Wis.LIRC WC Decision: Schoner - September 29, 2000 - ND � 8.8 - Insurer's Answer - "deviation defense" is a "growing out of and incidental to employment issue" not an "arising out of" issue; thus where respondent failed to amend its answer to withdraw its concession of the "growing out of or incidental to employment" issue before the hearing notice was mailed, ALJ properly refused to take evidence on the issue.

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

RICHARD EARL SCHONER, Applicant

AIROLDI BROTHERS, INC, Employer

HARCO NATIONAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996038389

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 September 29, 2000
schoner.wsd : 101 : 5 ND � 8.8

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Overview.

The employer and its insurer (collectively, the respondent) concede that the applicant was in a motor vehicle accident on July 1, 1996. The respondent admitted in its answer both that the applicant suffered an accident and that he was performing services growing out of employment when the accident occurred. At the hearing, however, the respondent attempted to raise the issue of a deviation from employment. The ALJ refused to allow this defense as an untimely attempt to withdraw an admission made in the answer.

Regarding the effects of the accident, the applicant's treating doctors opine that the applicant is severely disabled due to a traumatic injury to his head during the accident, causing cognitive problems. The vocational experts for both sides opine that the applicant is permanently and totally disabled on a vocational basis under the treating doctors' opinions.

The respondent, however, offers expert medical opinion to the effect that the applicant exaggerates his current cognitive problems, and that the problems in any event are not related to the accident. In urging the commission to accept the opinions of its doctors, the respondent argues that the applicant did not suffer the classic symptoms of post-concussive disorder, and that he misrepresented the symptoms he claimed to experience, rendering his doctors' opinions invalid or incredible.

2. Facts.

A brief recounting of the events leading to the accident and of the medical expert opinion is offered to aid in the understanding of the commission's discussion of the disputed issues in this case:

a. The accident.

The applicant worked at Peck Foods, a meat packing plant, from 1976 to 1986. At Peck Foods, he eventually obtained a promotion to supervisor. In 1986, he left Peck Foods to obtain work as a truck driver with Wisconsin Paper.

In 1991, the applicant left Wisconsin Paper for his job with the employer. The employer leases trucks to other businesses, and services the trucks it leases. He worked for the employer until the accident at issue here, which occurred on July 1, 1996.

The applicant's injury occurred about 3:40 a.m. on July 1, 1996. On the day of injury, the applicant had dropped a truck off at a customer's site in Grafton, which is 25 miles due north of Milwaukee, and a mile or so west of I-43. He then was to pick up a truck on Milwaukee's south side or to return to the employer's premises which is also on Milwaukee's south side near the airport. In either event, apparently, he normally would have taken I-43 and Milwaukee freeway system to the city's south side.

Instead, the applicant left I-43 in the city's north side, at North Avenue, and drove east. The applicant does not remember exactly what happened, but he apparently proceeded about a mile east to Farwell Avenue, proceeded south, then turned around back north on Prospect Avenue. The accident occurred on Prospect Avenue, about a quarter-mile south of North Avenue.

The police report describing the injury is at exhibit 12. It states:

"While going north bound on the 1600 block of N. Prospect Ave, unit 1 [the applicant's Ford Ranger truck] collided with unit 2 which was legally parked, then continued and collided with unit 3 who also legally parked in front of 1626 N Prospect Ave. Unit 1 then continued and collided with a tree at 1654 N. Prospect were he came to a complete stop."

The police report further notes that the road was straight, level, lighted and dry.

Following the accident, the applicant treated at the St. Mary's Hospital emergency room. There he was treated for, among other things, blood in sinuses caused when he struck his nose on the steering wheel. After his release, he treated with Linda J. Barrows, M.D., for complaints including memory loss and blurred vision. The applicant was seen by a neurologist, Denis Nathan, M.D., who had the impression of post-concussive syndrome. Dr. Barrows also felt referral to a psychiatrist experienced in working with brain injured patients was indicated, and so the applicant was referred to Melvin Soo Hoo, M.D., whose diagnoses shall be discussed in more detail below.

b. Dr. Young's testing.

Dr. Barrows also referred the applicant for evaluation by Terry Young, Psy. D., in November 1996. Dr. Young's report is at exhibit 9. To summarize Dr. Young's November 1996 testing showed a full scale IQ of 76, a verbal IQ of 77, and a performance IQ of 76. He estimated the applicant's pre-injury IQ, from demographic variables, to have been 106. Attention and concentration difficulties negatively affected the result. Dr. Young also noted diminished spontaneity and initiative, poor frustration tolerance and emotional impulsivity, and impaired attention span and ability to concentrate.

In early 1998, the applicant underwent a neuro-psychological re-evaluation by Dr. Young, pursuant to Dr. Soo Hoo's February 1998 request. See Exhibit 4, Soo Hoo letter to Young dated February 27, 1998. Dr. Barrows restates Dr. Young's
findings following re-examination by way of agreeing with them as:

[The applicant] continues to suffer from depression and low self- esteem. I am in agreement with Dr. Young on his most recent neuropsychological evaluation. I do not feel his persistent symptoms are related to the post concussion syndrome as they are much more profound and persistent. I agree with Dr. Young that there is severe and diffuse neuropsychological impairment affecting all areas of neural cognitive functioning. I also agree that he does have prognosis for continued improvement over the long term, although this will likely take some time.. It is also my opinion that his depression and cognitive deficits are directly related to his motor vehicle accident and his emotional responses to his impairment.

Exhibit B, report of Barrows for December 10, 1998, page 2. The respondent's vocational expert also describes Dr. Young's testing briefly, at exhibit 11, page 9, noting a 76 IQ and limited academic skills.

Dr. Young's report is described in more detail in the report of the applicant's vocational expert, Michael Campbell, at exhibit E. (1 ) According to Mr. Campbell, Young's 1998 re-evaluation still showed a full scale IQ of 76. Verbal skills were borderline; mathematics, word definition, recall of general information and verbal abstractions were normal.

On the other hand, pyschomotor processing speed and related tasks fell into the borderline to extremely low range. Significant weaknesses were noted in tasks involving an immediate attention span and divided attention. The applicant's visual recall of newly presented information was profoundly reduced.

Dr. Young concluded the applicant had reduced intellectual abilities, reduced academic achievement, problem-solving deficits, perseverative tendencies, lowered frustration tolerance, attention span deficits, diminished capacity for divided attention, profound verbal and non-verbal memory deficits, and vagueness in recall, reduced naming ability, diminished elaboration of thought verbally and in writing, perceptual integration deficits, and a blunted affect.

c. Expert medical opinion.

Whether the applicant sustained disability from the accident, and the extent of any such disability, is a question of medical expertise. The parties offer considerable expert medical opinion on these issues.

Treating doctor Barrows' opinion is at exhibit A. She concluded that the work injury of July 1, 1996 directly disabled the applicant and that he remained unable to work even after an attempt at a sheltered workshop. She rated disability for the applicant's psychological problems at 25 percent compared to the whole body. She identified the psychological problems as emotional/behavioral impairments and mental status impairments, and reported that his prognosis was guarded due to his persistent cognitive deficits and depression.

A narrative attached to Dr. Barrows' WC-16-B states that medical testing ruled out cardiac causes, diabetes, heat stroke or medical etiology for his accident. She does give a diagnosis of closed cranial trauma and a mild traumatic brain injury. She noted that many of the initial symptoms of a post-concussive syndrome have resolved. However, she also noted that details of the applicant's persistent cognitive impairments were clearly documented in other reports, but that the applicant continued to have decreased memory and concentration. She noted he was bothered by noise, and unable to sustain divided attention or do more than one thing a time.

In addition, Dr. Barrows noted, the applicant experienced a personality change due to his head trauma, specifically, a major depression and "aggressive type" personality changes leading to his suicide attempt. Dr. Barrows also questioned the applicant's ability to do even highly simplistic and repetitive moderate level physical work, nor could he do a job requiring divided attention.

On March 3, 1999, Dr. Soo Hoo gave an opinion on form WC-16-B (exhibit C.) He opines that the July 1, 1996 automobile accident directly caused the following disabling conditions:

Personality change secondary to head trauma, aggressive type
Major depression
Avoidant and dependant personality features (Adult onset)
S/P Closed head trauma

He opined that the applicant appeared to have reached a healing plateau, but he declined to rate permanent restrictions.

Dr. Soo Hoo did, however, rate a combined percentage of permanent disability to the whole body at 45 percent, explaining that the emotional and behavioral impairment was 29 percent and the mental status impairment (apparently the cognitive loss of memory and concentration) was 22 percent. In describing the nature of the disability, the doctor explained:

Difficulty with memory, concentration, initiating [tasks?] and maintaining same. Continues to have difficulty discriminating between and prioritizing data in the face of multiple stimuli. Continued difficulty in interpersonal communication and poor frustration tolerance. Requires continued direction and occasional outside intervention by others for management of his diabetes. Will need to remain under treatment of depression.

The doctor described the applicant's prognosis as guarded, noting that while the status of his depression improved in the past year, his memory, concentration and initiative did not. He also expected further treatment would be necessary.

In an earlier letter to the applicant's attorney, Dr. Soo Hoo had attempted to explain post-concussive disorder, which Dr. Barrows and-to some degree the respondent's independent medical examiners-associate with the applicant's diagnosis. Dr. Soo Hoo notes that the disorder is not a fully recognized diagnosable entity in psychiatry. However, Dr. Soo Hoo, goes on to explain that the disorder requires neuro-behavioral symptoms that occur as a consequence of a closed head injury. In addition, there needs to be some evidence of a concussion, such as a period of unconsciousness, a period of post traumatic amnesia, or less commonly, the onset or exacerbation of seizures. (2 ) In addition, medical literature discussing the diagnosis also requires at least 3 of certain other symptoms (fatigue, disordered sleep, headache, dizziness, irritability or aggression, anxiety or depression, and changes in personality). In the applicant's case, Dr. Soo Hoo noted, while there were no seizures or unconsciousness, there was short-term amnesia indicating a concussion from the work injury. Neuro-behavioral symptoms, including cognitive deficits in memory and concentration, are also present. There are also personality changes and many of the other symptoms described above.

Dr. Soo Hoo went on, however, to note the alternative diagnosis of "Personality Change due to General Medical Condition," his preferred diagnosis. Dr. Soo Hoo explains that that the criteria for that diagnosis requires a personality change as a direct physiological consequence of a medical condition. A head trauma is such a medical condition. Dr. Soo Hoo goes on to detail the abundant evidence of a personality change in the applicant's case, and of course, the head trauma.

The respondent, for its part, provides several expert opinions. The earliest is from Allan Kagen, M.D. See exhibit 6, Kagen report dated August 29, 1996, about six weeks out from the injury. Dr. Kagen thought the applicant had probably had a cerebral concussion in the injury. He diagnosed "cerebral concussion with postconcussive syndrome."

Dr. Kagen thought the applicant could not then work, and would not be able to work for six months, noting the applicant's inability to concentrate or remember well. He refused to estimate an end of healing, or guess at permanent partial disability.

In January 1997, Charles Klein, M.D., did a record review for the respondent. He essentially limited his opinion to the orthopedic/musculoskeletal aspects of the applicant's injuries, and thought the applicant had plateaued with no permanent disability from the orthopedic injuries. Exhibit 5.

The respondent also obtained an independent psychiatric evaluation by Dr. Mark Biehl, M.D. Reports from Dr. Biehl are at exhibits 1, 2 and 3.

In the earliest report (exhibit 3, dated February 10, 1997-three months out from the injury), Dr. Biehl noted the applicant's treatment history to date, and the absence of any prior psychiatric treatment other than for a sleeping problem. He opined that the applicant's psychiatric problems were caused by the work accident, that the applicant had not then plateaued from his disability, and that his wife's involvement in the applicant's recovery was not delaying his recovery.

In the next report (exhibit 2, dated December 22, 1997), Dr. Biehl diagnosed an adjustment disorder, a personality disorder, "persistent post-concussional syndrome." In explaining whether the diagnosis was related to the injury, Dr. Biehl explained that "post-concussive syndrome" was thought to be primarily psychological in origin, and thus not directly due to the head trauma. Dr. Biehl emphasizes the word "directly." He concluded the applicant's prognosis was guarded. He also concluded a healing plateau had not yet been reached.

In his third and final report (exhibit 1, dated March 9, 1998), Dr. Biehl noted what he saw as a number of red flags in the applicant's condition, including what the doctor describes as inconsistencies in reported symptoms, variability in neuro- psychological testing, and a much greater level of impairment than the injury alone might explain. He also noted that the applicant had not returned to work, and that his accident was unwitnessed. He notes that the applicant inaccurately described his behind-the-wheel test at Curative, and the previous psychological condition. He noted also the fact that the applicant's wife herself has been on disability for four years from a work injury.

In summary, Dr. Biehl concurred with IME Novom's opinion that the applicant had sustained a minor traumatic head injury in the accident, and concluded that the applicant had a persistent post-concussive syndrome, but that his symptoms were not directly caused by the work injury.

Dr. Novom's September 16, 1997 report is at exhibit 4. He concludes:

By all medical evidence gathered in the records made available to me, I am unable to attribute Mr. Schoner's on-going complaints of impaired memory and temper outbursts/impulsive-unrestrained behaviors to the long ago maximally healed traumatic head injury associated with the post-concussive state connected to the July 1996 MVA. At this time, Mr. Schoner is more likely to exhibit the entity of persistent post-concussive syndrome (PPCS) to which the strongest current thinking holds such individuals like Mr. Schoner are suffering from predominately psychological disturbances no longer drawing direct causal connection or etiologic relation to much earlier head injury and expectant commonplace sequelae as one finds with post- concussive syndrome.

Exhibit 4, report of Novom, page 5. Dr. Novom also states that

"at worst Mr. Schoner sustained minor traumatic head injury connected with the motor vehicle accident of July 1996 after which he exhibited commonplace symptoms of irritability, reduced memory, diminished concentration, etc., to which the label of post-concussive syndrome is appropriately applied. Elsewise, I am unable to reach the conclusion Mr. Schoner has sustained more serious permanent disabling organic brain injury or for that matter more serious psychiatric disturbance consequent to the self-limited temporary aggravating head/neck and shoulder injuries. Indeed, Mr. Schoner's most protracted disproportionate impaired behaviors at this point in time . clearly speak to unrelated psychosocial matters.."

Id. He found no relationship between the diagnosis of persistent post-concussive syndrome and the minor traumatic head injury connected with the July 1, 1996 accident. He opined the applicant reached a healing plateau, apparently without disability (though the doctor does not expressly so state) within three or four months of the injury.

Dr. Novom attaches a couple of articles explaining why a head trauma does not directly cause the disability from persistent post-concussive syndrome (PPCS). This is best summarized in the last paragraph beginning in the second column of page 1257 of the Mild Traumatic Injury article by Dr. Alexander.

Once symptomatic, patients with [post concussive syndrome following a traumatic brain injury (TBI)] are quickly at risk for depression or anxiety and may develop limiting chronic pain. They will underestimate the frequency of these symptoms in the `normal' population and thus overattribute their own symptoms to TBI. If the secondary stress of the injury (eg, job loss, finances, family strain) overwhelm the symptomatic treatment of PCS, PPCS begins to emerge..

The point at which physiogenesis more properly becomes psychogenesis is hard to establish and may be partially iatrogenic. (3 )

3. Discussion.

The ALJ credited Drs. Soo Hoo and Barrows regarding causation and extent of work injury. Given the applicant's pre-injury productive life contrasted with his condition after the injury, the ALJ basically could not accept Dr. Novom's opinion that the disability was due to unrelated psychosocial matters. He awarded permanent total disability. Also, as indicated at the outset of this memo, the ALJ rejected the respondent's attempt to raise a deviation defense in this case at the hearing.

The respondent appeals. As noted above, it argues it should have been allowed to raise the deviation defense. It also argues that the applicant's claim should fail on a medical basis because he did not have a loss of consciousness and seizures with the accident, which the respondent asserts that Dr. Soo Hoo said was required to diagnose post-concussive disorder. The respondent also asserts the opinions of Biehl and Novom were more credible, noting the red flags raised by IME Biehl. Finally, the respondent alleges that the applicant is a liar, based on his testimony that he does not drive and on his presence at the golf course while he was recovering from the injury, and so any history he gave the treating doctors must be disregarded.

a. Deviation.

The commission agrees with the ALJ that the respondent's deviation defense is too late. While the respondent denied that the accident or disease causing injury arose out of employment, it admitted the accident occurred as alleged and that the applicant was performing services growing out of and incidental to employment at the time.

Admittedly, the concepts are confusing, but the simplest way to explain it is that the "growing out of or incidental to employment" issue inquires whether the applicant was actually working when injured. The "arising out" issue inquires whether work caused the injury. Compare Wis. Stat. � 102.03(1)(c) and (e). In other words, a "deviation defense" is a "growing out of and incidental to employment issue" not an "arising out of" issue. Since the respondent failed to amend its answer to withdraw its concession of the "growing out of or incidental to employment" issue before the hearing notice was mailed, the ALJ properly refused to take evidence on the issue. See Wis. Admin. Code � DWD 80.05 and 80.08.

b. The medical opinions.

Turning to the heart of the matter, the medical opinions regarding the nature and extent of disability.

The commission, like the ALJ, concludes that the opinions of Drs. Soo Hoo and Barrows better reconcile the applicant's mental and psychological impairment, documented by Dr. Young, with the facts. The commission first notes that the independent medical examiners are not entirely consistent about the effects of the injury. While Dr. Novom opined the applicant should have finished healing in three months, Dr. Biehl opined he was still healing in December 1998, over a year after the injury.

The commission acknowledges that the applicant was untruthful regarding how much he drives. He testified at the hearing he no longer drove, that he had attempted to drive but became frightened. Further, the record indicates he told his treating doctors he was frightened to drive. Yet the record clearly supports the ALJ's finding that he drove to a liquor store.

However, the commission declines to discredit the applicant's doctors on that basis. Whether or not the applicant drove, two important facts remain: the applicant hit his head in the accident, and he now has cognitive impairment as shown by Dr. Young's testing showing, among other things, a 76 IQ. Even though the applicant may have lied about driving, the commission declines to conclude that he misled Dr. Young twice in a battery of testing. While Dr. Biehl refers to variable test results in his March 9, 1998 report, he does not explain that statement.

Indeed, the respondent offers no expert to challenge Dr. Young's evaluation documenting the applicant's cognitive loss. Nor really do they dispute that emotional changes occurred. Rather, Drs. Novom and Biehl essentially try to say the cognitive loss and emotional changes are not related to the work injury.

The commission cannot credit those opinions. It may be that the head injury did not directly cause the applicant's symptoms because they arose from a psychological problem (persistent post-concussive disorder) caused by the injury rather than directly from the physical force of the injury itself (as would be the case if the applicant's symptoms were due to post-concussive disorder.) But the psychological consequences of physical work injuries are compensable. Indeed, the respondent acknowledges as much by its citation to Johnson v. Industrial Commission, 5 Wis. 2d 584, 589 (1958) for the proposition that traumatic neurosis following a physical work injury (which is compensable) and malingering are sometimes confused, but there are objective criteria by which the two can be distinguished. In this case, the commission concludes that Dr. Young's largely unrebutted evaluation provides that objective criteria.

The commission also concludes that the respondent's reading of Dr. Soo Hoo's opinion with respect to the requirements or diagnostic criteria for post- concussional disorder is not entirely accurate. The respondent suggests that memory loss, loss of consciousness, and seizures are all requirements for the diagnosis of post-concussional disorder. Respondent's brief dated July 13, 2000, page 7. However, the literature attached to Dr. Soo Hoo's opinion states that one need only have memory loss, unconsciousness, or seizures, not all three, to establish the concussion necessary to have a post-concussive syndrome.

Finally, the commission also reiterates the ALJ's observation that it is only after the accident that the cognitive limitations and emotional problems, leading in fact to attempted suicide, became significant. Before the work injury, despite his diabetes, the applicant was a productive member of society who was able to maintain employment for 20 years.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I am troubled by the willingness of the applicant and his wife to lie at the hearing. The applicant testified he had not driven since July 1. 1996 but the videotape as well as other testimony indicate that the employee had in fact driven more than once. The applicant was tested in November of 1996 at the Curative Rehabilitation and showed he had the ability to drive after the injury.

I found Dr. Novom to be most credible. He discussed Dr. Mark Clemence's December 31, 1995 discharge report of the applicant's past medical problems of viral meningitis, long-standing insulin dependent diabetes, hypertension and a gunshot wound to the left flank with a partial splenectomy from November. There was also a formal endocrinologic consultation with Dr. Jay Shaker on January 12, 1996 "detailing a history of significant hypoglycemia with loss of consciousness and decreased hypoglycemia awareness. Diabetic control was found suboptimal. Complications of neuropathy and retinopathy were noted." Both of these reports were prior to the applicant's work injury.

In his assessment, Dr. Novom wrote "This past spring of 1997, either by self-administration of excessive insulin which marked earlier behaviors or merely as a result of the patient consuming an intoxicating amount of alcohol, normal liver function was sufficiently altered leading to a threatening level of hypoglycemia. Especially in light of the fact earlier endocrinologic evaluation prior to the July 1996 motor vehicle accident pointed to multiple hypoglycemic episodes and reduced recognition of hypogylcemic states which very possibly led to the accident in question, one should be mindful a cumulative effect from repeated hypoglycemic injury may result in subtle organic brain syndrome associated with affective disturbances manifest by great emotional lability and episodic dyscontrol coupled with cognitive/memory embarrassment. By all medical evidence gathered in the records made available to me, I am unable to attribute Mr. Schoner's on-going complaints of impaired memory and temper outbursts/impulsive-unrestrained behaviors to the long ago healed minor traumatic head injury associated with post-concussive state connected to the July 1996 MVA."

Dr. Novom's diagnosis was "At worse, Mr. Schoner sustained minor traumatic head injury connected with the motor vehicle accident of July 1996 after which he exhibited commonplace symptoms of irritability, reduced memory, diminished concentration, etc., to which the label of post concussive syndrome is appropriately applied. Elsewise, I am unable to reach conclusion Mr. Schoner has sustained more serious permanent disabling organic brain injury or for that matter more serious psychiatric disturbance consequent to the self-limited temporary aggravating head/neck and shoulder injuries reported soon after the July 1996 MVA. Indeed Mr. Schoner's most protracted disproportionate impaired mental behaviors at this point in time marked by two suicide attempts in the past year clearly speak to unrelated psychosocial matters without regard to the July 1996 MVA at issue."

I do agree with the majority that the deviation defense is too late and even if it were not too late, I believe that it is still a likely loser because the deviation is in all probability a personal comfort doctrine question.

For these reasons, I have legitimate doubt that the car accident caused the problems that the applicant relates today and I also have trouble crediting the applicant's subjective reports of his problems because he has not been honest in his reporting. For these reasons, I would reverse the permanent total disability finding.

____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY ISAAK DANIEL
LAW OFFICES OF ISAAK DANIEL

ATTORNEY PAUL R RIEGEL
MICHAEL BEST & FRIEDRICK

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Footnotes:

(1)( Back ) See also Respondent's exhibit 11, report of Ewens, page 6.

(2)( Back ) See Appendix B, Criteria Set and Axes Provided for Further Study, page 705, attached to Dr. Soo Hoo's letter.

(3)( Back ) Physiogenesis is physical development, psychogenesis is mental development, and iatrogenic means resulting from the activity of doctors.