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

DEBORAH M POLAKOWSKI, Applicant

CLEARVIEW NURSING HOME, Employer

COUNTY OF DODGE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96028025

The applicant submitted a timely petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on July 30, 1997. Dodge County submitted an answer to the petition and additionally submitted an untimely cross-petition. Briefs have been submitted by the parties.

A preliminary issue is whether the commission should accept the untimely cross-petition. The primary issues involve nature and extent of disability and liability for medical expense attributable to a conceded low back injury which occurred on July 22, 1994, and to a conceded upper back/neck injury which occurred on February 3, 1995.

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 reverses his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CROSS-PETITION

In his decision issued on July 30, 1997, the administrative law judge disallowed the additional expense for medical treatment claimed by the applicant, but awarded four percent permanent partial disability for each of the claimed injuries. Thus, the employer and its insurer were ordered to pay the applicant compensation equivalent to eight percent permanent partial disability of the whole body. On August 20, 1997, the last day on which a timely petition for commission review could have been filed, the applicant submitted a petition which appealed only the administrative law judge's finding that additional medical expense was denied. On September 3, 1997, two weeks after the deadline for a timely petition, the employer submitted an answer to the petition which included a "cross-appeal" of the awards of permanent partial disability. At issue is whether the employer could properly file a cross-petition after the 21-day appeal deadline had passed. Also at issue is whether the commission is empowered to modify or reverse the administrative law judge's findings regarding permanent partial disability, regardless of the cross-petition.

Wis. Admin. Code § LIRC 1.026 provides:

"Cross-petitions. Any party may file a petition for review, whether or not any other party has already filed a petition for review. The filing of a petition for review by one party does not extend the time within which any other party may file a petition for review. All petitions for review, including cross-petitions, are subject to the requirements of Wis. Admin. Code § LIRC 1.02 concerning timeliness." (Emphasis added.)

Wisconsin Administrative Code § LIRC 1.02 provides in relevant part that all petitions for commission review shall be received within 21 days from the date of the administrative law judge's decision, and pursuant to the above-quoted code provision, this requirement is applicable to cross-petitions. The cross-petition submitted by the employer on September 3, 1997, was late, and accordingly it will not be accepted by the commission.

However, the commission's review is an original proceeding in which the commission acts as the ultimate finder of fact and law. DILHR v. LIRC, 16 Wis. 2d 231, 242, 467 N.W.2d 545 (1991); State v. Industrial Commission, 233 Wis. 461, 465, 289 N.W. 767 (1940). As set forth in Wis. Stat. § 102.18(3), in reviewing an administrative law judge's decision the commission may either affirm, reverse, set aside, or modify it, in whole or in part. Accordingly, when the commission disagrees with any finding in a decision before it on review, it is empowered to change that finding. Even though a particular party has failed to submit a timely petition or cross-petition, there is no law or policy which prevents that party from arguing any issue in the case in its responsive brief to the commission, as long as another party has brought the case before the commission via a timely petition. Of course, the commission's policy is to accord lesser weight to those arguments raised in a responsive brief, as opposed to those raised in a timely petition or cross-petition. This policy has been reinforced by the commission's experience over the years that responsive-brief arguments tend to be less convincing than those about which a party felt strongly enough to file a timely petition. (1)

In accordance with its statutory duty and the above policy, the commission has reviewed the arguments of both parties in the case at hand, including the employer's responsive-brief argument that the applicant did not sustain any permanent partial disability attributable to the work injuries at issue. The file reveals that in this case, prior to the filing of the petition, counsel for the employer informed counsel for the applicant that if the applicant filed a petition concerning the issue of medical expenses, the employer would seek review of the award for permanent partial disability. Counsel for the employer relied on his prior knowledge of the fact that the commission is empowered to make new findings regarding all issues once a timely petition from either side has been filed. Counsel demonstrated an ignorance of the administrative code regarding the fact that cross-petitions must be filed within the 21-day appeal period, resulting in this case in dismissal of the cross-petition. Counsel for both parties also demonstrated confusion concerning the distinction between the right to file a timely cross- petition and the right to raise arguments in a responsive brief. The former procedure is preferable in all respects to the latter, and results in a much more persuasive presentation of a party's case to the commission. At the same time, it must be noted that prior to this decision, the commission has never clearly articulated its policy regarding responsive-brief arguments. This perhaps explains the confusion both counsels exhibited concerning this issue. This lack of prior guidance, together with what the commission found to be the compelling nature of the facts in this case, affected the weight it gave to the employer's responsive brief arguments.

MEDICAL HISTORY OF INJURIES

After her low back injury on July 22, 1994, the applicant began treating with Dr. James S. Berry, an orthopedic surgeon. Dr. Berry injected the L-4 area with Marcaine, referred the applicant to another physician for an epidural injection, prescribed physical therapy, prescribed a back brace, and placed the applicant on light duty. He ordered a lumbar spine MRI which the radiologist read as showing a mild disc bulge at L5-S1 without evidence of nerve root compromise. In a letter to another physician dated August 12, 1994, Dr. Berry interpreted the MRI as showing a very small disc herniation at L5-S1, which he did not believe was surgically significant. However, in his clinic note dated April 3, 1995, Dr. Berry opined that there was nothing to suggest a herniated disc, just a chronic back sprain which was likely to remain with the applicant. He assessed two percent permanent partial disability to the applicant's long-standing history of back trouble and chronic pain.

On September 14, 1994, the applicant sought a second opinion from Dr. Jeffery Fitzthum, a rehabilitative medicine specialist. Dr. Fitzthum gave a diagnosis of subacute low back and leg pain. He encouraged the applicant to undergo another epidural injection and to continue physical therapy. He released her to work as of September 19, 1994, with restrictions of no lifting over 10 pounds and no bending or twisting.

The applicant sustained the second work injury here at issue on February 3, 1995, when according to the summary of injuries found at Applicant's Exhibit K, she sustained severe pain in her left shoulder after lifting a patient. The applicant testified that she remember being hurt on February 3, 1995, but did not remember the details of what happened. Dr. Berry's clinic note of February 3, 1995, indicates that the applicant complained of shoulder and neck pain after lifting a patient at work. The applicant apparently sustained another injury to her neck and shoulders on August 4, 1995, when transferring a patient to a bed. On an unspecified date in February 1996, she again hurt her neck and shoulder when transferring a patient.

Dr. Berry retired in the spring of 1995, and thereafter, the applicant sought treatment from a chiropractor, Dr. John T. Riegleman. The records submitted from Dr. Riegleman indicate that he provided regular chiropractic adjustments from May of 1995 through at least the last of 1996. On August 8, 1995, Dr. Riegleman completed a pre-printed form from his chiropractic office in which he checked the areas under cervical diagnosis for: brachial syndrome, cranial syndrome, disc, flexion/extension injury, and multiple subluxations. He checked the areas under thoracic diagnosis for disc and multiple subluxations. He left blank the areas relative to lumbar diagnosis.

Upon referral from Dr. Riegleman, the applicant was seen by a second chiropractor, Dr. Michael A. Perdziak. This visit took place on February 5, 1996, and Dr. Perdziak indicated that it was for the purpose of consultation, examination, and evaluation. Dr. Perdziak's low back diagnosis was chronic, residual low back pain and myofascitis with some radicular expression into the left lower extremity over lumbar nerve root 5, accompanied by a subluxation complex of L4-L5-S1 and the left hip secondary to an acute, traumatic lumbosacral sprain with a resultant bulging of the L5-S1 disc. His neck and upper back diagnosis was chronic neck and upper back pain with radiation into the left upper extremity and occipital neuralgia with muscle bracing and rigidity accompanied by subluxations of T3-T4, C6-C7 and C1-C2 secondary to an acute, traumatic thoracocervical sprain and myofascitis complicated by straightening and reversal of the normal cervical lordosis.

Dr. Perdziak attributed low back condition to a low back injury sustained at work on July 7, 1994 (Exhibit K indicates this injury occurred on July 8, 1994), and to a further aggravation on July 22, 1994. He attributed the left upper back condition to the work injury of February 3, 1995, and further indicated that the left upper back and neck were injured on August 4, 1995. Dr. Perdziak assessed four percent permanent partial disability of the lumbar spine based on residuals from an acute, traumatic lumbosacral sprain with a bulging of the L5-S1 disc in the form of constant low back and left buttock pain, daily episodes of left leg pain, persistent muscle bracing and rigidity, limitation of motion, and a limited ability to lift, carry, sit, stand, or walk, with posterior narrowing of the L5-S1 disc space. He assessed four percent permanent partial disability at the thoracocervical spine based on residuals from an acute, traumatic cervical sprain in the form of constant, left-sided, upper-back and neck pain which radiate into the applicant's left shoulder and upper arm, occasional headaches, persistent muscle bracing and rigidity, limitation of cervical range of motion, and a limited ability to lift heavy weight or look down for prolonged periods of time, substantiated by demonstrable loss of the normal cervical lordosis with mechanical narrowing of the left C6-C7 intervertebral foramina.

At the employer's request, Dr. David A. Goodman, an occupational medicine specialist, examined and evaluated the applicant on February 14, 1996. Dr. Goodman found inconsistencies in the applicant's symptoms during physical examination. He administered the University of Pittsburgh Pain Institute Multiaxial Assessment of Pain Taxonomy System which he interpreted as showing dysfunctional behavior. He opined that there is no mechanism of injury or objective evidence of structural defect medically consistent with the applicant's current medical complaints and condition. Dr. Goodman further opined that the applicant's recurrent reports of injuries represent symptom manifestation of her underlying chronic pain syndrome, which he alternately described as a pain disorder associated with psychological factors (see Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, section 307.80). Finally, he opined that the applicant had not sustained any permanent disability from any of her work injuries, and that she should have reached a healing plateau within two to four weeks after each injury.

At the recommendation of the applicant's vocational rehabilitation counselor, she was examined and evaluated by Dr. Ward Jankus on July 15, 1996, and by Dr. Tai J. Park on several occasions in August 1996. Both these physicians practice at the Valley Pain Clinic in Menasha. Dr. Jankus diagnosed lumbosacral strain/sprain, L5-S1 disc bulge on MRI scan, cervicoscapular strain/sprain, chronic myofascial pain syndrome, mild depression secondary to chronic pain, impaired work capacity, and impaired avocational capacity. He opined the majority of the applicant's pain problems are related to ". . . the incident in July of 1994 with reaggravation two weeks later." He concluded that her problem appeared to be primarily myofascial/muscle type pain and recommended a multidisciplinary chronic pain treatment program.

Dr Park gave essentially the same diagnoses and treatment as Dr. Jankus, except that on August 16, 1996, Dr. Park opined that the applicant seemed to be developing greater trochanteric bursitis on the left side with increased trigger activities in the gluteal muscles and quadratus lumborum. On August 30, 1996, Dr. Park wrote that formal evaluation was deferred and much of the time was spent on the process of recovery of chronic myofascial pain syndrome and perpetuating factors. He did not explain what he meant by perpetuating factors.

CHOICE OF PRACTITIONERS

The administrative law judge found that since Dr. Berry was the applicant's first choice of treating practitioner, and Dr. Fitzthum was her second choice, her treatment expenses from Dr. Riegleman and Dr. Perdziak must be disallowed pursuant to Wis. Stat. § 102.42(2). However, when Dr. Berry retired in early 1995, the applicant's first choice of treating physician was no longer available to her. The administrative law judge reasoned that because the statute is silent with respect to the circumstances of a previously-chosen physician retiring, he was required to rule that any practitioner chosen to replace such retiree must be considered a new choice.

In construing a statute, the primary goal is to reach a reasonable construction which will effectuate the statute's purpose. Stoll v. Adriansen, 122 Wis. 2d 503, 510, 362 N.W.2d 182 (1984). The basic purpose of the Worker's Compensation Act is to provide certain, prompt, and reasonable financial and medical benefits to employes who are injured on the job. Lisney v. LIRC, 171 Wis. 2d 499, 522, 493 N.W.2d 14 (1992). The Worker's Compensation Act was created to ensure that employes who become injured or ill through their employment receive the prompt and comprehensive medical care that is necessary for their well being. UFE Inc. v. LIRC, 201 Wis. 2d 274, 288, 548 N.W.2d 57 (1996).

In accordance with the purpose and intent of Wis. Stat. § 102.42(2), the commission finds that the most reasonable construction of that statute as applied to the facts of this case is that the applicant was entitled to choose a replacement for her first choice of medical practitioner when that practitioner retired. (2) There is no indication that when Dr. Berry retired he referred the applicant to any other practitioner to take his place. If he had, the applicant would have been bound to go to that practitioner rather than choosing her own replacement. The applicant chose Dr. Riegleman to replace the retiring Dr. Berry, and Dr. Riegleman thereby assumed the status of her first choice of practitioner.

Dr. Riegleman referred the applicant to Dr. Perdziak for purposes of consultation, examination and evaluation. Such referral was entirely reasonable and ordinary. Dr. Perdziak's report demonstrates that he performed an extremely thorough examination and review of the applicant and of her medical history, which perhaps helps to explain what both parties describe as a "rather hefty" fee for his services. The employer asserts that the fee ($928) should be rejected as unreasonable in amount, but no medical opinion has been submitted to support that assertion, and without one, the commission would be required to speculate to find that the charge was unreasonable in amount.

The employer also argued that the applicant should not be allowed separate choices of physicians for the two injuries at issue, i.e., the low back injury of July 22, 1994, and the upper back/neck injury of Feb 3, 1995. However, the 1994 and 1995 incidents were separate from each other, and they caused separate injuries. The right to choose practitioners under Wis. Stat. § 102.42(2) unmistakably applies to each new injury.

NATURE AND EXTENT OF DISABILITY AND LIABILITY FOR MEDICAL EXPENSE

There is some confusion in the applicant's case concerning the dates of injury claimed. The dates of injury claimed at hearing were July 22, 1994 and February 3, 1995. However, the applicant's primary medical opinion is from Dr. Perdziak, who in his WC-16-B dated February 19, 1996, lists the dates of injury as July 7, 1994 and August 4, 1995. In his report, Dr. Perdziak did recount the injuries of July 22, 1994 and February 3, 1995. He opined that the applicant's low back troubles are primarily attributable to the events of July 7, 1994, and July 22, 1994, without attempting to apportion between these two incidents. He opined that the injury of August 4, 1995, probably caused "most" of the applicant's upper back and neck troubles even though she had "some residual complaints" from the incident of February 3, 1995. Dr. Perdziak goes on to opine that the applicant's upper back/neck complaints were "minor" compared to her low back complaints, until the injury of August 4, 1995, which caused her to experience such increased pain in the upper back/neck that it rivaled or surpassed her low back complaints.

Considering Dr. Perdziak's opinion, particularly when read in conjunction with Dr. Berry's clinic notes of February 3, 1995 and April 3, 1995, and in conjunction with Dr. Goodman's opinion, the commission is left with a legitimate doubt that the applicant sustained any permanent disability attributable to the work injury of February 3, 1995. Dr. Berry's opinion that she had reached a healing plateau from that injury by April 3, 1995, is also accepted as credible.

It is clear from the applicant's testimony and the medical opinions that she did sustain an injury to her low back in the work incident of July 22, 1994. The applicant's own treating physician, Dr. Berry, opined on April 3, 1995, that there was nothing to suggest a herniated disc, just chronic back sprain to which he assigned two percent permanent partial disability. Dr. Perdziak's permanency assessment of four percent permanent partial disability for this injury is found to be too high, given the lack of objective evidence that there was any significant structural change attributable to the injury, and Dr. Goodman's credible opinion that the applicant has an underlying chronic pain syndrome. The applicant testified that she experiences relentless pain 24 hours a day, seven days a week, and that most of the pain is in the upper part of her left shoulder, but it also is in her low back and down her leg. Dr. Goodman's opinion that her symptoms are inconsistent with the seriousness of the injuries she has sustained, and are due in large part to chronic pain syndrome, is credible. Considering all of the medical opinions, the commission finds credible Dr. Berry's assessment of two percent partial disability attributable to the low back injury of July 22, 1994. The employer/insurer have previously conceded and paid this permanent disability in the amount of $3,160.

The applicant's claim for additional temporary disability beginning on April 23, 1996, is rejected. As previously found, the applicant had reached healing from her February 1995 injury by April 3, 1995; and she had reached a healing plateau from the July 1994 injury no later than February 14, 1996, the date Dr. Goodman first examined her and filed his report finding that healing plateaus had previously been reached.

Dr. Jankus and Dr. park, from the Valley Pain Clinic, saw the applicant on referral from the applicant's Department of Vocational Rehabilitation counselor. There is no evidence of referral to these physicians by Dr. Berry, Dr. Fitzthum, or Dr. Riegleman. Accordingly, treatment expense claimed from the Valley Pain Clinic will be disallowed because this represented treatment from third choice physicians without mutual consent by the employer.

The chiropractic expenses claimed for treatment from Dr. Riegleman through August 2, 1995, represent treatment the commission finds that the applicant accepted in good faith reliance upon Dr. Riegleman's opinion, and thus these expenses will be allowed under the rule of Spencer v. ILHR Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972). Expenses claimed from Dr. Riegleman as of August 4, 1995, are disallowed, because there is no way for the commission to discern whether this represents treatment for either of the two work injuries at issue, or for the work incident of August 4, 1995, or for a preexisting chronic pain syndrome. Dr. Riegleman's invoice through August 3, 1995, totals $2,087, which is the expense which will be allowed. The insurer previously paid $1,754.05 towards Dr. Riegleman's expenses, leaving a balance of $341.95, which should be paid to the non-industrial carrier, Employer's Health, as reimbursement for that portion of the expense accrued prior to August 4, 1995, which Employer's Health paid.

Charges from Radiology Fond du Lac, Ltd. and St. Agnes Hospital of Fond du Lac represent treatment ordered by Dr. Jankus and/or Dr. Park, and thus are not compensable because these were third choice physicians.

The expense for examination and evaluation by Dr. Perdziak is allowed in the amount of $928. A 20 percent attorney's fee will be assessed against the award of this expense.

The record is unclear with respect to whether the permanent disability the applicant sustained from the injury of July 22, 1994, contributed to a need for vocational rehabilitation; and if so, the degree of such contribution. Accordingly, this order will be left interlocutory with respect to the issues of vocational rehabilitation and/or loss of earning capacity attributable to the work injury of July 22, 1994.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, Dodge County shall pay to Dr. Michael A. Perdziak the sum of Seven hundred twenty-four dollars and forty cents ($724.40); and to applicant's attorney, John B. Edmondson, the sum of One hundred eighty-five dollars and sixty cents ($185.60).

This order is interlocutory only with respect to the issues of loss of earning capacity and vocational rehabilitation attributable to the work injury of July 22, 1994.

Dated and mailed December 17, 1997
polakow.wrr : 185 : 5 ND § 5.48  §9.2

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his consultation with the commission, the administrative law judge indicated that he found the applicant to have been a credible witness. The commission accepts that the applicant experiences ongoing pain symptoms in her left shoulder, low back, and leg. However, given the nature of the injuries she sustained on July 22, 1994, and on February 3, 1995, as well as the credible diagnosis of preexisting chronic pain syndrome, the commission does not find it credible that any of the ongoing shoulder/neck symptoms are attributable to either work injury at issue. The commission accepted that there was some permanent residual attributable to the lower back injury of July 22, 1994. However, the lack of objective evidence of any significant structural change, and again the credible diagnosis of a preexisting chronic pain syndrome, led the commission to infer that this residual is minimal.

cc: ATTORNEY JOHN B EDMONDSON
EDMONDSON LAW OFFICE

ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC

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Footnotes:

(1)( Back ) Other policy reasons for giving lesser weight to responsive-brief arguments include: (1) the fact that review of such arguments could have some chilling effect on the party who must decide whether to file a timely petition for commission review; (2) a reluctance on the commission's part to leave a petitioning party in a worse position than the party would have been had it not petitioned; (3) the additional burden such arguments place on an already overloaded administrative process; and (4) the potential for abuse of the commission's discretionary power by raising inappropriate arguments in the responsive brief. These concerns are discussed in Letha Nelson v. General Motors Corporation, Chevrolet Assembly Plant, 122 Mich. App. 499; 332 N.W.2d 514 (1983).

(2)( Back ) As the applicant points out in her brief to the commission, this was not a case of doctor shopping. By the time of Dr. Berry's retirement, the applicant was treating solely with that physician. While the applicant could have returned to Dr. Fitzthum for treatment, the statute is reasonably interpreted to allow her to replace her first choice of treating practitioner when that practitioner retires.