P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 1993033216

The respondents submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 13, 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 injury to the applicant's back. The work injury occurred on May 7, 1993.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:


The applicant, whose birthdate is November 16, 1945, was employed as a truck driver for the employer. On May 7, 1993, a gust of wind caught two semi-trailer doors which the applicant was opening, stretching his body spread-eagle and throwing him to the ground. This resulted in low back pain radiating into his right leg. He began treatment with a chiropractor, Dr. Donald Woodruff, whose treatment resulted in temporary improvement. Dr. Woodruff released the applicant to return to work in June, 1993 with a 40-pound lifting restriction. The applicant continued to make long hauls, using lumpers when needed. He also continued to spend significant time training new drivers, something he had regularly done for the employer.

On or about March 28, 1994, the applicant came down with pneumonia, and as a result was off work. He also has emphysema. The applicant returned to work on May 12, 1994, and made a short haul delivery. His treating physician for the lung condition had told him to stick to light duty. On May 13, 1994, the employer assigned the applicant to a long haul drive to New York City. This surprised the applicant because his supervisor had told him he would give him short hauls due to his medical problems. The applicant quit because he did not believe he could physically tolerate long haul driving. He acknowledged that the decision to quit was made because of both his back and his lung conditions. The applicant applied for SSDI immediately after he quit, and was granted it approximately four months later, based on his lung condition.

The applicant's back condition persisted and worsened, and on March 13, 1995, he was referred to Dr. Arnold Rosenthal. Dr. Rosenthal ordered an MRI on March 15, 1995, and it showed a small central disc protrusion at L5-S1. Dr. Rosenthal diagnosed an L5-S1 disc protrusion with right radiculopathy, and administered three epidural steroid injections, each of which provided temporary relief. Dr. Rosenthal sees the applicant as a candidate for a laminectomy at L5-S1, but recommends the surgery only as a last resort due to the applicant's lung condition.

Dr. Rosenthal completed a WC-16-B dated June 27, 1995, in which he assessed five percent permanent disability of the whole body. Dr. Rosenthal also assessed permanent physical restrictions of seven hours sitting, standing, or walking in a eight-hour day (four hours at any one time), occasional lifting up to 25 pounds, and occasional bending, squatting, crawling, climbing, or reaching.

At the insurer's request, Dr. Stephen Weiss examined the applicant on January 6, 1996. He noted that there was a small, centrally herniated disc at L5-S1, and that upon examination, the applicant had moderately severe paravertebral spasm, restriction of motion, straight leg raising pain, and right thigh and calf atrophy. He opined that a healing plateau had been reached on April 25, 1995, and concurred with Dr. Rosenthal's assessment of five percent permanent partial disability. He recommended no lifting over ten pounds, employment where the applicant could alternate sitting and standing, and only occasional bending or twisting.

The applicant's vocational expert, Lawrence Hollingsworth opined that accepting Dr. Rosenthal's restrictions, the applicant sustained a 45-50 percent loss of earning capacity. Accepting Dr. Weiss' restrictions, he found the applicant to be unemployable. Respondents did not obtain a vocational opinion.

The administrative law judge awarded additional temporary total disability for the period between March 1, 1994 through April 25, 1995. However, the commission rejects his finding. First, the applicant testified that he continued to work up to March 28, 1994. Of greater importance, the record contains no credible medical evidence in support of temporary disability between March 1, 1994, and the date Dr. Rosenthal's treatment began on March 13, 1995. Dr. Woodruff's records do not contain any support for a specific period of temporary total disability. The only relevant statement from him in this regard was a WC-16-B dated July 14, 1994, in which he indicated that the applicant could return to work as of March 14, 1994, with restrictions of no lifting, pushing, or pulling in excess of 50 pounds. There is no explanation from Dr. Woodruff as to how this date was arrived at, or what Dr. Woodruff believed concerning the applicant's ability to drive a truck. The applicant testified that the restrictions Dr. Woodruff gave him in May 1994 were the same as those he gave him in June 1993, and Dr. Woodruff's return-to-work permit dated June 7, 1993, restricted the applicant to 20-pound lifting but allowed driving up to 8 hours. The applicant did perform long haul truck driving subsequent to June 1993.

When Dr. Rosenthal first examined the applicant on March 13, 1995, it is clear from his assessment on that date, his subsequent treatment, and his WC-16-B completed on June 27, 1995, that he considered the applicant unable to drive a truck due to his back condition, regardless of his emphysema. On April 24, 1995, Dr. Rosenthal noted that the applicant had experienced improvement in his back symptoms after receiving two epidural steroid injections, and he released him on a "P.R.N." basis. This credibly supports Dr. Weiss' opinion that a healing plateau was reached on April 25, 1995. The applicant is therefore entitled to additional temporary total disability for the period of March 13, 1995 up to April 25, 1995 (exclusive), a period of six weeks and one day, which at the applicable rate of $450 per week totals $2,775.

Respondents argue that the applicant is not entitled to an assessment of loss of earning capacity because he quit his employment on May 13, 1995, without a medical opinion allowing him to do so, and allegedly due to his emphysema rather than his back condition. Wisconsin Statute 102.44(6)(b) allows the commission to make a loss of earning capacity assessment if there is a wage loss of 15 percent or more during the statutory period set forth in Wis. Stat. 102.17(4). Section 102.44(6)(b) grants this power to the commission using the discretionary "may," and for reasons indicated below, the commission concludes that the reasonable and appropriate use of discretion in this case is to allow an assessment of loss of earning capacity.

The applicant did not have a medical opinion allowing him to quit his employment due to his back condition on May 13, 1994, but the commission has not granted any worker's compensation benefits to the applicant from May 13, 1994 up to the date Dr. Rosenthal began treatment and found the applicant to be disabled due to his back condition. Both Dr. Rosenthal and Dr. Weiss have assessed permanent work restrictions which preclude the applicant from performing long haul trucking, and Dr. Weiss' restrictions would preclude the applicant from performing even short haul driving. Both physicians assessed their restrictions based solely on the applicant's work-related back condition. Taking into account these medical opinions, there can be no reasonable dispute that at least as of April 25, 1995, the applicant's back condition rendered him unable to return to his employment with the employer. The employer's Director of Safety testified that the employer would have been able to continue offering employment to the applicant within the restrictions he had as of May 13, 1994. However, the medical opinions make it clear that the applicant's restrictions attributable to his back condition have become substantially more severe since that date, and that given these restrictions, and even without his emphysema, he could not have physically tolerated a return to his employment with the employer.

Dr. Weiss, the physician secured by the respondents, saw the applicant almost 9 months after Dr. Rosenthal's release on April 24, 1995. He found the applicant to be more severely restricted due to his back condition than had Dr. Rosenthal, which is consistent with the applicant's testimony that his back condition deteriorated after he last saw Dr. Rosenthal. While Dr. Weiss indicated that the applicant should be placed in a job in which he is able to alternate standing and sitting, he did not preclude the applicant from performing sedentary work, and assessed permanent partial disability of only 5 percent due to the applicant's back condition. It is inferred from Dr. Rosenthal's and Dr. Weiss' assessments of the applicant's back condition that he could perform sedentary work. The applicant's emphysema is a nonindustrial condition which did not progress to a disabling condition until after the work injury of May 7, 1993, and therefore will not be considered in the assessment of loss of earning capacity.

The applicant is an older worker who has worked as a long distance truck driver or heavy truck driver all his occupational life. He left school in the 6th grade and has no occupational training aside from his truck driving skills. He was earning a high weekly wage ($764.30) when injured. His inability to return to most forms of truck driving resulted in a very substantial decrease in his earning capacity. While the commission does not find that the applicant, absent his emphysema, is so severely restricted as to be unemployable, it does find a 55 percent loss of earning capacity. This assessment takes into account all the relevant factors previously detailed.

A 55 percent assessment for loss of earning capacity equates to 550 weeks of compensation at the applicable rate of $152 per week, for a total of $83,600. A 20 percent attorney's fee is payable against the award for additional temporary total disability and the award for loss of earning capacity. This results in a future value attorney's fee totalling $17,275, which after deduction of an interest credit in the amount of $1,639.73 results in a present value attorney's fee of $15,635.27. The accrued compensation, including additional temporary total disability and after subtraction of the present value attorney's fee, amounts to $32,356.54. Beginning on May 25, 1998, the monthly amount of $658.66 shall also be due the applicant until the unaccrued compensation is paid in the amount of $36,743.47.

Reasonably required medical expenses are also due as follows: Woodruff Chiropractic in the amount of $411; Mile Bluff Clinic in the amount of $108 (paid by the applicant); Phillips Drug Store in the amount of $36.18 (paid by the applicant); and Madison Radiologists in the amount of $205 (paid by the applicant).

The credible medical evidence indicates that the applicant may require additional medical treatment, including surgery, and therefore this order will be left interlocutory.



The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the respondents shall pay to the applicant as accrued compensation the amount of Thirty-two thousand three hundred fifty-six dollars and fifty-four cents ($32,356.54); to the applicant as reimbursement for medical expenses which he paid, the sum of Three hundred forty-nine dollars and eighteen cents ($349.18); and to applicant's attorney, Thomas Strakeljahn, fees in the amount of Fifteen thousand six hundred thirty-five dollars and twenty-seven cents ($15,635.27).

Beginning on May 25, 1998, and continuing monthly thereafter, respondents shall pay to the applicant the amount of Six hundred fifty-eight dollars and sixty-six cents ($658.66) per month, until unaccrued compensation has been paid in the total amount of Thirty-six thousand seven hundred forty-three dollars and forty-seven cents ($36,743.47).

Jurisdiction is reversed for such further finds and orders as may be warranted.

Dated and mailed: May 7, 1998
babcora.wsd : 185 : 6 ND 5.23

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner



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