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

JAMES M BIELARCZYK, Applicant

TWIN DISC INC, Employer

SENTRY INS A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1994014654, 1995045946

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on February 11, 1999. Respondents submitted an answer to the petition. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury to the applicant's back occurring on June 16, 1995, and attributable to the conceded work injury to the applicant's left knee also occurring on June 16, 1995.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant sustained a back injury at work on February 26, 1994, when he lifted the top of a machine weighing 80 pounds. He was treated by his family physician with cortisone injections and physical therapy. He was released to return to work with restrictions in April of 1994.

On June 16, 1995, he stepped out of a machine in which he was working and slipped and fell, injuring his neck, back, and left knee. Dr. Thomas Werbie ordered an MRI of the knee which showed a meniscal tear, and on August 10, 1995, Dr. Werbie performed a left knee arthroscopy.

The applicant was referred for back treatment to Dr. Spencer Block, a neurosurgeon. On November 24, 1995, Dr. Block performed laminectomies at L4- 5 and L5-S1. Post surgery physical therapy made the applicant's condition worse, and on January 10, 1996, Dr. Block performed a second surgery. This involved re-exploration of the L5-S1 disc space with removal of recurrent disc fragment, as well as re-exploration of the L4-5 disc space with L5 foraminotomy and lysis of adhesions. The applicant's symptoms of back and right leg pain continued.

The applicant began receiving chiropractic treatment from Dr. Ib Thostrup on July 3, 1996. This consisted of chiropractic manipulation, cryotherapy, VAX-D therapy, and electronic stimulation. The VAX-D treatment (Vertebral Axial Decompression) consists of the patient lying on his stomach on a table with his arms outstretched in front of him, and his hands grasping two rods. A girdle is applied to the patient's hips and the table stretches hydraulically. Dr. Thostrup charged $175 for each VAX-D treatment, which always included additional electronic stimulation ($15) and/or cryotherapy ($12). He treated the applicant from July 3, 1996 to February 16, 1998, for a total bill of $11,521.98.

Nature and extent of disability

The applicant has claimed 25 percent permanent partial disability of the whole body due to his compensable back injury. However, Dr. Spencer Block, who actually operated on the applicant's back assessed a 20 percent permanent partial disability. The same assessment was given by Dr. Charles Klein, who examined and evaluated the applicant at the employer's request. Dr. Warren Slaten assessed 25 percent permanent partial disability, based on his evaluation of the applicant, but he did not give any credible reason for the additional five percent rating beyond what the treating surgeon found. The commission concurs with the administrative law judge that the opinions of Dr. Block and Dr. Klein are credible, and the applicant sustained a 20 percent permanent partial disability of the whole body due to his back injury of June 16, 1995. This results in an award of 200 weeks of compensation at the applicable rate of $164 per week, for a total of $32,800. Respondents conceded this amount of permanent partial disability and have been paying it to the applicant as it has accrued since September 23, 1996. No attorney's fee is due against this award since it has never been contested by the respondents.

The applicant also claimed 10 percent permanent partial disability at the left knee, based on the opinions of Dr. Patrick Cummings and Dr. Warren Slaten. However, as noted by the administrative law judge, Dr. Charles Klein gave the best analysis of the applicant's left knee condition. Dr. Klein noted that the applicant suffered from significant preexisting abnormalities of this left knee at the time of the injury on June 16, 1995. Dr. Klein noted that the applicant had a 1982 knee surgery, that he had persistent knee problems when last seen by Dr. Hackbarth in 1985, and that at the time of the 1995 work injury the applicant already had a significant portion of his medial meniscus removed. The applicant also had preexisting chondromalacia of the patella, as well as a previous lateral meniscus tear.

Dr. Klein's assessment of a five percent permanent partial disability at the applicant's left knee, attributable to the work injury of June 16, 1995, is accepted as credible. Since two compensable injuries resulting in permanent partial disability were sustained on June 16, 1995, the permanent partial disability award for the applicant's left knee is increased by 20 percent, pursuant to Wis. Stat. § 102.53(4). This results in an additional 4.25 weeks of compensation for the left knee disability award. The total award amounts to 25.5 weeks of compensation at the applicable rate of $164 per week, for an accrued total of $4,182. This award, except for the 20 percent multiple, was also conceded by the respondents. However, it appears from the information in the commission's file that respondents may have believed that they were only required to pay this award consecutively to payment of the permanent partial disability award for the applicant's back injury. The award represents payment for a separate injury and should have been paid concurrently with the back injury award. If respondents have not yet paid the full $4,182 to the applicant for his left knee injury, then payment should be made immediately. No attorney's fee is due against this award because it was not contested by the respondents, and the petition did not include arguments identifying the requirement of a 20 percent increase of the lesser award.

Liability for chiropractic expense

With regard to the VAX-D treatment, the respondents submitted the testimony and written report of Dr. Dan Futch, a chiropractor. Dr. Futch opined that the VAX-D treatment is a form of traction, and since 1994 traction has fallen into disuse as a recommended form of treatment for acute or chronic low back pain. He acknowledged that VAX-D treatment has been "cleared" by the FDA, that it is not experimental, and that the idea behind the treatment is to decompress the vertebral discs to allow them to rehydrate. Dr. Futch opined that the treatment was unnecessary for the applicant. He further opined that although he was unable to comment on what a reasonable charge would be for VAX-D treatment, he believed that from a common sense perspective the charge of $175 per visit was "somewhat extraordinary."

The applicant submitted testimony and written reports from Dr. Thostrup, who explained the VAX-D treatment and opined that it "vastly helped" the applicant's back condition. In this context, it should be noted that although Dr. Maiman expressed skepticism regarding the VAX-D treatment, in a letter dated August 29, 1996, he noted that the applicant had been going through the VAX-D treatment with excellent results, and at that time released him to return to half-time, light- duty work. On November 5, 1996, Dr. Maiman opined in another letter to the insurer that the VAX-D treatment was somewhat palliative, and if not performed in conjunction with an active exercise program would be of no long-term benefit. Dr. Maiman denied that his previous letter was properly interpreted to say that the applicant would not need further chiropractic treatment, and he indicated that from what he had read about VAX-D treatment it should not be stopped totally at once.

The reasonableness and necessity of the VAX-D treatment charges can be debated, but the determinative legal fact is that for the applicant's back injury the applicable law included Spencer v. ILHR Dept., 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972). That case holds that where an employe, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department and commission cannot disregard the consequences of treatment, including treatment expense, because they find the treatment either unnecessary or unreasonable. (1) No evidence was presented that the applicant accepted the VAX-D or other chiropractic treatment in anything other than good faith reliance on Dr. Thostrup's recommendations. Accordingly, payment for such treatment must be made regardless of its reasonableness or necessity. The total of the chiropractic treatment expense was $11,521.98. Since this expense was contested a 20 percent attorney's fee will be subtracted from it.

The applicant may incur further medical expense and disability attributable to one or both of the work injuries, and therefore jurisdiction will be reserved.

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, respondents shall pay to Dr. Ib Thostrup the sum of Nine thousand two hundred seventeen dollars and fifty-eight cents ($9,217.58); and to applicant's attorney, I. B. Shapiro, fees in the amount of Two thousand three hundred four dollars and forty cents ($2,304.40). Respondents are also liable for permanent partial disability awards of Thirty-two thousand eight hundred dollars ($32,800) for the applicant's back injury, and Four thousand one hundred eighty-two dollars ($4,182) for the applicant's left knee injury. The left knee award has all accrued and shall be paid within 30 days if not previously paid. The back injury award began accruing on September 23, 1996, and respondents should continue payment on a monthly accrual basis until the total has been paid to the applicant.

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

Dated and mailed June 30, 1999
bielaja.wrr : 185 : 7 ND § 5.50

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The only reversals the commission made of the administrative law judge's decision were the addition of the 20 percent multiple injury award, which is required by statute, and the award of the chiropractic expense, which is required in this case by the law of Spencer. The commission had no disagreements with any of the administrative law judge's credibility impressions.

cc: ATTORNEY I B SHAPIRO

ATTORNEY JOSEPH J WELCENBACH
WELCENBACH & WINDMANN SC

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT LIEB & WEIR SC

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Footnotes:

(1)( Back ) Effective with injuries occurring on or after January 1, 1998, the Spencer holding is effectively overruled by statutory changes made in 1997 Wis. Act 38. The Spencer holding also could have been circumvented by utilization of the dispute resolution process under Wis. Stat. § 102.16, but this process was not invoked in this case.