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


BERNICE JENTSCH, Applicant

CRAMER COIL TRANSFORMER, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1990-000661


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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. Delete the seventeenth, eighteenth, and nineteenth paragraphs of the ALJ's Findings of Fact and substitute:

"Dr. Leo's rating of permanent partial disability on a functional basis at 25 percent is most credible. Under the administrative code, a twenty-five percent award correlates with multiple back or spine surgeries. Wis. Adm. Code § DWD 80.32(11). In addition, the statutes provide for permanent total disability on a functional basis (that is, without expert evidence of a separate vocational impact) for disabilities such as the loss of both legs, both eyes, or both arms. Wis. Stat. § 102.44(2). The functional effects of the applicant's injury are undeniably significant. However, considering the standards routinely used by doctors to evaluate disability in workers compensation cases, (1) Dr. Leo's most accurately rated the applicant's functional loss.

"On the other hand, Dr. Reynolds's functional disability rating of 80 percent compared to compared to permanent total disability cannot be credited. Indeed, Dr. Leo, after reviewing and deferring to Dr. Reynolds's work restrictions, reiterated his (Leo's) 25 percent permanent partial disability rating in his June 6, 2000 practitioner's report. Transcript, pages 26-27. It is reasonable to infer that Dr. Leo reiterated his 25 percent rating, rather than simply deferring to Dr. Reynolds 80 percent rating, because he (Leo) concluded so high a rating was unwarranted, even with the restrictions set by Dr. Reynolds.

"As noted below, the applicant's condition has progressed over time, perhaps suggesting an increased disability from the point in 1994 when Dr. Leo set his disability rating of 25 percent. However, whatever worsening has occurred in the applicant's condition, it does not warrant an increased functional disability rating to 80 percent, particularly when another treating doctor maintained as recently as June 2000 that a much lower rating is justified.

"On the third hand, Dr. Novom's rating of five percent compared to permanent partial disability is unrealistically low. The applicant is significantly disabled by the work injury, and testified credibly concerning her residual impairment affecting her ability to walk, raise her head, and do routine tasks including writing. A five percent rating is appropriate for a worker who undergoes a successful laminectomy surgery under Wis. Adm. § 80.34(11). The applicant's functional disability in this case is significantly higher.

"While his functional disability rating cannot be credited, the permanent restrictions set out by Dr. Reynolds on September 10, 1999, are the most credible. Dr. Leo deferred to them because Dr. Reynolds had more recently examined the applicant. Dr. Novom, of course, has not himself examined the applicant since 1994. In addition, while the applicant's condition responds better to the medications that Dr. Reynolds is currently prescribing, her overall condition has clearly progressed since Dr. Leo initially released the applicant to work subject to the permanent work restrictions in 1990. (2) Indeed, Dr. Leo testified that torticollis generally plateaus about five years from the date of injury, but then might continue to progress from a neurologically-based to structurally-based problem. Transcript, page 15."

2. Delete the twenty-third paragraph of the ALJ's Findings of Fact and substitute:

"The applicant is entitled to up to 250 weeks of permanent partial disability (PPD) benefits for the periods she was not temporarily disabled prior to the onset of her permanent total disability. Consequently, PPD benefits are due from September 11, 1990 to June 27, 1995, or 250 weeks at $125 per week totaling $31,250."

3. Delete the twenty-seventh paragraph of the ALJ's Findings of Fact, and substitute:

"Pursuant to Wis. Stat. § § 102.26(3) and102.44(5), the fee of the applicant's attorney is set as follows:

On PPD payable from September 11, 1990 to June 27, 1995, the sum of $5,000 (twenty percent of the $31,250 less the prior payment of $6,250).

On PTD/SSA payable from September 10, 1999 to August 10, 2000, the sum of $485.51.

On PTD/SSA beginning on September 10, 2000, the sum of $43.98 per month."

4. The first paragraph of the ALJ's INTERLOCUTORY ORDER is deleted and the following substituted therefor:

"That within thirty days, the respondent and its insurance carrier shall pay to the applicant, Bernice Jentsch, as accrued compensation, the sum of Twenty-two thousand seventy-five dollars and seventy-two cents ($22,075.72) and beginning September 10, 2000 and monthly thereafter, the sum of Two hundred twenty dollars ($220.00) for as long as she may live; and to Attorney Steven D. Hitzeman, as accrued frees, the sum of Five thousand six hundred thirty-two dollars and sixty-nine cents ($5,632.69) and as reimbursement for costs, the sum of One thousand one hundred twenty-eight dollars and ninety-five cents ($1,128.95) and beginning September 10, 2000 and monthly thereafter, the sum of Forty-three dollars and ninety-eight cents ($43.98) through April 10, 2009 or the death of the applicant, whichever occurs first."

ORDER

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

Dated and mailed March 20, 2001
jentsch . wmd : 101 : 1  ND §  5.49

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

On appeal to the commission, the employer and its insurer (collectively, the respondent) make essentially two arguments: that the applicant should not be entitled to further benefits because she unreasonably refused treatment, and that Dr. Reynolds's 80 percent permanent partial disability rating (and the restrictions that go with it) are unreasonable and cannot be the basis for a finding that the applicant is permanently and totally disabled.

a. Refusal to treat?

The unreasonable refusal of treatment argument offered by the respondent is based on Wis. Stat. § 102.42(6) which provides:

"102.42(6) TREATMENT REJECTED BY EMPLOYE. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental, hospital or sanatorium treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or sanatorium treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or sanatorium treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby."

The statute by its terms prevents the payment of compensation insofar as disability is aggravated, caused or continued by an unreasonable failure to treat. However, the commission is not persuaded that it may make such a finding in this case. Even the independent medical examiner, Dr. Novom said the botulinum injection treatment might lead to an attenuation of the condition. Exhibit 2, page 3, paragraph 4. Treating doctor Leo also refused to opine definitely that the injections would improve the applicant's condition, and testified that a sizeable portion of patients experienced no relief from the injections. Finally, in his report at exhibit 2, page 3, IME Novom referred to the injections as palliative, meaning they provide pain relief only, and specifically stated they were not likely to be of durable curative or restorative means.

In this sense, this case is quite distinguishable from the facts in Braun v. Industrial Commission, 36 Wis. 2d 48 (1967), a case cited by the respondent for the proposition that an employer is not liable for the consequences of an employee's neglect or refusal to follow competent and reasonable medical treatment. In that case, an employee had injured his feet, and was hospitalized with the instruction to remain off his feet while they healed. Instead, he walked out of treatment, reinjuring himself in the process. Obviously, a case where an employee still recuperating in a hospital who exhibits such behavior and causes additional disability, is different than one who rejects a palliative and noncurative course of injections whose long-term effects are known. In Braun, the effect of the refusal of treatment was readily apparent; in the current case it is in doubt.

Finally, the commission has distinguished between an unreasonable refusal of treatment, and a refusal of reasonable treatment. Booker T. Johnson v. PFT Services, WC claim no. 1998065713 (LIRC, March 29, 2000). Under the statute, it is the refusal that must be unreasonable. An injured worker can reasonably refuse treatment, even treatment which all the medical experts agree may be reasonable, where its long term effects admittedly are unknown and it provides palliative but not curative benefits.

b. Extent of disability.

The commission agrees that Dr. Reynold's rating of functional disability was unreasonably high, and amended the decision to substitute Dr. Leo's rating therefor. However, the reasonableness of the work restrictions set by Dr. Reynolds is a separate question. The commission, after carefully considering the record, concludes the work restrictions themselves are quite reasonable, and affirmed the permanent total disability award based upon them.

On this point, the respondent asserts that the applicant's jobs in home health care and factory work after leaving the employer suggest that she must have exceeded even Dr. Leo's 1993-94 restrictions. However, the applicant's testimony is she did not exceed the restrictions, and in fact left some jobs because she was expected to exceed the restrictions. Moreover, a doctor's work restrictions do not represent, necessarily, the absolute maximum it is humanly possible for an injured worker to do, but usually the most a worker should do in an employment setting to minimize undue pain symptoms or the risk of worsening or aggravating the worker's condition. The applicant's ability to work in pain, while doing various jobs for a few months at time, is not necessarily inconsistent with Dr. Reynolds's increased work restrictions. This is particularly true given the medical record in this case and the ALJ's impression-stated during the credibility conference-that the applicant struck her as someone motivated to continue to work as long as possible. Finally, if one concludes, as the commission does, that Dr. Reynolds's restrictions are the most reasonable, both parties' vocational experts opine the applicant is permanently and totally disabled on an odd-lot basis.

During the credibility conference with the presiding ALJ, she characterized the applicant as very credible. She informed the commission that, during the lengthy hearing, the applicant's posture remained consistent: she sat with her head tilted to shoulder and her hand as well on her shoulder, and was unable to turn her head to the left. The ALJ saw the applicant as she testified, and quite clearly saw someone in pain who experienced greater pain with simply looking down, writing, and using her hands for virtually any purpose. Given these credibility impressions, the applicant's testimony that she is as restricted as Dr. Reynolds opined is quite reasonable.

The ALJ did acknowledge, however, that she was uncomfortable with Dr. Reynolds's functional permanent partial disability rating, but felt that she must credit it as Dr. Reynolds had seen the applicant most recently. Again, had Dr. Reynolds's rating been lower, or had Dr. Leo deferred to it (as he did the permanent restrictions), the commission would have agreed. However, the commission, after carefully considering the record, concluded that Dr. Leo's rating more accurately reflected the applicant's actual functional disability, when compared to permanent total disability, on a functional basis, to the body as a whole.

Finally, the commission recalculated the award to account for the lower amount of permanent partial disability on a functional basis that accrued before the applicant's permanent total disability on a vocational basis began to accrue. However, the commission did not attempt to update the award to reflect accruals or permanent total disability since the ALJ's order, because the commission is uncertain whether January 2000 was a redetermination date for the purposes of the reverse social security offset.

cc: Attorney Steven D Hitzeman
Attorney Kurt Van Buskirk


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Footnotes:

(1)( Back ) How to Evaluate Permanent Disability, (Worker's Compensation Division, WKC- 7661-P (R.10/97), pages 11-13, 15.

(2)( Back ) Although Dr. Leo mentions restrictions against repetitive use of both hand, work above shoulder level, and lifting greater than 5 pounds" in his practitioner's report dated in October 1994, his report also states these were the permanent restrictions he set when he released the applicant work in 1990.