STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
GLENDA CAMRON, Applicant
WAL MART, Employer
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997038462
A hearing was held in his case before an administrative law judge for the Worker's
Compensation Division of the Department of Workforce Development on June 2, 1999. Prior to
the hearing, the respondent conceded jurisdictional facts and an April 15, 1997
compensable injury. The respondent also conceded and paid certain periods of temporary
disability, as well as permanent partial disability at 8 percent in the amount of
$13,260.80.
The issues before the administrative law judge, and now before the commission, include the nature and extent of disability beyond that conceded. Specifically, the applicant seeks permanent partial disability on a functional basis at 15 percent compared to permanent total disability, and on a vocational basis for loss of earning capacity at 45 to 55 percent. Liability for medical expenses is also at issue.
The administrative law judge issued his findings of fact and interlocutory order in this case on June 16, 1999. The employer and the insurer (collectively, the respondent) have submitted a timely petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby affirms his findings of fact and interlocutory order, except as modified herein:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The first paragraph of the ALJ's Findings of Fact is affirmed and reiterated as if set forth herein.
2. Delete the second and third paragraphs of the ALJ's Findings of Fact, and substitute the following:
"Following the work injury and the onset of disabling back pain, she has had considerable diagnostic work up which revealed multilevel degenerative disc disease, degenerative changes including annular tears in the intervertebral discs, and reproduction of pain at several levels on discogram testing. See June 1, 1998 report of Fowler, page 1 at exhibit 2; report of Whiffen, exhibit 8, page 3.
"Based in part on the result of the discogram, treating doctor Fowler and the insurer's independent medical examiner (John Whiffen, M.D,) agree that the applicant is not a surgical candidate. Despite the fact she submitted to discograms testing (or maybe because of it), the applicant is reluctant to submit to treatment modalities which involve injections. She thus has refused epidural steroid injections to the spine and trigger point injections, both of which have been recommended by treating doctors. See June 1, 1998 (exhibit 2); January 8, 1999 (exhibit C) reports of Fowler; Gavelin letter of June 16, 1998 (exhibit 2). She has undergone physical therapy, which did not help.
"In September 1998, after the discogram testing, treating doctor Fowler opined the applicant had reached a healing plateau with a permanent partial disability on a functional basis at fifteen percent compared to permanent total disability. He compares her non- surgical condition to what would be rated for a successful one-level fusion and successful laminectomy (evidently at another level.) Exhibit A, report of Fowler dated September 14, 1998.
"Dr. Fowler has also imposed permanent restrictions to sedentary work allowing lifting up to 10 pounds, with the additional caveat that she be allowed to change her body position or activity as demanded for comfort. He also opined she could work only 25-hours per week at five hours per day. Exhibits C, work restrictions dated January 8, 1999.
"The independent medical examiner retained by the insurer, John Whiffen, M.D., initially (before the discogram) rated permanent partial disability at five percent (rising to ten percent if she needs a fusion) and would have allowed her to do light work with restrictions to bending and twisting of three times in an hour. Exhibit C, report of Whiffen dated February 26, 1997.
"After reviewing the discogram, IME Whiffen issued another opinion. He concluded the applicant was not a surgical candidate, but increased her permanent partial disability to 8 percent. He thought she could lift 10 pounds frequently and 20 pounds rarely. He also thought she should not bend or twist more than 3 or 4 times an hour, and that she should gradually work her way back to full time. Exhibit 8, Whiffen report of October 9, 1998.
"Dr. Whiffen wrote a final report on March 8, 1999. Exhibit 6. At this point, he reiterated his conclusion that she was not a surgical candidate. He also indicated that she had permanent partial disability at fifteen percent compared to permanent total disability, and that Dr. Fowler's restriction to five hours of work per day was reasonable. His report suggests, however, that her physical capacity could improve if she underwent treatment at a pain clinic."
3. The fourth paragraph of the ALJ's Findings of Fact is affirmed and reiterated as if set forth herein.
4. The fifth paragraph of the ALJ's Findings of Fact is deleted and the following substituted therefor:
"The respondent asserts that both medical experts opined the applicant would benefit from treatment at a pain clinic, that IME Whiffen suggested such treatment could in fact decrease her disability, but that the applicant refused to undergo treatment at a pain clinic. On that basis, the respondent asserts it is premature to rate permanent disability, especially loss of earning capacity, as the applicant's final restrictions cannot be determined.
"It is true that the statutes provide that no compensation shall be payable for disability of an employe during the period the employe unreasonably refuses or neglects to submit to any competent and reasonable medical treatment. Wis. Stat. § 102.42(6)(b). While the commission and department generally do not construe this provision to require to submission to surgery, pain clinic treatment is not surgery.
"On the other hand, the insurer did not offer to approve the pain clinic treatment until March 1999. This was several months after the applicant reached an end of healing in September 1998 and after IME Whiffen first suggested a pain clinic in October 1998. Indeed, Dr. Fowler first mentioned pain treatment nearly a year earlier in his note for treatment on April 7, 1998. Exhibit 2, April 7, 1998 note, page 6, point 4.
"Beyond that, while treating doctor Fowler opined that the applicant `might' benefit from treatment at a pain clinic, (1) he also stated:
`I would support this patient undergoing formal "chronic pain clinic" assessment, such as is available in Milwaukee, though such an intensive costly program would need her insurance provider's "preauthorization," as the patient herself noted concern over ever being able to afford such a program. Thus far, however, I reminded the patient that I thought she had received extensive thorough excellent care from her variety of health care provides which would seem to provide her with the same general recommendations as any such chronic pain program might.'
Exhibit 2, Fowler note of September 14, 1998, page 2, point 2.
"Two conclusions may be drawn from this note. First, the pain clinic treatment would not happen unless the WC insurer preauthorized it, and the respondent admits that it did not act to authorize the treatment until three months before the hearing. More importantly, Dr. Fowler states that pain management treatment would not really teach the applicant any thing new, and he did not indicate that the type of `coping' therapy or pain medication provided at such clinics would improve her physical capacity. In addition, the applicant testified that both Drs. Whiffen and Fowler told her that treatment at a pain clinic would help her with pain, but would not change her work restrictions or permanent disability. (2) Under these circumstances, the applicant's refusal to undergo the additional treatment at the pain clinic was not `unreasonable' to the extent that her award for permanent disability (either on a functional basis or for loss of earning capacity) should be should be postponed or withheld under Wis. Stat. § 102.42(6)(b). (3)
"Accordingly, Dr. Fowler's rating of permanent partial disability on a functional basis at 15 percent compared to permanent total disability is adopted. Dr. Fowler's permanent work restrictions are adopted as well. The next question is the extent of the applicant's loss of capacity based on those permanent restrictions.
"The respondent's vocational expert estimates about a 40 percent loss of earning capacity based on Dr. Fowler's restrictions. Exhibit 1, page 10. The applicant's expert rated a 45 to 55 percent loss of earning capacity assuming the applicant was limited to the part-time restrictions set by Dr. Fowler.
"The respondent suggests that the applicant's loss of earning capacity based on Dr. Fowler's restrictions should be limited to 38 percent, noting that both vocational experts stated that the applicant's actual wage loss while working a 25-hour week for the employer is 38 percent. Actual wage loss, while a factor in determining loss of earning capacity, is not the same as loss of earning capacity, however. See Wis. Admin. Code § DWD 80.34(1)(intro.) and (f). Loss of earning capacity is based on a worker's ability to find work in the labor market generally, and is not solely dependent on any single job or current wages (assuming the employer cannot defend against the claim under the 85 percent rule. (4))
"In this case, it is found that the applicant's loss of earning capacity is forty percent. In reaching this conclusion, the reports of both vocational experts have been considered, as well as the factors under Wis. Admin. Code § DWD 80.34. The applicant's age (she was born in 1952) is a relatively neutral factor. Her education (she is a high school graduate) and her post-secondary training (certification as a nurse's aide and training as a beautician) are also relatively neutral factors. The applicant's actual wage loss, assuming she works for the employer within Dr. Fowler's restrictions, is 38 percent.
"Under Wis. Admin. Code § 80.34(1)(j), the applicant's willingness to participate in a reasonable physical and vocational rehabilitation program must also be considered. In this case, the applicant refused to attend the pain clinic or submit to treatment modalities involving needles. As explained above, the applicant's refusal of these treatments was not unreasonable. However, that does not mean that such treatments themselves were not reasonable. The possibility of beneficial effects of pain management on the applicant's endurance and capacity, while not sufficient to justify disqualifying or denying her award under Wis. Stat. § 102.42(6)(b), should not be ignored. For example, if the applicant had undergone the pain management treatment without effect, her willingness to undergo the therapy may have justified a higher loss of earning capacity award. Given her refusal, however, the loss of earning capacity rated by the respondent's vocational expert, which is relatively lower than that rated by the applicant's expert, is credited.
"Accordingly, the applicant has sustained a loss of earning capacity of 40 percent, into which is merged with the permanent functional loss rated by Dr. Fowler at 15 percent. The award works out to a total of 400 weeks of benefits for permanent partial disability at $174 per week (the statutory maximum based on an average weekly wage of $268.80), or $69,600. As of January 4, 2000, 108 weeks and 2 days of permanent partial disability compensation totaling $18,850 has accrued; 291 weeks and 4 days totaling $50,750 are unaccrued.
"Of the amount accrued, the insurer has paid $13,260.80 (80 weeks at $165.76 per week based on an average weekly wage of $248.64). The total amount of accrued, outstanding permanent disability as of January 4, 2000, then is $5,589.20 ($18,850-$13,260.80). The total additional amount of disability awarded under this order is $56,339.20 ($69,600-$13,260.80).
"The applicant approved an attorney fee under Wis. Stat. § 102.26 on the additional amount awarded. The future value of the fee equals $11,267.84, which is twenty percent of the additional award of $56,339.20. However, the fee attributable to accrued unpaid compensation of $5,589.20 equals $1,117.84; the fee on the unaccrued portion of the award is $10,150, and is subject to an interest credit of $1,760.13. The present value of the entire attorney fee is thus $9,507.71, and that amount plus costs of $618.55 must be paid to the applicant's attorney within 30 days.
"The amount due the applicant within 30 days is $3,852.81. This equals the outstanding amount accrued to January 4, 2000 ($5,589.20), less the accrued attorney fees ($1,117.84) and costs ($618.55).
"The amount remaining to be paid to the applicant as it accrues after January 4, 2000 is $40,600.00. This equals the unaccrued portion of the award ($50,750), less the future value of the fees thereon ($10,150). This amount must be paid to the applicant in monthly installments of $754, beginning on February 4, 2000."
4. The sixth and seventh paragraphs of the ALJ's Findings of Fact are affirmed and reiterated as if set forth herein.
5. The ALJ's Interlocutory Order is deleted, and the second, third and fourth paragraphs of the commission's Interlocutory Order set forth below are substituted therefor.
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 thirty days from the date of this decision, the employer and its insurer shall pay all of the following:
1. To the applicant, Glenda L. Camron, Three thousand eight hundred fifty-two dollars and eighty-one cents ($3,852.81) in disability compensation.
2. To the applicant's attorney, James A. Meier, the sum of Nine thousand five hundred seven dollars and seventy-one cents ($9,507.71) in fees and Six hundred eighteen dollars and fifty-five cents ($618.55) in costs.
3. To Meriter Hospital, Five thousand twenty-eight dollars and twenty cents ($5,028.20) in medical treatment expense.
4. To UW Physicians Plus, Four hundred nine dollars and fifty cents ($409.50) in medical treatment expense.
5. To Radiology Specialists, One thousand two hundred six dollars ($1,206.00) in medical treatment expense.
6. To the Monroe Clinic, Sixty-two dollars ($62.00) in medical treatment expense.
7. To Capital Square Associates, Three hundred sixty dollars ($360.00) in medical treatment expense.
Beginning on February 4, 2000, and continuing on the fourth day of each month thereafter, the employer and the insurer shall pay the applicant, Glenda L. Camron, the sum of Seven hundred fifty-four dollars ($754.00) per month until the remaining sum of Forty thousand six hundred dollars ($40,600.00) is paid.
Jurisdiction is retained.
Dated and mailed December 29, 1999
camrong.wrr : 101 : 5 ND § 5.20 § 5.49
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness. The commission does not dispute this, and did not reduce the loss of earning capacity award based on credibility concerns (such as her representation of her physical condition), but because of her refusal to undergo reasonable rehabilitative treatment.
cc: ATTORNEY JAMES A MEIER
MEIER WICKHEM LYONS & SCHULZ SC
ATTORNEY LINDA D KIEMELE
BORGELT POWELL PETERSON & FRAUEN SC
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Footnotes:
(1)( Back ) Exhibit 2, Fowler note dated November 13, 1998, page 3.
(2)( Back ) This is testimony is synopsized at page 4 as the simple declarative statement: "The pain clinic won't ease my restrictions or my permanent disability." Nonetheless, the applicant's attorney represents in his brief that the applicant testified both treating doctor Fowler and IME Whiffen told her this, and the employer does not deny that the applicant so testified in its reply brief.
(3)( Back ) Nor would her refusal to undergo the steroid or trigger point injections by needle justify delaying the award. While these treatments may have lessened her pain, no one, not even Dr. Whiffen, has suggested they would change her permanent physical restrictions.