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

SHARON A PRITZL, Applicant

WG & R BEDDING CO, Employer

NORTHBROOK INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995023243

The employer and its insurance carrier (collectively the respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 25, 1998. The applicant submitted an answer to the petition and briefs were submitted by the parties. On February 5, 1998, the commission ordered the appointment of an independent physician to examine the applicant and render an additional medical opinion. The department appointed Dr. James Martin to perform the examination. Dr. Martin completed his examination on February 18, 1999, and the matter was subsequently returned to the commission for decision. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of November 23, 1994.

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 Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is November 13, 1950, was employed as a quilter for the employer, a bedding manufacturer. On November 23, 1994, she pulled on a roll of shelved fabric wrapped in plastic. The plastic broke loose causing her to fall backwards onto the concrete, where she landed on her low back and buttocks. She testified that it hurt terribly, and after a co-worker helped her up she fell again. She was taken to the emergency room at Two Rivers Community Hospital. There x-rays were taken of her thoracic and lumbar spine but no fractures were seen. The emergency room physician discharged her with a diagnosis of "mid low- back injury," and took her off work until she could be reevaluated.

The applicant began treating with Dr. Mary Jo Capodice on November 28, 1994, and by this time she had developed left leg radiculopathy and lumbar muscle spasms. Dr. Capodice prescribed physical therapy and medication. She diagnosed a lumbar contusion with radiculopathy. A lumbar spine MRI was performed on January 30, 1995, and did not reveal a disc herniation, but did show a hemangioma in the sacrum.

At the insurer's request, Dr. James G. Gmeiner examined the applicant on February 7, 1995, and submitted a report dated February 17, 1995. He diagnosed a resolved lumbosacral strain with inappropriate symptoms and nonorganic findings upon physical examination. He found that a healing plateau had been reached with no permanent disability. As a result of this report the applicant attempted to go back to work on February 22, 1995, but could not tolerate it and has not returned to work since that day. Dr. Capodice continued conservative treatment including a manual rotation of the coccyx on May 1, 1995. This procedure had good results, and on May 15, 1995, Dr. Capodice again manipulated the applicant's coccyx which had deviated to the left.

On or about June 7, 1995, Dr. C. Szyman administered epidural injections and placed an indwelling epidural catheter in the applicant's low back. The catheter was for further, intermittent steroid injections. The applicant was also started on Prozac for depression. The steroid treatments did not have good results, and placement of the catheter resulted in a lumbar muscle infection. Treatment for the infection began on or about August 25, 1995, with the administration of intravenous vancomycin and gentamycin. This treatment was given by Dr. Ray C. Haselby. The applicant subsequently developed an elevated sedimentation rate and physical symptoms of nausea, vomiting, diarrhea, and ataxia. On October 8, 1995, Dr. Michael Hillman opined that the symptoms were almost certainly caused by vestibular toxicity of the gentamycin. Dr. Haselby had stopped the administration of gentamycin at the end of September 1995, due to azotemia (excess of nitrogenous bodies in the blood).

The applicant was seen by Dr. William G. Hocking on October 13, 1995, and he diagnosed a left paraspinal fluid collection, as well as anemia and leukopenia (reduction of the white blood cell count). The applicant was taken off all antibiotics at about this time, and the abscess from her infection remained, but was stable. She continued to have low back and left leg pain. On January 5, 1996, Dr. Thomas Nelson surgically debrided the paraspinal mass in the applicant's area of infection.

Dr. Gmeiner submitted a medical record review on January 16, 1996. He opined that the applicant developed a paralumbar abscess that was iatrogenic (physician caused) due to the placement of the catheter. He reiterated his opinion that the only work injury was a soft tissue contusion which reached an end of healing on February 7, 1995, and that the applicant had exhibited "illness behavior" which resulted in continuing treatment. On February 21, 1996, Dr. Gmeiner drafted a supplemental report in which he specifically opined that the placement of the epidural catheter was to treat "a condition other than a soft tissue contusion." He further opined that the pain complaints leading to placement of the catheter had no causal relation to the work injury but were causally related to "a condition personal to [the applicant]."

On February 6, 1996, Dr. Haselby referred the applicant to the Mayo Clinic, where she was evaluated by Dr. Sherwin Goldman. Dr. Goldman diagnosed labyrinth toxicity likely associated with antibiotic therapy, chronic low back and left leg pain of unresolved diagnosis, and status postoperative drainage of the paraspinal abscess. He recommended further treatment.

On March 8, 1996, the applicant was examined again by Dr. Haselby. She came to Dr. Haselby in a wheelchair with symptoms of continued low back and left lower extremity pain, as well as dysuria and right great toe paronychia (inflammation of the folds of skin around the nail). Dr. Haselby ordered another CT scan of the paralumbar area, which still showed contrast, but which Dr. Haselby did not believe showed any evidence of osteomyelitis.

Dr. Alexandra Logan saw the applicant in April and May of 1996, treating her for an ongoing infection in her right great toe, pharyngitis, leukopenia, and swollen lymph node on the right side of her neck. On August 14, 1996, Dr. A. G. Finesilver began treating the applicant. Dr. Finesilver noted that the applicant had chronic pain in her low back, right shoulder girdle, and posterior neck. He further noted that there was a chronic leukopenia, and positive antinuclear antibody titer which was consistent with systemic lupus. Dr. Finesilver diagnosed chronic myofascial pain syndrome involving the neck, right shoulder girdle, and lumbosacral spine; chronic depression; systemic lupus erythematosus with leukopenia; and chronic vertigo related to previous gentamycin toxicity. He found direct work causation for these conditions and assessed 15 percent permanent partial disability of the whole body. In a letter dated March 27, 1997, Dr. Finesilver opined that the applicant had reached the end of the healing period, but based on her chronic back and shoulder girdle problems, as well as her depression, he did not think she would likely be employable at any meaningful occupation.

Dr. Finesilver referred the applicant to Dr. Nancy S. Nowlin at the UW Hospital Rheumatology Clinic. Dr. Nowlin opined that the applicant has a connective tissue disease, probably either lupus or Sjogren's syndrome, or both. She further opined that it was "possible . . . but in no way can I say it is certain" that the onset of the disease or diseases was triggered by the physical stress of the work injury, subsequent infection, and surgery. She further opined that the applicant had some, but not all, of the features of reflex sympathetic dystrophy in her left lower extremity.

On August 12, 1996, Dr. Gmeiner submitted another report which essentially reiterated his previous opinions, particularly his opinion that the applicant's most significant disability was her "illness behavior."

On October 23, 1997, Dr. Stephen Hinckle submitted a report after a review of the applicant's medical records. He diagnosed a chronic muscular pain syndrome consistent with fibromyalgia, stemming from the work injury. He indicated that she should have been referred to a pain management program, but the treatment she did receive led to complications and a poor prognosis for recovery. Dr. Hinckle further opined that the presence of antinuclear and other autoantibodies was serendipitous, and he did not believe any specific rheumatic syndrome had developed as a consequence of the injury sustained on November 24, 1994 (sic). He opined that from the record it was not possible to reach any conclusion as to whether the applicant has systemic lupus or Sjogren's syndrome. He indicated that her symptoms are not specific to any rheumatic disorder and are much more typical of fibromyalgia. He conceded that she does have autoantibodies, and that her leukopenia does suggest the possibility of systemic lupus. However, he believes there is minimal evidence in medical literature that trauma can lead to the development of lupus or other inflammatory disorders.

The applicant's vocational expert, John Birder, found permanent total disability if you accept Dr. Finesilver's medical opinion. Respondents relied on Dr. Gmeiner's and Dr. Hinckle's opinions and did not submit a vocational report.

In response to the commission's order for an independent medical opinion, Dr. James Martin examined the applicant on February 18, 1999. He found significant "pain behaviors" in his exam, but did diagnose a myofascial low back pain attributable to the work incident, for which he assessed five percent permanent partial disability. He estimated the healing plateau as "early 1996", after the applicant had recovered from her abscess surgery. He assessed restrictions attributable to the back injury of sedentary work, no lifting more than 10 pounds, rare bending and twisting at the waist, and the ability to change posture as needed.

With regard to the applicant's dizziness symptoms, Dr. Martin attributed these to a vestibular neuropathy attributable to her antibiotic treatment with gentamycin for paraspinal abscess. He agreed with the other physicians that the abscess resulted from the epidural injection treatment which the applicant received. Dr. Martin also estimated "early 1996" as the healing plateau for this injury, and also rated it with a five percent permanent partial disability. His restrictions for this condition are that the applicant not work at unprotected heights or dangerous machinery due to a possible, sudden loss of balance.

Finally, Dr. Martin opined that neither the applicant's systemic lupus erythematosus nor her Sjogren's syndrome was causally related to the work injury of November 23, 1994.

Dr. Martin's opinions are accepted as credible. He credibly observed that the applicant has developed a permanent, myofascial back condition, consistent with her medical history since the work incident of November 23, 1994. While Dr. Gmeiner opined that the epidural catheter was placed for a condition personal to the applicant, the medical history credibly demonstrates that it was placed as treatment for the applicant's low back condition which had been ongoing since November 23, 1994. It is also inferred that the applicant acted in good faith in accepting this treatment recommendation from Dr. Szyman. As Dr. Martin noted, the infection and abscess which resulted from the placement of the catheter resulted in a vestibular neuropathy attributable to the treatment with gentamycin. The combination of permanent disabilities for the myofascial back condition and vestibular neuropathy amounts to 10 percent permanent partial disability to the whole body. Since the work injury caused more than one permanent disability specified in Wis. Stat. § 102.44(3), the multiple injury variation applies under Wis. Stat. § 102.53. This results in a one percent increase in the permanent partial disability award.

Dr. Martin fixed the healing plateau as "early 1996" for both the applicant's conditions. Beginning with Dr. Logan's treatment on April 12, 1996, the focus shifted from the applicant's back condition to her connective tissue disease as manifested by her leukopenia. Dr. Martin credibly opined that the applicant's systemic lupus erythematosus and Sjogren's syndrome were not related to her traumatic back injury or to her antibiotic therapy. Accordingly, the applicant's healing plateau is fixed at April 12, 1996, pursuant to Dr. Martin's opinion. Any temporary disability the applicant sustained on or after that date is found to have been attributable to her nonindustrial condition. The applicant was therefore temporarily totally disabled from November 23, 1994 through April 11, 1996, a period of 72 weeks and two days, which at the applicable rate of $172.32 per week totals $12,464.48. The record before the commission indicates that the insurance carrier previously paid $2,207.49 towards temporary total disability, leaving a balance due of $10,256.99.

With regard to the medical treatment, prescription expense, and mileage expense claimed in Applicant's Exhibit Q, any of these expenses which were incurred on April 12, 1996, or thereafter, are found to have been attributable to the applicant's nonindustrial condition and are not compensable. The applicant must submit a new WKC-3 to Northbrook Indemnity Company listing the appropriate medical expenses incurred prior to April 12, 1996, and unless there is a reasonable basis for disputing such expenses, Northbrook shall make immediate payment of them. Jurisdiction will be reserved in case there is a dispute concerning these expenses.

Dr. Martin's physical restrictions attributable to the work-related conditions are accepted as credible. In determining loss of earning capacity, a distinction must be made between restrictions attributable to the applicant's industrial conditions, and her nonindustrial condition. The commission concludes that both the applicant and the respondents should submit updated vocational opinions concerning the issue of loss of earning capacity, based on Dr. Martin's restrictions. The matter will be remanded for a hearing to allow the submission of this evidence, after which a department order addressing the issue of loss of earning capacity should be issued.

The functional disability of 10 percent results in an accrued award of 100 weeks, plus 10 weeks for the multiple injury variation pursuant to Wis. Stat. § 102.53(4), for a total of 110 weeks of compensation at the applicable rate of $158 per week. This amounts to $17,380.

A 20 percent attorney's fee will be subtracted from the awards for temporary total disability and permanent functional disability. Costs in the amount of $1,307.97 will also be subtracted.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant compensation in the amount of Twenty thousand eight hundred one dollars and sixty-two cents ($20,801.62); and to applicant's attorney, John M. Bruce, fees and costs in the total amount of Six thousand eight hundred thirty-five dollars and thirty-seven cents ($6,835.37).

The applicant is entitled to expenses for medical treatment, prescriptions and mileage attributable to her myofascial back and vestibular neuropathy injuries, up to but not including the date of April 12, 1996. The applicant must submit a new WKC-3 to the insurance carrier detailing such expenses, after which the insurance carrier shall make immediate payment, unless there is a reasonable basis to dispute such payment. Jurisdiction is reserved should there be such a dispute.

The matter is remanded to the worker's compensation division to allow the parties to obtain updated vocational opinions regarding the issue of loss of earning capacity. Thereafter, opportunity for hearing will be allowed to submit this new evidence, and the administrative law judge shall make new findings and issue a new order regarding the issue of loss of earning capacity.

Dated and mailed October 27, 1999
pritzsh.wrr : 185 : 7 ND § 5.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

When the commission consulted with the administrative law judge, he indicated that he found the applicant to have been a credible witness. However, the primary area of disagreement between the commission and the administrative law judge was with regard to the cause of the applicant's connective tissue disorder. The commission had the benefit of the additional medical opinion from Dr. Martin in determining that this condition was not casually related to the work injury of November 23, 1994. In addition, Dr. Martin noted significant pain behaviors in his examination of the applicant, including a "stocking" distribution of numbness in the left leg, inconsistencies in straight leg raising tests, and inconsistencies in the applicant's gait. The commission therefore found Dr. Martin's assessment of the applicant's condition to be more credible than the assessments of Dr. Finesilver and Dr. Capodice, which were relied upon by the administrative law judge.

The applicant's motion to supplement the record with the transcript of the deposition of Jacqueline Ducat taken on May 26, 1998, in a third-party action, is denied. The commission afforded no weight to Ms. Ducat's testimony at the hearing held before the administrative law judge on January 6, 1998.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While I agree with the majority that the applicant is not permanently and totally disabled, I would not find that the epidural catheter was used to treat the applicant's work injury. The work injury was a lumbar strain that had resolved by February 7, 1995 according to Dr. Gmeiner's report. The applicant did not have the epidural catheter placed in her back until June 1995. If I had believed that the epidural catheter was used to treat her work injury, I would have agreed with the majority. I found Dr. Gmeiner's opinion to be the most credible. For these reasons I would not award any permanent partial disability and would cut off temporary total disability as of February 7, 1995.

_________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY JOHN M BRUCE
SAVAGE GREGORSKI WEBSTER STANGEL BENDIX & BRUCE SC

ATTORNEY JAN M SCHROEDER
PETERSON JOHNSON & MURRAY SC

Appealed to Circuit Court.

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