STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
GREGORIO ARISTA REA, Applicant
KENOSHA BEEF INTERNATIONAL, Employer
TRANSPORTATION INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1990070904
The applicant submitted a petition for commission review and the respondents submitted an answer and cross-petition for review of the administrative law judge's Findings and Interlocutory Order issued in this matter on August 21, 1998. At issue are whether the applicant sustained a low back injury at work on September 15, 1995, and if so, 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 the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant was born in Mexico in 1959 and speaks Spanish. He is an undocumented alien. He began his employment as a general laborer for the employer in November 1989, and in August 1990, he slipped at work and hit his back against a table. He received conservative medical treatment including epidural steroid injections. A CT scan was performed on September 25, 1990, which revealed mild central disc bulging at L4-5, and diffuse disc bulging at L5-S1 with lateral posterior protrusion on the left side. Another CT scan was performed on January 11, 1991, and it showed the same anomalies. The applicant received temporary total disability for a period between October 1990 and January 1991, and was also awarded three percent permanent functional disability.
On August 22, 1992, the applicant was seen at Kenosha Hospital for lower back pain secondary to a lifting incident at work the previous day. The diagnosis was acute exacerbation of chronic lumbar disc disease. Another lumbar CT scan was performed on September 2, 1992, with the same anomalies at L4-5 and L5-S1.
On August 14, 1994, the applicant was seen at Kenosha Hospital for back pain radiating into the left leg. Dr. H. Labarge recorded that the applicant's lower back pain had worsened over the previous five or six days, but he had experienced intermittent problems over the previous four years since the 1990 work injury. Dr. Labarge prescribed medication and diagnosed left sciatica. The applicant received epidural steroid injections in October and November of 1994.
On September 15, 1995, the applicant was pulling a stack of flattened boxes at work when he felt "thunders" in his back with pain radiating down his left leg. He was seen at the emergency room and began receiving treatment with Dr. J. Christopher Noonan, whom he had begun to see for his back problem in December 1994. Dr. Noonan prescribed medication and physical therapy/work hardening. The applicant was released to light work (20 pounds lifting) on September 26, 1995, and returned to work on that basis. However, he was assigned duties which sometimes exceeded his restrictions. He was released by Dr. Noonan for full duties on December 4, 1995, but could not return to work for the employer because he and numerous other employes had been terminated on November 27, 1995. The Immigration and Naturalization Service had determined that these employes were undocumented aliens who could not be legally employed in the United States.
The applicant's back condition did not improve and Dr. Noonan ordered a lumbar MRI on January 3, 1996. The radiologist read this as showing central disc bulging eccentric to the left at L5-S1 which appeared to encroach upon the left nerve root. This was seen as essentially unchanged from the 1992 CT scan. Central disc bulging was seen at L4-5, also unchanged from 1992. The applicant's problems continued and on April 10, 1996, Dr. Noonan performed a left L5-S1 microdiscectomy. This initially resulted in improvement of the applicant's symptoms, but the severity of the applicant's pain returned and on January 29, 1997, Dr. Noonan performed a laminotomy with repeat discectomy and posterolateral fusion at L5-S1. This surgery was also unsuccessful in relieving the applicant's back/leg symptoms.
Dr. Noonan completed a WC-16-B on December 22, 1997, in which he found aggravation of a preexisting condition beyond normal progression due to the work injury of September 15, 1995. He assessed 12 percent permanent partial disability.
On June 3, 1997, Dr. Stephen Robbins examined the applicant at the employer's request. In his report dated June 10, 1997, Dr. Robbins opined that the 1995 work incident constituted a temporary aggravation of the applicant's condition of discogenic low back pain with some radiculitis. Dr. Robbins further opined that a healing plateau was reached in December 1995, when the applicant was released to full duties; that the surgeries were a response to subjective complaints and degenerative disc conditions which were not accelerated by industrial exposure; and that no permanent disability should be attributed to the work injury of September 15, 1995. He did assess a 10 percent permanent functional disability to the lumbar spine, unrelated to the work injury, and indicated that a healing plateau should be reached from the January 1997 surgery by January 1998.
The commission and the administrative law judge both found credible Dr. Noonan's medical opinion that the work injury of September 15, 1995, aggravated, accelerated, and precipitated the applicant's preexisting back condition beyond normal progression. The applicant's description of a significant injury to his low back on September 15, 1995, with pain radiating down his left leg, was credible. When Dr. Noonan released the applicant for full duties on December 4, 1995, he noted that this release was based on the recommendation of the applicant having completed a work hardening program successfully, but that the applicant should return in three weeks for a re-evaluation. When the applicant returned on December 21, 1995, he had no improvement with his lumbar radiculopathy, and Dr. Noonan recommended the MRI which was performed on January 3, 1996. The applicant's condition did not improve and he accepted Dr. Noonan's recommendation of surgery in good faith. Thus, the applicant's back condition changed dramatically and permanently as a result of the work injury of September 15, 1995.
The applicant claims temporary total disability from November 27, 1995 to December 5, 1995, and continuing from April 9, 1996 through the date of hearing (February 3, 1998). The employer resists payment of any temporary disability benefits based on the fact that it had work available for the applicant, but he could not perform it because of his illegal alien status. In Brakebush Brothers, Inc. v. LIRC, 110 Wis. 2d 623, 549 N.W.2d 287 (Court of Appeals 1996), the court upheld the commission's finding that the Worker's Compensation Act contains no provision for terminating compensation when an employe is terminated, so long as the employe is still disabled. Id. at 634. The court also upheld the commission's finding that even a termination for good cause does not act to deprive a disabled former employe from receiving worker's compensation for disability which is the result of a work injury. Id. Neither is there a provision in the Act which provides for the withholding of temporary disability benefits to a disabled employe whose ability to work is compromised by an illegal alien status; nor, from an employer's perspective, is there any practical difference between an individual who has been terminated for good cause and one who has been terminated due to an illegal alien status. Neither of such individuals will be rehired by the employer.
The employer might argue that an illegal alien occupies a different position, because he is legally precluded from obtaining employment in this country until he rectifies his immigration status. However, this is an equitable argument which would be properly presented to the Wisconsin Legislature, because there is no provision in the Act which would allow the withholding of temporary disability benefits due to illegal alien status. In this context it is significant to note, again from a practical standpoint, that illegal aliens routinely find new employment in this country after losing a job. In fact, the applicant found employment as a restaurant cook on or about December 21, 1995, and continued in that employment until sometime in March of 1996. (1) The employer's argument that temporary disability should be denied due to the applicant's illegal alien status must be rejected.
The applicant's claim for temporary total disability from November 27, 1995 to December 5, 1995, is supported by Dr. Noonan's clinic records and medical opinion. Temporary total disability beginning on April 9, 1996, is credibly attributable to the surgery which was performed on April 10, 1996. The administrative law judge ended this period of temporary total disability on May 27, 1996, based on "no significant treatment after that date," prior to an office visit to Dr. Noonan on September 27, 1996. However, Dr. Noonan also examined and treated the applicant on June 24, 1996, July 30, 1996, and September 10, 1996. A note from Dr. Noonan dated July 2, 1996, also indicates that he planned to consult with a radiologist concerning the applicant's MRI. Dr. Noonan regularly indicated that the applicant remained on restricted duties.
The administrative law judge further found temporary total disability attributable to the applicant's second surgery from January 28, 1997 to March 14, 1997, based on Dr. Noonan's work capacity form dated March 5, 1997, which the administrative law judge found assessed permanent partial disability and established the applicant's permanent restrictions. However, the physical capacity worksheet of March 5, 1997, does not assess permanent partial disability. In fact, Dr. Noonan wrote on the form that the applicant was "presently recovering" from his back surgery of January 29, 1997. Also, the restrictions given on the form dated March 5, 1997, are significantly more severe than those Dr. Noonan gave in an identical form completed on October 6, 1997.
Dr. Noonan completed a WC-16-B dated December 22, 1997, in which he indicated the applicant was released to sedentary work on March 14, 1997, light duty on June 28, 1997, and that he was unable to determine the date the applicant would be able to return to work subject only to permanent limitations. Dr. Noonan noted that the applicant was to have follow up with him but did not. There is an undated, return-to-work note signed by Dr. Noonan which released the applicant to light work as of September 30, 1997, and then the physical capacities worksheet dated October 6, 1997, which allowed lifting up to 50 pounds occasionally and 25 pounds frequently. Dr. Robbins opined that the applicant would not reach a healing plateau from the 1997 surgery until one year after it had taken place. Of course, he believed the surgery was not work related.
Given this record, the commission finds continuing temporary total disability from April 9, 1996 to October 6, 1997, the date Dr. Noonan completed the last physical capacities worksheet. There is no evidence that the applicant saw Dr. Noonan after June 27, 1997, but something prompted him to complete the worksheet on October 6, 1997, and Dr. Robbins' opinion makes it clear that a lengthy healing period was to be expected.
The applicant is therefore entitled to temporary total disability from November 27, 1995 to December 5, 1995 (both dates inclusive), for a period of one week and two days, at the applicable rate of $271.14 per week, for a total of $361.52. He is also entitled to temporary total disability from April 9, 1996 to October 6, 1997 (both dates inclusive), for a period of exactly 78 weeks, also at the applicable rate of $271.14 per week, for a total of $21,148.92. The insurance carrier previously paid $3,615.20 in temporary total disability, leaving a net amount due of $17,895.24. A 20 percent attorney's fee, plus $540.43 in costs, will be charged against this award.
Dr. Noonan assessed 12 percent permanent partial disability, while Dr. Robbins assessed permanent partial disability at 10 percent. Pursuant to Chapter DWD § 80.32(11) of the Wisconsin Admin. Code, the applicant is entitled to a minimum of 15 percent permanent partial disability for the surgical procedures he underwent. This is because he is entitled to a minimum five percent rating for the L5-S1 microdiscectomy performed on April 10, 1996, and a minimum of 10 percent permanent partial disability for the laminotomy and fusion procedure separately performed on January 29, 1997. However, the applicant was previously awarded three percent permanent partial disability for his low back in 1991, leaving a net award of 12 percent permanent partial disability. This results in a permanent partial disability award of 120 weeks of compensation at the applicable rate of $164 per week, for a total of $19,680. A present value attorney's fee is due against this award in the amount of $3,903.86, and accrued permanent partial disability is due the applicant in the amount of $10,758.40. The unaccrued permanent partial disability, totaling $4,985.60, will be payable in monthly installments as ordered below.
Reasonably required medical expenses are also allowed as follows: $703.74 to Kenosha Hospital and Medical Center; and $178.50 to Orthopaedic and Athletic Care Clinic of Kenosha. A $39 claim was submitted for an electrocardiogram performed on January 23, 1997, and this procedure may well have been preliminary to the applicant's surgery of January 29, 1997. However, there is no medical opinion in the record before the commission to verify the purpose of the electrocardiogram, and therefore the claim must be rejected. Also, the applicant submitted a bill for $188 for an office consultation with Dr. S. Jayaprakash, but the record contains no verification of what the purpose of such consultation was. Accordingly, that claim must also be dismissed.
The issue of loss of earning capacity was not raised in the application for hearing, nor tried at the hearing held on February 3, 1998, and this order will remain interlocutory with respect to that issue. Dr. Noonan indicated in his WC-16-B dated December 22, 1997, that it was "unknown" whether the applicant will require additional medical treatment for his back injury, but he would "probably not" require such treatment. Given the equivocal nature of this opinion, the order will also be left interlocutory with respect to the possibility to additional medical treatment and disability.
NOW THEREFORE, this:
INTERLOCUTORY ORDER
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the respondents shall pay to the applicant the sum of Twenty-four thousand five hundred thirty-four dollars and sixteen cents ($24,534.16); to the applicant's attorney, Daniel J. Kelley, fees in the amount of Seven thousand four hundred eighty-two dollars and ninety-one cents ($7,482.91), and costs in the amount of Five hundred forty dollars and forty-three cents ($540.43); to Kenosha Hospital and Medical Center the sum of Seven hundred three dollars and seventy-four cents ($703.74); and to Orthopaedic and Athletic Care Clinic of Kenosha the sum of One hundred seventy-eight dollars and fifty cents ($178.50).
Respondents shall also pay to the applicant the sum of Seven hundred ten dollars and sixty-seven cents ($710.67) beginning on June 3, 1999, and continuing monthly thereafter until the unaccrued permanent partial disability award is fully paid in the amount of Four thousand nine hundred eighty-five dollars and sixty cents ($4,985.60).
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed May 5, 1999
aristgr.wmd : 185 : 7 ND § 5.9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission's partial reversal of the administrative law judge's findings concerning temporary total disability was based solely on analysis of the medical opinions as explained in the commission's findings. The administrative law judge indicated that he based his findings in this regard on his analysis of the medical opinions rather than any credibility impressions of the applicant. The partial reversal of the administrative law judge's permanent partial disability award was based on Chapter DWD § 80.32(11), and the fact that the applicant had previously been awarded three percent permanent partial disability. The administrative law judge did not indicate that he believed the applicant was acting in bad faith when he received the medical treatment claimed in Exhibit F from Kenosha Hospital and the Orthopaedic and Athletic Care Clinic, and such treatment was shown to have been related to the work injury. Accordingly, it must be paid under Spencer v. ILHR Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972).
Finally, the issue of loss of earning capacity was not raised in the application for hearing, and was not tried at the hearing held on February 3, 1998. Accordingly, the administrative law judge should not have made a determination with regard to that issue.
cc: ATTORNEY DANIEL J KELLEY
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
ATTORNEY JAN M SCHROEDER
PETERSON JOHNSON & MURRAY SC
Appealed to Circuit Court. Affirmed March 6, 2000.
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Footnotes:
(1)( Back ) In addition, as noted in Luis Castro Mendoza v. Monmouth Recycling Corp., 288 N.J. Super. 240, 672 A.2d 221(1996): "Surely, the effect on the worker of his injury has nothing to do with his citizenship or immigration status. If his capacity to work has been diminished, that disability will continue whether his future employment is in this country or elsewhere." Id. at 224.