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

CINDY L HEREDIA, Applicant

SUPERIOR LINEN, Employer

NORTHBROOK NATIONAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94043118

The administrative law judge issued his findings of fact and interlocutory order in this case on April 10, 1996, following a hearing on March 29, 1996. 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 $216.00, and a June 28, 1994 compensable injury. Compensation for temporary disability has been paid for the periods and in the amounts shown in Department Exhibit 1.

The issue at the hearing and now before the commission is whether the applicant unreasonably refused restricted work during the healing period.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission hereby sets aside the administrative law judge's findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1966. She worked for about eighteen months for the employer, a commercial laundry, setting up carts of linen to be weighed and shipped. On June 28, 1994, while bending and squatting to get some tags, a co-worker struck her in the back with a cart, slamming her head back on the cart. The applicant could not move, and she was taken by ambulance to the hospital.

She was treated initially by Nicholas Staves, M.D. He prescribed medication including Percocet, and ordered an x-ray and MRI. These came back negative. Dr. Staves eventually released the applicant to work in July 1994.

However, on subsequent visits, Dr. Staves noted the applicant complained of continuing pain, although he thought the complaints were inconsistent with the applicant's appearance of comfort and ease in walking. In September and October 1994, the doctor noted the applicant had seen a chiropractor, Bruce L. Wignall, D.C., who had diagnosed "subluxation of the coccyx."

Dr. Wignall first saw the applicant on September 12 or 13, 1994. He noted considerable pain, which he attributed to displacement of the coccyx and took her off work. Given the extent of her pain, he referred the applicant to Henry Rosler, M.D.

Dr. Rosler, a neurologist, first saw the applicant on September 22. He noted pain over the coccyx and muscle spasm in the back. He further opined the applicant has sustained a coccyx subluxation and lumbosacral strain from the work injury. He prescribed medication, recommended she stop physiotherapy, and kept her off work.

Dr. Rosler saw the applicant again on September 28, 1994. This time he tried injections which eventually provided only temporary help. The doctor noted continuing symptoms of coccydenia (1), which were quite severe. He referred the applicant back to Dr. Staves for a surgical opinion. Dr. Rosler saw the applicant on one more occasion, October 24, 1994, when she told him Dr. Staves would not take her back. Dr. Rosler then referred her to a neurosurgeon, Dr. Walsh. The record does not indicate whether the applicant ever saw Dr. Walsh. However, Dr. Rosler reiterated the referral in February 1995 when he noted her condition was unchanged, and that she continued to have pain in her coccyx consistent with coccydenia.

Meanwhile, the applicant underwent an independent medical examination performed by Richard H. Kokemoor, M.D., on behalf of the insurer. Dr. Kokemoor saw the applicant in November 1994 and diagnosed a work-related injury to the coccyx. However, he went on to opine that she exaggerated her symptoms. He recommended injections and therapy, and if that did not work, a surgical coccygectomy. His diagnosis was a coccygeal dislocation, caused by work, from which the applicant had not yet reached a plateau of healing. He concluded she could not return to work.

The applicant then saw Thomas J. Flatley, M.D., in April 1995, on referral from Dr. Rosler. (Dr. Staves had also referred the applicant to Dr. Flatley.) Dr. Flatley noted symptoms of low back and coccygeal pain. He noted difficulty in movement, and tenderness on palpation of the lumbar spine and "the very prominent sacral coccygeal junction." He noted "an anterior subluxation of the coccyx on the sacrum, approximately 50% of the joint." His diagnosis was subluxation, sacral-coccygeal junction.

However, Dr. Flatley thought a surgical coccygectomy was a poor procedure for treatment of coccydynia. He acknowledged that the applicant certainly did have a pathology and should consider coccygectomy, but gave it only a 50 percent chance of success. Nonetheless, when the applicant complained in May 1995 she could no longer live with the pain, Dr. Flatley scheduled the procedure for the next month.

Dr. Flatley in fact performed a coccygectomy, essentially the surgical excision of the coccyx, on August 21, 1995. His preoperative and post operative diagnoses were the same, "dislocated coccyx with coccydynia." Exhibit G.

In October 1995, Dr. Flatley referred the applicant to a S.V. Vasudevan at the Elmbrook Hospital pain clinic. Dr. Vasudevan's report followed a consultation on November 30, 1995. Exhibit 1.

Dr. Vasudevan noted that it appeared the applicant may have had a subluxation of the sacroccygeal area which had been treated extensively. He also noted poor cooperation during his examination and that the applicant demonstrated nonphysiologic pain behavior. He noted limited insight, significant exaggerated features, and no structural abnormalities of her lumbosacral spine causing discogenic disease or nerve root compromise. Dr. Vasudevan did not think the applicant should undergo treatment at his pain clinic, but instead could return to work on light duty.

Thereafter, Dr. Flatley saw the applicant on December 20, 1995. He issued a practitioner's report dated December 28, 1995 which stated he could not yet determine when the applicant could return to work. He recommended further treatment with Dr. Bhupinder Saini.

The applicant saw Dr. Flatley again on January 16, 1996. The doctor later prepared a practitioner's report dated February 27, 1996, stating that the applicant was still healing from the August 21, 1995 surgery. He also attached a note stating that the applicant was temporarily restricted to part- time work. In addition, the doctor attached a functional capacity evaluation indicating that the applicant could stand for no more than one hour at a time, could sit for zero hours in a work day, and could stand and walk for a total of three hours each in a work day. Dr. Flatley also restricted the applicant from lifting or carrying more than ten pounds, and from using her feet for repetitive movements of leg controls. The doctor's restrictions did permit occasional bending, squatting, twisting, crawling and climbing. Finally, Dr. Flatley indicated the applicant would probably reach a plateau in healing in August 1996, a year after the surgery. Exhibit J.

About the same time, Dr. Staves issued a functional capacity evaluation and practitioner's report essentially opining the applicant cannot yet work at all. Exhibits I and K.

Meanwhile, based on Dr. Vasudevan's opinion, the employer offered the applicant work in mid-January 1996. The employer's January 16 letter specified a ten pound minimum lift, a twenty pound maximum lift, and 35 to 40 hours per week with some mandatory overtime. A January 19 letter from the employer's attorney indicated the job was called "towels." Exhibit 3.

At the hearing, the employer's representative, Michael Tousey, testified that the job the employer had in mind actually involved somewhat less lifting. According to Mr. Tousey, the job would have involved folding towels weighing a pound or less at a four foot high table. Mr. Tousey also testified that a forty hour week at $5.40 per hour would have been offered.

The applicant testified the "towels" job was not really light duty, but involved a lot of bending and lifting. She did not respond to the offer because it was outside her restrictions and because she could not even function at home. The applicant also testified that at the time of the hearing, she was taking both Prozac and Percocet. She can only sleep about an hour at a time, cannot drive a car and needs help to dress and bathe. She has a TENS unit and a special bed.

As noted above, the issue in this case is whether the applicant unreasonably refused restricted work during her healing period, making her ineligible for temporary total disability benefits. Section 102.43 (2), Stats., provides for decreased compensation for temporary disability when the disability is only partial, based on the applicant's actual wage loss. Section 80.47, Wis. Adm. code, provides:

"Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during he healing period."

The first issue, then, is whether the commission should consider the work restrictions set by Dr. Vasudevan or those set by Dr. Flatley to determine whether the work offered by the employer was suitable employment within the applicant's physical and mental limitations. The next question, of course, is whether the work offered was actually within those restrictions.

The commission concludes that the work restrictions set by Dr. Flatley more accurately reflected the applicant's capacity during her healing plateau than those set by Dr. Vasudevan. Dr. Vasudevan set his restriction to light duty after a single appointment in which he determined the applicant was uncooperative. According to the applicant, the doctor examined her for less than five minutes and was abusive. Although Dr. Vasudevan at one point stated definitely that the applicant had a sacroccygeal subluxation (together with the coccygectomy surgery and psychogenic pain), he went on to report that "it appears patient may have had a subluxation of sacroccygeal area." [Emphasis added.] However, the record does not establish much basis for doubting the subluxation of the sacroccygeal area actually was present; even independent medical examiner Kokemoor opined that the work injury caused a coccygeal dislocation. Dr. Vasudevan's phrasing, and indeed the whole tenor of his report, indicates he minimized the applicant's disability and her work restrictions.

Dr. Flatley, as treating surgeon, examined the applicant on several occasions. However, the respondent characterizes Dr. Flatley's restrictions as nonsensical. The respondent points out that the applicant was able to sit for a half hour at the hearing, making Dr. Flatley's suggestion that she could never sit "utterly ridiculous."

Of course, the issue here is the applicant's ability to sit while working on a daily (albeit part-time) basis, not her ability to sit at a hearing. In addition, Dr. Flatley's restrictions were temporary, set in February 1996, and the hearing was held one month later. Further, as the applicant points out, Dr. Flatley's restrictions could be construed to simply mean the applicant could sit for some period less than an hour. This is borne out to some extent by the fact that Dr. Flatley allowed the applicant to drive a motor vehicle on a "moderate" basis; presumably this would require at least some sitting. In any event, the commission does not find Dr. Flatley's February 1996 restrictions to be ridiculous or nonsensical, particularly as they were set six months after a surgical shaving or excision of the coccyx. Further, the commission notes that these restrictions were set after the employer's job offer; when the offer was made, Dr. Flatley had not yet released the applicant to work at all.

In addition, a persuasive argument may be made that an injured worker may rely on restrictions set by treating doctors during the healing period, even if an independent examining doctor's restrictions seem more reasonable, so long as the injured worker acts in good faith. Indeed, in a case involving a refusal to rehire penalty, the commission held an employer liable for firing a worker who refused to return to work when the employer's medical examiner said she could, but her treating doctor said she could not. Comet v. LIRC, Court of Appeals case no. 84-1163 (May 22, 1985) (2). In its unpublished decision affirming the commision in Comet, the court of appeal analogized the situation to Spencer v. DILHR, 55 Wis. 2d 525 (1972), under which an employer is held liable for consequences (temporary disability, permanent disability, and medical expense) of treatment undertaken by an insured worker in good faith reliance on medical advice, even when the treatment later turns out to have been unnecessary.

By the same token, Dr. Flatley may be viewed as "treating" the applicant by keeping her off work under his December 28, 1995 opinion or releasing her to very restricted part time work in February 1996. Thus, the applicant would be entitled to rely on those restrictions, absent malingering or bad faith, making the employer liable for temporary total disability to the date of the hearing even if the commission or an administrative law judge later concluded Dr. Vasudevan's restrictions were more credible. In this case, of course, the commission in fact has concluded that Dr. Flatley's restrictions were more reasonable.

The next question is whether the work offered by the employer fit Dr. Flatley's restrictions. The commission must conclude it did not. First, when the employer sent its January 16, 1996 letter offering the applicant work, Dr. Flatley had only reiterated that the applicant could not yet return to work. Second, even when Dr. Flatley released the applicant to work some weeks later, it was for part-time work. The employer's written offer was for full time work, with possible overtime. Moreover, it is clear from both the testimony of Mr. Tousey and the letter sent by the respondent's attorney that the offer was made with Dr. Vasudevan's restrictions in mind, not Dr. Flatley's.

Finally, the record does not establish that the "towels" job even matched the understanding of the respondent's attorney as to what Dr. Vasudevan's restriction to light duty meant. In his January 19, 1996 letter, the respondent's attorney indicated he believed Dr. Vasudevan's restrictions required alternating between sitting and standing. As the commission reads Mr. Tousey's testimony, the towel job required standing to reach towels on a four foot high table. Mr. Tousey did not explain how the job could allow for alternating between sitting and standing.

The commission therefore concludes the applicant did not unreasonably restrict herself from work during her healing period. The applicant is therefore entitled to temporary total disability from the date at which the respondent stopped paying it (February 26, 1996, according to exhibit 1) through the date of the hearing (March 29, 1996), a period of four weeks and four days.

The amount of temporary total disability due during this period is $672.05 (4.667 weeks at $144.00 per week). The applicant agreed to a twenty percent attorney fee under sec. 102.26, Stats.; the fee in this case equals $134.41. Within thirty days, the respondent shall pay the fee to the applicant's attorney and the remainder ($537.64) to the applicant.

This order is left interlocutory to permit further findings and orders on any other claims arising under Ch. 102, Stats.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. Within thirty days the employer and the insurer shall pay all of the following:

(1) To the applicant, Cindy L. Heredia, the sum of Five hundred thirty seven dollars and sixty-four cents ($537.64) as compensation for temporary disability.

(2) To the applicant's attorney, Miriam R. Horwitz, the sum of One hundred thirty-four dollars and forty-one cents ($134.41) as an attorney fee.

Jurisdiction is reserved as provided in this decision.

Dated and mailed October 3, 1996
heredci.wrr : 101 : 6  ND § 5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not confer about witness credibility and demeanor with the administrative law judge (ALJ) who presided at the hearing. The ALJ evidently found the applicant's testimony about her current condition to be credible as he reiterates it in his decision; he never found that she was malingering or not acting in good faith. The ALJ made no specific finding about whose restrictions, Dr. Flatley's or Dr. Vasudevan's, he found more credible. It may be inferred, however, that the ALJ found Dr. Flatley's restrictions more credible, as his order accepts the doctor's restriction to part-time work. Further, for the purposes of this decision, the commission accepted Mr. Tousey's description of the "towel" job. Thus, this case presents no credibility issue.

Rather, the ALJ's resolution of this case presents a legal issue. The ALJ found the applicant must now respond to the employer's job offer, provided the employer offers it to her part time. He withheld payment of most of the temporary disability that would have accrued prior to the hearing, until the applicant makes a good faith effort to return to the towel job part time.

The commission acknowledges a certain rough fairness to this approach. However, the applicant was never offered part-time work as far as the commission can tell from the transcript, and certainly the offer in January 1996 was for full time work. If anything, the hearing record reiterates that the work offered was full time. Transcript pages 20 to 31. In addition, the employer has not shown the work it offered would accommodate Dr. Flatley's limit on standing of one hour at a time, or even Dr. Vasudevan's apparent requirement that the applicant alternate between sitting and standing. Given the employer's burden of proving work within the applicant's restrictions under sec. DWD 80.47, Wis. Adm. Code, the commission concludes the respondent must pay all of the temporary disability accrued to the date of the hearing.

Finally, the commission acknowledges that the applicant never responded to the employer's offer of work, and that Mr. Tousey testified he was never asked, either by the employer or the applicant, to accommodate Dr. Flatley's restrictions. However, the fact remains that when the employer offered the applicant work in January 1996 she had not yet been released to work by Dr. Flatley. In addition, the offer complied neither with Dr. Flatley's subsequent release nor, apparently, Dr. Vasudevan's restrictions. Further, the record indicates that the insurer corresponded with Dr. Flatley, and that his December 28, 1995 practitioner's report keeping the applicant off work was filed with the department one week before the employer offered her the full-time towel job. The commission cannot conclude that the employer was not kept informed of Dr. Flatley's restrictions.

cc: ATTORNEY MIRIAM R HORWITZ
ATTORNEY WILLIAM R SACHSE JR

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Footnotes:

(1)( Back ) This condition, also called "coccydynia" is nothing more than pain in the coccyx.

(2)( Back ) See Neal & Danas, Workers Compensation Handbook, sec. 7.37 (3d ed, 1990).