Wis.LIRC WC Decision: Stidham, James - February 28, 1992 - ND � 8.32 - Orders - prospective order compelling the employer and insurer to pay for a future medical procedure

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES R. STIDHAM, Applicant

MARTEN TRANSPORT, LTD., Employer

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89-070496

Pursuant to the timely petition for review filed by the respondents in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's Findings and Interlocutory Order are supported thereby. The Commission therefore adopts the Findings and Interlocutory Order of the Administrative Law Judge as its own, except as herewith modified:

MODIFIED FINDINGS OF FACT

Delete the second sentence in the first full paragraph on page five of the Administrative Law Judge's decision and substitute therefor the following:

"As of the date of the hearing held in this matter a cervical fusion at C6-7 is reasonably required to cure and relieve the effects of applicant's compensable injury. As of the date of this order respondents had knowledge of the necessity of this treatment and no reasonable basis or bona fide justification for believing otherwise exists on the record."

In the first line of the fourth full paragraph on page five of the Administrative Law Judge's decision delete the word "will" and substitute therefor the word "might."

NOW, THEREFORE, the Labor and Industry Review Commission does issue this

INTERLOCUTORY ORDER

It is ordered that the findings of fact of the Administrative Law Judge are modified to conform to the foregoing, and, as modified, said Findings and Interlocutory Order of the Administrative Law Judge are hereby affirmed.

Dated and mailed February 28, 1992.
ND � 8.32

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Respondents challenge the Administrative Law Judge's (ALJ's) decision, alleging that the reports of independent medical examiner Sims were not inconsistent, that Dr. Sims' examinations of applicant were within normal limits and they revealed normal ranges of motion and no neurological deficits, and pointing out that Dr. Sims interpreted two MRI studies, the second showing an increase or advance when compared to the first, and both of which showed C6-7 posterior central disc herniation with impingement of the neurologic structure, as being "false positive." Respondents also alleged that the reports of Drs. Gammel and Mann did not explain inconsistencies in their reports. Finally, the respondents challenged the ALJ's finding that applicant "will need" cervical fusion and "will sustain" additional medical expense and disability.

The Commission has reviewed the entire record in this matter and not only finds that there is credible evidence to support the findings of the ALJ but finds that the supportive evidence is overwhelming evidence. The ALJ's findings speak for themselves and will not be repeated here. The ALJ's decision indicates there are inconsistencies in Dr. Sims' reports and the record reflects this as being accurate. While Dr. Sims' opinion that applicant had no evidence unshaken" it did so not only in the face of the overwhelming evidence of record but also in the face of his own findings. In the first written report of September 21, 1990 Dr. Sims' own objective findings indicate cervical spine range of motion as being less than normal, weakness in left upper extremity grip strength, and recommends another month of physical therapy. In his second report of December 10, 1990 (based upon exam of December 4, 1990), besides acknowledging the MRI which shows a disc herniation, he again finds a loss of range of motion and decreased left grip strength but this time calls them "suspect." However, his recommendation is that applicant be given a repeat MRI of his cervical spine. (Even Dr. Sims admits with reference to eligibility for temporary total disability which was an issue at the hearing, that applicant did not reach his healing plateau until said December 4, 1990 exam.) His last report of June 17, 1991 acknowledges his own finding of a "gross indentation of the dural sac, and in my opinion amounts to a central herniation" concerning the second MRI.

A review of the remainder of the record also reveals that applicant has been consistent in his complaints of cervical pain since almost immediately after the injury and that these complaints are consistent with a diagnosis of a disc herniation at C6-7. Contrary to the assertion that the reports of Drs. Gammel and Mann are inconsistent, and that they show no sign of neurological deficit, Dr. Mann's report of April 10, 1990 indicates some weakness in the abductor muscles on the left side and his impression included complaints of paresthesias in both hands. Further his report hypothesizes the etiology of these complaints to be either nerve entrapment or cervical problems. A review of Dr. Gammel's reports contradicts the assertion that his neurological examinations were normal. For example, Dr. Gammel found in his report of March 13, 1991 that the motor examination was still strongly suggestive of weakness in his left posterior arm compartment muscle, and sensory examination was equivocal showing some dimunition to light touch of pin wheel in his thumb area, fourth and fifth fingers, and back of his left hand. While Dr. Sims speculates about "false positive" MRI results Dr. Mann, neurological surgeon Gammel, orthopedic surgeon Klein, and radiologist Nieves all believe applicant's problems are caused by a herniated cervical disc. Applicant underwent over one and a half years of physical therapy and other conservative treatment without a resolution of his problem. For all of these reasons the ALJ's findings in the above regard were affirmed as written.

Respondents also challenge the ALJ's finding that applicant "will need" cervical fusion and thus "will sustain" additional medical expense and disability. The Commission modified the ALJ's decision to eliminate these prospective findings. It is noted that under the case of Levy v. Ind. Comm., 234 Wis. 670, 291 N.W. 807 (1940), section 102.16 (1), and section 102.17 (1)(a), Stats., the Commission "has jurisdiction to determine any dispute or controversy arising under the Compensation Act." Levy, 291 N.W. at 810. From a review of the procedures followed in this claim and the testimony and evidence produced it is clear that a genuine and significant dispute or controversy concerning the question of applicant's need for a cervical fusion as a result of his herniated disc existed, was known to have existed by the parties, and was fully litigated by the parties in this claim. Indeed, as indicated above, the central and only focus of Dr. Sims' reports concerned applicant's disc. As further indicated above at least four doctors diagnosed applicant as having a herniated cervical disc and applicant had undergone over a year and a half of conservative treatment for such disc at the time of the hearing held herein. Therefore the nonpropsective findings made by the Commission are appropriate in this matter. It is also noted that respondents' reply brief indicates that section 102.13 (3)(a), Stats., (1985-1986), which references "tie-breaker examinations" as a tool for addressing "necessity" of treatment issues, was not applicable after December 31, 1987 under section 102.13 (3)(c), Stats., (1985-1986). However respondents failed to note that 1987 Wis. Act 179 effective in 1988 and in force on the date of injury (November 2, 1989) in this claim, and specifically section 7 thereof, renumbered section 102.13 (3)(a), Stats. (1985-1986) to make it section 102.13 (3), Stats., (1987-1988) and section 8 of 1987 Wis. Act 179 repealed the previously referenced section 102.13 (3)(c), Stats., (1985-1986). Therefore the current version of section 102.13(3), and the one which was in effect on the date of applicant's injury, does envision the Department resolving necessity of treatment issues.

Respondents attached several documents to their reply brief which were not contained in the record before the ALJ. The Commission was unable to consider these documents for such reason and its decision was rendered without consideration thereof. However, had such documents been considered, they would only reinforce the results reached by the Commission.

cc: Attorney Christopher D. Walther
Christopher D. Walther and Associates, S.C.

Attorney Leonard S. Zubrensky
Zubrensky, Padden, Maloney, Katzman and Weir

199 : CD0820

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