Wis.LIRC WC Decision: Deets - May 19, 1995 - ND � 5.29 - Permanent Total Disability - all of an applicant's restrictions attributable to his work injuries, both scheduled and unscheduled, must be considered in determining whether he is permanently totally disabled

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

ROGER F DEETS, Applicant

DEBCO CORPORATION, Employer

AETNA CASUALTY AND SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91000525

The employer/insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 25, 1994. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability attributable to the conceded work injury of December 19, 1990.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is August 10, 1941, was employed as an iron worker foreman when he fell off a scaffold and landed about 25 feet below on concrete. This occurred on December 19, 1990. He broke six ribs, deflated his left lung, damaged his spleen and pancreas, caused left hip, arm and ulnar nerve damage, and also caused cervical spine injury. He underwent a splenectomy and removal of part of his pancreas, but the pancreas subsequently became abscessed resulting in the performance of another surgery. The applicant may continue to suffer from pancreatitis. He also underwent a left anterior transfer of the left ulnar nerve, a left carpal tunnel release and excision of a bursa from the left elbow. He testified at the June 1994 hearing that he has back and neck pain including headaches. He walks with a limp and asserted that he cannot squat and bend. He has not been released for work by his treating physician, Dr. Steven Maciolek, who considers him unable to return to work.

The administrative law judge found permanent total disability based on the opinion of the applicant's vocational expert, Debra Thompson, who based her finding on the physical restrictions set forth by Dr. Maciolek, as well as on other factors set forth in Chapter Ind. 80.34 of the Wis. Admin. Code. The applicant was examined and evaluated at the employer's request by Dr. Marvin Wooten, and Ms. Thompson indicated that the physical restrictions Dr. Wooten assessed needed clarification with regard to which injuries they were attributable. Ms. Thompson opined that given Dr. Maciolek's restrictions, the applicant's circumstances were such that he was not employable.

Dr. Wooten restricted the applicant to occasional lifting up to 24 pounds and up to 39 pounds with his right arm. He allowed for frequent bending, occasional squatting, and no crawling or climbing. He further opined that the applicant could sit, stand or walk with rest for an 8-hour work day. He indicated that the applicant could use either hand for simple grasping, but only his right hand for pushing, pulling and fine manipulation.

Dr. Maciolek completed two physical capacities evaluations, one for the applicant's spine, neck and pancreas, and the other for his shoulder, legs and arms. The most severe of these restrictions limited the applicant to sitting, standing or walking for no more than 15 or 20 minutes, for a total of 1 to 3 hours in an 8-hour work day. Dr. Maciolek allowed for occasional carrying and lifting up to 20 pounds, occasional bending and squatting and no use of the left arm.

At the employer's request, a loss of earning capacity evaluation was performed by Janice L. Hindson. She opined that accepting Dr. Maciolek's restrictions, the applicant is permanently and totally disabled. However, accepting Dr. Wooten's restrictions, she assessed loss of earning at approximately 65-70 percent.

It was noted by both vocational experts that the applicant was born in 1941, and thus he is currently 54 years old. He is a high school graduate and has been employed as an iron worker since the early 1970's. He has been a field foreman in this trade for many years, a position which required him to perform supervisor, work assignment and record keeping duties. He is also able to read blue prints and use shop math. He was earning approximately 40 thousand dollars a year at the time he was injured.

A central question of fact in this case is whether Dr. Maciolek or Dr. Wooten most accurately assessed the applicant's physical restrictions. The vocational experts agree that the applicant is totally permanently disabled if Dr. Maciolek's restrictions are accepted, but there is disagreement if Dr. Wooten's restrictions are accepted. In resolving the question of whether an individual is permanently totally disabled, the law requires the assessment of the restrictions stemming from both scheduled and unscheduled work injuries. Permanent total disability is not incorporated into awards for scheduled disabilities under sec. 102.52, Stats. Section 102.44 (2), Stats., which incorporates the concept of permanent total disability into Chapter 102, specifically allows for permanent total disability for severe, multiple scheduled disabilities, and specifically states that its enumerations of what constitutes permanent total disability are not exclusive. Chapter Ind. 80.34 of the Wis. Admin. Code requires that assessments of loss under sec. 102.44 (2), Stats., take into account the effect of permanent mental and physical limitations resulting from a work injury, indicating that all restrictions should be considered. (1 ) Accordingly, all the applicant's restrictions attributable to his work injuries, both scheduled and unscheduled, must be considered in determining whether he is permanently totally disabled.

The commission consulted with the administrative law judge, who indicated that he found the applicant to have been a credible witness. He indicated that he was persuaded by Dr. Maciolek's medical opinion, and the severity of the applicant's injuries, that the applicant was permanently totally disabled. The commission noted that Dr. Maciolek, in addressing the applicant's low back and left leg pain, opined that these symptoms result from degenerative changes seen on a lumbar CT scan performed on April 16, 1992. Dr. Maciolek noted a bony spur projecting from the inferior posterior lip of L4 into the spinal canal, causing pressure on the thecal sac, and resulting in spinal stenosis at L5-S1. Nowhere in the record does Dr. Maciolek attribute these degenerative changes, or an acceleration and precipitation of them, to the December 1990 work incident. In his narrative attachment to his WC-16-B, he does opine that the December 1990 fall resulted in "an injury" to several areas of the applicant's body, including his lower spine. Dr. Wooten found the applicant's lumbar spine films were reported as normal except for degenerative arthritic changes. The radiologist who read the lumbar CT scan of April 16, 1992, Dr. T. R. Hansen, detailed the bony spur formation described by Dr. Maciolek, and opined that most of the applicant's "changes" were related to spur formation. Dr. Hansen opined that the narrowing was at the L-5 interspace, but did not find evidence of significant nerve root encroachment.

Given this evidence, the commission would be required to speculate to find that the applicant's preexisting lumbar back condition was caused or accelerated and precipitated beyond normal progression by the work incident of December 19, 1990. Accordingly, Dr. Wooten's opinion that these lumbar changes represent a degenerative arthritic process is inferred to be credible. This inference, together with a lack of reference in the post-injury medical records to traumatic lumbar spine symptoms, further lead the commission to accept as credible Dr. Wooten's opinion that the work injury did not result in any permanent disability to the applicant's lumbar spine. Accordingly, Dr. Wooten's physical restrictions are accepted over Dr. Maciolek's restrictions. The commission infers that the applicant is capable of working in such positions as a security guard, custodian, sales person, food service worker, or messenger on a full-time basis. His failure to seek employment was apparently based in part on Dr. Maciolek's opinion, which the commission rejects. Ms. Hindson's assessment of 70 percent loss of earning capacity is found credible, considering all the relevant factors enumerated above.

Accordingly, the applicant is entitled to 700 weeks of permanent partial disability at the applicable rate of $131 per week. Department records indicate that permanent disability has previously been paid in the amount of $12,915, for which credit will be given.

Since 179 weeks of permanent partial disability were conceded, a 20 percent attorney's fee will be assessed against 521 of the weeks of permanent partial disability awarded. The total attorney's fee of $13,650.20 will be reduced by an interest credit of $3,743.27, leaving a present value fee due in the amount of $9,906.93.

As of May 10, 1995, the net accrued amount of permanent partial disablity due the applicant, after subtraction of the $12,915 previously paid, is $6,997. The unaccrued total of $58,137.80 shall be payable in monthly installments of $567.67, beginning June 10, 1995.

The physicians are in agreement that additional medical treatment may be required in the future, and therefore jurisdiction will be reserved with respect to all issues except lumbar spine treatment and disability.

Now, therefore, this

INTERLOCUTORY ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant accrued permanent partial disability in the amount of Six thousand nine hundred ninety-seven dollars ($6,997); and to applicant's attorney, Linda S. Vanden Heuvel, fees in the amount of Nine thousand nine hundred six dollars and ninety-three cents ($9,906.93).

Beginning on June 10, 1995, and continuing monthly thereafter, the employer or its insurance carrier shall pay to the applicant currently-unaccrued permanent partial disability in the amount of five hundred sixty-seven dollars and sixty-seven cents ($567.67), until the total of currently-unaccrued permanent partial disability has been paid in the amount of Fifty-eight thousand one hundred thirty-seven dollars and eighty cents ($58,137.80).

Jurisdiction is reserved as noted above.

Dated and mailed May 19, 1995
deetsro.wsd : 185 : 8 ND � 5.29

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY LINDA VANDEN HEUVEL
VANDEN HEUVEL & DINEEN SC

ATTORNEY JOHN A GRINER IV
SPINDLER RAITBURD SCHWEMER & GRINER

Appealed to Circuit Court. Affirmed, March 29, 2996.

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Footnotes:

(1)( Back ) Restrictions relevant to loss of earning capacity attributable to permanent partial disability are limited by sec. 102.44 (3), Stats., to those restrictions attributable to unscheduled injury.