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

STEVEN L WILLETTE, Applicant

FITNESS EQUIPMENT, Employer

SAINT PAUL FIRE & MARINE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92065944

An administrative law judge (ALJ) for the Workers' Compensation Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own except that it makes the following modifications:

1. On page five of the decision, delete the second full paragraph and substitute:

"The applicant's weekly rate for temporary total disability is $186.67 (two-thirds of $280). Given the record made, the applicant was temporarily totally disabled from July 25, 1993 to November 14, 1993 (both dates exclusive), which is 16 weeks at a rate of $186.67 per week, yielding $2,986.72. The applicant was also temporarily totally disabled from November 13, 1993 to May 3, 1994 (both dates exclusive), which is 24 weeks and one day at $186.67 per week, yielding of $4,511.19. The total temporary total disability awarded is thus $7,497.91."

2. On page 5 of the decision, delete the fourth full paragraph and substitute:

"By request and pursuant to sec. 102.26 (3), Stats., the attorney fee is set at 20 percent of $7,497.91, yielding $1,499.58."

3. Delete the first two paragraphs of the INTERLOCUTORY ORDER and substitute:

"That within 10 days, the employer and its insurance carrier shall pay to the applicant, as compensation, the sum of Five Thousand nine hundred forty-one dollars and eight cents ($5,941.08).

"To Attorney Thomas Bush, as attorney fees, the sum of One thousand four hundred ninety- nine dollars and fifty-eight cents ($1,499.58)."

ORDER

The decision of the administrative law judge, as modified, is affirmed.

Dated and mailed December 30, 1994
ND § 5.10

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

In their petition for review, the employer and the insurer (collectively, the respondent) first assert that the applicant did not meet his burden of proving that his 1994 back surgery was necessary to cure and relieve him of the effects of his disability. This ties into the respondent's second argument which is that its videotape and independent medical examiner's reports created a legitimate doubt that the applicant's disability and need for medical treatment after July 26, 1993 were caused by the work injury. However, the commission cannot agree with either proposition.

First, the commission is satisfied that the record indicates that the work injury caused the applicant's continuing disability and need for treatment after July 26, 1993. As the respondent points out in its brief, the applicant was doing well and subject to only minor lifting restrictions by June 1993. Specifically, on June 22, 1993, Dr. Dalton imposed restrictions against lifting more than fifty pounds or bending at the waist more than six times per hour. These restrictions were temporary and were to last until the applicant's next appointment in September.

However, the restrictions prevented the applicant from returning to his physically-demanding job with the employer and it had no other work for him. The commission and the courts have previously held that if an employer is made aware of a worker's limited ability to return to work but cannot or does not make such work available, the worker remains entitled to temporary total disability until the end of the healing period or work is offered within his or her restrictions. Thus, the applicant remained on temporary total disability.

The respondents offer videotapes of the applicant carrying seven rolls of carpet and lifting two boxes in a short period of time on July 27, 1993. The respondent asserts this violated Dr. Dalton's restrictions against bending more than six times per hour at the waist or lifting more than 50 pounds. The applicant testified that the boxes only weighed 30 to 35 pounds, although he did not weigh them on a scale. The record contains no evidence as to what the carpet rolls weighed. The respondent argues the items, or at least some of them, must have weighed more than 50 pounds, although it did not weigh them either. The respondent concludes that this activity creates the inference that the applicant had recovered from his work injury, and that any disability after July 27, 1993 was not related to his work injury. At the least, the respondent contends, the tapes establish legitimate doubt.

However, the commission cannot agree. Dr. Dalton considered the applicant still temporarily disabled in June 1993, as evidenced by his temporary restrictions. Nor can the commission conclude that the applicant's activity exceeded the 50-pound lifting restriction by simply watching the videotape. It appears that the applicant may have bent at the waist more than six times in one hour, but the commission cannot legitimately infer from that that the applicant had completely recovered. Indeed, Dr. Kortebein suggests the opposite. He opined that if the applicant had engaged in activities in excess of his work restrictions that would have caused the symptoms arising in November 1993 precisely because the applicant had not recovered to the point where he could work without restriction. See Kortebein's January 26, 1994 letter.

Dr. Kortebein's opinion on that point depends on the finding that the applicant "was involved in activities which were stressing his lower back area way beyond the limitations imposed in June 1993." The commission does not believe the record establishes that. Thus, the commission accepts the opinions of Drs. Kortebein and Delahunt that his recurrent herniated L4-5 intervertebral disc condition was related to the September 1992 work injury.

The respondent complains that this result impermissibly shifts the burden to it, asserting that all it has to do is provide a legitimate doubt, not prove that the activities of July 26, 1993 caused the disability arising from the recurrent herniated disc. The commission agrees that a respondent does not need to prove a nonwork cause for disability or injury to prevail. On the other hand, the respondent must provide enough to serve as a basis for legitimate doubt based on evidence beyond the commission's "cultivated intuition." The videotapes do not leave a legitimate doubt in the minds of the commission. The work injury was the cause of the disability from a recurrent herniated disc.

The next issue is whether the applicant provided sufficient evidence to establish that the 1994 back surgery was necessary to cure and relieve the applicant from the effects of the work injury. The commission, for the reasons stated above, believes the work injury caused the applicant's recurrent herniated disc at L4-5. That opinion was expressed by Dr. Kortebein in Exhibit B. Dr. Delahunt also states in his practitioner's report that the work incident stocking shelves with treadmills directly caused the applicant's disability. Dr. Delahunt's attached notes dated January 7 and 26, 1994 give a diagnosis of radiculopathy in the left leg secondary to a recurrent herniated disc at L4-5. The notes also make it clear that the surgery Dr. Delahunt performed on January 26 (L4-5 laminectomy, discectomy and posterolateral arthrodesis) was done to relieve the applicant of the intractable symptoms from the herniated disc which did not resolve with conservative treatment.

The last issue is whether the applicant's temporary total disability should have been reduced from July 25 to November 1993 by taking into account the wages he earned in part-time employment with Nelson Boon. The administrative law judge specifically found that the applicant had done that job for 8 years, well before the work injury in this case. The commission agrees with that finding. However, since the applicant obtained the job with Nelson Boon before his injury, wages from that work should not be considered in determining the amount of temporary total disability or actual wage loss for the purposes of calculating temporary partial disability. Although this result may not be readily apparent from reading of sec. 102.43 (6), Stats., alone, it is clear from the department's attached annotations to the act which are entitled to weight in construing the statutory language. Consequently, the commission amended the administrative law judge's order to award the full amount of temporary total disability for the time in question.

cc: ATTORNEY THOMAS E BUSH
THOMAS E BUSH SC

ATTORNEY WILLIAM R SACHSE JR
PETERSON JOHNSON & MURRAY SC

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