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

DENNIS EDWARD KERN, Applicant

SARATOGA LIQUOR COMPANY INC, Employer

TOWER INSURANCE COMPANY INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-050129

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 2, 1998. Respondents submitted and answer to the petition and briefs were submitted by the parties. A compensable low back injury was conceded as having occurred on September 9, 1996. At issue are whether the applicant also sustained a cervical injury on September 9, 1996, as well as nature and extent of disability and liability for medical expense, both for the low back injury and the alleged cervical injury.

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 her Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is February 8, 1960, has been employed since 1981 as a stock person for the employer. He loaded and unloaded trucks. On September 9, 1996, he was moving a case of champagne from one pallet to another when he experienced severe back pain. He did not finish his shift and sought treatment that day from two chiropractors from Superior Chiropractic Clinic, Dr. Gregory Luke and Dr. Carl Miller. Based on the medical record review submitted by Dr. Stephen Barron, an orthopedic surgeon, when the applicant treated on September 9, 1996, it was felt that he had lumbago, displacement of unspecified intervertebral disc(s), and a closed dislocation of an unspecified cervical vertebra.

Dr. Luke became the primary treating chiropractor. In a report dated December 10, 1997, he indicated that as the applicant's acute low back pain subsided, he became aware of cervical pain. Dr. Luke noted that this neck pain gradually progressed and was made worse due to the applicant's forklift driving duties, which he assumed after returning to light duty on a part-time basis, as of September 14, 1996. Dr. Luke has continued to treat the applicant.

On November 27, 1996, a neurologist, Dr. R. E. Freeman, examined the applicant at Dr. Luke's request. Dr. Freeman noted that at that time the applicant's primary concern was neck pain. He ordered a cervical spine MRI which showed degenerative changes and a small, paracentral disc herniation at C4-5 with potential mild impingement of the exiting right C5 nerve root. He diagnosed cervical degenerative disc disease with myofascial pain syndrome and recommended conservative treatment including heat therapy, traction, and medications. The third paragraph of Dr. Feeman's clinic note of November 27, 1996, indicates that he believed the applicant's neck problem first manifested itself sometime after September 9, 1996, while the applicant was recuperating from his low back symptoms.

On February 3, 1997, the applicant fell on some steps outside of work and injured his neck, but Dr. Luke credibly opined that this was just a temporary aggravation of the same tissues injured on September 9, 1996. On April 28, 1997, the applicant saw Dr. Freeman and indicated that about one month previously, he had awakened feeling dizzy and with neck pain. He told Dr. Freeman at that time that his back pain was "alright" (sic), but that he continued to have intermittent neck pain.

At the insurer's request, Dr. Steven Jackson, a chiropractor, examined the applicant on March 13, 1997. Dr. Jackson diagnosed lumbosacral ligamentous strain/sprain associated with work activities, and degenerative joint disease at multiple levels of the cervical spine. Dr. Jackson opined that the applicant's current treatment from Dr. Luke was related to the work injury, but that such treatment should be stopped and there should be an immediate transition to active rehabilitation. Dr. Jackson indicated a healing plateau would be reached by March 27, 1997, with no permanent disability.

At the employer's request, Dr. Barron examined the applicant on June 12, 1998. Dr. Barron opined that the applicant sustained sprains of his cervical and lumbar spine on September 9, 1996, but that his primary current problem was symptom magnification. He concurred with Dr. Jackson's date for a healing plateau, although he mistakenly understood that date to be two weeks after March 27, 1997. Dr. Jackson had actually indicated healing would be reached two weeks after the date of his exam of March 13, 1997, or March 27, 1997.

On December 10, 1997, Dr. Luke assessed permanent partial disability of 10 percent to the applicant's cervical spine, and 10 percent to his lumbar spine. His diagnoses were: a marked subluxation complex of the low back spinal structures, accompanied by sprain/strain, radiculitis, and involvement of the corresponding lumbosacral articulations; a subluxation complex of the cervical region with resultant pain radiating to the skull via the cervical plexus; cervicobrachial syndrome complicated by spondylosis; and cervical disc syndrome.

The commission consulted with the administrative law judge, who indicated that she was left with a legitimate doubt that the applicant sustained any neck injury on September 9, 1996. She found that he had given conflicting statements regarding the onset of neck pain, and that he made no mention of neck pain on the date of injury.

However, examination of Dr. Barron's medical record review plainly demonstrates that the applicant did relate cervical (neck) complaints when he saw at least one of the chiropractors on September 9, 1996. Dr. Freeman's clinic note of November 27, 1996, does indicate that the onset of neck symptoms occurred at some unspecified time subsequent to September 9, 1996, thus conflicting with the applicant's version of immediate onset of neck symptoms. However, the applicant has consistently and credibly indicated that he experienced neck symptoms beginning on September 9, 1996, and this is verified by Dr. Barron's record review. It is inferred that Dr. Freeman's clinic note reflects his understanding of the fact that the applicant's cervical symptoms increased in severity subsequent to the date of injury, but also reflects his misunderstanding that there were no cervical symptoms on the date of injury. Dr. Freeman's clinic note of April 28, 1997, to the effect that the applicant awoke with neck pain "one plus month ago," is vague, and is inferred by the commission to refer to a flare-up or intensification of the neck pain. Dr. Freeman's clinic note recounts that the applicant's neck pain is intermittent. It is also clear that the applicant's primary concern when he saw Dr. Freeman on November 27, 1996, 5 months prior to April 28, 1997, was neck pain.

In addition, it must be noted that even Dr. Barron, whose medical opinion in this matter was solicited by the respondents, opined that the applicant sustained a cervical sprain at the time of the work incident of September 9, 1996. Given all the evidence, the commission finds that opinion to be credible. The commission also finds credible Dr. Barron's opinion that the applicant sustained a lumbosacral sprain in the same work incident, but that neither sprain resulted in any permanent disability. Dr. Luke's diagnoses in support of his permanent partial disability ratings refer to subluxations and syndromes with no credible medical explanation of what permanent change(s) these alleged conditions have caused to the applicant's lumbosacral or cervical spine. Dr. Freeman did not offer an opinion that there was any work-related permanent disability, nor did Dr. Miller.

The administrative law judge did not allow any temporary disability subsequent to the conceded ending date of April 13, 1997. She indicated to the commission that she believed Dr. Luke had overtreated the applicant with chiropractic manipulations which were not a necessary consequence of the work injury. However, the applicant missed work and continued to receive this chiropractic treatment in good faith reliance on Dr. Luke's opinion. Accordingly, temporary partial disability and additional medical expense incurred up to the date Dr. Luke assessed maximum medical improvement, October 15, 1997, are payable regardless of their reasonableness or necessity. Spencer v. ILHR Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972).

Dr. Luke failed to credibly relate his chiropractic treatment administered subsequent to October 15, 1997, to the effects of either work injury sustained on September 9, 1996. He found that the applicant had reached maximum medical improvement by October 15, 1997, and Dr. Barron's opinion that there was no permanent disability has been accepted as credible. Accordingly, any treatment expense incurred subsequent to October 15, 1997, is found to have been attributable to a condition or conditions unrelated to either the cervical injury or the lumbosacral injury sustained on September 9, 1996.

The record does not reveal the amount of wages lost during the period of temporary partial disability between April 13, 1997 and October 15, 1997, and accordingly the order will be left interlocutory with respect to the amount of temporary disability due for that period. Within 30 days from the date of this order, the employer should provide the insurance carrier with a summary of the amount of full-time wages lost during each week of this period, which would allow the insurance carrier to compute the temporary disability award and make immediate payment.

Reasonably required medical expenses are due to St. Mary's Hospital of Superior, Wisconsin in the amount of eight hundred forty dollars; and to Superior Neurosurgery, Ltd., also of Superior, Wisconsin, in the amount of one hundred six dollars and sixty-five cents. These represent medical expenses incurred up to October 15, 1997. Claims for unpaid balances to the Center for Muscle and Joint Therapy, Inc. and Supreme Courts and Health Spa are rejected because they represent charges for medical services provided after October 15, 1997, and were thus unrelated to either work injury. Corporate Benefit Services, a non-industrial insurer, may be due reimbursement for expenses it paid for medical services provided by the Center for Muscle and Joint Therapy, Inc. prior to October 15, 1997. But the exact amounts of such services, less previous payments, cannot be discerned from the invoices submitted at Applicant's Exhibit C. Therefore, the order will also be left interlocutory with respect to this particular issue. If, within 30 days from the date of this order, the applicant provides an explanation and documentation to Tower Insurance Company of reimbursement amounts due Corporate Benefit Services for medical services provided up to October 15, 1997, such amounts shall be reimbursed. Finally, medical expense claims were submitted for services provided by Northern CDI of Minneapolis, Minnesota ($857.72) and Duluth Radiologists of Duluth, Minnesota ($252.96), but the invoices do not reveal the dates the services were provided. Accordingly, the order will also be left interlocutory with respect to these two expense claims. The applicant will also have 30 days from the date of this order to submit documentation of these claims to Tower Insurance Company, for payment, assuming they are claims for services provided prior to October 16, 1997.

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 St. Mary's Hospital of Superior the amount of eight hundred forty dollars ($840.00); and to Superior Neurosurgery, Ltd., the amount of one hundred six dollars and sixty-five cents ($106.65). Jurisdiction is reserved only with respect to specific issues as detailed in the above findings.

Dated and mailed May 18, 1999
kernden.wrr : 185 : 1 ND § 5.50

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY BOAD S SWANSON
MARCOVICH COCHRANE MILLIKEN & SWANSON

ATTORNEY MICHAEL F DURST
WEIBY MAKI DURST LEDIN BICK & LEHR SC

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