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

DINA ZWIEG, Applicant

FORT ATKINSON MEMORIAL HEALTH, Employer

UNITED WISCONSIN, Insurer
c/o UNITED HEARTLAND INC

WORKER'S COMPENSATION DECISION
Claim No. 1998023429

The applicant filed an application for hearing seeking disability compensation and medical expense payment based on a March 9, 1998 date of injury caused by repetitive lifting, bending and carrying activities at work. Prior to the hearing, the employer and the insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $333.20 on the date of the alleged injury.

Hearings were held on February 1 and April 10, 2000, before an administrative law judge (ALJ) with the Worker's Compensation Division of the Department of Workforce Development. The primary issue before the ALJ was whether the applicant suffered disease causing injury, which arose out of the applicant's employment with the employer, and which occurred while the applicant was performing services growing out of and incidental to that employment; in other words, whether the applicant suffered an injury compensable under Wis. Stat. ch. 102. If such an injury is established, ancillary issues include the applicant's entitlement to temporary disability for the periods from March 9 to June 8, 1998, and from August 20 to December 31, 1998; to permanent partial disability benefits on a functional basis and a vocational basis; to reimbursement of medical treatment expense paid by a non-industrial insurer; and to an interlocutory order.

The ALJ issued his decision resolving these issues on May 15, 2000. The respondent filed a timely petition for review, essentially on all issues.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

a. Work duties.

The applicant was born in November 1966. She began working for the employer in May 1989. She testified that she took a pre-employment physical, and that no restrictions were placed upon her because of her back.

The applicant initially performed duties for the employer as a central supply technician from 1989 to 1996. That job had three aspects: distribution, processing and decontamination.

The distribution aspect of the central supply technician job involved pushing medical supply carts from treatment areas, restocking the carts with supplies, and returning the carts to the treatment areas. Restocking the carts involved removing supplies from shelves that ranged in height from a foot off the ground to five feet five inches off the ground., and then placing the supplies on the cart which itself had shelves ranging from 8 inches off the ground to five feet off the ground. Occasionally, the applicant would take apart the supply carts (i.e. removing the drawers, and cleaning them from top to bottom with a rag.) In short, the distribution job necessarily involved repetitive twisting and bending.

The processing aspect of the central supply technician job involved stringing instruments back together after they had been used for surgery, and cleaning them. The instruments were sent from the operating rooms down to the cleaning area by dumb waiter, in pans on a case cart. The applicant would then manually clean the instruments, basins, etc., by spraying them with water, and then putting them on a "washer/decontamer."

The processing aspect of the job also involved moving the instruments from the shelves or drawers on the case carts, cleaning them, and putting them at various levels on the decontamer rack. This aspect of the job, too, involved bending and twisting. In addition, the wheels of the case carts would sometimes get stuck in a gap the dumb waiter, requiring the applicant to jerk the rack the cart back and forth to extract it.

The decontamination aspect, apparently, began when the instruments were on the washer decontamer rack. The applicant would then run the decontamer. After the decontamer was done, she would remove the instruments, and pass them through a window to a room where they were counted, wrapped up, and put on a sterilizer cart. When the cart was full, the applicant would push the cart into the sterilizer. En route, the carts wheels might get stuck, requiring the applicant to pull on the cart with a metal rod to get it back on track. The sterilizer carts weighed, the applicant guessed, between 80 and 100 pounds.

The applicant would run the process that sterilized the instruments, and then move the carts and instruments to the sterile room where they were stored in cabinets or shelves according to size. This job, too, required bending and twisting.

Finally, the applicant would restock the supply carts with clean instruments and linen which again involved bending and reaching at various levels, and move the supply carts to the treatment areas. This brings the process full circle.

In July 1996, the applicant switched jobs, becoming a surgical custodian. That job involved emptying the garbage and linen bins in the operating rooms, and then cleaning the operating room walls, floor, and equipment. Washing the walls was done by hand; the applicant would reach from the floor up as high as she could. A scrubbing machine was used on the floors.

b. Prior treatment.

Prior to the March 1998 date of injury alleged here, the applicant did seek treatment for back problems in June 1993. Specifically, on June 4, 1993, the applicant's back was evaluated by one of the employer's physical therapists. At that time, the applicant complained of a gradual onset of pain over the preceding three months, with no known mechanism of injury. At that time, the applicant also related a similar, brief instance of pain four years past (or in 1989.)

The applicant's June 1993 complaints included occasional buttocks pain, and sometimes pain down the lateral sides of the leg. She described the pain as sharp and burning, and denied numbness. X-rays were normal, but the applicant was taken off work and a CAT scan ordered to rule out a disc problem at L4-5. Additionally, a muscle relaxer was prescribed.

The CT scan done on June 7, 1993 showed no evidence of a disc herniation, or bony abnormalities. The applicant continued to receive physical therapy of ice, and flexibility. Upon her release from physical therapy, the applicant also saw John E. Woodford, M.D., a neurosurgeon. He noted the onset of right sacroiliac pain about four months earlier, with occasional left lower back and buttocks pain, which gradually worsened to the point she had been off work for four weeks. He noted that nonsteroidal anti-inflammatory medication, physical therapy, ultrasound, and heat had not been helpful. He also noted that the applicant reported that the pain "was not clearly related to work in any way and she doesn't know what brought it on."

On examination, Dr. Woodford noted a great deal of difficulty in her right SI region on hyperextension or forward bending. He also noted a "nodular abnormality at the joint space on the right." His impression was low back pain which seemed to be centered at the right SI joint area, which might be related to a localized area of inflammation in either the SI joint or the facet joints of the lower lumbar region. He did not see any clear radiculopathy, or any evidence of a neurological deficit. He wanted to do imaging testing, however, to be sure.

Following a bone scan, the doctor noted the absence of evidence of significant facet joint disease or degenerative changes. He did, however, recommend removal of the node, and scheduled that "on a day care basis" for her.

After surgical removal, it was determined the node was a lipoma, or fat deposit. On July 27, 1993, Dr. Woodford noted she had healed well from the surgery. The doctor wanted her to return after a month so he could see if the removal helped her back pain.

On follow-up on September 9, 1993, Dr. Woodford re-examined the applicant. She told the doctor her back pain had improved, but was still causing trouble, particularly in the midline. He had nothing to offer her from a neurosurgical point of view. By this point, the applicant was back at work.

The applicant then began treating with Ronald C. Rudy, an orthopedic surgeon, on referral from her family doctor. Dr. Rudy first saw the applicant on October 4, 1993. He noted complaints of back and right posterior thigh pain. He noted her treatment, her employment as a set-up medical assistant and in central supply. He also noted a prior, minimally successful epidural injection in June 1993. On examination, he noted no scoliosis nor pelvic tilt; no masses, muscle spasm, nor trigger points; but some pain on palpation of the spinuous processes. He examined the earlier CAT scan and concurred that it showed no disc herniation, but he read it as showing disc space narrowing at L5-S1 compatible with desiccation of the L5-S1 disc.

Dr. Rudy agreed that the applicant had a non-surgical back, and thought she would benefit from an intense exercise program. When the applicant did not respond by August 1994, Dr. Rudy thought an MRI would be a good idea to evaluate her back, and he mentioned a possible fusion surgery.

On September 15, 1994, Dr. Rudy reported that the MRI showed small central disc herniations at L4-5 and L5-S1, thought to be secondary to degeneration rather than any disc pathology. She told the doctor her pain was strictly in her back, though she did occasionally complain of foot tingling. She reported also that her back felt better when she wore a brace.

On October 4, 1994, Dr. Rudy prepared a "to whom it may concern" letter describing chronic back and right posterior thigh pain present for approximately two years. He went on to mention the conservative treatment using anti- inflammatory medication, exercise and physical therapy. He described the MRI as showing disc degeneration at L4-5 and L5-S1 with a small central disc protrusion at both levels with no impingement on the rootlets or theca. He reiterated that the applicant was not a surgical candidate, and stressed that she should continue to do her exercises. He released her to return as needed, but recommended that-if possible-her duties should avoid excessive lifting or bending.

The applicant never filed a workers compensation claim from the 1993-1994 treatment. It does not appear the applicant treated for back problems again until 1998.

c. 1998 treatment and disability.

In February 1998, the applicant was using a dumb waiter-type device used to transport garbage to the hospital soil room. The applicant sent down some of the garbage in two bins, but when the empty carts came back up the dumb waiter, they were stacked one inside the other. As the applicant tried to pull the bins apart, she experienced a sharp pain, radiating into her abdomen. Transcript, page 35-36.

The applicant kept working, thinking the pain would pass. She finished her shift, and never sought medical treatment. She thought she could live with the pain and it would go away. She did not report the incident when it occurred.

The next month, on March 9, 1998, the applicant hurt her back at home when she bent or reached down to get something out of the refrigerator at home. She testified she was merely reaching, not actually carrying something, when she felt the pain.

The applicant described her motion when she reached as a common, everyday, type motion. She testified there was nothing particularly stressful about it. It was the type of reaching motion she commonly did at work, in fact she performed that type of reaching activity more often at work than at home. Transcript, page 38.

The applicant then went to see her family doctor, Donald Williams, M.D., that same day. He noted that she bent over to pull something out of her refrigerator and experienced severe pain in her back. He noted marked spasm of the low back, and a palpable right paraspinal muscle. She had limited back motion in all directions, but a negative straight leg raising test. He thought she had an acute muscular back strain, took her off work, and referred her for physical therapy.

On follow-up on March 13, 1998, Dr. Williams noted continuing pain, including throbbing in her right mid thigh, suggesting nerve root irritation. The doctor ordered x-rays which showed osteoarthritic changes at L5-S1. He continued to suspect a muscular back strain, and kept her off work.

On recheck on March 20, 1998, Dr. Williams noted continued problems with her back, with spasming. He was concerned about her continuing symptoms, opining that they might be related to her L4 disc. Accordingly, Dr. Williams referred her for a CT scan. This showed a central bulging disc at L4-5.

After reviewing the CT scan, Dr. Williams concluded a neurological consultation was in order. He thus referred her to Thomas Berentsen, M.D.

The applicant instead saw a colleague of Dr. Rudy's, neurosurgeon Wojciech M. Bogdanowicz, M.D., on April 16, 1998. Dr. Bogdanowicz took a history of:

"She is a 31 year old surgical custodian for Fort Atkinson Hospital. She strained her back while working at the hospital and had a sore back but no leg pain until March 8th. She bent forward at home getting into the refrigerator and developed quite severe back pain. This hurt for a while and then she developed pain in the sciatic distribution. She has a little numbness in the right thigh, otherwise she has good strength and sensation."

Exhibit 1, note of Bogdanowicz for April 16, 1998.

Dr. Bogdanowicz reviewed the lumbar spine CT, which showed some bulging discs, but he opined one of them-he thought at L4-5-in fact was extruded. He wanted an MRI.

Indeed, an MRI done on April 20, 1998, showed an L4-5 disc herniation. The scan did not seem to show a significant mass effect on the nerve root. (The disc herniation at L4-5, of course, is the same place where a disc herniation was shown by MRI in 1994.) A synovial cyst at L3-4 was also disclosed.

The applicant returned to Dr. Bogdanowicz who explained the test results to her. He explained that the synovial cyst really did not have much bearing on her problem. He noted the continued pain with the right leg, which he thought was explained by the MRI showing the herniated disc at L4-5. He recommended a laminectomy surgery, and she agreed. In his letter to Dr. Williams setting all this out, Dr. Bogdanowicz noted that it "seems that everything leads to the work injury which unfortunately she did not report it in writing." Exhibit 1, April 23, 1998 letter from Bogdanowicz to Williams.

The applicant was scheduled for the surgery on April 29, 1998, but then cancelled it to give her condition more time. When she returned to Dr. Bogdanowicz, in May 1998, he noted continuing conservative treatment. On May 28, 1998, Dr. Bogdanowicz released the applicant to work with a fifty pound lifting restriction.

On June 8, 1998, the doctor noted the applicant was doing fairly well. She asked to be returned to work without restriction, and Dr. Bogdanowicz agreed. However, on August 27, 1998, the applicant returned to Dr. Bogdanowicz complaining that everything she did at work so aggravated her pain that she could not work. She had pain in both legs, the left worse than the right. He wanted to do another MRI.

The MRI showed a small to medium-sized central disc herniation at L4-5, unchanged from the March 1998 disc herniation. After reviewing the MRI, Dr. Bogdanowicz wanted to follow with an EMG. On September 22, 1998, Dr. Bogdanowicz noted that the EMG testing confirmed an L5 radiculopathy. The doctor suggested an L4-5 laminotomy with excision of the discs on both sides.

Accordingly, surgery was done on September 30, 1998, on a diagnosis of bilateral disc herniation at L4-5. In his surgical note, Dr. Bogdanowicz reported that, in approaching the left side of the L4-5 level, it was evident the L4-5 nerve root was elevated by a herniated disc. The doctor removed a large amount of degenerative disc material, and a couple of herniated fragments. There was less extruded disc material on the right side, but still enough to displace the nerve root.

In his discharge note, Dr. Bogdanowicz give a principal diagnosis of "L4-L5 herniated bilateral disk, work related" and commented:

"This is a 31-year old lady who was injured in Fort Atkinson Hospital working in maintenance. She developed back pain, radiating to both legs, progressively got worse then with conservative therapy got better. In April, we were planning surgery, but we canceled because she showed signs of improvement. She returned back to work, could not work, and developed more troubles."

Exhibit 1, Bogdanowicz note signed November 19, 1998.

After surgery, Dr. Bogdanowicz noted that the applicant made a reasonable amount of progress, but still had pain in her left leg. By October 22, 1998, the applicant had only numbness, but not weakness or pain, in the left leg. In November, the doctor noted some residual pain, but that most of the symptoms were gone. When the applicant returned on December 10, 1998, the applicant complained of left leg pain and back pain, but told the doctor her right leg was perfectly fine. The doctor wanted her to try physical therapy.

On December 31, 1998, the applicant told the doctor her condition had improved with physical therapy. However, due to continued symptoms after she stopped physical therapy in January 1999, another MRI was ordered. This showed post- operative change at L4-5, without evidence for recurrent disc herniation; and mild disc degeneration, without herniation, at L5-S1. Dr. Bogdanowicz ordered that physical therapy be resumed.

In March 1999, Dr. Bogdanowicz noted the applicant was making good progress and anticipated starting a new job. He released her to follow as needed.

The applicant testified at the hearing that she still gets pain radiating down her left leg from her low back. Laying on her left side aggravates the pain, as does sitting for a long period of time.

The applicant was discharged by the employer just before her laminectomy surgery. Her position was eliminated for economic reasons. After plateauing from her work injury, she found a job working as a receptionist for a business that sells campers. She also occasionally sold campers. She was initially paid $7 per hour plus commissions; her wage later changed to a straight $10 per hour. However, she had been discharged from this job just before the hearing, because of lost time for medical treatments (specifically, physical therapy treatments).

2. Expert opinion

a. Medical opinion.

The applicant submits the expert medical opinion of her treating doctor, Wojciech Bogdanowicz. Applicant's exhibit A. He prepared a practitioner's report on form WC-16-B, stating that the applicant's occupational exposure to repetitive bending, carrying, lifting, and twisting through her last day of work on March 9, 1998 caused her disability. His report marks the "occupational disease" causation box, which recites that the applicant suffers from a condition caused by an appreciable period of work place exposure that was either the sole cause or a material contributory causative factor in the onset or progression of the applicant's disabling condition. Dr. Bogdanowicz also lists a date of disability beginning with the last day worked, March 9, 1998.

Dr. Bogdanowicz goes on to rate permanent partial disability at 7 percent, and opined further treatment would probably be necessary for the condition. He offers the following narrative explanation:

".Dina started working for Ft. Atkinson Hospital in 1989 when she was 23 years old. Apparently she had a pre-employment physical which was completely negative. She was working as a surgical custodian which involved heavy lifting, mopping floors, lot of bending of the back, sometimes repetitive lifting of significant weight. Everything was fine until about 1994 when she developed some back pain and was seen by Dr. Rudy, orthopedics in our clinic, and diagnosed with degenerative disease of the disc of L4 and L5. She was treated conservatively and got better. Then, there is a history of an incident at work when she injured her back on top of her normal repetitive injuries that she performed daily, so to speak, and in her opinion that kind of released symptoms that she had not experienced before. This led finally to a visit in my office, repetitive MRIs and finally a diagnosis of L4-5 bilateral disc herniation on the top of degenerative changes described above.

"Reviewing this and discussing the circumstances, I think the major factor in creating her problem was repetitive injuries to her back and unless there is a history of some significant trauma before 1989 when she started employment at Ft. Atkinson, the prolonged work exposure would have to be held responsible for her troubles. The incident that I am talking about to Dr. Williams in April of 1998, which she remembered but did not report it, could be a proverbial straw of the camel's back which released the troubles and finally led to surgery, loss of wages and work, and current post-injury disability which, probably with the limitation of range of motion will represent 7% permanent partial disability."

Exhibit A, letter from Bogdanowicz to Meier, dated January 21, 1999.

In a follow-up report on form WC-16-B, Dr. Bogdanowicz set out work restrictions, including a 40-pound maximum lift, frequent position changes (at least every 40 minutes between sitting and standing), a maximum 32-inch reach (with frequent reaching limited to 15 to 18 inches), and no more than 3 minutes of overhead work at a time. See exhibit B.

The respondent retained Richard Lemon, M.D., as its IME. See exhibit 2. He reported he was very familiar with the applicant's jobs (central supply technician and surgical custodian) as he is a practicing orthopedic surgeon. His diagnostic impression was: (a) Pre-existing multi-level degenerative disc disease of the lumbar spine, unrelated to employment; (b) Injury at home on March 8, 1998 resulting a herniated disc at L4-5, unrelated to employment; and (c) L4-5 laminectomy and discectomy, unrelated to work.

Dr. Lemon opined the applicant's pre-existing multilevel degenerative disc disease is related to her age and familial factors, and not her work. He also opined that her job duties were not a material contributory causative factor in the progression of her condition. Indeed, he believes her condition would have continued to progress even if she had not been working.

He goes on to explain that the disc herniation occurred while the applicant was reaching into her refrigerator at home on March 8, 1998, and that obviously her pre-existing degenerative condition predisposed her to the disc herniation. He noted she did not mention any work connection until treatment with Dr. Bogdanowicz in April 1998, and did not formally report the alleged February 1998 injury until that she had seen Dr. Bogdanowicz three times. He noted that the applicant reported all her other injuries, including minor injuries, to the employer immediately.

Regardless of causation, Dr. Lemon rated permanent partial disability at five percent, and set work restrictions against lifting more than forty pounds.

In a follow-up report, Dr. Lemon stated that even if the applicant had injured her back in February 1998 (and he did not believe she had), she still would have suffered a disc herniation from reaching into the refrigerator in March 1998, and that that reach alone would have caused the disc herniation. Exhibit 3.

b. Vocational opinion.

The parties also submit opinions from vocational experts regarding the applicant's loss of earning capacity, under the work restrictions set by the medical experts.

The respondent's expert is John Meltzer. His report is at exhibit 3. Mr. Meltzer noted that given the 40-pound lifting restriction imposed by both the treating doctor and IME, she would no longer be able to work as a surgical custodian (even if she had not been laid off) as that required lifting 60 pounds. Mr. Meltzer also noted the applicant was earning $8.33 with a 60 cent shift differential (or $8.99) when injured in 1998, and could expect to be making about $9.10 to $9.33 at the time of his report if she remained employed. Mr. Meltzer went on to note that she had been making more than that, $10.00 per hour, after the injury working for the camper seller. Thus, Mr. Meltzer concluded that the applicant sustained no actual wage loss, though he rated 5 or 10 percent for lost access, noting a 40-pound lifting restriction was not a significant industrial impairment.

The applicant's expert is Timothy Greenya. He, too, noted the applicant would not be able to do her old job as a surgical custodian given her permanent restrictions. He did think she would do light industrial, office clerical, and retail clerical work. The median wage in these jobs, he opined, was $6.50 to $9.25, and paid an average of $7.75 per hour, according to 1997 wage information. He then concluded that, if she had not been injured, the applicant would now be making $9.00 to $10.00 per hour, representing (in comparison to the $7.75 average) a 15 to 22 percent loss. Noting the loss of access to jobs which required lifting of more than 40 pounds, as well as the loss of the good benefits package that the applicant had for the employer, Mr. Greenya opined she had a 20 to 25 percent loss of earning capacity.

Mr. Meltzer testified at the hearing, where he offered the last word on the respondent's behalf. See April 10, 2000 transcript. He testified that Mr. Greenya had used an "apples to oranges" analysis, by comparing using a 1999 estimate of what the applicant would have made in her time-of-injury job as a surgical custodian but using 1997 data for the wages paid in jobs which she could do given her do post-injury restrictions. Indeed, according to Mr. Meltzer, an apples to apples analysis, comparing the applicant's 1998 wage when injured ($8.93) with the 1998 wage range for the restricted work Mr. Greenya posited she could do after her injury jobs ($6.50 to $11.00, for an average of $8.75), yields an insignificant wage loss. April 2000 transcript, page 26.

3. Discussion; award.

The main issue, of course, is whether the applicant has sustained an injury caused by an accident or disease arising out of her employment with the employer, while performing services growing out or incidental to that employment. At the outset, the commission acknowledges that the incident that actually disabled the applicant, reaching into the refrigerator, occurred off-duty. However, no one, not even IME Lemon, indicates that reaching into a refrigerator alone would cause a disc herniation in an otherwise healthy back. The doctors, including IME Lemon, implicate the underlying degenerative condition as the causative factor in how a 31-year-old's disc could herniate with such a trivial action. (1)   Thus, the issue is whether the applicant's work or work exposure caused the onset or progression of that underlying condition.

More specifically in this case, the question is whether the applicant's work activity caused the progression of the degenerative disc disease to the point that the applicant was vulnerable to a disc herniation while reaching into the refrigerator. The medical experts agree that the applicant had pre-existing degenerative disc disease and, as Dr. Lemon points out, that that degenerative condition pre-disposed her to disc herniations.

Was the applicant's 9 years of employment as a central supply technician and a surgical custodian an appreciable period of workplace exposure that was at least a material contributory causative factor in the progression of her condition, making her more prone to the off-duty injury? Dr. Lemon does not really explain why he believes the applicant's employment was not a material contributory factor in the progression of her underlying condition, except to cite age and familial factors. Yet the applicant's age at the time of injury, 31, does not explain her advanced degenerative condition. And while Dr. Lemon refers generally to "familial factors," the commission sees no discussion of a family history of the early onset of disabling back disease in siblings or parents, either in Dr. Lemon's report (which does not mention the applicant's family members at all) or elsewhere.

Dr. Bogdanowicz, of course, also does not offer a lot of explanation for his contrary opinion that work exposure was a material contributory causative factor in the progression of the applicant's underlying back condition. He generally refers to the 1994 injury leading to treatment with Dr. Rudy, and the "repetitive injuries" of her everyday work activity. He also describes the unreported work incident a few weeks before the applicant stopped working as a "last straw."

Nonetheless, the commission credits Dr. Bogdanowicz's opinion, which better reconciles the facts of the case. The applicant was only 31 when she sustained her disc herniation. For several years prior to her injury, she had engaged in relatively strenuous work for the employer. Her duties that clearly involved bending, lifting, and twisting. The duties, for at least some period of time, seem to come close to the line of Dr. Rudy's 1994 recommendation against excessive bending and lifting. The commission is satisfied that the applicant's strenuous work duties constituted an appreciable period of workplace exposure that were at least a material contributory causative factor in the progression of her back condition to disability. The date of disability, and date of injury, is the applicant's last day of work, March 9, 1998.

The respondent is therefore liable for temporary total disability compensation for the periods the applicant claims, from March 9 to June 8, 1998, and from August 20, 1998 to December 31, 1998. These are periods of 12 weeks and 5 days, and 18 weeks and 5 days, respectively. At the weekly rate of $222.13 (two- thirds the applicant's average weekly wage of $333.20), the amounts accruing in those periods of temporary disability are $2,850.71 and $4,183.51, respectively. The total in temporary disability compensation due is thus $7,034.52.

However, exhibit 6 establishes that, during the first period of temporary disability, a non-industrial short term disability insurer (Anthem Health Group Shared Funding) paid $1,372.24 in benefits to the applicant for the 7-week period from April 1 through May 24, 1998, or about $196.03 per week. Exhibit 6 also establishes that during the second period of disability, a non-industrial insurer paid $2,802.71 in benefits to the applicant for the 13 week, 2 day period from August 20 to November 21, 1998, or about $210.20 per week.

The ALJ granted the respondent's request to have the non-industrial disability insurer reimbursed for its payments, though he did not set out the amount of reimbursement. Given that the applicant does not object to reimbursement of these payments, the commission shall order reimbursement by deducting amounts equal to the payments from the applicant's temporary disability award for payment to the non-industrial insurer. A total of $4,174.95 shall be withheld from the applicant's temporary disability award and paid to Anthem Health Group Shared Funding; the remaining $2,859.27 shall be paid to the applicant.

The next issue is the extent of the applicant's permanent disability, including her disability on a vocational basis for loss of earning capacity. On the one hand, Mr. Greenya does mix apples and oranges-by comparing the applicant's pre- injury capacity based on estimated 1999 wages with the employer with post-injury capacity based on 1997 wage figures-having the effect of skewing the post-injury loss upward. Mr. Meltzer, on the other hand, puts substantial weight on the applicant's ability to find one job paying about what she earned before. However, the applicant had lost that job by the time of the hearing, due in part to her need for treatment for the work injury. Nonetheless, any weakness in Mr. Meltzer's analysis is overcome by his hearing testimony concerning the 1998 wage range for the very jobs that Mr. Greenya posited were appropriate for the applicant given her restrictions after her injury.

The commission therefore concludes a 10 percent rating for loss of earning capacity - the high end of the range posited by Mr. Meltzer in his report - is appropriate in this case. In making this finding, the commission has considered the applicant's wages, but also the effect of her substantial physical restrictions documented by Dr. Bogdanowicz, her relatively young age, her education including technical school certification as a central supply technician, and her credible testimony concerning her efforts to find work. The applicant's functional disability rating, which itself does not exceed 10 percent, is merged into the rating for lost earning capacity.

The applicant is therefore entitled to 100 weeks of permanent partial disability compensation. At the weekly rate of $179 per week (the statutory maximum for injuries in 1998), the applicant's award for permanent partial disability hereunder equals $17,900, all of which has accrued.

In sum, then, the applicant's award for disability hereunder equals $20,759.27 ($2,859.27 in TTD and $17,900 in PPD.) The applicant approved an attorney fee, which under Wis. Stat. § 102.29 and Wis. Adm. Code § DWD 80.43 is set at twenty percent of the additional amounts owed. The fee is thus $4,151.85 and together with costs of $700.20 shall be paid to the applicant's attorney within 30 days. The remainder, $15,907.22, shall be paid to the applicant within 30 days.

The applicant has also incurred substantial reasonable and necessary medical treatment expense to cure and relieve the effects of the work injury. Exhibit E is a statement signed by Dean Sutton, subrogation specialist, indicating that as of July 29, 1999 Dean Health Plan had a subrogation interest in the applicant's medical expense payments in the amount of $25,477.06 based on Dean Health Plan's payments of those expenses. Exhibit 5 is a copy of a document on Dean Health Plan's stationery, apparently executed by Dean Sutton on behalf of Dean Health Plan, purporting to settle Dean Health Plan's subrogation interest in the applicant's medical expenses, which amounted to $27,009.71 as of the January 27, 2000.

From these documents, the commission concludes that, as of July 29, 1999, the applicant in fact had incurred $25,477.06 in reasonable and necessary medical expense to cure and relieve the effect of the work injury, all of which was paid by Dean Health Plan. Under normal circumstances, the respondent and the insurer would be liable to Dean Health Plan in that amount. Because Dean Health Plan is not a party before the commission, the commission declines to decide that entity's rights vis-…-vis the insurer under the compromise agreement in exhibit 5. The commission therefore orders reimbursement of the medical expenses paid by Dean Health Plan under Wis. Stat. § 102.30(7), with the caveat that the commission does not intend to require double payment of amounts already paid or validly compromised by the insurer.

Finally, Dr. Bogdanowicz credibly opined that further treatment would be necessary. The commission therefore retains jurisdiction to permit further awards for future temporary and permanent disability and medical treatment arising from the work injury, but after the date of hearing. Jurisdiction on certain other potential claims, including claims under Wis. Stat. § 102.35(3), is automatically retained by statute under Wis. Stat. § 102.18(4)(a).

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.

Within 30 days from the date of this decision, the employer and its insurer shall pay all of the following:

1. To the applicant, Dina Zwieg, the sum of Fifteen thousand nine hundred seven dollars and twenty-two cents ($15,907.22) in disability compensation.

2. To the applicant's attorney, James A. Meier, the sum of Four thousand one hundred fifty-one dollars and eighty-five cents ($4,151.85) in fees and Seven hundred dollars and twenty cents ($700.20) in costs.

3. To Anthem Health Group Shared Funding, the sum of Four thousand one hundred seventy-four dollars and ninety-five cents ($4,174.95) in reimbursement of non-industrial disability payments under Wis. Stat. § 102.30(7).

4. To Dean Health Plan, Twenty-five thousand four hundred seventy- seven dollars and six cents ($25,477.06) in reimbursement of medical expenses paid, subject to the caveat that the commission does not intend double payment of amounts already paid or validly compromised by the insurer.

Jurisdiction is reserved for further orders and awards as may be appropriate under
this order.

Dated and mailed December 28, 2000
zwiegdi.wrr : 101 : 3 ND § 5.12  § 5.21

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ 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 ALJ found the applicant to be a credible witness. The ALJ also stated that he believed from the applicant's testimony, and that of Ms. Clark and Ms. Hagen, that the applicant's duties were repetitive and demanding, and that Dr. Lemon lacked understanding of the applicant's actual duties. The ALJ also reported that he believed the applicant was credible regarding her efforts to find work.

The commission shares these credibility impressions. It modified the ALJ's findings regarding the extent of loss of earning capacity mainly because it discredited the opinion of Mr. Greenya, an expert witness who did not actually testify before the ALJ.

Finally, the respondent's brief mentions the applicant's receipt of unemployment insurance, and suggests that those payments be applied in offset of the applicant's award for temporary disability. However, the commission and the department do not reduce workers compensation liability by offsetting unemployment insurance payments. Instead, the process works the other way around:  if an applicant gets payments of temporary disability under Wis. Stat. ch. 102, the Unemployment Insurance Division of the Department of Workforce Development may issue an overpayment determination. For this reason, a copy of this decision is being sent to the Bureau of Legal Affairs in the Unemployment Insurance Division. (2)

cc: ATTORNEY JAMES A MEIER
MEIER WICKHAM LYONS & SCHULZ SC

ATTORNEY JAMES G NOWAKOWSKI
HALLING & CAYO SC

GREGORY FRIGO
DIRECTOR, BUREAU OF LEGAL AFFAIRS

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Footnotes:

(1)( Back ) The commission reads Dr. Lemon's reference to the refrigerator-reaching incident of March 1998 "alone" causing the disc herniation to mean that the cart-separating incident of February 1998 played no role. The commission does not read exhibit 3 to retract Dr. Lemon's earlier opinion that the applicant's pre-existing degenerative condition obviously played a role in the disc herniation.

(2)( Back ) For a discussion of this policy, including the practice of providing a copy to the Bureau of Legal Affairs, see Neal & Danas, Workers Compensation Handbook § 5.12 and Appendix 4H (4th ed., 1997).

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