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

SHERRY A OLSON, Applicant

JOHNSON CONTROLS INC, Employer

JOHNSON CONTROLS INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997035080

The administrative law judge issued her findings of fact and interlocutory order in this case on March 24, 1998. The employer and the insurer (collectively, the respondent) have submitted a timely petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby affirms her findings of fact and conclusions of law and interlocutory order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Injury and medical treatment.

The applicant was born in 1951. Her job for the employer involved assembling gas valves and roof dampers. She suffered a conceded back injury on October 8, 1996, when she tried to lift a tote of parts weighing 25 pounds from a squatting position.

The applicant testified she felt a pull in her leg as she stood. She saw her doctor, N. Rowe, M.D., on that same day. Dr. Rowe noted complaints of a pulled muscle in the back, hip or leg. By the time the applicant saw Dr. Rowe, she was complaining of pain from the base of her back to her foot, with a pins and needles type pain in the foot.

On examination, Dr. Rowe noted a stiffened gait, a restricted range of motion, and a positive straight leg raising test. She diagnosed sciatica, possible herniated disc. She told the applicant she would do an x-ray and further work-up if the tingling continued past 24 hours.

Dr. Rowe ordered 24 hours bedrest, with re-evaluation by phone and a recheck in a week. The applicant, interestingly, told the doctor that the employer hardly ever gave anyone a day off work for bedrest. This statement was borne out, as Dr. Rowe's note contains an addendum indicating the employer called the doctor and "offered persistently light duty."

The applicant followed up with the doctor by phone the next day, October 9. She told the doctor her lower back was better, but she had spasm in her right calf. The numbness and tingling in the right foot was a little better. The doctor released the applicant to work the following day.

The applicant evidently saw Dr. Rowe in person the next day instead. The doctor noted continuing numbness, and mentioned ordering a CT scan, but released the applicant to light duty. The applicant returned to work on or about October 11.

The CT scan showed a moderate- to large-sized soft tissue density at L5-S1 that obscured the right nerve root and was suspicious for a disc herniation. Dr. Rowe recommended the applicant follow-up with an orthopedist or neurosurgeon.

Accordingly, the applicant saw Stephen Toutant, M.D., on October 18, 1996. Dr. Toutant reviewed the CT scan and opined that the applicant had a herniated disc, noting her examination and symptoms were consistent with that diagnosis. He ordered an MRI which was interpreted as suggestive of a right-sided focal disc herniation at L5-S1.

On December 18, 1996, Dr. Toutant performed a laminotomy, foraminotomy, and discectomy at L5-S1 at the right. During the surgery, the doctor made the following objective findings:

"There was a sequestered disc material which had almost completely calcified underneath the S1 nerve root as it crossed the upper sacrum of the foramen. This was extremely adherent to the surrounding nerve and thecal sac and made removal very, very difficult."

Exhibit B, operative report of Toutant, dated December 18, 1996. Dr. Toutant's operative note goes on to discuss the difficulties he encountered in removing the material in some detail. By way of conclusion he wrote:

". . . Unfortunately, a lot of manipulation of the nerve and thecal sac was necessary to accomplish this. It was a very difficult removal. I think it was quite traumatic and I hope nerve injury did not occur."

In a note dated April 1, 1997, Dr. Toutant reported that the applicant was possibly in more pain after the surgery than before, and had persistent symptoms of radiculitis. He wanted to do another MRI to check for recurrent disc herniation, as well as to check for worsening end plate changes (in the applicant's vertebra. See respondent's exhibit 2, page 5. A copy of Dr. Toutant's April 1, 1997 note submitted by the applicant after the hearing indicates the doctor kept the applicant off work in any capacity until further notice.

Prior to authorizing payment for the MRI, however, the insurer desired to have the applicant examined by its independent medical examiner (IME). Accordingly, the applicant was examined by IME Goodman on April 30, 1997. See exhibit 2. Dr. Goodman described the October 1996 work injury and post-injury symptoms. He also noted Dr. Toutant's surgical repair of the applicant's herniated disc in December 1996. He noted the applicant's report that the surgery had no beneficial effect on her condition which, if anything, was worse since the surgery.

The applicant told IME Goodman that she had persistent pain in her right lower back going into the right leg. She complained of an aching, pins and needles, numbness and burning sensations in these areas. She described the pain level generally at between 6 to 8 (where 1 is a nuisance and 10 is a suicidal level of pain). She complained of an increase in pain with even the slightest bend, and with walking, sitting, standing, coughing, sneezing, exercise, bending, working, lifting and bowel movements.

Following his examination, Dr. Goodman reported that testing showed the applicant to be an "adaptive coper" who was unlikely to exaggerate pain. He also found that her pain probably had a physiologic source. He thought the MRI with Gadolinium that Dr. Toutant ordered would be an appropriate course of action.

Dr. Goodman also noted the applicant had been off work the entire time since her injury. He thought she could return to work full time with restrictions against lifting more than ten pounds, and prohibiting "bending, twisting, squatting, etc.; and no prolonged sitting or standing." Dr. Goodman thought light office or clerical work that permitted alternating between sitting and standing would be appropriate.

Finally, Dr. Goodman's April 30, 1997 report indicated that the applicant had not yet reached an end of healing, and he estimated permanent partial disability of at least 5 percent when she did. His diagnosis was a work-related herniated disc with, at that point, a poor surgical result.

Following IME Goodman's report, the employer sent the applicant a letter on a Thursday, May 8 instructing her to report for work on May 12. The letter informed the applicant the employer had received Dr. Goodman's restrictions. The letter offered the applicant work "performing clerical and light assembly work." See exhibit attached to exhibit 4.

The employer's human resources manager, Jack Nass, testified on deposition about the work that would be available for the applicant. Specifically, he mentioned a variety of assembly work, but no clerical or office work, on direct examination. Exhibit 4, pages 10 to 12. When asked pointblank on cross examination if the employer had clerical work in mind, Mr. Nass indicated it could have been provided. Exhibit 4, page 19. On the other hand, Mr. Nass' testimony establishes that the assembly work offered would have been extremely light.

Upon receiving the letter from the employer on Friday, May 9, 1996, the applicant called Dr. Toutant. The records from Dr. Toutant submitted at the hearing did not contain a notation for this call. When the employer argued on review that the absence of a May 9 doctor's note suggested the applicant was lying about calling Dr. Toutant, the applicant's attorney sent a copy of the note to the commission. It states:

"Pt states that her employer sent her a letter stating that she is to return to work on Monday 8 hrs/day with a 10 pound lifting limit. Dr. Toutant advised & stated he will not release her pt to work until after he sees MRI results. Pt advised. . ."

The applicant then underwent the MRI on May 19, 1997. On May 20, 1997, Dr. Toutant reported the MRI showed evidence for epidural fibrosis at L5-S1 on the right but no evidence of recurrent disc herniation. He noted a bone spur, but did not believe it was significant clinically. He thought the reason for her continued problem was epidural fibrosis (a/k/a scar tissue). He hoped she would improve, but believed it not highly likely as it was six months after the surgery.

Regarding her capacity at the time, Dr. Toutant states she "really was unable to lift." The applicant told the doctor that the pain prevented her from driving. She also told the doctor she did not did think the employer had sedentary work available. Accordingly, he kept her off work "in light of the requirements of her job at this point." A copy of this note was forwarded to the workers compensation insurer.

Dr. Toutant's subsequent note for June 20, 1997, reports that Rhonda Gonwa called numerous times on behalf of the employer, asking Dr. Toutant to release the applicant to work. However, Dr. Toutant steadfastly refused to release the applicant because her leg prevented her from driving a motor vehicle, and because of her pain symptoms. Dr. Toutant's nurse informed Ms. Gonwa that he would consider a work release when she returned for follow-up in late July.

On July 24, 1997, the applicant cut grass in her two acre yard with a riding lawn mower. The applicant operated the lawn mower for at least one hour and 20 minutes without stopping. The applicant's mower is an automatic with foot pedals. A private investigator who observed the applicant cutting the grass described the yard as having slight terrain.

Dr. Toutant's note for the next day, July 25, 1997, reports that the applicant's symptoms had not improved. Significantly, the applicant told the doctor that she continued to experience significant sensory problems in the right leg which prevented her from driving. He noted a very positive straight leg raising test, and the onset of left leg pain symptoms. However, he did not think the applicant had re-herniated a disc; rather he thought the left leg symptoms were simply the result of musculoskeletal effects from the right leg.

In a follow-up letter to the insurer on August 5, 1997, Dr. Toutant reported that he did not believe the applicant could return to work, even part-time, in any capacity. The doctor noted that the applicant was not yet driving because of severe numbness in her left foot. He was particularly concerned about the severe burning numbness in her right foot. He did not think she could "sustain a productive activity level, whether it be standing and/or walking or sitting for more than two hours at time."

An EMG was done in August 1997. It showed abnormal neurological findings consistent with an active right first sacral radiculopathy. See exhibit 1, report of IME Patel, page 7.

The applicant testified that since her surgery she has had trouble driving. She is able to do some housework, has cleaned windows outside, and perhaps pushed snow off the front porch to make a path. She recalled trying to cut the grass on one occasion, but could not finish the task.

2. Expert medical opinion.

On December 18, 1997, one year after the surgery, Dr. Toutant noted little clinical change and pronounced an end of healing. He rated a fifteen percent permanent partial disability for the surgery, and sequelae of sensory deficits and weakness. He did not think she could return to work in any capacity. He did not schedule a follow-up appointment.

On January 27, 1998, Dr. Toutant prepared a functional capacity evaluation. He allowed occasional lifting and carrying up to ten pounds, bending and twisting on a "seldom" basis, and no squatting, crawling or climbing. He prohibited the use of the right foot for use of a foot control. He also opined the applicant was unable to work full-time or part-time, on a permanent basis.

Finally, in a letter to the applicant's attorney dated February 10, 1998, Dr. Toutant reported:

"I have reviewed my operative report as it pertains to findings at surgery. The disc material found at surgery was calcified suggesting a non-acute process. Length of time it takes a disc to calcify is unknown, but in my opinion, this process takes at least one year to occur. I was somewhat surprised by the amount of calcification found in surgery in light of the pre- operative studies which suggested primarily soft disc herniation. I think that Ms. Olson may have had a small disc herniation which was not clinically symptomatic prior to her injury of October 8, 1986 [sic] with additional disc herniation occurring at that time and becoming clinically symptomatic. It thus appears to me that the injury of October 8, 1996 was work related by means of aggravating a pre-existing condition beyond its normal progression.

"You have asked whether I feel Ms. Olson is able to work six hours at time on a regular basis. I suspect that the discomfort that she experiences would prohibit this from being accomplished."

Exhibit J.

The employer obtained reports from two independent medical examiners.

Dr. Goodman's initial report from May 1997 (exhibit 2) is discussed above. He issued a follow-up report on January 27, 1998 (exhibit 3.) He agreed with Dr. Toutant that the healing plateau was reached on December 18, 1997, one year after surgery. He rated permanent partial disability at five percent for the surgery, increased to perhaps ten percent for disabling pain. He thought his previous restrictions against lifting more than 10 pounds, and against bending, twisting, and squatting, or prolonged sitting or standing, were not permanent. He reiterated his earlier opinion from the May 1997 report that she could return to work with those restrictions.

In an addendum to this follow-up report, Dr. Goodman also had this to say about the videotape showing the applicant cutting her grass on the lawn tractor:

"I have reviewed the video tape and note that her ability to ride on the lawn tractor for a prolonged period of time would be extremely stressful to the back and in my opinion clearly demonstrated her ability to work with restrictions. This video tape further significantly had me doubt the credibility of her self reports regarding her pain levels and her inability to do any productive work."

After seeing the videotape of the lawn mowing activity, however, Dr. Goodman did not relax his previous restrictions in any fashion.

Finally, the employer submits the report of Anoo Patel, M.D., who examined the applicant on February 10, 1998. Exhibit 1. The applicant told Dr. Patel she no longer did housework or yard work because of the pain, and no longer drives her car. Dr. Patel noted evidence of a fifty percent limitation of spinal motion due to pain and evidence of a right-sided radiculopathy involving the first right sacral nerve. He also noted diminished right sensation in the right leg. He noted symptoms preceding the work incident, which he stated involved normal exertive force, but also noted that the prior symptoms were not sufficient to keep the applicant from working.

IME Patel agreed with IME Goodman's opinion the applicant could have returned to light duty work as of April 30, 1997. He also agreed with IME Goodman and treating doctor Toutant that the applicant later reached an end of healing on December 18, 1997. He rated permanent partial disability at 8 percent, noting a fifty percent limitation of range of motion in the spine, persistent right leg numbness and diminished endurance in sitting, standing and walking.

Dr. Patel also reported the applicant could sit, stand and walk for an hour at a time, and could lift 10 pounds. Somewhat inconsistently, Dr. Patel also reported the applicant could continuously lift up to ten pounds and frequently lift up to 20 pounds. He permitted occasional bending, stooping, stair climbing and kneeling, but prohibited crawling. Dr. Patel also opined that the applicant could use both feet in foot pedal operation. He believed that returning to work full time would be beneficial to her general health.

3. Discussion.

As indicated above, the issue in this case is the extent, if any, of temporary and permanent disability beyond that conceded by the respondent. Causation is not at issue. The employer concedes a work-related injury resulting in laminectomy surgery, a year-long post-surgery healing period to December 18, 1997, and permanent partial disability of at least five percent. The primary dispute is about the extent of the insurer's liability for temporary disability.

In general, an employer is liable for temporary disability until an injured worker has reached an end of healing, assuming the worker sustains an actual wage loss. An injured worker's injury is temporary, that is still healing, until "there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence." Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

The end of healing, or healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. However, if a worker in fact returns to work while he is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wis. Stat. � 102.43(2). But a return to work does not necessarily mean a worker has reached an end of healing, nor does a doctor's release to work, particularly when the release is restricted.

The commission has previously recognized that, if an employer offers work to an injured worker during the healing period and the worker refuses it without reasonable cause, the applicant's temporary disability benefits may be reduced by the wages he would have earned had he accepted the work. Wellstandt v. Chippewa County, WC case no. 93050745 (LIRC, November 28, 1997). However, the burden of providing such work is on the employer under Wis. Admin. Code � DWD 80.47 which provides:

"DWD 80.47 Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period."

Wis. Admin. Code � DWD 80.47 does not directly address the question, inferentially, of what happens if an employer offers work to an injured worker, but the worker refuses it. One may infer from such a rule, of course, that offering such work will have consequences. The issue has not been addressed directly by statute or reported court decision, (1) but the commission has frequently held that an injured worker's refusal of suitable work within his or her restrictions during a healing period ends the employer's liability for temporary disability. (2)

What proof is necessary for the commission to conclude that the medical evidence does not support the claim for temporary total disability, so that the commission may instead award temporary partial disability based on the conclusion that the applicant could have returned to work? Specifically, what happens where, as here, the IME and treating doctors disagree on the applicant's ability to return to work, and the applicant bases her refusal to return on her treating doctor's opinion? The commission sees three possibilities: (a) always allow the injured worker to rely on the treating doctor; (b) decide which doctor's opinion is more credible; and (c) accept the treating doctor's restrictions unless they are procured in bad faith.

The commission usually holds (as the ALJ did here) that a worker is entitled to rely on the restrictions set by the treating doctor in determining whether to return to work. That approach is a logical outgrowth of Spencer v. ILHR Department, 55 Wis. 2d 525 (1972), which deals with the consequences of an applicant's reliance on a treating doctor's opinion. The court in Spencer wrote:

"In setting aside the findings of fact and order of the department, the circuit court held as a matter of law that where an employee, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment (increased period of temporary total disability, increased permanent partial disability and the expense of the arthrodesis) because it finds the treatment was either unnecessary or unreasonable. This conclusion is evidently based on the court's earlier finding of an absolute right to consult a second panel physician without first tendering notice to the employer.

"As we see it, the conflict here is not with the amount of disability ultimately resulting, but whether the judgment of one or the other doctor was correct or incorrect with respect to the necessity of the arthrodesis. Assuming Dr. Braun was correct, is Spencer to be faulted because he chose to follow erroneous medical advice? We do not think so, as long as he did so in good faith. There is no evidence to show that in accepting arthrodesis Spencer did so other than in good faith. The employer is responsible for the consequences not only of the injury, but the treatment. . ."

Spencer, at 55 Wis. 2d 531-32.

In the case now before the commission, however, the applicant did not procure Dr. Toutant's advice to stay off work after July 25, 1997 in good faith. First, she did not tell Dr. Toutant she could ride a lawn mower for an hour and a half, and indeed left Dr. Toutant with the impression she could not drive at all. Second, applicant told Dr. Toutant in May 1997 that she did not believe sedentary duty work was available despite having been offered such work by the employer a few days before.

In response, the applicant argues that the employer itself has not always acted in the best of faith. She also points out that the lawn mowing was for only an hour and a half out of forty hours of surveillance.

However, the fact remains that the applicant affirmatively told Dr. Toutant on May 20, 1997 and July 25, 1997 that she was unable to drive because of the radicular symptoms in her right leg. The ongoing symptoms, particularly the inability to drive, played a role in the doctor's decision to keep her off work. See note of August 5, 1997 in exhibit D.

Yet at the same time, on July 24, 1997, the applicant was able to operate a riding lawn mower for well over an hour. In her brief, the applicant asserts that driving a lawn mower does not prove she could drive a car because the foot pedals on the lawn mower were on the left side. The commission is unable to find evidence in the record on this point. Even so, the applicant's ability to operate foot pedals was not Dr. Goodman's main concern. He mentioned instead the stresses on the applicant's back while operating the mower, suggesting that if her back were causing symptoms as significant as she claimed, she would not be able to tolerate one hour and twenty minutes on a lawn mower.

In addition, the applicant also affirmatively told Dr. Toutant on May 20, 1997 that no sedentary work was available with the employer, when the employer had offered to accommodate her only days before. The availability of restricted duty is important, as Dr. Toutant specifically stated in his note for May 20 that he kept the applicant off work "in light of requirements of her job at this point."

Thus, the commission concludes that Dr. Goodman's work restrictions are more credible because Dr. Toutant's restrictions after July 25, 1997 were based on inaccurate history regarding the applicant's ability to drive. In addition, to failing to tell Dr. Toutant about her ability to operate a riding lawn mower for at least 80 minutes, the applicant was less than forthright with Dr. Toutant on May 20 about the availability of lighter work. Consequently, the applicant's reliance on Dr. Toutant's restrictions after July 25, 1997 was not in good faith.

The question becomes whether or when the employer furnished suitable work to her within Dr. Goodman's restrictions. Those restrictions (set out initially in exhibit 2, and made permanent in exhibit 3) set a ten pound lifting limit. Dr. Goodman also prohibited prolonged sitting and standing. He totally prohibited bending, twisting and squatting. Dr. Goodman thought light office or clerical work allowing for frequent position changes would be appropriate.

However, the employer did not offer "light office or clerical work" to the applicant in May 1997, but "clerical and light assembly work." As the applicant pointed out, Mr. Nass' exhibit indicates that the employer had mostly light assembly available, and that Mr. Nass described the very light assembly work in the greatest detail. He acknowledged that the employer could have offered clerical work if necessary, but that clearly was not the employer's first choice.

Light office work, in Dr. Goodman's opinion, could accommodate total prohibitions against bending, twisting and squatting, while at the same time allowing for frequent position changes. Light assembly work might not meet those restrictions so easily. On the other hand, Mr. Nass' testimony indicates that the assembly work the employer had to offer would have fit IME Goodman's restrictions. The work discussed is very light and allowed for alternating between sitting and standing. Finally, since the applicant neither tried the work nor told Dr. Toutant about it, the commission is not inclined to infer the work would have been outside the applicant's restrictions.

In sum, on July 25, 1997, the applicant's reliance on Dr. Toutant's work restrictions, rather than the more credible restrictions of Dr. Goodman, was no longer in good faith. Because the respondent had previously offered work within the restrictions set by Dr. Goodman, the respondent's liability for temporary total disability ended on July 25, 1997.

The final question is the extent of permanent partial disability. Dr. Toutant rated permanent partial disability at fifteen percent compared to disability to the body as a whole. Dr. Goodman rated it at five or perhaps ten percent. Both doctors set significant work restrictions. It is clear from Dr. Toutant's operative report, and the EMG providing objective support for radiculopathy, that this is a case of "symptomatic complaints [and] objective findings" which justify a departure from the minimum five percent rating for a discectomy procedure under Wis. Admin. Code � DWD 80.32(11). Thus, while Dr. Toutant's work restrictions are not credible, his permanent partial disability rating is clearly reasonable under the facts of this case.

4. Award.

The commission therefore finds that the applicant was temporarily and totally disabled from her compensable injury from October 8 to October 11, 1996, a period of three days, and from October 21, 1996 to July 25, 1997, a period of 39 weeks and 4 days. The applicant's compensation rate for temporary disability is $243.73, two-thirds of her average weekly wage of $365.60. Accordingly, she is entitled to a total of $9,789.96 in temporary disability, subject to the respondent's prior payment of $7,027.54 in temporary disability, leaving net additional award for temporary total disability of $2,762.42.

The commission further finds that the applicant is entitled to 150 weeks of compensation for permanent partial disability. At the maximum compensation rate for injuries in 1996, $169 per week, the applicant is entitled to a total of $25,350 in permanent partial disability, subject to the respondent's prior payment of $8,450, leaving a net additional award for permanent partial disability of $16,900. As of December 4, 1998, only 22 weeks and 3 days (totaling $3,802.50) of the additional permanent partial disability award have accrued, 77 weeks and 3 days (totaling $13,097.50) remain unaccrued.

The applicant also approved an attorney fee of 20 percent under Wis. Stat. � 102.26. The percentage fee is based on the additional temporary total and permanent partial benefits awarded under this decision. The future value of the total fee is thus $3,932.48 {20 percent of ($2,762.42 plus $16,900)}. Of that amount only the fee attributable to temporary total disability and 22.5 weeks of permanent partial disability ($1,312.98) has yet accrued; the fee attributable to the remaining 77.5 weeks of permanent partial disability ($2,619.50) is unaccrued. As a result, the unaccrued fee is subject to an interest credit of $133.60, leaving a net fee which reflects its present value of $3,798.88. The fee shall be deducted from the applicant's total award and the net fee, together with costs of $179.18 shall be paid within 30 days.

The amount due to the applicant within 30 days is $5,072.75. This is determined by adding the additional temporary total disability benefits of $2,762.42 to the additional, accrued permanent partial disability benefits of $3,802.50. From this total ($6,564.92), the accrued portion of the fee ($1,312.98) and legal costs ($179.18) must be subtracted, leaving $5,072.75.

The amount remaining to be paid to the applicant as it accrues after December 3, 1998 is $10,478.00. This is determined by starting with the unaccrued permanent partial disability ($13,097.50) and by subtracting the unaccrued attorney fee without deducting the interest credit ($2,619.50), leaving $10,478.00 remaining to be paid. This amount shall be paid to the applicant in monthly installments of $179.18, beginning on January 3, 1999.

Because the applicant may sustain additional temporary or permanent disability and incur additional medical expenses, this order will be left interlocutory on those issues.

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 in part and reversed in part.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Sherry A. Olson, Five thousand seventy-two dollars and seventy-five cents ($5,072.75) in disability compensation.

2. To the applicant's attorney, Helen Schott, Three thousand seven hundred ninety-eight dollars and eighty- eight cents ($3,798.88) and One hundred seventy-nine dollars and eighteen cents ($179.18).

Beginning on January 3, 1999, and continuing on the third day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred thirty-two dollars and thirty-three cents ($732.33) until the sum of Ten thousand four hundred seventy-eight dollars ($10,478) has been paid.

Dated and mailed: November 30, 1998
olsosh.wrr : 101 : 5 ND � 5.10

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness. She pointed out that the videotape showed less than ninety minutes of activity over several days of surveillance at eight hours per day. She also pointed out that the objective tests verified the applicant had right leg numbness, and that she appeared straightforward and in pain at the hearing.

The commission acknowledges that the applicant has radicular symptoms in her right leg, that they are painful, and that the applicant experiences numbness. However, the commission cannot conclude, after watching the videotape, that her symptoms are as disabling as she portrayed them to be to Dr. Toutant. While the applicant may have only operated the riding lawn mower for 80 minutes on July 24, 1997, that activity for that duration completely discredited her representation to her doctor the next day that her leg problems prevented her from driving.

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Footnotes:

(1)( Back ) See Neal & Danas, Workers Compensation Handbook, � 5.10 (4th ed., 1997).

(2)( Back ) Rand v. Ampco Metal, Inc., WC Case no. 93010320 (April 5, 1995); Heredia v. Superior Linen, WC case no. 94043118 (October 3, 1996); Melvin v. Belt Line, Inc., WC case nos. 93044101, 94037949 (February 5, 1995); and Schomisch v. Advance Transporation, WC case nos. 95026645 and 95053903 (January 30, 1997).