Wis.LIRC WC Decision: Grunert - February 20, 1995 - ND � 5.23 - 85 percent rule - suitable re-employment offered - not liking FT office work and wanting to spend more time with family not a reasonable basis for refusing or quitting work; � 5.20 - loss of access to the labor market does not equate with LOEC

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

ROBERTA GRUNERT, Applicant

WISCONSIN LIMOUSINE SERVICES INC, Employer

UNITED STATES FIDELITY AND GUARANTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91070180

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on July 19, 1994, following a hearing on June 21, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Interlocutory Order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $170, and an October 25, 1991 compensable injury. The respondent paid temporary total and temporary partial disability from October 25, 1991 to August 8, 1993, in the amount of $9,063.38. The respondent also conceded and paid permanent partial disability of 50 weeks in the amount of $5,667.

The issues are 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. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his Findings of Fact and Interlocutory Order, and substitutes the following therefor:

FINDINGS OF FACT and CONCLUSIONS OF LAW

The applicant was born on December 20, 1948, and began working for the employer as a driver in 1989. She suffered a conceded work injury on October 25, 1991 while lifting luggage. At the time of her injury, the applicant was earning $4.25 per hour, or $170 per week.

Following the October 25, 1991 injury, the applicant had a laminectomy at L4-5 on November 1, 1991. Dr. Strassburger of Neurological Surgery, S.C. performed the surgery. The applicant returned to work in March 1992, but continued to experience pain. Dr. Strassburger ordered an MRI in May 1992 to determine the source of the pain.

The May 1992 MRI "perhaps" showed evidence of a recurrent disc, but also showed definite signs of postoperative scarring. Dr. Strassburger recommended conservative treatment. He also noted his imminent retirement. See Strassburger's May 29, 1992 letter in Exhibit G. Dr. Suberviola, one of Strassburger's associates at Neurological Surgery, ordered a CT scan and myelogram. He opined that further neurological management was unnecessary. Suberviola's September 16, 1992 letter in Exhibit G.

The applicant then saw James E. Stoll, M.D. Dr. Stoll opined that the applicant either had a recurrent disc herniation or retained disc fragment at L4-5, and recommended surgery. Stoll's October 7, 1992 letter, Exhibit A. On or about November 10, 1992, Dr. Stoll performed a repeat L4-5 laminectomy, and L4-5 foraminotomy. Stoll's November 1992 operative report, Exhibit G.

During the course of treatment, Dr. Stoll referred the applicant to Columbia Hospital's Pain Center for evaluation at its Physical Medicine and Rehabilitation Department and Musculoskeletal Institute. See Exhibits 11 and 12. The evaluation followed a course of in-patient and out-patient treatment at the Columbia Hospital pain center in May and June 1993, where she was treated by, among others, a physical therapist, Steve Olson, and a medical doctor, James Lincer. Following the evaluation, the applicant was released to part-time work at four hours per day as of June 23, 1993, six hours a day beginning July 7, and eight hours a day beginning July 21, 1993. Dr. Lincer stated she could do light duty work with a maximum daily lift of 20 pounds, frequently lift 13 pounds, and no lifting below the knees. Exhibit 9.

The applicant returned to work with these restrictions on July 20, 1993. She did general office work: making reservations, answering the telephone, and running the photocopier. The employer's president testified that these duties allowed her to change positions every 20 minutes. The applicant characterized the duties as "office work," including training new drivers. She testified that the telephone was frequently busy, she frequently had to work more than 20 minutes without changing positions. She also testified that she told one of the doctors she hated the office work.

This is borne out by notes from Dr. Lincer's office from early August 1993. In a letter dated August 5, 1993, Dr. Lincer stated that the applicant viewed the employer as a hostile work environment. In a series of office notes from August 3 to 12, 1993, it was noted that the applicant might be pushing herself too hard at home, that when she returned home from work she was unable to do her usual household chores and would sometimes go straight to bed, that at a family meeting her family told her they expected "more of her," and that she was under stress related to her job. On August 12, Dr. Lincer noted that she felt she could not both work and be a housewife and mother. He went on to note that he would not support work-related psychological disability.

The applicant then saw Dr. Kuglitsch. On August 17, 1993, he prepared a practitioner's report with respect to permanent disability (Exhibit B). In it, Dr. Kuglitsch opined that the applicant was substantially unable to work, and had difficulty concentrating due to depression and medication. He opined she had a 100 percent permanent partial disability broken down as follows:

1. At least 50 percent for back pain and inability to lift, bend, twist, sit or walk;

2. 25 percent for headaches and frequent need for medication making her unable to relax and feel at ease at work; and

3. 25 percent for depression.

He opined that her work injury directly caused her disability, and that it was unlikely she would improve.

The applicant quit her office job on August 25, 1993, citing advice from her doctor and lawyer. She testified that she left the job because of pain and that she would accept work within her restrictions. The employer's president testified that the applicant quit the office job in part for family reasons.

Dr. Kuglitsch's second opinion is stated in a letter dated May 23, 1994 dealing with the applicant's restrictions. Exhibit D. He noted a recent EMG showed a chronic left L5 radiculopathy, and that the applicant had recently had a functional capacity evaluation at Curative Rehabilitation Center . He concluded that the applicant:

"cannot lift more than 10 pounds at any frequency more than 5 times per hour. She also cannot stand for more than 10 minutes in any one position. She is unable to sit for no more [sic] than 20 minutes and is unable to walk for no more [sic] than one block at any one given time. Because of her degenerative radiculopathy, she is not able to stoop, bend or climb."

Finally, Dr. Kuglitsch testified at the hearing. He opined that the applicant could do desk work within the restrictions set out above, apparently retracting his earlier opinion that the applicant was substantially unable to work. He testified that she strongly desired to work. He also noted that she had become addicted to pain pills for her back, but was over the addiction.

The file also contains a report from Dr. Stoll dated September 29, 1993, concerning the applicant's functional restrictions (Exhibit 9). He rated her permanent functional disability at 5 percent, which he opined was the "minimum mandated" rating. He found a healing plateau on July 21, 1993, when he released her to full-time work. He went on to opine that the applicant failed to return to work because of "work avoidance issues" and a perception of a hostile work environment, not the medical reasons given by Dr. Kuglitsch in Exhibit A. He attached the work restrictions imposed by Dr. Lincer.

The commission accepts Dr. Stoll's report as credible with respect to the applicant's healing plateau, her work restrictions, and her general ability to work. Dr. Stoll's report is supported by the evaluation from the Columbia Hospital pain center and the Curative Workshop, both of which conclude that the applicant may work at a sedentary job. On the other hand, these evaluations run contrary to Dr. Kuglitsch's original opinion that the applicant was unable to work.

Moreover, Dr. Lincer's office notes indicate that the applicant quit her job because she perceived the workplace to be hostile, and because she felt she could not do the work and be a good wife and mother. Even Dr. Kuglisch's August 17, 1993, report does not state that the applicant could not physically do the work, but that she had difficulty concentrating because of her depression and pain medication. On this basis, the commission considers Dr. Stoll's opinion that the applicant could work with restrictions in August 1993 to be more credible than Dr. Kuglitsch's opinion that she was substantially unable to perform any work.

The commission therefore finds that the applicant reached an end of healing on July 21, 1993. Since the employer has paid temporary disability to at least that date, no additional temporary total disability is awarded.

Given the applicant's surgical history, the respondent now concedes a ten percent permanent partial disability on a functional basis, consistent with the administrative code minimum for two surgical laminectomies. Section IND 80.32 (11), Wis. Adm. Code. See pages 8 and 9 of employer's brief of July 27, 1994. The commission finds this functional rating appropriate under the facts of this case, given that neither the 5 percent rating from Dr. Stoll nor the 100 percent rating from Dr. Kuglitsch seems to have been made under the current guidelines in the Wisconsin Administrative Code.

The remaining issue is the extent of the applicant's loss of earning capacity based on her permanent functional restrictions and disability after the surgeries. The respondent and the applicant each offer reports of vocational experts to guide the commission's consideration in this case.

The report of the applicant's expert, Leslie Goldsmith, is dated May 22, 1994, one day before Dr. Kuglitsch's May 23 report setting out his modified work restrictions based the applicant's assessment at the Curative Rehabilitation Center. Mr. Goldsmith assessed permanent total disability based on Dr. Kuglitsch's August 1993 restrictions, and 10 to 15 percent loss of access on the restrictions of Drs. Stoll and Lincer. Exhibit C.

The respondent's expert, Martha Johnson, found a 5 to 10 percent loss of earning capacity based on Drs. Lincer and Stoll's restrictions, and a 10 to 20 percent loss based on Dr. Kuglitsch's May 1994 restrictions which she described as "sedentary work with some modifications for sitting." Exhibit 15.

Accepting the restrictions set by Drs. Stoll and Lincer, as the commission does, the commission finds the applicant suffered a 10 percent loss of earning capacity. True, Mr. Goldsmith does opine that the applicant suffered up to a 15 percent loss of access to the labor market. However, the commission is not willing to equate loss of access with loss of earning capacity. A ten percent rating is consistent with Ms. Johnson's opinion and supported by the record.

However, although the commission has determined the extent of the applicant's loss of earning capacity, that does not mean she is entitled to any additional award for loss of earning capacity. First, the permanent partial disability determined on a functional basis is equal to the permanent partial disability for loss of earning capacity. Second, the commission concludes that the applicant is ineligible for any permanent partial disability benefits attributable to loss of earning capacity under sec. 102.44 (6)(a) and (g), Stats.

Those paragraphs provide:

102.44 (6)(a) Where an injured employe claiming compensation for disability under sub. (2) or (3) has returned to work for the employer from whom he or she worked at the time of the injury, the permanent disability award shall be based upon the physical limitations resulting from the injury without regard to loss of earning capacity unless the actual wage loss in comparison with earnings at the time of injury equals or exceeds 15%.

(g) For the purposes of this subsection, if the employer in good faith makes an offer of employment which is refused by the employe without reasonable cause, the employe is considered to have returned to work with the earnings the employe would have reached had it not been for the refusal.

In this case, the office work the employer provided for the applicant did not cause a 15 percent wage loss and was suitable for her restrictions. The commission cannot credit the applicant's testimony that the phone kept her from changing positions every 20 minutes. Neither that problem, nor any specific physical problem with the work duties was noted by Dr. Lincer or Dr. Kuglitsch. Rather, the applicant quit the office work because she did not like it, and because she wanted to devote more time to her family. These personal concerns may seem like adequate reasons to reject work, other things being equal. However, when an injured full-time worker is attempting to collect compensation for loss of earning capacity, not liking full-time office work and wanting to spend more time with family is not a reasonable basis for refusing or quitting work.

The commission further finds that the applicant sustained a permanent partial disability of ten percent compared to disability to the body as a whole. She is therefore entitled to 100 weeks of permanent partial disability at $113.33 per week (two-thirds of her $170 weekly wage at the time of injury) for 1991. This amounts to a total of $11,333.

The respondent is entitled to a credit for the $5,667 it has previously paid in permanent partial disability. The total amount to be paid within 30 days is therefore $5,666.

The applicant agreed to a 20 percent attorney fee under sec. 102.26, which amounts to $1,133.20 in this case. In addition, correspondence in the file indicates that the applicant's attorney incurred costs in the amount of $930.78. The costs and fees shall be deducted from the applicant's award and paid directly to the applicant's attorney. The amount remaining to be paid to the applicant is $3,602.02.

The final issue is unpaid medical expenses. The exhibit submitted by the applicant includes a bill of $316 for psychological services from the Medical College of Wisconsin for services rendered by N. Timothy Lynch, Ph.D., in February and April 1994, and a bill of $41.95 from John Doyne Hospital for psychological services in April 1994. Because the applicant has not established these services were reasonable and necessary for, or even rendered in connection with, her work injury, they shall not be paid. On the other hand, the applicant also submitted a bill from Family Health Plan for services related to the applicant's injury. These services have all been paid but the commission cannot tell by whom. The commission cannot tell whether reimbursement is appropriate, and if so, to whom. The parties are directed to attempt to resolve this issue, and this order is left interlocutory with respect to that bill if it cannot be resolved.

Otherwise, the commission finds that the applicant incurred the following reasonable and necessary medical expenses to cure and relieve the effects of her injury: from Home Health Care, the amount of $259.73, all of which the applicant paid and she is entitled to reimbursement; from Milwaukee Urological Service Corporation, the sum of $596; from Neurological Surgery of Milwaukee, S.C., the sum of $184.

Given the two surgeries, the possibility of future disability from this work injury cannot be discounted. Jurisdiction is therefore retained on that issue, as well as the medical expense issue noted above.

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 from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Roberta Grunert, the sum of Three thousand six hundred two dollars and two cents ($3,602.02) for permanent partial disability.

(2) To the applicant's attorney, James C. Mentkowski, the sum of One thousand one hundred thirty-three dollars and twenty cents ($1,133.20) as attorney fees, and Nine hundred thirty dollars and seventy-eight cents ($930.78) in costs.

(3) To the applicant, the sum of Two hundred fifty- nine dollars and seventy-three cents ($259.73) as reimbursement for medical expenses.

(4) To Milwaukee Urological Service Corporation, the sum of Five hundred ninety-six dollars ($596).

(5) To Neurological Surgery of Milwaukee, S.C., One hundred eighty-four dollars ($184).

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

Dated and mailed February 20, 1995
ND � 5.23 � 5.20

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge had no specific recollections, although he did state that the applicant and Dr. Kuglitsch seemed credible and that the employer's attempts to accommodate the applicant's disability seemed to be in good faith.

As set out in the decision, the commission found Dr. Stoll's opinion about the applicant's condition and work restrictions to be more credible and reasonable than Dr. Kuglitsch's. Dr. Kuglitsch retracted his original opinion that the applicant could not work, and the functional capacity reports better support Dr. Stoll's opinion. Further, as discussed above, Dr. Lincer's notes for August 1993 led the commission to conclude that the applicant's concerns about family matters and a hostile work environment led her to quit rather than her inability to change position every twenty minutes.

cc: ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

ATTORNEY JAMES C MENTKOWSKI
JAMES C MENTKOWSKI LAW OFFICE

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