Wis.LIRC WC Decision: Smith, Karol - May 18, 1999 - ND � 5.46 - Employer's Liability for Medical Expense - hottub prescribed by doctor at applicant's request -- applicability of Spencer

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

KAROL R. SMITH, Applicant

WEBCRAFTERS INC, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998012531

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed May 18, 1999
smithka.wsd : 175 : 3 ND � 5.46

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant contends in her petition for commission review that the administrative law judge erred in failing to award the applicant additional temporary disability benefits since she did not claim a traumatic neck injury on January 14, 1992, but specifically alleged that her dates of injury were January 15, 1988 and January 14, 1992 due to accidental injuries to her neck, shoulders and back aggravated by repetitive motion up to her last day of work. However, the applicant testified that she suffered a traumatic injury on January 14, 1992 while pulling on bundles of material at the employer's bindery, and she felt something in her back pull as she was reaching down to grab it, and that she had the onset of low back pain. The applicant did not return to work after January 14, 1992 and she received temporary total disability benefits until June 1, 1992.

The applicant underwent surgery with Dr. Toutant who performed a discectomy surgery at the C6-7 level on June 1, 1992 and temporary disability compensation for the 1988 neck injury was resumed and any disability for her low back due to the January 1992 incident ended. The applicant continued to complain of neck pain and numbness in her hands and on August 27, 1992 Dr. Toutant referred her to Dr. Moore who treated the applicant conservatively. The applicant also complained of radicular symptoms in her right leg, symptoms in her right arm and headaches and an EMG scan in May 1993 revealed chronic C7 left radiculopathy. However, an MRI scan of the cervical spine was unremarkable and within normal limits and there was no evidence of any recurrent disc or nerve root impingement.

The evidence did not establish that that the applicant suffered a new occupationally related neck injury in January 1992. The applicant reported a traumatic incident in which she had on the onset of low back pain on January 14, 1992, but there is no report of any neck pain or a new injury at that time and the evidence indicates that the applicant's neck surgery in 1992 was related to her initial work injury and subsequent deterioration, and not due to any new work injury. In addition it was not established that the applicant remains in a healing period for any work related injury. The applicant contends that she continues to be in a healing period while treating with Dr. Nosal. The commission agrees with the administrative law judge that the overwhelming evidence established that the applicant's ongoing symptomatology is psychological in origin and not due to her work injury.

The applicant contends that the administrative law judge should have credited the opinion of Dr. Fosdal who opined that the applicant's chronic physical complaints are a continuation and unfortunate residual of her original work related injuries and a psychiatric diagnosis could be that of a chronic adjustment disorder. The applicant contends that Dr. Fosdal's opinion is supported by other physicians and the reports confirm that the applicant suffers from disability as a result of both physical and nonphysical factors.

However, the commission agrees with the administrative law judge that Dr. Fosdal's opinion flies in the face of virtually every other physician familiar with the applicant's case and is not credible. The applicant's objective tests and cervical x-rays are negative while she continues to report neck pain and headaches as well as pain in her upper extremities which did not respond to extensive treatment with many physicians. Dr. Zdeblick concurred with Dr. Toutant that the applicant's multiple complaints could not be attributed to a cervical disc problem in August 1995. Dr. Spierer, a psychologist who examined the applicant on behalf of the employer, credibly opined that the applicant's psychological dysfunction predated any work injury and had the embryonic development prior to and during the time surrounding her mother's death in 1983. Dr. Spierer noted that the applicant's psychological components of her presentation did not appear to result from any work exposure. He acknowledged that the applicant's pain symptoms began with a true organic etiology but there ongoing manifestations appeared psychological in origin.

Dr. Moore, who also treated the applicant, stated on March 4, 1997 that the manifestations of her chronic pain disorder beyond the low grade post- operative pain would not be work related, but the applicant has a number of psychiatric manifestations which intertwine with the somatic complaints of the chronic pain disorder. Dr. Glad, who also evaluated the applicant, found in August 1994 that there was really no explanation for the applicant's numbness that develops in her arm and hand as a result of her shoulder and neck injuries. Dr. Gmeiner opined in April 1998 that no further medical treatment was indicated for the applicant's neck or cervical spine and she had no findings of a nerve root lesion and she voluntarily restricts her range of motion of the cervical spine. Dr. Zdeblick indicated in his letter dated August 22, 1995 that he agreed with Dr. Toutant that the applicant's multiple complaints cannot be attributed to her neck as there are significant nonorganic components to them.

The commission credits the opinion of Dr. Spierer. The evidence indicates that the applicant's ongoing physical problems are primarily psychological in origin and are not related to her work injury. Therefore the applicant is not entitled to any further temporary disability and based on the medical evidence it is established that the applicant has reached a healing plateau and no further treatment is necessary.

The applicant also asserts that the administrative law judge erred in awarding the applicant 30 percent loss of earning capacity as a result of her 1988 work injury. The applicant contends that such a restrictive approach ignored all other facets of the applicant's long-standing complicated, severe and chronic problems and that her permanent disability is at a minimum of 50 percent as assessed by her vocational expert, Mr. Meltzer. Moreover, the evidence indicates that the applicant has been released to return to work with restrictions from Dr. Toutant of no lifting of more than 20 pounds. Ms. Hindson, the employer's vocational expert, opined that taking into account the restrictions of Dr. Moore and Dr. Toutant, who had treated the applicant, that within a reasonable degree of vocational probability the applicant has sustained a 30 to 40 percent loss of earning capacity. Clearly the applicant does have some restrictions in lifting and performing the type of work that she had in the past. She is a relatively young women and more recently has been able to look for employment. The commission credits Ms. Hindson's assessment of 30 percent permanent partial disability.

In addition, the applicant contends that the administrative law judge erred in denying incidental expenses for a hottub which was prescribed. However, the applicant requested Dr. Moore to give her a prescription for the hottub because she felt that it would be helpful in her therapy. Dr. Moore did give her the prescription but noted that such a maneuver had not worked on many occasions. The administrative law judge appropriately noted that the rule in Spencer v. ILHR Department, 55 Wis. 2d 525 (1972) does not apply in this case since there is a medical dispute whether the applicant's complaints being treated are related to the industrial injury. The administrative law judge also properly noted that the treatment in the form of a prescription for a hottub was initiated by the applicant and not her physician. The evidence does not establish that the expense for the hottub was reasonable and necessary to cure and relieve the effects of the applicant's work injury. Therefore, the administrative law judge appropriately dismissed the applicant's claim for reimbursement for the expense of the hottub. Based on Dr. Gmeiner's report it was not established that the applicant requires further treatment for her work related neck, shoulder or low back injuries. A final order was appropriately entered in this matter.

cc: ATTORNEY KENNETH T McCORMICK JR
BOARDMAN SUHR CURRY & FIELD LLP

ATTORNEY TIMOTHY J YANACHECK
STILP & COTTON

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