STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
BECKY M GIESE, Applicant
OSHKOSH MARINE SUPPLY CO, Employer
LIBERTY MUTUAL FIRE INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim Nos. 1991020648 and 1994058054
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The employer and insurer (collectively, the respondent) filed a timely petition for review.
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant sustained conceded back injuries in 1991 and 1994. The injuries were treated surgically with two laminectomy/discectomy procedures at L5-S1 performed by Kamaljit S. Paul, M.D., in 1992 and 1994. After the second surgery, Dr. Paul released the applicant with sedentary restrictions.
The employer discharged the applicant due to her restrictions after the second surgery. However, the applicant was able to return to work with another employer. She again began experiencing problems in January 1997, and returned to Dr. Paul. He took the applicant off work, and recommended an anterior interbody fusion from L4-S1 using BAK titanium cages.
The respondent arranged for an independent medical examiner with Stephen Delheimer, M.D., who opined that surgery was not necessary. As a result, the department arranged for a "tiebreaker" examination with a third doctor, James Leonard, D.O., under Wis. Stat. § 102.13(3). (1) Dr. Leonard agreed with Dr. Delheimer that the surgery was not necessary.
Finally, the applicant saw Jerome H. Hagens, M.D., for another opinion on referral from Dr. Paul. Dr. Hagens agreed the surgery proposed by Dr. Paul was reasonable and stood a good chance of success.
The applicant decided to go ahead with the third surgery. She explained that her condition had gradually worsened after the second surgery and that she did not wish to survive on pain medication. Accordingly, Dr. Paul performed the L4-S1 fusion on October 7, 1997.
Following the third procedure, Dr. Paul released the applicant to work on June 15, 1998. However, the applicant worked only briefly thereafter, and has sought assistance from the DVR. (2) The applicant testified that her pain level has improved. However, she acknowledges that some of the improvement was due to the fact that she was no longer working, but instead taking it easy. She felt stronger, and believed she could lift more weight. However, her functional restrictions after the third surgery are the same sedentary restrictions as imposed after the second surgery.
The sole issue is whether the respondent is liable for the expense of the fusion surgery performed by Dr. Paul in October 1997. The respondent does not deny that the applicant underwent the surgery to cure and relieve the effects of the work injury. Stated another way, causation is not at issue; no one contends the surgery was performed to correct the effect of some condition other than the conceded injuries (such as a congenital condition or new injury.) Instead, the issue is whether the surgery was actually necessary to cure and relieve the effect of the work injuries.
If this were not a tiebreaker case, the matter would be resolved by Spencer v. ILHR Department, 55 Wis. 2d 525, 532 (1972). That case holds that where an injured worker, 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 the treatment, including treatment expense, because they find the treatment either unnecessary or unreasonable. (3) However, Spencer did not involve a tiebreaker doctor. Indeed, Spencer was decided before Wis. Stat. § 102.13(3) was first enacted by 1981 Wis. Laws, ch. 92, and before language permitting the appointment of a tiebreaker on the question of necessity for a particular type of treatment was added to the statute by 1985 Wis. Act 83. The commission must conclude that the enactment of a provision allowing for a tiebreaker medical opinion on the necessity of treatment, if it is to have any real effect, was intended to permit the department and the commission to deny medical treatment expense based on the tiebreaker opinion despite Spencer. (4)
On the other hand, the commission notes that Wis. Stat. § 102.13(3) does not indicate that the department or commission must attach any special weight to a tiebreaker opinion. (5) In that respect, the tiebreaker opinion is simply another evidentiary submission whose relative credibility an ALJ and the commission must determine. Thus, the question remaining for the commission is the same one addressed by the ALJ: whose opinion is more credible with regard to necessity of treatment?
In his WC-16B dated July 2, 1998 (exhibit A), treating surgeon Paul writes:
"In late 1996 patient started getting back pain and pain going down both legs up to the knee level. MRI revealed a degenerative disk L5- S1 with some scar formation and residual disk fragment. A positive diskogram necessitated a lumbar interbody fusion L4-5, L5-S1 using BAK titanium cages which was performed 10-7-97."
In a treatment notes dated August 1, 1997, Dr. Paul explained further:
"She came back after seeing Dr. Hagens, orthopedic surgeon for a second opinion in regard to further surgical treatment. Dr. Hagens agrees that she has had 2 surgeries in the past and in view of positive discogram, productive discogram, reproduction of pain, she will be benefited by lumbar spinal fusion using the titanium cages L4-5, L5- S1, going anteriorly. In my opinion, in view of the positive discogram and degenerated L5-S1 disc, I suggest that we should do anterior lumbar interbody fusion L4-5, L5-S1 using the BAK titanium cage and cancellous bone graft. I suggested that she should proceed with surgery and she should be benefited by this procedure. She will contact us when she makes a decision."
Exhibit A.
Dr. Hagens, for his part, explains:
"The patient's discogram is available for review and the MRI in the past is also available for review. This patient was told that a 2-level cage procedure would benefit her and would, in Dr. Paul's opinion, allow her to go back to work. She had seen two other surgeons for their opinions and the felt the likelihood of success was relatively remote.
"I believe in my opinion, the cage procedure is a better way of doing a spinal fusion and in this case, since the patient has already had 2 procedures posteriorly, an anterior cage procedure would decrease the morbidity within the back and would also raise the vertebrae back to their normal heighth and increase the interspinous space that has been narrowed from the previous disc removal. I think this is a reasonable procedure to do on this patient and since she is unresponsive to other conservative measures. I would agree that this approach is reasonable and stands a good chance of success. Reproduction of the pain on the discogram usually is a good indicator that the patient would respond to stabilization at that level.."
Exhibit E, Hagens note dated July 11, 1997.
Dr. Delheimer, the respondent's independent medical examiner, acknowledges that the applicant's current condition and ongoing complaints are due to the residuals from her prior surgeries and her underlying degenerative disc disease. However, he did not recommend further surgery, noting that there was no documented instability in the lumbar spine, though there was a decreased disc height at L5-S1 compatible with her prior surgeries. Exhibit 1, Delheimer report dated March 24, 1997, page 3.
Dr. Leonard, the department-appointed tiebreaker, noted that x-rays showed considerable disc space narrowing at L5-S1, but no evidence of spondylolisthesis (6) at that level. He explains his opinion that the fusion surgery was unnecessary as follows:
"There is no evidence of instability either on the previous records that I had available for review or on the wieghtbearing lumbar films that were taken in the standing position. She has several risk factors that would concern me that she would not do well with a major fusion procedure, the most notable being her pack per day smoking history. She as documented adhesions on the left side particularly at the L5- S1 level. I cannot see where a fusion procedure would have a major impact on this problem."
Exhibit 2, Leonard report dated April 25, 1997, page 5.
Instead of surgery, Dr. Leonard recommended more conservative treatment, including careful use of medication, general conditioning and smoking cessation. Noting the lack of clear surgical indications, Dr. Leonard suggested that a surgery could actually make the applicant worse off than she was.
As the ALJ recognized, whether lumbar instability must be shown to indicate surgery is a key difference between the doctors. In this case, none of the doctors reported instability in the applicant's spine. Drs. Delheimer and Leonard suggest that without lumbar instability, the fusion surgery should not be undertaken.
The commission notes that Dr. Hagens also shares the concern about lumbar stability. He states that: "Reproduction of the pain on the discogram usually is a good indicator that the patient would respond to stabilization at that level.." In addition, the discogram diagnostic procedure, upon which both Drs. Hagens and Paul rely, is a controversial one. (7) Further, the commission notes that both Drs. Leonard and Delheimer appreciated the disc space narrowing at L5-S1, but nonetheless recommended against surgery. Dr. Leonard, particularly, explained that other factors, including smoking and L5- S1 adhesions, were also indications against surgery.
In sum, the commission finds the opinions of Dr. Delheimer and Dr. Leonard most credible, and concludes the fusion surgery was not a necessary treatment. The respondent is not liable for the expenses at issue under Wis. Stat. § 102.42(1).
ORDER
The findings and order of the administrative law judge are reversed. The application is dismissed.
Dated and mailed July 30, 1999
giesebe.wrr : 101 : 5 ND § 8.15
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ found the applicant to be a credible witness, a conclusion which the commission shares. The commission is convinced that the applicant underwent the fusion surgery in good faith on the reliance of her doctors. However, the commission reversed the ALJ's decision finding the respondent liable for the surgery because, as explained above, it reached a different conclusion regarding the credibility of the medical experts, none of whom testified at the hearing.
cc: ATTORNEY SCOTT C WOLDT
CURTIS & NEAL
ATTORNEY KURT VAN BUSKIRK
LAW OFFICE OF JEFFREY T OCONNOR
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Footnotes:
(1)( Back ) Dr. Leonard's appointment under Wis. Stat. § 102.13(3) was acknowledged by the attorneys for both parties in response to an inquiry from the commission during its review of this case.
(2)( Back ) The Division of Vocational Rehabilitation in the Department of Workforce Development.
(3)( Back ) See also Oldham v. LIRC, case no. 92-2145 (Wis. Ct. App., December 2, 1993). 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, SECTIONS 33 and 48(4)(a). Bielarczyk v. Twin Disc, Inc., WC case nos. 1994014654 and 1995045946 (June 30, 1999). In this case, the dates of injury were in 1991 and 1994.
(4)( Back ) Nothing in the commission's examination of the drafting file of 1985 Wis. Act 83 maintained by the Wisconsin Legislative Reference Bureau has led it to a different result.
(5)( Back ) Unlike an "expert" appointed under a similar statutory provision, Wis. Stat. § 102.16(2m)(c).
(6)( Back ) Spondylolisthesis is the forward slippage of vertebra over another. Dorland's Illustrated Medical Dictionary, (26th ed. 1981).
(7)( Back ) 5 Attorneys' Textbook of Medicine ¶15.35 (though the results may useful in ruling out a fusion procedure when the discographic imaging shows degeneration in adjacent disc spaces.) 5