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

ROY SHAW, Applicant

COUNTRYSIDE HIDES INC, Employer

FIREMANS FUND INS CO OF WIS, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995015477

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 24, 1998. The respondents submitted an answer to the petition and briefs were submitted by the parties. A T12 compression fracture was conceded as having occurred as a work injury on February 22, 1995. At issue are whether the applicant sustained cervical disc herniations on February 22, 1995, nature and extent of disability, and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding his credibility and demeanor impressions of the applicant, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is November 18, 1958, was employed as an over- the-road truck driver when involved in an accident on February 22, 1995. He was traveling on Highway 41 when his semi went off the shoulder of the road and into the median area, where it traveled for about 150 feet before striking a small culvert and becoming airborne. The tractor/trailer went airborne for about 51 feet before landing nose first into the ditch. The applicant was wearing a seat belt, but he did chip his teeth on the steering wheel or some other object of which he is uncertain.

The applicant was taken to Saint Agnes Hospital emergency room where he was examined by Dr. Michael Mannebach, with a complaint of marked low back pain. He denied any pain, numbness, or tingling in his arms or legs. Dr. Mannebach indicated the neck was supple without tenderness or appreciable adenopathy. An x-ray and CT scan revealed a compression fracture of T12. There was no x-ray or scan taken of the applicant's neck. Dr. Mannebach fitted the applicant with a Jewett brace which immobilized him from his neck to his hips. Dr. Mannebach released him from the hospital on February 26, 1995.

Dr. Mannebach continued to follow the applicant's condition. On March 6, 1995, he recorded that the applicant was tolerating the Jewett brace well and had no upper or lower extremity paresthesias. On April 19, 1995, he recorded that the applicant's back was feeling better and better, but that he might go for days without pain and all of a sudden have a day where he needed pain medication on a regular basis. There was no radiation of pain down the legs or arms. A similar exam was recorded on May 17, 1995, and on that date Dr. Mannebach advised the applicant to begin weaning himself from the Jewett brace and to start physical therapy.

On May 25, 1995, the applicant was initially evaluated for physical therapy at Berlin Hospital. The applicant told the therapist that since the accident he had noted paresthesias in both his upper and lower extremities, on an intermittent basis. But he had no paresthesias on May 25, 1995. On June 5, 1995, the therapist recorded complaints of neck pain, as well as mid-and-low-back and right shoulder pain. Physical therapy continued. On July 19, 1995, Dr. Mannebach recorded a complaint of mid-and-upper-back and right shoulder pain. Dr. Mannebach noted that associated with this was pain radiating into both legs and numbness in the inner aspect of the legs. A clinic note dated August 9, 1995, indicates that the applicant had experienced good relief from his neck and back pain by taking Ultram, and denied any further radiation of pain or paresthesias. Dr. Mannebach returned the applicant to light duty on August 14, 1995.

On August 17, 1995, the applicant telephoned Dr. Mannebach and indicated that while driving, his arms and legs became numb and he felt unsteady behind the wheel. Dr. Mannebach recommended no over-the-road driving but allowed restricted work in the shipping yard. On August 24, 1995, the applicant called and was pain free. He was tolerating light duty work well. On September 6, 1995, he again saw Dr. Mannebach and reported that he had good days and bad days. Dr. Mannebach opined that the applicant would always have intermittent aches and pains but found a healing plateau. On November 27, 1995, the applicant reported chronic mid-back discomfort which increased with driving, but denied any upper or lower extremity symptoms. Dr. Mannebach continued to recommend work within restrictions.

The applicant did not return to Dr. Mannebach until August 28, 1997, when he complained of upper and lower extremity numbness and tingling and chronic low back and neck pain. Dr. Mannebach recorded the applicant's complaints that for the previous three or four months there had been chronic numbness, tingling, and buzzing in both arms from the elbow to the hand. The applicant also reported chronic neck pain for the previous couple of months, as well as numbness and weakness in his legs also for a couple of months. Dr. Mannebach recommended cervical and lumbar MRIs.

Dr. Mannebach referred the applicant to Dr. Robert F. Mann, who ordered a cervical MRI on January 29, 1998. This showed disc herniations at C4-5 and C5- 6, and on February 25, 1998, Dr. Mann performed disc excisions and fusions at those two levels. The surgery resulted in substantial improvement of the applicant's symptoms. Dr. Mann completed a WC-16-B dated March 23, 1998, in which he indicated that he had reviewed all the applicant's medical records dating from the treatment at Saint Agnes Hospital, and his opinion was that the accident of February 2, 1995, caused the disc herniations. He opined that it was too early to determine the extent of permanency. On June 24, 1998, Dr. Mann completed another WC-16-B in which he reiterated his opinion of causation but this time assessed 10 percent permanent partial disability.

At the insurer's request, Dr. Stephen Robbins examined the applicant and submitted a written evaluation dated May 5, 1998. He acknowledged that the work incident had caused a compression fracture at T12. He opined that since the applicant had no episode of neck pain initially after his injury, and no complaints of neck pain in the medical records until five months after the injury, he did not believe the applicant's cervical herniations were attributable to the work injury. He opined that these herniations were secondary to preexisting degenerative disc disease consistent with the normal aging process.

The administrative law judge indicated in his consultation with the commission that he did not find the applicant to have been credible with regard to when he first experienced onset of neck and upper extremity symptoms, citing the inconsistencies between his testimony and the medical records regarding such onset. He also described the applicant's testimony at the hearing as being too pat. The commission acknowledges that the applicant's testimony that such symptoms began on the date of injury, or within one week thereafter, was inconsistent with the medical records. The first specific mention in those records of upper-extremity paresthesias was on May 25, 1995, and the first specific mention of neck pain was on June 5, 1995. However, at the hearing, the applicant was testifying to events which had occurred over three years previously. If the applicant were deliberately attempting to lie about the onset of the symptoms, the commission finds it unlikely that he would have testified that he had numbness in his arms from the date of the accident and shortly thereafter have testified that the numbness and tingling started the week after he was released from the hospital. The commission infers that the applicant was merely a poor historian when testifying at the hearing, rather than someone attempting to shade the truth.

The commission also finds that it was significant that the applicant's neck and upper extremity complaints began to be recorded in the medical records during the same period he was taken off the Jewett brace, which would have restricted the applicant's neck and upper body movements. Furthermore, the accident which the applicant was involved in on February 22, 1995, resulted in a significant enough impact to his spine to result in a T12 compression fracture. This fact, together with the fact that the applicant had no preexisting cervical symptoms, and the fact that there was no evidence of any other significant injury to the applicant's spine, lends credence to Dr. Mann's opinion that the work incident caused the disc herniations identified and excised in the surgery of February 25, 1998.

Finally, the commission specifically finds incredible the medical opinion of Dr. Robbins, to the effect that the applicant's cervical disc herniations were secondary to the degenerative disc disease changes that occur as a result of the normal aging process. The applicant was 36 years old on the date of injury, and 39 years old when the MRI was finally performed which revealed the cervical disc herniations. He had no preexisting symptomatology. It is not normal for a 36- year-old man to suddenly experience cervical symptoms which are ultimately diagnosed as cervical disc herniations. It is also not credible that the symptom onset was attributable to a normal degenerative process which fortuitously coincided with the months subsequent to the work injury of February 22, 1995, especially given the nature of that work incident.

For all these reasons, Dr. Mann's medical opinion with regard to work causation of the applicant's cervical disc herniations and resulting surgery is accepted as credible. Pursuant to Dr. Mann's opinion and the applicant's work record, he was temporarily totally disabled from February 10, 1998 through April 5, 1998, and temporarily partially disabled from April 13, 1998 through May 3, 1998. The applicable temporary total disability rate is $266.67 per week, which for the applicable period of exactly eight weeks totals $2,133.36. The applicant earned $238, $322, and $362 in wages, respectively, during the three weeks between April 13, 1998 and May 3, 1998. This results in weekly temporary partial disability awards of $108, $52, and $25.33, respectively. A 20 percent attorney's fee will be subtracted from the awards for temporary total and temporary partial disability.

With regard to permanency, Dr. Mann credibly assessed ten percent permanent partial disability to the applicant's cervical spine for the two-level laminectomy and fusion. Dr. Robbins concurred in this permanent partial disability assessment. Dr. Robbins also assessed ten percent permanent partial disability to the applicant's T12 compression fracture, contrary to Dr. Mannebach's assessment of seven percent permanent partial disability for that injury. While there is minimal evidence in the record to differentiate between these opposing assessments, given the fact that the higher assessment was made by the independent medical examiner, and that respondents did not dispute this assessment on petition, Dr. Robbins' assessment of ten percent permanent partial disability for the T12 compression fracture is accepted as credible. The applicant is therefore entitled to 100 weeks of compensation for each of the two injuries to his spine, for a total of 200 weeks of compensation at the applicable rate of $164 per week. A multiple injury variation, pursuant to Wis. Stat. § 102.53, is payable in the amount of an additional 20 percent, or 20 weeks of compensation.

The total award for permanent partial disability amounts to two hundred twenty weeks at $164 per week. The one hundred weeks of permanent partial disability attributable to the compression fracture injury have all accrued. The record before the commission indicates that the insurance carrier previously paid the equivalent of 85 weeks of permanent partial disability ($13,940), which would leave 15 weeks, or $2,460, remaining due. This remaining amount ($2,460 less a 20 percent attorney's fee) will be ordered paid with the understanding that if the insurance carrier paid this amount in accordance with the administrative law judge's decision, the commission's order for payment of it has been satisfied.

Of the remaining 120 weeks of permanent partial disability, 48 weeks and four days will have accrued as of April 8, 1999. The applicant's attorney is entitled to a 20 percent fee, which after deduction of the interest credit results in a present value fee of $3,825.74. The net accrued amount of permanent partial disability due the applicant for the cervical injury is $6,385.07. The net unaccrued amount of permanent partial disability for this injury is $9,358.93, which will be payable in monthly installments of $710.67.

Reasonably required medical expenses are payable as follows: To Dr. Robert Mann the sum of $9,186.39, of which $4,518.18 was paid by Blue Cross/Blue Shield (BCBS); to Martin Chiropractic the sum of $761.50, of which $169.74 was paid by BCBS; to Fond du Lac Regional Clinic the sum of $132, of which $79.20 was paid by BCBS; to St. Agnes Hospital the sum of $1,264, of which $1,011.20 was paid by BCBS; to Fond du Lac Radiology the sum of $407.20, of which $82.92 was paid by BCBS; to Mercy Medical Center the sum of $14,147.78; to Oshkosh Anesthesia the sum of $1,736; to Oshkosh Pathology the sum of $70, of which $55.16 was paid by BCBS; and to the applicant as medical mileage expense the sum of $359.76. Claim was also made for $205 due Emergency Medical Care, but there was no invoice or other evidence to support payment of this charge, which will therefore be denied.

In accordance with the medical opinions of Dr. Mannebach and Dr. Mann, jurisdiction will be reserved with respect to the possibility of additional medical expense and/or disability.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation for temporary disability and accrued permanent partial disability the total amount of Ten thousand two hundred eight dollars and two cents ($10,208.02); to applicant's attorney, Scott Woldt, fees in the total amount of Four thousand seven hundred eighty-one dollars and forty-eight cents ($4,781.48); to Dr. Robert Mann the sum of Four thousand six hundred sixty-eight dollars and twenty-one cents ($4,668.21); to Martin Chiropractic the sum of Five hundred ninety-one dollars and seventy-six cents ($591.76); to Fond du Lac Regional Clinic the sum of Fifty-two dollars and eighty cents ($52.80); to St. Agnes Hospital the sum of Two hundred fifty-two dollars and eighty cents ($252.80); to Fond du Lac Radiology the sum of Three hundred twenty-four dollars and twenty-eight cents ($324.28); to Mercy Medical Center the sum of Fourteen thousand one hundred forty-seven dollars and seventy-eight cents ($14,147.78); to Oshkosh Anesthesia the sum One thousand seven hundred thirty-six dollars ($1,736); to Oshkosh Pathology the sum of Fourteen dollars and eighty-four cents ($14.84); and to the applicant as mileage expense the sum of Three hundred fifty-nine dollars and seventy-six cents ($359.76).

In addition, beginning May 8, 1999, and continuing monthly thereafter, the employer or its insurance carrier shall pay to the applicant the sum of Seven hundred ten dollars and sixty-seven cents ($710.67), until the unaccrued permanent partial disability in the amount of Nine thousand three hundred fifty- eight dollars and ninety-three cents ($9,358.93) has been paid.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 13, 1999
shawro.wrr : 185 : 3 ND § 5.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

PAMELA I. ANDERSON, COMMISSIONER, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe's neck problems were not caused by the accident of February 22, 1995. Therefore, I adopt his decision as my own.

________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY SCOTT C WOLDT
CURTIS & NEAL LAW OFFICE

ATTORNEY RICHARD T MUELLER
MUELLER GOSS & POSSI SC

Appealed to Circuit Court.  Affirmed  December 14, 1999.

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