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

RICHARD M DECRAENE, Applicant

UNITED PARCEL SERVICE FITCHBURG, Employer

LIBERTY MUTUAL INS COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92050408

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on July 19, 1994, following a hearing on April 26, 1994. The applicant 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 submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $950. The respondent also paid temporary total disability from August 12, 1992 to February 16, 1993. The issues are whether and when the applicant sustained an injury, whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether the accident or disease causing injury arose out of the applicant's employment. If a compensable injury is established, the issues also include the nature and extent of disability beyond that conceded. Liability for 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on November 2, 1959, and began working for the employer in October 1978. He has been a route driver all that time. His route has included West Towne Mall in the city of Madison for at least the last 6 years. His job required lifting packages that weighed up to 70 pounds.

The applicant testified that he hurt his back at work on August 11, 1992. He was driving a delivery truck with a supervisor, Adolph Mutter. At some point during the day, the spring to the back door on the truck broke. It is undisputed the door was heavy: the applicant thought 200 pounds, but supervisor Mutter testified that according to UPS mechanics it was in fact 300 pounds.

According to the applicant, Mr. Mutter ordered him to lift the door despite the broken spring. The applicant complied and lifted the door at least a dozen times along the route. He testified that while lifting the door, he hurt his back.

In his testimony, Mr. Mutter denied giving the applicant a direct order to open the door with the broken spring on August 11, 1992. He does admit the applicant lifted the door, but states he does not remember the applicant ever lifting the door alone. Mr. Mutter testified he told the applicant he would help and implied that dockworkers helped at some stops, but the applicant beat him to the back door on one occasion. When Mr. Mutter reached the door, the applicant told him he had hurt his back trying to lift the door. Mr. Mutter's testimony is not clear about whether the applicant hurt his back at the first stop after the door broke or how many times the back door was lifted.

At some point, though, the two men began using a different door. The applicant also told Mr. Mutter he could no longer carry packages. Mr. Mutter delivered the packages and the applicant drove. Mr. Mutter and the applicant agree that Mr. Mutter then took the applicant to an urgent care center for treatment. The applicant completed an accident report, signed by Mr. Mutter, that same day, August 11, 1992.

The applicant then was off work for an extended period of time, going through physical therapy and work hardening. The respondent paid temporary total disability during this time.

The applicant returned to work on February 15, 1993. He noted some pain, but was able to work. However, a week after returning, on February 22, 1993, he allegedly began feeling increased pain causing him to limp. He completed another accident report, saw a doctor and was taken off work at some point.

The applicant then filed an application for hearing, listing February 22, 1993 as the date of injury, but including a narrative description of the injury which referred back to the August 11, 1992 injury caused by the broken door. The employer's insurer filed an answer listing August 11, 1992, as the alleged date of injury, admitting disability (and payment of $11,700 in temporary total disability) to February 16, 1993, but denying a work injury actually occurred on August 11.

Later, in response to a safety violation claim, the employer's attorney filed an answer admitting that an injury did occur on August 11, 1992. The employer also admitted that the injury caused temporary disability to February 16, 1993. The employer denied that the injury caused any permanent disability, or that another injury occurred on February 22, 1993. It also denied any safety violation.

This case, of course, does not involve the safety violation, but rather the nature and extent of disability from work injury or injuries. However, the employer did concede an August 11 injury causing disability in its answer to the safety claim. Further the applicant introduced practitioner's reports from Kenneth H. Yuska, M.D. and Thomas P. Klooseterboer, M.D., who opined that the applicant injured himself while lifting a truck door with a broken spring. The employer's own independent medical examiner, Richard Kokemoor, M.D., opined that the applicant suffered a work injury on August 11, 1992, causing lumbar strain, and that the applicant reached an end of healing on February 15, 1993.

Considering the employer's admission, the medical reports and the credible testimony of the applicant, the commission concludes that he was in fact injured at work on August 11, 1992, that at the time of the injury the applicant was performing services growing out of and incidental to his employment, and that the August 11, 1992 accident causing the injury arose out of his employment. The commission also concludes that the applicant was entitled to temporary total disability until he returned to work on February 15, 1993.

That does not end the matter though, since the commission must still deal with the alleged February 22, 1993 reinjury. The applicant testified he reinjured his back on February 22, and referred to an accident report he completed that day. The report states only that the applicant's back started bothering him during the day with pain shooting down to his knees. Exhibit 5.

One of the applicant's treating doctor, James Leonard, D.O., opines that the applicant was temporarily disabled to May 4, 1994, when he was able to return to work within restrictions set out in a functional capacity report. Dr. Leonard described the injury as a lumbar strain and gave the applicant permanent partial disability rating of 5% for continued lumbar pain. Dr. Leonard attributed the disability to the August 1992 injury rather than a reinjury in February 1993. See Reports of James Leonard, D.O., Exhibits D, I and J.

Other practitioner's reports refer to both August 11, 1992 and the February 22, 1993 injuries, but contain narrative descriptions of only the events of August 11. Exhibits A, B and D. Dr. Yuska's narrative report dated March 25, 1993 mentions a lumbar strain and spinal headache, but does not associate it with any particular date of injury. Further, Dr. John Murphy writes in terms of "recurrence" of pain rather than actual re-injury in February 1993. Exhibit K.

The only evidence supporting a separate accidental event causing injury on February 22, 1993, is found in the report of independent medical examiner Kokemoor. The applicant told him that "something went in [his] back again" on that date, apparently while lifting a dolly over an elevation on a cement surface. Dr. Kokemoor diagnosed lumbar strains from work injuries on both August 11, 1992, and February 22, 1993. He anticipated that the applicant could return to work without restrictions or permanent partial disability on November 1, 1993. Exhibit 2.

Based on this record, the commission concludes that on February 22, 1993, the applicant suffered an exacerbation or aggravation of his preexisting condition from the injury to his back on August 11, 1992. He did not suffer a separate injury or reinjury on February 22. He is nonetheless entitled to additional compensation for disability from the August 1992 injury which arose or became apparent after the February 22, 1993 aggravation.

The first issue is the extent of temporary disability. This turns on the date the applicant reached an end of healing. Dr. Kokemoor opined that the applicant reached a healing plateau on November 1, 1993. Dr. Leonard fixed a May 4, 1994 pleateau date in his April 18, 1994 practitioner's report and accompanying note.

However, Dr. Leonard's report assumed the restrictions set following an April 21, 1994 physical capacity evaluation, which is not included in the record. The record does contain a report from Dr. Leonard dated December 3, 1993, which released the applicant to full time medium-duty work with a temporary 50-pound lifting restriction. Exhibit E. The report is apparently based on a functional capacity evaluation prepared by occupational therapist, Judith Neumann, on December 2. Exhibit G. Ms. Neumann prepared a second evaluation on March 30, 1994. Exhibit H.

While Ms. Neumann's two evaluations contain minor differences concerning the applicant's ability to perform certain tasks, they establish no significant improvement during the interim between evaluations. Indeed, the earlier December 1993 evaluation indicates the applicant had a greater ability to pull and, in some instances, lift than the March 1994 evaluation. Both evaluations release the applicant to medium duty work. Since there appears to be no real change in the applicant's condition between December 1993 and March 1994, the commission finds Dr. Kokemoor's November 1, 1993 plateau date more credible than Dr. Leonard's May 4, 1994 date.

The next question is the extent of permanent partial disability. The commission rejects Dr. Kokemoor's testimony that the applicant had no residual permanent partial disability on the basis of the applicant's testimony and the functional evaluations outlined above. However, the commission also must reject the rating given by Dr. Leonard as too high. A five percent rating is the minimum for a successful laminectomy surgery under department rules. Section Ind 102.32 (11), Stats. However, the record indicates that the applicant here has only a "soft tissue" injury in the nature of lumbar strain. A two percent rating is most consistent with the applicant's condition.

The commission therefore finds that the applicant was temporarily and totally disabiled from August 12, 1992 through February 14, 1993. The respondent has paid disability for this first period and it is not at issue. The commission further finds that the applicant was temporarily and totally disabled from February 23 through November 1, 1993, inclusive. He is thus entitled to additional compensation for temporary total disability for 35 weeks and 4 days at $450 per week (the maximum for injuries occurring in 1992), or $16,050.

The applicant has also sustained a permanent partial disability of 2 percent compared to disability of the body as a whole, accruing as of November 1, 1993. The applicant is thus entitled to 20 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1992, $144 per week. This results in a total additional award for permanent partial disability of $2,880, all of which has accrued.

The applicant's attorney is entitled to a fee of twenty percent of the additional temporary total and permanent partial benefits awarded under this decision. Section 102.26, Stats. The total fee is thus $3,786 {20 percent of ($16,050 plus $2,880)}. This shall be deducted from the applicant's total award and paid within 30 days.

The amount due to the applicant within 30 days as compensation for disability, after subtracting the attorney fee, is $15,144.00. The record indicates that the applicant may have received some payment from his union during the period of temporary disability. The commission is unable to determine whether reimbursement is appropriate under sec. 102.30, Stats., and so leaves that issue interlocutory.

The final issue is medical treatment expenses. The applicant submitted bills establishing that he incurred the following reasonable and necessary medical expenses to cure and relieve his work injury: from Meriter Hospital, the sum of $2,478.96, of which Milwaukee Drivers Health and Welfare (MDHW) has paid $2,148.36; from Dean Medical Center, $608.50; from Physicians Plus, $4,303; from Bone and Joint Surgery Associates, S.C., $363, of which $312 has been paid by the insurer; from Radiology Specialists Madison, the sum of $301; from Affiliated University Physicians, Inc., the sum of $727; from Madison Neurological Consultants, the sum of $196; and from Turville Bay MRI Center, the sum of $515, of which $485.40 has been paid by MDHW. The commission calculates these expenses on the basis of charges for services actually listed on the bills, and does not award expenses for amounts shown on the Bone and Joint Surgery Associates or Turville Bay bills as unspecified balances forward. The commission also assumes the payments made by MDHW shown on exhibit N were actually made, even though that exhibit was not admitted at the hearing (this assumption does not increase the respondent's overall liability.)

The commission was unable to determine the amount charged by University of Wisconsin Hospital and Clinics for the services listed in the bills submitted by the hospital, even after examining the bills submitted. The order shall be left interlocutory on that issue, unless the parties can reach agreement.

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

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Accordingly, within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Richard M. Decraene, the sum of Fifteen thousand one hundred forty-four dollars and no cents ($15,144.00) for disability;

(2) To the applicant's attorney, Russell J. Mittelstadt, the sum of Three thousand seven hundred eighty-six dollars and no cents ($3,786) as attorney fees;

(3) To Meriter Hospital, the sum of Three hundred thirty dollars and sixty cents ($330.60);

(4) To Dean Medical Center, the sum of Six hundred eight dollars and fifty cents ($608.50);

(5) To Physicians Plus, the sum of Four thousand three hundred three dollars ($4,303);

(6) To Bone and Joint Surgery, S.C., the sum of Fifty-one dollars ($51.00);

(7) To Radiology Specialists Madison, the sum of Three hundred one dollars and no cents ($301.00);

(8) To Affiliated University Physicians, Inc., the sum of Seven hundred twenty seven dollars and no cents ($727);

(9) To Madison Neurological Consultants, the sum of One hundred ninety-six dollars and no cents ($196.00);

(10) To Turville Bay MRI Center, the sum of Twenty- nine dollars and sixty cents ($29.60); and

(11) To Milwaukee Drivers Health and Welfare, the sum of Two thousand six hundred thirty-three dollars and seventy-six cents ($2,633.76.)

Jurisdiction is retained to allow further decision, if necessary, concerning the amount of medical expenses from University Hospital and Clinics and the possible reimbursement of disability benefits paid by a non-industrial carrier during the applicant's temporary total disability. With respect to the nature and extent of disability decided above, however, this order is final.

Dated and mailed December 6, 1995
ND § 5.46

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 believed the applicant's testimony was affected by his dissatisfaction with work. He found the applicant less credible than Mr. Mutter, whom he described as reasonably credible. The judge also indicated that he did not believe there was a separate injury in February 1993, but an exacerbation of the August 1992 injury. After considering the judge's comments in light of the medical records, the commission concluded that the applicant was in fact injured at work on August 11, 1992, and entitled to compensation as set out above.

cc: ATTORNEY RUSSELL J MITTELSTADT
RUSSELL J MITTELSTADT LAW OFFICE

ATTORNEY PAUL R RIEGEL
BORGELT POWELL PETERSON & FRAUEN SC

ATTORNEY ROBERT H DUFFY
QUARLES & BRADY

Appealed to Circuit Court. Affirmed January 19, 1996.

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