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

JACK GREW, Applicant

BARKO HYRAULICS INC, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90-007181

The administrative law judge issued his findings of fact and interlocutory order in this case on January 13, 1995, following a hearing on December 6, 1994. The applicant has submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the employer and the insurer (collectively, the respondent) and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $491.65, and a January 19, 1990 compensable injury. The respondent conceded and paid $3,275 in permanent partial disability on a functional basis, $382.40 for temporary total disability, and apparently certain other medical expenses.

The issues at hearing were the nature and extent of disability, specifically permanent disability, 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 hereby sets aside the administrative law judge's findings of fact, conclusions of law and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1942, suffered a conceded back injury at work on January 19, 1990. At the time, he had worked for the employer for twelve years. He sought treatment from a chiropractor, P.L. Lukovsky, D.C., who had treated the applicant for back pain about a year earlier. Following the work injury at issue here, Dr. Lukovsky took the applicant off work for about ten days, then released him to work without restrictions on January 30, 1990.

The applicant testified that he is not as agile as he used to be, that he has to be more careful of his back at work, and that he has increased stiffness particularly in the morning. He rated his pain at 3 on a scale of 10 on a good day and 8 on a bad day. He stated that treating with chiropractor Lukovsky helps his condition. He admitted that no one has told him he is a candidate for surgery.

The applicant submits two practitioner's reports from his treating chiropractor, P.L. Lukovsky. In his first report, dated April 30, 1993, Dr. Lukovsky diagnosed acute moderate strain/sprain of the lumbar area with possible disc involvement. He opined that disability was caused both directly and as an occupational disease, referring to the causative event as the lifting injury at work on January 19, 1990. He went on to state that it was too soon to rate permanent partial disability, but noted that the applicant had returned to work without restrictions.

Dr. Lukovsky submitted a second practitioner's report, dated January 24, 1994. In this report, the doctor diagnoses chronic traumatic moderate strain/sprain of the lumbar spine; degenerative disc disease, L2-L3; and facet imbrication L4-5 and L5-S1 levels. He again found that the January 19, 1990 injury caused disability directly and by occupational disease, but noted that the applicant had returned to work without limitations. He was went on to assess "15 percent permanent partial impairment of the lumbar spine and pelvis." The permanent disability rating was based on marked rigidity and muscle spasm in the lumbar and lower thoracic spine, some apparent limitation in motion, and an antalagic posture to lessen pain. The chiropractor also stated that further treatment would be necessary to treat chronic muscle spasms.

The respondent submitted the report of its independent medical examiner, William P. Fleeson, who examined the applicant in March 1994. Dr. Fleeson attached three narratives to his WC-16B. The earliest is dated March 21, 1994, in which the doctor diagnosed an intermittent facet syndrome or mechanical low back pain, complicated by degenerative disc disease. He noted chiropractic treatment for back problems going back before the work injury.

Dr. Fleeson opined that the applicant had reached an end of healing by April 1991. He also stated that the answer to whether the applicant's current symptoms were related to the work injury was "yes and no." He went on to state:

"As to how much of his problem is solely related to the 1/90 injury, I would have to see what happened to him before, what his symptoms were, and what kind of treatment he had.

"As to any permanency attributed solely to the 1/90 injury, the above comments would apply: I need to know what happened to him previously if that is possible to determine. If there were no degenerative changes prior to the 1/90 injury, then it might be reasonable to consider it a 2.5% permanent injury."

In a follow-up note dated September 29, 1994, Dr. Fleeson reiterated his earlier note, including his "comment[] on whether or not permanency would exist if there were no degenerative changes prior to the 1/90 injury..." He then noted that a "two-film lumbar spine series" from January 1990 showed significant degenerative change at L2-3 in the form of narrowing and spurring. He concluded that there was "significant degenerative disc disease,... obviously pre-existing the 1/90 twisting injury."

In his final report dated October 28, 1994, Dr. Fleeson stated:

"In my first report,... I commented on whether or not there was any permanency. (There was not, as the degenerative changes were proven to be pre-existing to the 1/90 injury.)"

Exhibit 3, parenthetical material in the original.

The commission finds Dr. Fleeson's report more credible than Dr. Lukovsky's. Dr. Fleeson's opinion better reconciles the facts, including the chiropractic treatments before the work injury and the imaging test showing pre- existing degenerative disease. The commission notes that Dr. Fleeson originally conceded the possibility of work- related permanent disability, but with-held his opinion until he saw the January 1990 spine series. This is not a case of an independent medical examiner "shooting from the hip" to deny causation or disability.

Dr. Lukovsky's report, on the other hand, is rendered somewhat less credible by the fact that he assesses a 15 percent permanent partial impairment of the spine and pelvis. The commission infers that this rating, which affects "unscheduled" parts of the applicant's body, was meant to be compared to permanent total disability to the body as a whole. However, the commission notes that the administrative code provides a rating of 5 percent for a back injury treated by a successful laminectomy surgery. Section Ind 80.32 (11), Wis. Adm. Code. Here, of course, the applicant did not need surgery and was able to return to work without restrictions only ten days after the injury. Under these circumstances, a disability rating at 15 percent is excessive.

The commission therefore finds that, on April 30, 1991, the applicant reached an end of healing from the January 19, 1990 work injury. The commission further finds that the applicant reached the April 1991 healing plateau with no residual permanent disability from the January 19, 1990 work injury.

The next issue is medical expenses. The record contains two exhibits detailing medical treatment expenses. One, Exhibit C, lists chiropractic treatment from July 19, 1990 to June 15, 1992, as well as some bills for imaging tests. However, Exhibit C was not submitted at least 15 days in advance of the hearing as now required under new sec. 102.17 (8), Stats. The other, Exhibit D, was submitted well in advance of the hearing, and lists substantially the same chiropractic bills from May 1991 through June 1992. The employer agrees that Exhibit D is therefore admissible.

However, while Exhibit D is admissible, that does not mean the commission must automatically order the expenses in the exhibit paid. On this issue, the respondent submitted a certified and verified report from a Minnesota chiropractor, Paul Davis. Dr. Davis opined that if the applicant continued to have pain after six months of treatment, he should have been referred to another practitioner. He concluded:

"1. The clinical documentation in my opinion supports only the initial six months of care (July 19, 1990 through February 18, 1991.) All care and procedures rendered after that point lack clinical documentation to support ongoing care.

"2. The frequency of care provided during the initial six months of care in my opinion is reasonable and follows normal chiropractic protocol."

Since the bills in Exhibit D do not start until May 1991, one could argue that none of them were reasonable or necessary for treatment given Dr. Davis' opinion. On the other hand, the supreme court has held that medical treatment expenses incurred in good faith on the recommendation of a practitioner must be paid, even if another practitioner and the department or commission find the treatment either unnecessary or unreasonable. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972). On the third hand, however, the court of appeals has held that the Spencer rule does not apply when the treatment at issue was actually rendered for a condition that was not caused by the work injury. City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App., 1982).

It appears from the record that the respondent has paid the bills detailed in Exhibit D, or at least some of them. However, because the commission concludes that the applicant plateaued on April 30, 1990, with no residuals from the work injury, it concludes that medical treatment after that date was not for the work injury, but for the normal progression of the applicant's underlying degenerative back condition. Therefore, the commission declines to award medical expenses beyond those already paid by the employer.

The last issue is whether to leave this order interlocutory for continuing medical expenses. As stated above, however, the commission accepts Dr. Fleeson's opinion that the applicant reached a healing plateau without permanent residuals from the work injury. Therefore, the commission declines to hold its order open to pick up future medical expenses.

NOW THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. Accordingly, the application is dismissed.

Dated and mailed June 1, 1995
ND § 5.24  § 8.6

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The parties address three main issues in their briefs: (a) whether Dr. Lukovsky's opinion must be rejected as a matter of law because it rates permanent disability as a percentage of permanent partial impairment of the lumbar spine and pelvis; (b) whether Dr. Fleeson's report is internally consistent, and (c) whether the medical expenses in Exhibits C and D should be paid.

The first two issues may be dealt with simply. First, the commission did not accept Dr. Lukovsky's opinion for reasons unrelated to the fact he compared disability to the impairment of the lumbar spine or pelvis (rather than to the body as a whole.) Therefore, the commission does not reach the issue, except to note that in many cases it might well be appropriate to infer that an expression of disability "at the spine" or at other unscheduled area of the body means a comparison to "disability to the body as a whole" under sec. 102.44 (3), Stats. Second, the commission did not read Dr. Fleeson's reports, summarized above, as contradictory, but as with-holding a definite opinion on permanency until additional material could be reviewed.

Third, the commission declined to award medical expenses in Exhibit C, because the exhibit was not submitted in advance of the hearing as required under sec. 102.17 (8), Stats. As the applicant points out, an exception is permitted on a showing of good cause. However, since all of the documents in Exhibit C are dated more than 15 days before the hearing, and were submitted with respect to treatment received even earlier, the commission sees no good cause for their late submission. Nor has good cause been shown on any other ground. The applicant's allegation that the employer and insurer have not been prejudiced is no substitute for good cause. Finally, the reason the commission did not order payment of the expenses in Exhibit D is set out in the body of this decision.

cc: ATTORNEY MARK A SIEFERT
STILP COTTON & WELLS

ATTORNEY BOAD S SWANSON
MARCOVICH COCHRANE & MILLIKEN

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