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

PAMELA KRIZSAN, Applicant

COUNTRY NURSES INC, Employer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997044020

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 employer and its insurer (collectively, the respondent) concede jurisdictional facts and an average weekly wage of $400. The respondent also concedes temporary total disability to July 31, 1997, but asserts it overpaid temporary disability beyond that point in the amount of $1,692.56. The applicant, for her part, seeks additional temporary total disability from January 2 to November 13, 1998, permanent partial disability on a functional basis at three percent compared to disability to the body as a whole, and compensation for loss of earning capacity at 30 to 40 percent. The respondent opposes these additional claims.

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 was born in 1972. She has worked as a certified nursing assistant (CNA) since 1992. She began working for the employer in March 1996. The applicant sustained a conceded back injury on July 16, 1997, when she was rolling a 230-pound resident over in bed. Shortly after her injury, the applicant was assigned light duty doing office work by the employer. She performed work in that capacity until January 2, 1998, when the employer stopped providing the work based on an independent medical examination.

Following a December 1997 independent medical examination for the insurer, Anoo Patel, M.D., issued a report dated January 8, 1998, opining that the applicant had made a full recovery from her work injury on July 31, 1997. Dr. Patel felt the applicant had sustained a left side strain, from which the applicant had made a complete recovery by July 31. At that point, the applicant began complaining of muscle spasm in the right side of the back, which Dr. Patel believed was a completely different symptom not related to the work injury.

About the same time in January 1998, the applicant's doctor, Anne Griffiths, M.D., set work restrictions allowing light work, but prohibiting lifting, pushing, pulling and twisting. See exhibit B. Dr. Griffiths reported that the applicant was unable to do the lifting involved in her nursing assistant job, but thought she could achieve that level of physical ability with work hardening. Indeed, Dr. Griffiths recommended work hardening, but noted that it was not provided. (1)

In March 1998, the applicant began treating with another doctor, H.D. Duck, M.D., whose March and May 1998 restrictions permitted only office work. Exhibit G. Dr. Duck referred the applicant to William E. Fowler, M.D., in July 1998.

Dr. Fowler set temporary restrictions in July 1998 as follows:

"`light' work, which involves carrying or frequently lifting 10 pounds frequently, occasionally lifting nothing heavier than 20 pounds. She should have the physical freedom to change body position and/or activity at least every 15, per comfort, and specifically avoid trunk twisting and flexion-type activities."

See exhibit D, page 2, point 4.

Meanwhile, in August 1998, Dr. Fowler wrote to the applicant's attorney, opining that the applicant's persistent low back discomfort seemed directly attributable to her July 16, 1997 work activities. He opined she remained in a healing period, and reiterated his light duty restrictions. Dr. Fowler again reiterated these restrictions on re-examination in September 1998. See exhibit C.

Then, in November 1998, Dr. Fowler opined the applicant reached a healing plateau. He issued new, end-of-healing restrictions of:

"work at a light/medium level (frequent carrying or lifting up to 20# maximum, occasional lifting up to 30# maximum,) provided she avoids repetitive trunk twisting, flexion, and other repetitive motions while otherwise being allowed to frequently change body position and/or other activity as she needs to, for her comfort. She should attempt to minimize highly repetitive trunk motions such as flexion and twisting."

See Exhibit E, page 2 and Exhibit F. He rated permanent partial disability at three percent compared to permanent total disability for residual musculoskeletal discomfort.

Like the ALJ, the commission credits Dr. Fowler's diagnosis, restrictions and disability assessment. Indeed, the ALJ's conclusion on this point is not strenuously disputed by the respondent. Instead, the respondent contends that it offered work within Dr. Fowler's restrictions, but the applicant unreasonably refused it. The respondent's assertion goes to the applicant's claim for temporary disability after such an offer was made under Wis. Admin. Code § DWD 80.47, and to her claim for loss of earning capacity under Wis. Stat. § 102.44(6)(a), (b) and (g).

As noted above, shortly after the July 1997 work injury, the applicant was provided light duty work in the employer's office. However, the employer stopped offering office work on January 2, 1998 (respondent's exhibit 2). According to the employer's president, Judy Mantz, the employer stopped offering the office work based on IME Patel's report indicating the applicant had long since recovered without permanent disability from the work injury.

At some point after the office work ended, the employer offered the applicant work at a client nursing home doing feeding several hours per day, or work providing in- home health care. President Mantz testified the home health care involved working with a mentally retarded person. Ms. Mantz' testimony indicates the job normally included doing vacuuming and laundry, but that she told the applicant she would not have to do those tasks if they were not within her restrictions. The remaining duties would have been providing social interaction with activities such as watching movies and coloring. According to Ms. Mantz, this work paid as much or more than the applicant had been earning per hour before the work injury.

The applicant refused the offers. Ms. Mantz' testimony suggests that the applicant told her it was because she did not think she could physically handle the work. Until May 1998, at least, Dr. Duck had released the applicant only for office work.

In July 1998, about the time Dr. Fowler issued his first set of light duty restrictions, the employer sent the applicant a letter informing her that the offer with the mentally retarded person was still available. The letter stated the work involved absolutely no physical demands, as the fellow needed only guidance and social intervention. The letter also told the applicant to call within a specified time period, and to submit medical reports, or she would be considered to have quit.

At this time, the applicant was under the initial restricted light duty limitations set by Dr. Fowler. Exhibit 3. According to the applicant, she discussed the employer's letter with Dr. Fowler, and he advised her not to accept the work.

In his letter discussing his July 1998 restrictions, Dr. Fowler noted that his restrictions prohibited "assisting patients transferring between bed and chair, or otherwise providing such extensive physical assistance of patients." Exhibit D, point 4, page 3. In his final restrictions, he reported her restrictions precluded the resumption of nursing assistance type work. His written restrictions in the record do not specifically address the home health care work providing social interaction and guidance to a mentally retarded person.

President Mantz initially testified that upon receiving Dr. Fowler's permanent restrictions in November 1998, she called the applicant and offered her work again, but the applicant told her she did not want work because she was due to have a child in two weeks. However, on cross-examination, Ms. Mantz apparently retracted that testimony, testifying instead that in fact the applicant called her, and that she (Mantz) did not offer her work within Dr. Fowler's restrictions. Rather, she evidently told the applicant she had been terminated, or at least placed on inactive status, but that the employer would try to help her get "current" which apparently involved taking a TB test.

The applicant testified that during the December 1998 phone call, the home health care work with a mentally retarded person was mentioned again. She acknowledged that she told the employer she was due to have a baby in two weeks, and would have to have a Caesarean section. The employer then told her she was terminated.

To bar the applicant's claim for loss of earning capacity under Wis. Stat. § 102.44(6)(g), the commission must conclude that from the record before it that the employer offered work at 85 percent of the applicant's pre-injury wage which the applicant refused. On the other hand, there is no "85 percent rule" for temporary disability benefits; instead the question is simply whether the employer furnished suitable work within the applicant's restrictions under Wis. Admin. Code § DWD 80.47.

When the nursing home feeding job and the home health care work were first offered sometime after January 2, 1998, either job would have been beyond the office work-only restriction set by Dr. Duck until May 1998. The feeding work also seems beyond Dr. Griffiths' restrictions which barred twisting and beyond the initial restrictions of Dr. Fowler to light work with no trunk twisting of flexion. The feeding work does not appear to have been offered or mentioned after May 1998.

The commission concludes that the applicant reasonably refused the nursing home feeding offer without adverse effect on either her temporary disability or loss of earning capacity claim. The home health care work however, is a closer call, since Ms. Mantz testified that the applicant would not have to do the normal activities of laundry and vacuuming. However, the commission reaches the same conclusion with respect to that offer or offers as well.

With regard to ending or reducing temporary disability benefits under Wis. Admin. Code § DWD 80.47, the commission has consistently held that it is the employer's burden to provide work within the applicant's restrictions. (2) While the question of whether the home health care worker position offered by the employer was within the initial set of restrictions imposed by Dr. Fowler prior to the healing plateau is disputed, the commission declines to resolve that question against the applicant.

It is true that the applicant offers only hearsay testimony that Dr. Fowler told her that the job was beyond her restrictions and that President Mantz testified that the applicant could do the offered work within Dr. Fowler's restrictions. (3) On the other hand, as the respondent states in its brief, the employer discussed with Dr. Fowler the applicant returning to work. Had the employer obtained a written opinion from Dr. Fowler about the home health care work with the mentally retarded man, it could have resolved this issue beyond question. Further, in its brief, the respondent states: "In fact, Dr. Fowler's last set of physical limitations as authored on November 13, 1998 would not have prevented her from doing the job offered by Ms. Mantz.." Respondent's brief dated May 26, 1999, page 6. As noted above, the restriction set by Dr. Fowler upon the end of healing in November 1998 are laxer than those set during the healing period in July 1998. On this record, the commission concludes that the employer has failed to show it furnished work within the applicant's restrictions as set by Dr. Fowler in July 1998 during the healing period. The applicant is entitled to temporary total disability for the periods claimed.

With respect to the question of loss of earning capacity, the commission cannot conclude that the employer would have provided work coloring, watching videos, and interacting with the retarded person at 85 percent of the applicant's pre-injury wage. Normal home health care duties required much more physical work. The employer stopped its initial attempt to accommodate the applicant with office work as soon as it got an IME report to justify the action, despite her significant continuing restrictions set by treating doctors. The employer has also never indicated exactly how many hours of the modified home care/nursing assistant work the applicant would have been given on a weekly basis. (4) The employer did not extend an offer of continuing work when the applicant reached an end of healing. Indeed, the inconsistent testimony of Ms. Mantz indicates that no work was actually offered upon the end of healing. All of this leads the commission to question whether the employer ever made a good faith offer of the type of continuing work that justifies cutting off an award for permanent vocational disability or loss of earning capacity under Wis. Stat. § 102.44(6)(a).

The employer contends this case exemplifies the problems with trying to put an unwilling worker back to work. However, the applicant's doctors have told her she cannot return to certified nursing assistant work. She testified her doctors told her she should not work as a home health care aide, either, and that testimony is consistent with the restrictions the doctors, including Dr. Fowler, imposed. Finally, it does not appear the employer even really offered any work in December 1998, when she finally reached her healing plateau. On this record, the commission must conclude that the employer really had no continuing work except the more physical work that caused applicant's injury and is now beyond her restrictions.

The next question is the extent of the applicant's loss of earning capacity. The employer's vocational expert, John Metzler, opined that based on Dr. Fowler's restrictions and assuming that Ms. Mantz in fact did not offer the applicant work within her restrictions, the applicant would have sustained a 15 to 25 percent impairment in wage earning ability. The applicant's expert, Timothy Greenya, rated loss of earning capacity in a range of 30 to 40 percent. After considering the applicant's permanent work restrictions which preclude a return to her former occupation, her relatively young age, her education which includes a GED and six weeks of nurses assistant training, and the limited transferability of the applicant's skills or training to the clerical positions the vocational experts agree she is able to perform, the commission finds the ALJ's rating of 35 percent loss of earning capacity quite reasonable on the record. (5)

Accordingly, the applicant is entitled to temporary total disability from the day she stopped working for the employer (January 2, 1998) to the healing plateau date fixed by Dr. Fowler (November 13, 1998.) This is a period of 44 weeks and 5 days, compensable at $266.67 per week (two-thirds of her average weekly wage of $400), or $11,955.56.

In addition, the applicant has sustained a loss of earning capacity of 35 percent. This works out to 350 weeks of benefits, at $174 per week, or $60,900. As of October 7, 1999, 68 weeks and 2 days of compensation totaling $11,890 has accrued, 281 weeks and 4 days totaling $49,010 are unaccrued. Including the temporary disability award, $23,645.56 is outstanding in accrued unpaid compensation.

The applicant approved an attorney fee under Wis. Stat. § 102.26 on the additional amounts awarded. The future value of the fee equals $14,571.11, which is twenty percent of the award of $72,855.56 ($60,900.00 plus $11,955.56.) However, the fee attributable to accrued unpaid compensation equals $4,769.11; the unaccrued fee of $9,802 is subject to an interest credit of $1,648.62. The present value of the entire attorney fee is thus $12,922.49, and that amount plus costs of $610 shall be paid within 30 days.

The amount due the applicant within 30 days is $18,466.44. This equals the amount accrued to September 10, 1999 ($23,645.56), less the accrued attorney fees ($4,769.11) and costs ($610).

The amount remaining to be paid to the applicant as it accrues is $39,208.00. This equals the unaccrued portion of the award ($49,010), less the future value of the fees thereon ($9,802.00). This amount shall be paid to the applicant in monthly installments of $754.

The applicant also received the following reasonable and necessary medical expenses to cure and relieve the effects of her work injury: from Dean/Riverview Clinic, $903, of which $100 was paid by the applicant, $699.20 was paid by United Heartland, and $103.80 remains unpaid; from Whitewater Family Practice $615, of which $50 was paid by the applicant, $78 was paid by United Heartland, and $487 is unpaid; from Bone & Joint Clinic, $222.00, of which $65.20 was paid by the applicant, $156.80 was paid by United Heartland; from Memorial Community Hospital, $1,249.75, of which $1,141.88 was paid by United Heartland, and $107.87 remains unpaid; from Ft. Atkinson Memorial Health Services, $5,729, of which $1,011.60 was paid by the applicant, $4,496.99 was paid by United Heartland, and $220.41 remains unpaid. (6)

Based on Dr. Fowler's November 13, 1998 note at exhibit C, the commission concludes that the applicant may sustain additional disability and medical expense. Accordingly, this order shall be left interlocutory to permit awards for future disability and medical expense.

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 forgoing, 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, Eighteen thousand four hundred sixty-six dollars and forty-four cents ($18,466.44) in disability compensation.

2. To the applicant's attorney, James A. Meier, the sum of Twelve thousand nine hundred twenty-two dollars and forty-nine cents ($12,922.49) in attorney fees and Six hundred ten dollars and no cents ($610.00) in costs.

3. To Dean/Riverview Clinic, One hundred three dollars and eighty cents ($103.80) in medical expense.

4. To Memorial Community Hospital, One hundred seven dollars and eighty-seven cents ($107.87) in medical expense.

5. To Ft. Atkinson Memorial Health Services, Two hundred twenty dollars and forty-one cents ($220.41) in unpaid medical expense.

6. To United Heartland, Six thousand five hundred seventy-two dollars and eighty-seven cents ($6,572.87) as reimbursement for medical expense paid.

7. To the applicant, One thousand two hundred twenty-six dollars and eighty cents ($1,226.80) for out-of-pocket medical expense.

On November 7 and continuing on the seventh day of each month beginning thereafter, the employer and its insurer shall pay the applicant the sum of Seven hundred fifty-four dollars and no cents ($754) per month until the total remaining amount of Thirty-nine thousand two hundred eight dollars and no cents ($39,208.00) has been paid.

Jurisdiction is reserved for such findings, orders and awards as may be justified consistent with this decision.

Dated and mailed October 5, 1999
krizanp.wrr : 101 : 5 ND §5.9  § 5.23

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He informed the commission that he found credible the applicant's testimony that she discussed with Dr. Fowler the work with the mentally retarded person outlined in exhibit 3, and that the doctor advised against taking the job. The commission accepts the ALJ's credibility assessment on this point.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Dr. Griffiths, a treating doctor, reported "Patient can not now do the lifting required for her N.A. job. I believe she could achieve this with rehab/hardening if she is motivated to do so & if the employer motivated to assist her." Dr. Griffiths had given her an excuse to be off work until after an MRI and EMG rule out nerve root problems. Dr. Griffiths originally diagnosed back muscle sprain. The pain was left side from about T10 to L4. By July 31, 1997 the pain had moved to the right side.

Dr. Patel found that the original symptoms of the work injury resolved and then different symptoms occurred. He reports "The right sided back pain is not related to the July 16th incident. As discussed in the impression section, the location of symptoms and severity have varied too significantly to have any relationship to the work incident of July 16, 1997. Dr. Patel did not find any permanent disability related to the work incident when he examined the applicant December 15, 1997.

I believe the employer offered her work within restrictions given her by Dr. Griffiths and Dr. Fowler which she refused. Even if Dr. Patel is incorrect, I have great difficulty finding that this applicant has a 35% loss of earning capacity based on a muscle strain/sprain and a 3% permanent partial disability rating. I believe it is fair to interpret Dr. Griffiths note to mean that she did not believe that the applicant was motivated to return to work. I would also find that the applicant told her doctors that the employer had no work within her restrictions when it was work she did not want to do.

For these reasons, I would reverse on the loss of earning capacity claim.

_______________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY PAUL R RIEGEL
MICHAEL BEST & FRIEDRICH LLP

ATTORNEY JAMES A MEIER
MEIER WICKHEM LYONS & SCHULZ SC

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Footnotes:

(1)( Back ) The dissent interprets certain language in Dr. Griffiths' note to mean that the applicant was not motivated to return to work. The majority declines to draw that inference, and notes that Dr. Griffiths' note also states: "I recommended work hardening; W.C carrier refused."

(2)( Back ) Katrina Baker-Drayton v. St. Annes Home for the Elderly, WC claim no. 1995-038417 (July 12, 1999).

(3)( Back ) The respondent's vocational expert, John Meltzer, opined that, if as Ms. Mantz said she offered work within Dr. Fowler's restrictions, then there would be no loss of earning capacity. The commission does not read Mr. Meltzer's report to specifically opine that the work offered was within Dr. Fowler's restrictions. Exhibit 5, page 7.

(4)( Back ) In determining the wage loss under the 85 percent rule in Wis. Stat. §102.44(6), the basis of comparison is the weekly wage. Douglas Schmidt v. Liberty Mutual Fire Ins Co, WC claim no. 1996064176 (LIRC, June 30, 1999).

(5)( Back ) As the applicant pointed out in her brief, the employer does not challenge this figure.

(6)( Back ) The itemizations for 7/25/97 and 11/3/97 do not add up.