Wis.LIRC WC Decision: Bresina - May 5, 2000 - ND � 8.12 - Medical Examination; commission will not intuit a cause for a herniation in contradiction to the only medical opinions which address this question

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

ROBERT A BRESINA, Applicant

EAGLETON FEED & FARM, Employer

MILLERS MUTUAL INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997033948

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 24, 1999. Eagleton Feed & Farm and Millers Mutual Insurance (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of May 1, 1997.

The commission has carefully reviewed the entire in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is October 11, 1970, was an unbelted passenger in a truck which rolled over into a ditch on May 1, 1997. He was tossed about inside the truck and his head hit the windshield. After the accident his shoulders were sore and his neck was stiff. He was treated at a hospital and released, with the treating physician indicating that he expected the applicant to be able to return to work on May 5, 1997.

The applicant did not return to work but saw Dr. John Jacks on May 5, 1997, complaining of continuing neck and shoulder pain. At that time, Dr. Jacks diagnosed neck and shoulder strain and prescribed physical therapy. The applicant also began regular treatment with a chiropractor, Dr. Chris Hougen.

On August 19, 1997, Dr. Richard Lemon examined and evaluated the applicant. In his report dated August 25, 1997, he opined that the work accident resulted in shoulder, neck, and back strain, but that the applicant had healed completely with no permanent disability. He also opined that the applicant showed marked symptom magnification. He noted positive Waddell signs and the fact that the applicant's hands were well callused even though he allegedly had not been doing any work.

The applicant's symptoms continued and he saw Dr. Peter Ihle, who prescribed medication and ordered a thoracic spine MRI done on October 3, 1997. It showed a left-sided disc protrusion into the neural foramen at C6-7. Dr. Ihle described it as a herniated disc that "picks off" the left nerve root, which was the side the applicant was complaining about.

Dr. Ihle referred the applicant for consultation with Dr. T. S. Thomas, who ordered a cervical MRI on October 22, 1997. It showed the same left-sided C6-7 disc herniation. Dr. Thomas prescribed a cervical epidural injection which made the applicant's symptoms worse. Dr. Thomas noted that some of the applicant's symptoms were not in keeping with just a herniated disc at C6-7. He prescribed additional cervical epidural injections which resulted in some symptom improvement, and recommended continuing conservative treatment, with surgery not guaranteeing "100 percent successful" results. Ten months after last seeing Dr. Thomas, the applicant saw him again on October 5, 1998, with continuing neck and left scapular pain. Dr. Thomas told him the only option he could offer was surgery. On December 16, 1998, Dr. Thomas completed a functional capacities evaluation which restricted the applicant to 4-hour work days, frequent lifting up to 24 pounds and occasional lifting up to 50 pounds, and limited neck movements. On December 16, 1998, Dr. Thomas also completed a WC-16-B in which he checked both the direct work causation and occupational disease causation boxes. He additionally assessed 5 percent permanent partial disability.

Dr. Hougen completed a WC-16-B dated January 8, 1998, in which he checked the direct causation box and assessed 27 percent permanent partial disability. In testimony at the hearing held on June 8, 1999, Dr. Hougen clarified his opinion to the effect that only 18 percent of that assessment was for the applicant's cervical spine, and the remaining 9 percent was for unrelated spine problems. He limited the applicant to sedentary work.

On February 7, 1998, Dr. Ihle wrote in a letter that he believed the C6-7 disc herniation was the result of the work injury of May 1, 1997. He noted that the applicant has a scoliosis dating from childhood, but this was not symptomatic for him. Dr. Ihle was reluctant to give a percentage of permanency since he was not currently treating the applicant, but he estimated it would be a minimum of
five percent.

In consultation with the commission, the administrative law judge indicated that he did not find the applicant to have been credible with the regard to the degree of disability which he alleges he has experienced. The administrative law judge also reiterated his reliance on the evidence concerning the applicant's work for his cousin's landscaping business, and the moving and "demolition car" activities. The commission agreed that the credible evidence shows the degree of the applicant's disability is less than he alleges. However, after the discovery of the applicant's C6-7 disc herniation, Dr. Thomas, Dr. Hougen, and Dr. Ihle all opined that this herniation was caused by the work incident of May 1, 1997. Dr. Lemon examined the applicant before the MRI revealed the disc herniation. There is no indication in the record that Dr. Lemon was ever asked to respond to the opinions of the practitioners who found that the herniation was caused by the work injury. As was stated in Leist v. LIRC, 183 Wis. 2d 450, 460, 515 N.W.2d 268 (1994):

". . . we have stated that LIRC cannot reject a medical opinion unless there is something in the record to support its rejection."

It was also stated in Erickson v. ILHR Department, 49 Wis. 2d 114, 126, 181 N.W.2d 495 (1970):

"There was no medical testimony that the herniation was caused by anything other than the incident which Erickson described as occurring at work."

Dr. Lemon's August 1997 opinion is not responsive to the issue of causation for the C6-7 disc herniation, nor did he have the benefit of the MRI testing when he examined the applicant and gave his medical opinion. The opinions of Dr. Thomas, Dr. Hougen, and Dr. Ihle reasonably and credibly carry the applicant's burden of demonstrating work causation for his C6-7 disc herniation. Given the evidence presented, the commission does not choose to intuit a cause for the herniation in contradiction to the only medical opinions which address this question.

Accordingly, it is found that the applicant sustained a C6-7 disc herniation as a direct result of the work-related accident occurring on May 1, 1997. Temporary total disability was conceded and paid through August 19, 1997. The medical opinions of Dr. Ihle, Dr. Hougen, and Dr. Thomas support an award for additional temporary total disability between August 20, 1997 and January 19, 1998. Dr. Thomas' clinic note date December 19, 1997, indicated that he was giving the applicant an off-work slip for the next month, but did not intend to refill it. He did not see the applicant again until October 5, 1998, which leads to the inference that a healing plateau was reached on January 19, 1998. This additional period of temporary total disability amounts to exactly 22 weeks, which at the applicable rate of $160 per week totals $3,520.

The applicant has an eleventh grade education and has worked only as a laborer, truck driver, and tree trimmer, except for a scrap metal salvaging venture which was not profitable. His starting wage with the employer was $6 per hour. While he was only 26 years old on the date of injury, the evidence of his education and work experience credibly rebuts the presumption of maximum earnings. The credible evidence, including the videotape evidence, leads to acceptance of Dr. Thomas' December 1998 functional capacity evaluation, which essentially restricts the applicant to medium/light work with no frequent flexing or rotating of his head or neck. Dr. Thomas' opinion of five percent permanent functional disability of the whole body is also accepted as credible. The applicant has lost the ability to perform heavy work, but he is still capable of driving and performing light-to-medium labor, and the evidence demonstrates that he had a low future earning capacity before the work injury. In addition, there is evidence of symptom magnification which introduces an element of legitimate doubt into the applicant claim for any loss of earning capacity in excess of 10 percent.

Accordingly, the applicant is entitled to an award for ten percent loss of earning capacity, which equates to 100 weeks of compensation at the applicable rate of $160 per week, for a total of $16,000, all of which is accrued.

Applicant's attorney is entitled to a 20 percent fee against the awards for temporary total disability and loss of earning capacity, and is also entitled to reimbursement for costs in the amount of $2,284.57.

The applicant is also entitled to reasonably required medical expenses in the total amount of $12,185.59 and medical mileage expense in the amount of $1316.02. The medical expenses will be particularized in the commission's interlocutory order.

In accordance with Dr. Thomas' opinion, jurisdiction will be reserved with respect to the possibility of additional medical expense and/or disability.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date Eagleton Feed and Farm or Millers Mutual Insurance shall pay to the applicant compensation in the amount of Thirteen thousand three hundred thirty-one dollars and forty-three cents ($13,331.43); to applicant's attorney, Dean Rohde, fees in the amount of Three thousand nine hundred four dollars ($3904), and costs in the amount of Two thousand two hundred eighty-four dollars and fifty-seven cents ($2,284.57); to Eau Claire Chiropractic the sum of Four thousand two hundred twenty-nine dollars and thirty-four cents ($4,229.34); to Medical X-ray Consultants the sum of Five hundred eighty-four dollars and twenty-five cents ($584.25); to Ihle Orthopedic Clinic the sum of Eight hundred fifty-six dollars ($856); to Sacred Heart Hospital of Eau Claire the sum of Two thousand eight hundred seventy-six dollars ($2,876); to Pain Clinic of Northwestern Wisconsin the sum of One thousand four hundred fifty-five dollars ($1,455); to Luther Hospital the sum of Six hundred thirty dollars ($630); to Spinal- Neurological Diagnostics of Eau Claire the sum of Seven hundred five dollars ($705); to Mobile Diagnostics of Wisconsin the sum of Eight hundred fifty dollars ($850); and to the applicant as medical mileage expense the sum of One thousand three hundred sixteen dollars and two cents ($1,316.02).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed May 5, 2000
bresiro2.wrr : 185 : 3 ND � 8.12

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. Unlike the majority, I agree with the administrative law judge. Dr. Lemon examined the employe prior to the MRI's and the diagnosis of a C6-7 herniation. The majority believed that to comply with Leist that Dr. Lemon needed to be asked for another opinion after Dr. Ihle and Dr. Thomas found that the herniation was caused by the May 1, 1997 injury. While another opinion from Dr. Lemon would have made the case easier to resolve, I believe if we credit Dr. Lemon's opinion we are permitted to find that the work injury did not cause the herniation.

Dr. Lemon opined that the employe had a work accident which resulted in shoulder, neck and back strain but that the applicant had healed completely with no permanent disability and showed signs of symptom magnification. The employe had positive Waddell signs and was not truthful with the doctor when he indicated his hands were dirty because he changed the oil on his car a couple of weeks ago. Dr. Lemon reported "Mr. Bresina has well-callused hands. In fact, there is one area where there is a small, healing, open blister. There are other areas of calluses. He had ground in dirt in his calluses and dirt under his fingernails.These are not the hands of a man who has not done any work whatsoever since May 1, 1997. Mr. Bresina has obviously been doing some sort of manual labor."

Dr. Lemon found that the employe had a full range of motion in his cervical spine and he had no areas of point tenderness. He did have diffuse tenderness about his lower thoracic and upper lumbar spine but that was not reproducible. Dr. Lemon was aware that the EMG done on May 29, 1997 was normal. Dr. Lemon found "Absolutely no objective findings or any abnormalities."

The employe admitted at hearing that he was doing landscaping work without pay for his cousin about three days per week in the spring and summer of 1997. The employe did not tell his doctors he was doing this work.

It is not the burden of the employer to show what caused the employe's C6-7 herniation. I believe Dr. Lemon's report is sufficient to show that he did not have a C6-7 herniation when he examined the employe.

Therefore, I would affirm the administrative law judge's decision.

__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY DEAN R ROHDE
BYE GOFF & ROHDE LTD

ATTORNEY JAMES C RATZEL
RATZEL & MATHIE LLC

Appealed to Circuit Court. Vacated and remanded October 19, 2000. Circuit court decision appealed to Court of Appeals. Aff'd in part and Rev'd in part January 10, 2002 (unpublished).

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