to the work injury. First, the back complaints are not documented in the doctors' notes until two months after the injury. The applicant specifically denied back complaints to the ambulance personnel on the day of injury. Notably, Dr. Jain's opinion on causation, and to a lesser extent Dr. Sikka's, as stated in their treatment notes rely on a history of the sudden onset of back pain with the injury. However, the contemporaneous treatment notes do not support that history.

Further, Drs. Sikka and Hebl both suggest the applicant had no back pain, or no significant back pain, before the injury. As set out above, though, pre-injury medical notes document chronic back pain. Finally, Dr. Hebl's opinion is based on an inaccurate history of the applicant's truck "flip[ing] upside down" in the accident. However, the applicant did not testify the truck flipped upside down, and the applicant told the ambulance personnel he was only shaken around a little. That may have been understatement, but it certainly contradicts the "flipping upside down" description of Dr. Hebl. On this basis, the commission finds most credible the opinions of Drs. Goodman and O'Brien regarding the applicant's back complaints.

4. Award.

Based upon the foregoing, the applicant is entitled to permanent partial disability at three percent compared to amputation of the leg at the hip, or 15 weeks of permanent partial disability. At the weekly rate of $302 (the statutory maximum for injuries in 2011), the total due in disability compensation under this order is $4,530.00. The applicant agreed to the direct payment of an attorney fee set at 20 percent of the additional amount awarded or $906. That amount, plus attorney costs of $2,900.59, shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The remainder, $723.41, shall be paid to the applicant within 30 days.

The applicant also claims medical expenses as documented in exhibit C. The expenses incurred to treat the applicant's hip (including the meralgia paresthetica condition) and right shoulder were reasonable and necessary to cure and relieve the effects of the work injury and are therefore compensable under Wis. Stat. § 102.42(1). The expenses for treatment to the back, however, are not compensable. The respondent is accordingly liable for the expenses documented in exhibit C (including the applicant's out-of-pocket expenses for treatment, prescriptions, and mileage), except for those incurred to treat the applicant's back complaints.

As set out above, the applicant may elect to undergo the surgery proposed by Dr. Bogumill. In addition, the applicant may require further treatment for his work-related hip condition. Consequently, this order shall be left interlocutory to permit an order and award for permanent disability at the shoulder for the rotator cuff tear, for additional disability and medical expenses related to the shoulder and hip
injuries that arise in the future, and with respect to the expenses documented in exhibit C should the parties be unable to agree which are compensable under this order.

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 in part and reversed in part.

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

1. To the applicant, Donald Lapp, Seven hundred twenty-three dollars and forty-one cents ($723.41) in disability compensation.
2. To the applicant's attorney, Curtiss N. Lein, the sum Nine hundred six dollars and no cents ($906.00) in fees and Two thousand, nine hundred dollars and fifty-nine cents ($2,900.59) in costs.
3. To the identified providers, the amounts outstanding in medical treatment expense documented in exhibit C, except for expense incurred to treat the applicant's back complaints.
4. To the applicant, his out-of-pocket expense for treatment, prescription, and medical mileage documented in exhibit C, except for expense incurred to treat the applicant's back complaints.

In addition, the employer and the insurer are liable for the expenses of the rotator cuff surgery proposed by Dr. Bogumill should the applicant elect to undergo it.

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

Dated and mailed January 26, 2016

lappdo_wrr : 101 : ND6 3.38

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The commission asked the ALJ for his witness demeanor impressions. He stated that the applicant's testimony was credible, with the exception of his contemporaneous complaint of back pain. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). However, the ALJ believed that the lack of contemporaneous complaints of back pain was not significant, as back symptoms commonly may arise some time after an injury. He believed, too, that it was likely that the applicant would have sought some palliative care for his back, at least chiropractic manipulation, before the work injury if his back symptoms after the injury were due to a pre-existing condition.

As is implicit from the ALJ's demeanor impression, the early treatment notes do not document back pain.(2) However, this is not a case where a worker first experiences back complaints during the evening after an accident or upon arising the next morning. Here, as set out above, back complaints are not documented in the medical record until several weeks after the accident. Again, as explained above, Drs. Jain and Sikka relied on an inaccurate history of the immediate onset of back pain with the accident in stating their opinions on causation, and Dr. Hebl relied on an inaccurate history of the truck flipping over.

Beyond the question of whether the truck flipped over and when his back pain began, there are other inconsistencies between the applicant's testimony and the medical record. For example, he testified that he required assistance in getting out of the truck after the accident, but told the ambulance personnel he got out by himself. For these reasons, the commission concluded there was at least legitimate doubt as to the relationship of the accident of July 13, 2011, and the applicant's back complaints.

cc: Attorney Curtiss N. Lein
     Attorney Daniel M. Pedriana

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(1)( Back ) Meralgia paresthetica is a type of entrapment neuropathy caused by entrapment of lateral femoral cutaneous nerve, causing paresthesia, pain and numbness in the outer surface of the thigh enervated by the nerve. Dorland's Illustrated Medical Dictionary (29th 3d. 2000).

(2)( Back ) The Supreme Court has observed that statements made early in the treatment--when the memory is fresher--are given more weight than later testimony. Revels v. Industrial Commission, 36 Wis. 2d 395, 401 (1967). 

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