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

BOOKER T JOHNSON, Applicant

PFT SERVICES INC, Employer

WISCONSIN WORKERS COMPENSATION UNINSURED EMPLOYERS FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998065713

The applicant filed an application seeking compensation for an low back injury occurring on October 20, 1997, resulting in a low back injury from herniated discs at two levels of the spine. In its answer to the application, the insurer conceded jurisdictional facts, a compensable injury occurring on October 1997, and permanent partial disability at 8 percent to the body as a whole. Prior to the hearing, the insurer also conceded an average weekly wage of $573.68, temporary disability between November 17, 1997 and April 28, 1998, and payment of the outstanding medical expenses. The parties also agreed that between November 17, 1997 and September 25, 1998, the applicant received "continued salary payments" of $21,783.25 from the employer. Because it contended that the continued salary payments resulting in a net overpayment of compensation, the insurer had not paid the conceded permanent partial disability.

On August 31, 1999, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing in this matter. At issue before the ALJ, and now before the commission, is the nature and extent of disability beyond that conceded, and whether an interlocutory order is appropriate. The ALJ awarded temporary disability to January 15, 1998, and, unable to conclude that the applicant's disability thereafter was the result of the work injury, retained jurisdiction to allow the parties the opportunity to obtain clarifying medical reports.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1954. He began working for the employer as a truck driver in September 1997. His job included some loading and unloading the truck. He hurt his back on October 20, 1997 while carrying 5 gallon paint cans from the loading dock into his truck.

The applicant noted a pull or twinge at the time of the injury. Nonetheless, he finished the shift, and worked the next day in pain. The following Monday, October 27, 1997, he sought treatment with his family doctor, Dr. Salvador. He missed a couple of days of work, but went back and worked without restrictions. The pain worsened and physical therapy did not help.

The applicant's last day of work was on or about November 18, 1997, when Dr. Salvador put him on bedrest. Shortly thereafter, the applicant began treating with an orthopedic surgeon, Roger Huizenga, M.D., on November 24, 1997.

Dr. Huizenga noted treatment for left sciatica, and the onset of left-sided low back pain with the October 22, 1997 work injury. Dr. Huizenga also noted that the applicant continued to work despite continuing pain, that his problems increased with post-injury duties, and that he recently went on bedrest. Upon examination, Dr. Huizenga noted weakness and numbness in the left leg. He diagnosed a herniated lumbar disc, and kept the applicant off work.

The applicant returned on December 8, 1997, complaining of somewhat worsening pain. Specifically, the doctor noted pain in the left low back, lateral hip, and down the lateral leg. His diagnostic impression was a herniated disc at left L4-5, with slightly improving symptoms. He recommended continued rest, and avoiding activities that increase interdiscal pressure. Dr. Huizenga also told the applicant that no medication, manipulation or therapy would speed his recovery.

Again noting exclusively left sided symptoms, and after the applicant showed no improvement by December 22, 1997, the doctor ordered an MRI. This was done on January 5, 1998. The interpreting radiologist noted presenting complaints of left toe numbness, low back pain, bilateral leg pain, and the October 1997 trauma. Significantly, this January 5 note is the first mentioning bilateral leg pain. The MRI showed a right paracentral protrusion of the L4-5 disc with some slight extrinsic compression of the [thecal] sac, and a left paracentral protrusion of the L5-S1 disc with some displacement of the nerve roots.

Dr. Huizenga discussed the results of this test with the applicant on January 8, 1997. A handwritten note describes the MRI as showing a right L4-5 disc herniation and a left L5-S1 disc herniation. The note also indicates that "he is having sx [symptoms] on R [right] now." The applicant and the doctor discussed epidural injections, but the applicant was "not ready for that."

In his note for January 15, 1998, Dr. Huizenga again noted that the MRI showed disc herniations at L4-5 on the right, and L5-S1 on the left. The doctor also noted that nerve impingement was seen at each level. The doctor also noted that, two weeks past, the applicant noted the onset of right ankle pain which waxed and waned and was alternatively minimal and quite severe. He reported more pain in his left leg than his right.

Dr. Huizenga also had this impression:

"Persistent sciatica due to herniated disk. It is certainly unusual for him to have herniation at two levels involving two sides. Presume the herniation at L4-5 is more recent and that the herniation at L5-S1 is the original one from the injury three months ago."

The applicant and Dr. Huizenga next discussed treatment options. Dr. Huizenga mentioned epidural steroid injection, which the applicant was unwilling to try because of a fear of needles. The doctor also mentioned surgery, but both he and the applicant agreed that in the absence of neurological damage, it was too soon to consider that treatment for relief of persistent, unimproving and unacceptable pain.

On follow-up on February 6, 1998, the doctor noted the applicant's right side leg pain had essentially subsided. Considerable left side symptomology was noted however. The doctor's impression was left side sciatica from the L5-S1 herniated disc, which the applicant agreed to treat by epidural steroid injection.

The applicant went ahead with the epidural steroid injection in mid-February 1997. In an office visit with Dr. Huizenga on February 27, 1997, he told the doctor he did not think the procedure did much good, and that his back pain was about the same. Some right thigh pain was noted, but most of the complaints were left sided, including the complaint that his left knee had given away on two occasions. Noting the absence of troubling neurologic symptoms, however, the doctor opined it was safe to wait for improvement rather than undergo surgery.

Dr. Huizenga described similar symptoms (left greater than left sided back complaints) in his note dated March 30, 1998. Again noting a diagnosis of persistent left sciatica, the doctor told him it was time for him to stop using narcotics and, though he should continue to rest at home, he could become a bit more active.

On follow-up on April 27, 1998, the doctor noted the applicant had stopped taking narcotics. He complained of pain in both sides of the back, and left leg symptoms. No right leg complaints were noted. The doctor thought his sciatica was subsiding. Nonetheless, the doctor wanted a repeat MRI.

The MRI results did not change. The applicant was not willing to try a repeat steroid injection or surgery.

On June 3, 1998, the doctor noted bothersome low back pain radiating to both buttocks, the left thigh, and the lateral leg. The applicant told the doctor that he was thinking more seriously about a surgical option. The doctor again diagnosed sciatica, secondary to herniated lumbar discs. After another week with no improvement, in late June, the applicant told the doctor he was seriously considering surgery. The doctor wanted him to undergo an EMG to determine if the right sided L4-5 herniation really needed surgery. The applicant wanted to hold off till he was certain he would undergo the surgery, noting that he was afraid of needles.

In July 1998, however, the applicant reported actually experiencing some improvement. He denied any pain in the right lower limb, though he still had tingling in the right thigh. Otherwise, he complained of persistent, but reduced, pain in his back and left leg to his foot. The doctor kept the applicant off work and resting at home. By the time of his August 1998 visit, however, the applicant could not say if he was getting better or not. He flatly told the doctor he did not want to consider surgery, however.

In September 1998, Dr. Huizenga referred the applicant to a neurosurgeon, Kris Chan, M.D. His report, including a letter to Dr. Huizenga, is at exhibit C. In the letter, Dr. Chan reports:

"Because of the persistence of his symptoms, after one year of conservative treatment and physical findings indicating left L5 radiculopathy, I suggested that he consider surgery to remove the lateral disc herniation at L5-S1 on the left side. Occasionally, he also has pain down to his right leg. I assume secondary to a small protruded disc on the right side. The surgery at this level is optional.

"He is not certain that he wants surgery, but he will come back to see you October 19 to discuss possible surgery. My thought is, if he has not improved in one year that it is unlikely that his symptoms of left sided radiculopathy will improve and he should consider surgery."

Chan letter dated October 15, 1998.

When the applicant saw Dr. Huizenga, on October 19, 1998, the doctor noted it had been a year since the development of symptoms. The applicant told the doctor his problems seemed the same, or perhaps somewhat worse. The doctor told him the chance of improvement with surgery was 85 percent, but that his chances of becoming worse without surgery (such as developing a foot drop) were not high. Noting the applicant was a patient man who was somewhat afraid of surgery, Dr. Huizenga reported the applicant wanted to wait longer.

On November 6, 1998, Dr. Huizenga pronounced an end of healing, and rated permanent partial disability at 25 percent compared to disability to the body as a whole. In a note dated November 16, 1998, Dr. Huizenga reported the rating was for persistent pain and stiffness in his back and lower limbs necessitating major modifications in all activities. He also noted that the applicant had definitely decided not to undergo surgery. Dr. Huizenga released the applicant to return to the clinic as needed.

Dr. Huizenga's expert medical opinion regarding diagnosis and causation is summarized in the IMPRESSION section of his November 16, 1998 note where the doctor writes

"He has herniated disks on the left at L5-S1 and on the right at L4-5, confirmed by MRIs on 1/5/98 and 4/29/98. He has persistent back and lower limb pains related to that herniated disk condition which was secondary from injury at work on or about 10/22/97. His condition has plateaued, because of these problems I have rate[d] his permanent impairment as 25% of whole body. He has permanent limitations as follows: He cannot sit or stand more than 10 or 15 minutes at time, he must be able to lie down occasionally, he cannot bend, twist, squat, kneel, climb. He cannot lift more than five pounds and can do that only occasionally (approximately two or three times hourly.)"

The applicant then saw the independent medical examiner retained by the employer, Gordon L. Clark, M.D., on November 25, 1998. Dr. Clark noted current complaints of daily persistent low back pain that refers to the left buttock, down the left posterior thigh, and extended to the foot. He noted some right side complaints as well.

Dr. Clark then briefly summarized the medical records. Among the notes that Dr. Clark reported reviewing was the January 15, 1998 note of Dr. Huizenga in which Dr. Huizenga presumed that the right side L4-5 disc herniation was more recent while the left side L5-S1 disc herniation "was the original one from the work injury three months ago." Clark report at page 3.

Dr. Clark then reviewed the MRIs showing a left paracentral disc herniation at L5- S1 and a right paracentral herniation at L4-5. His diagnosis was a two level disc herniation. Dr. Clark went on to conclude: "Mr. Johnson sustained the above injuries by direct cause on October 20, 1997."

Dr. Clark also noted the applicant had refused surgery. He did not think any additional conservative treatment would make any difference. Dr. Clark had no additional treatment to recommend.

Dr. Clark estimated an April 28, 1998 healing plateau date, and rated permanent partial disability at eight percent for the two level disc herniation and fairly significant symptomology. He set permanent work restrictions which precluded work that: required bending at the waist; sitting more than 30 minutes; standing or walking more than 30 minutes without opportunity to change position; or lifting more than 10 pounds.

The insurer then asked Dr. Clark to estimate the applicant's permanent partial disability rating assuming a successful L4-5 and L5-S1 laminectomy, and what his work restrictions would be. See exhibit 2, supplemental Clark report date July 23, 1999. The doctor rated permanent partial disability at ten percent, and set work restrictions precluding the applicant from lifting more than 40 pounds.

The insurer next sent the applicant to Yogendra Bharat, M.D., asking him what surgical options would be reasonably safe for him to undergo to reduce the severity of his present condition. Dr. Bharat has never actually examined the applicant.

Despite not examining the applicant, Dr. Bharat suspected, based on the treatment notes and "as much of the MRI report as [he was] able to read" that the applicant did not have a disc herniation at all (or at least that evidence of herniation was absent), but an annular tear. (1) Based on that suspicion, Dr. Bharat thought a percutaneous discectomy was not indicated. Rather, he suggested discogram testing and possibly intra discal electrothermal coagulation therapy (IDET). He noted that there were reports of a 12 percent decrease in the size of the discs using the IDET procedure.

The applicant's attorney then asked treating doctor Huizenga to comment on whether the applicant should undergo intra discal electrothermal coagulation therapy. He responded:

"I have not heard of intradiscal electrothermal coagulation, I don't know what it would involve, I know nothing about its safety or efficacy."

Exhibit G.

The record also contains reports from two vocational experts concerning the applicant's loss of earning capacity. According to the applicant's expert, Timothy Greenya, the restrictions set by Dr. Clark and treating doctor Huizenga, while not identical, have the same vocational impact. Mr. Greenya opined the applicant would be permanently and totally disabled on an odd-lot basis under either set of restrictions. Exhibit F.

The insurer's vocational expert, Gregory Wisniewski, agreed that the applicant would be permanently and totally disabled on an odd lot basis if Dr. Huizenga's restrictions applied. However, under Dr. Clark's restrictions, Mr. Wisniewski opined the applicant would be able to work as a class C assembler, a cashier, a handworker, and an information clerk. If the applicant were limited to those jobs, Mr. Wisniewski opined, he would have a 60 to 70 percent loss of earning capacity. Mr. Wisniewski also opined that if the applicant would undergo a successful two- level discectomy and be subject to the restrictions which Dr. Clark would apply under that assumption, the applicant would be able to do additional work, leaving him with a reduced 25 to 35 percent loss of earning capacity.

The commission is satisfied that the applicant's two level disc herniations were caused by the work injury on October 20, 1997. The commission appreciates that the applicant first complained of right side symptoms two months after the injury in January 1998. The commission also notes that treating doctor Huizenga at one point states his presumption that the right side herniation occurred after the date of injury. On the other hand, of course, the right side symptoms have always been considered minor in comparison to the left sided symptoms, and waxed and waned throughout his treatment. The one epidural the applicant underwent, even after the first appearance of the right side symptoms, was for the left side disc herniation.

Further, the fact remains that, when the applicant reached a healing plateau, both treating doctor Huizenga and independent medical examiner Clark opined that the work injury caused the disc herniations at both levels. Dr. Huizenga evidently abandoned his earlier presumption that the right side herniation occurred later (possibly due to the waxing and waning symptoms) or else concluded that the work injury started a process that led to the right side disc herniation. Further, Dr. Clark, despite reviewing and even reciting Dr. Huizenga's early note presuming the right-sided herniation occurred after the work injury, also opined the work injury caused the right side herniation.

The commission also notes that now, on review, neither party requests the commission to affirm the ALJ's decision which would remand for additional medical opinion regarding the right disc herniation. Specifically, the insurer does not take the position that its liability should be limited because the work injury did not cause both disc herniations. Rather, the insurer asserts it is not liable for additional disability under Wis. Stat. § 102.42(6) based on the applicant's unreasonable refusal to treat.

Wis. Stat. § 102.42(6) provides in part:

"102.42(6) TREATMENT REJECTED BY EMPLOYE. Unless the employe shall have elected Christian Science treatment in lieu of medical, surgical, dental, hospital or sanatorium treatment, no compensation shall be payable for the death or disability of an employe, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment."

The employer's position is that the applicant should undergo either a discectomy or the IDET procedure, and that his refusal to do so because he is afraid of needles or the surgery is unreasonable. The commission cannot agree.

First, as the applicant's attorney points out, the department's recognized practice does not require an injured worker to undergo two-level lumbar discectomy, a surgery performed under a general anesthesia, at the risk of forfeiting his or her benefits. (2) Such a procedure, the commission believes, is distinguishable from a second "slight" surgery to remove a scar tissue nodule from a prior surgery as was the case in Lesh v. Illinois Steel Co., 163 Wis. 124 (1916).

Beyond that, the commission reads Dr. Bharat's opinion to be that the applicant does not have disc herniations, but rather annular tears. (3)      The commission does not read his opinion to be that the applicant should undergo a CT scan to clarify diagnosis, but as a pre-operative step prior to the IDET procedure. Dr. Bharat recommends against a percutaneous discectomy, and seems to disagree with both treating doctor Huizenga and independent medical examiner Clark as to diagnosis and appropriate treatment.

Given the divergence of medical opinion, the commission declines to characterize the applicant's decision not to undergo either the discectomy surgery or the IDET procedure as an unreasonable refusal.

Neither treating doctor Huizenga nor independent medical examiner Clark recommended the IDET procedure. Dr. Huizenga, the applicant's orthopedic surgeon, frankly admits he has never heard of it. Certainly, in deciding the issue of the reasonableness of refusal of treatment, a worker should be able to rely on the opinion of his doctor. Further, if the IDET procedure is "a safe and simple surgical procedure which is fairly certain to result in a removal of the disability and is not attended with serious risk of pain and is such as an ordinarily prudent and courageous person would submit to for his own benefit and comfort" or "certain to remove disability," (4)   it could be reasonably expected that the employer's medical expert, Dr. Clark, would have recommended it.

Finally, even if a treatment is reasonable, a worker does not automatically act unreasonably by refusing it. In other words, there is a difference between an unreasonable refusal to accept treatment and a simple refusal of reasonable treatment. (5)    The former is a basis for refusing to award disability compensation under Wis. Stat. § 102.42(6). The latter is simply a factor to be considered in ascertaining compensation for loss of earning capacity resulting from an unscheduled work injury. Wis. Admin. Code § DWD 80.34(1)(j). In sum, the commission cannot conclude that the applicant unreasonably refused treatment in this case.

The next question is the extent of the applicant's temporary disability. In this case, that issue turns on the date of the applicant reached an end of healing or a "healing plateau." Dr. Clark opined the applicant reached a healing plateau on April 28, 1998. Dr. Huizenga noted an end of healing on November 6, 1998. Because of the notes of Dr. Huizenga showing continued improvement in the late spring and summer of 1998, the commission adopts the November 6, 1998 date given by Dr. Huizenga. Accordingly, the commission concludes that the applicant was totally and temporarily disabled from October 20, 1997 to November 6, 1998.

The next question is the extent of the applicant's permanent partial disability on a functional and vocational basis. The commission finds credible the opinions of Drs. Clark and Huizenga that the applicant sustained two herniated lumbar discs as a result of the work injury. On a functional basis, then, the commission credits Dr. Clark's opinion that the applicant sustained permanent partial disability at 10 percent, the minimum allowed following the two-level discectomy recommended to repair the condition.

The commission also finds most credible the work restrictions set by Dr. Clark. On this point, the commission concludes that if the applicant were as disabled as Dr. Huizenga opined, the applicant would not believe, as he indicated to Dr. Clark, that he was not ready for surgery. In addition, Dr. Huizenga noted improvement in April through August 1998, and opined repeatedly that the applicant was not in danger of developing serious neurological problems if he did not undergo surgery.

Further, Dr. Clark's restrictions, by no means, understate the seriousness of the applicant's problems. Indeed, while not identical to the restrictions set by Dr. Huizenga, Mr. Greenya opined that Dr. Clark's restrictions, too, left the applicant totally and permanently disabled. In short, the commission believes the applicant is subject to permanent work restrictions which preclude work that requires: bending at the waist; sitting more than 30 minutes; standing or walking more than 30 minutes without opportunity to change position; or lifting more than 10 pounds.

The next question is the extent of the applicant's loss of earning capacity given these restrictions. A worker makes a prima facie case of permanent and total disability on an odd-lot basis by showing that he or she is unable to obtain any continuing or gainful employment because of the impairment from his work injury and other factors such as age, training and education. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). If an injured worker makes a prima facie case of odd-lot unemployability, the burden shifts to the employer to show that some kind of work is regularly and continuously available to the worker. Id. The employer cannot satisfy this burden by simply showing the applicant is capable of light duty work, and then adding a presumption that such work is available. Id.

In this case, the applicant has not made a prima facie case of odd-lot unemployability, Mr. Greenya's opinion notwithstanding. The commission finds incredible Mr. Greenya's opinion that the applicant is incapable of finding any continuing or gainful employment. Mr. Wisniewski more reasonably opined that, given the restrictions set by Dr. Clark, the applicant could work as a class C assembler, a cashier, a handworker, and an information clerk.

The commission further concludes the applicant is entitled to compensation for loss of earning capacity at 65 percent, the middle of the range set out by Mr. Wisniewski. In making this rating, the commission notes that the applicant's age at the time of his healing plateau in 1998 (43) is a neutral factor, and the applicant's education and training, if anything, tend to increase the effect of his loss. On the other hand, the applicant's reluctance to undergo further treatment and a reasonable plan of physical rehabilitation is a factor which operates to decrease his award. Wis. Admin. Code § DWD 80.34(1)(j).

As stated above, the applicant was temporarily disabled from November 17, 1997, to November 6, 1998 (both dates exclusive), a period of 50 weeks and 2 days. He is entitled to compensation for temporary disability during this period at the rate of $382.45, or two-thirds of his conceded average weekly wage of $573.68. The applicant's total award for temporary disability, then, is $19,250.15.

The applicant is also entitled to 650 weeks of compensation for permanent partial disability at the weekly rate of $174 for a total of $113,100. As of April 6, 2000, however, only 74 weeks of permanent disability totaling $12,876.00 have accrued; 576 weeks totaling $100,224 are unaccrued.

Including temporary disability, the total in compensation awarded is $132,350.15, while the total in compensation accrued to April 6, 2000 is $32,126.15. Although the employer conceded permanent partial disability at eight percent, none of that was actually paid, as the employer contended it was entitled to an offset based on an overpayment of the continued salary payments made in the amount of $21,783.25. After deducting the continued salary payments made by the employer from the amounts awarded hereunder, the total outstanding compensation is $110,566.90, while the outstanding, accrued compensation is $10,342.90.

The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at twenty percent. Because the amount of continued salary payments exceeds the amounts of conceded temporary and permanent disability, the fee shall be based on the amount awarded in excess of the continued salary payment. The future value fee is $22,113.38 which equals twenty percent of the total outstanding amount (or the amount awarded after adjustment for the salary payments.) However, as of April 6, 2000 only the fee attributable to the accrued compensation ($2,068.58) has accrued, the fee attributable to the unaccrued outstanding 576 weeks of permanent disability ($20,044.80) remains unaccrued and subject to an interest credit of $6,104.85 for advance payment. The present value of the entire fee, therefore, is $16,008.53; this amount shall be paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $8,274.32, which equals the amount of outstanding, accrued compensation to April 6, 2000 ($10,342.90), less the accrued fee ($2,068.58).

The amount remaining to be paid to the applicant after it accrues is $80,179.20, which equals the unaccrued compensation ($100,224.00), less unaccrued attorney fees ($20,044.80). The remaining amount shall be paid to the applicant in monthly installments of $754.

The record indicates that the insurer has conceded liability for the claimed medical expenses, so no order is entered on that issue.

Finally, because the applicant may undergo future treatment which may cause additional disability or reduce or increase his loss of earning capacity, this order is left interlocutory to permit future orders and awards on future issues of temporary disability, permanent disability (including loss of earning capacity), and liability for medical expense.

NOW, THEREFORE, the Labor and Industry Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing, and, as modified, affirmed in part and reversed in part.

Within 30 days from the date of this decision, the employer and the insurer shall pay all of the following:

1. To the applicant, Booker T. Johnson, Eight thousand two hundred seventy-four dollars and thirty-two cents ($8,274.32) in disability compensation.

2. 2. To the applicant's attorney, John D. Neal, Sixteen thousand eight dollars and fifty-three cents ($16,008.53) in fees.

Beginning on May 6, 2000, and continuing on the sixth day of each month beginning thereafter, the employer and the insurer shall pay the applicant Seven hundred fifty-four dollars ($754.00) per month until the additional amount of Eighty thousand one hundred seventy-nine dollars and twenty cents ($80,179.20) has been paid.

Jurisdiction is retained for further orders and awards as are warranted consistent with this decision.

Dated and mailed March 29, 2000
johnsob.wrr : 101 : 5 ND § 5.49   § 5.31

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his brief, the applicant contends that this case went before the ALJ on the questions of when the healing plateau ended, what the permanent restrictions are, and what the resulting functional and vocational permanent disability is. The insurer's main line of defense at the hearing, and still on appeal, is that because the applicant unreasonably refused the discectomy and IDET procedure, he is not entitled to any compensation for disability under Wis. Stat. § 102.42(6). Indeed, the insurer conceded an eight percent permanent partial disability compared to disability to the body as a whole on a functional basis, presumably based on the opinion of Dr. Clark who opined the October 20, 1997 work injury caused disc herniations at two levels of the applicant's lumbar spine.

However, the ALJ became concerned that the right-sided disc herniation at L4-5 may not have been caused by work, or at least by the work injury on October 20, 1997. Consequently, he declined to award permanent disability, allowing the parties to obtain additional expert medical and vocational opinions dealing with the problems attendant to the right-sided disc herniation.

The commission appreciates the ALJ's concerns. The commission also understands that the ALJ avoids basing a decision on "cultivated intuition"--the situation presented in Leist v. LIRC, 183 Wis. 2d 450 (1994)--as the ALJ did not finally deny benefits. Rather, the ALJ was careful to retain jurisdiction to allow the parties to get expert medical opinions.

However, as noted above, when the applicant reached a healing plateau, both treating doctor Huizenga and Dr. Clark clearly opined that the work injury caused both herniations. Neither party, even on appeal, requests affirmance of the ALJ's findings regarding the right-sided disc herniation. Indeed, the insurer challenges neither the applicant's framing of the issues as stated above in his brief, nor his assertion that the insurer essentially conceded that the work injury caused the right-sided disc herniation. Rather, the insurer relies only on the unreasonable failure to treat defense discussed at length above.

Because the commission's modification of the ALJ's decision was not based on a differing assessment of the credibility of any witness who testified, but rather on the written reports of the doctors, no credibility conference was held with the ALJ.

cc: ATTORNEY JOHN D NEAL
STAFFORD & NEAL SC

ATTORNEY MICHAEL C FROHMAN
KASDORF LEWIS & SWIETLIK SC

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Footnotes:

(1)( Back ) The annulus is a fibrosis outer substance of an intervertebral disc.

(2)( Back ) Neal & Danas, Workers Compensation Handbook § 5.50 (4th ed, 1997).

(3)( Back ) Dr. Bharat did not examine the MRIs themselves but only part of the MRI reports. Further, Dr. Bharat did not examine the applicant personally, and the two doctors who did, Dr. Huizenga and Dr. Clark, agree he has disc herniations.

(4)( Back ) Lesh, supra, at 163 Wis. 131

(5)( Back ) See Camron v. Wal- Mart, WC Claim No. 1997038462 (LIRC, December 29, 1999).