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


SANDRA J SHAFER, Applicant

HEYDE HEALTH SYSTEM INC, Employer

SECURITY INS CO OF HARTFORD, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92063715


The administrative law judge issued his findings of fact and interlocutory order in this case on November 17, 1995, following a hearing on October 12, 1995. The applicant submitted a petition for commission review of the administrative law judge's findings and order, to which the employer and the insurer (collectively, the respondent) have responded by cross-appeal. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $364.10, and a September 29, 1992 compensable injury. The respondent conceded and paid temporary disability benefits to April 5, 1993, much of which the employer asserts was paid in error. At issue is the nature and extent of disability beyond that conceded, and liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission sets aside the administrative law judge's findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

a. Employment facts; pre-employment injury.

The applicant, a registered nurse, was born on July 31, 1947. She began working for the employer in the fall of 1990. She was a "causal employe", working a flexible schedule of about 24 hours per week. As noted above, the parties have stipulated to an average weekly wage of $364.10.

Prior to beginning work with the employer, the applicant was in a car accident in 1967 or 1968. She was treated conservatively until 1972, when she underwent a laminectomy at L4-5 with the removal of protruded disc. The applicant testified that after her laminectomy her back was "as good as anyone else's," that she had an "average back," but that she had to be careful because of the surgery. She admitted she would have pain after a 12-hour nursing shift, but nothing that would cause her to miss work.

However, the applicant's back was not complaint-free between the 1972 laminectomy and the 1992 work injury. The earliest medical record in the file is from July 31, 1990, shortly before the applicant began working for the employer. These early records include an exchange of letters between Bardo Sanchez, M.D., the applicant's Wisconsin family doctor, and Richard F. Galbraith, M.D., a Wisconsin neurosurgeon.

The letters indicate that the applicant was in a car accident in 1968, causing low back and left leg pain, that she underwent an L4-5 laminectomy in the early 1970s, and that she experienced back pain subsequent to that time. In 1988-89, while living in Texas, she reinjured herself while lifting an emergency room patient, causing pain again in her low back and left leg. She sought treatment, and both an MRI and a myelogram were performed in August 1989.

Specifically, the MRI showed that the L4-5 disc was desiccated and there was some slight midline bulging. There was also fibrosis in the vicinity of the L5 root. The L5 disc space was intact without herniation. The myelogram did not establish a recurrent herniation one way or another. After reviewing the MRI and myelogram, a Houston neurosurgeon recommended against surgery, while a Houston orthopedist was in favor of surgery. The applicant did not have surgery, but she did have steroid blocks.

In his July 1990 letter, Dr. Sanchez also noted that the applicant had increased lumbar and left leg pain and numbness after opening a window. Dr. Sanchez referred her to Dr. Galbraith for a surgical opinion.

Dr. Galbraith recommended against surgery. He noted that the applicant had a blood disease which increased her risk for surgery. He wanted to do an electromyogram (EMG) and another MRI to check for changes. He foresaw that the applicant would be living with back pain, however.

Dr. Galbraith did an electromyogram (EMG) in August 1990. It showed no definite abnormality. An MRI was done in September 1990. It was compared to the 1989 MRI done in Texas. The impression of the radiologist doing the 1990 MRI was that the disc levels were generally normal except for L4-5. He reported some degenerative changes at L4-5, but no neural impingement. He also reported that "since the previous outside exam, there has been no significant change with evidence for a degenerated L4-5 disc without significant herniation." The radiologist also noted mild evidence of arachnoiditis.

Dr. Galbraith recommended physical therapy, which the applicant underwent in late 1990. More therapy was prescribed in 1991, by Sophie Kramer, M.D., evidently after the occurrence of pain at work. Subsequently, Dr. Kramer referred the applicant to Peter G. Gianaris, M.D., for evaluation of significant low back and left leg discomfort, in March 1992. Dr. Gianaris ordered another MRI, which was done on March 26, 1992.

On April 22, 1992, Dr. Gianaris reported that while physical therapy provided moderate relief, she still had pain. The MRI showed a disc bulging at L4-5 to the left. Although it was not diagnostic of a surgical pathology, the MRI led Dr. Gianaris to want to press on with myelography. However, it appears the myelogram was not done, and the applicant received no more treatment until after the September 29, 1992 work injury.

b. Work injury.

The applicant sustained a conceded work injury on September 29, 1992, when she was passing out medications during the evening shift. The applicant had just passed medication to a female stroke victim weighing between 225 and 250 pounds. The patient began to choke on her pill, and became panicky. The applicant leaned over the bed rail, which had been raised, and turned a little to the left. She tried to support the patient's head and trunk and to pull her up a little bit. As she did, she experienced a "lightning rod-like strike in my lower back going down to my left leg."

The applicant stopped working for a while, wriggling around and then sitting on a couch for twenty minutes. She finished passing out the medications, a task that was nearly complete anyway. She worked the following day, but her pain increased. She then saw her family doctor for treatment. The employer began paying her temporary disability on October 5, 1992.

c. Treatment for work injury.

Immediately after the September 29, 1992 work injury, the applicant treated with her family doctor, Dr. Synder, who referred her back to physical therapy. Copies of his notes are apparently not in the record. However, according to the respondent's independent medical examiner, Dr. Synder reported that on September 29, 1992, the applicant had to lift a 210 pound patient from supine to half sitting and felt immediate sharp pain in the back and leg which worsened over the next few days. According to the applicant, she saw Dr. Synder on or about October 1, and she later returned to Dr. Gianaris.

Dr. Gianaris's note for October 8, 1992, notes the applicant's return for treatment, and that she has had past back flare-ups which made her unable to do her work. The applicant reported a recent flare-up from moving a choking patient in bed, causing significant back and leg discomfort. Dr. Gianaris noted a positive straight leg test (often indicative of a herniated disc) (1). He also noted a previous MRI scan that was suggestive but not diagnostic of a herniated disc.

Dr. Gianaris's impression was recurrent radiculopathy. He referred the applicant to the Mayo Clinic for analysis of a blood disorder; the disorder concerned Dr. Gianaris with respect to getting a myelogram and possibly doing epidural injections. He also prescribed medication and took her off work for a month.

An MRI was done on October 15, 1992. The applicant then went to the Mayo Clinic on October 21, where she was first examined by Dr. T.J. Hanson, M.D. He noted the 1972 laminectomy, and reported that the applicant recovered to the point of being completely pain free by 1974. He noted a return of low back and left leg pain in 1988-89, following a work injury. He described the treatment outlined above, and stated that her symptoms from the 1988-89 injury would occasionally flare-up.

Dr. Hanson went on to note that she suffered a lightning rod-like pain in her low back and left knee following the September 29, 1992 lifting injury. She stated the pain was 75 percent in the left leg and 25 percent in the low back. Dr. Hanson opined that neurological consultation was necessary. His impression was chronic low back and left leg pain, with a two-week old exacerbation. He wanted, however, to differentiate the old changes from the new.

The neurologic consultation was done by Dr. J.D. Bartleson on October 23, 1992. His impression was chronic and recurrent low back and left lower limb pain. He reported a negative EMG.

The applicant was also seen at the Mayo Clinic by Dr. R.J. Coffey. He did not believe the October 15 MRI showed any lesion that would be amenable to surgery. In fact, after considering the MRI, the EMG and the applicant's clinical symptoms, he concluded she should have neither a myelogram nor a surgery.

In a note dated October 28, 1992, Dr. Hanson discussed the October 15 MRI in a little more detail. He stated the MRI showed degenerative disc disease at L4 and mild bulge of the L4 annulus. He also reported the EMG was negative, and that the lumbar x-rays showed degenerative arthritis, and "sacralization at the L5 vertebral body." He concluded by recommending instruction by a physical therapist in a dynamic lumbar stabilization type program.

Most of the Mayo Clinic history related above is set out in a letter from Dr. Hanson to Dr. Gianaris dated November 9, 1992. Upon receipt of the letter, Dr. Gianaris arranged for the dynamic lumbar stabilization physical therapy program, which the applicant attended. The applicant was then referred to T.D. Zondag, M.D., an associate of Dr. Gianaris, evidently for work restrictions.

Dr. Zondag saw the applicant on February 19, 1993. He reiterates much of the history given above, and reports that the applicant's pain following the September 1992 work injury is similar to the pain she had from the Texas injury in 1988-89. (At the hearing, the applicant testified the pain location was the same, but the September 1992 pain was much stronger.) He reported that the pathology shown in the March and October 1992 MRIs was felt to be scarring rather than an actual disc protrusion.

Dr. Zondag's assessment was low back and left radicular leg pain, reactivated with a bending injury in September 1992, chronic low back pain, degenerative disc with scar tissue along the left L4-L5 nerve root with numbness, and past medical depressive problems. He recommended steroid nerve blocks, anti-depressants, and more physical therapy.

On February 22, 1993, Dr. Zondag stated his assessment of degenerative disc disease at L4-5 with radicular left leg pain which has been reactivated. He released her to work for an hour or two with no patient care, no bending and no lifting over 5 pounds. About this time, Dr. Gianaris reported that he believed it was unlikely the applicant would ever be able to return to her old job.

The applicant reported an increase in pain in May 1993 when she tried to work three hours per day. On May 22, 1993, Dr. Zondag reported that the applicant could work two to three hours per day, three days per week, doing mostly administrative work. He would not allow a return to nursing. He also stated that the applicant could not do light nursing, even with a brace, but that she might be able to return to light nursing if she had a fusion surgery.

The applicant was then seen by R. A. Narotzky, M.D., for a surgical opinion on June 2, 1993. He noted segmental instability on flexion and extension at L4-5, and that "L5 is a transition segment." He noted definite nerve root clumping with arachnoiditis. He also reported an L4 disc protrusion toward the left along scarring at that level. His impression was failed back surgery syndrome. He wanted to do further evaluation with discography.

The discogram was positive at L5 and L4, according to Dr. Narotzky's note of July 27, 1993. According to Dr. Zondag's July 30 note, this meant she had disc problems at both levels. Dr. Narotzky opined she was a reasonable candidate for a discectomy and L4 to sacrum fusion. Dr. Zondag supported a fusion surgery, again opining that this might increase her level of work and allow her to return to actual nursing.

The surgery was performed on August 25, 1993, by Drs. Manz and Narotzky. More specifically, the applicant underwent a decompressive laminectomy and discectomy at L5-S1, bilateral foraminotomies and nerve root exploration at L4-5 and L5-S1, and an L4-S1 fusion using Cortrel-Dubousset instrumentation. The surgery was done on pre-operative and post-operative diagnoses of segmental instability L5-S1; symptomatic degenerative disc disease, L4-5, L5-S1; and herniated nucleus pulposus left L5-S1.

In his operative note, Dr. Narotzky reported that, at the L5-S1 nerve root:

"On the left side, there was considerable scarring which was lysed with sharp dissection and the disc space exposed. There was a recurrent disc protrusion which was removed. Hemostasis (2) was then achieved."

Exhibit B, Narotzky Operative Report dated August 25, 1993.

After surgery, the applicant was returned to work 3 or 4 days a week with a five pound lifting restriction on February 8, 1994, on a release by Dr. Zondag. (3) Subsequent notes, particularly a March 8, 1994 note by Dr. Zondag, indicated the doctor expected continued improvement. On April 5, 1994, Dr. Zondag modified his temporary restrictions. He stated she could lift up to 15 pounds occasionally, could kneel and squat but could not bend or twist. He allowed her to sit and stand, but that standing still should be kept to a minimum. He allowed her to work four to six hours per day, every other day, in administrative work.

On May 17, 1994, x-rays indicated a stable fusion. The applicant also told Dr. Manz that day that she finds there are more things that she can do compared to things she cannot do. He recommended a flexibility and strengthening program before returning her to full duty.

The applicant also saw Dr. Zondag on May 17. He provided another set of temporary work restrictions, which were generally less restrictive than those he set in April. He agreed the applicant could undertake a flexibility strengthening program and that she seemed to be coming along well, but he suggested she would never return to nursing.

The applicant saw Dr. Zondag again in early July 1994. He issued even more relaxed work restrictions, but wanted a functional capacity evaluation to determine her true capacity.

On August 9, 1994, following the functional capacity evaluation on July 12, Dr. Zondag opined the applicant reached a healing plateau with permanent partial disability at 20 percent compared to disability to the whole body. He set the following work restrictions: Lifting 10-20 pounds, up to 20 times per hour; no squatting, bending less than 10 percent of the time; no continual kneeling; occasional below the knee work; sitting for 20 to 30 minutes; standing for five minutes; walking "competitively;" and working six hours per day, eight if necessary, preferably in administrative work. Dr. Zondag and the person conducting the functional capacity evaluator agreed the applicant could return to light duty, but not regular nursing which is "medium duty work." Dr. Zondag did not limit the number of days per week she could work at this time.

The applicant returned to work, and tried to work two six hour shifts, but it caused an increase in her radicular symptoms. In November 1994 she told Dr. Zondag "she has had her job discontinued at Heyde" and had returned to college. He recommended she use a TENS unit, and thought implantation of a spinal cord stimulator would be a reasonable treatment.

The applicant then saw S.M. Endres, M.D., in December 1994 about a possible spinal cord stimulator. He thought she was a good candidate, pending psychiatric evaluation.

Following an appointment on April 18, 1995, Dr. Zondag issued a new set of restrictions. These are stated in an April 18 letter to the applicant's vocational expert, Jeanne Krizan. He stated:

"She can work up to six hours a day, Monday, Wednesday and Friday or Tuesday, Thursday, and Saturday. She has minimal tolerance of static standing, but can walk as long as she can tolerate this on her own pace, and she can sit for 45 minutes to an hour and then will have to stand. She can occasionally lift from her knees through her shoulders 10-15 pounds and is unable to do it on a constant or frequent basis. She is to stay away from areas where she has to do bending or twisting, but can do kneeling and squatting to get at low level activities. She can climb up to three flights of stairs per day. She can reach above her shoulders on a frequent basis, but not reach below her knees. It is recommended that she return to administrative type of work rather than a floor nursing work."

Dr. Zondag does not explain why he changed the applicant's restrictions to limit her to 3 days per week, or even say whether this is a change. He only indicates that she was able to arrange her college schedule in that pattern. He set similar, but not identical, restrictions also including a 3-day week in a couple of follow-up letters.

d. Expert medical opinion.

On April 9, 1994, Dr. Manz issued a practitioner's report stating his expert medical opinion. He opined that the applicant suffered degenerative disc disease as a direct cause of the work injury, and that the work injury aggravated, accelerated and precipitated the degenerative disc disease beyond its normal progression. Dr. Manz would not estimate the extent of permanent disability as the applicant had not yet reached an end of healing, but he stated the components of permanent disability would include segmental instability, reduced endurance, pain, and herniated disc. He reported the applicant had pre-existing disability, which was increasingly aggravated by work.

Dr. Zondag also prepared a practitioner's report. His is dated August 29, 1994. He also opines work caused the applicant's disability directly and by aggravation, acceleration and precipitation of a pre-existing degenerative condition. He rated permanent partial disability at 20 percent to the whole body, referring to his August 9, 1994 dictation. He also refers to his August 9, 1994 dictation with respect to the work restrictions, as set out above. The increased restrictions, subsequently issued in April 1995, obviously are not attached or mentioned in the August 1994 report.

The employer's independent medical examiner is A. Yale Gerol, M.D. He submits three reports dated March 23, 1993 (exhibit 1) October 13, 1993 (exhibit 2) and March 14, 1995 (exhibit 3).

The first report follows an examination in March 1993, several months before the fusion surgery. Dr. Gerol opined that the applicant had at most a lumbar strain from the lifting injury, and that the strain should have resolved without disability by December 1992. He thought the applicant's continuing symptoms were a part of an emotional investment and a perceptual involvement. He based this opinion on the fact that the applicant's complaints of numbness came and went depending on activities, and that the activities she said reduced pain (assuming the "lotus position") simply would not have that effect.

Dr. Gerol went on to state that the applicant's complaints were for reasons "that have nothing to do with the back and she uses the back as a surrogate for whatever it is that is concerning her." He was uncertain whether her problem was unconscious. It would take a psychiatrist to determine that and he did not consider himself qualified to render a psychiatric diagnosis. However, he went on to say that her complaints were the result of a somatoform pain disorder and not work. He opined her treatment to date had been excessive and unnecessary.

Dr. Gerol then explains why the applicant sustained at most a muscular strain, but not a herniated disc, from the work injury. He states there was no herniated disc at all, whether attributable to the September 1992 work injury, the 1972 laminectomy, or the 1989 injury in Texas. He notes that the MRIs and the EMG did not contain definite evidence of disc herniation. He also says that "straight leg raising replicating pain in the back is evidence of muscular tightness but not of neurologic disorder."

In his subsequent October 13, 1993 report, Dr. Gerol strongly recommended against the fusion surgery, again opining the applicant had only a back strain. He reiterated that there was no organic basis for the applicant's intermittent leg symptoms, and stated that it was questionable whether fusion surgeries generally do any good.

Following the fusion surgery, Dr. Gerol re-examined the applicant in March 1995. He opined the fusion surgery was neither reasonable nor necessary. He reiterates that the imaging tests did not clearly show a herniated disc. He also reports the applicant did not complain of pain below the knee, as she should have with a herniated disc (although she has consistently complained of left leg pain.) He also noted the absence of a positive straight leg raising test before the surgery (which he now indicated would confirm a herniated disc.) He does not directly dispute Dr. Narotzky's operative report of a herniated disc, other than to suggest it could have been at L5-S1 instead of L4-5. He offered as further proof that the fusion surgery was not necessary due to the fact that it did not increase her ability to stand. Exhibit 3, pages 20 and 21.

Dr. Gerol rated a 10 percent permanent partial disability for the fusion surgery and stated he would restrict the applicant to a fifty-pound lifting limit as a result of the surgery. He reiterated, though, that the fusion surgery was not necessary to treat the work injury. Indeed, his opinion can only be read to state that the fusion was simply not necessary at all; he does not, for example, relate it to the progression of the pre- existing disability from the 1967-68 car accident.

e. Vocational experts.

The applicant's vocational expert, Jeanne Krizan reported that, considering only the 18-hour per week restriction under Dr. Zondag's April 1995 restrictions, the applicant would sustain a 55 percent loss of earning capacity (as 18 is 45% of 40.) Ms. Krizan also opined that, considering the applicant's education and her other functional restrictions, the applicant had a 65 to 75 percent loss assuming she could find work as a registered nurse. If the applicant could not find work as a registered nurse, but had to resort to the general labor market of mostly lower paying work, Ms. Krizan opined she would have had an 80 to 90 percent loss of earning capacity. Ms. Krizan went on to indicate that the loss would be closer to 90 percent, and that when so great a loss is rated, a worker might well be considered permanently and totally disabled on an odd-lot basis in many cases. (4)

Ms. Krizan also stated that under Dr. Gerol's first opinion that the applicant had no permanent disability, there would be no loss of earning capacity.

The employer's expert, Thomas M. Herro, issued two reports (exhibit 7 and 8). In the first, he stated that based on Dr. Zondag's August 1994 restrictions (essentially full-time, light duty work), the applicant would have 10 to 20 percent loss of earning capacity. Based on Dr. Gerol's March 1993 opinion that there was no work-related permanent disability, the applicant would have no loss of earning capacity. In his subsequent report, Mr. Herro rated loss of earning capacity at 60 to 70 percent based on Dr. Zondag's April 1995 restrictions which included the restriction to part-time work.

Neither expert gave an opinion on a loss of earning capacity on Dr. Gerol's March 1995, post-fusion lifting restriction of not more than 50 pounds.

2. Discussion.

a. Causation; nature and extent of disability.

As noted above, the respondent concedes the applicant suffered a work injury on September 29, 1992. The first issue is the extent of disability caused by the work injury. Resolution of this issue turns on whether the commission credits the opinions of Drs. Manz and Zondag that the work injury caused the disability leading to the fusion surgery, or Dr. Gerol's opinion that the work injury caused only temporary disability and that the fusion surgery was not necessary.

The commission finds the opinions of Drs. Manz and Zondag more credible. Dr. Gerol's opinion the applicant had nothing more than a back sprain for which surgery was unnecessary was based largely on his belief that the diagnostic tests showed nothing was wrong with her. On the other hand, Dr. Narotzky interpreted the tests as showing either scar tissue or a herniated disc, and during the fusion surgery, he noted the presence of both.

Stated another way, during the fusion surgery, Dr. Narotzky confirmed both the herniated disc and the scar tissue which the MRI suggested was present. Under these circumstances, the commission has a difficult time accepting Dr. Gerol's opinion that the applicant suffered only temporary disability and that her permanent symptoms had some purely psychological origin. The commission notes that Dr. Gerol did not opine that the earlier car accident and laminectomy caused the scar tissue or the herniated disc disclosed by Dr. Narotzky, but that there was nothing at all wrong with the applicant.

Of lesser note, is the statement in Dr. Gerol's first report that the positive straight leg raising test establishes only a muscular problem, and his subsequent opinion that it may show a disc problem. Further, on at least one occasion (October 8, 1992), a positive straight leg raising test was noted. Primarily, however, the commission concluded that Dr. Gerol fails to deal effectively with the "recurrent" herniated disc discovered during surgery after being suspected in the MRIs.

In short, the commission finds more credible the opinions of treating doctors Manz and Zondag that the lifting injury caused the applicant's symptomatic worsening and need for fusion surgery. Their opinions seem more consistent with the recurrent disc protrusion disclosed during the fusion surgery. The commission also notes the applicant's testimony that her pain continued after the work injury and has been reduced greatly by the fusion surgery.

The next issue is the extent of temporary disability. As noted above, while Dr. Zondag released the applicant to work on February 8, 1994, the record indicates the doctors expected additional improvement. Dr. Manz's April 9, 1994 practitioner's report makes it clear neither he nor Dr. Zondag thought she had yet reached an end of healing or "healing plateau." In fact, Dr. Zondag kept lessening her restrictions until he rated permanent partial disability at 20 percent compared to disability to the body as a whole on August 9, 1994. In addition, the record does not disclose that the employer offered the applicant work within her restrictions before August 9, 1994, or that she otherwise earned additional wages.

The respondent previously paid temporary total disability to April l5, 1993. From that date to August 9, 1994 is an additional 70 weeks. At the rate of $242.73 per week (two-thirds of the conceded average weekly wage of $364.10), the applicant is entitled to an additional award for temporary total disability of $16,991.10.

The next issue is the extent of "functional" permanent partial disability. Under the administrative rules in effect at the time of the applicant's injury, the minimum disability rating to a back following a laminectomy procedure is five percent compared to the body as a whole, and ten percent following a fusion procedure. Section Ind 80.32 (11), 1992 Wis. Adm. Code. The commission is satisfied that Dr. Zondag's August 1994 restrictions justify a rating higher than the minimum set out in the rules. On the other hand, the administrative code also indicates that an appropriate deduction should be made for any pre-existing disability. Section Ind 80.32 (1), Wis. Adm. Code. Deducting five percent for the applicant's 1972 laminectomy surgery from the 20 percent rating given by Dr. Zondag leaves a rating for permanent partial disability following the fusion surgery at 15 percent compared to disability to the body as a whole. The commission finds a permanent partial disability on a functional basis at that level.

The next question is the extent of loss of earning capacity. The opinion of the applicant's expert, Jeanne Krizan, is evidently based on Dr. Zondag's April 1995 restrictions to part-time work. As far as the commission can tell, however, Dr. Zondag never explains why he changed his restrictions to impose the restriction to part-time work in April 1995, other than a reference to the applicant's part-time schedule in college. In addition, the change in restrictions in April 1995 are not attached to a verified practitioner's report form, as were the August 1994 restrictions. The commission also notes that the apparent change in work restriction did not accompany a change in the functional impairment rating given by Dr. Zondag in August 1994. Nor does it appear that a new functional capacity evaluation was done.

In short, any rating of loss of earning capacity must be based on Dr. Zondag's work restrictions imposed in August 1994, rather than his unexplained restriction to part-time work imposed in April 1995. Since the April 1995 restriction to part-time work is an underlying assumption in Ms. Krizan's expert opinion, her opinion must be rejected. The commission therefore concludes that the applicant has not established a loss of earning capacity at the levels set out in her report, much less a prima facie case of future unemployability on an odd-lot basis. Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989).

The commission is therefore left with the opinion of the employer's vocational expert, Mr. Herro, who rated loss of earning capacity based on Dr. Zondag's August 1994 restrictions at 10 to 20 percent. After considering the applicant's age, education, and other factors set out in sec. Ind 80.34, Wis. Adm. Code, the commission adopts the 20 percent figure at the higher end of Mr. Herro's range, into which is merged the functional rating for permanent partial disability of fifteen percent compared to the body as whole.

The commission therefore finds that the applicant also sustained permanent partial disability of 20 percent compared to disability to the body as a whole. The applicant is thus entitled to 200 weeks of permanent partial disability benefits at $144 per week (the statutory maximum for injuries occurring in 1992), for a total of $28,800, accruing as of August 9, 1994. As of June 10, 1996, 96 weeks have accrued, amounting to $13,824.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional temporary total and permanent partial benefits awarded under this decision. The total fee is thus $9,158.22 {20 percent of ($16,991.10 plus $28,800)}. Of that amount only the fee attributable to temporary total disability and the first 96 weeks of permanent partial disability ($6,163.02) has yet accrued; the fee attributable to 104 weeks of permanent partial disability ($2,995.20) remains unaccrued. As a result, the unaccrued fee is subject to an interest credit of $201.96. Deducting the interest credit from the total fee due leaves a net fee which reflects its present value of $8,956.26. Costs of $1,156.20 have also been established. These sums shall be deducted from the applicant's total award and paid to her attorney within 30 days.

The amount due to the applicant within 30 days is $23,495.88. This is determined by adding the additional temporary total disability benefits of $16,991.10 to the permanent partial disability benefits of $13,824 accrued as of June 10, 1996. From this total ($30,815.10) must be subtracted the accrued attorney fee ($6,163.02) and legal costs ($1,156.20).

The amount remaining to be paid to the applicant as it accrues after June 10, 1996 is $11,980.80. This is determined by starting with the unaccrued permanent partial disability of ($14,876 or 104 weeks at $144 per week), and subtracting the unaccrued attorney fee without deducting the interest credit ($2,995.20). This amount shall be paid to the applicant in monthly installments of $624.00, beginning July 10, 1996.

The remaining issue is the medical expenses. After considering the applicant's statement of treatment expense in light of the expert medical opinion outlined above, the commission concludes that the claimed medical expenses, including the fusion surgery, were reasonable and necessary to cure and relieve the effects of the work injury. The expenses, as outlined in exhibit E, are therefore ordered paid.

After reviewing the medical records in this case, the commission concludes an interlocutory order is appropriate on the issues of possible future medical expense and possible additional disability from the work injury arising after the date of the hearing. As to the issues decided herein, however, this order is final.

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.

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed.

Within 30 days from the date of this decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Sandra J. Shafer, the sum of Twenty-three thousand four hundred ninety-five dollars and eighty-eight cents ($23,495.88) for disability.

(2) To the applicant's attorney, Manlio G. Parroni, the sum of Eight thousand nine hundred fifty-six dollars and twenty-six cents ($8,956.26) as attorney fees, and One thousand one hundred fifty-six dollars and twenty cents ($1,156.20) as costs.

(3) To J. Martin Barrash, M.D., the sum of One hundred thirty-eight dollars ($138.00) for medical treatment expense.

(4) To Centre for Psychological Services, the sum of One hundred dollars ($100.00) for medical treatment expense.

(5) To Eau Claire Anesthesiologists, the sum of Seven hundred forty-nine dollars and fifty-four cents ($749.54) for medical treatment expense.

(6) To EMPI, the sum of One hundred twenty-four dollars and seventy-six cents ($124.76) for medical treatment expense.

(7) To Lehman Medical Supply, the sum of Fifty-one dollars and fifty-five cents ($51.55) for medical treatment expense.

(8) To Richard Linden, M.D., the sum of Eight dollars and sixty-two cents ($8.62) for medical treatment expense.

(9) To Luther Hospital, the sum of Fourteen thousand six hundred eighteen dollars and forty-one cents ($14,618.41) for medical treatment expense.

(10) To Mayo Clinic, the sum of Three thousand five hundred forty-one dollars and seventy cents ($3,541.70) for medical treatment expense.

(11) To Medical X-ray Consultants, the sum of Twenty-two dollars and seventy-four cents ($22.74) for medical treatment expense.

(12) To Middelfort Clinic, the sum of Four thousand one hundred fifty-eight dollars and eighty cents ($4,158.80), for medical treatment expense.

(13) To NW Wis. Homecare, the sum of Thirty dollars ($30) for medical treatment expense.

(14) To Rivercity PT, Ltd., the sum of One hundred seventy- seven dollars and thirteen cents ($177.13) for medical treatment expense.

(15) To Pain Clinic of NW Wisconsin, the sum of One hundred seventy-eight dollars ($178) for medical treatment expense.

(16) To Sacred Heart Hospital, the sum of One thousand two hundred twenty-seven dollars and seventy-two cents ($1,227.72) for medical treatment expense.

(17) To Work Recovery Centers, the sum of Six hundred seventy-five dollars ($675.00) for medical treatment expense.

(18) To Valley Health Plan, the sum of Fifty-eight thousand five hundred eighty-nine dollars and seventy-nine cents ($58,589.79) as reimbursement of medical treatment expense paid.

(19) To the applicant, the sum of Two hundred seventy dollars ($270.00) as reimbursement of medical treatment expense paid and Four hundred fourteen dollars and ninety-six cents ($414.96) for medical mileage.

Jurisdiction is retained to issue such further orders as may be warranted consistent with this decision.

Dated and mailed June 6, 1996
shafesa.wrr : 101 : 8   ND § 5.20 § 5.21   § 5.24

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the applicant asserts that the administrative law judge erred in dismissing her claim for loss of earning capacity. For the reasons explained above, the commission concludes that the administrative law judge correctly rejected Ms. Krizan's opinion concerning loss of earning capacity.

However, the commission is not convinced that the applicant's claim for loss of earning capacity should be dismissed in total because her expert focused on work restrictions rather than the permanent disability rating. In this case, the applicant has permanent disability and permanent work restrictions as a result of the fusion surgery, even Dr. Gerol admits that. In addition, both parties' vocational experts agree the applicant has suffered a loss of earning capacity, if one assumes the work restrictions imposed by Dr. Zondag were causally-related to the work injury. The administrative law judge himself rejected Dr. Gerol's opinion that there was no causal link between the work injury and the treatment expense.

Further, a workers compensation award for permanent disability based on loss of earning capacity is distinguished from an award based on pure functional disability, Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d 52, 529 (1979). Stated simply, an award for loss of earning capacity is based on an injury's permanent effect on an applicant's ability to work, not on his general ability to function. Consequently, the commission does not believe that an applicant's claim for loss of earning capacity should be rejected simply because his expert considers his permanent doctor-imposed work restrictions rather than the functional impairment rating.

The respondent asserts that the administrative law judge erred in awarding medical expenses based on Spencer v. DILHR, 55 Wis. 2d 525 (1972). Because the commission concludes the treatment expenses were reasonable and necessary to cure and relieve the effects of the work injury, as explained above, consideration of the Spencer issue is not necessary. The commission does concur with the administrative law judge's conclusion, however, that the applicant underwent treatment in good faith.

Finally, the commission did not confer with the administrative law judge in this case. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge dismissed the applicant's claim for loss of earning capacity on a legal basis, not on the basis of the testimony of any witness who testified. The commission also differed with the administrative law judge's interpretation of Dr. Zondag's February 1994 release to work to be a finding of a healing plateau. Regardless of whose interpretation is correct, this issue too involves expert opinion and not the credibility of a witness who testified at the hearing.

cc: ATTORNEY MANLIO G PARRONI
PARRONI SIEDOW JACKSON & PENDERGAST

ATTORNEY DAVID A CASTAGNA
QUARTARO RYAN CASTAGNA & CONLEY


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Footnotes:

(1)( Back ) But also possibly a hamstring problem. 1B Attorney's Textbook of Medicine, sec. 15.24 (1) (1996); 1C Attorney's Textbook of Medicine, sec. 15A.43 (1996).

(2)( Back ) The arrest of bleeding.

(3)( Back ) See IME Gerol's March 15, 1995 report (exhibit 3) at page 16.

(4)( Back ) Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977).