STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JUANITA A WILLIAMS, Applicant

LEUCADIA NATIONAL CORP, Employer

HARTFORD ACCIDENT AND INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94049329

The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order in this matter on August 28, 1997. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injuries which occurred on June 8, 1994 and on July 14, 1994.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, the commission hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is June 30, 1944, began her employment as a material handler for the employer in 1992. On June 8, 1994, she was lifting an eight-foot long piece of material when she experienced a sharp pain coming across her shoulder and chest. She saw a chiropractor, Dr. Shawn Kromrey, on June 10, 1994. Dr. Kromrey diagnosed thoracic outlet syndrome complicated by cervical and thoracic sprain/strain. He provided her with a TENS unit and exercises, and felt her prognosis was good. He continued chiropractic treatment to which the applicant responded well.

On July 14, 1994, a male co-worker was jerking a cloth strip from a panel when he unwittingly caught the applicant "very hard" in the mouth with his hand. The applicant's head and neck snapped back and the blow broke one of the applicant's teeth, resulting in removal of the tooth and replacement with a bridge. The applicant testified that immediately after this injury she could not move her neck and her shoulders were locked. She saw Dr. Kromrey on July 15, 1994, and he recorded that the incident seemed to "flare up" her upper back region and also lower neck area. The applicant also developed headaches which she associated with this injury. On July 21, 1994, Dr. Kromrey recorded that x-rays taken the previous day showed no fractures or severe dislocations, mild loss of disc height at C4 through C7, and postural alterations.

On July 18, 1994, the applicant returned to work in a light duty capacity, but the employer discharged her on July 27, 1994, claiming that she had deliberately misrepresented the facts concerning a funeral leave. The applicant found new employment with Cornwell Care Center beginning on November 10, 1994. This involved assisting wheel-chair-bound patients into and out of a van, and driving the van. She did not have to lift the patients, and she had assistance when she needed to push heavy patients up ramps in their chairs. This job ended on August 25, 1995, when the applicant and the employer had a dispute over whether a new van was properly equipped.

On February 20, 1995, Dr. Anoo Patel examined the applicant at the insurer's request. He noted that she continued to see Dr. Kromrey and was also receiving physical therapy. Dr. Patel's exam showed no evidence of muscle spasm but subjective tenderness at the back of her neck. Dr. Patel diagnosed cervical and pectoral muscle strain superimposed on preexisting cervical spondylosis, constituting aggravation and acceleration of a preexisting condition. He opined that she reached a healing plateau from the June 1994 injury on June 27, 1994, and from the July 1994 injury on January 9, 1995. He also opined that there was no permanent disability, no work restrictions, and no further medical treatment was required.

The applicant continued to receive treatment from Dr. Kromrey, as well as physical therapy. Dr. Kromrey scheduled an MRI on April 26, 1995, and although the MRI report is not in evidence, Dr. Kromrey's clinic notes record that it showed mild, diffuse disc bulging at C6-7. Dr. Kromrey opined in his clinic notes that "a lot" of the applicant's neck discomfort was related to this disc bulge and compensatory muscle spasm. He attributed this to the July 1994 work injury.

On referral from Dr. Kromrey, Dr. Stephen Endres, a medical doctor and Director of the Chronic Pain Clinic in Eau Claire, examined the applicant on June 6, 1995. His impression was "status post neck injury with continued pain." He opined that the applicant's pain was most likely secondary to musculoskeletal injury as well as a possible discogenic problem. He recommended an aggressive treatment program of trigger point injections and physical therapy. Dr. Endres performed trigger point dry needling procedures on June 28, July 10 and 17, and August 2 and 11, 1995. The applicant also received physical therapy from a new therapist, Sharon Schumacher. On September 20, 1995, Schumacher saw the applicant for a re-check appointment, and recorded that she had an excellent response to treatments from a massage therapist Dr. Endres had recommended. Schumacher indicated that all physical therapy goals had been met, but the applicant should continue to see the massage therapist and continue with her own exercise program.

There are no further indications of treatment from Dr. Endres in the record, but on April 19, 1996, he referred the applicant to Dr. Donald Bodeau, a medical doctor in the Musculoskeletal Department of the Midelfort Clinic in Eau Claire. The applicant presented to Dr. Bodeau with neck pain aggravated by jerking or rapid neck movement, prolonged neck flexion, prolonged neck rotation to the right, or extension of the neck. Dr. Bodeau opined that the applicant had reached a plateau of healing with her "posttraumatic cervical spine syndrome." He considered her functional loss of motion and chronic pain to amount to a five percent permanent partial disability, attributable to the work injury of July 15, 1994. He gave permanent work restrictions of frequent lifting up to 10 pounds, occasional lifting up to 20 pounds, occasional reaching above shoulder level, and avoidance of work requiring either static neck positions or frequent and repetitive flexion and extension of the neck. He anticipated no additional medical care.

The commission concurred with the administrative law judge's finding that the applicant's employment at Cornwell Care Center was not shown to have been causative of the applicant's medical problems. First, the record is devoid of any medical opinion concluding that the work at Cornwell was causative. Second, the applicant's testimony concerning her job duties there, and the assistance she received, was credible.

The administrative law judge accepted Dr. Bodeau's assessment of 5 percent permanent partial disability with permanent work restrictions. However, the commission did not find Dr. Bodeau's opinion to be fully credible. Dr. Bodeau diagnosed post-traumatic cervical spine syndrome, Dr. Kromrey diagnosed cervical sprain/strain, Dr. Endres diagnosed status post neck injury, and Dr. Patel diagnosed a cervical strain which caused a temporary aggravation and acceleration of preexisting spondylosis. When these diagnoses are considered as a whole, they are vague and confusing, so the commission scrutinized the record but could find little in the way of objective medical evidence to accurately define the extent of the cervical injuries which the applicant sustained on June 10, 1994 and July 14, 1994.

After viewing the MRI report on May 1, 1995, Dr. Kromrey indicated that he believed "a lot" of the applicant's upper neck discomfort was related to compensatory muscle spasm from a C6-7 disc bulge, which he opined was directly related to "the work injury." However, none of the physicians linked the applicant's C6-7 disc bulge to the applicant's work injury to any degree of medical certainty. Dr. Endres found no major trigger points in the applicant's neck, but did find "passenger points" which he was able to exacerbate. Dr. Bodeau did not indicate that he found any muscle spasm during his examination of the applicant, although he did find a loss of motion and strength, together with chronic pain. Dr. Patel found no evidence of muscle spasm or trigger points, although he noted subjective tenderness in the back of the applicant's neck.

Considering all the medical opinions, the commission finds that the applicant sustained a chronic muscle sprain of her neck as a result of the work incident of July 14, 1994. Considering the opinions of Dr. Bodeau and Dr. Patel, the commission further finds that the applicant sustained 2 percent permanent partial disability to her whole body as a result of this work injury. The commission finds that no permanent disability was sustained as a result of the work injury of June 10, 1994.

Wis. Stat. § 102.44(6)(b) gives the commission the discretion to allow a determination of loss of earning capacity where a wage loss of 15 percent or more occurs during the statutory period set forth in Wis. Stat. § 102.17(4). Considering the circumstances of the applicant's termination on July 27, 1994, which occurred because she took leave to attend the funeral of a boy whom she considered to be her "grandson" but who legally was not, the commission finds that this is an appropriate case to allow a determination of loss of earning capacity.

The applicant is in the age category of older workers. After leaving high school in the tenth grade and subsequently receiving her GED, she worked in a series of unskilled and semi-skilled positions with her highest wages normally in the range of $5.75 to $6.50 per hour. She was earning $6.81 per hour with the employer at the time of her work injury. Her wage while at Cornwell Care Center was $6.50 per hour. She began attending Chippewa Valley Technical College in December 1996, pursuing a program of training as a medical office or general office assistant. The commission finds that the applicant's permanent physical restrictions are closer to Dr. Patel's assessment of no permanency than to Dr. Bodeau's assessed restrictions. However, it is credible that the applicant's permanent neck condition will have some effect on her availability for employment. Considering all the relevant factors, the commission finds that the applicant sustained a 10 percent loss of earning capacity as a result of the work injury of July 14, 1994.

The applicant is therefore entitled to 100 weeks of accrued compensation at the applicable rate of $158 per week, for a total of $15,800. A 20 percent attorney's fee will be subtracted from the award, as well as $604.96 in costs.

The applicant incurred the following reasonably required medical expenses: Sacred Heart Hospital, the sum of $1,362.55, of which she paid $373.75 and Prudential Insurance paid $988.80; Pain Clinic/Dr. Endres, the sum of $76.00, of which she paid $15.20 and Prudential Insurance paid $60.80; Rivercity P.T., the sum of $75.00, of which she paid $15.00 and Prudential Insurance paid $60.00; Shawn Kromrey, D.C., the sum of $3,257.18, of which she paid $514.00 and Prudential Insurance paid $2,711.28; Midelfort Clinic, the sum of $495.00, all of which was paid by the applicant; Applied Massage Therapies, the sum of $360.00, all of which was paid by the applicant; Luther Hospital, the sum of $290.00, all of which was paid by Prudential Insurance; and Shopko Pharmacy, the sum of $31.63, all of which was paid by the applicant. Applicant also incurred reasonable mileage expenses in the sum of $1,259.44.

Dr. Bodeau indicated that the applicant should require no further medical care as a result of the work injuries, and therefore this order will be final.

NOW, THEREFORE, this

ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation for loss of earning capacity Twelve thousand thirty-five dollars and four cents ($12,035.04); to the applicant as reimbursement for medical and mileage expense Three thousand sixty-four dollars ($3,064);to applicant's attorney, Thomas Siedow, fees in the amount of Three thousand one hundred sixty dollars ($3,160), and costs in the amount of Six hundred four dollars and ninety-six cents ($604.96); to Shawn Kromrey, D.C. the sum of Thirty-one dollars and ninety cents ($31.90); and to Prudential Insurance the sum of Four thousand seven hundred forty dollars and eighty-eight cents ($4,740.88) as reimbursement for medical expense.

Dated and mailed: April 28, 1998
williju . wsd : 185 : 8  ND § 5.23

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission's partial reversal of the administrative law judge's order was based on its analysis of the written medical opinions. The commission agreed with the administrative law judge that the applicant was credible concerning the duties she performed and the assistance she received while working at Cornwell Care Center. The commission also agreed with the administrative law judge that in the work incident of July 15, 1994, the applicant sustained a permanent disability to her neck, but the medical opinions led the commission to infer that the degree of disability was less than that found by the administrative law judge.

cc: ATTORNEY THOMAS SIEDOW
PARRONI SIEDOW & JACKSON

ATTORNEY LISA ELANDER
MUDGE PORTER LUNDEEN & SEQUIN

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