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

WILLIE SEBREE, Applicant

CEMENTATION COMPANY OF AMERICA, Employer

LUMBERMENS MUTUAL CASUALTY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 86029953

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on March 24, 1994, following a hearing on December 22 and the record was closed on January 3, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $588.40 and a February 3, 1986 compensable injury. The respondent conceded and paid temporary total disability from February 4, 1986 to April 9, 1986 in the amount of $3,070.67. No permanent partial disability has been conceded or paid. The issues in dispute include 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. The commission hereby sets aside the administrative law judge's Findings of Fact and Interlocutory Order, and makes the following:

FINDINGS OF FACT

This case arises from a February 3, 1986 conceded work injury that occurred when the applicant was preparing a hole to insert dynamite. He stumbled and accidentally increased the air pressure in a blow pipe he was using to clear dirt and rocks from the hole. The increased pressure in the blow pipe knocked the applicant down, causing him to fall on some rocks. He injured his back and was hospitalized for about 18 days.

While hospitalized, the applicant was treated by Joseph Armah, D.O. A CT scan done in the hospital showed no evidence of definite spinal disc herniation. According to the applicant's testimony, he suffered a mild heart attack while hospitalized, and the hospital records do mention an irregular electrocardiogram with "right branch block". Further, upon release from the hospital the applicant was treated for diabetes in April 1986.

Following his release from the hospital, the applicant was referred to Lee M. Tyne, M.D., for his continuing back pain. Dr. Tyne's note dated September 15, 1986 stated that the applicant had been off work since the February 1986 accident, and that he was hospitalized until March of 1986 and again in August 1986 for back pain. X-rays taken on September 15, 1986, showed evidence of degenerative disc disease at L4-5 and L3-4, above the site of an earlier L5 to sacrum fusion (performed by Dr. Tyne following a 1974 back injury.) Dr. Tyne concluded his September 15 note by stating that the applicant's six month history of back pain that was not improving suggested that the fusion might have to be extended into higher levels.

Dr. Tyne's notes from October 1986 indicate that a CT scan and myelogram showed a herniated intervertebral disc with spinal instability. The applicant then stopped treating with Dr. Tyne because he did not wish to have the surgery Dr. Tyne recommended, and went back to Dr. Armah. See August 17, 1988 transcript, pages 8, 23 and 34. However, the applicant's attorney could not get a report of treatment notes from Dr. Armah as of the date of the hearing.

The respondent obtained a practitioner's report dated March 27, 1986, from its independent medical examiner, Gerald Zupnik, M.D. He stated that the applicant did not fall backward "hard" and noted the absence of immediate radicular symptoms. He described the work injury as trivial, and concluded that it did not result in permanent disability. Dr. Zupnik also noted the 1976 injury leading to the fusion and a 1984 back strain. He concluded that the applicant should not lift more than 50 or 60 pounds, based solely on the applicant's preexisting condition.

The respondent paid temporary total disability from the date of the injury through April 9, 1986. On June 10, 1986, the applicant filed an application for hearing seeking continuing temporary total disability benefits. A hearing was held on the application on August 17, 1988. At that hearing, the applicant sought permanent total disability from the date of the injury and presented a report from a vocational expert, Henry Lenard, to substantiate his claim.

In his report dated October 20, 1987, Mr. Lenard noted the applicant's extremely limited academic skills and his prior history of heavy labor. Indeed, the applicant's testimony at the 1988 hearing indicates he is functionally illiterate. Mr. Lenard thus opined that the applicant could not "enter any type of work setting" and that "the number of possible work outcomes for [the applicant] is extremely limited."

However, at the time of the August 17, 1988 hearing, no doctor had yet fixed permanent functional restrictions associated with the February 3, 1986 injury. Dr. Armah's records were unavailable; Dr. Tyne was recommending surgery when the applicant last saw him in 1986; and Dr. Zupnik opined that the applicant had recovered from the injury without disability. Because there was no basis for an assessment of permanent functional disability, or even a basis for finding that there was any permanent disability from the February 1986 accident, the administrative law judge presiding at the August 17, 1988 hearing dismissed the application. However, the dismissal order was interlocutory and the administrative law judge stated in his last finding of fact that:

"Because the applicant may be in need of additional medical treatment and may be entitled to additional disability, jurisdiction is reserved for such further findings and orders as may be warranted. [Emphasis added.]"

The commission affirmed this order without modification on January 27, 1989. The respondent appealed to circuit court, specifically contending that there was no basis for an interlocutory order on additional disability. The circuit court disagreed, finding support for the interlocutory order in the report from the October 1986 myelogram ordered by Dr. Tyne which showed evidence of a herniated disc.

On September 30, 1992, the applicant requested his "file be reopened" to award continued medical expenses and permanent disability benefits. As noted above, hearing was held on this claim on December 22, 1993. At the hearing, the applicant offered a practitioner's report from Dr. Tyne dated March 4, 1993. The practitioner's reports states that the February 1986 work incident caused:

"12% permanent partial total disability with regard to the back. He was assigned a 5% PPD in 1979. This is an additional 7% assigned.

"The patient is unable to bend, crawl, twist, squat, reach above shoulder level. Unable to lift significant amounts of weight. Has continuing pain in the back which has gradually gotten worse over the years since his second injury on 2/3/86."

Record from December 22, 1993 hearing, Exhibit C. In fact, the respondent paid permanent partial disability at ten percent compared to disability to the body as a whole for the 1974 injury and fusion surgery, so Dr. Tyne's opinion results in an additional 2 percent rating attributable to the 1986 injury.

Dr. Tyne issued his practitioner's report following an office visit by the applicant on February 10, 1993. A note from that February 10, 1993, visit states that Dr. Tyne had last seen the applicant on January 11, 1989, when he had assigned certain restrictions of:

"not bending, crawling, twisting, minimal squatting and reaching above shoulder level, some restrictions on working at unprotected heights, working in an atmosphere with marked changes in temperature and humidity, driving automobile equipment, with limitations placed on standing and sitting."

Dr. Tyne went on to state that these restrictions were not present before the February 3, 1986 work injury. However, he did not state whether the restrictions were permanent in his February 10, 1993 note.

Dr. Tyne's note for the January 11, 1989 evaluation of the applicant's back is also attached to the practitioner's report. The note states that Dr. Tyne had previously seen the applicant on October 14, 1986. The January 1989 note goes on to state:

"It is my impression that this man has a chronic low back pain and again it is most likely due to spinal stenosis and degenerative disc disease at L4-5, which is the level at the top of the fusion mass. This can be a degenerative disorder."

Significantly, this report does not mention any functional limitations on work activity.

The applicant also submitted the practitioner's report of Charles Supapodok, M.D., following an examination on March 2, 1993. Dr. Supapodok noted symptoms of severe pain in the back and numbness and tingling in both legs. He opined that the February 1986 work incident caused permanent disability by precipitation, aggravation, and acceleration of a preexisting degenerative condition beyond its normal progression. Dr. Supapodok also opined that the injury produced additional permanent partial disability (over the disability associated with the 1974 fusion) of 3 percent at L5-S1 and 3.5 percent at L4-5. This would result in additional functional disability of 6.5 percent. Dr. Supapodok advised the applicant not to return to any type of construction work.

Finally, the respondent offered an updated report from Dr. Zupnik following a reexamination on May 10, 1993. Dr. Zupnik essentially reasserted his earlier opinion that the applicant's current complaints are not related to work. He noted the applicant's previous back injuries in 1974 and 1984, the applicant's potential for diabetic neuropathy, and that while the applicant now complains of radiculopathy he did not immediately after the accident. Dr. Zupnik thus opined that the applicant had recovered from the February 1986 injury by March 1986 without permanent disability. Dr. Zupnik also opined that the applicant is currently totally disabled by his heart condition. He did admit that the applicant should avoid twisting and lifting over 20 pounds, and agreed with the 12 percent disability rating (which he pointed out would be 2 percent over the 10 percent from the 1974 fusion). However, he associated both the restrictions and the increased disability with the preexisting degenerative condition, not the February 1986 incident.

Both parties also submitted reports from vocational experts at the December 22, 1993 hearing. Mr. Lenard supplemented his 1987 report discussed earlier with a report dated April 21, 1993. This report discusses a recent interview with the applicant, the disability assessed by Dr. Supapodok, and the disability rating and restrictions set by Dr. Tyne. Mr. Lenard reasserts his earlier conclusion that the applicant was 100 percent disabled.

The respondent's vocational expert was, John J. Woest. Mr. Woest could not offer an opinion on loss of earning capacity based on the restrictions set by Dr. Tyne. Mr. Woest found Dr. Tyne's restrictions ("Patient is unable to bend, crawl, twist, squat, reach above shoulder level ... unable to lift significant amounts of weight...") too vague. He did opine that the applicant suffered an 80 percent loss of earning capacity based on Dr. Zupnik's restrictions. Mr. Woest went on to note that since Dr. Zupnik's restrictions are associated with heart disease or the underlying degenerative condition rather than the work injury, loss of earning capacity based on his restrictions would not be compensable.

The commission, like the administrative law judge, adopts the opinion of treating physician Tyne. First, Dr. Tyne, as a treating physician, had a greater familiarity with the applicant's condition than Dr. Zupnik. Second, Dr. Tyne opined that the applicant's disability is work-related, noting that the applicant could do very heavy labor until the time of the February 3, 1986 work injury. The commission finds his opinion on this point more credible than Dr. Zupnik who assigned the applicant's permanent disability solely to the applicant's pre-existing condition, unaffected by the February 3, 1986 injury. The commission therefore finds that the applicant sustained an additional 2 percent compared to disability to the body as a whole, caused by the February 3, 1986 work injury.

Dr. Tyne also opined that the applicant's disability is progressive; that it continued to worsen after the incident. Specifically, Dr. Tyne stated the condition has "gotten worse over the years since the second back injury of 2/3/86." Consequently, the permanent restrictions set by Dr. Tyne in his March 4, 1993 report are also adopted and shall be considered in determining the applicant's loss of earning capacity.

The next issue is whether, given these functional restrictions, the applicant has suffered a permanent and total impairment of earning capacity. This issue turns on the applicability of the "odd-lot" rule. According to the supreme court, the odd-lot doctrine is primarily an evidentiary rule. Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977). The court of appeals summarized the Balczewski decision as stating that:

"once the claimant prima facie proves 100 percent disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate 'that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity.... If evidence of the degree of physical disability coupled with other factors 'such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available."

Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989).

The applicant was born on December 7, 1930. The highest formal education level that he completed was third grade. He has never obtained a GED. Academic testing performed by the applicant's vocational expert revealed reading, spelling and math skills at no higher than a third grade level. He left school after the fifth grade and has not received any formal vocational training.

The applicant has not returned to work since 1986, and in 1987 began receiving social security disability benefits. Virtually all of his previous work experience was in deep tunnel construction. The vast majority of his previous work duties were manual unskilled labor positions in the heavy work category of the Dictionary of Occupational Titles. The restrictions imposed by Dr. Tyne precluded him from full-time employment, including employment in sedentary and light duty work. Given the applicant's age, education, previous work experience and physical restrictions, the applicant is restricted to the extent that he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist.

However, the permanent functional restrictions leading to the loss of earning capacity were not established until Dr. Tyne's practitioner's report dated March 4, 1993. While Dr. Tyne's February 10, 1993 note says he imposed restrictions in January 1989, neither his January 1989 note nor his February 1993 note actually sets permanent restrictions. Further, because temporary total disability was neither proven nor claimed between the August 17, 1988 hearing and March 4, 1993 hearing, no temporary total disability is awarded during that period.

Accordingly, the applicant sustained permanent total disability as a result of the compensable back injury of February 3, 1986, and the disability began on March 4, 1993, when Dr. Tyne first set out the applicant's permanent restrictions.

A total of $29,939.00 has accrued in permanent total disability benefits as of December 1, 1994 (91 weeks at $329 per week). A twenty percent attorney fee on the accrued disability is due in the amount of $5,987.80. The attorney is also entitled to costs of $1,085. This leaves the sum of $22,866.20 payable to the applicant as of December 1, 1994.

Beginning on January 1, 1995, and continuing on the first day of each month thereafter up to and including October 1, 2002, the applicant is entitled to $1,140.53 per month and the applicant's attorney is entitled to a fee of $285.13 per month.

Beginning on November 1, 2002, and continuing on the first day of each month thereafter, the applicant is entitled to $1,425.66 per month for as long as he may live.

The final issue is liability for medical expenses. The applicant incurred the reasonable medical expenses for treatment to cure and relieve him from the effects of his work injury, for which the respondent is liable. These expenses include the sum of $280 from Dr. A. W. Bhatti and the sum of $42.90 from Dr. Thomas Roskos. In addition, the respondent is liable for non-industrial payment of medical expenses by Construction Workers Union Local 113 in the sum of $882.03 and by Medicare in the sum of $1,836.06. Because Dr. Tyne indicated that the applicant's condition was progressive, the commission reserves jurisdiction solely with respect to future medical expenses.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

INTERLOCUTORY ORDER

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

(1) To the applicant, Willie Sebree, the sum of Twenty-two thousand eight hundred sixty-six dollars and twenty cents ($22,866.20) for permanent total disability.

(2) To the applicant's attorney, Kellet Koch, the sum of Five thousand nine hundred eight-seven dollars and eighty cents ($5,987.80) as attorney fees and One thousand eighty-five dollars (1,085) as costs.

(3) To Dr. A. W. Bhatti, the sum of Two hundred eighty dollars ($280);

(4) To Dr. Thomas Roskos, the sum of Forty-two dollars and ninety cents ($42.90);

(5) To Construction Worker's Local 113, the sum of Eight hundred eighty-two dollars and three cents ($882.03) as reimbursement for its non- industrial payment of medical expenses; and

(6) To Medicare the sum of One thousand eight hundred thirty-six dollars and six cents ($1,836.06) for its non-industrial payment of medical expense.

Beginning on January 1, 1995 and continuing on the first day of each month thereafter up to and including October 1, 2002, the employer and its insurer shall pay:

(1) To the applicant the sum of One thousand one hundred forty dollars and fifty-three cents ($1,140.53) each month for permanent total disability; and

(2) To the applicant's attorney, the sum of Two hundred eighty-five dollars and thirteen cents ($285.13) each month for fees, provided that the applicant is still living.

Beginning on November 1, 2002, and continuing on the first day of each month thereafter, the employer and the insurer shall pay the applicant the sum of One thousand four hundred twenty- five dollars and sixty-six cents ($1,425.66) per month for life.

Jurisdiction is reserved for further orders consistent with this decision.

Dated and mailed December 22, 1994

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The briefs of the respondent focus on its contention that Administrative Law Judge Mitchell erred in proceeding to the issue of permanent disability and medical expenses at the December 22, 1993, hearing. According to the respondent, those issues were finally decided in the August 31, 1988 decision of Administrative Law Judge Phillips. However, Judge Phillips' Interlocutory Order expressly left open the question of additional disability. The Interlocutory Order was affirmed by the commission, circuit court and court of appeals, despite the respondent's argument that an interlocutory order was an abuse of discretion.

Further, as the applicant points out in its brief, the department may find that a back injury has not caused permanent disability at the time of a hearing, but issue an interlocutory order to retain jurisdiction to rule on permanent disability (including lost earning capacity) arising from the work injury in the future. This is exactly the situation in Vernon County v. ILHR Department, 60 Wis. 2d 736 (1973).

In Vernon County, the supreme court first accepted the general proposition that the applicant has the burden of proving permanent partial disability and that the department may not award permanent partial disability on speculation and conjecture. However, the court stated that the department in that case did not actually find permanent partial disability. According to the court:

"The department said, in effect, that from the evidence a permanent partial disability resulting from the present injury may manifest itself in the future and we [the department] are retaining jurisdiction to be able to determine whether this occurs."

Vernon County, at 60 Wis. 2d 739-40.

Finally, the commission did not confer with the administrative law judge concerning the credibility and demeanor of the witnesses, since its modification of the administrative law judge's Findings and Order was not based on the witness credibility. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972).

cc: ATTORNEY CORI LYNN CROGAN
HILLS & HICKS SC

ATTORNEY KELLETT J KOCH
EISENBERG WEIGEL CARLSON BLAU REITZ AND CLEMENS SC

Appealed to Circuit Court. Affirmed September 12, 1995.

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