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

LISA R SPANGENBERG, Applicant

SHOPKO, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89043112

The administrative law judge issued his findings of fact and interlocutory order in this case on October 10, 1994, following a hearing on September 13, 1994. The employer and the insurer (collectively, the respondent) submitted a petition for commission review of the administrative law judge's findings and order. The department received a hand-delivered copy of the petition on October 27, 1994. Thereafter, the applicant filed an answer and motion to dismiss. Prior to the hearing, the respondent conceded jurisdictional facts and average weekly wage of $87.60. The respondent also paid temporary total disability for one week and three days in the amount of $87.59. The issues are whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether an accident causing the alleged 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 previously paid. Liability for medical expenses is also at issue. The commission has carefully reviewed the entire record in this case, including the materials submitted by the parties following the hearing. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby affirms his findings of fact and order, except as modified herein:

MODIFIED FINDINGS OF FACT

1. The first, second and third paragraphs of the administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein.

2. The fourth, fifth and sixth paragraphs of the administrative law judge's FINDINGS OF FACT are deleted and the following substituted therefor:

"The record contains reports from three practitioners. Chiropractor Kumbalek's report is dated July 23, 1992. He diagnosed chronic lumbar pain, lumbar segmental dysfunction, lumbar myofascitis, left lumbar paravertebral muscle spasm, and complicating left lumbar scoliosis. He rated the applicant's permanent disability at 5 percent compared to disability to the body as whole. The rating took into account the applicant's pain and limitation in motion with increased use of the lumbar paravertebral muscles. He opined that the work injury directly caused the disability and that she would continue to need ongoing care. He released her to work, as of July 23, 1992, with permanent restrictions against lifting more than 50 pounds, or doing more than occasional bending, squatting, crawling, climbing and reaching above shoulder level.

"The applicant also saw Robert A. Gruesen, M.D. He prepared a practitioner's report dated November 29, 1993. He attached a note from his November 6 examination which recounted the work injury, the unsuccessful physical therapy, the moderately successful chiropractic treatment, and her continuing complaints of pain in her lower back and hips. He also ordered x-rays and a CT scan which showed a central disc bulge in the lower back, but no definite nerve root compression of any kind.

"Dr. Gruesen opined that the work injury directly caused a soft tissue injury in the lower back. He rated permanent disability from pain and underlying soft tissue change at 3 percent compared to disability to the body as a whole. He opined that the applicant probably had reached a healing plateau by November 6, 1993. He recommended no further treatment, noting the 'maximum of treatment that she has had.'

"The final opinion is that of the respondent's independent medical examiner, Lester A. Owens, D.O. His report is dated February 18, 1992. Dr. Owens opines that the applicant reached a healing plateau on November 30, 1989, and has no permanent disability related to the work injury. He describes her current back pain as an exacerbation. He notes that the pain worsened without explanation in January 1992, following her release to work without restrictions after a 70-80 percent improvement in her back condition (per Dr. Verlinder's report) by November 6, 1989. He attributes her current complaints to her pre-existing dextroscoliosis and poor posture.

"The applicant sustained an injury at work on July 14, 1989. The injury occurred while the applicant was performing services growing out of and incidental to her employment and the accident causing the injury arose out of her employment. This finding is based on the applicant's credible testimony about the events of July 14, 1989 and about her condition and treatment thereafter, as well as the credible opinions of Drs. Kumbalek and Gruesen. The closer question is the degree of permanent disability.

"The applicant sustained permanent partial disability of three percent compared to disability to the body as a whole. This finding is based on the opinion of Dr. Gruesen, and is consistent with the restrictions that Dr. Kumbalek set out in his report. 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 with no evidence of injury to the spine. A three percent rating is most consistent with the applicant's condition.

"The applicant is therefore entitled to 30 weeks of permanent partial disability. Because the applicant was 22 years old on the date of injury, she is entitled to compensation at the maximum rate for permanent partial disability for injuries occurring in 1989, $125 per week. Sections 102.11 (1), 1987 Stats., and 102.11 (1)(g), Stats. This amounts to a total of $3,750, none of which was previously conceded or paid.

"Attorney fees of $750 (20 percent of the additional amount awarded) are protected under sec. 102.26, Stats. In addition, the applicant received funds from Manitowoc County Human Services Department in the amount of $1,877.73. The insurer shall reimburse the county directly for that payment under sec. 102.27, Stats. This leaves the sum of $1,122.27 payable to the applicant."

3. The seventh, eighth and ninth paragraphs of the administrative law judge's FINDINGS OF FACT are affirmed and reiterated as if set forth herein.

4. 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

MODIFIED 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, Lisa Spangenberg, the sum of One thousand one hundred twenty-two dollars and twenty-seven cents ($1,122.27) for permanent partial disability.

(2) To the applicant's attorney, Terence Bouressa, the sum of Seven hundred fifty dollars and no cents ($750.00) as attorney fees.

(3) To Manitowoc County Human Services Department, the sum of One thousand eight hundred seventy- seven dollars and seventy-three cents ($1,877.73); and

(4) To Kumbalek Chiropractic Office, the sum of One thousand forty-four dollars and fifty cents ($1,044.50).

Dated and mailed March 8, 1995
§ 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 found the applicant to be a credible witness. The commission does not dispute this. Rather, it modified the judge's decision to provide what it believes is a more appropriate award given the applicant's credible testimony and the opinions of her doctors.

In its petition for commission review, the respondent contends it should not have to pay continuing chiropractic treatment to the date of the judge's order, noting that chiropractor Kumbalek himself fixed a healing plateau in 1992. However, chiropractic care is a reimbursable treatment expense, and the fact that an injured worker has reached the end of healing does not mean that no expenses for treatment may be awarded thereafter. Further, the supreme court has stated that the commission cannot disregard treatment expense incurred in good faith upon a doctor's recommendation, even if another doctor disagrees with the treatment. Spencer v. DILHR, 55 Wis. 2d 525, 532 (1972).

The commission thus concludes that the administrative law judge properly awarded the chiropractic treatment expenses documented at the hearing. However, the judge at the same time issued a final order. The commission notes that Dr. Gruesen opined that no further treatment was necessary. The award of chiropractic treatment expenses in this case should not be construed as authorizing the continuing payment of such expenses into the future, assuming further treatment is sought.

Finally, the commission notes the applicant's motion to dismiss the respondent's petition for review as untimely. It is true that the copy of the petition that the respondent mailed to the department did not arrive until November 1, 1994, the day after the period for appeal to the commission had ended. However, the respondent also hand-delivered a copy of its petition to the department. The hand-delivered copy was timely received on October 27, 1994.

cc: ATTORNEY TERENCE BOURESSA
LIEBMANN CONWAY OLEJNICZAK & JERRY SC

MENN NELSON SHARRATT TEETAERT & BEISENSTEIN LTD

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