DAVID O'REAR, Applicant

TETRA PAK HOYER, Employer

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer

The applicant injured his back on June 18, 1996. On September 8, 1998, he ultimately underwent a surgery which included discectomy and fusion procedures at L4-5 and L5-S1.

The employer and its insurer (collectively, the respondent) conceded a compensable injury and an average weekly wage of $426.94. The respondent also conceded and paid temporary benefits for various periods to August 4, 1999. The respondent also conceded permanent partial disability at twenty percent compared to permanent total disability.

This matter arises from the applicant's claims for additional temporary total disability beginning from October 27, 1999, through the date of the hearing, and for certain treatment expenses. The basis of the applicant's claim for additional temporary disability was his slow recovery from the September 8, 1998, fusion surgery.

A hearing was held before ALJ Thomas Jones on September 6, 2000, and ALJ Jones issued his findings and order confirming the prior payments by the insurer, but dismissing the application for additional benefits. The applicant appealed ALJ Jones' decision to this commission.

While this case was on review, the applicant sought additional treatment, including a surgery in December 2000 which disclosed a pseudoarthrosis at the fusion site. Sean Jackson, M.D., the surgeon who performed the December 2000 surgery opined that, based on his surgical findings, the applicant has remained in a healing period continuously since the first surgery. The respondent counters with a June 14, 2001, report from its independent medical examiner, Charles Klein, M.D., who agrees that the applicant had a pseudoarthrosis after the first surgery, but plateaued despite that condition in September 1999. Dr. Klein went on to opine, however, that the second fusion surgery done by Dr. Jackson was reasonable, and that the applicant would have resumed a healing period when that procedure was done in December 2000.

Neither the report of Dr. Jackson, nor June 14, 2001, report of Dr. Klein, are in the hearing record. For the reasons explained below, the commission concludes that Dr. Jackson's December 2000 surgical findings, and the reports of
Dr. Jackson and Dr. Klein discussing those findings, justify setting aside ALJ Jones' order and requiring further action under Wis. Stat. § 102.18(3) and (4)(c).

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

ALJ Jones' findings and order dated November 30, 2000, are set aside. Pursuant to Wis. Stat. § 102.18(3) and (4)(c), this matter is remanded to the Division of Worker's Compensation in the Department of Workforce Development, for further hearing and decision on the issues resolved by that order.

Dated and mailed August 10, 2001
orearda . wpr : 101 : 3  ND § 9.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

On appeal the applicant seeks reconsideration of the ALJ's dismissal order under Wis. Stat § 102.18(4)(c)3, contending Dr. Jackson's surgical findings establish "mistake" or constitute "newly-discovered evidence" providing objective support for his claims. (1)   In addition, because this case is on review before the commission under Wis. Stat. 102.18(3), the commission has the authority to set aside an ALJ's decision and direct the taking of additional evidence "based on a review of the evidence submitted."

Temporary disability is generally 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. Admin. 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).

In this case, the evidence of the pseudoarthrosis and the opinions of the medical expert regarding that condition, may be highly relevant to the question of when the applicant's condition became stationary and there occurred all of the improvement that is likely to occur as a result of treatment and convalescence. Further, since the surgical proof of the pseudoarthrosis first came to light after the hearing, the evidence on that point is not merely cumulative. Nor can the commission conclude the applicant was negligent in failing to undergo the surgery that disclosed the pseudoarthrosis sooner, as the record indicates he was acting reasonably in following medical advice within the limits of his financial ability. Indeed, as of the date of the September 6, 2000, hearing, neither Dr. Ahuja or IME Klein had yet offered an expert medical opinion that accounted for the pseudoarthrosis resulting from the September 1998 fusion procedure. These circumstances, the commission believes, require additional hearing and a new decision from the division

cc: 
Attorney Daniel J. Kelley
Attorney James P. Reardon

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(1)( Back ) The applicant alternatively seeks an order in his favor based on the record.

uploaded 2001/08/13