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

STEVEN PROCHASKA, Applicant

JORMAC CO, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1991023161

On March 17, 1999, the applicant filed a hearing application seeking compensation for permanent total disability beginning on February 2, 1998, arising from an injury on March 26, 1991. The employer and its insurer (collectively, the respondent) filed an answer admitting a compensable injury on March 26, 1991, and an average weekly wage at the time of the injury of $431.80. The respondent also conceded and paid temporary disability for intermittent periods to December 16, 1996 totaling $40,531.16, as well as permanent partial disability at fifteen percent to permanent total disability totaling $20,550. Finally, the respondent admitted, by way of limited compromise, permanent partial disability at an additional 5 percent, which was paid pursuant to the compromise in the amount of $3,425. (1)

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing in this matter on December 15, 1999. In dispute before the ALJ, and now before the Commission, was the nature and extent of the applicant's disability beyond that conceded (which includes his claim for permanent total disability, and the respondent's liability for medical expenses.

The ALJ issued his decision in this matter on March 9, 2000. Thereafter, the respondent filed a timely petition for review. The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1962. He began working for the employer in 1985 as a punch press operator. He injured his back in 1991 when he was lifting a 50- pound die from the ground, and lost his balance. He noted the immediate onset of back pain, including radicular pain.

The applicant began treating with Richard W. Bunting, M.D., an internist, who ordered imaging tests which showed a herniated disc at L5-S1. After physical therapy, the applicant underwent epidural injections which only increased his pain. He then had a discectomy, performed by Stephen Nord, M.D., and returned to work with restrictions.

However, the applicant's pain remained, and he went back to Dr. Nord. He obtained a second opinion at the Marshfield Clinic, and Dr. Hugus of that clinic performed a fusion at L5-S1 in September 1992. Thereafter, the applicant returned to work as a punch press operator, again with restrictions, in April 1993.

In September 1993, however, the applicant's pain was exacerbated when he pushed a heavy table. This led to increased pain, for which he returned to Dr. Bunting because he could not travel to the Marshfield Clinic. He saw Dr. Bunting, who referred the applicant back to Dr. Nord. In March 1995, Dr. Bunting also referred the applicant to Mehran Heydapour, M.D., for management of his chronic back pain. By this time, the applicant was receiving narcotic pain medication on an ongoing basis.

After trying epidural injections, Dr. Nord removed the spinal fusion hardware in October 1995. The applicant's pain continued, and he continued to use narcotic medication. Dr. Heydapour tried, unsuccessfully, to surgically implant a dorsal column stimulator in March 1996. Dr. Heydapour did manage to implant a spinal column stimulator in August 1996, but this provided no relief.

In the fall of 1996, the applicant returned to Dr. Nord who did not believe further surgery would be helpful. On November 1, 1996, Dr. Nord opined that the applicant should continue to work. He also recommended the applicant treat with Shidhar Vasudevan, M.D. At this point, Dr. Nord also noted that inpatient treatment for withdrawal from the narcotic medication might be necessary. See Exhibit G.

Dr. Vasudevan thought the applicant's continuing use of pain medication was inappropriate, and he suggested the medication be discontinued. In December 1996, noting that the applicant was not motivated to continue with the treatment plan and that narcotics use complicated his case, Dr. Vasudevan discharged the applicant from the pain clinic.

The applicant's pain continued. Facet blocks, physical therapy, and various imaging and diagnostic testing were done in 1997 and 1998. The various tests showed no clear pathology, such as a definite neural impingement, that would be amenable to surgical treatment.

The state Division of Vocational Rehabilitation (DVR) helped the applicant find work in June 1997 as setup worker and machine operator, but he had to quit after six months because of his back problems. He testified he had extreme back pain at the hearing, with left leg tingling and numbness. He has qualified for social security disability compensation.

As noted above, the respondent concedes a work injury causing disability. Indeed, in its briefs to the commission, the respondent acknowledges the applicant's earning capacity is impaired. However, the respondent contests the applicant's claim for permanent total disability. To determine the extent of the applicant's permanent disability on a vocational basis, the commission first turns to permanent work restrictions set by the various medical experts.

Dr. Bunting's opinion is at exhibit A. His attached narrative report states:

"...It is my opinion that the 3 surgeries that resulted in post-surgical scarring and microvascular damage to this young man's nerve root sheaths, so that this man has significant permanent limitations . as follows: maximum work day of 4 hours a day, 5 days a week or a 25 [sic] hour work week, no lifting more than 5 pounds, no bending, walking no more than 30-60 minute periods, i.e., he would require a job that he would be able to change positions throughout the day as staying in any one position longer than noted above would cause significant discomfort. He would also require a job in which he could continue taking OxyContin for pain."

Exhibit A, report of Bunting, page 6. Dr. Bunting also stated that he did not believe the applicant was malingering or exaggerating his symptoms.

In a follow-up report, Dr. Bunting corrected his multiplication, and noted the applicant could only work a 20 hour week. He also reiterated that the applicant's problems were all due to the 1991 injury. Exhibit B.

Exhibit C contains the reports of Dr. Heydapour. In a report dated May 22, 1999, Dr. Heydapour rated permanent partial disability at 25 percent, for lack of endurance and persistent pain, and for restrictions including a five-pound maximum lifting, no bending, walking no more than 30-60 minute periods.

In a note dated November 24, 1999, Dr. Heydapour stated he concurred with Dr. Bunting's December 1998 report described above, except he rated permanent partial disability at 25 percent.

Dr. Vasudevan (the pain clinician whom the applicant saw on referral from Dr. Nord), provides an opinion at exhibit 3. He stated that when he last saw the applicant in December 1996, he believed the applicant should be able to return to light work on full day basis. Noting the applicant's psychological profile (lack of insight, evasiveness, and rigidity), he reported that the applicant's participation in the pain program was characterized by little motivation, poor initiative, and marked rigidity, and so he was discharged.

Dr. Vasudevan went on to report that if the applicant was able to work with the use of narcotic medications, controlled by one physician, that would be an appropriate way to manage pain, and the medication could even be increased. He seemed to recommend against a morphine pump, unless the applicant was working full time and had a psychological evaluation.

In March 1997, Dr. Nord completed a functional capacity evaluation for the applicant to take to DVR for evaluation. In the form, the doctor permitted occasional lifting up to 24 pounds, occasional carrying up to 34 pounds, occasional pushing, pulling, bending, squatting, crawling, reaching above shoulder level, and twisting. He permitted four hours of sitting, two hours of standing, two hours of walking, and two hours of alternatively sitting and standing, in an eight hour day. He permitted full-time work, and rated permanent partial disability at 15 percent. Exhibit G, last page. In another report dated the same day, Dr. Nord allowed the applicant to return to work in a sedentary capacity. Exhibit L.

The respondent retained Mark Aschliman, M.D., for an independent medical examination. His report is at exhibit 1. He states that the applicant has a condition of narcotic addiction with chronic pain syndrome and significant dysfunction. He also states that the applicant's medical record is consistent with narcotic dependency, symptom magnification, psychosocial dysfunction, somatization and malingering.

Dr. Aschliman did rate a 10 percent permanent partial disability for the L5-S1 discectomy, the subsequent fusion surgery, and subsequent instrumentation removal surgery. He also permitted a return to work in a sedentary to light capacity, in which he should avoid repetitive lifting, twisting, bending, pushing, pulling or carrying. He also advised that the applicant should be allowed to return to work as needed. He did not think that ongoing medical care was needed, but that the applicant did need treatment for his narcotic condition.

The parties have also submitted reports from vocational experts, estimating the applicant's loss of earning capacity given the medical restrictions set by the various doctors.

The applicant's expert, Donald Modder, would rate a vocational loss at 60 to 70 percent based on the opinions of Drs. Nord and Aschliman. He would find the applicant permanently and totally disabled on the reports of Drs. Bunting and Heydapour. Exhibit D, report of Modder, page 9.

The employer's expert, Michael Campbell, would find a 70 to 75 percent LOEC based on Dr. Bunting's restrictions, a 35 to 40 percent LOEC on Dr. Nord's restrictions, a 20 to 25 percent loss on Dr. Vasudevan's, and a 30 to 35 percent loss based on Dr. Aschliman's. Exhibit 4, report of Campbell, page 11.

The commission after carefully considering the record, credits the work restrictions set by Dr. Nord. As a treating physician over the course of several years, he is familiar with the applicant's case. As a treating surgeon, he is qualified to give a realistic appraisal of the applicant's residual functional capacity. Dr. Nord, like consulting doctor Vasudevan and independent medical examiner Aschliman, believes the applicant is capable of working full time.

The commission acknowledges that the applicant attempted full time work with Exacto Springs in 1997, but testified he was unable to do the job, which he described as sedentary and easy, because of back pain. However, the applicant also testified that Exacto Springs was a cold air conditioned place, which gave him a stiff neck. While the air conditioned environment may have been only part of the applicant's reason for leaving Exacto Springs, the fact that the applicant mentioned it leads the commission to wonder how seriously the applicant actually took that job and his efforts to find full time employment, and how much back discomfort he actually experienced while working.

Along the same lines, Dr. Vasudevan reported that the applicant's participation in his program was characterized by little motivation, poor initiative, and marked rigidity. At the hearing, the applicant downplayed the credibility of Dr. Vasudevan's report, testifying that he saw Dr. Vasudevan at the insurer's suggestion, not Dr. Nord's. The commission does not doubt that the insurer played some role in the referral to Dr. Vasudevan; but the fact is that Dr. Nord included evaluation by Dr. Vasudevan in his treatment plan for the applicant on November 1, 1996, while at the same time recommending that the applicant continue to work. See exhibit G.

Because the restrictions set by Dr. Nord are more credible than those of Drs. Bunting and Heydapour, the applicant has failed to make a prima facie case for odd-lot unemployability. Indeed, the applicant's own vocational expert, Mr. Modder, did not conclude that, under Dr. Nord's restrictions, the applicant could perform only those services which are so limited that in quality, dependability or quantity that a reasonably stable market for the services does not exist. Balczewski v. DILHR, 76 Wis. 2d 487, 493 (1977). The commission therefore rejects the applicant's claim for permanent total disability, and turns to the question of permanent partial disability on a vocational basis for loss of earning capacity.

Given Dr. Nord's restrictions, the commission finds most credible the expert vocational opinion of Mr. Modder, who estimates loss of earning capacity at 60 to 70 percent. The commission rejects Mr. Campbell's estimate of a 30 to 40 percent loss of earning capacity as unrealistically low. While the applicant is a relatively young man, he left school midway through the tenth grade and now has a GED. His reading and writing skills are far below average at the lower 2 to 8 percent of the population, rendering him a poor candidate for formal retraining, and realistically anything more than hands-on type training. He earned a relatively high wage for an unskilled worker before his injury (about $11.00 per hour.) Given, however, the applicant's sub-optimal efforts to find work, and his resistance to the treatment offered by Dr. Vasudevan with Dr. Nord's approval, the commission concludes his award should be at the low end of the range set by Mr. Modder. The applicant is therefore entitled to an award for loss of earning capacity of 60 percent, into which is merged the already-conceded permanent partial disability on a functional basis of 20 percent compared to permanent total disability.

The applicant is thus entitled to a total of 600 weeks of permanent partial disability compensation. At the weekly rate of $137 (the statutory maximum for injuries occurring in 1991), his total award is $82,200. As of December 1, 2000, $49,274.33 of that award (359.667 weeks) has accrued; $32,925.67 (240.333 weeks) remains unaccrued.

However, the actual amount awarded hereunder must account for the permanent partial disability already conceded or compromised. Accordingly, the respondent is entitled to a credit against the applicant's total award in the amount of $27,400 (2)  (200 weeks at $137 per week), leaving a net amount actually awarded under this order of $54,800, of which $21,874.33 (159.667 weeks) has accrued. Although the applicant has received social security disability payments, the worker's compensation division has determined that no social security reverse offset under Wis. Stat. § 102.44(5) applies to the award hereunder.

The applicant approved an attorney fee under Wis. Stat. § 102.26, which is set at twenty percent of the net amount awarded hereunder. The future value of the attorney fees, then, is $10,960 (0.20 times $54,800). However, because only $4,374.87 attributable to the first 159.667 weeks of the additional permanent partial disability has yet accrued, the unaccrued $6,585.13 attributable to the final 240.333 weeks is subject to an interest credit for advance payment of $962.28. The present value of the fee is thus $9,997.72 and that amount, plus costs of $1,234.69, shall be paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $16,264.78. This equals the net amount accrued to December 1, 2000 ($21,874.33), less the attorney's fees on the accrued award ($4,374.87), and less the attorney's costs ($1,234.69).

The amount remaining to be paid the applicant as it accrues after December 1, 2000, is $26,340.53. This equals the unaccrued portion of the award ($32,925.67), less the attorney fees thereon without deducting the interest credit ($6,585.13). The remaining amount shall be paid on the first day of each month beginning with January 1, 2001 in installments of $593.67 per month.

The applicant incurred reasonable and necessary expense to cure and relieve the effects of his compensable injury as follows: from acupuncturist Georgia Rapkin, $305, which was paid by the applicant; from Milwaukee Medical Clinic Advanced Health Care, S.C., $5,250.90, which remains outstanding but subject to a cost review; from Dr. Heydapour, $1,100 which remains outstanding; and $1,211.30, which was paid by the applicant. In addition, the applicant incurred expense for medical mileage of 300 miles, at $0.29 per mile, for a total of $87.

Because further treatment is indicated, jurisdiction is reserved on all issues.

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.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Steve C. Prochaska, Sixteen thousand two hundred sixty-four dollars and seventy-eight cents ($16,264.78) in disability compensation.

2. To the applicant's attorney, Hans A. Buehler, the sum of Nine thousand nine hundred ninety-seven dollars and seventy-two cents ($9,997.72) in fees and One thousand two hundred thirty-four dollars and sixty-nine cents ($1,234.69) in costs.

3. To Milwaukee Medical Clinic Advanced Healthcare, S.C., Five thousand two hundred fifty dollars and ninety cents ($5,250.90) in medical treatment expense, subject to an appropriate cost review.

4. To Dr. Heydapour, One thousand one hundred dollars and no cents ($1,100.00) in medical treatment expense.

5. To the applicant, the sum of One thousand five hundred sixteen dollars and thirty cents ($1,516.30) in reimbursement of out-of-pocket treatment expense, and Eighty-seven dollars and no cents (87.00) in medical mileage.

Beginning on January 1, 2001, and continuing on the first day of each month beginning thereafter, the employer and its insurer shall pay the applicant the amount of Five hundred ninety-three dollars and sixty-seven cents ($593.67) per month, until the additional amount of Twenty six thousand three hundred forty dollars and fifty-three cents ($26,340.53) is paid.

Jurisdiction is reserved for further orders and award as are consistent with this decision.

Dated and mailed November 29, 2000
prochas.wrr : 101 : 5   ND § 5.21  5.31

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. The ALJ found the applicant to be a credible witness. The commission does not disagree with the ALJ's general impression of the applicant as a credible witness. The commission also acknowledges that the applicant has undergone three major back surgeries, and two unsuccessful attempts to install spinal/dorsal column stimulators. The commission is persuaded that the applicant's back does hurt, and probably hurts a great deal. The commission emphasizes that its decision is not based on the conclusion that the applicant is outright malingering, nor is the commission unmindful of the fact that the pain medication the applicant takes has been prescribed by licensed physicians who regard it as necessary to treat his condition. Nonetheless, because the commission credits Dr. Nord's work restrictions for the reasons explained in the body of this decision, it cannot conclude the applicant has established a prima facie case of odd-lot unemployability under Balczewski v. DILHR, 76 Wis. 2d 487 (1977). (3)

cc: ATTORNEY HANS A BUEHLER
LAW OFFICES OF HANS A BUEHLER

ATTORNEY PETER L TOPCZEWSKI
STILP & COTTON

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) This is one-half of the full amount that would have been paid for permanent partial disability based on the applicant's compensation rate (50 weeks at $137 per week, totaling $6,850.)

(2)( Back ) Although the respondent has actually paid only $23,975 on the previously-conceded 15 percent and previously- compromised 5 percent permanent partial disability, the respondent is entitled to a credit in the full amount, to give effect to the compromise.

(3)( Back ) The applicant argues that the commission is required to find the applicant permanently and totally disabled because he is qualified for social security disability. This assertion relies on a kind of federal sovereignty claim, and cites Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 505 (1957) for the proposition that LIRC is bound by the federal decision on the extent of the applicant's disability. However, the holding in Massachusetts Bonding is by its terms limited to vocational rehabilitation cases, where the applicable state statute (Wis. Stat. § 102.61) explicitly refers to a federal law administered by a different state administrative subunit. LIRC itself has never held that it is bound by social security findings, which apply a different standard than the odd-lot rule under Balczewski and are made on a different record.