STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DONALD A FALK, Applicant
CUMMINS GREAT LAKES INC, Employer
TRAVELERS INSURANCE COMPANY, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995034834
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:
Delete the sixth paragraph of the ALJ's Findings of Fact and Conclusions of Law.
ORDER
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed December 8, 1999
falkdo.wmd : 101 : 7 ND § 5.24
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The applicant sustained a conceded work injury to his low back. As a result of that injury, he underwent back surgery on November 21, 1995. At issue before the ALJ, and now on appeal to the commission, is the extent of the applicant's permanent partial disability on a functional basis.
The applicant's back surgery included a two-level laminectomy and fusion with instrumentation. The exact procedure is thoroughly described in the ALJ's decision, and in the materials supplementing the respondent's petition. (1) The supplemental materials make it clear to even a lay reader that while the applicant underwent a partial removal of the lamina and a fusion at two levels in his lumbar spine, the surgery did not include removal of disc material.
The applicant's treating doctor rated permanent disability following the procedures in the two-level operation at 20 percent compared to permanent total disability under Wis. Adm. Code § DWD 80.32(11). The respondent disputes this rating, arguing that a two-level fusion without removal of disc material mandates a total minimum assessment of only 10 percent. Essentially, the respondent contends that because the applicant's attorney conceded that a laminectomy and fusion go hand in hand, a person does not have one without the other, (2) they are essentially the same procedure and result in only a five percent minimum permanent disability rating under Wis. Adm. Code § DWD 80.32(11). In support of this argument, the respondent notes that the code provides for an additional five percent per level for a discectomy, but the applicant here did not have a discectomy procedure.
However, the commission concludes that the treating surgeon and the ALJ appropriately rated permanent disability at 20 percent. True, the text of the administrative rule itself refers to spinal fusions and removal of disc material as separate procedures, but does not similarly refer to a laminectomy as a separate procedure. However, the Note appended to the rule states:
"It is the subcommittee's intention that a separate minimum 5% allowance be given for every surgical procedure (open or closed, radical or partial) that is done to relieve from the effects of a disc lesion or spinal cord pressure. Each disc treated or surgical procedure performed will qualify for a 5% rating. Due to the fact a fusion involves two procedures a 1) laminectomy (discectomy) and a 2) fusion procedure, 10% permanent total disability will apply when the 2 procedures are done at the same time or separately."
In the commission's view, the subcommittee's Note resolves this issue. The persuasive value of the department's interpretive notes is generally acknowledged, (3) and the commission observes that the subcommittee's Note was promulgated as part of the rule itself. The first sentence of the Note indicates that five percent permanent partial disability is given for any procedure, including partial procedures, done to relieve spinal cord pressure. In this case the operative report and the treating surgeon's letters establish that the purpose of the partial laminectomy was "decompression" or to relieve spinal cord pressure. Indeed, the operative note distinguishes between the decompression (laminectomy) procedure and the instrumentation (fusion) procedure.
Beyond that, of course, the third sentence of the subcommittee's Note states that the minimum award for a surgery including both a laminectomy procedure and a fusion procedure is 10 percent per level involved. The commission declines to read from the inclusion of the parenthetic term "(discectomy)" that the subcommittee erroneously thought that discectomy and laminectomy are the same procedure, and that the ten percent rating applies only when a discectomy is actually involved. Read in conjunction with the first sentence of the note and the examples provided after the Note, the commission infers the parenthetical term "(discectomy)" was included to make it clear that a 15 percent rating would not be given for a surgery involving all three procedures (fusion, laminectomy, and discectomy). In any event, the commission is satisfied that the most reasonable reading of the rule requires a minimum of 20 percent permanent partial disability on a functional basis (10 percent per level) in this case.
cc: ATTORNEY JOHN S BARTHOLOMEW
BARTHOLOMEW LAW OFFICE
ATTORNEY MARK P MC GILLIS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
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Footnotes:
(1)( Back ) The commission could not find copies of these supplemental materials (including the November 1995 operative report and three letters between the applicant's attorney and his surgeon) in the exhibits admitted at the hearing. However, in his brief, the applicant acknowledges the accuracy of the information contained in the surgeon's letters and the November 1995 operative report, and does not dispute their use on appeal; the commission thus concludes that they may be considered with the other medical records as evidence in this case.
(2)( Back ) Although it is not a factor in the resolution of this case, the commission questions the accuracy of this statement. A review of past commission decisions discloses many instances where a laminectomy procedure was performed, but a fusion was not. For a partial list of such cases, see those searchable in the commission's website (http://dwd.wisconsin.gov/lirc/wc_find.htm) under the Boolean phrase "laminectomy and not fusion". Beyond that, as the examples in Wis. Admin. Code § DWD 80.32(11), indicates a "refusion" may be performed without a second laminectomy.