STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
GLORIA HANVOLD, Applicant
KWIK TRIP INC, Employer
FEDERATED MUTUAL INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1995036981
[Facts] [Discussion]
The applicant filed an application for hearing with the Worker's Compensation Division of the Department of Workforce Development on July 7, 1998, requesting compensation for temporary and permanent disability from a June 16, 1995 work injury. The matter went to hearing before an administrative law judge (ALJ) on July 13 and December 15, 1999.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $343.01, and a compensable injury occurring on June 16, 1995. The respondent also conceded and paid certain periods of temporary disability, as well as permanent partial disability rated at five percent compared to amputation at the right shoulder, five percent compared to amputation at the right knee, and five percent compared to amputation at the right ankle. The applicant sought additional temporary disability, as well as additional permanent partial disability at five percent compared to amputation at the left elbow, five percent compared to amputation at the right knee (for a total of 10 percent at that joint), five percent compared to amputation at the right ankle, five percent compared to amputation at the right hip, and three percent compared to loss of use of the body as a whole. The applicant also claimed she was permanently and totally disabled from a vocational standpoint. The applicant also sought an interlocutory order.
Following the hearing, the ALJ issued her findings of fact and order on January 24, 2000, and an amended order on February 8, 2000. The ALJ awarded temporary disability for various periods though December 22, 1997. She also awarded permanent disability in accordance with the final ratings given by a treating physician, Donald Bodeau, M.D., which included disability rated at 3 percent to the whole body. The ALJ retained jurisdiction for more medical expense and permanent partial disability. However, because she concluded that the applicant quit her job voluntarily despite her employer's accommodation of her disability, the ALJ declined to award permanent total disability on a vocational basis, or any loss of earning capacity.
Both parties filed timely petitions for commission review. The applicant contends she should be found permanently and totally disabled, based on her inability to continue working. The respondent argues that (a) the ALJ should not have awarded any "unscheduled" disability (rated as compared to a loss to the body as a whole), (b) the ALJ overpaid temporary disability, (c) the order should reflect the reverse social security offset, and (d) the order should not be interlocutory.
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. Facts.
The applicant was born in 1940. She began working for the employer, a convenience store/gas station, in 1989. She sustained a conceded work injury on June 16, 1995 when she was run over by a customer driving a pick-up truck.
The incident occurred when the applicant was outside checking the level of the gasoline storage tanks. This was done by "dipping the tanks," a process by which a worker would put a long stick down into the underground storage tank to check the level of the fuel and any water in the tank.
In this case, the applicant had removed the tank cap, a cover that was level with the pavement, and was stooping or bending down to put the dipstick in, when she was struck by a customer's pick-up truck. The truck actually ran over her, and she was dragged along for some distance. Eventually, the driver heard her screaming, and stopped the vehicle.
According to the applicant's unrebutted testimony, when the vehicle stopped moving its wheels were over her body, specifically, over her back and hip. Some people came to the applicant's aid, and apparently manually lifted the truck off of her. An ambulance was summoned and took her to the hospital. The respondent did not challenge the applicant's account of the injury on cross-examination, nor did it offer any contrary witnesses on this point.
The earliest records from the date of injury are at exhibit B. The ambulance report notes a joint injury in the left hip and left elbow. The applicant was taken first to the Tri-County Memorial Hospital in Whitnall. An "Outpatient" note dated June 16, 1995 notes complaints of right leg pain. An abrasion to the left forearm and a right leg femur fracture were diagnosed. The applicant was transported to Luther Hospital Eau Claire.
The applicant was admitted to Luther Hospital on June 16, and not released until June 21. Some of the notes from this hospitalization are at exhibit I. The applicant evidently first saw Chris F. Peterson, M.D., on June 16. He noted main complaints of right leg pain, lower back pain, and abrasions. His diagnostic impression was a "tib fib" (1) fracture, and he recommended follow-up with a colleague, William Morin, M.D.
Dr. Morin's June 16, 1996 note is at exhibit I as well. He describes the injury and notes a chief complaint of pain of the right leg. X-rays showed a closed comminuted fracture in the right tibia and associated fibula fractures.
Dr. Morin also noted multiple abrasions in the left arm and around both knees, and pain in the sacral and coccygeal region. A lumbosacral x-ray, however, showed no obvious fracture. Dr. Morin recommended intermedullary nailing to repair the tibia fracture.
In addition, a note from P.J. Hoppe, M.D., whom the applicant saw on consultation, describes the work injury, and notes a fracture to the lower tibia and abrasions on the left arm. He specifically noted a prior history of back pain "which is unchanged from her injury today." His impression was that the applicant suffered traumatic injury from being struck by a truck, sustaining a fracture to the lower tibia, with a significant abrasion on the forearm. Exhibit I, Hoppe note of June 16, 1995.
Dr. Morin performed the intermedullary nailing surgery on June 16, 1995, based on a diagnosis of a closed right tibial fracture. Dr. Morin also released the applicant from the hospital on June 21, subject to strict orders for non- weightbearing on the lower right leg. See exhibit I.
The applicant was then seen by a registered nurse, Ron Hanson, through Lutheran Hospital's Home Health Agency on June 22, 1995. He described the work injury as causing a fractured right tibia, a hairline fracture of the pelvic area, as well as numerous contusion, bruises and road burns. He noted complaints of pain including in her right arm from the road burns, and right leg pain. He also noted she took pain medication. See exhibit C.
On June 25, 1995, Mr. Hanson noted pain in the left upper arm and right lower leg. On June 29, she complained of shooting pain in the right leg from the upper leg to the toe. On July 4, 1995, she complained of quite a bit of sacral pain, and shooting pains in the right leg which increased as the day wore on. On July 18, 1995, she complained of intermittent shooting pains in her right leg.
Meanwhile, the applicant continued to treat with Dr. Morin. He noted on July 12, 1995, one month post injury, that her surgical incisions were well healed, though she had paresthesias in her foot, as well as pain in her elbow and forearm. X-rays of the elbow and forearm showed no fracture, however. He thought she was stable, and continued her in "non-weightbearing status."
In August 1995, the applicant treated with a colleague of Dr. Morin who noted complaints of foot and ankle pain, with swelling suggestive of RSD. See August 23, 1995 note of Dibell, Exhibit E.
In November 1995, the applicant was examined by another colleague of Dr. Morin's, D.T. Bodeau, M.D. He noted multiple injuries, including fractures of the right leg, tailbone, and pelvis, as well as multiple soft tissue injuries. See exhibit E, note of Bodeau dated November 13, 1995. It appears, however, that he did not actually review the x-rays. He noted continued complaints involving the right leg and ankle, right shoulder, left leg and left elbow.
On examination, Dr. Bodeau noted a mild limitation in lumbar range of motion, which seemed to be primarily a limitation of hip motion due to persistent pelvic pain. He noted decreased sensation in the right leg. His assessment was status post motor vehicular trauma with fractures of the pelvis and right lower extremity, with multiple soft tissue injuries.
Dr. Bodeau allowed a return to two hours of work per day, with occasional lifting up to ten pounds. Dr. Morin concurred, releasing her to light duty on November 22, 1995. The applicant in fact returned to the employer on modified duty.
The applicant continued to follow with Dr. Bodeau. On December 6, 1995, he noted gradually increasing function, with tenderness at the fracture site, and activity-related aching in the right shoulder. He noted she had some problems with the stool height at work, but also that she tolerated cashiering without difficulty. He modified her work restrictions to allow four hours of work with breaks, and made specific recommendations regarding the applicant's stool at work.
On January 6, 1996, Dr. Bodeau noted continued slow progress with her multiple fractures and soft tissue injuries. He also noted an antalgic gait (i.e., a limp), favoring her right leg and causing her to use a cane. He also noted loss of motion in the hip.
On January 26, 1995, Dr. Bodeau noted that the applicant showed good progress in physical therapy with endurance activities, though she continued to have significant lower extremity pain, and shoulder pain with reaching. Dr. Bodeau noted some continued impingement signs in the right shoulder, and a severely antalgic gait.
In February 1996, Dr. Morin noted continued slow healing of the tibia fracture, but that one of the screws appeared bent or broken. Further surgery was a possibility.
On February 16, 1996, Dr. Bodeau noted gradual progress and that the applicant's endurance was building. However, he also noted continued pain at the fracture site, with reduced motion in the right hip and shoulder. He noted that her employer had been very accommodating and anticipated an increase in hours. However, he also stated that "low back pain is the limiting factor with respect to working hours."
In March 1996, the applicant underwent the surgery that Dr. Morin had proposed to deal with the bent or broken screw from the tibia repair.
The applicant recovered from the leg surgery in April 1996. Drs. Bodeau and Morin kept her off work entirely; Dr. Bodeau referred her for work hardening with a goal of a return to work by early May.
In May 1996, while the applicant was undergoing work hardening and work conditioning, Dr. Bodeau noted a significant improvement in her gait to the point that she did not require a cane any longer at the clinic where she had work hardening. On May 17, 1996, Dr. Bodeau released the applicant to work two days a week, two hours per day, with the anticipation she could add an hour per day per week, and eventually return to five days a week when work hardening ended.
Dr. Bodeau noted on this occasion that she had a full active range of motion in the right shoulder, but a limited range of motion in the left shoulder, with a full passive range of motion. He described the lumbar range of motion as good, and primarily limited by the applicant's obesity.
By June 1996, Dr. Bodeau noted that the applicant had continuing progress with work hardening, and was working three days per week, with work hardening on two days per week. He did note some right hip and buttocks pain, and significant tenderness of the trochanteric bursa (2) and gluteal areas. His assessment was resolving post- traumatic hip and leg pain with tendinitis in the tensor fascia lata and trochanteric bursitis.
Dr. Bodeau's note for June 11, 1996, deals with the applicant's work restrictions and a return to more strenuous duty at work. Dr. Bodeau approved a trial of four to six hours per day, 20 to 24 hours per week, with a discontinuance of work hardening. The applicant's supervisor met with Dr. Bodeau, and suggested the applicant pushed hard at work and did not rest as often as she could.
In July 1996, the applicant was working four to five hours per day, 25 hours per week, on light duty and complained to Dr. Bodeau of a mild increase in leg or buttock pain rather more related to the weather than activity. Dr. Bodeau opined the applicant had reached a plateau of healing from her injuries, including the multiple fractures of the right leg, ankle, and pelvis, and the soft tissue injuries. He opined most of the injuries had resolved without permanent limitation, but set permanent partial disability ratings and work restrictions discussed in more detail below.
The applicant returned to Dr. Morin on August 7, 1996 complaining of increased leg pain. The doctor ordered a CT scan. She called his office three weeks later seeking medication for back pain. Dr. Morin's office called in a prescription.
The applicant then saw Dr. Morin for interpretation of the CT scan. He noted a possible non-union of the tibia fracture, which would account for the right leg pain. Dr. Morin also diagnosed sciatica "of a recent onset," with a positive right straight leg raising test at 60 to 80 degrees. He referred her to the neurosurgery clinic for assessment of the sciatic problem.
The applicant then saw D.A. Nye, M.D., in neurosurgical consultation. Dr. Nye noted the onset of back pain, more on the right than the left, after the June 1995 work injury. The applicant also complained of pain into the thigh. Dr. Nye noted a little limitation in range of motion in the back. He diagnosed musculoskeletal back problems and bilateral hip pain with possible trochanteric bursitis. He also diagnosed right lateral femoral cutaneous neuralgia.
Then in November 1996, Dr. Morin referred the applicant to Jay Loftsgaarden, M.D., in the musculoskeletal department-sports medicine. He noted complaints of numbness in the right thigh, and "a lot of back pain" on the right side extending down the hip to the knee and sometimes the foot. On examination, Dr. Loftsgaarden noted tenderness on palpation of the lumbar paraspinal regions, and tenderness over the right gluteal and right greater trochanteric region. The doctor's impression was chronic low back pain status post multiple trauma. He thought her examination was most typical of a trochanteric bursitis, and associated low back pain.
Meanwhile, the applicant returned to Dr. Morin for examination of the tib fib fracture, which the doctor opined was improving in November 1996, but which he noted was continuing to be symptomatic in December 1996.
The applicant returned to Dr. Loftsgaarden in February 1997. She told the doctor her low back pain was improving, but not completely resolved, as was the right trochanteric bursitis. At this point, Dr. Loftsgaarden noted, the applicant was working 30 hours per week. The doctor noted her gait was stiff, but "otherwise nonantalgic." The doctor provided some instruction in use of the applicant's cane. Dr. Loftsgaarden diagnosed continued multiple musculoskeletal complaints status post motor vehicle accident from a work related injury with right trochanteric bursitis, an apparently healing tib-fib fracture, and right shoulder impingement. He recommended, among other things, physical therapy and consultation with a pain counselor.
In March 1997, Dr. Morin noted persistent, rather bothersome symptoms from her tibia fracture. The doctor thought continued observation, with activity as tolerated, was the best approach.
The applicant returned to Dr. Loftsgaarden on March 28, 1997, complaining of right trochanteric bursitis, but reporting that her right shoulder impingement was better. Apparently, the applicant had been working eight hours per week; Dr. Loftsgaarden temporarily reduced that to four. The doctor also performed an injection at the hip.
In May 1997, Dr. Morin recommended further surgery for the tibia problem. Specifically, the doctor felt it would be reasonable to schedule a rod removal in the fall.
The applicant returned to Dr. Loftsgaarden in May 1997 as well. She still had complaints of right trochanteric bursitis and right shoulder impingement (as well as the non-healing fibular fracture.) She did tell the doctor she felt the bursitis was improving, as was her shoulder problem, and she was able to work forty hours per week. He allowed her to continue to work an eight hour day, subject to a 20- pound lifting restriction.
In June 1997, the applicant again saw Dr. Loftsgaarden after some intervening biofeedback counseling. She reported she felt she continued to improve, albeit gradually. She reported her right hip pain was completely resolved. Her shoulder impingement was better but not completely resolved, and got worse with activity. She complained of low back pain, and no radiating pain down the light leg, but a burning tingling sensation. The doctor felt the applicant was benefiting from physical therapy, which he continued.
In August 1997, the applicant again told Dr. Loftsgaarden that her right hip problem was completely resolved and her right shoulder problem was improving. She complained of continuing right lower back pain, however, which apparently worsened as the work week progressed. The doctor diagnosed multiple musculoskeletal complaints, all of which were improving slowly, allowing the applicant to work virtually a full week.
Then, on September 25, 1997, the applicant went forward with the surgery mentioned above, a removal of an intermedullary nail in the right tibia. By October 13, 1997, the doctor allowed weight bearing as tolerated, and anticipated she could return to work subject to her former restrictions as of the first or second week in November.
On December 1, 1997, Dr. Morin noted the applicant had reached maximal medical improvement from her surgery, and referred her to Dr. Bodeau for a final permanent disability rating. Accordingly, the applicant returned to Dr. Bodeau on December 22, 1997.
In his report for that date, Dr. Bodeau noted the work injury, and continued severe pain in the right leg, right hip, right knee, left elbow and right shoulder. He noted decreased function, and difficulty with activities like stooping, squatting, kneeling or crawling. He also noted that after his prior disability rating in July 1996 (see above), the applicant was diagnosed with nonunion of the tibia and fibular fractures, and also experienced sciatica and trochanteric bursitis. The doctor noted the sciatica apparently rose secondary to a gait alteration as a result of the other injuries.
The doctor agreed the applicant had reached a plateau of healing, and rated permanent partial disability at various scheduled levels discussed in detail below. He set work restrictions, and opined she could continue to work for the employer.
Treatment after this point became more sporadic. The applicant saw a registered nurse, S. Bergquist, in June 1998 complaining of increased back, right shoulder, right hip, and right leg pain, since being assigned a night shift. Nurse Bergquist consulted Dr. Bodeau, who prescribed a pain medication.
In December 1998, the applicant followed up with Dr. Morin, who noted a year had past since his last examination. Dr. Morin noted that the applicant's "work capacity had become extremely limited over the last several months." He noted a complaint of mild pain at the right ankle, but noted similar pain in the other ankle as well. He noted also additional complaints in the right hip, low back, right shoulder, neck, and left arm, and that she had been evaluated by Dr. Loftsgaarden regarding these complaints.
Dr. Morin noted a small possibility that she might undergo future surgery for the tibia fracture, but reported again that she had reached a healing plateau of that condition. He recommended she return to Dr. Loftsgaarden for an opinion regarding healing plateau for the other musculoskeletal problems, and that she be evaluated for PPD by Dr. Bodeau. Exhibit E, Morin note of December 2, 1998; also December 2, 1998 letter from Morin to Skemp.
Accordingly, the applicant saw Dr. Loftsgaarden on December 15, 1998. He noted she was still working full time for the employer, but was experiencing "all kinds of continuing pain from the top of her head to her toes. His diagnostic impression was that the applicant suffered from a whole host of problems that appeared musculoskeletal in origin, and that she was tolerating work poorly. He noted plantar fasciitis and right trochanteric bursitis. He prescribed medication (Relafen, an anti-inflammatory), and noted an upcoming appointment with Dr. Bodeau.
The applicant then saw Dr. Bodeau the next day, on December 16, 1998. He noted continued complaints of hip and leg pain, with increased symptoms after work. He noted she used a cane at all times, and had more difficulty getting up and down. On examination, he noted a marked antalgic gait favoring the right leg, and tenderness over the trochanteric bursa and the tibia area.
Dr. Bodeau opined that the scheduled disability ratings he gave earlier continued to apply, but the deterioration of her functioning negatively affected her ability to continue working. He noted that the problems were not the cashiering activities per se, but the additional tasks necessary when working alone or at night. He opined she needed to use a cane at all times, which restricted her from activities that required using two hands for carrying or activities like snow shoveling or lawn mowing. He reiterated his twenty-pound lifting restriction.
Dr. Bodeau recommended a formal evaluation of her job, and vocational assessment. Nonetheless, noting her age (58), he thought her vocational options would be limited.
The applicant returned to Dr. Loftsgaarden on February 19, 1999. She still complained of right lateral hip pain. She told Dr. Loftsgaarden she had shifted her hours back to a day shift from a night shift, and that helped her ability to work. The applicant told Dr. Loftsgaarden that she used her cane, but only when she needs it real bad. He told her to use her cane more often.
Finally, the applicant underwent additional examination and testing of her right shoulder, in September 1999. Degenerative changes and a partial rotator cuff tear were disclosed. Exhibit L.
In March 1999, the applicant quit her job with the employer. Her testimony is that she quit because of the pain, particularly back pain. July 13, 1999 Transcript I, page 54. Shortly thereafter, the applicant applied for social security. Id., transcript, page 90.
The record contains several sources of expert medical opinion regarding the nature and extent of permanent disability.
The most interesting set of opinions is from treating doctor Bodeau, who initially gave only disability ratings for scheduled injuries, but after considerable prodding from the applicant's lawyer, gave an "unscheduled" or "whole body" rating.
First, on July 17, 1996, Dr. Bodeau rated permanent partial disability at five percent at the right knee based on moderate chronic pain and altered gait, five percent at the left elbow based on soft tissue injuries and a skin graft that was evidently required, and five percent at the right shoulder for loss of abduction.
Then, on re-examination on December 22, 1997, Dr. Bodeau re-evaluated his permanent disability ratings based on the ongoing symptomology which included the hip pain (trochanteric bursitis) and a non-union of the fracture near the ankle. Dr. Bodeau did not alter the prior assessments of disability at the right shoulder and left elbow. He increased the right knee rating to 10 percent, and assessed additional ratings of ten percent at the right ankle and five percent at the right hip. Dr. Bodeau's restrictions on this day included a 20-pound infrequent lifting limit; a 10-pound frequent lifting limit; an avoidance of squatting, kneeling, crawling, and ladder climbing; limited stair climbing; and accommodation for activities like lawn mowing and snow shoveling. Dr. Bodeau explained in a letter dated March 11, 1998, that he revised his permanent partial disability rating due to increased pain, sciatica, and gait alteration among other factors. Exhibit E, second last page.
Dr. Bodeau again considered the applicant's disability on December 16, 1998. He stated that his prior December 22, 1997 rating continued to be accurate. However, as noted above, he opined that continued deteriorating functioning negatively affected her ability to work, not from the cashiering itself, but the associated duties. He maintained the twenty-pound infrequent lifting, and ten- pound frequent lifting restrictions, as well as the squatting, kneeling and climbing restrictions. However, he also prohibited two handed carrying, as it interfered with her cane use, and prohibited snow shoveling and lawn mowing. See Exhibit I, Bodeau letter of December 23, 1998, and exhibit E, Bodeau note of December 22, 1998.
Finally, on February 16, 1999, in response to repeated inquiries from the applicant's attorney, Dr. Bodeau withdrew his rating of five percent at the right hip and assigned instead permanent partial disability at three percent to the whole body for sensory problems, pain, numbness, tingling, weakness, loss of motion, and loss of strength in the right leg. Exhibit 5. On June 1, 1999, Dr. Bodeau revised his opinion again. He noted the applicant's severe pain in the right leg, right hip, right knee, left elbow, and right shoulder. He also noted his prior assessments of permanent scheduled disability, and in a letter to the applicant's attorney stated:
"I do consider her to have disability of the whole person as stated to you in my letter of February 16, 1999. At that time I had reviewed the five percent (5%) disability assessed at the right hip and assigned three percent (3%) of the whole person. Further explanation of that opinion is indicated.
"The initial assessment at the hip was not based upon the hip joint as contemplated by the worker's compensation statutes, but rather on the crushing injury of the soft tissues of the pelvic area and hip structures with rotundant problems including sensory difficulties, pain, numbness, tingling, weakness, loss of motion, and loss of strength through the entire right leg. It is the lumbosacral plexus nerve problems that were crushed that have given rise to these difficulties and in my opinion justify the whole body assessment.
"In her case the multiplicity of injuries and body parts affected, also give rise to a situation in which the overall disability is greater than the sum of the parts. Particularly with her relatively advanced age, it is virtually impossible to contemplate a successful return to competitive industrial work. Even though her job at Qwik Trip was rather sedentary and not physically demanding, there were essential functions of the job that were impossible for her to perform with this complex of injuries.
"With these physical limitations in mind that I fully support Dr. Ross Lynch's [vocational] report that [the applicant] does manifest a disability of the whole body as well as of multiple scheduled parts and that she is one hundred percent vocationally disabled and, therefore, unable to return successfully to competitive work."
Exhibit I, June 1, 1999, letter from Bodeau to Skemp.
The applicant also submits a report that she solicited from James Leonard, D.O., who examined the applicant on August 1, 1999, and did a functional capacity evaluation. Dr. Leonard indicates on his WC-16-B practitioner's report form that the work injury directly caused the applicant's disability, which he rated at 5 percent to the whole body for a pelvic crush injury and deferred to the ratings of Dr. Bodeau regarding the "extremity injuries."
Dr. Leonard also set restrictions prohibiting sitting more than one hour at a time, and permitting less than a consecutive hour of standing and walking. The applicant could sit between two to three hours per work day. He allowed occasional lifting and carrying up to ten pounds, and frequent lifting and carrying up to four pounds. He permitted rare bending and squatting, and prohibited crawling and climbing.
In explaining his opinion, Dr. Leonard states
"This is a 59-year-old female status post a crush injury to the right pelvis and also right shoulder injury which appears to be more of a rotator cuff type of abnormality. In addition, she had the right tibia and fibular fracture as noted above. It would appear that her symptoms are the direct result of a work-related injury of 6/16/95.
"In regards to her restrictions, it would appear that the major problems that she is having at the moment is [sic] in relation to the pain in the lumbosacral area, the right pelvis, and the right thigh with radiation distally from there. She does have secondary problems related to the right lower leg and right shoulder also.
"Clearly this was a crush injury to the pelvis and with some injury to the low back that would benefit from further investigation in the lumbar area. I would state that the restrictions that defined today are based on her injury particularly to the right lumbosacral and pelvis region where she had the definite crush injury. Also, the right shoulder injury and right lower leg injury do inhibit her ability to function but compared to the back and pelvic pain, these are secondary problems at present.
"Since she is having persistent pain and has not had thorough investigation to the lumbosacral and pelvis area, further studies would be indicated in regard to this. She will discuss this with Dr. Bodeau. Also a further investigation of the right shoulder is indicated because I am suspicious that she may have a rotator cuff on the right."
Exhibit K, August 31, 1999 report of Leonard, page 14.
Dr. Leonard was correct about the rotator cuff tear, at least, as the September 1999 testing discussed above disclosed a rotator cuff. Dr. Morin offers a report opining that this condition was directly caused by the work injury, to which he attaches a narrative stating the that it seemed her rotator cuff symptoms were attributable to the work injury as she was minimally symptomatic before the injury, but that it was possible the injury simply exacerbated long-standing, developing degenerative changes. Exhibit L.
The respondent relies on the report of its IME, Paul Cederberg, M.D., dated April 13, 1998 (exhibit 1.) Dr. Cederberg described the work injury where the applicant was run over and dragged by a truck. He notes that a pelvis x-ray from the date of injury showed a possible fracture of the right inferior pubis ramus. However, right shoulder, left elbow, and right foot x-rays done shortly after the injury were all negative. X-rays during the healing period showed a healed tibia at the junction of the middle and distal thirds, and a non-union of a distal fibular fracture.
Dr. Cederberg opined the applicant had a healed right distal tibia fracture, a nonunion, right distal fibular fracture, healed soft tissue injuries to the left forearm and hand, right trochanteric bursitis, and a strain and contusion to the right shoulder. He thought she had reached an end of healing as of the date of his report. He rated permanent partial disability at five percent at the right shoulder, five percent at the right knee, and five percent at the right ankle. He rated nothing for the left elbow or hand as she had no loss of motion. Nor did he rate any disability for the right hip. He saw no need for additional treatment, except possibly open reduction plating of the nonunion of the right distal fibula.
Asked to address Dr. Cederberg's report, Dr. Bodeau stated he disagreed with the disability ratings and stood by his own. Dr. Bodeau noted that Cederberg's report was the product of a few minutes evaluation, not the multiple office visits he had with the applicant, and declined to provide a detailed discussion of his differences with Dr. Cederberg. Exhibit E, May 2, 1998 letter of Bodeau.
Dr. Cederberg, in supplemental reports, opined that the applicant had not complained to him of a back injury with the work injury (exhibit 2), that any disability from work was confined to the injuries to the right leg (exhibit 2), and that he found Dr. Bodeau's opinion of an injury to the collection of nerves making up the lumbosacral plexus improbable as it would require a penetrating injury or other significant injury such as a hip dislocation, and he saw no evidence of that (exhibit 3.)
The opinions of the vocational experts may be briefly summarized. The applicant's expert Lynch concluded that, if the applicant were unable to continue working for the employer, she would be permanently and totally disabled on a vocational basis. Exhibit H. The respondent's expert Peck notes that Dr. Bodeau does not state which of his restrictions he attributes to the scheduled injury and which to the unscheduled injury. Assuming they were all attributable to the unscheduled injury, she opined that the loss of earning capacity would be 40 percent. Exhibit 4.
2. Discussion.
The first issue is the extent of additional temporary disability. As noted above, the respondent has conceded temporary disability for various periods through November 10, 1997. Like the ALJ, the commission concludes that the applicant is in fact entitled to temporary disability.
On appeal, the respondent asserts that there is insufficient evidence to support paying temporary partial disability from May 19, 1996 to September 21, 1997 or to pay temporary total disability more than six weeks after the October 1997 surgery. However, the commission cannot agree.
Regarding temporary partial disability from May 19, 1996 and September 21, 1997, the commission is satisfied the applicant was in a healing period during that entire period. True, Dr. Bodeau had set a healing plateau and rated permanent partial disability in July 1996. However, he modified substantially those ratings on September 22, 1997 due to continuing, and worsening, symptomology and the applicant underwent a repeat surgery only a few days later. The commission concludes that Dr. Bodeau's July 1996 date plateau was simply premature, that the applicant remained in a "healing period" and was partially disabled though able to work subject to restrictions, and that temporary partial disability was properly paid from May 19, 1996 to September 21, 1997 under Wis. Stat. § 102.43(2).
Regarding temporary total disability from December 1 to December 22, 1997, the commission appreciates that Dr. Morin opined the applicant had reached an end of healing from the leg surgery on December 1, 1997. But he did not release the applicant to work, or set restrictions, instead, he referred the applicant to Dr. Bodeau for that purpose. It was not until December 22, 1997 that the applicant was released to work and restrictions set. Because Dr. Morin in essence deferred to Dr. Bodeau, the commission concludes that the applicant did not reach a healing plateau until her release by Dr. Bodeau on December 22, 1997.
Consequently, the applicant is entitled to the temporary total and temporary partial disability as follows: a period of temporary total disability from June 16, 1995 to November 26, 1995, a period of 23 weeks and 1 day at the rate of $228.67 totaling $5,297.52; a period of temporary partial disability from November 26, 1995 to March 10, 1996, a period of 15 weeks at the rate of $139.10 totaling $2,086.56; a period of temporary total disability from March 10, 1996 to May 20, 1996, 10 weeks at the rate of $228.67 totaling $2,286.70; a period of temporary partial disability from May 19, 1996 to September 21, 1997, 70 weeks at the rate of $64.95, totaling $4,546.76; and a period of temporary total disability at an escalated rate for the period from September 24, 1997 to December 22, 1997, a period of 12 weeks and 3 days at the rate of $242.99 totaling $3,037.38.
In sum, the applicant is entitled to temporary disability benefits totalling $17,254.92. The respondent has previously conceded and paid $12,471.37 in temporary disability through November 10, 1997, according to the WKC-13 report filed with its answer. The additional amount of temporary disability awarded under this decision, then, is $4,783.55.
The next issue is the extent of permanent partial disability. The commission finds most credible, and adopts, the ratings given by Dr. Bodeau on December 22, 1997: five percent compared to amputation at the left elbow, five percent compared to amputation at the right shoulder; ten percent compared to amputation at the right knee; ten percent compared to amputation at the right ankle; and five percent compared to amputation of the leg at the right hip. These ratings are set out in summary form in a letter by Dr. Bodeau to Mr. Skemp, dated January 13, 1999. See exhibit 5.
As noted above, of course, Dr. Bodeau changed his ratings to eliminate the rating of five percent compared to amputation at the hip and substitute the rating of three percent compared to disability to the body as a whole. However, he did so only after repeated prodding from the applicant's attorney in the face of Dr. Bodeau's initial refusal to change his ratings. See exhibit 5: Skemp letter of October 14, 1998 and Bodeau note of December 16, 1998; Skemp letter of January 11, 1999 and Bodeau response of January 13, 1999; and Skemp letter dated February 12, 1999 and Bodeau response of February 16, 1999. Indeed, Dr. Bodeau gave his whole body rating only after the applicant's attorney pointed out the "dramatic effect" in the "tens of thousands of dollars" that an unscheduled or whole body rating would make. Exhibit E, Skemp letter of February 12, 1999. Even then, it is apparent that Dr. Bodeau only reluctantly substituted a three percent whole body rating for the five percent at the hip rating. In his February 16, 1999 response, Dr. Bodeau noted the assessment was for sensory problems and loss of strength in the right leg, and that it was his belief that limb injuries were to be assessed at the "pertinent joint and not to be generalized to a whole body rating." See exhibit E. While Dr. Bodeau later gave a more favorable explanation for his changed opinion concerning the whole body rating in his June 1, 1999 letter to Mr. Skemp, the commission cannot overlook the prior ratings or the tenor of the doctor's February 16 letter.
There is of course the occasional mention of a pelvis fracture in Dr. Bodeau's earlier notes or a pubis ramus fracture by IME Cederberg, though this is sketchy. Dr. Bodeau did not seem to be relying on his own reading of the x-rays, and the firmest opinion from someone actually looking at the x-rays seems to come from the IME Cederberg who mentions a possible fracture. In any event, no one rates disability based on a fracture. Indeed, by May 1996, Dr. Bodeau notes a good range of motion in the applicant's lumbar spine, restricted primarily by the applicant's obesity. It is also true that the applicant did occasionally mention back pain at the time of the injury. But even this is inconsistent, see for example the June 16, 1995 note of Dr. Hoppe discussing prior back pain that was unchanged by the work injury. Certainly, it did not appear that Dr. Morin was troubled by the back complaints in June 1996 after examining her.
Dr. Bodeau (after repeated entreaties from the applicant's attorney) ultimately cites a lumbosacral nerve injury in the plexus as a cause for the applicant's whole body disability. However, IME Cederberg opines that new diagnosis, the lumbosacral nerve crush problems, does not make sense in the absence of evidence of a deep penetrating wound or a dislocation. In light of Dr. Bodeau's earlier reluctance to award disability rated to the body as a whole, this opinion seems particularly credible.
Dr. Leonard, of course, rates disability to the body as a whole based on a pelvic crush injury causing lumbar problems and secondary problems in the leg and hip. Perhaps the best support for an unscheduled award is from the notes of Dr. Loftsgaarden. He mentions back pain and trochanteric bursitis in November 1996, and suggested that there was an association between the two. This is significant because, if the applicant's injury is to an scheduled part (such as the upper leg or hip (3)), but it causes disability to a unscheduled part, such as loss of motion in the lumbar spine, an award of unscheduled or "whole body" permanent disability would be appropriate. (4)
However, the commission must still conclude that treating doctor Bodeau's initial and repeated opinion that the applicant sustained no disability to the whole body was correct. The fact remains that Dr. Bodeau only reluctantly changed his mind. Even then, when he rated unscheduled disability, he mentioned only problems or loss affecting the right leg. However, it is the location of the disability, not the injury, that determines whether the schedule applies. (5) Thus, one has to wonder if Dr. Bodeau rated whole body disability appropriately even after he changed his mind, given that the only area he described as disabled in his February 16, 1999 letter to Attorney Skemp was the right leg.
On the whole, the sparse mention of back pain from the time of the injury, Dr. Bodeau's initial refusal to rate unscheduled or whole body disability, and the absence of any pathology that definitively explains the continuing back symptoms, leave the commission with considerable doubt about the whole body ratings given by Drs. Bodeau and Leonard. The commission in no way means to cast any aspersion upon Dr. Bodeau, and realizes that he may genuinely have believed his final rating was in the best interests of his patient. However, the commission believes the doctor's December 1997 rating, better reflects the applicant's actual disability.
The commission also considered the applicant's claim for permanent total disability in light of Wis. Stat. § 102.44(2) and the supreme court's recent decision in Mireles v. LIRC, 2000 WI 96, ____ Wis. 2d ____ (2000). The commission cannot conclude neither that the aggregation of scheduled disabilities -- serious as they are -- compare to the loss of both eyes, both legs, both arms, or an arm and a leg, which are set out in Wis. Stat. § 102.44(2) as examples of scheduled injuries that constitute permanent total disability.
Nor do Dr. Bodeau's work restrictions set in December 1997 and December 1998 indicate that the applicant could not work or was totally disabled from employment. True, Dr. Bodeau later opines that the applicant cannot work in competitive employment-citing particularly her advanced age-in his June 1, 1999 letter to attorney Skemp. However, commission cannot credit Dr. Bodeau's opinion in this regard, for the reasons stated above in connection with the disability ratings. In addition, Dr. Bodeau's opinion on this point involves vocational rather than medical expertise.
Even if the applicant is not totally disabled from a strictly medical or functional point of view based upon the aggregation of permanent partial disability ratings for scheduled injuries given by Dr. Bodeau, may she still assert permanent total disability on an "odd-lot" or vocational basis for loss of earning capacity? The commission is not certain that the supreme court's Mireles decision goes so far as to authorize permanent total disability compensation on a vocational basis when an injured worker has sustained only "scheduled" injuries for which permanent partial disability has been rated under Wis. Stat. §§ 102.52, 102.53, and 102.55. On the one hand, in the Mireles case, the injured worker had both scheduled and unscheduled injuries, and the court noted that where permanent disability is covered by Wis. Stat. § § 102.52, 102.53 and 102.55, those sections govern. Wis. Stat. § . 102.44(4). See Mireles, at 2000 WI 96, ¶¶ 59- 63. On the other hand, it may be argued that where a permanent total disability claim is raised in a case involving only scheduled disability ratings, the commission must still "find the facts." Wis. Stat. § 102.44(2).
However, even if the effect of the applicant's scheduled injuries on a vocational basis should be considered under Wis. Stat. § 102.44(2), the commission still cannot conclude that the applicant would be permanently and totally disabled. The ALJ rejected the applicant's claim for permanent total disability, and indeed any award for vocational loss (or loss of earning capacity), because she concluded the applicant quit her job, but not because of her physical limitations. Because the opinion of applicant's vocational expert Lynch that the applicant was permanently and totally disabled on a vocational basis was premised on the conclusion that the applicant's injury prevented her from working for the employer, the ALJ concluded her claim for permanent total disability could not be upheld.
In reaching this conclusion, the ALJ noted that the employer tried to accommodate the injuries. The ALJ also noted that the applicant did not always work within the accommodations, but instead was able to, and routinely did, exceed them. She concluded the applicant did not quit because she could not handle the work, but because she disliked a new supervisor and was upset about criticism of her job performance. The record supports these findings, and the commission accepts the ALJ's credibility impressions on this point.
The doctors, including independent medical examiner Cederberg, has noted the possibility of surgery, implicating both further medical expense and further disability. Consequently, the commission leaves its order interlocutory to permit further orders and awards to compensate possible further permanent or temporary disability, as well as future medical expense.
The applicant has qualified for social security. Consequently, her award, or some of it, is subject to the social security reverse offset. To prevent a potential overpayment, the commission withholds ordering payment of the temporary disability and the accrued permanent partial disability awarded under this order until the offset may be calculated by the workers compensation division.
Since the applicant's award is subject to the social security reverse offset-and frankly to avoid error in the relatively complicated arithmetic required to calculate an award for multiple scheduled disabilities involving the same limb-the commission shall leave calculation of the actual dollar amount of the permanent partial disability award to the division. Attorney fees at twenty percent shall be allowed, again subject to the department's normal procedure for calculating fees when a social security reverse offset is involved, on: (a) all the additional temporary disability awarded in this decision; and (b) all the permanent partial disability awarded except for the conceded five percent at the right shoulder, five percent at the right knee, and five percent at the right ankle.
Finally, by letter dated January 5, 2000, the parties informed the ALJ that the applicant owes $25,000 as a balance due on a third-party settlement under Wis. Stat. § 102.29. That liability, too, must be considered in calculating the applicant's award.
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. This case is remanded to the worker's compensation division for further appropriate action to calculate the dollar amount of the applicant's award and his attorney's fees consistent with the findings made by the commission in this decision.
Jurisdiction is reserved for further findings, orders and awards as may be warranted.
Dated and mailed July 28, 2000
hanvold.wrr : 101 : 5 ND § 5.30 § 5.31
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
The commission's decision reverses the ALJ's finding that the applicant sustained permanent partial disability at three percent to the body as a whole. Because it action was based on the treatment notes and correspondence from Dr. Bodeau, rather than the credibility of any witness who testified before the ALJ, the commission did not confer with presiding ALJ under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).
cc: ATTORNEY WILLIAM G SKEMP
WILLIAM SKEMP LAW FIRM SC
ATTORNEY DANIEL G JARDINE
MURPHY & DESMOND SC
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Footnotes:
(1)( Back ) This refers to the tibia and fibula, the two bones in the lower leg.
(2)( Back ) The trochanter are two "processes" or parts of the femur, located just below the head and neck of the femur where it joins the pubis to form the hip. A "bursa" is a sac of viscid fluid situated in places where friction would otherwise develop. Dorlands Illustrated Medical Dictionary, (29th ed., 2000).
(3)( Back ) An injury to a shoulder or hip is "scheduled." See Hagen v. LIRC, 210 Wis. 2d 12 (1997).
(4)( Back ) Mendicoff v. DILHR, 54 Wis. 2d 7 (1972).
(5)( Back ) Vande Zande v. DILHR, 70 Wis. 2d 1086 (1975); Neal & Danas, Workers Compensation Handbook, § 5.18 (4th ed. 1997).