Wis.LIRC WC Decision: Fogal - September 29, 1998 - ND � 8.33 - Interlocutory Orders - increased risk of future surgery disability not a basis for a higher present award, but rather a basis for an interlocutory order so it may be compensated if it occurs

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

DONALD FOGAL, Applicant

TERRY JOHNSON TRUCKING, Employer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995003265

The administrative law judge (ALJ) issued his findings of fact and interlocutory order in this case on March 16, 1998, following hearings on May 21, 1997 and February 10, 1998. The employer and the insurer (collectively, the respondent) and the applicant have each submitted petitions for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $360, and a compensable right hip injury on January 3, 1995. The respondent conceded and paid temporary total disability benefits from January 3 to June 2, 1995, and permanent partial disability at five percent compared to amputation at the hip. The respondent also paid disability at two percent compared to disability to the body as a whole for a back injury, but now alleges that payment was made by mistake of fact.

The issues before the ALJ, and now before the commission, are whether the applicant sustained an injury to his back arising out of the applicant's employment with the employer while performing services incidental to that employment, the nature and extent of disability from the alleged back injury and the conceded hip injury, and the employer's liability for related medical expense.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby affirms the ALJ's Findings of Fact and Order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The three paragraphs of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.

After the third (final) paragraph of the ALJ's Findings of Fact, insert the following:

"However, Dr. Lemon reports that the applicant is at increased risk of developing arthritis because of surgical procedure, and the doctor could not rule out the potential grave complication of avascular necrosis. Because it may not be said definitely that the applicant will not sustain additional periods of disability with respect to his hip condition, an interlocutory order is appropriate to permit future awards of disability or payment of medical expense related to the applicant's hip injury. See Larsen Co. v. Industrial Commission, 9 Wis. 2d 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973)."

The ALJ's ORDER is deleted and second and third paragraph of the commission's interlocutory order below is substituted therefor.

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

INTERLOCUTORY ORDER

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

The respondent and insurer have overpaid the sum of Three thousand eight hundred thirty-seven dollars and sixty cents ($3,837.60) by mistake of fact.

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

Dated and mailed: September 29, 1998
fogal.wrr : 101 : 7 ND � 8.33

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant appeals. He argues that treating doctor Branham's permanent disability rating of 25 percent at the hip is more credible than Dr. Lemon's five percent rating. The applicant points to Dr. Branham's notation of reduced motion, decreased strength, and soft tissue calcification. Dr. Branham also noted that the applicant is at greater risk of degenerative joint disease and future hip surgery.

However, Dr. Branham's rating based upon reduced motion and decreased strength is undercut by the employer's witnesses who testify the applicant was able to perform a variety of tasks without discomfort or limp. Given the record here, the ALJ reasonably adopted IME Lemon's lower disability rating at the hip.

The commission appreciates the applicant's increased risk of degenerative joint disease and possible future surgery. However, an increased risk of future surgery or future disability is not a basis for a higher present permanent disability award. Rather, the possibility of future surgery or disability is a basis for an interlocutory order so that it may be compensated if it occurs. See, for example, John Pritchard v. Mobile Media, WC Claim no. 93000098 (LIRC, March 27, 1997).

In this case, even Dr. Lemon acknowledges that the applicant is at an increased risk for developing arthritis, and would not rule out the possibility of avascular necrosis of the hip. Accordingly, as explained above, the commission amended the ALJ's decision to reserve jurisdiction with respect to future disability to the hip only.

The applicant also argues that Dr. Lemon's change of mind regarding the applicant's back pain and disability is not credible. However, Dr. Lemon clearly explained that he rated permanent partial disability based on the applicant's complaints of back pain to him in April 1996. When the applicant told treating doctor Branham he had no backache in June 1996 and Dr. Branham noted no tenderness over the SI joint, Dr. Lemon concluded that the complaints of back pain to him in April 1996 either had healed and resolved or were the result of symptom magnification. Consequently, he reconsidered his rating for permanent disability due to the applicant's back condition. The commission finds this reasonable.

The applicant suggests that Dr. Lemon's change of opinion is not credible because the doctor focuses on the absence of the SI tenderness in the lumbosacral area (low back), while treating doctor Rieser rated permanent disability for thoracic (mid-back) problems. The absence of low back tenderness does not, the applicant argues, disprove mid-back pain.

There are two weaknesses with the applicant's argument on this point. Foremost is the fact that Dr. Branham noted no backache at all on June 12, 1996. Exhibit B. This report, of course, was after Dr. Rieser's January 1996 report based on treatment ending in June 1995. One might easily question the continuing viability of Dr. Rieser's report on that basis alone.

Second, of course, IME Lemon is not reconsidering Dr. Rieser's report, but rather Lemon's own report. Dr. Lemon did not assess permanent partial disability for loss of motion or pain at the thoracic spine; he rated it for aggravation of a pre- existing lumbar condition. If there is no more lumbar pain, it is perfectly reasonable for Dr. Lemon to retract this opinion.

cc: ATTORNEY CURTISS N LEIN
LEIN LAW OFFICES

ATTORNEY THOMAS P KIESELBACH
COUSINEAU MC GUIRE & ANDERSON

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