Wis.LIRC WC Decision: Koeberl - July 28, 2000 - ND � 5.6 - Healing Period - where doctors have rated PPD, fixing the end of the healing period, no further compensation for conditions arising from the work injuries

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

THOMAS L KOEBERL, Applicant

EMERSON ELECTRIC CO, Employer

WORKER'S COMPENSATION DECISION
Claim No. 1993004227

The applicant claims disability from a work injury on January 4, 1993. This case initially went before Mark Shore, an administrative law judge (ALJ) for the worker's compensation division of the department of workforce development. ALJ Shore held a hearing in September 1994 and, in January 1995, issued a decision which found the applicant had sustained a right shoulder injury resulting in permanent partial disability at ten percent compared to amputation. He also found an injury to the cervical spine causing a herniation at C5-6, resulting in 90 weeks of temporary total disability and permanent partial disability at five percent compared to disability to the whole body. ALJ Shore also awarded medical expenses, and retained jurisdiction to allow future awards for disability for the shoulder injury and loss of earning capacity for the neck injury.

In his decision, ALJ Shore noted the cervical or neck injury had two aspects. The first is a cervical disc herniation, which was treated surgically, from which the applicant plateaued by September 29, 1993, and for which the five percent permanent partial disability was rated. The second was cervicogenic headaches developed from the surgery, for which ALJ Shore awarded temporary disability to the date of hearing.

No one appealed ALJ Shore's decision. The self-insured employer (hereafter the employer) paid disability compensation in accordance therewith. In addition, the employer paid an additional three percent PPD for the cervicogenic headaches, presumably on the rating of an independent medical examiner, Dr. Kagen, whose opinion is discussed below.

Thereafter, the applicant underwent considerable continuing treatment both for the cervicogenic headaches, and for complaints affecting both arms as well. He claimed additional compensation by applications for hearing filed on May 20, 1996 and November 23, 1998. The applicant contends that the work injury caused cervical disc herniations which in turn caused problems in both arms, and, ultimately, the headaches.

ALJ Joseph Schaeve conducted a hearing on these claims on January 27, 2000. At the onset of the hearing, ALJ Schaeve summarized the applicant's by stating that he sought: temporary disability from July 28, 1998; additional permanent partial disability; associated medical expense; an interlocutory order; and a prospective order regarding the necessity of anticipated surgical expense. See transcript, page 5.

ALJ Schaeve denied the claims for additional disability and medical expense. ALJ Schaeve did, however, retain jurisdiction on certain issues, including all the issues that ALJ Shore had left open earlier.

The applicant filed a timely petition for commission review. 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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work injury; initial treatment to point of ALJ Shore's order.

The applicant was born in 1945. The work injury at issue here occurred in January 1993, when the applicant leaned his upper body into an access port on a machine to look to see if some inserts were properly aligned. As he turned his head, he heard a "pop" and felt a snap in his neck, and then noted immediate arm pain radiating from his right shoulder to his elbow with numbness into his fingers.

The applicant sought treatment thereafter. Based in part on a January 1993 MRI showing "a soft disc on the right at C5-6 causing impingement on the exiting intervertebral foramen," Robert A. Gruesen, M.D., diagnosed a C5-6 disc herniation from the work injury, which he believed accounted for the applicant's complaints of radicular pain. When the applicant was unable to continue working after an attempted return, Dr. Gruesen performed surgery in April 1993.

The surgery was described by Dr. Gruesen as a cervical laminectomy. This procedure evidently did not involve a fusion. See notes of Gruesen in respondent's exhibit 2. In August 1993, noting good progress in relief of the numbness and tingling following the right surgery, but continued shoulder problems including clicking in the right shoulder joint itself, Dr. Gruesen began to wonder if the applicant did not have a problem in the joint itself, rather than strictly neurological problems.

In September 1993, Dr. Gruesen pronounced the applicant at an end of healing from the April 1993 cervical laminectomy surgery, but still disabled from the shoulder problem. He noted the applicant was treating with James Grace, M.D., for the shoulder problem.

On January 12, 1994, Dr. Gruesen rated permanent partial disability to the whole body at five percent. Then, on February 2, 1994, Dr. Gruesen noted "continued complaints of pain in the back of the head" for which the applicant had been seen again on January 24, 1994. Dr. Gruesen described these as "muscle contraction headaches from the neck, fitting into the area of muscle spasm and tension causing the pain." After a course of physical therapy, heat, massage and ice, Dr. Gruesen opined the applicant would just have to live with the problem.

On February 16, 1994, Dr. Gruesen reiterated his opinion that the applicant was at an end of healing as far as his neck was concerned, though he also noted the prior referral to Dr. Grace for treatment of the shoulder problem. However, on March 1, 1994, Dr. Gruesen referred the applicant for treatment of the headaches with a Dr. Urban of Diamond Headache Clinic.

According to ALJ Shore, Dr. Urban opined the applicant had "cervicogenic headaches develop[ing] secondary to cervical surgery" to treat the work injury. Although ALJ Shore would not have been aware of it, in 1996 Dr. Gruesen twice concurred with this opinion. After trying several treatment modalities without much success, Dr. Urban opined the applicant remained in a healing period from the headaches to November 10, 1994.

As noted above, the applicant treated with Dr. Grace for the right shoulder problem following the referral by Dr. Gruesen in August 1993. ALJ Shore's discussion sets out the treatment at length. Dr. Grace did arthroscopic surgery on the applicant's shoulder to correct impingement symptoms in October 1993. Later in early 1994, Dr. Grace opined the applicant suffered from a documented Bankart lesion, which could be repaired surgically. However, Dr. Grace was unwilling to perform the surgery, in light of the ongoing headache problem. Without surgery, Dr. Grace rated permanent partial disability at 10 percent at the shoulder. Dr. Grace referred the applicant to a specialist (Wackwitz) in August 1994; Wackwitz thought the applicant's continuing symptomology was primarily attributable to the cervical nerve root injury.

It is on this treatment record that ALJ Shore issued his February 1, 1995 decision awarding temporary total disability to November 1994 for the headaches, permanent partial disability at ten percent for the shoulder and five percent for the cervical disc repair surgery. It is important to note that ALJ Shore made this award because he believed the work injury caused the shoulder problem, the C5-6 disc herniation, and the "cervicogenic headaches."

ALJ Shore also reserved jurisdiction to allow a future disability award for the shoulder (assuming the applicant underwent the procedure Dr. Grace recommended), loss of earning capacity for the cervical disc herniation, and permanent partial disability for the cervicogenic headaches. ALJ Shore's order went unappealed, and there the matter stood for some time.

2. Treatment following ALJ Shore's order.

The applicant continued to undergo considerable treatment after ALJ Shore's decision. According to a report an independent medical examiner (IME) report, continuing right triceps weakness was noted by IMEs who did examinations in 1994 and 1996. See exhibit 5, page 3. On May 20, 1996, apparently as part of his ongoing headache treatment, Dr. Urban ordered an EMG. However, the clinical presentation noted by the doctor doing the EMG was weakness in the triceps, atrophy or lost muscle mass in the right forearm, and charlie horse pain in the shoulder.

The EMG showed evidence of chronic denervation activity in the right upper extremity which was most pronounced in the C7 nerve root territory, but also in muscles enervated by the C6 nerve root. The EMG was interpreted as showing chronic right C7 radiculopathy and possible C6 radiculopathy. Applicant's exhibit B.

Noting the EMG scan, Dr. Gruesen noted that the C6 root was the one implicated in the earlier surgery. He also stated that studies done in 1993 showed the same problem, that the triceps atrophy, paralysis, and weakness, all related back to the 1993 injury causing the C5-6 disc herniation, and that he had previously told the applicant that these problems would be permanent. He recommended an MRI to check out the C7 level.

At this point, Dr. Gruesen also noted the applicant had little or no arm, and no neck pain, but was continuing to experience headaches which the doctor regarded as a permanent residual from the work injury.

The repeat MRI was done on July 11, 1996. According to the interpreting radiologist, this showed a small right lateral C6-7 disc protrusion, impinging on the C7 nerve root in the neural foramen, as well as a mild neural foraminal stenosis at that level. The MRI also showed a small recurrent posterior disc protrusion, paramedian right sided at C5-6 in the region of the previous surgery.

Dr. Gruesen read the MRI as essentially normal. The old large herniated disc at C5-6 (which the doctor had removed surgically) of course was gone. The doctor did note very small bulges which had no significance and were not in contact with any of the neural elements. Evidently, Gruesen did not agree that the C6-7 protrusion impinged on the C7 nerve root as the interpreting radiologist reported, or else thought the impingement was insignificant. He did not recommend further surgery.

In September 1996, again expressing agreement with Dr. Urban's conclusion that the applicant's continuing cervicogenic headaches were the result of the surgery and ruptured C5-6 disc itself, Dr. Gruesen ordered a functional capacity evaluation. The applicant was described by the physical therapist who did the evaluation as cooperative, and work restrictions were set. See exhibit 2. Dr. Gruesen agreed with the restrictions set in the functional capacity evaluation.

The applicant's treatment with Dr. Gruesen essentially ends at this point. The applicant was referred by a chiropractor back to Dr. Grace, in December 1996; Grace referred the applicant to Steven Weinshel, M.D., for evaluation of the right C6-7 disc herniation.

Dr. Weinshel first saw the applicant on January 7, 1997; his notes are at exhibit 4. He noted the January 1993 injury, the subsequent surgery performed by Dr. Gruesen that year, the elimination of the arm pain for which the surgery was performed, and the headaches ever since. Though the applicant complained of loss of arm strength, Dr. Weinshel noted good strength in his arm with perhaps only slight weakness in the right trapezius compared to the left. The applicant had a full range of motion in the neck.

Dr. Weinshel noted that the review of the MRI scan showed a small right-sided disc herniation at C6-7, and a right-sided, probably recurrent disc herniation at C5-6. Dr. Weinshel thought the headaches were due to disc disease in the neck, and wanted him to try some neck traction. Dr. Weinshel noted that if the traction provided even short term relief, it made it more possible the cause was degenerative disc disease.

The applicant went to see Dr. Weinshel again. By March 1997, the doctor noted the applicant's complaints of a locking feeling in the right shoulder. Dr. Weinshel noted the traction relieved the headaches, but made his neck pain worse. The doctor noted the applicant wanted a two level discectomy and fusion. Weinshel was reluctant to proceed, however. Dr. Weinshel thus referred the applicant to Phillip Yazbak for a second opinion.

The applicant saw Dr. Yazbak in March 1997. Dr. Yazbak noted complaints of pain in the lateral arm overlying the humerus. The doctor noted the pain was in an area related to movements of the neck. The applicant also complained of neck tightness with extension. The pain was in the posterior midline (the middle of the back of the neck) and radiated upward.

Dr. Yazbak examined the 1993 and 1996 MRIs. He believed that the C5-6 level looked fairly good in the earlier one, and but given the later one could imagine persistent compression of the right C6 nerve root.

Dr. Yazbak saw two issues: The first was inadequate treatment of the original symptoms, and he thought that an anterior approach at C5-6 would relieve him of his arm symptoms. Regarding the headache, Dr. Yazbak opined they had the look of cervicogenic headaches or a "C2 headache." He thought the applicant should have a nerve block at that level to determine whether the problems were C2 headaches or more general degenerative disc disease. The doctor did not want to do a fusion to relieve the headache symptoms. If the nerve blocks worked, Dr. Yazbak wanted to do C2 nerve root decompression.

Dr. Yazbak's opinion was explained a little more by Dr. Weinshel in an April 8, 1997 letter to Dr. Grace. According to Weinshel, Yazbak thought the applicant's arm symptoms were caused by spondylosis (arthritic changes) of the neck. He thought this could be treated with a C5-6, C6-7 discectomies and fusions, or a corpectomy with a C5 to C7 graft. See also Yazbak note of April 9, 1997.

The applicant agreed to go the pain clinic, where he saw Saied Assef, M.D. Dr. Assef noted the 1993 surgery performed by Dr. Gruesen, the resolution of the right arm pain, and the continuing occipital headaches which the applicant could precipitate by extending his head. Dr. Assef indicated he would arrange for the nerve block.

The planned nerve block was not undertaken. Apparently about this time, the applicant began experiencing left arm pain for which a cardiac cause was initially suspected. Transcript, page 75. After this was ruled out, the applicant was again referred back to the pain clinic where he treated with John E. Carey, M.D.

Dr. Carey saw the applicant on October 2, 1997. He noted the left arm pain symptoms, as well as the applicant's complaints that his headaches seemed to have been worsening. The applicant denied worsening left arm symptoms. The doctor noted essentially normal left arm strength, however.

Dr. Carey's impression was chronic right C7 radiculopathy with history of a chronic right C6 radiculopathy and right arm pain due to the spondylitic changes shown at C5-6 and C6-7 on the MRI. The doctor began to wonder if the left-sided symptoms were the result of some new left-sided disc herniation. Dr. Carey thought the headaches were cervicogenic, and that the symptoms indicated a C2 nerve root problem, separate from the spondylitic cervical disease at C5-6.

Dr. Carey wanted to do another MRI, and thereafter address the headaches by C2 nerve block.

In a follow-up note on October 7, 1997, Dr. Carey noted the MRI showed little change from the July 1996 MRI. Narrowing of the C5-6 level and neuroforamen seemed to be caused by osteophytes and associated disc protrusion. The doctor proceeded with an injection at C7-T1.

The results were not certain. The applicant indicated he felt the injection did not help, but also reported reduced symptoms in the left arm. The headaches continued. In November 1997, Dr. Carey's diagnostic impression was chronic right C6 and C7 radiculopathy on the basis of degenerative spondylitic disease; a history of cervicogenic headaches related to compression at C2; and new onset of left C6 radicular symptoms based on the progressive spondylitic and disc disease. He referred the applicant back to Dr. Weinshel for evaluation of the left arm problem.

On follow-up, Dr. Weinshel noted that he had wanted the applicant to have C2 injections at Dr. Carey's pain clinic, which were not done. Dr. Weinshel reiterated to the applicant he had no treatment for the headaches, but would look at the recent MRI ordered by Dr. Carey.

Dr. Carey went ahead with the C2 nerve blocks in January and February 1998. In March 1998, the doctor's diagnostic impression was (1) chronic right C6-7 radicular features from degenerative spondylitic disease and left upper extremity numbness in a referred pain pattern without any evidence of acute radiculopathy or myelopathy, and (2) cervicogenic headaches with transient response and some decrement with bilateral C2 nerve root blocks.

Dr. Carey thought a medical approach to management of the symptoms was appropriate. This meant use of a TENS unit and medication. The applicant was given Remeron, which Dr. Carey reported on April 7, 1998 caused a 25 to 30 percent reduction in symptoms.

Follow-up notes from Dr. Carey mentioned EMG testing on the right upper extremity to deal with the applicant's ongoing radicular complaints. This was apparently not done, but noting a possible C5-6 disc herniation osteophyte, Dr. Weinshel did order a cervical myelogram. According to Dr. Weinshel, the CT myelogram confirmed a right-sided C6-7 disc herniation and C5-6 right-sided post operative changes. He saw no cause for the applicant's left side complaints, however, and no surgical option for treatment of the left arm symptoms. See Exhibit 4, Weinshel note for July 29, 1998.

The applicant saw a colleague of Dr. Weinshel, Paul Baek, M.D., for a second opinion on August 6, 1998. Dr. Baek read the CT scan as showing C5-6 surgical changes, a right side C6-7 disc herniation, and minimal stenosis on the left side of the foramen. Dr. Baek's assessment was right-sided, perhaps C7 radicular symptoms with improving left sided C7 radicular symptoms. Interestingly, Dr. Baek stated he "agree[d] with Dr. Weinshel's assessment that the patient should be a consideration for surgical discectomy and fusion." In a follow-up note for August 10, 1998, however, Dr. Baek admitted he had no explanation for the left-sided weakness and pain.

After this, the applicant returned to Dr. Weinshel, and requested he perform a C5- 6 and C6-7 fusion. On August 13, 1998, Dr. Weinshel agreed to schedule this procedure. It was not done, apparently because the employer denied liability, and the hospital demanded a downpayment. This evidently ends the applicant's treatment.

3. Expert medical opinion.

The medical records document three separate categories of complaint since ALJ Shore's 1995 decision: cervicogenic headaches, left arm problems, and right arm/shoulder problems. The parties offer substantial medical opinion on all of these.

Dr. Weinshel opines that the applicant has discogenic neck pain and headaches as a result of the injury and surgery. He also thought that since the applicant's symptoms did not resolve with the first surgery, it is likely that the C6-7 disc pathology was related to the work injury, and that the C6-7 problem, with the C5- 6 problem, would explain the applicant's persistent problems which did not respond to Dr. Gruesen's operation. See exhibit E, Weinshel note of February 12, 1999. By letter dated March 15, 1999, Dr. Weinshel opined that the applicant was still in a healing period.

Dr. Carey (the treating pain clinic doctor) first ventured an opinion on causation on July 13, 1998. He noted that the medical opinion underlying ALJ Shore's first decision attributed the headache and neck pain to the work injury. He opined that the applicant remained in a healing period from those problems from May 1997 through the date of his note (July 1998), and that the applicant continued to suffer from chronic headache pain, neck pain and shoulder and upper extremity pain. He also opined that the left arm symptoms resulted from the progression of the applicant's C5-6 spondylitic disease, and correlated to the initial surgical treatment at the level.

In a more formal note expressing expert medical opinion, Dr. Carey writes:

". I sent a letter in July 1998 and an extensive narration regarding his treatment for degenerative disc disease at the C5-6 and C6-7 levels with both C6 and C7 radiculopathies. These injuries are related to his initial work injury back on January 4, 1993. These diagnoses were given to him at that time as well as through subsequent work-up. Treatment was attempted at the C5-6 level but this was unsuccessful per the patient and per the medical records and would submit to you that Mr. Koeberl was still in a healing period until he can be satisfactorily treated by the recommended surgery and surgical opinions given by Dr. Weinshel and Dr. Baek and that he would be in a healing period until then, and since he hasn't had this surgery since I saw him last, I still assume he is this healing period."

Exhibit F, letter dated March 4, 1999.

The employer submits the opinion of two independent medical examiners. One is Michael Sluss, M.D., who examined the applicant in July 1998. He initially confined his opinion to the applicant's left arm problem. See exhibit WC-16-B attached to exhibit 5. Dr. Sluss opined that the left arm symptoms are not due to work injury, nor was there any objective evidence on neurologic examination to support for any left arm abnormality. He also noted that while the 1996 MRI showed right side problems at C5-6, the 1997 MRI supposedly showed little change but also a left side abnormality.

After Dr. Sluss rendered his opinion, the July 1998 myelographic CT scan showing no documented left side abnormalities was done.

In a follow-up note, Dr. Sluss was asked about the causal role of the applicant's work injury in his various problems. The doctor noted that:

"the applicant had cervical spine x-ray evidence of substantial bony spurring, most likely predating his injury. His cervical spine spondylitis/bony abnormalities have been documented at C2, C5-6, C6-7. I would not regard these changes as being secondary to his 1993 injury. In addition, disc disease at C6-7 I believe was best documented a number of years after the injury and the initial surgery and I would not regard this being secondary to the injury. Finally, there is evidence for protruding disc disease at C5-6 initially prior to his surgery by Dr. Gruesen and then subsequently. Whether this was from his neck injury or not is unclear, but I think it is most appropriate to regard it as most likely arising from the industrial injury.

"One final note. The neurosurgeons, Dr. Weinshel and Baek, on their review of his most recent MRI and CT myelography tend to discount left sided findings, but the radiologist felt that both studies were suggestive of a potentially significantly compromised neural foramina on the left at C5-6 due to a combination of disc and bony disease."

Exhibit 8, July 1999 report of Sluss, page 3.

Finally, Dr. Sluss noted that in his original surgical report, Dr. Gruesen found a large bone spur and a small disc fragment. From this, Dr. Sluss concluded the applicant's original problem was primarily due to the degenerative arthritis with the bone spur, and secondarily due to the small disc fragment found in surgery.

In July 1998, Allan Kagen, M.D., did a comprehensive medical document review. His diagnostic impression was that the cervical headaches were related to the work injury. He disagreed with a prior, contrary report done by an independent medical examiner, Dr. Swanson. Dr. Kagen thought the headaches probably started about the time of the surgery, and noted that persistent headaches after cervical laminectomies are not unique.

In explaining this opinion, Dr. Kagen opined that there really was no good evidence that the applicant's headaches were related to his C2 nerve roots, he thought instead the headaches were related to the injury because of the surgery needed for the injury, and that because of all of the subsequent treatment, while necessary, has not led to much improvement. Dr. Kagen noted specifically that the treatment was needed in an attempt to alleviate the headaches. Dr. Kagen concluded by opining that the applicant had plateaued with permanent partial disability at five percent for his cervical laminectomy and three percent for his headaches.

4. Discussion.

As noted above, in 1996 and 1998, the applicant filed applications seeking additional disability compensation and treatment expense, claiming he needs additional cervical surgery which the employer has refused to provide. As a result of the refusal to provide treatment, the applicant claims, he remains temporarily and totally disabled.

The applicant's headaches are part of his claim. However, he also claims disability from continuing radicular symptoms into his arms from a disc problem at a different level (C6-7) than that initially treated by Dr. Gruesen's April 1993 surgery (C5-6). He claims he now needs a fusion surgery to correct his symptoms, and that the need for the surgery relates back to the work injury.

ALJ Schaeve dismissed the application and denied the applicant's claims for disability and medical expenses in their entirety. He was left with doubt as to whether the left arm symptoms arose from the work injury, as to whether the right arm symptoms were anything beyond the problems from which he had plateaued post surgery in 1993, and whether the headaches the applicant experienced in July 1998 were still from the result of the work injury (or the same origin of the headaches for which ALJ Shore had awarded temporary disability in his order.) ALJ Schaeve also suggested, but did not find, that even if the applicant's headaches were from the work injury, ALJ Schaeve would not conclude that they were anything beyond what Dr. Kagen had opined amounted to three percent permanent partial disability in his July 28, 1998 report. Thus, ALJ Schaeve denied the claim for additional temporary disability after July 28, 1998, and for any medical expenses incurred after that date.

The commission agrees in substantial part with ALJ Schaeve. As he pointed out, there is no evidence of any radiculopathy from the right-side C5-6 disc herniation that is any greater than that already rated by Dr. Gruesen and ordered paid by ALJ Shore. Even Dr. Weinshel's opinions support that conclusion; he primarily associates the applicant's post-surgical radicular complaints with the C6-7 pathology. Further, given the credible opinion of IME Sluss noting that the first objective evidence of a C6-7 pathology was well after the injury, there is legitimate doubt that the left arm symptoms (and any C6-7 pathology) are related to the work injury. Dr. Weinshel himself had no explanation for the left arm symptoms. See exhibit 4, Weinshel note of July 29, 1998. Accordingly, no temporary disability may be awarded based on the C6-7 pathology, nor is the respondent liable for the medical expense incurred to treat that condition after July 28, 1998.

However, the commission cannot conclude that the applicant's current headaches are from a different source than those arising from the work injuries and ordered compensated by ALJ Shore. Rather, the commission concludes that the applicant's current headaches (which began shortly after his April 1993 surgery) are the permanent residuals of the problem from the work injury, as IME Kagen indicated. The commission notes that the respondent has already paid permanent partial disability at three percent compared to disability to the body as a whole for this condition.

Accordingly, the application seeking temporary disability, and medical expenses incurred, after July 28, 1998 must be dismissed. The applicant's citation to the commission's prior decisions in Carole Lee v. Famous Fixtures, WC claim no. 1996000857 (LIRC, July 2, 1997) and Pamela Punzel v. Tammy and Art Elliot, et al., WC claim no. 1996042092 (LIRC, March 3, 2000) do not compel a different result. True, those cases indicate that where an employer denies liability and refuses to pay for surgery, the employer cannot point to the pre-surgery condition as a kind of plateau cutting off temporary disability liability if the applicant is in fact disabled from work. However, as the commission explained in both Lee and Punzel (as well as Mitchell v. ITW Deltar Chippewa, WC Claim no. 96001304 (October 30, 1997), aff'd sub nom. ITW Deltar v. LIRC, 226 Wis. 2d 11 (Ct. App., 1999)), that conclusion assumes that a doctor has not credibility rated permanent partial disability fixing an end of healing. In this case, both, Dr. Gruesen and Dr. Kagen have provided such ratings.

Finally, the commission cannot authorize prospectively the surgery the applicant seeks. However, the commission acknowledges that the applicant may need additional medical treatment to cure and relieve the effects of the work injury, and he may have permanent work restrictions from the work injury. Accordingly, jurisdiction is reserved to permit awards for additional temporary or permanent disability, including compensation for loss of earning capacity, and for compensation of 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.

No compensation is awarded. The May 20, 1996 and November 23, 1998 applications for hearing, as they pertain to the issues litigated above, are dismissed. Jurisdiction is reserved for future orders and awards consistent with this decision.

Dated and mailed July 28, 2000
koebert.wrr : 101 : 5 ND � 5.6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: Emerson Electric has paid TTD and PPD benefits (and $6,000 required by a limited compromise) per Mr. Weber's January 28, 2000 letter and attached WKC-13. DWD's auditors determined that Emerson Electric overpaid $34.40 in TTD and $152.00 in PPD. Consequently, Emerson Electric is entitled to a credit of $186.40 against any future obligation to pay primary compensation.

cc:
Attorney James P. Maloney

Attorney David L. Weber
Pinkert Smith Weir Jenkins Nesbitt Hauser & Weber

Appealed to Circit Court. Affirmed August 10, 2001. Appealed to Court of Appeals. Affirmed per curiam August 27, 2002.

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