P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 92066070

The administrative law judge issued his findings of fact and interlocutory order in this case on April 26, 1995, following a hearing on October 6, 1994. The applicant has submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) and the applicant both submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $226.88, and a July 14, 1992 compensable injury. The respondent conceded and paid one day of temporary disability and $124.50 in medical expenses.

The issues in dispute are the nature and extent of disability beyond that conceded. Liability for additional medical expenses is also at issue.

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 order, and substitutes the following therefor:


1. Work accident and medical treatment.

The applicant was born on November 29, 1972. She is five feet, eight inches tall, and weighs 134 pounds. She began working for the employer in April 1992 as a nursing assistant. She injured her back on July 14, 1992 while she and a coworker transferred a resident from a wheel chair to bed. The resident weighed 200 pounds and was unable to help the workers move her. The applicant and her coworker moved the resident manually because the resident did not want the worker to use a "hoyer lift" device.

Prior to her work injury, the applicant had been treated for scoliosis as a child and had injured her neck in a motor vehicle accident in March 1990. She also was kicked at some point in early 1990, resulting in low back and hip complaints. She treated at Kenny Chiropractic Health Center for both of these complaints from April 18, 1990 to January 25, 1991. The chiropractor's treatment notes deal more with the neck complaints. However, as the administrative law judge points out in his decision, she also complained of lumbar pain on a few occasions. On January 25, 1991, the treating chiropractor reported she was feeling "v.g." with no complaints that she was "discharged from care relative to car accident of 3-18-90."

The applicant also slipped and fell on ice in December 1991. She treated with her family doctor, D.E. Papendick, M.D., who reported that she landed on her neck and upper back. He reported low back pain in January 1992, but by March 1992 reported that her back was "OK," and that she could bend to the floor easily. However, the applicant returned with more low back pain on May 21, 1992, and again on June 19, 1992. Dr. Papendick did some chiropractic-like adjustments on these occasions.

The conceded work injury then occurred on July 14, 1992. The applicant saw John J. Beck, M.D., of the Door County Medical Center on July 16. His initial treatment note describes an injury to the applicant's lower back on July 14 when she lifted a patient. He reported symptoms of pain in the "LS level" radiating toward the coccyx. He stated the pain was aggravated by twisting to the left, but not by coughing, sneezing or passing over bumps while driving.

Dr. Beck specifically notes: "Hx back problems in past has had x-rays Dr. Kenny." Thus Dr. Beck was aware of the applicant's prior back problems, presumably from her oral history. His note also refers to the March 1990 auto accident, stating that the accident resulted in a neck, not back, injury. See respondent's Exhibit 3.

Dr. Beck initially diagnosed a lumbar strain and a "quite narrow disc space." He recommended conservative treatment, including exercises. He put her on light duty work and asked her to return in 5 to 7 days.

After the applicant returned on July 21, 1992, she told the doctor her back was not improving. She noticed increased pain when she picked up her baby, and felt sharp, shooting pain when she coughed or sneezed. She denied numbness or tingling. The doctor continued to diagnose a segmental strain, but noted he would consider scheduling an MRI.

When the applicant returned on July 24, 1992, Dr. Beck noted improvement. Although it hurt to flex forward, the applicant's lateral bending was excellent. The doctor continued to note slow improvement on August 3, 1992, but noted stiffness and shooting pain, particularly upon rising in the morning.

The applicant admitted she had recovered enough by August 8 or 9 that she was able to go water-skiing. In his note for August 10, 1992, Dr. Beck again noted the applicant was doing well, that she did not get pain with a cough or sneeze, but that she sometimes had numbness in her fingers and thumb. He noted she could bend to get her fingers 4 inches from the floor with her knees locked. He released her to work without restrictions. This release is at Exhibit 6.

The applicant returned to full duty for one day, August 11, 1992, before experiencing an increase in pain. On August 13, 1992, she told Dr. Beck her back hurt all the time. She also stated her pain had increased to the point that she felt as she did when she had first seen Dr. Beck a month earlier. The doctor took her off work and ordered an MRI.

The MRI showed a herniated disc or "left posterolateral herniated nucleus pulposus at the lumbosacral level," according to the radiologist who interpreted it. See August 17, 1992 MRI report, Exhibit 3.

Dr. Beck diagnosed an HNP [herniated nucleus pulposus] with pain but "minimal root signs" such as paresthesias or tingling. He referred the applicant to a neurosurgeon, Steven S. Weinshel, M.D. He also released the applicant to light duty work.

The applicant in fact returned to work on light duty until September 15, when she quit her job. Her termination slip (Exhibit 8) indicates she quit in part because of physical strain but also so she could attend school.

Meanwhile, the applicant went to see Dr. Weinshel on referral. Exhibit B contains a questionnaire the applicant completed when she first saw Dr. Weinshel on September 1, 1992. She gave a history of transferring a patient, feeling a pull in her low back and dull pain, and feeling symptoms of low back pain thereafter. She also complained of low back pain and left leg pain and denied previously having left leg pain before the work injury.

On October 4, Dr. Weinshel discussed surgery with the applicant. On October 9, 1992, Dr. Weinshel excised the left L5-S1 disc herniation via left side-sided hemilaminectomy. The applicant was released from the hospital on October 11, and by December 1, 1992 was having no further radicular symptoms. Dr. Weinshel released her to work on that date, subject to a permanent lifting restriction of 25 to 30 pounds. Exhibits A and C.

However, on February 19, 1993, the applicant returned to Dr. Weinshel complaining of recurrent pain in the left leg. The doctor ordered another MRI which showed a possible recurrent disc at the left L5-S1 on March 1, 1993. A repeat disc excision was done on March 4, 1993. Although there were no post-surgical complications, the repeat excision did not help her pain, and Dr. Weinshel ordered another MRI. This was done on May 7, and showed no evidence of recurrent disc herniation although it did show scar tissue formation.

At this point, Dr. Weinshel referred the applicant to Michael Wempe, M.D., of the Bellin Pain Center. Dr. Wempe reported that when the applicant was referred to him on or about May 28, it was thought that applicant's symptoms might be from compression caused by scar formation from the surgeries. He tried epidural injections to reduce any swelling and thus lessen the impact of compression from the scar tissue. This gave only some slight temporary relief. He ended his treatment with the thought that surgery would probably not be necessary if the scar tissue could resolve itself. See Wempe's letter dated July 16, 1993 in Exhibit E.

The applicant returned to Dr. Weinshel on October 14, 1993, still complaining of leg pain. The doctor prescribed a back brace built. When that provided significant relief of pain, the doctor discussed the possibility of treatment by fusion. An L5 to S1 fusion with pedicle screw fixation was done on December 16, 1993.

The applicant recovered from the surgery normally, reporting good relief from her leg pain and decreasing back pain during visits to Dr. Weinshel in January, February and April 1994. Sometime after May 31, 1994, however, the back and leg pain returned. The doctor ordered imaging tests which showed the fusion hardware was in good placement and that there were no herniations.

Dr. Weinshel also referred the applicant to Christopher Van Saders, M.D., for a second opinion. Dr. Saders confirmed that the fusion hardware was in good position, but indicated her fusion had not yet solidified. He recommended imaging tests to confirm this. Dr. Weinshel then assessed permanent disability and set permanent work restrictions in a letter dated October 4, 1994.

2. Expert medical opinion in practitioner's reports.

The file contains four practitioner's reports offering expert medical opinions.

Treating doctor Beck opined in applicant's Exhibit E that the applicant suffered a herniated disc upon lifting the patient on July 14 when she experienced a pull in her back. He suggested causation both by direct action from the lifting accident and by aggravation, acceleration and precipitation of a pre-existing degenerative condition. When he issued his opinion it was too soon to rate permanent partial disability.

Treating doctor Weinshel's opinions are contained in applicant's Exhibits B and H. In sum, he opined that the applicant was totally disabled from the work injury from October 9, 1992 through October 4, 1994, and that she plateaued, after three surgeries, with a permanent partial disability at 10 percent compared to permanent total disability. He set a permanent restriction against lifting more than 25 pounds. He specifically opined that the applicant's L5-S1 disc herniation was directly caused by the lifting incident at work on July 14, 1992.

Independent medical examiner Robert H.N. Fielden, M.D., opined that the applicant suffered a permanent partial disability rated at 7 percent compared to disability to the body as a whole. He opined that the work injury permanently aggravated, accelerated and precipitated a pre-existing degenerative condition beyond its normal progression. He specifically notes in his medical history pre-injury instances of back pain, referring in his "review of medical records" to pre-injury treatment notes by both Dr. Papendick and chiropractor Kenny. Dr. Fielden writes:

"It would appear that her July 14, 1992 injury sustained at the Dorchester Nursing Home was a significant aggravation of an underlying problem, based on the history of prior back complaints. The injury could have changed a degenerative or damaged disc into a herniated fragment. I believe she has reached her healing plateau. The October 1992 surgery was the natural consequence of the July 14, 1992 injury. She appeared to reach a healing plateau by January, 1993. Since she did have significant relief with the first one and then did have a second recurrence through the same site within a short period of time, this is probably either a residual fragment or a small retained fragment that slowly moved out through the opening in the disc and caused problems. I would probably have to relate that all to the injury. She has a 7% disability to the body as a whole related to surgeries.

"I recommend she avoid working in conditions which involve heavy lifting, especially reach in a bent forward position or long period of sitting or standing without the ability to at least get up and change position."

Respondent's Exhibit 1, report dated September 1, 1993.

The respondent also submits a report from another independent medical examiner, James G. Gmeiner, M.D. He also details the applicant's prior complaints. Dr. Gmeiner writes:

"The medical records indicate a prior history of low back discomfort that predated a work related incident of July 14, 1992. The complaints following the work related incident were consistent with a soft tissue strain to the lumbar spine. Evaluation July 16, 1992 indicates a negative straight leg raise. Hamstring pulling with straight leg raise on the right August 13, 1992. I am of the medical opinion to a reasonable degree of medical probability that the sciatic complaints that gradually developed are consistent with the natural manifestation of a degenerative process involving the annulus with eventual disc herniation. It is clearly documented in the medical records following the work related incident of July 14, 1992 there were no specific signs indicative of irritation of the sciatic nerve with the straight leg raising and neurologic examination being unremarkable. The claimant had recovered from the soft tissue strain and with time she then developed sciatic complaints. Such a history is consistent with the progression of degenerative process involving the disc with a past medical history indicating a pre-existing condition of the lumbar spine. The work related incident of July 14, 1992 was consistent with a soft tissue strain and did not temporarily or permanently aggravate, accelerate or precipitate a pre- existing condition beyond its normal progression."

3. Discussion and award.

The commission adopts as credible the opinions of Drs. Beck, Weinshel and Fielden that the work injury of July 14, 1992 caused the applicant to sustain temporary and permanent disability and caused the need for the medical treatment outlined in part above. On the issue of causation, the commission finds the report of independent medical examiner Fielden especially persuasive. In reaching this conclusion, the commission observes that Dr. Fielden had access to the applicant's pre-injury medical records and in fact quotes portions of them.

Dr. Fielden, of course, offers the opposite conclusion concerning causation than Dr. Gmeiner. However, the record contains substantial reasons for crediting Dr. Fielden's opinion over Dr. Gmeiner's. First, of course, the treating doctors are of pretty much the same opinion as Dr. Fielden, particularly Dr. Beck who also referred to the prior back symptoms in his notes. Second, the MRI showed the disc herniation only one month after the work injury that caused Dr. Beck to impose work restrictions. Third, the applicant was only 19 years old when the fragment was discovered and had been able to work without restriction as a nursing assistant immediately prior to the work injury, leading to the conclusion that herniation by trauma is a more reasonable diagnosis than herniation by natural degenerative process or by some earlier non-work event.

True, between the July 14 injury and the August 17 MRI showing a herniated disc, the applicant experienced some improvement. The respondent points out that she was able to water-ski on August 8, and reported symptom improvement a couple days later on August 10 when Dr. Beck ended her light duty and released her to work without restrictions. However, the applicant's brief period of recovery in mid-August does not create a legitimate doubt in this case. First, no expert opined that the applicant's brief amount of water-skiing, two days before her release without restriction on August 10, caused her disc to herniate or meant that her disc could not have herniated from the July 14 work injury. Nor may the commission reach such a conclusion based on the physical activity of water-skiing alone. Leist v. LIRC, 183 Wis. 2d 450, 458-59 (1994).

The respondent also notes that the applicant did not have radicular complaints or neurological findings indicative of radiculopathy when she first saw Dr. Beck. Specifically, Dr. Beck reported a negative leg raising test. However, the straight leg raising orthopedic/neurologic test does not appear to be an infallible predictor of disc herniation. Indeed, it appears from Dr. Beck's notes of August 17 that the straight leg raising [SLR] test was still negative on that date , even though the MRI done two days earlier showed a herniated disc.

In reaching its conclusion, the commission specifically considered the applicant's history of prior back problems, as well as complaints of bilateral leg problems two years before the work injury when the applicant first saw chiropractor Kenny. Again, Drs. Beck and Fielden expressly mentioned the applicant's history of back pain in their notes or reports. Despite that history, the applicant was able to work as a nursing assistant until the work injury. Shortly after the injury, the applicant experienced symptoms that led to the discovery of the herniated disc. Thus, the commission is not left with a legitimate doubt concerning causation on this basis.

The next question is the extent of disability caused by the work injury. The applicant seeks temporary total disability from August 12 to August 18, 1992 and for the entire period October 9, 1992 to October 4, 1994. However, given Dr. Weinshel's release to work as of December 1, 1992, the commission concludes she reached a healing plateau as of that day. She then experienced a renewed period of temporary disability beginning with her repeat excision surgery on March 4, 1993, and ending with her healing plateau from this surgery on August 11, 1993. See Dr. Fielden's report, Exhibit 1. The applicant suffered another period of renewed disability thereafter, beginning on the date of the third surgery on December 16, 1993 until she recovered from her third surgery on October 4, 1994. See Dr. Weinshel's October 4, 1994 letter in Exhibit H.

The applicant is entitled to temporary total disability for the periods from August 12 through August 17, 1992 (5 days), from October 9 through November 30, 1992 (7 weeks and 3 days), from March 4 through August 10, 1993 (22 weeks and 5 days), and from December 16, 1993 through October 3, 1994 (42 weeks and 4 days). Given the conceded wage of $226.88, the applicant is entitled to disability at the weekly rate of $151.25 for these periods, amounting to a total of $11,167.29.

The commission further finds that following the end of her healing, the applicant was left with a residual functional permanent partial disability at ten percent compared to permanent disability to the body as a whole. This rating is based on Dr. Weinshel's opinion, which seems quite reasonable given the three surgeries made necessary by the work injury. The applicant is thus entitled to 100 weeks of permanent partial disability at $144 per week (the maximum rate for injuries occurring in 1992), for a total of $14,400 accruing as of October 4, 1994.

The combined total for permanent partial disability and temporary total disability under this order equals $25,567.29. As of August 14, 1995, 45 weeks of permanent partial disability (amounting to $6,480) have accrued; 55 weeks (amounting to $7,920) remain unaccrued. In addition, all of the $11,167.29 in temporary total disability has accrued. Thus, the amount of the award accrued as of August 14, 1995 under this order is $17,647.29.

The applicant approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional disability benefits awarded under this decision. The future value of the total fee is thus $5,113.46 (20 percent of $25,567.29). Only part of the fee has yet accrued, specifically the $3,529.46 attributable to the $17,647.29 in benefits accrued to August 14, 1995. As a result, the unaccrued portion of the fee ($1,584.00) is subject to an interest credit of $58.21. Subtracting the interest credit from the future value of the total fee yields a present value for the total fee of $5,055.25. The applicant's attorney has also established $195 in legal costs. The fee and costs shall be deducted from the applicant's award and paid within 30 days.

The amount due the applicant within 30 days is $13,922.83. This equals the total amount of benefits accrued as of August 14, 1995 ($17,647.29), less the accrued portion of the attorney fee ($3,529.46), and less legal costs ($195).

The amount remaining to be paid to the applicant as it accrues is $6,336. This is determined by starting with the unaccrued portion of the award ($7,920) and subtracting the future value of the unaccrued attorney fee ($1,584). This amount shall be paid to the applicant in monthly installments of $624 beginning September 14, 1995.

The next issue is the payment of reasonable expenses for necessary treatment to cure and relieve the effects of the work injury. The commission concludes that all of the submitted treatment expense is compensable under sec. 102.42, Stats. Specifically, the applicant incurred numerous medical expenses as follows:

1. From Door County Memorial Hospital, $850, all of which remains outstanding.

2. From Steven Weinshel, $14,931.42, all of which remains outstanding.

3. From St. Vincent Hospital, $21,070.75; of which $17,075.41 has been paid under the Wisconsin Medical Assistance Program (hereafter, Medical Assistance), $3,888.29 has apparently been charged off, and $107.05 remains outstanding.

4. From John Beck, M.D., $340.00; of which $183.56 has been paid by Medical Assistance and the remainder has apparently been charged off.

5. From Lakeshore Rehabilitation, $447.50; of which $323.00 has been paid by Constitution States Service Company, and $124.50 remains outstanding.

6. From Brian Wake, M.D., $227.50; of which $216.92 has been paid by Medical Assistance, and the remainder has apparently been charged off.

7. From Green Bay Anesthesia Assoc., S.C., $4,075.00; of which $740.03 has been paid by Medical Assistance, and $3,334.97 remains outstanding.

8. From N.E. Wisconsin MRI Center, $2,288.00; of which $718.94 has been paid by Medical Assistance, $429.06 has apparently been charged off, and $1,140 remains outstanding.

9. From Michael J. Wempe, M.D., $1,360; of which $1,248.00 has been paid by Medical Assistance, and $112.00 remains outstanding.

10. From Pathology Physicians, Ltd., $81.20; of which $23.30 has been paid by Medical Assistance, and $57.90 remains outstanding.

11. From Bellin Memorial Hospital, $1,203; of which $719 was paid by Medical Assistance, and $484 remains outstanding.

12. From Willi Martens, M.D., $18.00; of which $10.62 was paid by Medical Assistance, and the remainder has apparently been charged off.

13. From Shopko Pharmacy, $153.62; of which $139.49 was paid by Medical Assistance, and the remainder has apparently been charged off.

14. From Algoma Pharmacy, $147.74; of which $111.23 was paid by Medical Assistance, and the remainder has apparently been charged off.

15. From North Shore Radiology, $344.00; all of which remains outstanding.

16. From West Side Clinic, $248.00; of which $85.24 has been paid by Medical Assistance, and $162.76 remains outstanding.

17. From Rehab Resource Group, $2,144, all of which remains outstanding.

18. From Green Bay Radiology, $25.00; of which $14.33 has been paid by Medical Assistance and the remainder has apparently been charged off.

19. The Brace Center, $450; of which $321.11 has been paid by Medical Assistance and the remainder of which has apparently been charged off.

20. Bellin Anesthesia Assoc., $705.00, all of which remains outstanding.

The applicant also documented medical mileage of 1,642 miles prior to January 1, 1994 (compensable at a rate of $0.24 per mile), and 3,726 miles after January 1, 1994 (compensable at a rate of $0.26 per mile), for a total of $1,362.84.

Finally, jurisdiction is reserved on the issues of additional permanent disability determined on the basis of loss of earning capacity, possible future disability, and possible future medical expense. As to the issues decided hereunder, however, the commission's decision is final.

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


The findings and order of the administrative law judge are reversed.

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

(1) To the applicant, Tara Anderegg, the sum of Thirteen thousand ninety hundred twenty-two dollars and eighty-three cents ($13,922.83) for accrued disability compensation, and One thousand three hundred sixty-two dollars and eighty-four cents ($1,362.84) for medical mileage.

(2) To the applicant's attorney, William P. Kopish, the sum of Five thousand fifty-five dollars and twenty-five cents ($5,055.25) as attorney fees, and One Hundred ninety-five dollars ($195) as legal costs.

(3) To Door County Memorial Hospital, the sum of Eight Hundred fifty dollars ($850.00).

(4) To Steven Weinshel, M. D., the sum of Fourteen thousand nine hundred thirty-one dollars and forty-two cents ($14,931.42).

(5) To St. Vincent Hospital, the sum of One hundred seven dollars and five cents ($107.05).

(6) To Lakeshore Rehabilitation, the sum of One hundred twenty-four dollars and fifty cents ($124.50).

(7) To Green Bay Anesthesia Associates, the sum of Three thousand three hundred thirty-four dollars and ninety-seven cents ($3,334.97).

(8) To N.E. Wisconsin MRI Center, the sum of One thousand one hundred forty dollars ($1,140.00);

(9) To Michael J. Wempe, M.D., the sum of One hundred twelve dollars ($112.00).

(10) To Pathology Physicians, Ltd., the sum of Fifty-seven dollars and ninety cents ($57.90);

(11) To Bellin Memorial Hospital, the sum of Four hundred eight-four dollars ($484.00).

(12) To West Side Clinic (Van Saders), the sum of One hundred sixty-two dollars and seventy-six cents ($162.76).

(13) To Rehabilitation Resource Group, the sum of Two thousand one hundred forty-four dollars ($2,144.00).

(14) To Bellin Anesthesia Assoc., the sum of Seven hundred five dollars and no cents ($705.00).

(15) To Constitution States Service Co., the sum of Three Hundred twenty three dollars and no cents ($323.00).

Beginning on September 14, 1995, and continuing on the fourteenth day of each month thereafter, the employer and the insurer shall pay the applicant, Tara Anderegg, the sum of Six hundred twenty-four dollars and no cents ($624.00) each month until the sum of Six thousand three hundred thirty six dollars and no cents ($6,336.00) has been paid.

Dated and mailed August 11, 1995

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner


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 first stated that the applicant's reply brief inaccurately reported that the applicant testified her pre-injury back pain was a "different" pain in a "different" location. The administrative law judge stated his notes showed that the applicant testified only that her pre-injury symptoms were "not as bad or the same." See page 3 of the synopsis of the hearing testimony. The administrative law judge then reiterated his conclusion that the doctors who found work causation did so on an inaccurate medical history. He also pointed out that the applicant had complained of leg pain in April 1990 when she saw chiropractor Kenny. The administrative law judge concluded that, given all these factors, he was left with a legitimate doubt.

The commission, however, cannot agree. As explained above, the commission cannot conclude that the opinions of the three doctors who found causation must be rejected as based on flawed medical histories. Nor does the existence of pre-injury back and leg symptoms create a legitimate doubt, given the opinions of Drs. Beck and Fielden that the applicant's work accident aggravated, accelerated and precipitated a pre-existing degenerative condition. Further, the notation of bilateral leg pain in April 1990 does not create a legitimate doubt in the mind of the commission, especially since Dr. Gmeiner did not mention the leg pain in his report or attach any special significance to it.

Finally, the respondent's post-hearing brief stated that the applicant received AFDC payments during her temporary disability. The respondent therefore requested that any disability award be distributed "pursuant to sec. 102.27 (2)(b), Stats., or include a statement that the applicant's award is subject to a government lien." However, the commission found no claim for reimbursement from a governmental unit in the record, so it does not direct payment under sec. 102.27 (2)(b), Stats., for recovery of AFDC or medical expenses under this order. Eugene Bigus v. Consolidated Paper, Claim No. 72087900 (LIRC, March 8, 1995) and Maria Marta Serena v. Richard Gagas, Claim No. 91055298 (LIRC, June 15, 1993). On the other hand, sec. 102.27 (2)(b), Stats., provides that where a governmental unit provides public assistance to pay medical costs or living expenses related to a worker's compensation claim, and the governmental unit has given the parties to the claim written notice stating that it provided the assistance and the cost of the assistance provided, then the employer or insurance carrier owing compensation shall reimburse that governmental unit any compensation awarded or paid. The commission is of the opinion that such a statutory obligation survives this order.

Appealed to Circuit Court. Affirmed June 24, 1996.

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