STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
SUSAN SPETH, Applicant
BRODBECK ENTERPRISES INC, Employer
WESTCHESTER FIRE INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1992049067
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:
1. Delete the last two sentences of the seventh (last) paragraph of the ALJ's Findings of Fact.
2. After the seventh (last) paragraph of the ALJ's Findings of Fact, as modified, insert the following paragraph:
"The parties executed a limited compromise agreement on the application underlying this case, which was approved by the department by order dated July 23, 1996. The limited compromise agreement settled all issues except the past medical expenses which are now resolved by this current order. The limited compromise specifically and finally compromised any future medical expense. See Schenkoski v. LIRC, 203 Wis. 2d 109, (Ct. App., 1996); Lisney v. LIRC, 171 Wis. 2d 499 (1992). Accordingly, this order is final on all issues."
3. Delete the "INTERLOCUTORY ORDER" caption preceding the order in the ALJ's decision, and substitute "ORDER."
4. Delete the second (last) paragraph of the ALJ's Order.
ORDER
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed: September 29, 1998
spethsu . wmd : 101 : 6 ND � 5.46, 8.33, 10.3
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The ALJ found the work injury caused the applicant's disabling symptoms and need for treatment. He credited treating doctor Hughes' report over that of independent medical examiner Berentsen's. The ALJ criticized Dr. Berentsen's report for failing to explain how the applicant's disability was simply a happenstance and coincidental to the work injury, and for not explaining what standard he used to determine that the disability was unrelated to the work injury. Finally, the ALJ ruled that, even if the applicant's disability was in part the result of functional overlay, the employer took the applicant "as is" and subject to the propensity for functional overlay with a work injury.
The ALJ acknowledged that Dr. Hughes' history of moving "very heavy items" did not seem to square with the facts. However, he credited the applicant's testimony that she accurately described her work exposure to the doctor. Thus, he concluded any error was insignificant. Accordingly, the ALJ ordered all the disputed medical expense paid.
The employer and insurer (collectively, the respondent) appeal. The respondent argued that Dr. Berentsen did indicate what medical standard he used by stating his opinions were to a reasonable degree of medical certainty. It argues also that Dr. Berentsen did not need to say why the applicant's symptoms were coincidental to the work injury because the clear inference is that they were caused by the earlier car accident. The respondent also points to Dr. Berentsen's statement that the applicant's complaints were related to something other than the work injury because the injury was trivial and the applicant's symptoms were extreme.
The respondent also emphasized that Dr. Hughes opined the applicant was lifting very heavy items when injured when she was only lifting fifteen to twenty pounds of groceries. This, the respondent contends, raises legitimate doubt. Finally, the respondent contends that the ALJ's order should have been final, assuming any award is appropriate.
However, the commission cannot accept the majority of the respondent's arguments. In his first report, IME Berentsen seems to opine that there really was nothing wrong with the applicant within a short time after the work injury, except for a minor strain which should have healed quickly without residual discomfort. He does not say the applicant's disability was caused by the 1990 car accident; in fact he expressly says it is not.
Indeed, IME Berentsen expressed concern that the applicant's symptoms, as presented in October 6, 1992, were so exaggerated as to present evidence of outright malingering. Malingering does not mean a worker who has legitimate symptoms after a work injury erroneously attributes them to the work injury rather than some other event. Malingering means the applicant is willfully and fraudulently making the symptoms up or greatly exaggerating them (1); in other words, that she really is fabricating or highly exaggerating her pain, restriction of motion, and disability.
Dr. Berentsen does seem to retreat from his diagnosis of malingering somewhat by the time of his second report, instead opining the "promulgation of the applicant's symptoms are the result of functional overlay." "Functional overlay" essentially means a worker's symptoms are not caused by any actual pathology or change in an organ, but simply an unexplained defect in function usually assumed to be psychological.
However, the ALJ believed the applicant had disability attributable to her work injury. In other words, after examining the treatment record (including her considerable treatment after the IME Berentsen's report) and watching the applicant testify, the ALJ concluded she was not malingering and in fact had pain symptoms. The commission concurs in the ALJ's credibility assessment on this point.
The commission concludes that the applicant's condition for which she incurred the disputed medical treatment arose from her employment with the employer. Her symptoms began with an admitted work injury, a cervical strain which even Dr. Berentsen acknowledged occurred. Drs. Hughes and Lynn note the pain trigger points and muscle spasm which indicate that the condition actually has some actual physiological basis. Perhaps the applicant does overreact to her pain somewhat and perhaps another person would have healed sooner. But as the ALJ pointed out, employer's take their workers as they are, and not everyone heals at the same rate or with the same degree of stoicism.
The respondent also criticizes Dr. Hughes' report as not based on all the treatment notes in contrast to the report of Dr. Berentsen. Of course, Dr. Hughes himself provided much of the treatment underlying the notes Dr. Berentsen reviewed. Dr. Hughes also clearly was aware of the applicant's treatment for the motor vehicle injury in 1990 (an injury which Dr. Berentsen opined was irrelevant to the applicant's current condition anyway.)
On the other hand, Dr. Berentsen only considered the notes to November 1992, and never considered the considerable treatment record from 1993 and 1994. The commission emphasizes that the question at issue in this case is whether the applicant's continuing symptoms are genuine and what caused them, not whether the work injury actually happened. Thus, Dr. Hughes' apparent failure to read the initial urgent care notes immediately after the injury seems less important than Dr. Berentsen's failure to review the notes for the continuing treatment that is actually at issue here.
Finally, the respondent asserts that Dr. Hughes' opinion is based on an erroneous history of very heavy lifting in the applicant's work as a checker. However, the twenty pound bag of meat and soda cans that the applicant was lifting when injured might reasonably be viewed as very heavy in a relative sense for a checker. Moreover, IME Berentsen's recitation of Dr. Hughes' initial treatment notes indicates that Dr. Hughes took a history of an injury while lifting, not while doing "very heavy lifting." Exhibit 9, Berentsen's report page 3. The applicant also testified credibly that she accurately relayed her symptoms to Dr. Hughes. The commission concludes that the history underlying Dr. Hughes' report is materially accurate.
The last point is whether the order should have been interlocutory or final. On appeal,
the applicant does not expressly oppose the respondent's request for a final order. In any
event, as explained in the text added to the ALJ's Order by the commission, a final order
is appropriate.
cc: ATTORNEY THOMAS H STRAKELJAHN
STRAKELJAHN LAW OFFICES SC
ATTORNEY MICHAEL J HICKS
HILLS & HICKS SC
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