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

CHRISTOPHER G IRVINE, Applicant

UNITED PARCEL SERVICE, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-021734


The applicant filed an application for hearing in November 1999 seeking compensation for an injury on April 15, 1998. The employer and its insurer (collectively, the respondent) conceded jurisdictional facts and a compensable injury occurring on April 15, 1998. The respondent has paid temporary disability in the amount of $40,968.36 for the periods from the date of injury through October 31, 1998. The respondent also conceded permanent partial disability at 20 percent as a result of the work injury, and was paying on that concession as of the date of the hearing.

A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on November 27, 2000. At the hearing, the applicant sought additional temporary total disability compensation to the date of the hearing and ongoing, certain additional medical treatment expenses, and a ruling obligating the respondent to pay for future treatment.

On December 4, 2001, the ALJ issued an order denying the claim for additional temporary disability compensation and directing the insurer to make a good faith review of the claimed medical expense with a view toward payment of at least some of the claimed expense. The applicant filed a timely petition for commission review.

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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work injury and treatment.

The applicant was born in 1952. He began working for the employer in 1995. He worked as a mechanic, fixing the employer's delivery trucks in Madison. He was injured on April 15, 1998, while standing on a truck's hood to fix its windshield wipers. The applicant slipped, lost his balance, fell onto the vehicle's windshield, broke or cracked the windshield, fell off the truck five or six feet to the floor, and struck a jack on the shop floor with the right side of his body.

According to the applicant's hearing testimony, he lost consciousness, got up some time later, drove back to Milwaukee where he lives, and sought treatment at St. Luke's Hospital. The emergency room note for that treatment, dated April 16, 1995, is at Exhibit H. The emergency room doctor, Elizabeth Hatfield, M.D., reports that the applicant fell from the truck, striking his head on the windshield. She noted that he was stunned but did not pass out. She reports that he lay there for a while, got up and finished loading the truck, then drove to Milwaukee.

Dr. Hatfield reported complaints of right-sided chest pain, neck pain, low back pain, and right leg numbness. X-rays, a CT scan and urine sample were done during the emergency treatment; the tests were all negative. Dr. Hatfield discharged the applicant with a diagnosis of right chest wall contusion, closed head injury, cervical strain and low back pain. She instructed him to follow with his own doctor within a week.

Accordingly, the applicant saw a neurologist, Charles Supapodok, M.D., on April 23, 1998, complaining of severe pain in the right arm and right leg. Exhibit I. He told the doctor he could not move his right arm and leg, and was experiencing numbness and tingling in those extremities. He gave Dr. Supapodok the history of falling from the truck, and told the doctor he did not pass out, but felt "oozy."

On examination, the doctor noted acute distress due to pain in the right shoulder, the applicant's inability to abduct his right arm to a horizontal position, and that forward flexion was also impossible. He could feel a muscle spasm in the paracentral muscles.

The doctor's diagnostic impression was severe cervicalgia, and he wanted to rule out a herniated cervical disc. He also wanted to rule out a right brachial plexopathy caused when the applicant fell with his right arm extended. He also wanted to rule out a lumbar radiculopathy or herniated disc. Accordingly, Dr. Supapodok referred the applicant for a CT scan of the lumbar spine and MRI of the cervical spine. Regarding the shoulder problem, he referred the applicant to a specialist, David J. Siverhus, M.D. Dr. Supapodok kept the applicant off work until he could see him on May 12.

The applicant saw Dr. Siverhus on April 27 and 29, 1998. Dr. Siverhus initially was concerned that the applicant had an underlying traumatic cuff tear. An MRI did show what appeared to be a labral tear and questionable partial thickness tear versus tendinopathy at the musculotendinous region of the supraspinatus muscle. The doctor wanted to begin range of motion exercises and modalities to the right shoulder.

The applicant returned to Dr. Supapodok on May 12, 1998, still complaining of right shoulder, neck, and rib pain. He reported only a 10 percent range of motion compared to normal. The doctor reported that an EMG done to rule out cervical radiculopathy or significant right brachial plexopathy was normal. Dr. Supapodok kept the applicant off work.

The applicant's continuing treatment with Dr. Siverhus for the rotator cuff problem is documented at Exhibit K. The doctor ordered continuing physical therapy and followed the applicant thereafter. By September 2, 1998, Dr. Siverhus noted the applicant was doing well, and his shoulder pain had essentially resolved. There was some limitation on internal rotation, but otherwise no problems. Dr. Siverhus discontinued the applicant's therapy, and released him to full duty work so far as his shoulder went. Dr. Siverhus did note continuing problems with the applicant's back for which the applicant was obtaining further evaluation.

Indeed, the applicant testified that the pain medication that Dr. Supapodok prescribed for his back did not really help the pain, and that his legs continued to be numb. Consequently, the applicant went to see a chiropractor, Scott Simkowski, D.C., whose opinion is included at Exhibit F. Dr. Simkowski treated the applicant on numerous occasions between May 15, 1998 and February 8, 1999, for chronic lower back pain.

In August 1998, the applicant began seeing a neurosurgeon, Wade Mueller, M.D., on referral from Dr. Simkowski. His notes are at Exhibit N. Dr. Mueller noted the fall from the hood of the truck, and he reported a loss of consciousness. He noted the extensive treatment thereafter, following early complaints of lower back pain, neck pain, and leg numbness. He noted improvement to the neck pain, and to the radicular pain in the leg and arms, but continuing debilitating lower back pain. The doctor reported that the CT scan of the applicant's lumbar spine showed a question of a pars defect, while the MRI of the neck showed degenerative changes but no evidence of cord compromise. The doctor wanted to get an MRI of the applicant's back.

Dr. Mueller also noted dizziness, headache, and unsteadiness consistent with post-concussive syndrome. He referred the applicant to Gerda Klingbeil, M.D. for treatment of that problem.

After getting the MRI of the lumbar spine, Dr. Mueller did not see gross pathological lesions, though there was evidence of significant degenerative changes of the lumbar spine. The doctor ordered another scan, a low-dose CT myography. This, too, showed an L5 pars defect consistent with the applicant's back pain. He referred the applicant to Diane Braza of the SpineCare Center for evaluation. Exhibit N, Mueller notes of September 1 and 15, 1998.

Meanwhile, the applicant saw Dr. Klingbeil for evaluation of the post-concussive syndrome. She noted a 50-minute loss of consciousness with the work injury. His main problem with respect to the post-concussive syndrome was loss of short-term memory. Her diagnostic impression was status post trauma to the brain, with loss of consciousness for a period of time, and no demonstrable pathology, but mild short-term memory problems. She referred him to Joseph Cunningham, Ph.D., for a neuropsychological evaluation to see if there were subtle problems.

Dr. Cunningham's assessment was that the applicant suffered from a traumatic brain injury from which he had made a good recovery. Dr. Cunningham administered various tests to measure cognitive function, and they were relatively normal, except for borderline sustained attention and recall performance decline following interference. The doctor allowed a return to work pending resolution of the applicant's back problems, though he did opine the applicant's problems with sustained attention and interference could cause problems. See Exhibit N, report of Cunningham, dated October 14, 1998.

About this time, the applicant was examined by Gregory Whitcomb, D.C., and Diane Braza, M.D., of the SpineCare Clinic, where he had been referred by Dr. Mueller. Dr. Braza's September 24, 1998, note describes the fall from the truck hood, to windshield, to floor, and an ensuing loss of consciousness. The doctor noted rib pain and right arm pain associated with a rotator cuff injury immediately following the injury, together with increased low back pain and right arm and leg numbness noticed about the time of work hardening. The applicant's current complaint was sharp, constant low back pain.

Dr. Braza's diagnostic impression was mechanical non-radicular low back pain in an individual with an underlying bilateral L5 pars defect, and very mild L5-S1 spondylolisthesis without evidence of instability; post-concussive syndrome with resolving headaches and reported mild memory and concentration difficulties; and right rotator cuff injury. Her recommendation was therapy directed by Dr. Whitcomb.

Dr. Whitcomb examined the applicant on September 28, 1998. The doctor noted ongoing back pain since the April 1998 back injury. The doctor noted that the applicant's primary complaint was moderate to strong well-localized low back pain with no progressive leg weakness or paresthesias. The doctor's clinical impression was poorly resolving musculoligamentous back strain, with bilateral L5 pars defects and L4-5 facet arthropathy. He recommended a structured, progressive return to work as soon as possible, noting the applicant failed to return to work four weeks earlier due to progressive back symptoms.

Notes from this treatment with Dr. Whitcomb are at Exhibit N. The applicant reported decreasing pain and Dr. Whitcomb noted he was progressing very well. On November 6, 1998, the applicant returned to Dr. Braza, who noted the applicant was clinically stable with only minimal pain. She felt he was able to return to work in the near future, and that the applicant had already agreed upon a November 23, 1998, return with his employer. Dr. Braza opined no restrictions were necessary, though the applicant was to self-limit bending and twisting, and to comply with his home exercise program.

On December 3, 1998, Dr. Braza wrote a WKC-16 medical report. She stated diagnosis of mechanical low back pain, bilateral pars defect at L5, mild spondylolisthesis, post-concussive syndrome, and history of right rotator cuff injury. She reiterated he could return to work as of November 23, 1998, without formal restrictions (other than to self-limit bending and twisting), and that a healing plateau was pending.

Meanwhile, the applicant did return to work on November 23, 1998, and worked eight to fifteen hours per day. His back pain increased with returning to work, causing him to miss one day of work. Indeed, Dr. Simkowski's notes report that the applicant felt quite sore with his first week back at work, and experienced increased pain in bending forward and standing for long periods of time. See Exhibit F, Simkowski note for November 30, 1998. By January 4, 1999, Dr. Simkowski noted lower back pain, rated at 7 or 8 of 10, increasing daily with continued work.

About the same time, the applicant discontinued his exercise schedule. Dr. Braza, who saw the applicant on January 4, 1999, recommended he resume and continue his exercise schedule, and self-limit his work activities to avoid prolonged bending and twisting at the waist. Dr. Braza hoped for a healing plateau in the next two or three months.

On January 14, 1999, the applicant spoke with Dr. Braza, reporting an exacerbation of low back pain, associated with pain extending into the right buttock, lateral hip, knee and posterolateral calf. Dr. Braza noted that chiropractor Simkowski had taken the applicant off work (see Exhibit F, Simkowski note for January 11, 1999). Given the progressive right leg symptoms and extreme pain, Dr. Braza wanted to do a repeat MRI and bone scan.

In her next note of January 18, 1999, Dr. Braza noted complaints of sharp needle-like stabbing pain extending into his right buttock and right lower extremity. She reported the applicant was in obvious distress at the time of the examination, with an antalgic gait, severe pain on light palpation of the buttock, specifically over the sciatic notch, and a severe increase in pain with trunk flexion past 40 degrees. She noted, too, that the January 15, 1999, bone scan was consistent with facet degenerative changes, and that a verbal report of the recent MRI showed multilevel degenerative disc disease in the lumbar spine, the L5 pars defect, but no focal L5-S1 disc herniation.

Dr. Braza's diagnostic assessment was acute severe low back pain in an individual with an underlying L5 pars defect and L4-5 facet arthropathy. She noted, too, that his most recent symptoms were more suggestive of an acute right lumbosacral radiculopathy. She wanted him to return to Dr. Mueller for a neurosurgical consultation, and noted that epidural steroid injections might be warranted. She kept him off work through January 25, 1999.

Dr. Mueller then saw the applicant on January 19, 1999. He noted the applicant continued with a significant amount of back pain that seemed mechanical in nature. He discussed lumbar decompression and fusion surgery with the applicant, but told the applicant he needed to quit smoking first.

Dr. Mueller saw the applicant, with his wife, again on February 2, 1999. At the time, Dr. Mueller noted continued low back problems with an L5 pars defect and spondylolisthesis. The couple agreed on a decompression and fusion surgery, which was planned for February 15, 1999.

The surgery went ahead as planned on February 15, 1999. The operative and discharge notes are at Exhibit L. The specific procedures were an L4-5 laminectomy and L4-S1 fusion.

Dr. Mueller saw the applicant again on February 23, 1999. The doctor noted his back looked good, as did an x-ray of his back. He allowed the applicant to start walking. On re-examination on March 9, 1999, Dr. Mueller noted the applicant did not have the burning pain that he had had pre-operatively, but did have a bothersome burning in his right lateral thigh which had not improved. On April 6, 1999, the doctor noted x-rays were showing an increasing amount of bone graft on the right side but not on the left. He referred the applicant back to Dr. Braza to help with post-operative rehabilitation, and also referred him to Mazin Elias, M.D., to assess the burning pain in the left thigh.

Dr. Elias advised the applicant to continue using Neurontin, a medication prescribed by Dr. Braza, and also prescribed Amitriptyline. Dr. Elias also did a trial of a TENS unit, prescribed a cream, and recommended the applicant for epidural steroid blocks.

Dr. Braza saw the applicant on April 29, 1999. He complained of increasing urinary urgency and frequency worsening over the past month, but no instances of incontinence. She noted an impression of right anterior thigh pain, status post L4-5 laminectomy and L4-S1 fusion. She thought the pain was likely post-operative dysesthetic pain in the L4 nerve root distribution. Her plan was to have him continue to follow with Dr. Elias for pain management, and then follow-up with physical therapy.

On June 8, 1999, the applicant saw Dr. Mueller, who noted the applicant was treating the applicant with a TENS unit, which alleviated the pain at least while it was on. X-rays showed an increasing amount of bone graft material. Dr. Mueller planned to see him in six months for what might be his last set of paraclinic x-rays.

The applicant saw Dr. Braza on June 14, 1999. He continued to complain of constant "shorting out electrical sensation" above his right knee. She noted neuropathic pain involving the proximal right lower extremity, particularly the L2-3 roots, and that Dr. Elias was considering him for a dorsal column stimulator. (1) She advised the applicant to return to Dr. Elias, that he begin an aquatic program for general conditioning, and that he more actively pursue a spine stabilization program. She noted too that he would be seen by a physical therapist in the near future.

Dr. Braza reiterated her recommendation of an aquatic exercise program and spine stabilization program in her note of July 8, 1999. She was concerned about evidence of chronic pain syndrome with further deconditioning and debilitation, and so recommended psychological testing.

In mid-July 1999, the applicant had to go to an emergency room because of tremors, decreased mental functioning, and lethargy which could be due either to stroke or problems with his medication. See the emergency room notes at the end of Exhibit L. Dr. Braza's July 22, 1999, note indicated that the problem turned out to be one of medicine dosage. In her follow-up note of July 22, 1999, she reiterated her recommendation of aquatic therapy and psychological testing.

In her note for August 17, 1999, Dr. Braza noted the applicant saw Timothy Lynch, M.D., for a cognitive assessment. Dr. Lynch's report is described in IME Novom's report at Exhibit 3, page 3. Dr. Lynch apparently did not see any underlying psychological problem preventing implantation of the stimulator.

At any rate, on August 17, 1999, the applicant described his thigh pain to Dr. Braza as excruciating, and stated he felt it was ruining his life. Home exercise was difficult because of the chronic neuropathic pain along the right proximal extremity; she opined "I believe he is plateauing with his home exercise program as his pain continues to limit his ability to advance into his exercises." She recommended further consideration of the dorsal column stimulator.

Dr. Braza also referred the applicant to Karen Blindauer, M.D. for evaluation of his tremors and headaches. Dr. Blindauer associated the problems with the applicant's caffeine consumption and psychological stress. Exhibit 7, August 25, 1999 report of Blindauer.

In October 1999, the applicant saw Marc Novom, M.D., for an independent medical examination. His opinion, discussed in more detail below, essentially was that the applicant had long since plateaued from the April 15, 1998, injury; that his pain complaints were not based in any objective findings; that there was not really even any solid objective basis for the fusion surgery; that the proposed dorsal column stimulator surgery should not be done; but that instead alternative medications and neuropsychological review aimed at coping or palliative (as opposed to restorative) relief were appropriate for treatment of chronic pain.

The insurer stopped paying temporary disability compensation and medical treatment at this point. Nonetheless, the insurer agreed to pay permanent partial disability at 20 percent, apparently for the fusion surgery.

On October 28, 1999, the applicant discussed Dr. Novom's IME report with Dr. Braza. Dr. Braza's assessment was chronic pain syndrome with evolving depression and anxiety. She strongly recommended a psychiatric evaluation with Harold Harsch, M.D., and right lower extremity EMG to evaluate the applicant's ongoing neuropathic pain.

The applicant returned to Dr. Mueller on November 3, 1999. He reported a continuing increase in the amount of bone graft deposition, and that the applicant was not yet in a healing plateau from the fusion operation.

Dr. Mueller re-evaluated the applicant in May 2000. He noted the burning paresthesias in the right leg, and that a dorsal column stimulator could possibly improve his situation, but the only way to be sure was to try the stimulator. The doctor also thought that it might be beneficial at some point in the future to remove the fusion. Dr. Mueller also noted on May 9, 2000, that the applicant's x-rays showed good evidence of bony healing from his lumbar fusion, that the applicant correspondingly had a minimal amount of back pain, but that given the amount of his leg pain the applicant remained disabled.

Dr. Braza also re-evaluated the applicant in May 2000. Her impression was chronic pain syndrome with persistent right lower extremity pain. She noted that the right lower extremity EMG she had ordered earlier was normal. She thought the applicant should re-evaluate with Dr. Elias, and consideration be given to a dorsal column stimulator.

The applicant fell in July 2000 and redeveloped severe back pain and pain into his legs. This led Dr. Mueller to re-refer the applicant to Drs. Braza and Elias.

Dr. Braza re-examined the applicant on November 17, 2000; she noted that she has seen the applicant last in May 2000, and that he had had no significant treatment since then as the insurer refused to pay for the dorsal column stimulator. She noted that the applicant fell onto his butt on some stairs in July 2000, and that after the fall he had a bone scan showing possible loosening of the fusion hardware. Noting his ongoing chronic pain, for which he was treating with a Dr. Burchman rather than Dr. Elias, she continued to recommend trial of the dorsal column stimulator. She also recommended he follow with Dr. Mueller regarding a possible removal of the hardware.

As noted above, the employer concedes a compensable low back injury on April 15, 1998, causing permanent partial disability at 20 percent compared to permanent total disability. On the question of the extent of the applicant's continuing temporary disability, the record contains opinions from several medical experts.

The most recent opinions of the applicant's treating doctors state that the applicant remained in a healing period from the effects of the work injury. Dr. Braza specifically so stated in her practitioner's report dated November 20, 2000, which was based on her examination of November 17, 2000. That report lists an April 15, 1998, date of injury, and states that a traumatic event on that date directly caused the applicant's disability, and caused the disability by precipitation, aggravation, and acceleration of a pre-existing progressively degenerative condition beyond normal progression. Regarding permanent disability, Dr. Braza noted:

"[Patient] has not reached end of healing; recommend [patient] undergo dorsal column stimulator trial."

Exhibit C, Braza WKC-16-B dated November 20, 2000.

Dr. Braza's opinion that the applicant remain in a healing period as of her examination on November 17, 2000, is consistent with her May 15, 2000, letter to the applicant's attorney (following her May 4, 2000, examination) in which she opined that:

See Exhibits F and G.

For his part, Dr. Mueller opines that the applicant initially had an accident on April 15, 1998, and that over time he developed significant lower back problems which could well be related to this initial accident. Dr. Mueller pointed out that it is not unusual for people to have a nonsymptomatic pars defect, then with a trauma develop symptoms from it. He noted, too, that since his operation the applicant was unable to work and was in a healing period.

Dr. Mueller also opined the burning paresthesias in the right leg could possibly be improved by a dorsal column stimulator, but the only way to be sure was to try the stimulator. The doctor also thought that it might be beneficial at some point in the future to remove the hardware. Again, regarding the end of healing, he wrote on May 9, 2000:

His x-rays that I am seeing today show good evidence of bony healing from his lumbar fusion and correspondingly he has a minimal amount of back pain. However, given the amount of leg pain he has he remains disabled.

Exhibit G.

As noted above, Dr. Novom examined the applicant in October 1999, and was left with the clinical impression of a L4-S1 fusion done for "described chronic back pain and poorly localizing right lumbar radiculopathy without neuroimaging evidence of frank disc herniation and nerve root compression." He also diagnosed myofascial pain, and fibromyalgia involving the neck-shoulders and low back, rotator cuff tendinopathy, obesity and poor conditioning, and flagrant non-physiological features of conversion disorder (head tremor, incoordination and weakness of the arms, stuttering and subjective, unverified complaints of memory loss). He did not think the implantation of the dorsal column stimulator would help. He noted Dr. Blindauer's reference to psychological stress with respect to the headaches and tremors, and thought the applicant had "significant psychologic-based pain behaviors" which should be addressed by a psychologist or psychiatrist with efforts aimed at treating the applicant's obvious underlying depression. He strongly disagreed with Dr. Lynch's opinion to the contrary. Dr. Novom recommended alternative medication or psychological review to deal with the applicant's chronic pain problem.

Dr. Novom then addressed the question of whether the two-level spine surgery bore any direct causal connection to the work injury. See Exhibit 4, Novom note of January 27, 2000. Dr. Novom began by noting the so-called Spencer rule, (2) opining that if Dr. Mueller acted in good faith in treating the applicant for the work injury, the insurer was liable for the consequences even if the care was not appropriate. Nonetheless, Dr. Novom noted that Dr. Mueller initially did not want to do the surgery but preferred a conservative approach, and that Dr. Braza anticipated an early return to work. The surgery was done only after an increase in pain upon the November 1998 return to work. He concluded:

"In the final analysis, I do not believe the worker's incident of 4/15/98 led to actual precipitation, aggravation, and acceleration of underlying pre-existent degenerative lumbar spine disease beyond natural history of progression warranting operative intervention by Dr. Mueller 10 months later. Though I challenge the medical indications for such operative procedure in light of Mr. Irvine's poor outcome suggesting significant psycho-functional overlay, one is necessarily obliged to accept the decision making by the treating physician to proceed with the surgery. However, I maintain the worker's incident of 4/15/98 did not play a measurable contributory role in the later decision by Dr. Mueller leading to back surgery. It was more so a combination of factors including underlying degenerative lumbar spine disease influenced by morbid obesity, worsening back pain following resumption of heavy lifting routine at work as of November 1998, and marked pain behaviors which resulted in Dr. Mueller's decision to proceed with back surgery in much delayed fashion nearly one year post-accident."

Exhibit 4, Novom report of January 27, 2000.

Dr. Novom clarified this opinion by letter dated March 21, 2000 (Exhibit 5), in which he opined that the occupational duty performed by the applicant during his employment with the employer was a material contributory causative factor in the progression of the applicant's underlying degenerative lumbar spine disease beyond normal course leading to corrective surgery. He stated the applicant made a good recovery from the work injury of April 15, 1998, but the resumption of a heavy work routine proved a material contributory causative factor in the progression of his condition beyond normal progression. According to Dr. Novom, the return to the heavy labor routine in late 1998 and early 1999 led to a significant setback resulting in corrective spine surgery on February 15, 1999.

In other words, Dr. Novom finds that occupational exposure after returning to work in November 1998, rather than direct trauma from the fall in April 1998, caused the condition leading to the fusion surgery. Dr. Novom's opinion could thus be read to support a finding that a compensable work injury due to occupational disease caused the need for the corrective fusion surgery. Under such an opinion, the expense and resulting disability from the fusion surgery would be compensable, but with a different date of injury than the April 15, 1998, traumatic event.

In a final letter dated July 3, 2000 (Exhibit 2), Dr. Novom opined that the applicant should not undergo a trial of spinal column stimulator. He characterized the applicant's current problems as a psychologic set, ill-defined pain state involving the right lower extremity defying ready biophysiologic explanation with pain-magnifying behavior signifying considerable functional overlay. He disagreed with the opinions of Drs. Braza and Mueller that the applicant remained in a healing period. IME Novom opined the applicant was well beyond the expected period of healing from the surgery, and that the May 9, 2000, x-rays showed good healing.

Dr. Novom went on to suggest that the applicant's continuing burning thigh pain could be either due to his overweight condition causing nerve entrapment beneath the inguinal ligament (and so completely unrelated to his work injury) or a superimposed heightened somatic focus over benign musculature discomforts (that is, nothing is really wrong with him). Dr. Novom concluded that that "any attempts at pain management largely represent palliative treatment issues of non-restorative character reflecting a combination of factors including an ill-defined residue of right lower extremity pain connected with the work injury and post-operative complication undoubtedly due to psychic upset."

2. Discussion and award.

The commission first concludes that the applicant's April 15, 1998 work injury, made the applicant's February 1999 fusion procedure necessary. On this point, the commission credits Dr. Braza's opinion (and that of Dr. Simkowski expressed in his February 3, 1999, medical report on form WKC-16 at Exhibit G). The commission acknowledges that Dr. Braza released the applicant to work in November 1998 with no formal restrictions other than to self-limit bending and lifting, and that the doctor noted he was clinically stable with minimal pain at the time. Nonetheless, Dr. Braza had not yet declared a plateau or end of healing from the April 1998 injury when she released the applicant to work. Moreover, the applicant experienced increasing pain with the very first week back at work, and had pain at a level of 7 or 8 of 10 by early January 1999. Given the onset of pain immediately upon returning to work, resulting in disability from work so soon thereafter, the commission declines to accept Dr. Novom's opinion that work exposure upon the return to work in November 1998 played a causal role in the applicant's progressing symptoms.

The next issue is whether or when the applicant reached a plateau of healing from the work injury following the surgical fusion procedure performed by Dr. Mueller on February 15, 1999. In general, temporary disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Adm. Code § DWD 80.47. The "healing period" is the period prior to the time when the injured worker's condition becomes stationary, Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932) and ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).

An injured worker ordinarily must be submitting to treatment and convalescing during his healing period. In Larsen, for example, the injured worker's doctor concluded that the worker's condition had stabilized, rated permanent disability, and released the applicant from treatment. Many months later, increased symptoms made surgery necessary. The court held that the applicant was not entitled to temporary disability during the 18-month hiatus in treatment. Larsen, supra, at 9 Wis. 2d 389-93. (3)

In this case, the commission concludes that the applicant reached a healing plateau, albeit with permanent or residual disability, on May 9, 2000. In reaching this conclusion, the commission credits the July 3, 2000, opinion of Dr. Novom insofar as the doctor opined that the applicant was well beyond the expected plateau of healing from the fusion surgery.

The commission also notes that on May 9, 2000, treating surgeon Dr. Mueller wrote:

"His x-rays that I am seeing today show good evidence of bony healing from his lumbar fusion and correspondingly he has a minimal amount of back pain. However, given the amount of leg pain he has he remains disabled."

It is this set of x-rays to which Dr. Novom referred when he found the applicant well beyond the expected end of healing for a fusion operation. Exhibit 2, July 3, 2000, report of Novom, page 2.

The commission cannot conclude that the applicant had reached an end of healing from the February 1999 fusion procedure already in October 1999. When Dr. Novom opined that the applicant reached an end of healing by the date of his October 21, 1999, report (Exhibit 2, report of Novom, page 7), the doctor was referring to what he believed to be the minor effects of the April 15, 1998, injury. Dr. Novom later made it clear that he believed the applicant's fusion surgery was made necessary not by the April 15, 1998, traumatic injury, but by the additional work exposure beginning in November 1998. In other words, Dr. Novom's October 21, 1999, report should not be read to set an end point of healing for the fusion surgery, but for what the doctor believed was a relatively minor injury on April 15, 1998. Dr. Novom did not express an opinion regarding the applicant's end of healing from the February 1999 fusion procedure until July 2000.

Nor does Dr. Braza's comment on August 17, 1999, that the applicant "is plateauing with his home exercises" provide evidence of an earlier healing plateau date. The commission does not read that note to state that the applicant had reached, or would soon reach, an end of healing from his February 1999 fusion surgery. Rather, the commission concludes that Dr. Braza meant home exercise was no longer helping the neuropathic burning leg pain, and that the pain prevented him from doing the exercises.

Drs. Braza and Mueller, of course, opined that the applicant remained in a healing period beyond May 9, 2000. Under Knobbe and Larsen, extending temporary disability beyond May 9, 2000, would necessarily be based on a finding that the applicant could expect additional improvement with further treatment and convalescence. Presumably, the additional treatment would involve the implantation of the dorsal column stimulator.

However, the commission cannot conclude that the applicant must necessarily remain in a healing period until a dorsal column stimulator is tried. First, even the treating doctors, most notably Dr. Mueller, opine that a dorsal column stimulator only might improve the applicant's condition. Beyond that, Dr. Novom opined that any relief the applicant did obtain would be palliative only, not restorative, and would not increase functionality. In other words, the continuing disabling pain from the neuropathic burning leg pain does not establish a continued healing period where, as here, the effect of the dorsal column stimulator implantation would be palliative only (as opposed to increasing function).

The commission acknowledges that the applicant's condition continued to be painful and disabling after May 9, 2000. However, the fact that a worker may need ongoing therapy or medication for pain relief does not automatically keep him or her in a healing period. People often reach an end of healing with less than a complete recovery so that ongoing therapy or medication is necessary to relieve pain; under those circumstances, residual pain complaints do not continue the liability for temporary disability compensation.

Accordingly, the commission concludes the applicant is entitled to additional temporary total disability from the date the respondent discontinued payment of temporary disability (November 1, 1998) to May 9, 2000, a period of 27 weeks and 1 day. At the rate of $523 per week (the statutory maximum for injuries in 1998), the applicant is entitled to an additional $14,208.17 in temporary disability compensation.

The applicant agreed to the protection of an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded, or $2,841.63. That amount shall be paid to the applicant's attorney within 30 days; the remainder, $11,366.53, shall be paid to the applicant within 30 days.

The next issue is the compensability of the claimed medical expense. The presiding ALJ did not order the medical expense paid, with one small exception for out of pocket costs, but instructed the insurer to review the bills if the applicant submitted a detailed "treatment expense listing." The applicant's WKC-3 statement of treatment expense is at Exhibit D.

The documents attached to the applicant's WKC-3 statement include an itemized bill from the Medical College of Wisconsin indicating that the expenses claimed are for treatment of the spine, for the nerve testing to the lower leg, and for psychological services related to this ongoing pain. The insurer argues that there is no proof this treatment is for the work injury. However, the record establishes otherwise. Indeed, even IME Novom states that the neuropathic pain at which most of this treatment is aimed reflects: "a combination of factors including an ill-defined residue of right lower extremity pain connected with the work injury and postoperative complication undoubtedly influenced by psychic upset." In other words, while the applicant's leg pain may be influenced by his psychic upset, it is still connected to the work injury and resulting fusion surgery. In all, the applicant incurred $1,563.80 in reasonable and necessary treatment expense from Medical College Physicians, of which the applicant paid $87.80, and $1,476 remains outstanding.

However, the bill from Froedtert Memorial Lutheran Hospital is not supported by an itemization. Itemization in advance of the hearing is statutorily required under Wis. Stat. § 102.17(8). Consequently, the Froedtert Memorial Lutheran Hospital bill shall not be ordered paid.

The commission does not at this time determine whether the implantation of a dorsal column stimulator would be reasonable and necessary treatment of the applicant's condition or, if performed, would result in compensable medical treatment expense or additional disability. The commission generally avoids, or tries to avoid, issuing such prospective orders under Levy v. Industrial Commission 234 Wis. 670 (1940). See Peterson v. GAF Corp., WC claim No. 9604730 (LIRC, June 30, 1997) and Paul Remiszewski v. Harnischfeger Corporation, WC Claim No. 1996-032721 (LIRC, January 25, 2001).

Because the work injury has left the applicant with considerable permanent disability, and because future treatment may be warranted, this order shall be left interlocutory.

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, the employer and its insurer shall pay all of the following:

1. To the applicant, Christopher G. Irvine, Eleven thousand three hundred sixty-six dollars and fifty-three cents ($11,366.53) in disability compensation.

2. To the applicant's attorney, Roland C. Cafaro, Two thousand eight hundred forty-one dollars and fifty-three cents ($2,841.53) in fees.

3. To Medical College Physicians, One thousand four hundred seventy-six dollars and no cents ($1,476.00) in medical expenses.

4. To the applicant, Eighty-seven dollars and eighty cents ($87.80) as reimbursement of out-of-pocket medical treatment expense.

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

Dated and mailed June 13, 2001
irvinch . wrr : 101 : 8  ND § 5.6 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the presiding ALJ because it concludes that witness credibility and demeanor were not at issue. The ALJ did not find an end to the applicant's healing period in October 1999 because he believed the applicant acted in bad faith or was malingering, but because he read Dr. Novom's October 1999 report to set an end of healing. However, as explained above, the commission does not believe that Dr. Novom's reports set an end of healing with respect to the February 1999 fusion surgery until May 9, 2000; consequently, the commission modified the ALJ's decision to end the respondents' liability for temporary disability on that date. Because the commission modified the ALJ's decision based upon its reading of the reports of the medical experts, none of whom testified at the hearing, a credibility conference was not required. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App.1998).

In its reply brief, the applicant asks the commission to state affirmatively that "there existed no basis for the respondents to have denied responsibility for continuing medical treatment which is reasonable and necessary to cure and relieve the effects of the work injury." The commission makes no such finding, as it involves an issue not now before the commission.

cc: 
Attorney Roland C. Cafaro
Attorney Kurt Van Buskirk


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Footnotes:

(1)( Back ) Dr. Elias's June 8 and August 5, 1999, notes at Exhibit N are handwritten. The doctor evidently ordered or performed at least one set of nerve blocks. The pain did not respond to a nerve block, though the TENS therapy "helped little." Dr. Elias wanted to go ahead with a spinal column stimulator, or at least a trial of a stimulator before proceeding with the full implantation surgery. His typewritten note to that effect is at Exhibit J.

(2)( Back ) Spencer v. ILHR Dept., 55 Wis. 2d 525, 532 (1972).

(3)( Back ) However, the commission has recognized that the general rule requiring ongoing treatment may not apply where an employer denies liability for the work injury, and then points to the lack of treatment as establishing an endpoint of temporary disability. In such a case, it may not be reasonable to expect an injured worker to undergo treatment that he or she must pay for himself at the price of forfeiting the right to temporary disability. Carole Lee v. Famous Fixtures, WC Claim no. 96000857 (LIRC, July 2, 1997). 


uploaded 2001/07/16