STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
THOMAS GUNDERSON, Applicant
MARKET & JOHNSON INC, Employer
LIBERTY MUTUAL INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995033293
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Work injury and issues.
The applicant was injured at work on June 5, 1995 while moving concrete slabs with a bobcat front-end loader. The slabs were too heavy for the bobcat, causing it to tip, so the applicant's foreman climbed on the back as a counterweight. The applicant and foreman were thrown off the bobcat. The applicant landed on concrete, hitting his head. The foreman then landed on top of the applicant, causing him to briefly lose consciousness. According to an emergency room report, the applicant fell 7 feet.
The applicant was treated initially for his head wound. Specifically, he fractured the right orbital rim of his face, which is the area around the eye. He had headaches, dizziness and vision problems.
The applicant also complained of neck pain immediately after the injury. An MRI showed a compression fracture of the C6 vertebra. The MRI also has been interpreted both as showing a C5-6 disc herniation and as not showing a herniation.
During the fall and winter of 1995, the applicant continued to treat for the neck problem, he was eventually released to return to work subject to restrictions which prevented him from returning to his normal heavy-duty job. Headaches, frustration, irritability and quickness to anger were also noted. His wife, who testified at the hearing, relates his quickness to anger, his slowness in performing tasks he used to perform with ease, and his lack of focus and frustration to the injury.
The applicant also began complaining of back pain in February 1996, or about eight months after the injury. The applicant told his doctor at the time that he had about two weeks of pain without an actual injury, but that he had had back problems generally since the injury. A physical therapy note in May 1996 attributed the back pain to a lifting injury in November 1995 while the applicant was in work hardening after the work injury. Another note in July 1996 noted back treatment pre-dating the injury, and the applicant had been doing fine until he twisted wrong in May 1996. Yet another note mentions a sneeze. Eventually a disc herniation at L4-5 was discovered and repaired by fusion surgery in the late summer of 1996.
The applicant had previously injured his back in a motorcycle accident in 1994 (the year before the injury at issue here), and an MRI done in 1994 showed degenerative facet disease with annular tears at L4-5 and L5-S1. Steroid injections had been suggested at the time, and discography done that year also showed degenerative changes at L4-5. Indeed, this was listed as "prior disability" on a WC-16 form dealing with the cervical disability, completed (apparently by treating doctor Charles Burton of the Low Back Clinic) on December 6, 1995.
In sum, there are three aspects of the applicant's disability claim from the work accident: neck, low back, and psychological. The first issue is whether the applicant actually sustained neck, low back and psychological injuries from the work accident. The second issue is the extent to which these injuries impair the applicant medically (that is, what is functional impairment and what are his work restrictions). The third issue is the extent of vocational impairment or disability; or stated another way, the effect of the injuries on the applicant's earning capacity. In resolving these issues, the commission turns to the expert medical and vocational opinion.
2. Expert opinion.
The applicant's treating psychologist, Paul M. Caillier, Ph.D., opined that the work injury directly caused psychological disability. See exhibit A, report of Caillier, November 22, 1996.
Dr. Caillier first opined that the applicant's "closed head injury" of June 5, 1995 left him with post-traumatic depression (characterized by irritability, low frustration tolerance, and a sense of pressure in the head), and post concussive syndrome (characterized by reduced verbal memory; reduced general memory, attention, and concentration; and delayed recall deficits.) In sum, the applicant's executive functions were significantly impaired and his loss of memory resulted in a loss of confidence adding to his depression.
The applicant, at Dr. Caillier's recommendation, underwent cognitive retraining and psychiatric treatment for depression. The retraining resulted in a significant increase in memory abilities, and some increase in self-confidence.
However, upon reaching a healing plateau by November 6, 1996, the applicant still had permanent residuals from the head injury. Indeed, the doctor now gives a diagnosis of Organic Affective Disorder, characterized by mild memory frustration, irritability, and poor frustration tolerance, directly caused by the June 5, 1996 accident.
Dr. Caillier also prepared a functional capacity evaluation, outlining the applicant's ability to function, in light of his permanent injury. He opined the applicant:
(a) "is seriously limited but not precluded" in his ability to follow work rules; deal with the public; use judgment; interact with his supervisor; deal with stresses; function independently; understand, remember and carry out simple job instructions with a minimum number of errors; complete a normal workday and work week without interruption from psychologically-based symptoms; respond to changes in the work setting; behave in an emotionally stable manner; related predictably in social settings; and accept instruction and criticism.
(b) "has very little or no useful ability to" understand, remember and carry out complex job instructions with a minimum number of errors; or perform at a consistent, sustained satisfactory pace.
See exhibit A.
Harlan R. Heine, Ph.D., prepared a report on the applicant's psychological condition for the Wisconsin Disability Determinations Bureau: apparently this was done as a prelude to the applicant's receipt of social security benefits. The August 7, 1996 report of Dr. Heine, who is not a treating doctor, is at the end of applicant's exhibit B.
Dr. Heine diagnosed dementia due to head trauma, depression, features of mixed personality disorder with dependency and histrionic patterns, and head injury. He summarized his conclusions:
"[The applicant] appears to be of Average or perhaps Low Average intelligence, who has suffered significant memory loss likely due to a head injury he suffered while on the job. His MMPI-II shows numerous emotional and psychological problems, which have likely contributed significantly to his current symptoms. Currently, he is not involved in activities of interest that he participated in prior to his accident. He tends to be moody, difficult to get along with, and has a routine of generally limited activity. He would not do well in carrying out instructions. His relationship with supervisors and co-workers would be strained. Concentration and attention are poor. His pace of completing work would be somewhat slowed. His ability to cope with stress and change would be poor."
Exhibit B, Heine report, page 5.
Dale Thomas, Ph.D, also examined the applicant for the insurer. His report is at respondent's exhibit 3.
Dr. Thomas began by opining that that the applicant was exhibiting problems with memory, attention, and concentration, and that a neurotrauma caused those problems. He also stated that neuropsychological factors to be consideration regarding work include:
"If instructions are presented to him, longer than typical learning periods may be required. This is due in part because of apparent memory difficulties and in part due to reductions in speed of mental processing that was noted on testing. He seems to have a great deal of difficulty in tasks that require divided attention, or in other words performing one task while attending to another. It is more likely that he will have difficulties and oversights in his work or perhaps this may cause him to have problems working around machinery if he is required to sustain his attention from protracted periods of time, especially if he is experiencing pain or if he is very tired.
.
"In regard to a healing plateau, [the applicant] seems to have permanent impairments as a result of the apparent brain injury that he sustained. It is impossible to tell from current neuropsychological testing whether or not all the difficulties that this man has are a result of that accident, in particular, of if other neurotrauma injuries or pre-existing conditions may have contributed. There are indications that he may have had problems with learning related difficulties, and maybe even attentional disorder prior to the accident.."
Exhibit 3, Thomas report, page 2.
On examination, Dr. Thomas also noted some significant facts. First, the applicant's working memory was below the first percentile and his processing speed was at the 8th percentile. The doctor also noted that while visual object naming was within normal limits, and that the applicant did not have noticeable speech deficiencies, his associative phonemic and verbal fluency score was in the defective range, indicating problems in speeded mental processing. On a test of sustained divided attention and mental processing speed, his scores were impaired. The applicant also seemed to have greater difficulty when tasks become more complex. Testing of reasoning indicated problems when the applicant had to focus on multiple stimuli.
Dr. Thomas also noted that the applicant's capacity to learn and memorize were also impaired. Indeed, his capacity to learn was in the extremely low range, measured in the second and fourth percentiles. Dr. Thomas thought the problem might have been due to the applicant's ability to maintain sustained attention and focus, and to reacting to internal distractions such as pain.
In sum, Dr. Thomas found a cognitive disorder, presumably exacerbated or caused by the head trauma injury. While Dr. Thomas noted some pre-existing academic difficulties, the neurotrauma made these problems worse, and the problems with residual pain were also making the situation worse. He thought pain control would help attentional qualities and controlling the applicant's mood, but therapeutic intervention would not.
With regard to the applicant's cervical problem, both parties rely on the opinion of the respondent's independent medical examiner, Dennis Maguire. His opinion is that the applicant suffered a significant injury to his cervical spine and facial bones from the work injury. Specifically, he diagnosed a permanent arthritic condition based on a minimal compression of C6 and some scar tissue. He found a healing plateau as of February 23, 1996, and rated permanent partial disability at four percent to the whole body. He imposed a restriction against any work that would require looking up or over his shoulder. He imposed a 50-pound lifting restriction.
Another independent medical examiner, Allan E. Kagen, M.D., rated permanent partial disability from the neck injury at three percent PPD. He thought the applicant could lift 50 to 75 pounds and that this restriction was due to the neck injury, and would allow work at or above shoulder level only occasionally. Exhibit 2.
What do the vocational experts make of these reports?
The applicant's expert is Thomas Findlay. He noted what he describes as severe academic deficits, as the applicant dropped out of school in ninth grade. However, Findlay noted that prior to the work injury, the applicant was able to work full time as construction worker earning $30,000 per year. He noted that the DVR (1) had closed the applicant's file.
Based only on the restrictions from the neck injury set by Drs. Maguire and Kagen, vocational expert Findlay opined the applicant could do only select entry and unskilled jobs, including certain assembly or bench work and basic machine operation. In theory, Mr. Findlay thought, he could do janitorial work and certain types of laboring jobs at the medium duty level. Findlay estimated a $7.50 to $8.50 range for this type of job; he estimated a 45 to 50 percent loss of earning capacity based on the neck restrictions alone.
Mr. Findlay went on to report that, assuming the restrictions of Dr. Kagen (which were the least restrictive of any doctor and which would allow the select work outlined above), and if one factored the psychological restrictions provided by Dr. Thomas, the applicant would be unable to perform even those select tasks and would be incapable of gainful employment.
Next, considering all the restrictions set by the doctors, Mr. Findlay opined that the applicant was permanently and totally disabled. But Mr. Findlay went on to opine that, if only the psychological condition as described by either Dr. Caillier or Dr. Thomas was considered, the applicant would still be permanently and totally disabled. In other words, the applicant would be permanently and totally disabled based on the psychological condition, regardless of disability from the neck or back.
The employer's vocational expert is Jay R. Smith. Mr. Smith's opinions are set out in exhibit 5 (and in live testimony recorded in the transcript.) He states that the applicant only had one meeting with DVR, and then did not follow-up thereafter because he began receiving social security.
However, Mr. Smith thought that, given Dr. Caillier's assessment of the applicant's psychological condition, it would be very important for the applicant to follow through with the DVR for what he described as help getting back into the labor market, on-the-job monitoring, coaching, training, job placement, and supportive counseling assistance. In other words, the applicant needs "quite enhanced" placement services. Transcript, page 12. The type of placement services included mentoring and almost having the DVR placement officer act as kind of agent to talk to employers ahead of time, set up interviews, get an employer to make accommodations, and following up with the employers. Transcript, page 16.
If the applicant took advantage of such services, Mr. Smith thought the applicant could obtain work as an assembler, a cleaner/custodian, a cut-off saw operator, a deburrer, a grinder operator, a grounds keeper, a material handler, a packager, a spray painter, a punch press operator, and a trimmer/sander. These jobs by and large paid in the $7 to $8 per hour range. As a result, based on the restrictions of Dr. Caillier or Dr. Thomas, the applicant would have a 65 percent loss of earning capacity. If the applicant did not take advantage of the "quite enhanced" placement services, Mr. Smith thought he would be permanently and totally disabled.
Based only on Dr. Kagen's restrictions against lifting more than 50 to 75 pounds, Mr. Smith saw no loss of earning capacity.
3. Discussion.
The ALJ found that the work accident caused only the psychological injury and the neck injury. He concluded that there was no connection between the June 1995 injury at work and the applicant's subsequent back condition requiring surgery. The ALJ went on to accept the opinion of the respondent's vocational expert, who concluded the applicant had 65 percent loss of earning capacity.
The applicant appeals. He claims he is permanently and totally disabled on the basis of his psychological injury. In response, the respondent notes that the applicant does not appear to contest the ALJ's finding that the work accident did not cause the lower back problem. The respondent also asserts the record supports the ALJ's award, asserting that the applicant did not try hard enough to find work.
The commission agrees with the ALJ's finding that the back injury was not work- related. Indeed, the ALJ's conclusion on this point is reasonable given: the prior back condition; the passage of time June 1995 injury and the February 1996 complaints; and the fact the medical records variously ascribe the onset of the back pain to no known trauma, a sneeze, an odd bend, and work hardening.
The commission thus turns to the applicant's neck and psychological injuries from the work accident, and the extent of the disability they caused. The medical and psychological experts are not really that far apart on the functional disability from these injuries. The closer issue is the extent of the applicant's permanent vocational disability based on the effects of the psychological and neck injuries.
Given the effects of the psychological and neck injuries from the work accident, the commission concludes that the minimum loss of earning capacity award to which the applicant is entitled is 65 percent under Mr. Smith's opinion. Mr. Smith noted the applicant was unlikely to find gainful employment unless he received "quite enhanced" placement services. The record does not indicate that DVR offered the "quite enhanced" services recommended by Mr. Smith, or that the applicant refused them. For that reason, the commission is not inclined to reduce or eliminate the applicant's loss of earning capacity award because his efforts to find work were lacking.
Further, the commission also notes that 65 percent rating depends upon the applicant receiving the "quite enhanced" placement services advocated by Mr. Smith. The commission is not certain that these services are available from the DVR, or that they would be successful in allowing the applicant to obtain anything other than odd-lot work. While the commission believes the applicant should make a good faith effort to obtain the services described by Mr. Smith, it declines to rule out an award for permanent total disability on his current restrictions and condition until he has done so.
The commission thus orders the respondent to immediately begin paying loss of earning capacity at 65 percent, assuming it has not already done so. The applicant shall make a good faith attempt to obtain the services advocated by Mr. Smith from the DVR. If the DVR refuses to provide the services, or if the services fail to secure suitable employment for the applicant, he may refile an application for hearing seeking additional loss of earning capacity benefits or permanent total disability benefits.
Requiring the applicant to first seek services from DVR before finally deciding the issue of permanent disability is within the commission's authority under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278-81 (1972). If the applicant is found permanently and totally disabled despite seeking services from DVR, of course, the respondent shall be entitled to a credit for permanent partial disability payments made after date of permanent total disability.
Because the commission, like the ALJ, rejects the low back claim, no award for temporary or permanent disability is made on that claim. The applicant has sustained, however, a loss of earning capacity of at least 65 percent. This works out to 650 weeks of benefits, at $164 per week, or $106,600, less the amount previously conceded and paid of $6,560, leaving a net award of $100,040. As of September 10, 1999, 196 weeks totaling $32,144 has accrued, 454 weeks days totaling $74,456 are unaccrued. Subtracting the prior concession of $6,560 from the amount accrued leaves the amount of $25,584 in accrued unpaid compensation.
The applicant approved an attorney under Wis. Stat. § 102.26 on the additional amounts awarded. The fee thus equals $20,008, which is twenty percent of the net award of $100,040. However, the fee attributable to accrued unpaid compensation equals $5,116.80; the unaccrued fee of $14,891.20 is subject to an interest credit of $3,754.79. The present value of the entire attorney fee is thus $16,253.21, and that amount plus costs of $2,052 shall be paid within 30 days.
The amount due the applicant within 30 days is $18,415.20. This equals the amount accrued to September 10, 1999 ($32,144), less the amount conceded and paid ($6,560), less the accrued attorney fees ($5,116.80) and costs ($2,052).
The amount remaining to be paid as it accrues is $59,564.80. This equals the unaccrued portion of the award ($74,456), less the future value of the fees thereon ($14,891.20). This amount shall be paid to the applicant in monthly installments of $710.67.
The applicant is also entitled to that portion of the submitted mileage expense that does not include the treatment for the back.
Because the applicant may incur future additional medical expense and disability, this order is left interlocutory on all issues. Moreover, this order is not final on the applicant's loss of earning capacity given his current restrictions and condition from the work injury; rather, after obtaining (or making a good faith effort to obtain) the services from DVR as described by Mr. Smith, he may refile an application to have his claim for permanent total disability re-evaluated.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Thomas Gunderson, Eighteen thousand four hundred fifteen dollars and twenty cents ($18,415.20) in disability compensation.
2. To the applicant's attorney, John A Kaiser, the sum of Sixteen thousand two hundred fifty-three dollars and twenty-one cents ($16,253.21) in attorney fees and Two thousand fifty-two dollars ($2,052) in costs.
3. To the applicant, the amount of the claimed mileage expense after deducting the amount attributable to the lower back claim.
Beginning on October 10, 1999, and continuing on the tenth day of each month beginning thereafter, the employer and its insurer shall pay the applicant Seven hundred ten dollars and sixty-seven cents ($710.67) per month until the remaining amount of Fifty-nine thousand five hundred sixty-four dollars and eighty cents ($59,564.80) is paid.
Jurisdiction is reserved for further orders and awards as may be consistent with this decision.
Dated and mailed August 31, 1999
gunders.wrr : 101 : 6 ND § 5.31
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did not confer with the presiding ALJ in this case. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ in awarding loss of earning capacity benefits concluded that the applicant did not impermissibly refuse retraining. He explained that given Mr. Smith's hearing testimony, it was clear the services that Mr. Smith mentioned were placement (or enhanced placement) services, not retraining services. The commission agrees with that conclusion.
Further, the commission acknowledges Mr. Smith's testimony that enhanced placement services would reduce the applicant's loss of earning capacity, though he would be permanently and totally disabled without them. The commission also notes Mr. Smith's testimony that unless the enhanced placement services were obtained, he could not evaluate loss of earning capacity. December 7, 1998 Transcript, page 14. Accordingly, the commission modified the ALJ's order because it does not believe the applicant's loss of earning capacity with his current condition and restrictions may be definitely determined until those services are tried. If after making a good faith effort to obtain the placement services, the applicant believes he is still entitled to additional compensation for vocational loss, he will have to prove that entitlement at another hearing before an ALJ who will be able to observe firsthand the credibility and demeanor of the witnesses at that time.
cc: ATTORNEY JOHN A KAISER
SCHRAGE KAISER
ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI SC
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Footnotes:
(1)( Back ) Division of Vocational Rehabilitation in the Department of Workforce Development.