STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
SUSAN KEDING, Applicant
BURNETT COUNTY, Employer
FIREMANS FUND INSURANCE COMPANY OF WISCONSIN, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995064341
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, except that it makes the following modifications:
Delete the first paragraph beginning on page 15 of the ALJ's decision, and substitute:
"Ms. Keding also injured her neck and upper back from the fall at work, and sought treatment for that injury. Dr. Goellner noted muscle spasm, and was initially concerned about a cervical disc injury. However, by May and June 1997, Dr. Goellner felt that the applicant's neck was normal. Exhibit C. None of the doctors who offered expert medical testimony in this case rated permanent disability for the applicant's neck condition. It is therefore concluded that the applicant has healed the work injury to her neck and upper back without permanent disability."
2. Delete the second sentence beginning on page 16 of the ALJ's decision, and substitute:
"Consequently, DWD retains jurisdiction over any and all matters and claims surround the applicant's October 24, 1995 injury involving her low back."
ORDER
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed June 15, 1999
kedinsu.wmd : 101 : 5 ND § 10.3
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The applicant claims considerable disability and medical expense from an October 1995 work injury when she fell out of a chair at work. At the hearing and in its petition, the employer and the insurer (collectively, the respondent) asserted alternatively that (1) the applicant should be bound by an agreed-upon, but unsigned and unconfirmed, compromise agreement, (1) and (2) that the conceded, fall-from-the-chair injury did not cause the disability or medical expense claimed. In its briefs to the commission, the respondent asserts primarily that legitimate doubt exists about the nature and extent of the applicant's injury.
More specifically, the respondent points to the applicant's pre-existing disability. It notes that one treating doctor (DeBevec) opined the applicant recovered from the fall without disability. The respondent also notes that neither Dr. Goellner nor Dr. Denis explained why the applicant needed the fusion surgery if her condition was slowly improving, or how the MRI or x-rays showed increased injury or increased pathology.
However, the commission agrees that the ALJ properly credited the opinions of treating doctor Goellner and treating surgeon Denis. The mechanics of the injury, falling out of chair, seem entirely consistent with a permanent injury to the previously-fused area of the lumbar spine. Further, IME Warner and consulting doctor DeBevec suggest that the applicant's increased symptoms leading to her June 1997 surgery were due to "pain behavior/secondary gain/functional overlay." In other words, Drs. Warner and DeBevec do not opine the applicant mistakenly viewed her increased symptoms as arising from the work injury when in fact they were from the natural progression of her underlying disease. Instead, Drs. Warner and DeBevec concluded that the applicant was malingering or exaggerating the permanent effects of the work injury.
The dissenting commissioner reaches a different conclusion and quotes the "IMPRESSIONS" section of Dr. Warner's report at length. The majority acknowledges that Dr. Warner recognized that the applicant had a pre-existing pathology which resulted in symptoms. He also attributed the necessity of work restrictions to her pre-existing condition "assuming Ms. Keding is giving reasonably valid positive physical finding." However, in the "DIAGNOSIS" section of his report, Dr. Warner writes:
"Cervicothoracic and lumbar strain and contusion, with considerable functional overlay and no neurological deficit. Wadell's nonorganic physical sign index reveals superficial and nonanatomic tenderness, pain and axial loading and rotation in the lower back, give-way weakness, stocking and glove hypesthesia and overreaction."
The majority must conclude that, if Dr. Warner had believed the applicant's pre-existing condition caused the applicant's increased symptoms as she described them following the work injury, he would have said so in his diagnosis. Instead, he noted considerable functional overlay, as well as superficial and nonanatomic pain. The majority concludes that Dr. Warner believes that, while the applicant continued to have ongoing symptoms and pathology from her pre-existing condition, she exaggerated or fabricated the increased symptoms she attributed to the October 1995 work injury which led eventually to surgery by Dr. Denis and the resulting disability.
However, ALJ Schaeve, who observed the applicant as she testified, found the applicant quite credible about increased, persistent symptoms after the work injury. He observed what he believed were genuine pain behaviors; that is, he felt she was honestly in pain. He also credited her explanation that some of the back pain requiring medication a few months prior to the work injury was caused by a mass or endrometrioma on her left ovary, and that the pain decreased after the endrometrioma was surgically removed a few months before the work injury. Finally, the commission declines to conclude that the applicant would have gone through two surgeries (the 1997 fusion and the 1998 follow-up procedure) if she were actually malingering or exaggerating her symptoms. (2)
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 majority that an oral compromise is not enforceable unless it is done on the record at hearing. I disagree with the majority that her back problems were aggravated beyond normal progression of her underlying disease.
The applicant was taking Darvocet from June 4, 1990 and by April of 1992 had monthly Darvocet prescriptions. A June 21, 1993 note by Dr. Goellner mentions that twice in the past six months she has bent over and stood up to have a very sharp pain in her midlow back. An October 5, 1994 note by Dr. Goellner reports "The patient has a sensation that she has worsening numbness in her right leg particularly, but as well, some numbness that she has felt in her left leg; last examined in October 1993.She is using Darvocet for pain control and that is going fairly well." March 16, 1995 note of Dr. Goellner "Problem #3 is chronic back pain. The MRI shows scarring and hypertropic changes; a little worse on her right than on the left. The clinical significance of these MRI findings are a little bit questionable because there is not much difference one side to the next. I suggested to Sue that a this point observation and use of judicious Darvocet-N 100 mg. is in order. I gave her a prescription for 100 of those and will talk to her again about this when she comes in in early April."
Dr. DeBevec assessed the applicant and reported "The patient's range of motion of the back is essentially nil. She might be able to flex forward about 5 degrees, but most of her motion is in her hips. She does not extend or laterally flex or twist at all today. This is not entirely consistent with my examination of 12/19/95 when she was able to laterally flex with her fingertips to mid thigh. There are no consistent reproducible areas of tenderness in her low back, buttocks, or hips. I did not examine her neck as this was not requested by Dr. Goellner, nor originally by the patient, although she did state to me today that she was hoping I would examine her neck.
The work related injury of 10/24/95 was a soft tissue injury exacerbating pre- existing extensive low back problems as detailed on her medical record for which she has had extensive surgical and non-surgical treatment. She has exhausted all treatment options regarding her back. I suspect either secondary gain or functional overlay.
I recommend that the patient pursue a regular exercise program and her walking program would fit the bill. She should optimize body weight and return to work as best she can, even if it is an altered work status from what she was doing before."
The patient was not interested in seeing Dr. DeBevec again. Dr. Warner was the IME who saw the employe. Dr. Warner found "In my opinion, the injury of October 24, 1995, was a temporary aggravation of the previous underlying back condition. I believe she has reached an end of healing in regards to the temporary aggravation as of March 28, 1996. She has not reached a healing plateau in regards to the preexisting condition. She has sustained no permanent partial disability from the October 24, 1995 back injury ...I find some discrepancy and inconsistency in examination and I believe Ms. Keding has significant functional overlay. I certainly do not believe that her current treatment should be placed in the hands of a general practice physician. In addition, she states that for 5 ½ or 7 years prior to her injury in October 1995, that she was essentially pain free; this contradicts the medical records available. It should be noted that Ms. Keding had degenerative disc disease and lateral spinal stenosis with no disc herniation from injuries back in 1983. It is obvious to me that degenerative disc disease and spinal stenosis does not occur over a period of eight months from the time of injury until the time Dr. Lifson surgically operated the lower back the first time. It is my opinion that Ms. Keding's symptoms and findings at the time of her surgery in May of 1984, and currently, at this time are secondary to degenerative disc disease rather than to mild strain and contusion of the spine she sustained on October 24, 1995."
I disagree with the majority because I believe that Dr. Warner did find that her problems and surgery were related to her underlying degenerative disc disease and her 1984 surgery. I would place no weight on Exhibit M because it is not done by a doctor, chiropractor or other medical expert that we could rely on to make any medical findings.
This is a sympathetic case because the employe does have a bad back but the cause of her back problems are not related to work for this employer. I would rely on the opinions of Dr. DeBevec and Dr. Warner. For these reasons, I would reverse on the permanent disability and any costs related to her back surgeries in 1997 and 1998.
______________________________________
Pamela I. Anderson, Commissioner
cc: ATTORNEY LISA A ELANDER
MUDGE PORTER LUNDEEN & SEQUIN SC
ATTORNEY MICHAEL D STOTLER
BREN PRZYBECK & STOTLER
Appealed to Circuit Court.
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Footnotes:
(1)( Back ) On the day that this case was initially scheduled for a hearing before ALJ Smiley, the parties evidently worked out a tentative compromise. As a result, the hearing did not go forward. In this case, the compromise was never approved because the applicant refused to sign the written compromise document. At the subsequent hearing before ALJ Schaeve, the respondent asserted that the terms of the oral compromise should be submitted to the department for approval, without the applicant's signature. ALJ Schaeve properly rejected the argument. The department's rules specifically require that, to be binding, the compromise must either be in writing and mailed to the department or made orally on the record on the date of hearing. Wis. Adm. Code, § DWD 80.03(1)(a) and (b). Since the alleged compromise was not entered into as required by the administrative code, the commission concludes that it is a nullity and not entitled to enforcement.
(2)( Back ) The commission considered the admissibility of Exhibit M, documenting a pre-employment physical. It is the uncertified report of a physician's assistant at the time of his pre-employment physical. The ALJ points to it in his decision as buttressing the applicant's claim that her condition had been in check from 1987 to 1990. He believes that the evidence in exhibit M of a stable spine in 1990 indicates that the spine would have worsened from the work accident, not from progression of the underlying disease. ALJ decision, page 3. The dissenting commissioner contends that no weight should be given exhibit M because it was not prepared by a competent expert. The respondent also contended it was not filed within 15 days of the hearing, as required under Wis. Stat. § 102.17(1)(d). Noting that exhibit M came from a file maintained by the employer, the ALJ accepted it as trustworthy, despite its hearsay status. In the commission's view, exhibit M would be significant if Drs. DeBevec and Warner had agreed that the applicant genuinely had increased symptoms which began after the work injury in October 1995, but attributed them to the normal progression of the 1983 work injury. As explained above, the doctors on whom the respondent relies instead suggest she is malingering. Consequently, the commission does not rely on exhibit M in affirming the ALJ's decision.