Wis.LIRC WC Decision: Remiszewski - January 25, 2001 - ND � 5.18 - Schedule Injury � 5.46 - Employer's Liability for Medical Expense � 8.33 - Interlocutory Orders - work-related motor vehicle accident, back injury and pain, resultant psychological disability claimed - somatization and pain magnification found; need for dorsal column stimulator - LIRC generally tries to avoid issuing prospective orders on necessity of treatment

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

PAUL REMISZEWSKI, Applicant

HARNISCHFEGER CORPORATION, Employer

HARNISCHFEGER CORPORATION, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996-032721

On July 29, 1999, the applicant's attorney filed a letter serving as an application for hearing. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury on May 22, 1996, and an average weekly wage resulting in the maximum compensation rates. The parties also stipulated that the presiding administrative law judge (ALJ) for the Worker's Compensation Division of the Department, Sherman C. Mitchell, could take administrative notice of a prior decision in this case issued by ALJ Randall Kaiser and the record supporting that prior order.

At issue before ALJ Mitchell, and now before the commission, was the nature and extent of disability from the work injury, specifically the applicant's claim for a renewed period of temporary disability caused by a psychological condition. Also at issue was the applicant's entitlement to an interlocutory order. ALJ Mitchell issued his decision in the applicant's favor on May 25, 2000. 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 Mitchell concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1956. He was injured in a work-related motor vehicle accident on May 22, 1996, when his stopped vehicle was struck from behind by a semi-tractor/trailer. In April 1998, the applicant underwent an L4 to sacrum fusion, with an L4-5 decompressive laminectomy and an L5-S1 discectomy. His treating surgeon, David Coran, M.D., opined that the motor vehicle accident made the surgery necessary, by aggravating a pre-existing degenerative condition beyond its normal progression. Exhibit A, from November 1998 hearing. Treating doctor Coran estimated an end of healing by one year from the surgery (April 1999), but declined to rate the eventual permanent disability.

The respondent's independent medical examiner, Richard Lemon, M.D., pointing to numerous instances of symptom magnification mentioned by treating or consulting doctors, and a lack of objective evidence of a pathology (much less pathology from a trauma) to justify surgery, opined that the motor vehicle accident caused only about five months of temporary disability by temporarily aggravating the applicant's pre-existing degenerative disc disease in his lumbar spine beyond its normal progression. IME Lemon went on to opine the work injury was not related to the two-level fusion with discectomy/laminectomy performed by David Coran, M.D., in April 1998. Instead, IME Lemon opined that the procedure was due to the applicant's pre-existing condition. November 1998 hearing, exhibit 1.

Following a hearing in November 1998, ALJ Randall Kaiser found for the applicant on causation, and ordered temporary disability through the date of hearing. ALJ Kaiser's order was not appealed.

Thereafter, the respondent asked IME Lemon to rate functional permanent partial disability, regardless of causation, based on the applicant's surgery. Noting that the applicant has done poorly since the surgery, Dr. Lemon subsequently rated functional permanent partial disability at 25 percent, with a June 16, 1999 healing plateau date. Dr. Lemon also opined the applicant could work, subject to a two pound lifting limit in sedentary employment, specifically mentioning work answering the telephone or using a computer. Based on IME Lemon's opinion, the employer conceded temporary disability to June 16, 1999, and then began paying compensation for permanent partial disability as of that date.

As noted above, the applicant's attorney (Dennis H. Wicht) wrote a letter to the department on July 29, 1999, presenting the current claim for renewed temporary disability, based on psychological disability from the work injury. Mr. Wicht's letter also mentions a claim for a surgical procedure involving implantation of a dorsal column stimulator. However, the only issues at the hearing were the nature and extent of disability and the applicant's request for an interlocutory order.

The applicant's claim for psychological disability is based on a psychological progress report from Michael Jorn, Ph.D. Dr. Jorn had been seeing the applicant since April 1999, initially to evaluate the applicant for possible placement of a spinal cord epidural stimulator. Thereafter, the applicant continued to treat with Dr. Jorn until the respondent stopped paying for the sessions in July 1999.

Dr. Jorn opined in July 1999 that the applicant had not yet reached a psychological healing plateau, that his current psychological status was a result of his work related injury of May 1996, and that further treatment aimed at increasing his activity level was necessary. He believed the applicant should continue to be seen secondary to signs of depression and to address the stimulator issues.

The applicant began seeing Dr. Jorn again in September 1999. He saw the applicant for 12 sessions between then and December 6, 1999. The focus of these visits was an effort to increase the applicant's activity level, to help become more future oriented, and to develop goals for the future.

On December 9, 1999, Dr. Jorn reported that progress was slow and poor, the applicant describing himself as stuck, but unable to explain his behavior. Jorn progress report, February 2000 hearing, exhibit B. Dr. Jorn believed the applicant was not able to accept his pain condition and immobilized himself by the lack of acceptance. He also was overwhelmed, the doctor opined, by the emotions associated with not working and having a pain condition. As a result, the applicant had developed a coping mechanism that numbed his emotions to the point of almost appearing to have cognitive defects.

The doctor went on to describe the applicant as unable to work because of his psychological condition; he thought the applicant had gotten to the point of a five percent permanent partial disability but might recover more in time (over a year). Dr. Jorn told the applicant (a) that the doctor could not then recommend a stimulator based on the applicant's lack of activity, his depression and his poor insight; (b) that the sooner the applicant closed his workers compensation case and got on with his life, the better; and (c) that the applicant should continue to receive psychotherapy sessions to address his depression symptoms.

In a "questionnaire as to residual functional capacity" dated the same day (February 2000 hearing, exhibit B), Dr. Jorn noted an initial diagnosis of "depressive disorder" with a current diagnosis of "major depression, single episode, unipolar." His prognosis was guarded, noting that the applicant's psychological defenses were strong, and that psychotherapy was most likely necessary to be long term. Dr. Jorn specifically noted that the applicant was not a malingerer.

Meanwhile, the applicant underwent independent examinations by Richard Lemon, M.D. (February 2000 exhibit 2) and N. Timothy Lynch, Ph.D. (February 2000 exhibit 1).

IME Lemon was to address the end of healing, permanent disability, permanent work restrictions, and the need for future treatment. He began by noting again that the applicant displayed signs of symptom magnification to three treating doctors before Dr. Coran performed a two-level laminectomy, discectomy and fusion with predictably poor results. He noted that it was only after the occurrence of a post-surgical infection, that the applicant had an EMG that showed signs of radiculopathy. Dr. Lemon also reported that the applicant showed as much symptom magnification as Dr. Lemon had seen in 19 years of medical practice.

Dr. Lemon rated permanent partial disability at 25 percent compared to the body as a whole: 20 percent of the two level laminectomy, discectomy, and fusion, and 5 percent for the post operative infection. He thought the applicant was capable of work in a sedentary job, that required mainly sitting and allowed change of position every hour. He set a two pound lifting limit.

Dr. Lemon did not, however, think the applicant should undergo any further invasive treatment, including a spinal cord stimulator. On this point, the doctor noted the applicant's poor luck with invasive procedures, and his increased risk of a wound infection following the spinal cord stimulator implantation. He thought the vast majority of the applicant's current symptoms were due to symptom magnification, and that applicant should be treated with a self-administered conditioning program, anti-inflammatories, and anti-depressants.

Dr. Lynch, who conducted a independent psychological examination, administered several tests, including Center for Epidemologic Studies Depression Scale (CESDS) and the Minnesota Multiphasic Personality Inventory (MMPI-2). The results of the CESDS indicated moderate depression, while individuals with the applicant's MMPI-2 result typically received a clinical diagnosis of conversion disorder or somatization disorder. The MMPI-2 also disclosed a tendency toward experiencing a depressed mood, but indicated the applicant was likely to be resistant to treatment. February 2000 hearing exhibit 1, page 21.

Dr. Lynch went on to state that a personality disorder was suggested, and if confirmed, was likely a long-standing condition. He reported that individuals with the applicant's pattern tended to be passive dependent, demanding, and might attempt to control others by complaining of physical symptoms. The MMPI-2 profile, Dr. Lynch opined, indicated that the applicant would respond positively to the implantation of a dorsal column stimulator only for a limited time.

On page 24 of his report, Dr. Lynch explains that he does not regard the applicant as an appropriate candidate for a dorsal column stimulator because the applicant's expectation of a cure from the procedure is unrealistic, of applicant's diagnosis of "conversion disorder" or somatization, of the repeated observation of his doctors of non-organic findings, and of the lack of any pathophysiology that would predict a successful outcome.

Dr. Lynch went on to conclude that the applicant did not need any psychological intervention at the time of his report (October 8, 1999). He noted the applicant has had every available treatment, and opined the applicant had reached an end of healing in January 1997, even before the surgery. Dr. Lynch noted the applicant denied any psychological sequelae from the accident, and did not need psychological intervention, did not appear to be clinically depressed but somatically focussed and agitated with regard to his legal proceedings.

The reports form the independent examiners generated some response from the treating doctors. Dr. Jorn initially stated that he agreed with Dr. Lynch's conclusion that the applicant was not an appropriate candidate for the dorsal column stimulator. February 2000 hearing, exhibit B. Dr. Jorn then clarified this response by stating that the applicant was not at this time (January 2000) an appropriate candidate, but with treatment (pain management and psychotherapy) he might become a better candidate. February 2000 hearing, exhibit D.

Dr. Jorn disagreed with Dr. Lynch's conclusion that the applicant did not need psychological intervention. He understood how Dr. Lynch came to the conclusion based on a one-time meeting with the applicant, but he (Jorn) had followed the applicant over a longer period of time and was satisfied he was indeed depressed, and met the definition of major depression. He explained that the applicant was quite psychologically guarded, and it was only through the development of the therapeutic relationship that the applicant became open with Dr. Jorn. He reiterated that psychological treatment was necessary if the applicant was to become "unstuck" in his healing progression.

Finally, Dr. Coran opined that he disagreed with Dr. Lemon's conclusion that the applicant should not have a dorsal column stimulator, and that if the pain management clinic recommended it, Dr. Coran would view it as appropriate. He did say the applicant had reached a plateau with respect to his surgical intervention (referring to the fusion.)

The commission finds Dr. Lynch's opinion more credible than Dr. Jorn's on the record before it. Dr. Lynch not only interviewed the applicant; as part of his clinical evaluation he administered an MMPI-2 testing which disclosed an underlying tendency to somatize. This correlates with the numerous instances of somatization and pain magnification outlined in the medical records summarized by Dr. Lynch (February 2000 hearing exhibit 1) and Dr. Lemon (November 1998 hearing exhibit 1), particularly in the summarized notes of Diane W. Braza, M.D., and Lawrence Frazin, M.D.

The commission therefore concludes that the applicant has not established a psychological disability resulting from his work injury, and therefore is not entitled to the renewed temporary disability he claims. The claim for temporary disability benefits shall be dismissed.

However, because the medical record before the commission clearly does not permit the commission to 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). Consistent with ALJ Kaiser's order, jurisdiction is retained on all issues.

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

ORDER

The findings and order of ALJ Mitchell are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part. The claim for renewed temporary total disability raised in the July 29, 1999, letter from the applicant's attorney to the department is dismissed.

Jurisdiction is retained for such further findings and orders as may be warranted.

Dated and mailed January 25, 2001
remispa.wrr : 101 : 1 ND � 5.18 � 5.46 � 8.33

/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 ALJ Mitchell. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). He found the applicant to be a credible witness, who in fact appeared depressed at the hearing. However, the commission concludes, based on the medical record outlined above (including the multiple instances of symptom magnification noted by treating doctors), that the psychological aspects of the applicant's demeanor at the hearing were attributable instead to his somatization and conversion disorder.

Finally, the commission does not purport to decide whether a dorsal column stimulator may become reasonable treatment. The commission generally avoids, or tries to avoid, issuing prospective orders on the necessity of treatment under Levy v. Industrial Commission, 234 Wis. 670 (1940). See Peterson v. GAF Corp, WC claim no. 9604730 (LIRC, June 30, 1997). Indeed, ALJ Mitchell himself did not actually decide whether or not a stimulator was necessary, but only reserved jurisdiction on the issue. This, the commission believes, is the appropriate course.

cc: ATTORNEY DENNIS H WICHT
MURPHY GILLICK WICHT & PRACHTHAUSER

ATTORNEY THEODORE T BALISTRERI
OTJEN VAN ERT LIEB & WEIR SC

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