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


ROBERT P HAIG, Applicant

PEPSI COLA GEN BOTTLER INC, Employer

NATIONAL UNION FIRE INS CO OF PITTSB, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-007889


The applicant filed an application for hearing seeking compensation for permanent disability, including permanent total disability. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury on February 19, 1992, and an average weekly wage resulting in the maximum statutory compensation rates. The respondent also conceded temporary total disability from March 12, 1992, to December 21, 1995, and permanent partial disability benefits at 25 percent for which they have paid $24,576. The respondent also claimed, and the applicant does not dispute, that it overpaid temporary disability by $19,271.44 due a reverse social security offset.

A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on March 14, 2000. The issue before the presiding ALJ, and the issue now before the commission, is the applicant's claim for disability beyond that conceded.

On May 26, 2000, the ALJ issued a decision finding the applicant permanently and totally disabled. The respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

The applicant was born in 1935. He began working for the employer, delivering Pepsi-Cola products and equipment to special events, in 1966. Sometime around 1968, he became a mechanic. This job, which he held for the duration of his employment, involved installing and fixing vending machines and bar and restaurant equipment.

The applicant sustained work injuries to his back in 1972 when he fell from a truck, in 1982 when he slipped on ice in a parking lot, and in 1985 when he tried to pull a vending machine away from a building. After each injury, he underwent a laminectomy surgery performed by Allan Kagen, M.D. After each surgery, he returned to work without restrictions.

The injury at issue in this case occurred on February 19, 1992. On that date, the applicant was converting a tavern dispensing system from Coca-Cola products to Pepsi-Cola products. The job involved carrying a syrup tank in to a narrow back room with a sticky floor. While carrying the tank in front of himself in the room, the applicant hurt his back.

The applicant filled out an accident report the next day, but continued to work in pain until he could see a doctor. According to the applicant's testimony, he saw a doctor at some point before March 12, 1992. The doctor recommended therapy, and for a while the applicant worked and underwent therapy. However on March 12, 1992, the employer told him he could not work while undergoing therapy; he has not worked since.

The respondent's vocational expert, Ronald Iwinski, states on page 2 of his report (Exhibit 6) that Dr. Kagen referred the applicant to T.J. Flatley, M.D., on May 8, 1992. The medical records pick up at this point with the applicant's first visit with Dr. Flatley on May 8, 1992. See exhibit C.

On that date, Dr. Flatley noted a chief complaint of left leg pain, with pain also in the left iliac crest, and the lateral aspect of the thigh and calf, as well as numbness of the great toe. The doctor noted that physical therapy provided no relief.

The doctor reported that an x-ray revealed almost a complete loss of the L5-S1 interspace, and that an MRI of the lumbar spine revealed a soft tissue defect on the right with obliteration of the epidural fat and bulging of the annulus. The doctor diagnosed degenerative disc disease at L4-5, and ordered a CT scan.

The doctor reported the results of the CT scan in a letter dated May 16, 1992. In that letter, he stated a diagnosis of degenerative disc disease L4-5, spondylolysis at L5-S1, and status post the L4 hemilaminectomy. Dr. Flatley set out choices of either living with his pain (which would probably prevent him from working), or surgery.

The applicant opted for surgery. In a letter dated June 5, 1992, the doctor noted that a fusion surgery had been scheduled for the applicant in August. Meanwhile, he restricted the applicant from bending, lifting, pushing or pulling.

The applicant underwent spinal fusion surgery on October 16, 1992. The note from that surgery is at exhibit D. The procedure is described as a complete laminectomy at L5, a complete facetectomy at L4-5, a bilateral traverse process fusion with segmental instrumentation from L4 to the sacrum. The applicant was discharged from the hospital on October 23, 1992.

On October 27, 1992, the doctor reported he was doing well, and that he should continue with the restrictions against bending, lifting, pushing and pulling. On follow-up on December 8, 1992, Dr. Flatley described the applicant as doing well with minimal complaints of pain. X-rays showed no evidence of hardware failure, and early incorporation of the bone graft. The doctor continued the restrictions (prohibiting bending, pushing, pulling, reaching, and lifting) and noted that it was anticipated he could not return to work until January 1994. Dr. Flatley noted the applicant was still doing well, with minimal complaints of pain, on April 28, 1993. On that date, the doctor again noted further consolidation of the bone graft with no evidence of hardware failure.

In October 1993, x-rays showing spotty bone formation led Dr. Flatley to order a bone scan to rule out pseudoarthrosis (i.e., a false fusion), and a confirmatory CT scan. The radiologist who did the CT scan did not think a pseudoarthrosis was present, but after considering the x-rays, the bone scan and the CT scan, Dr. Flatley concluded a pseudoarthrosis in fact was present. Noting the applicant was not experiencing pain, however, Dr. Flatley did not yet recommend surgical exploration and repair of the pseudoarthrosis. He opined the applicant could return to work, as long as absolutely no bending, lifting, pushing, or pulling was involved.

By January 1994, the applicant did have minimal pain complaints, x-rays showed no further healing, and the L3-4 disc space was narrowing. The doctor wanted the applicant to undergo a repair of the arthrosis with an anterior interbody fusion. He also wanted to add the L3-4 level to the fusion. He noted the surgery was scheduled in two stages, on March 3 and 11, 1994.

Accordingly, the applicant was admitted to the hospital on March 4, 1994. He underwent three surgeries: (a) a repair of the pseudoarthrosis with removal and re-instrumentation with segmental rods extending the fusion from L3 to the sacrum, done on March 4; (b) an interbody fusion at L5-S1 done on March 11; and (c) an interbody fusion at L3-4 and L4-5 done on March 16.

By May 5, 1994, the applicant was doing very well with minimal complaints of pain. X-rays revealed good formation of bone. Dr. Flatley described the applicant's permanent restrictions as no repetitive bending, pushing, pulling, reaching and lifting, with alternating between walking, sitting, and standing as necessary. By September 15, 1994, the x-rays showed early incorporation of the bone anteriorly. He had only minimal complaints of pain.

The applicant saw Dr. Flatley a year after surgery, on March 23, 1995. The applicant was doing well, with essentially no pain regarding his spinal problem. X- rays showed a solid union at L4-5 and L5-S1 anteriorly, but an incomplete union anteriorly at L3-4. Posteriorly, the bone graft had not healed at L3-4, and there was only a marginal union at L4-5 and L5-S1. The doctor opined the applicant had not reached an end of healing.

On June 27, 1994, Dr. Flatley reported that x-rays showed further consolidation of the L3-4 disc, and that L4-5 and L5-S1 fusions appeared solid. Dr. Flatley opined his healing period still had not yet ended. On September 21, 1995, x-rays showed a solid fusion between L4-5 and L5-S1, with the beginning of union at L3-4. The doctor continued the work limitations.

Dr. Flatley opined the applicant had reached a healing plateau on December 21, 1995. He noted minimal complaints of back pain, and occasional left leg numbness. X-rays showed a union at L3-4, and a solid union at L4-5 and L5-S1. The doctor rated PPD at 25 percent, taking into account the three level fusion and the L5 laminectomy of 1992. He assessed permanent limitations against repetitive bending, pushing, pulling, reaching and all lifting. Dr. Flatley discharged him from care.

The employer discharged the applicant in March 1994, pursuant to a labor union agreement under which the employer had the right to fire a worker if he did not return to work within two years from his injury. Transcript, page 31.

The applicant opted for early retirement in August 1994. He has not tried to find work since. Transcript, page 33. He denied that he would have retired even if he had not been fired. The applicant became eligible for social security disability as of October 1, 1992. Exhibit 4, transcript, page 22.

Regarding current symptoms, the applicant testifies he has not had a good night's sleep "since this thing started," that he can only walk for five minutes, that he can sit up to two hours, that he can do the dishes and the laundry, that he has good days and bad days, that on a good day he might be able to do light projects at his workbench or change his motor-home's oil, that on bad days (which occur about twice a month) he cannot do much at all, and that he did not think he could hold a job-even a part-time job-with a set schedule.

Finally, the applicant testified that his condition was as described by his attorney in a letter to Dr. Flatley, dated June 8, 1998 (respondent's exhibit 1); specifically that:

"He finds that in performing duties and projects around his home, he is required to take frequent rests in order to relieve his discomfort. He indicates that he can drive for approximately 2 hours before he is required to stop and walk around for approximately 15 minutes to a 1/2 hour before his discomfort is relieved. He indicates that he is able to stand for approximately 1/2 hour before he is required to sit for approximately 15 minutes and rest while performing no work activities. He further indicates that he frequently is required to lie down during the course of the day in order to relieve his back discomfort..

Mr. Haig further indicates that he has not found himself able to engage in any consistent work-type activities around his home for more than 4 to 5 hours at a time."

Again, the respondent does not dispute the occurrence of the work injury making necessary the applicant's extensive medical treatment, including surgeries. At issue primarily, is the applicant's residual functional capacity following his recovery from those surgeries (i.e., his work restrictions), and the appropriate loss of earning capacity award based thereon. On these issues, the commission turns to the reports from the medical and vocational experts.

When he opined that the applicant reached a healing plateau as of December 21, 1995, Dr. Flatley rated a functional permanent partial disability at twenty-five percent, and set permanent restrictions against repetitive bending, pushing, pulling, and reaching, and all lifting.

Thereafter, the applicant's attorney wrote the letter at exhibit 1, describing the applicant's condition as set out above, and inquiring if-given those restrictions- the applicant would be limited to very selected part-time work. Dr. Flatley agreed, stating:

"Mr. Haig's permanent restrictions continue to remain in effect. He has permanent restrictions against repetitive bending, pushing, pulling, and reaching, and should refrain from all lifting. These restrictions are permanent and I continue to believe that they are appropriate.

"I also believe that he should be able to sit, stand and walk as is necessary according to his comfort level.

"Regarding the limitations as expressed by Mr. Haig, I feel these limitations are attributable to his work related injury of February 19, 1992.

"Further, I agree that Mr. Haig would be limited to very selected part- time work if he could work at all due to his limitations and the fact that he cannot engage in any work-type activity around his home for more than 4 to 5 hours at a time."

Applicant's exhibit A.

Finally, in July 1999, Dr. Flatley explained further, in response to an inquiry from the respondent's attorney:

"Part-time work was recommended due to the fact that he had difficulty in performing duties around his home and required frequent rest periods in order to relieve his pain. The patient indicated he could only drive for a period of two hours before he needed to stop and walk around for approximately 15 minutes. He also stated that he is able to stand for only 30 minutes before he was required to sit, for approximately 15 minutes. He states he is frequently required to lay down during the day to relieve his pain.

"Based upon this, it is my opinion that if work would be found within the limitations placed upon him, he would only be able to work on a part-time basis."

Exhibit E.

The respondent obtained a report from its independent medical examiner, Stanley Robbins, M.D. In his April 1996 report (exhibit 4), Dr. Robbins rated permanent partial disability at 25 percent compared to permanent total disability, 10 percent for prior disability from his first three work injuries in the 1970s and 1980s, and 15 percent due to the fusion surgeries after the 1992 work injury at issue here. He opined the applicant could work full time, in light duty. He restricted the applicant from repetitive bending, lifting, and twisting (defined as no more than 6 episodes per hour.) He set a twenty pound lifting limit, and stated the applicant needed to alternate between sitting and standing every hour.

Then, in July 1999, Dr. Robbins reiterated his opinion the applicant could work full time, in spite of Dr. Flatley's July 1999 letter to the contrary. Exhibit 5.

The parties submit expert opinion addressing the vocational effects of these restrictions.

The respondent's vocational expert, Ronald Iwinski, opined the applicant sustained a loss of earning capacity at 50 to 55 percent using Dr. Flatley's June 1998 (and July 1999) restrictions to sedentary work. He rated 35 to 40 percent based on Dr. Robbins restrictions (1)  to light duty work. He rated loss of earning capacity at 25 percent to account for the applicant "voluntarily removing himself from the labor market." Exhibit 6.

The applicant initially retained Leanne Panizich as the applicant's vocational expert. She rated loss of earning capacity at 80 to 85 percent based on Dr. Flatley's restrictions to part-time sedentary work, and 50 to 65 percent based on Dr. Robbins's restrictions to light duty. See respondent's exhibit 9, January 12, 1999 report of Panizich.

Thereafter, the applicant retained Leslie Goldsmith for a second vocational expert opinion. He rated loss of earning capacity based on IME Robbins restrictions at 60 to 65 percent. He concluded the applicant was permanently and totally disabled under Dr. Flatley's restrictions to part-time work with no lifting.

2. Discussion.

The first issue is whether the applicant can work subject to the restrictions set by Dr. Robbins, or those imposed by Dr. Flatley. On this issue, the commission notes that neither Dr. Flatley nor Dr. Robbins ever actually re-examined the applicant after early 1996. Nonetheless, the commission adopts Dr Flatley's restrictions as most credible, based on the applicant's testimony concerning his functional capacity which the ALJ regarded as credible. Dr. Flatley, moreover, explains why he restricts the applicant to part-time work. Further, the commission finds it credible that, given the applicant's extensive surgical history, he would experience pain after a few hours of light work around the house despite having reported minimal pain to Dr. Flatley while he was off work entirely during his healing period.

The commission also notes that Dr. Flatley did not expressly release the applicant to full time work after the final set of surgeries when the applicant plateaued in December 1995. He said nothing about how many hours the applicant could work. And even in his first set of permanent restrictions in December 1995, Dr. Flatley prohibited all lifting, which is hardly indicative of a vigorous functional capacity.

In sum, the applicant has had several major back surgeries, including a fusion and refusion with instrumentation, with the end result of a three-level fusion superimposed over a degenerative back. The applicant testified, credibly to the presiding ALJ, that he cannot work around his house more than a few hours before he has to stop because of pain. Dr. Flatley has all along set extensive work restrictions against most vocational activities, including all lifting. And this is, of course, the same fellow who came back to work with no restrictions after three laminectomy procedures in the 1970s and 1980s, hardly the work history of a malinger or symptom exaggerator.

The next question is the extent of the applicant's loss of earning capacity given the restrictions set by Dr. Flatley.

The commission must reject the opinion of the respondent's expert, Mr. Iwinski. When Mr. Iwinski considers Dr. Flatley's "more recent reply to Attorney Ward on June 22, 1998," he addresses only the restriction to sedentary work. He does not take into account Dr. Flatley's restriction to part-time hours, but in fact assumes the applicant has the capacity to work overtime. This is evident from the fact that in his calculations at the bottom of page 14 of his November 1, 1999 report, Mr. Iwinski uses a $329.01 weekly wage, which he derived a few paragraphs earlier from using $6.29 hourly wage and an over-40 hour workweek. Indeed, Mr. Iwinski's $6.29 hourly wage for sedentary work and a 25-hour workweek yields a $157.25 weekly wage. When compared to his pre-injury wage of $685.22, the part-time sedentary work using Mr. Iwinski's wage results in a 73 percent wage loss.

However, the commission cannot conclude that the applicant has shown a prima facie case of odd-lot unemployability, either, based on the record in this case. The first vocational expert retained by the applicant, Ms. Panizich, did not opine that the applicant was permanently and totally disabled on an odd-lot basis, but rather rated loss of earning capacity at 80 to 85 percent on the assumption part-time work was available for him despite his injury. On this issue, the commission notes also that the applicant's decision to retire, while understandable, limited his opportunity to find work within his restrictions. (2)   Under these circumstances, the commission is left with considerable doubt as to whether the applicant is unable to secure continuing and gainful employment because his injury limits him to performing services so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. See Balczewski v. DILHR, 76 Wis. 2d 487, 493-95 (1977).

The commission further concludes that Ms. Panizich's estimate of the applicant's lost earning capacity is appropriate, given his functional work restrictions, his limitation to part-time work, and the factors set out in Wis. Admin. Code § 80.34. With respect to the factors set out in the administrative code, the commission notes that the applicant's age and work restrictions, coupled with his most recent job experience in relatively heavy employment from which he retains relatively few transferable skills to sedentary employment, justifies an 80 percent rating. Accordingly, the applicant has sustained a loss of earning capacity at 80 percent, into which is merged his permanent disability on a functional basis (25 percent as estimated by Dr. Flatley.)

The applicant is therefore entitled to 800 weeks of permanent partial disability, beginning to accrue on December 21, 1995. At $144 per week (the statutory maximum for injuries occurring in 1992), the total in permanent partial disability equals $115,200. As of the January 15, 2001, 264 weeks and 3 days ($38,088) has accrued; 535 weeks and 3 days ($77,112) remains unaccrued.

The respondent overpaid temporary disability by $19,271,44 due to the effect of the reverse social security offset under Wis. Stat. § 102.43(5). (3) In addition, the respondent had previously conceded permanent partial disability at twenty-five percent (totaling $36,000), and as of the date of the hearing paid $24,576 on this concession. The applicant's award, therefore, is subject to a deduction of $43,847.44 for amounts paid or overpaid.

The applicant agreed to payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the difference remaining from the total award after subtracting the amount conceded and the amount overpaid. The future value of the fee is thus $11,985.71 or {0.20 times ($115,200-$36,000-$19,271.44)}. However, because the portion of the award attributable to the fee has not yet accrued, it must discounted to reflect its present value. The present value of the fee is $9,248.92, so that the respondent is entitled to an interest credit on the fee of $2,736.79. The fee, together with costs of $720 shall be paid to the applicant's attorney within 30 days.

The amount remaining to be paid the applicant equals $58,646.85. This equals the total amount awarded ($115,200) less the amount previously paid ($43,847.44), less the present value of the attorney fee ($9,248.92), less the interest credit retained by the respondent ($2, 736.79), and less costs ($720). The amount remaining shall be paid to the applicant in monthly installments of $624.00 beginning on February 15, 2001.

Given the nature of the applicant's injury and extensive treatment to date, the commission cannot state definitely that the applicant will not sustain additional periods of disability from his conceded back injury, an interlocutory order remains appropriate. See Larsen Co. v. Industrial Commission, 9 Wis. 2d 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). Accordingly, jurisdiction shall be retained on all issues.

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


INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this order, the employer and its insurer shall pay the applicant's attorney, Robert T. Ward, the sum of Nine thousand two hundred forty-eight dollars and ninety-two cents ($9,248.92) in attorney fees and Seven hundred twenty dollars ($720.00) in costs.

Beginning on February 15, 2001, and continuing on the fifteenth day of each following month, the employer and its insurer shall pay the applicant Six hundred twenty four dollars and no cents ($624.00) per month until the sum Fifty-eight thousand six hundred forty-six dollars and eighty-five cents ($58,646.85) has been paid.

Jurisdiction is reserved for further orders and awards as are consistent with this decision.

Dated and mailed January 25, 2001
haigro.wrr : 101 : 1 : ND § 5.20  § 5.21

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, 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, with a sincere demeanor. She indicated he testified credibly about his current limited ability to work around the home for more than a few hours at time. The commission does not dispute this, and indeed its decision accepts the ALJ's credibility assessment on this point. Instead, the commission's modification of the ALJ's order was based on its rejection of the report of the applicant's vocational expert, Mr. Goldsmith, who did not testify at the hearing.

cc: ATTORNEY ROBERT T WARD

ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) Mr. Iwinski asserts these restrictions are consistent with Dr. Flatley's initial restrictions in June 1995.

(2)( Back ) See for example, Frederick West v. LIRC, case no. 95-2622 (Wis. Ct. App., June 11, 1996). When a worker is not obviously odd-lot due to the combination of his physical capacity and the various odd-lot vocational factors (age, mental capacity, education, and training), it has been suggested that it is not unreasonable to place the burden of proof on the applicant to the extent of requiring reasonable efforts to secure suitable employment. 4 Larson, Workers Compensation Law § 84.01[4]. In this case, given the report of Ms. Panizich in the applicant's behalf, it cannot be said he is obviously in the odd-lot category.

(3)( Back ) The reverse social security offset does not apply to the payment of permanent partial disability benefits in this case.


uploaded 2001/02/12