STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
LINDA POST, Applicant
AMERICAN BUILDING MAINTENANCE COMPANY, Employer
TRANSPORTATION INSURANCE COMPANY, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1996058877
The applicant filed an application for hearing on April 13, 1998, alleging a July 29, 1996 injury to her neck. The employer and its insurer (collectively, the respondent) had previously conceded and paid disability and medical expense on a left shoulder injury arising from the same incident. The parties entered into a written limited compromise agreement, and an order was issued on December 15, 1997 which closed claims through the date of that limited compromise agreement.
On June 28, 1999, an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. Both parties filed petitions for review.
At issue before the ALJ, and now before the commission, is whether the July 29, 1996 injury in fact caused a neck problem which required surgery on February 20, 1998. If a compensable neck injury is found, the applicant seeks additional temporary disability from November 20, 1997 through March 1, 1999; permanent partial disability at 22 percent compared to permanent total disability; medical expenses as set out in exhibit K from the hearing; and an interlocutory order. The respondent conceded jurisdictional facts; however, the parties also dispute the amount of the applicant's wage.
The commission has considered the petitions 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
1. Injury and medical treatment.
The applicant was born in 1949. She sustained a conceded injury while working for the employer on July 29, 1996. The applicant did general office cleaning for the employer, a business that provides cleaning services.
The applicant was assigned cleaning duties at the Bucyrus-Erie building in Milwaukee. She worked 20 to 25 hours per week, from 4:00 or 4:30 p.m. to 8:30 or 9:30 p.m. week days, at $5 per hour. She earned $795 in eight weeks, which is $99.30 per week, or just under 20 hours on average. However, the employer's personnel witness could not say how much she actually made in any given week.
The applicant testified she did not restrict the hours she would work for the employer, but would work more hours if needed. However, prior to the hearing, the insurer sent the applicant a letter asking if she limited her availability in the labor market to part-time, and providing a "yes" and "no" box. She marked the "yes" box, but then added "20 hours a week or more if needed." She also indicated she did not work for another employer. Exhibit 7.
The applicant worked as part of a crew, most of whom arrived at Bucyrus-Erie about the same time she did. Transcript, page 35. She thought some of her coworkers may have left when she did as well. Transcript, page 36. The employer's human resource manager testified the applicant was hired specifically to work at the Bucyrus-Erie building, that three other part-time workers worked at that site; that the other workers also worked about 20 hours per week doing the same work on the same schedule; and that there were two full-time employes doing the same type of work at the Bucyrus-Erie building. Transcript page 43-44. Overall, the employer had 400 employes in Wisconsin.
The applicant had no neck problems or symptoms prior to the conceded work injury on July 29, 1996. The actual mechanics of the injury are described in the most detail in the statement attached to exhibit A.
On July 29, 1996, the applicant's boss was cleaning a kitchenette or breakroom at Bucyrus Erie. He pulled out a refrigerator a short distance from the wall to clean behind it. Apparently, one could not just walk behind the refrigerator from the side because of an adjacent counter. In addition, the adjacent counter was a little higher than normal.
After the applicant's boss pulled the refrigerator out from the wall, it became unplugged. The applicant's boss summoned the applicant for assistance. He instructed her to go behind the refrigerator to remove some fallen objects, and to plug it back in. The applicant entered through what she called a "cubby-hole." The commission assumes the "cubbyhole" was simply a small gap between the counter and the refrigerator, created when the boss pulled the refrigerator out.
At any rate, after plugging the refrigerator back in, she tried to get out from behind the refrigerator by backing up to the adjacent counter, putting her hands on palm down on the counter behind her, and lifting herself to a seated position on the counter. As she did this, she testified, she experienced a very sharp pain in her left shoulder.
The applicant's boss then pulled the refrigerator back somewhat so she could crawl out through the "cubby hole." After she rested for a while, her neck started stiffening up on the left side. She and her boss then completed an accident report form.
The applicant first saw Franscico Y. del Mar, M.D., a two days later on July 31, 1996. Dr. del Mar's handwritten note is at exhibit E. The commission reads it to say:
"Pain in back of neck since 3 days ago. [Patient] claimed that this happened at work. She has stiffness & pain back of the neck."
On exam, the doctor noted tenderness at the left trapezius above the left AC joint, and a good range of motion in the right shoulder. Dr. del Mar diagnosed a strain of the left trapezius. He wanted an x-ray of the left AC joint, and took the applicant off work until August 5, 1996. The x-ray was unremarkable.
The applicant returned to Dr. del Mar on August 9, 1996, still complaining of tenderness in the left trapezius muscle, and stiffness and limited range of motion of the neck. Similar symptoms were noted on August 15, 1996 as well.
On August 26, 1996, Dr. del Mar noted that the applicant felt better and was able to turn her neck. However, on examination, he noted she was still some pain in the left trapezius. The doctor did a steroid injection in the left trapezius which decreased the pain for one day. He allowed a return to work, subject to 25 pound lifting restriction with the left hand, and no overhead lifting.
However, he retracted the work release on August 29, 1996, noting that the applicant had tried to work, but was unable to finish her shift. He noted that she continued to have pain in the left trapezius muscle. He reported she could move her neck from side-to-side, but could not bend it. He again took the applicant off work and referred her to Nirmal K. Garg, M.D., for physical therapy.
Dr. Garg examined the applicant on September 3, 1996. Dr. Garg accurately described the work injury and treatment as set out above. Dr. Garg reported then- current symptoms of pain on the left side of the neck, and left side of the head. The applicant described the pain as two of ten when her neck was stationary, and eight of ten when she bent it.
On examination, the doctor noted pain with both forward bending and back flexion beyond 10-15 degrees. Right rotation caused no pain, but left rotation did. She experienced pain with bending the neck to the left more than 15 degrees; any bending to right caused pain.
Dr. Garg's diagnostic impression was acute left severe upper trapezius strain. She wished to rule out left cervical radiculopathy. The doctor recommended physical therapy and prescribed medication. Dr. Garg planned to re-examine the applicant after therapy.
Accordingly, the applicant began treating with Sharon Cole, P.T., on a diagnosis of cervical strain. Ms. Cole provided ultrasound to the left neck, hot packs to the neck, and soft tissue mobilization/myofascial release.
On September 16, 1996, the applicant returned to Dr. Garg for an EMG and nerve conduction study of the left upper extremity. This was completely normal, and showed no evidence of left cervical radiculopathy. See exhibit 5. The commission notes that this was a test of the left side only.
On or about September 23, 1996, the applicant noted the onset of right shoulder pain while doing physical therapy. See Exhibit D, note for September 27, 1996; exhibit C, note for October 17, 1996. Indeed, pain is noted in the right arm in her physical therapy note for September 30, 1996. Exhibit D.
Dr. del Mar then referred the applicant to an orthopedic surgeon, Paul Sienkiewicz, M.D., who first saw the applicant on October 7, 1996. He noted the complaints of pain following the July 29, 1996, which began in the left trapezius, but later spread to neck and right shoulder. He noted a history of right ulnar nerve transposition "many years ago." He noted a moderately decreased range of motion in all directions. He read the x-ray as showing C5, C6 disc space narrowing.
Dr. Sienkiewicz's diagnostic impression was neck and shoulder pain due to cervical disc degeneration with work related injury. Noting her complaint that physical therapy aggravated her symptoms, he discontinued it.
The MRI, done on October 10, 1996, is at exhibit 4. It shows degenerative disc disease at C5-C6, and C6-7. It also showed hypertrophic uncovertebral joint changes and osteophyte formation posteriorly causing right neural narrowing at C5-6, and left neural foraminal stenosis at C6-7. In a note dated October 15, 1996 (exhibit F), Dr. Sienkiewicz described the MRI as showing significant disc disease at C5-6 and C5-7 with foraminal narrowing and nerve root compression. Accordingly, Dr. Sienkiewicz referred the applicant to a neurosurgeon, James R. Lloyd, M.D.
The applicant first saw Dr. Lloyd on October 17, 1996. His handwritten notes report a neck injury at work on July 29, 1996 with the development of right arm pain in physical therapy on September 23, 1996. He noted complaints of pain with neck movement, and the applicant told him her neck cracked and popped. He noted right-sided pain in the shoulders, and complaints of right hand swelling. On examination, Dr. Lloyd noted decreased range of motion in the cervical spine, and what was evidently diminished muscle or nerve responses. He also examined the MRI.
Following the examination, Dr. Lloyd reported to Dr. Sienkiewicz that he agreed the applicant had neck and arm discomfort due to degenerative disc disease at C5- 6 as shown on the MRI. He recommended she undergo surgery, specifically, a C5- 6 discectomy with bilateral foraminotomies and fusion. On October 24, 1996, the applicant, presenting with essentially the same symptoms, told Dr. Lloyd she did not desire the surgery.
In November 1996, however, when the applicant still had not returned to work, and still complained of neck and arm pain, Dr. Lloyd suggested a series of epidural steroid cervical injections. She agreed to these, and they were scheduled through the St. Luke's Pain Clinic.
When the applicant returned to Dr. Lloyd in December 1996, he noted that she was, for
the most part, making good progress with the injections. In addition to the epidural
injections, she also got trigger point injections and physical therapy from the pain
clinic. She continued to experience some neck discomfort and right arm paresthesia. Little
change was noted in February and May 1997 on return visits. In July 1997, she told the
doctor she tried to return to work, but her neck and right arm discomfort was exacerbated,
and she had to stop.
On August 1, 1997, the applicant returned to Dr. Lloyd and informed him she had no
improvement with physical therapy. She was still experiencing right-sided neck, shoulder,
and arm pain and headaches. He again told the applicant he thought surgery would be
beneficial. She was still trying to decide about whether to undergo surgery in September
and December 1997. Finally, in February 1998, when her neck and arm discomforts still
continued, she agreed to undergo surgery.
Accordingly, the applicant underwent surgery on February 20, 1998. The procedure involved anterior C5-6 and C6-7 discectomies and bilateral foramintomies, and a C5 to C7 fusion with placement of a anterior segmental instrumentation. The post-operative note states the procedure was done to correct symptomatic degenerative disc disease at C5 to C7. The applicant was released from the hospital on February 22, 1998.
After her surgery, the applicant began treating with Jeffrey Gorelick, M.D., a physiatrist. She told him the surgery helped her right arm pain, which had decreased, but that her neck, shoulder and headache pain were unchanged. The worst pain was in the back of the neck, and left side of the face. By way of diagnosis, Dr. Gorelick noted myofascial pain syndrome in the head, neck, and upper back with numerous trigger points; muscular headaches; right arm pain; insomnia; and self-reported depression.
The record contains notes of treatment with Dr. Gorelick through October 1998. By then, she had experienced an increase in neck function (to the point she could again drive a car); and some mild but definite decrease in pain. She had ongoing muscular pain, but he told her she would have to live with it. He released her from formal treatment, with instructions to return as needed. He also recommended retraining when she was interested.
The applicant testified that while she still does not have much use of her right arm, the pain is less than before her surgery. She still complains of pain in both shoulders and head, however. Transcript, page 22-23. She has applied for social security disability.
Both parties offer expert medical opinion concerning the cause and extent of the applicant's disability from the injury.
Treating doctor Lloyd has prepared two practitioner's reports on form WC-16Bs. The first is dated October 13, 1997, or before the surgery. Attached to it is a narrative of the work injury. Based on the history contained therein (which is consistent with the work injury as described in this memo above), Dr. Lloyd opined that the work incident of July 29, 1996 directly caused the applicant's disability. He described her disabling condition as follows:
"Ms. Post presented in my office for the first time on October 17, 1996. Review of her cervical spine MRI scan revealed degenerative disc disease at C5-6. I recommended C5-6 diskectomy; bilateral foraminatomies and fusion procedure. She wished to give the matter more thought. On 10/24/96, Ms. Post was seen for a follow-up appointment and did not wish to undergo any surgery upon her cervical spine. I released her to return to work with restrictions. When I saw her on 11/18/96, her right-sided neck and arm discomforts had continued. I recommended a trial of cervical epidural steroid injections and she will have this done through St. Luke's pain clinic. Ms. Post was seen at the Pain Clinic for cervical epidural steroid injections, trigger point injections, and physical therapy.
"Despite extensive conservative measures, Ms. Post's right-sided neck, shoulder, and arm discomforts and headaches have continued. Surgery was scheduled for 9/5/97, but Ms. Post cancelled this."
Dr. Lloyd noted that the applicant was returned to work on November 18, 1996, but was unable to work due to pain. He could not determine permanent disability. He described the applicant's condition as guarded. He also noted that he had recommended further treatment, specifically, the surgery she subsequently underwent.
Then, after the surgery, Dr. Lloyd wrote a supplemental WC-16B dated March 1, 1999. The applicant apparently filed this report ahead of the 15-day deadline in Wis. Stat. § 102.17(1)(d), but only just.
At any rate, Dr. Lloyd re-iterated his opinion that the work incident had caused the applicant's disability adding that after extensive conservative measures, the applicant elected to undergo the two-level cervical discectomies and fusion procedures. He rated permanent partial disability at 22 percent to the body as a whole, based on the work injury and the required surgery. He noted additional elements of disability, including, continued neck and arm discomfort, diminished range of motion of her cervical spine, and continued persistent headache. He described her prognosis as guarded, and opined she may need additional treatment with himself or Dr. Gorelick.
The insurer retained an independent medical examiner, Anoo P. Patel, M.D. His first report followed an examination on October 16, 1996. He did not review any x- rays, nerve testing results, or MRI or CT scan before writing his report. He noted complaints of left shoulder, neck and headache pain.
His impression was:
"[The applicant] on this independent medical examination had shown limitation of neck and left shoulder motion due to subjective pain. She was found to be neurologically intact but with unexplained weakness of the grip of both hands, surprisingly of the same strength, showing a 20-pound grip. I have no orthopedic explanation for such a weak grip strength.
".[the] described mechanism of injury is consistent with a mild to moderate strain of the left shoulder girdle muscle, specifically the trapezius and scapular muscles. There have been persistent subjective complaints reported by the claimant but the office notes on August 26, 1996, indicate that she was feeling better. She continued to have complaints of pain subsequently and then on the right side of the neck and shoulder and further headaches. Dr. Sienkiewicz in his office note on October 7, 1996, had indicated full range of shoulder motions, right and left, and no positive neurological findings.
"The symptoms reported are out of proportion to the work incident described. In my opinion, he current symptoms are not related to the work injury of July 29, 1996. In all medical probability, she sustained a left shoulder muscle strain from which she had made a satisfactory recovery by August 26, 1996. Further complaints of neck and shoulder pain are not related to the work episode of July 29, 1996, and, in my opinion, Ms. Post is capable of returning to work without restriction."
Exhibit 1, report of Patel, pages 4-5.
In response to specific interrogatories, Dr. Patel reiterated his opinion that the work injury directly caused only mild to moderate shoulder muscle strain including the trapezius and left shoulder. He also stated that he believed the applicant was significantly exaggerating her symptoms.
The insurer then provided Dr. Patel with the October 1996 MRI report, and some of the early correspondence between Dr. Lloyd and Dr. Sienkiewicz. However, by letter dated November 5, 1996, Dr. Patel stated his opinion was unchanged. Exhibit 3.
Dr. Patel then re-examined the applicant in November 1997. This time he had the MRI report, and subsequent medical notes. He noted that during examination, the applicant had shown rather extremely limited shoulder motions because of pain. He found her to be neurologically intact, however.
Dr. Patel also noted that the applicant's symptoms in November 1997 affected more her right arm and neck, while the August 1996 complaints were of symptoms affecting the right shoulder and neck. He notes that the applicant described left shoulder pain with the work injury.
He reiterated his earlier opinion that the mechanism of injury was a relatively minor act which would not have produced the extreme symptoms and physical findings noted. He adhered to his earlier opinion that the applicant sustained a mild to moderate strain of the left shoulder girdle as a result of the work injury. He felt she had recovered satisfactorily without disability from this injury by August 26, 1996.
However, he no longer opined that she was exaggerating her symptoms. Instead, he noted:
"Her present findings suggest that Ms. Post is experiencing the normal progression of her degenerative disc disease of the cervical and spine affecting at C5-C6 level and C6-C7 levels. The MRI and axillary findings had indicated that this is a long-standing chronic and pre-existing condition. Therefore, is my opinion within a reasonable degree of medical probability that her current symptoms arising from the degenerative condition of the cervical spine are not causally related to the work incident of July 29, 1996."
Exhibit 2, report of Patel, page 5.
In response to specific interrogatories, Dr. Patel gives a diagnosis related to the July 29, 1996 work injury of mild to moderate strain of the left shoulder girdle muscles, especially the left trapezius. He diagnosed her nonwork-related, pre- existing condition as degenerative conditions of the cervical spine affecting discs at C5-C6, C6-C7 levels with facet arthrosis. He rated no permanent disability for the work injury, opining again that she recovered with no disability from that condition on July 29, 1996.
2. Discussion.
As noted above, the issues are whether the applicant's disability related to her neck was caused by the work injury of July 29, 1996, and, if so, the extent of disability. The ALJ found for the applicant in most respects. He credited the opinions of Dr. Lloyd over those of Dr. Patel, and concluded the July 29, 1996 work injury caused all the applicant's neck disability. He ordered additional temporary disability from November 20, 1997 (when the insurer stopped paying on the left shoulder muscle strain claim) to March 1, 1999 (when Dr. Lloyd rated permanent disability). He also awarded permanent partial disability at 22 percent compared to permanent total disability, and ordered all the medical expenses paid.
In one respect, however, the ALJ found for the respondent. He concluded she was part of a regularly scheduled class of part-time workers, and so refused to expand her wage beyond the 24-hour floor set out in Wis. Stat. § 102.11(1)(f). As a result, her wage was limited to $120 per week, which limited her permanent partial and temporary total disability rates to $80 per week.
Both sides appeal.
The respondent argues that Dr. Patel more credibly opined that the work injury caused only a short-term shoulder sprain, not the neck condition for which the applicant was awarded extensive compensation by the ALJ. The respondent also contends that if causation is proven, it was prejudiced by fact that the ALJ did not withhold decision on the extent of permanent partial disability until it could get its independent medical examiner to assess her post-surgery disability.
The applicant, for her part, contends that it has not been shown that she is part of a regularly-scheduled class of part-time workers. She seeks to have her disability calculated on an expanded wage of $200 per week, which would result in disability compensation rates of $133 per week instead of $80.
The fundamental question in this case is causation, or whether the work injury caused the neck and right shoulder/arm complaints that led to the surgery in this case. The ALJ found it did. The commission agrees.
Dr. Patel asserts that all that happened with the work injury was temporary sprain that has long since healed, and that the disabling symptoms are instead attributable to the coincidental progression of a previously-nonsymptomatic degenerative condition. In support of this position, of course is the fact that the initial complaints were of pain in the neck and left shoulder, while subsequent complaints were of pain in the neck and right shoulder. This gives some plausibility to the claim that the work injury just caused left-sided complaints, and that the right-sided complaints were from an independently-caused progression of an underlying degenerative condition.
However, the unifying factor, in the commission's mind, is the consistent complaints of neck pain beginning with the work injury. Indeed, neck pain is the most prominent complaint in the very first treatment note from Dr. del Mar on July 31, 1996, two days after the injury. Indeed, when the right-side symptoms became more prominent about two months after the injury, the applicant was still receiving physical therapy for the unresolved left shoulder and neck pain from the work incident.
This is not a case where the neck pain starting with the injury is in dispute, or where it first arose many months out from the injury, or where the applicant had recovered from the neck pain from an injury when it mysteriously started up again months later. The commission acknowledges that the applicant sprained her left shoulder in the work injury, and it cannot be doubted that she had a pre-existing degenerative condition. However, given the consistent reports of neck complaints beginning with the work injury, the commission cannot conclude that the only thing that happened with the work injury was a slight left shoulder sprain. Rather, the commission concludes that the work injury of July 26, 1997 aggravated, accelerated and precipitated the applicant's underlying degenerative condition beyond its normal progression, leading to the disability and need for the February 20, 1998 fusion surgery.
In rejecting IME Patel's contrary opinion, the commission notes his initial report indicating that the applicant was malingering or exaggerating her pain. To his credit, Dr. Patel abandoned that theory when he wrote his third report in 1997. But the fact he was initially so willing to write the applicant's complaints off as malingering (without suggesting further testing to verify or disprove the complaints) leads the commission to question his credibility when he later asserts the complaints are due solely from an unrelated, but nonetheless very real, degenerative condition. On the other hand, Dr. Lloyd's opinion connecting the applicant's neck condition with the work injury is supported by the report of neck pain immediately after the injury. The commission also notes Dr. Sienkiewicz's October 6, 1996 diagnostic impression of neck and shoulder pain due to cervical disc degeneration with work related injury. In addition, the commission has little difficulty seeing how the applicant might permanently injure her neck attempting to extricate herself from cramped quarters in the manner she did.
The commission acknowledges that treating doctor Lloyd marked the "direct causation" box on his WC-16B forms, rather than the "aggravation, acceleration and precipitation beyond normal progression" (Lewellyn 3) box. However, which of the alternative causal theories stated on the WC-16B form applies (or more accurately the simpler question of whether ant of them apply) is a legal issue for the commission which may be based on a doctor's narrative reports as well as marked boxes on the form itself. (1) Thus, Dr. Lloyd's practitioner's reports should be read together with his October 17, 1996 note describing the work injury, his October 18, 1996 letter to Dr. del Mar, and his surgical reports describing symptomatic degenerative disc disease. Reading these reports together, the commission concludes that Dr. Lloyd gives a Lewellyn 3 opinion.
The commission therefore finds that the applicant injured her neck in the July 26, 1996 incident, and is entitled to disability compensation and medical expenses for that injury. The commission further finds, based on the report of Dr. Lloyd, that the applicant was temporarily and totally disabled as a result of the neck injury from November 20, 1997 to March 1, 1999. In addition, because the injury made necessary the two-level cervical fusion performed by Dr. Lloyd on February 20, 1998, the applicant is entitled to a minimum award for permanent partial disability on a functional basis at 20 percent under Wis. Adm. Code, DWD § 80.32(11). Because the respondent did not have the opportunity to procure a rating for permanent disability after Dr. Lloyd set an end of healing-Dr. Lloyd's March 1, 1999 report was submitted slightly more than 15 days before the March 23, 1999 hearing-jurisdiction shall be retained to allow the respondent to secure a report countering Dr. Lloyd's 22 percent rating to the extent it exceeds the 20 percent minimum rating established by department rule.
The next issue is the applicant's average weekly wage, which in turn sets her disability compensation rates. Generally, compensation rates are set at two-thirds of a workers average weekly wage, subject to statutory limits. Wis. Stat. § 102.11.
However, this case raises the concept of "wage expansion." The policy behind "wage expansion" is that a worker injured in a part-time job may also lose the ability to work at second part-time or full-time job. In other words, calculating a compensation from a part-time wage alone may not reflect the actual wages or wage-earning capacity that is lost due to the injury.
Thus, under Wis. Stat. § 102.11(1)(a) and (c), (2) a worker who is injured while working part-time or irregular hours may have his average weekly wage calculated based on a full-time wage, which the department generally assumes to be forty hours. However, "wage expansion" is limited by a supreme court holding in Carr's Inc. v. Industrial Commission, 234 Wis. 466 (1940), reh'g denied, 234 Wis. 473 (1940).
Carr's Inc. involved a female worker who was injured while working as one of a group of part-time workers, doing the same job as full-time workers ("waiting on trade," i.e. cashier work), but for fewer hours and at lower pay. The court held that the Industrial Commission erroneously expanded the wage, offering two distinct justifications for reversal.
The first rationale is that the part-time worker's employment constituted such a distinct class of employment that there was no such thing as normal full-time employment for such a worker. In reaching this conclusion, the court concluded that the workers were part of a regularly-scheduled class of part-time workers, noting that even the Industrial Commission treated the workers as a distinct class for unemployment compensation purposes. On reconsideration, the supreme court added the argument that since the injured worker was a mother who was only willing to work part-time, it was a windfall to calculate her "wage loss" as if she was a full-time worker. In the intervening years since 1940, the statutes and administrative code have been modified to reflect the holding in Carr's Inc. See Wis. Stat. § 102.11(1)(f) (3) and Wis. Adm. Code, DWD § 80.51(4)
Of these statutory changes, the most apparent is Wis. Stat. § 102.11(1)(f)2 which holds that if a worker limits his or her availability to part-time work, his or her temporary disability rate is limited to his or her part-time wage. That is, the wage may still be expanded, but the temporary disabilty rate from the expanded wage cannot exceed the actual part-time earnings. Less apparent is interaction between Wis. Stat. § 102.11(1)(f) l and Wis. Adm. Code § DWD 80.51 (4) which together provide that part-time wages are not expanded above 24 hours per week if the worker is part of regularly-scheduled class of part-time workers. (4) Theoretically, these two exceptions may intersect, so that a regularly scheduled class member who limits his or her availability is permitted only the 24-hour expansion, but even so has his or her temporary total disability rate limited to actual wages.
In this case, the ALJ concluded that the applicant, who was one of several workers who worked fixed, part-time hours at the Bucyrus-Erie building, was part of a regularly scheduled class. The commission agrees that with conclusion that that the applicant was part of a class of part-time workers performing office cleaning services from 4:30 to 8:30 p.m., despite the applicant's assertion that as a "floater" she was in a class by herself. However, the commission must also consider whether the class of 4:30 to 8:30 p.m. office cleaners is big enough to qualify for the Carr's Inc. exception to wage expansion.
As the parties acknowledge in their briefs, a "regularly-scheduled class of part- time workers" must comprise at least ten percent. But the question remains: ten percent of what? There are three possible answers:
The commission believes this issue is most properly resolved based on test set out in the DWD Wage Manual. Despite admittedly its imprecise phrasing, the commission did not intend the Bloor decision to depart from the rule stated it the DWD Wage Manual. The formula set out in the DWD form WC-12-A also poses problems. Aside from the question of what would happen when an employer had no full-time workers doing similar work, the formula in the DWD form seems at odds as the rule more definitively stated in the DWD Wage Manual.
The next question, then, is what is meant by "at least ten percent of employes in the same classification or job title." On the one hand, it could mean ten percent of the workers hired to clean the Bucyrus-Erie building. Under this definition, the applicant's "class" does constitute at least 10 percent of the larger group of all the employer's workers providing cleaning services at the Bucyrus-Erie building. In fact, it constitutes 67 percent, as four of the six people who worked for the employer at Bucyrus-Erie building did cleaning work part-time on the same schedule as the applicant.
On the other hand, "at least ten percent of employes in the same classification or job titles" could mean ten percent of all workers who do office cleaning for the employer; that is, all of the office cleaners who have the same job title or job description as the applicant regardless of where they work. If so, it may not be concluded that the four workers who work part-time at Bucyrus-Erie constitute a ten percent class. The employer has 400 workers, but no evidence was offered as to how many of them clean offices.
The commission believes the most reasonable reading of the DWD Wage Manual requires looking at all of the employer's workers who do office cleaning, not just those who work at the Bucyrus-Erie building. While the Bloor holding and the DWD Wage Manual contemplate a narrow definition of what is "regularly- scheduled class," they both also contemplate much broader definition of the larger group to which the class belongs. Denying wage expansion for numerous small subsets of workers who all do substantially the same office cleaning work, but none of which subsets constitute at least ten percent of the employer's total office cleaning workforce, seems contrary to the intent of the DWD Wage Manual and the rationale of the court in Bloor.
The commission therefore cannot conclude that the applicant was part of a regularly-scheduled class of part-time workers constituting at least 10 percent of total number of its employes who do office cleaning (or who have the applicant's job title or classification.) As a result, wage expansion is not limited to 24 hours under Wis. Stat. § 102.11(1)(f)1 and Wis. Adm. Code, § DWD 80.51(4); the applicant's wage should be expanded to a 40-hour week.
The final point on this issue is whether the applicant restricted herself to part-time work, thus implicating Wis. Stat. § DWD 102.11(1)(f)2. The commission concludes she did. True, the applicant testified she did not limit her availability, but she was not asked directly at the hearing whether she was available for a forty hour week. However, in exhibit 7 the applicant affirmatively stated she limited her hours to part-time work, explaining that she worked 20 hours, though she would work "more if needed." Being available to work some indeterminate number more than 20 hours is not the same as working 40 hours. Indeed, given that the applicant expressly marked the box stating she limited her availability to part-time work, and after carefully reviewing her testimony, the commission concludes the applicant was not available for full-time work, even if she would be available for more than 20 hours.
The applicant earned $795 in 8 weeks; per week her average weekly earnings are $99.30 per week. At $5.00 per hour, the applicant's average weekly wage is $200; her permanent partial disability compensation rate based on that expanded wage is $133.33 per week. However, because the applicant limited her availability to par-time work, her weekly temporary total disability compensation rate is limited to her average weekly wage of $99.30.
3. Award.
The applicant was temporarily totally disabled from November 20, 1997 to March 1, 1999, a period of 66 weeks and 2 days. At the compensation rate for temporary total disability of $99.30 per week, she is entitled to an additional $6,586.90 in temporary total disability.
At a minimum, the applicant has sustained-as a result of her cervical fusion surgery-permanent partial disability on a functional basis at 20 percent compared to permanent total disability. She is therefore entitled to at least 200 weeks of permanent partial disability at the rate of $133.33 per week, or $26,666.67, accruing as of March 1, 1999. As of April 10, 2000, 113 weeks totaling $15,066.67 have accrued; 87 weeks totaling $11,600.00 are unaccrued.
Including the temporary disability, a total of $21,653.57 has accrued to date. The entire additional amount of disability compensation awarded under this order, including uaccrued amounts, equals $33,253,57.
The applicant agreed to an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the additional amounts awarded under this order. The future value of the fee is thus $6,650.71 (0.20 times $33,253.57). However, as of April 10, 2000, only the fee attributable to the temporary disability and first 113 weeks of permanent disability has accrued ($4,330.71); the fee attributable to the remaining 87 weeks of permanent partial disability ($2,320.00) remains uaccrued and is subject to an interest credit for advance payment of $132.09. The present value of the entire fee, thus, is $6,518.62, and shall be paid to the applicant's attorney together with costs of $577.78 within 30 days.
The amount payable to the applicant within thirty days is $17,114.64. That equals the total amount accrued to April 10, 2000 ($21,653.57) less the fee thereon ($4,330.71), less the legal costs ($577.78).
The amount remaining to be paid as it accrues after April 10, 2000 is $9,280.00. That equals the unaccrued portion of the award ($11,600.00), less the fee thereon without deducting the interest credit ($2,320.00). The remaining amount shall be paid to the applicant in equal installments of $577.78 beginning on May 10, 2000.
The applicant incurred reasonable and necessary medical expenses to cure and relieve the effect of the work injury as follows: $19,109.00 from Associates of Neurological Surgery, of which $32.40 was paid by the applicant, $9.10 was written off, $16,955.67 was paid by Midwest Security, and $2,111.83 remains outstanding; $13,221.16 from St. Luke's Medical Center, of which $90.00 was paid by the applicant, $2,582.91 was written off, $9,972.04 was paid by Midwest Security, and $576.21 remains outstanding; $173.00 from Greater Milwaukee Pathology, of which $14.70 was paid by the applicant, $25.95 was written off, and $132.35 was paid by Midwest Security; $1,475.00 from Anesthesiology Associates of Milwaukee, of which $221.25 was written off and $1,253.75 was paid by Midwest Security; $96.30 from Milwaukee Radiologists LT, of which $19.26 was written off and $77.04 was paid by Midwest Security; $150.00 from South Center Medical Group, of which $11.55 was written off, $79.61 was paid by Midwest Security, and $58.84 remains outstanding; $75.00 from WI TMJ Treatment Centers, all of which remains outstanding; $908.00 from Jeffrey Gorelick, M.D., all of which remains outstanding; $2,789.71 from Affiliated Health of Wisconsin, of which $38.71 was paid by the applicant, $676.90 was paid by Midwest Security, and $2,074.10 remains outstanding; $792.92 in prescription expense, of which $108.49 was paid by the applicant and $684.43 was paid by Midwest Security. Finally, the applicant incurred $63.80 in medical mileage.
Because the applicant may be entitled to additional permanent disability after the respondent has the opportunity to obtain an expert medical opinion concerning the extent of the applicant's permanent partial disability after the February 20, 1998 cervical fusion surgery, this order shall be left interlocutory on that issue. Because Dr. Lloyd indicated further additional follow up treatment may be necessary, and that the applicant's prognosis was guarded due to continuing discomfort and symptomology, the order shall also be left interlocutory to permit awards for future disability and medical treatment 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 foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days from the date of this decision, the employer and its insurer shall pay all of the following:
1. To the applicant, Linda Post, Seventeen thousand one hundred fourteen dollars and sixty-four cents ($17,114.64) in disability compensation.
2. To the applicant's attorney, Daniel J. Kelly, the sum of Six thousand five hundred eighteen dollars and sixty-two cents ($6,518.62) in fees and Two hundred eight dollars and twenty-one cents ($208.21) in costs.
3. To Associates of Neurological Surgery, Two thousand one hundred eleven dollars and eighty-three cents ($2,111.83) for medical treatment expense.
4. To St. Luke's Medical Center, Five hundred seventy-six dollars and twenty-one cents ($576.21) for medical treatment expense.
5. To South Center Medical Group, Fifty-eight dollars and eighty-four cents ($58.84) for medical treatment expense.
6. To WI TMJ Treatment Centers, Seventy-five dollars ($75.00) for medical treatment expense.
7. To Jeffrey Gorelick, M.D., Nine hundred eight dollars ($908.00) for medical treatment expense.
8. To Affiliated Health of Wisconsin, Six hundred seventy-six dollars and ninety cents ($676.90) for medical treatment expense.
9. To Midwest Security, Thirty-one thousand two hundred twenty-eight dollars and ninety-nine cents ($31,228.99) in medical expense reimbursement under Wis. Stat. § 102.30.
10. To the applicant, Three hundred forty-eight dollars and ten cents ($348.10) in out-of-pocket medical expense and medical mileage.
On May 10, 2000, and continuing on the tenth day of each month thereafter, the employer and its insurer shall pay the applicant Five hundred seventy-seven dollars and seventy-eight cents ($577.78) per month until the remaining amount of Nine thousand two hundred eighty dollars and no cents ($9,280.00) has been paid.
Jurisdiction is reserved for further orders and awards as are appropriate.
Dated and mailed April 5, 2000
postli.wrr : 101 : 3 ND § 4.8
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission did not confer 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 modifications to the average weekly wage rate are not made based on the credibility of any witness who testified, but as a matter of law based on the undisputed testimony in the record.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. While I have no problems finding that the applicant injured her left shoulder on July 29, 1996, I do not agree that her need for a fusion was caused by that incident. Her original diagnosis was a left shoulder strain. She did report some neck symptoms but all on the left side.
The employe had an EMG (Exhibit 3) performed on September 3, 1996 which was a normal study and showed no evidence of left cervical radicupathy according to Dr. Garg. Later she reports right neck symptoms. An MRI (Exhibit 4) was done by Dr. on Sienkiewicz October 10, 1996 which showed "degenerative disc disease at the C5-C6 and C6-C7. Hypertrophic unconvertebral joint changes and osteophyte formation posteriorly causing right neural foramen at C5-C6 and left neural foreman at C6-C7 level. No spinal cord compression or spinal stenosis." Thus there is no disc herniation.
While the employe may have needed the surgery, I agree with Dr. Patel who reported the "Non-work related diagnosis is degenerative conditions of the cervical spine affecting discs at C5-C6, C6-C7 levels with facet arthrosis. This is a preexisting condition." He also stated that the preexisting condition was of "long duration."
For these reasons, I would reverse on the causation of the neck condition and any expenses related to the neck alone. I do agree with the majority that the wage should be expanded to full time.
__________________________________________
Pamela I. Anderson, Commissioner
cc: ATTORNEY DANIEL J KELLEY
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
ATTORNEY MATTHEW SIDERITS
OTJEN VAN ERT LIEB & WEIR
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]
Footnotes:
(1)( Back ) The commission and the courts generally elevate the substance of a narrative report describing causation over the check marks on the practitioner's report form. Johnson Welding & Manufacturing Co. v. LIRC and Skogstad, case no. 94CV704 (Wis. Cir. Ct. Eau Claire County, July 3, 1995); Harnischfeger v. LIRC and Dzenzeol, case no. 95-0212 (Wis. Ct. App. August 8, 1995); and Anderson v. LIRC and Quad Graphics, case no. 95-1023-FT (Wis. Ct. App. November 7, 1995)(where LIRC was reversed after denying based on the treating doctor having marked two causation boxes.)
(2)( Back ) Section 102.11(1)(a), Stats., provides that "The average weekly earnings shall be arrived at by multiplying the daily earnings by the number of days and fractional days normally worked per week at the time of the injury in the business operation of the employer for the particular employment in which the employe was engaged at the time of the employe's injury."
Section 102.11 (1)(c), Stats., provides that where earnings cannot be determined under par. (a), because, for example, the person has no fixed earnings, or normal full-time days or weeks are not maintained by the employer in the employment in which the employe worked when injured, then earnings shall be "the usual going earnings paid for similar services on a normal full-time basis in the same or similar employment in which earnings can be determined under the methods set out in par. (a)...."
(3)( Back ) Section 102.11 (1)(f), Stats., provides:
1. Except as provided in sub. 2., average weekly earnings may not be less than 24 times the normal hourly earnings at the time of injury.
2. The weekly temporary disability benefits for a part-time employe who restricts his or her availability in the labor market to part-time work and is not employed elsewhere may not exceed the average weekly wages of the part-time employment.
(4)( Back ) Of course, a part-time worker who is part of regularly-scheduled class and works 28 hours is entitled to have his or her wage calculated on a 28 hour week.