STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JOEL K PIERCE, Applicant
PHONECO INC, Employer
THRESHERMENS MUTUAL INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 89066158
The administrative law judge issued his findings of fact and order in this case on April 18, 1995, following a hearing on February 15, 1995. The applicant 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, and an average weekly wage of $247.63.
The issues at the hearing were whether at the time of the alleged injury on September 22, 1989, the applicant was performing services growing out of and incidental to employment with the employer and whether his injury arose out of that employment. Also at issue were the nature and extent of disability from the alleged injury, and liability for medical expenses.
On appeal to the commission, the issues include the nature and extent of disability, and whether payment of disability is subject to assignment under sec. 102.27 (2)(a), Stats.
The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby affirms the administrative law judge's findings of fact and order, except as modified herein:
MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW
The first five paragraphs of the administrative law judge's Findings of Fact are affirmed and reiterated as if set forth herein.
After the fifth paragraph of the administrative law judge's Findings of Fact, insert the following:
"The applicant submits two practitioner's reports. The first is prepared by Allen G. Brailey, M.D., and is dated January 21, 1994. Dr. Brailey and his colleagues at the Gundersen Clinic provided treatment to the applicant on a sporadic basis following the work injury. In the practitioner's report, Dr. Brailey diagnosed disc herniation at L4-5, myofascial pain syndrome, and aggravation of pre- existing disc disease. He stated the September 22, 1989 work injury caused these disabling conditions directly, and as an aggravation, acceleration and precipitation of a pre-existing degenerative condition. He estimated permanent disability at 15 percent compared to disability to the body as a whole.
"However, Dr. Brailey attached a letter dated December 20, 1993, to his practitioner's report. In the letter, the doctor diagnosed "chronic low back pain, possible chronic disc herniation left at L4-5." This letter pre-dates the completion of the practitioner's report form by about one month. Dr. Brailey never explains why he later came to believe the applicant had actually suffered a herniated disc.
"The applicant was examined by Dr. Meythaler on February 17 and October 24, 1994. In his practitioner's report dated December 22, 1994, Dr. Meythaler opined that the September 22, 1989 work injury caused an L5 disc herniation with left lumbosacral radicular symptoms. He described causation as either direct, or as an aggravation, acceleration or precipitation of a pre-existing degenerative condition."
The sixth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.
The seventh paragraph of the administrative law judge's Findings of Fact is amended to delete the last sentence and, as amended, is affirmed and reiterated as if set forth herein.
After the seventh paragraph of the administrative law judge's Findings of Fact, insert the following:
"Dr. Brailey gives the somewhat equivocal diagnoses of a herniated disc caused by work injury and a possible chronic herniated disc. Of the two, the less definite diagnosis of a possible herniated disc seems better supported by the treatment notes and test reports from the Gundersen Clinic. The diagnosis of a possible chronic disc herniation, moreover, creates legitimate doubt as to whether the work injury caused permanent disability, and indeed, would require speculation to support that finding. Certainly, treating Dr. Sullivan's opinion on causation adds to that doubt. On this basis, the report of Dr. Rudy is accepted as more credible.
"Consequently, the applicant sustained three months of temporary total disability from the work injury. He is therefore entitled to twelve weeks, five days, of compensation at the weekly rate of $165.09 per week (two-thirds his weekly wage of $247.63). Sections 102.11 (1) and 102.43 (1), Stats. This works out to a total of $2,118.65 in temporary total disability.
"The applicant agreed to the protection of attorney fees under sec. 102.26, Stats. Fees are set at 20 percent of the amount in controversy under sec. Ind 80.43, Wis. Admin. Code. Fees in this case come to $423.73. In addition, costs of $801.29 have been established. The attorney fees and legal costs shall be deducted from the applicant's award and paid within 30 days.
"In addition, the applicant's award is subject to assignment under sec. 102.27 (2)(a), Stats. The assignment is required according to the terms of a "Notice of Income Withholding to Payor of Funds" made pursuant to the findings of fact, conclusions of law and order of a judge of the Minnesota Third Judicial District Court, filed November 4, 1992, under the caption Shirley A. Pierce v. Joel K. Pierce, case no. F4 - 84-839. See Exhibit 9. As a result, the sum of $561.60 (three months at $187.20 per month) shall be deducted from the applicant's award and paid to the Winona County, Minnesota, Department of Human Services, Child Support Unit, within 30 days."
The eighth paragraph of the administrative law judge's Findings of Fact is affirmed and reiterated as if set forth herein.
The administrative law judge's Order is deleted and the second paragraph of the Modified Order set out below is substituted therefor.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
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 Modified Order, the employer and its insurer shall pay all of the following:
(1) To the applicant, Joel K. Pierce, the sum of Three hundred thirty-two dollars and three cents ($332.03) for disability.
(2) To the applicant's attorney, Charles E. Hanson, the sum of Four hundred twenty-three dollars and seventy-three cents ($423.73) in fees and Eight hundred one dollars and twenty-nine cents ($801.29) as costs.
(3) To Winona County, Minnesota, Department of Human Services, Child Support Unit, the sum of Five hundred sixty-one dollars and sixty cents ($561.60) as assignment of benefits under sec. 102.27 (2)(a), Stats.
Dated and mailed December 11, 1995
Pamela I. Anderson, Chairman
Richard T. Kreul, Commissioner
David B. Falstad, Commissioner
a. The applicant's petition.
In his petition, the applicant asserts that the administrative law judge erred in ignoring medical evidence. The basis for this argument is that the administrative law judge did not set out the opinions of Drs. Meythaler and Brailey in his findings, and did not explain specifically why he failed to accept them. However, failing to specifically discuss medical opinions in a decision is not the same as failing to consider them. Nonetheless, for the sake of completeness only, the commission amended the administrative law judge's order to include a discussion of these reports.
The applicant also contends that Dr. Rudy, whose opinion the administrative law judge and the commission adopt, failed to consider or ignored key objective medical findings in his report. Specifically, the applicant is troubled by Dr. Rudy's failure to address the February 1990 CT scan. This scan, which did not include a myelogram, was interpreted by R. Travelli as almost certainly showing a disc herniation at L4-5. Of course, treating doctor Fischer reported that this CT scan only "showed evidence" of a disc herniation at that level, and treating doctor Sullivan diagnosed only a possible herniated disc at L4-5 on the basis of the scan. Exhibit A, Gundersen Clinic notes of February 13 and March 19, 1990.
Moreover, a subsequent MRI scan performed on March 28, 1990 on Dr. Sullivan's recommendation, and interpreted by Dr. Lautz of the Gundersen Clinic, showed "lateralization of the L4-5 disc bulging to the left effacing the fat anterior to the thecal sac and possibly causing slight mass effect to the L5 root." Dr. Lautz went on to report that these findings were not as impressive as those shown in the February 1990 CT scan. While Dr. Sullivan later interpreted the March 1990 MRI as showing an apparent mild herniation at L4-5, he too admitted this was not as significant as shown in the February 1990 CT scan. Under these circumstances, the commission is unwilling to conclude that Dr. Rudy's report is "fatally flawed," or must otherwise be rejected as incredible, because he did not give more weight to the February 1990 CT scan.
Nor does the commission accept the applicant's contention that Dr. Rudy ignored the objective evidence of a herniated disc or misreported the MRI report as stating there was no true impingement of the rootlet at L4-5. First, the March 1990 MRI was interpreted by Dr. Lautz as showing only bulging at L4-5; his report provided "objective evidence" that there in fact was no herniated disc. True, Dr. Sullivan interpreted the report to show an apparent herniated disc at L4-5, but Dr. Rudy was not bound to accept that interpretation. Further, the commission is not persuaded that Dr. Rudy's finding of "no true impingement of the rootlet" is necessarily inconsistent with Dr. Lautz's report of "possible slight mass effect" at the L5 root.
The employer, for its part, argues persuasively that Drs. Brailey and Meythaler did not appreciate the extent of the applicant's prior back complaints. The applicant also denied prior problems to Dr. Fischer, as described in the findings of fact. In addition, the commission notes that treating doctor Sullivan, who did have some knowledge of earlier back problems, opined that the September 1989 lifting incident only exacerbated the applicant's underlying disc disease, and did not cause the applicant's current problem. Further, as noted above, Dr. Brailey diagnosed chronic low back pain and possible chronic disc herniation at L4-5 in his December 20, 1993, letter. The commission, after reviewing the record in its entirety, is left with a legitimate doubt as to the relationship between the work injury and any permanent disability.
b. Minnesota court orders.
The respondent asks the commission to modify the administrative law judge's decision to order payment in compliance with two different orders issued by Minnesota tribunals:
(a) an uncertified "Ex Parte Order" signed by a Minnesota administrative law judge requiring the insurer to pay any proceeds, up to $24,379.61, into escrow with the Court Administrator for Minnesota's third judicial district to cover child support arrearages (Exhibit 8); and
(b) a certified "Notice of Income Withholding to Payor of Funds" from the Winona County Child support unit, demanding the insurer withhold the amount of $187.20 per month. This notice is made pursuant to an order from a judge of the Minnesota District Court, dated November 3, 1992, requiring child support payments of $150 per month increased by 20 percent to collect the applicant's arrearage in support payments . See Exhibit 9.
The question before the commission, then, is whether to subject the applicant's award to assignment on the basis of either of these orders.
In general, Worker's compensation awards may not be assigned, even to satisfy judgments on debt. Section 102.27, Stats. There are two exceptions. One permits recovery of public assistance which is not at issue here. The other exception, stated in sec. 102.27 (2)(a), Stats., allows the assignment of benefits as provided under sec. 767.265 (1), Stats.
Section 767.265 (1), Stats, in turn provides that orders and revised orders for child support under ch. 767, Stats., constitute assignments of benefits, including benefits under ch. 102, Stats. It also provides that the assignment shall be for an amount sufficient to ensure payment of the underlying order and to pay any arrearages due at a periodic rate not to exceed 50 percent of the amount of support due under the order so long as the addition of the amount towards arrearages does not leave the party below the federal poverty line.
The commission concludes that the Notice of Income Withholding and Order should be treated as equivalent to an order for support constituting an assignment under sec. 767.265 (1), Wis. Stats. As the respondent points out, sec. 767.265 (3h), Stats., requires payers of income to comply with support orders from other states similar to orders issued under sec. 767.265 (1), Stats. Because sec. 767.265 (1), Stats., describes the very type of order in Exhibit 9, the commission concludes it meets this requirement and should be enforced.
On this point, the commission considered the "uniform family support act" which both Wisconsin and Minnesota have enacted (see ch. 769, Stats.) This law deals specifically with the enforcement of child support income-withholding orders from other states. An employer is required to comply with income withholding orders issued in another state simply upon receiving a copy of the order by first class mail. When the validity or administrative enforcement of an out-of-state order is challenged, it must be registered by a competent Wisconsin tribunal. Registration of the order requires a sworn statement from the party seeking registration verifying the amount of the arrearage, as well as a certified copy of the order with any modifications. Sections 769.501 to 769.602, Stats. More importantly, registration requires a filing with a clerk of courts, and the registering tribunal in Wisconsin must be a court or court commissioner. Section 769.101 (14), (15) and (22) and 769.102, Stats.
In this case, the applicant's attorney objected to enforcement of the orders in Exhibits 8 and 9, contending they were in improper form and misstated the amount of the arrearages. However, the court order underlying the Notice of Income Withholding in Exhibit 9 is certified, and the order itself states that the applicant is more than $25,000 in arrears. The commission is satisfied that Exhibit 9, as certified, substantially complies with sec. 769.602 (1), Stats., and so would probably be registered if submitted to the appropriate tribunal. Although that has not been done in this case, sec. 796.103, Stats., provides that the remedies under ch. 769, Stats., are cumulative and do not affect the availability of remedies under other statutes. With respect to the Notice of Income Withholding and Order in Exhibit 9, sec. 765.265 (3h), Stats., provides an alternative remedy or basis for assignment by the commission.
In sum, the commission concluded it could, and in fact is required to, enforce the notice and order in Exhibit 9. The commission therefore ordered payment of $561.60 to Winona County. This is $187.20 per month for the three months of temporary total disability awarded by the administrative law judge, as affirmed by the commission.
On the other hand, the ex parte order in Exhibit 8 is not certified, and so does not substantially comply with sec. 769.602 (1), Stats. More importantly, however, the ex parte order is for the entire amount of the arrearage. It does not provide for a payment of the arrearages at a periodic rate not to exceed 50 percent of the support due under the order on which the arrearage is determined. Sections 767.265 (1) and 767.293 (4), Stats. Since the ex parte order would take the entire disability award up $24,379.61, it is not an assignment order of the type specified under sec. 767.265 (1), Stats. It therefore may not be enforced by this commission under secs. 767.265 (3h) and 102.27 (2)(a), Stats.
It is true that Wisconsin courts must give full faith and credit to the amount of arrearages stated in an order issued in another state, or to a judgment in an action affecting the family issued by a court in another state, under sec. 767.21 (1), Stats. However, giving full faith and credit to the ex parte order contemplates appropriate action under sec. 806.24, Stats., the "Uniform Enforcement of Foreign Judgments Act" which by its terms applies to any judgment or order of a court which is entitled to the full faith and credit in this state. This statute, too, requires filing of an authenticated copy of the foreign order or judgment. It also requires filing of the judgment with a clerk of the court in the county where the judgment is to be enforced, and specifically requires that no execution be made until 15 days after such filing. None of this was done here.
In short, while an authenticated copy of the Minnesota ex parte order in Exhibit 8 might become enforceable generally as set out in sec. 806.24, Stats., the fact remains the ex parte order is not equivalent to an assignment under sec. 765.265 (1), Stats.
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