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


GREGORY POWERS, Applicant

ADVANCE TRANSPORTATION CO, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995044202


The applicant, as well as Advance Transportation Company and Liberty Mutual Fire Insurance Company (respondents), submitted petitions for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on June 4, 1999. Briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury to the applicant's back occurring on July 17, 1995.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and modifies in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is August 5, 1954, was employed as a dock worker and over-the-road truck driver for the employer. The dock work involved heavy lifting. The applicant had his initial back injury at work in 1984, and developed lower extremity pain in 1987, resulting in an L2-3 laminectomy in 1987. The laminectomy temporarily resolved the lower extremity pain but the back problem continued.

On July 17, 1995, the applicant was pulling a load of molding off a truck when he reinjured his back with pain again radiating into his leg. He received conservative medical treatment and continued to work with pain. On September 30, 1997, he was referred to an orthopedic surgeon, Dr. Peter Ullrich. On February 3, 1998, Dr. Ullrich performed an L4-5, L5-S1 fusion. The applicant was able to return to work on July 20, 1998, but continuing low back difficulties required him to receive additional physical therapy and treatment. The employer laid him off in December 1998, and has since gone out of business. He found work as a truck driver for another company, taking a $5.00-per-hour wage reduction. His treating physician, Dr. Randall Schultz, opines that the applicant needs to find another type of work, and has restricted him to light/medium work with occasional lifting up to 40 pounds.

Dr. Schultz opined that the applicant's work injury of July 17, 1995, aggravated, accelerated, and precipitated his preexisting degenerative condition beyond normal progression resulting in the fusion surgery of February 3, 1998. He further opined that the applicant's work duties over his 15 years of employment with the employer were a material factor in the onset or progression of his degenerative disc disease and spondylolisthesis.

At the insurer's request, Dr. Jeffrey Hrutkay examined the applicant on September 15, 1997. He opined that the applicant sustained a lumbosacral strain/sprain on July 17, 1995, and that he should have reached a healing plateau within six months after the injury, with no permanent disability. He further opined that the applicant has had "multiple aggravations of a chronic low back condition," which would make evaluation for surgery reasonable. However, he related this possible need for surgery to the applicant's preexisting degenerative lumbar disc disease. Dr. Hrutkay reiterated his opinion in a supplemental report dated January 9, 1998, about one month prior to the applicant's surgery. No report was submitted from Dr. Hrutkay subsequent to the surgery.

The commission concurred with the administrative law judge that Dr. Schultz' opinion is credible, to the effect that the applicant sustained an occupational back disease attributable to his employment with the employer. This employment resulted in significant stress on the applicant's back over a lengthy period of time, as well as a succession of traumatic low back injuries. Even Dr. Hrutkay acknowledged that the applicant has had "multiple aggravations" and "flare-ups" of his chronic low back condition making evaluation for surgery reasonable. Dr. Hrutkay did not identify any nonindustrial incidents which would fit these descriptions. His opinion that the industrial incidents were merely symptoms of the progression of the applicant's underlying disease is not credible, and does not directly address the question of whether such incidents were a material, contributory causative factor in the onset or progression of the applicant's back condition. In accordance with Dr. Schultz' opinion, the applicant's back condition ripened into an occupational disease on July 17, 1995, the date of occupational injury.
The applicant is entitled to temporary total disability from February 2, 1998 to July 20, 1998 (both dates exclusive), attributable to the compensable surgery of February 3, 1998. This is a period of 23 weeks and five days. Pursuant to Wis. Stat. § § 102.43(1) and (7), the applicable rate is $523 per week, which results in a total award for temporary total disability of $12,464.83. Of this amount, $5,277.95 will be ordered reimbursed to Central States Health and Welfare Fund for reimbursement of sickness and accident benefits paid to the applicant for this time period.

Dr. Schultz credibly assessed an additional 10 percent permanent partial disability attributable to the 1995 occupational injury (the applicant received five percent permanent partial disability for his 1987 laminectomy and the equivalent of three percent permanent partial disability in a compromise for a 1989 back injury).

Reasonably required medical expenses will be ordered paid as follows: to Dr. Randall Schultz the amount of $14; to Spine Therapy Center the amount of $258.77; to Mercy Medical Center the amount of $161.10; to Belville Fletcher Chiropractic the amount of $71.50; to Radiology Associates of Fox Valley the amount of $55; to Theda Clark Memorial Hospital the amount of $272; to the applicant as reimbursement for prescription expense the amount of $243.49; to the applicant as reimbursement for medical mileage expense the sum of $329.85; and to Central States Health and Welfare Fund reimbursement in the sum of $25,049.35.

The administrative law judge declined to assess loss of earning capacity, choosing to leave that issue interlocutory and contingent on the applicant consulting with the Department of Vocational Rehabilitation (DVR). Considering the applicant's age, education, work history, physical restrictions, and the fact that as of the hearing date he was working, the commission infers that the DVR would most probably advise the applicant to continue his current employment as long as possible, and then seek new employment without retraining. The applicant is currently 45 years old, has a GED and below average academic skills. He has worked as a cement finisher, machine operator, factory assembler, shop foreman, and then as a truck driver/loader. As previously noted, Dr. Schultz has restricted him to light/medium work. He is capable of full-time employment, but has been medically advised to get out of the trucking profession as soon as he can. He has basic work skills and experience which make him readily employable, albeit at a lower wage rate than he has earned as an over-the-road truck driver.

The applicant was earning $18.33 per hour based on a 40-hour work week, and the vocational experts have indicated he should be able to find employment paying anywhere from $9.13 per hour to $14.87 per hour (respondents' expert providing the higher estimates). Both vocational experts suggest the possibility of manufacturing work, which is inferred to be the most likely area in which the applicant could find employment when he stops driving a truck. Based on all these considerations, the commission finds that the applicant has sustained a 40 percent loss of earning capacity, in accordance with the low end of the assessment made by the applicant's vocational expert. The 10 percent permanent functional disability is subsumed into this assessment.

Applicant's attorney is entitled to a 20 percent fee against that portion of the temporary total disability award not previously offset by payments from Central States, or 20 percent of $7,186.88 amounting to $1,437.38. Applicant's attorney is also entitled to a 20 percent fee against the entire award for permanent partial disability, less an interest credit of $2,100.90 for immediate payment, for a present value fee of $11,019.10. The combined present value fees total $12,456.48. Costs are also due in the amount of $706.51.

The applicant is entitled to immediate payment of temporary total disability in the amount of $5,749.50, and immediate payment of accrued permanent partial disability in the amount of $8,346.29. Beginning December 15, 1999, a monthly payment of $710.67 shall be made to the applicant for presently-unaccrued permanent partial disability, until the presently-unaccrued total of $43,427.50 has been paid.

NOW, THEREFORE, this

ORDER

The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, Advance Transportation Company or Liberty Mutual Insurance Company shall pay to the applicant as compensation for temporary total disability and permanent partial disability the total amount of Fourteen thousand ninety-five dollars and seventy-nine cents ($14,095.79); to applicant's attorney, Gregory Meyer, fees in the amount of Twelve thousand four hundred fifty-six dollars and forty-eight cents ($12,456.48), and costs in the amount of Seven hundred six dollars and fifty-one cents ($706.51); to Central States Health and Welfare Fund as reimbursement for payments it made offsetting temporary total disability the amount of Five thousand two hundred seventy-seven dollars and ninety-five cents ($5,277.95); to Dr. Randall Schultz the sum of Fourteen dollars ($14); to Spine Therapy Center the sum of Two hundred fifty-eight dollars and seventy- seven cents ($258.77); to Mercy Medical Center the sum of One hundred sixty-one dollars and ten cents ($161.10); to Belville Fletcher Chiropractic the sum of Seventy-one dollars and fifty cents ($71.50); to Radiology Associates of Fox Valley the sum of Fifty-five dollars ($55); to Theda Clark Memorial Hospital the sum of Two hundred seventy-two dollars ($272); to the applicant as reimbursement for prescription expense the sum of Two hundred forty-three dollars and forty-nine cents ($243.49); to the applicant as reimbursement for medical mileage expense the sum of Three hundred twenty-nine dollars and eighty-five cents ($329.85); and to Central States Health and Welfare Fund as reimbursement for medical expenses the sum of Twenty-five thousand forty-nine dollars and thirty-five cents ($25,049.35).

Beginning on December 15, 1999, and continuing monthly thereafter, Advance Transportation Company or Liberty Mutual Fire Insurance Company shall also pay to the applicant the sum of Seven hundred ten dollars and sixty-seven cents ($710.67), until the presently-unaccrued permanent partial disability has been paid in the amount of Forty-three thousand four hundred twenty-seven dollars and twenty cents ($43,427.20).

Dated and mailed November 17, 1999
powegr.wrr : 185 : 7   ND § 5.39

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission modified the administrative law judge's decision in order to resolve the issue of loss of earning capacity, which the administrative law judge had deferred until the applicant could be evaluated by the DVR. The commission would normally agree that an assessment of loss of earning capacity should be deferred pending evaluation by the DVR; however, in this case the applicant has demonstrated an ability to work full-time, his restrictions allow him to perform light/medium work, and his age, work experience, and academic skills lead to the inference that DVR would advise him to seek employment without retraining. In addition, the parties had each submitted vocational opinions. The commission inferred that to require an assessment by DVR at this point would only result in fruitless delay and additional expense for all the parties.

cc: ATTORNEY GREGORY MEYER
STAFFORD & NEAL SC

ATTORNEY DAVID L STYER
KASDORF LEWIS & SWIETLIK SC


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