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

BRIAN E KRETSCHMANN, Applicant

PETTIT NATIONAL ICE CENTER, Employer

T I G PREMIER INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1994002921

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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed: December 4, 1998
kretsch . wsd : 101 : 3   ND § 5.25

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, who was born in 1974, was injured when he fell 30 feet from a forklift to the ice at the Pettit National Ice Center. He broke his jaw and fractured his right heel. He also sustained a closed cranial trauma (head injury), including blood in his ear canals, a hematoma, and a left temporal bone (skull) fracture.

On appeal, the employer and insurer (collectively, the respondent) dispute only the extent of functional permanent disability for the closed cranial trauma and the heel injury.

a. The heel injury.

As noted above, the applicant sustained a heel fracture (1) from the injury. The fracture was treated surgically by an open reduction and internal fixation surgical procedure. After the surgery, the applicant received physical therapy and now wears orthotics. See exhibit 1, IME report.

The applicant's treating doctor Jeffrey Schwab, M.D., initially rated permanent partial disability at "15 percent of the lower extremity or 4 percent of the whole person" for permanent residuals following the surgery. In support of his rating, Dr. Schwab noted "virtual ankylosis of his subtalar (2) joint, pain and discomfort, and limited motion of the great toe." See exhibit B, Schwab note for January 24, 1995.

On April 4, 1996, treating doctor Schwab noted foot pain over the arch, over the peroneal tendons, and over the lateal os calcis. The doctor noted his prior rating of 15 percent relative to the lower extremity, and stated that a disability rating relative to a Symes amputation (which is an amputation of the foot at the ankle) would obviously be a higher number. The commission concludes that Dr. Schwab's point was that the disability from a heel fracture rated compared to amputation of a foot at the ankle would be a higher percentage than the same disability when compared to the amputation of the whole leg at the hip. At any rate, Dr. Schwab estimated the applicant's disability relative to a Symes amputation to be 37 percent.

Thus, in his December 16, 1996 practitioner's report at exhibit B, Dr. Schwab set out three alternative ratings for the applicant's heel fracture: 15 percent disability of the lower extremity, or four percent of the person, or 37 percent disability relative to a Symes amputation. In a final report, Dr. Schwab offered only one rating: 37 percent compared to amputation at the ankle. Exhibit B, Schwab letter dated July 2, 1997.

The employer's independent medical examiner (IME), James Stiehl, M.D., initially stated that he agreed "with the prior disability, which recommends a 15% disability of the lower extremity or a 4% whole person disability." Exhibit 1, June 12, 1997 report of Stiehl, page 3. Thereafter, on August 15, 1997, IME Stiehl stated that he had appropriately awarded the applicant "a 15% disability because of his heel fracture." Dr. Stiehl considered the rating generous, as it "nearly rate[d] him for a subtalar fusion."

Permanent disability at 15 percent compared to amputation of the leg at the hip (lower extremity) results in an award of 75 weeks of permanent disability compensation. Permanent disability at four percent to the body as whole is 40 weeks. Permanent disability at 37 percent compared to amputation of the foot at the ankle is 92.5 weeks. Permanent disability at 15 percent compared to amputation of the foot at the ankle is 37.5 weeks.

The ALJ awarded permanent partial disability at 37 percent compared to amputation at the ankle. He explained that a rating at the ankle is most appropriate for the applicant's heel fracture. He also pointed out that IME Stiehl initially agreed with Dr. Schwab's ratings when compared to the whole body and amputation of the lower extremity. The ALJ also read Dr. Stiehl's reports not to contradict Dr. Schwab's rating compared to amputation at the ankle.

In its appeal, the respondent argues neither the record nor the administrative code support a 37 percent rating at the ankle. The respondent also asserts that Dr. Stiehl consistently rated fifteen percent at the ankle in his reports.

However, the fact remains that Dr. Schwab and IME Stiehl initially rated permanent partial disability compared to disability of the lower extremity at fifteen percent. Ordinarily, when doctors refer to a "lower extremity" they mean the whole leg, not the foot. (3)

Dr. Schwab certainly meant the rating at the lower extremity to include the entire leg, as he specifically differentiated the "lower extremity rating" from the "Symes amputation rating." Further, Dr. Schwab wrote both the initial report giving the 15 percent rating at the lower extremity, and the subsequent report giving a 37 percent rating relative to the Symes amputation before IME Stiehl wrote either of his reports.

Thus, the initial "lower extremity rating" given by Dr. Schwab and adopted by Dr. Stiehl is most reasonably understood to be fifteen percent compared to amputation of the leg at the hip. It follows, then, that if the doctors agreed the applicant's disability when compared to the whole leg would be 15 percent, they also would agree that the disability would be a higher percentage when compared only to the foot or amputation of the foot at the ankle.

Of course, IME Stiehl's second report does not expressly rate disability at the ankle or the hip. One might infer he meant a rating at the ankle in his second report, because he referred to a subtalar fusion. An injured worker with ankylosis at the subtalar joint with loss of eversion and inversion is entitled to a minimum rating for permanent disability at fifteen percent compared to amputation of the foot at the ankle. Wis. Adm. Code § 80.32(5). Ankylosis of the whole ankle joint with loss of dorsi and plantar flexion results in a minimum permanent partial disability rating of 30 percent at the ankle. In this case, even Dr. Schwab agrees that the applicant has only subtalar ankylosis, rather than ankylosis of the whole ankle. He also agrees the applicant has good plantar and dorsi flexion.

On the other hand, the record also supports going over the minimum rating of fifteen percent for subtalar ankylosis in this case. The applicant has complaints of foot pain over the arch, over the peroneal tendons, and over the lateal os calcis. See Schwab's notes for January 24, 1995 and April 4, 1996. He has also had surgery with a fixation device implanted. Absent a more straightforward rating from IME Stiehl, the commission concludes the ALJ properly credited Dr. Schwab's rating of permanent partial disability at 37 percent compared to amputation at the ankle.

b. The closed cranial injury.

Treating physiatrist Gerda Klingbeil, M.D., also rated a five percent rating for loss of cognitive function as a result of the left epidural hematoma from the head injury, which resulted in mild visual spatial processing speed reduction. Exhibit C. Along the same lines Terrence Young, Psy.D. rated a five percent permanent partial disability to the body as a whole secondary to a closed cranial trauma from the work injury. Exhibit E. The respondent's IME psychologist, Kerry Hamsher, Ph.D., found no cognitive disability.

The ALJ found Drs. Klingbeil and Young's rating for cognitive disability more persuasive than that of IME Hamsher. The respondent appeals this rating as well. In its initial brief, the respondent argued the legal point that no functional unscheduled permanent partial disability may be awarded in the absence of some showing of loss of earning capacity, and that there was none in this case. In its reply brief, the respondent also asserts the more factual argument that the record did not support a finding of a five percent rating for cognitive disability.

The record establishes that the applicant suffered a brain injury as a result of the obvious head trauma after a thirty foot fall, causing also a cranial hematoma and bleeding into his ear canals. Treating psychologist Young opined that the injury resulted in disinhibition and impaired judgment and insight, as well as occasional memory deficits. These findings were all consistent with a status post cortical encephalopathy involving the orbital frontal and right medial temporal regions. Dr. Young's conclusions are supported by physiatrist Klingbeil's mention of memory and concentration disability. In addition, of course, Dr. Klingbeil notes the mild visual spatial processing speed reduction from the work injury.

IME psychologist Hamsher does acknowledge a permanent partial impairment in visuoperception as a result of the head injury. Because Dr. Hamsher did not see any effect of that problem on daily activities, or social or most occupational demands, however, the doctor rated no permanent partial disability for it under the AMA standards. The doctor also acknowledged the applicant's "attentional weakness," but attributed it to a constitutional characteristic unaffected by his head injury. Exhibit 3, page 12.

The ALJ properly credited the reports of Drs. Klingbeil and Young over that of Dr. Hamsher. Drs. Klingbeil and Young both rated the cognitive disability at five percent to the whole body, citing difficulties with memory and concentration and visual perceptive deficiency. IME psychologist Hamsher admits to a visuoperceptive disability from the head injury, but declined to rate disability for it. Dr. Hamsher also acknowledged the applicant's "attentional weakness," but attributed it to his constitutional make-up rather than his 30-foot fall and resulting serious head injury, a conclusion the commission cannot credit.

Beyond the question of which medical expert is more credible, the employer raises the legal argument that an award for unscheduled PPD, such as from a head injury, must be based on an assessment of loss of earning capacity not on simple functional disability. In support of its legal argument, the employer cites Bituminous Casualty Co. v. ILHR Department,
97 Wis. 2d 730 (Ct. App., 1979). (4)

Sometime after Bituminous Casualty was decided, however, Wis. Stat. § 102.44(6) was enacted. That section assumes that a worker with an unscheduled injury will get an award for permanent partial disability based on loss of earning capacity, under certain circumstances. It also contains language providing:

"102.44(6)(h) In all cases of [unscheduled] permanent partial disability . . . whether or not the employe has returned to work, the permanent partial disability shall not be rated at less than that imposed by the physical limitations."

Based on the enactment of Wis. Stat. § 102.44(6)(h), the commission has consistently held that permanent partial disability must be paid for functional disability in cases of unscheduled disability regardless of loss of earning capacity, (5) an interpretation accepted on judicial review by the court of appeals. (6) In sum, the commission concludes the ALJ properly awarded permanent partial disability at five percent to the body as a whole for cognitive deficits from the closed cranial injury.

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Footnotes:

(1)( Back ) Also referred to as "os callisis fracture," a/k/a "comminuted calcaneus fracture."

(2)( Back ) "Ankylosis" means immobility of a joint due to disease or surgical procedure. "Talar" refers to the talus, the highest of the tarsal (ankle) bones which joins with the tibia and fibula to form the ankle joint. A subtalar ankylosis, then, is an immobility in the bones of the ankle beneath the area where the tibia and fibula join the talus.

(3)( Back ) Although two of four medical dictionaries the commission consulted listed "foot" as secondary meaning for lower extremity. Dorland's Illustrated Medical Dictionary (27th ed., 1984) defines "extremity" as an arm or leg, sometimes specifically applied to the hand or foot. As the applicant points out in his brief, Steadman's Medical Dictionary (1976) defines "extremity" to mean "extremitas" which in turn means a limb, or one of the arms or legs." The Merriam Webster Medical Desk Dictionary (1996), defines extremity as a limb of the body, especially a hand or foot. The Attorney's Dictionary of Medicine (MB, 1998) defines "extremity" as "a limb, as the arm or leg," and notes that the lower extremity includes the thigh, leg ankle and foot. The respondent argues, weakly, that Wis. Adm. Code § DWD 80.32(2), which refers to amputations in the upper and lower extremities, establishes that the term lower extremity means the foot. However, the code provision simply discusses all amputations at various locations in the arm or leg under the general heading of "Amputation, upper or lower extremity." Stated another way, an amputation of a foot at the ankle is an amputation in a lower extremity because the foot is part of the lower extremity or leg. It does not follow that the unmodified term "lower extremity" means foot rather than leg, or that amputation of a foot is an amputation of a lower extremity. If anything, the code provision seems to use the more general definition of extremity to mean the entire limb.

(4)( Back ) In that case, an insurer conceded 2 percent functional permanent partial disability. A hearing was later held on additional permanent disability, and the applicant brought a vocational expert. He rated permanent partial disability on a vocational basis for loss of earning capacity at 50 percent. At the hearing, the insurer wanted a continuance to get its own expert. The ALJ denied the insurer's request, and went ahead and awarded a fifty percent permanent partial disability LOEC. The circuit court reversed and remanded for further hearing, and the court of appeals affirmed that decision. Along the way, however, the court of appeals noted that an award for unscheduled permanent partial disability from an industrial accident must be based on some kind of prediction as to the impairment of earning capacity, citing some prior supreme court cases. Bituminous Coal, supra, at 97 Wis. 2d 736.

(5)( Back ) Mueller v. Capitol Hustings, WC case no. 89-028689 (LIRC, July 15, 1991) and Gonzalez v. School District of Milwaukee, WC case no. 90073468 (LIRC, September 9, 1996).

(6)( Back ) Mallet v. LIRC, case no. 85-0929 (Wis. Ct. App., January 10, 1986). See also Neal & Danas, Workers Compensation Handbook, § 5.24 (4th ed., 1997).