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

JANICE PELTONEN

DEL MONTE CORPORATION

LUMBERMENS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92054396

The employer submitted a petition for commission review alleging error in the administrative law judge's FINDINGS and INTERLOCUTORY ORDER dated July 15, 1994. Briefs were submitted by both parties. At issue is the nature and extent of disability liability for medical expenses.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby modifies the FINDINGS and INTERLOCUTORY ORDER of the administrative law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

1. Delete the 4th paragraph on page 2 of the administrative law judge's FINDINGS OF FACT and substitute therefor:

"Considering all the factors listed in sec. Ind 80.34 it was established that the applicant has incurred a seven percent loss of earning capacity."

2. Also delete the 1st paragraph on page 3 of the administrative law judge's FINDINGS OF FACT and substitute therefor:

"As a result of her conceded injury the applicant is entitled to permanent partial disability for seventy weeks at a rate of $144 per week for a total of $10,080 all of which has accrued. The applicant's attorney shall be paid attorney fees in the amount of $2,016.

3. Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor all except the first sentence of the commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The FINDINGS and INTERLOCUTORY ORDER of the administrative law judge are modified in accordance with the above findings. Within 30 days from date employer's insurer shall pay to applicant the sum of $8,064 and to applicant's attorney the sum of $2,016 as attorneys fees. The employer's insurer shall pay the sum of $50 to Rice Clinic Medical Center. Jurisdiction is retained to issue such orders as may be just and proper.

Dated and mailed at Madison, WI, January 26, 1995
ND § 5.20

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The employer contended in its petition for commission review the administrative law judge erred in determining that the applicant suffered 45 percent loss of earning capacity as a result of her work injury. The applicant was injured when she slipped and fell and landed on her buttocks and injured her lower back on October 30, 1992. The applicant underwent conservative therapy and treatment and a CT scan of October 1992, revealed a bulging disc at the L5-S1 level. The applicant's symptoms continued and she began treating with Dr. Wirtz, beginning in March 1993.

Dr. Wirtz noted that the applicant's neurologic examination at the time of her injury, as well as in March 1993, was normal. Dr. Wirtz stated that the applicant complained of lower back pain mostly on the left, and he diagnosed the applicant with mechanical low back pain. Dr. Wirtz did not recommend that the applicant undergo surgery and there was no evidence that she suffered disc herniation or structural breakage. Dr. Wirtz opined that the applicant could perform only sedentary and light work, and she could sit no longer than one hour and stand for one hour at a time, and that she could not bend or crawl, and could only occasionally squat, climb and work overhead. However, Dr. Wirtz did not perform any lifting test to verify the applicant's lifting restrictions. Dr. Wirtz indicated in his testimony that his lifting restriction of less than 10 pounds was somewhat arbitrary and to be used only to avoid pain.

The applicant was also examined by Dr. Warner on behalf of the employer. Dr. Warner stated in a report dated June 15, 1993, that a review of the applicant's MRI and medical records indicated that the applicant suffered a low back sprain and bulging disc at the L5-S1 level. Dr. Warner also noted that the applicant had exhibited considerable pain behavior and inconsistency, and that at times her back seemed to cause her considerable difficulty and yet in different positions she had very little difficulty. Dr. Warner assessed the applicant with 2 percent permanent disability based on her work injury.

The applicant's vocational expert, Ms. Shane, opined that given the restrictions from Dr. Wirtz, that when compared to the applicant's wage information that positions she could perform was to compared to her former job as a scrub nurse, that she would incur a wage loss of 45-50 percent. The employer's vocational expert Mr. Zanskas, opined that based upon Dr. Wirtz' restrictions, the applicant suffered a loss of earning capacity of 25-35 percent. He also opined that based upon Dr. Warner's report the applicant suffered no loss of earning capacity.

The commission consulted with the administrative law judge concerning his assessment of the witnesses demeanor and testimony. The administrative law judge indicated that he credited the applicant's testimony concerning her ongoing pain and restrictions. Further, the administrative law judge indicated that he credited the testimony from Dr. Wirtz concerning the applicant's physical restrictions, but that he also credited Mr. Zanskas' assessment of 25 percent loss of earning capacity.

However, the commission finds Dr. Warner's assessment of 2 percent functional permanent disability to be most credible. The applicant's objective tests did not reveal any disc herniation or breakage. The applicant's physical restrictions are based only on her subjective complaints of pain. Both Dr. Warner and Dr. Wirtz found a bulging disc at the L5-S1 level and diagnosed mechanical low back pain. Dr. Wirtz admitted that he included a vocational component in his assessment of functional disability. Also, Dr. Wirtz admitted that the applicant's neurologic examination was normal. The applicant has not been recommended to undergo surgery and the evidence indicates that she has been able to work in various jobs despite the fact she has continuing complaints of back pain. Ms. Shane admitted that the applicant could work as an activity aide, bartender, hostess or medical assistant. The applicant had previously worked as a scrub nurse for several years but there is evidence that she had stopped working in that field because she felt burned out, and not due to her work injury. Based on the applicant's age, work experience and education and the other factors listed in sec Ind. 80.34 of the Wis. Admin. Code, and based on Dr. Warner's assessment of 2 percent permanent partial disability, the commission finds that the applicant suffered 7 percent loss of earning capacity as a result of her work injury.

cc: ATTORNEY DAVID A PIEHLER
TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY R JOHN SYMONDS
NASH PODVIN TUCHSCHERER HUTTENBURG WEYMOUTH & KRYSHAK

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