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

GERALD M PUCH, Applicant

LEAR CORP, Employer

ZURICH AMERICAN INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-015850 & 2001-001191


Lear Corporation and Zurich American Insurance Company (Respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 12, 2001. Briefs have been submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to the conceded work injuries of January 3, 1997 and January 15, 1997.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part her Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is October 31, 1956, is employed as a production worker for the employer. On January 3, 1997, he slipped off a waterjet table and landed on the floor on his buttocks and left leg. He received treatment that day from a Dr. Kuplic at St. Nicholas Hospital in Sheboygan, and returned to work the next day. The symptoms were in the applicant's left leg and low back.

On January 12, 1997, the employer sent the applicant to a training course in Detroit. He was driving to a restaurant in Detroit on January 15, 1997, when someone ran into his car from the rear while he was stopped at a stoplight. This caused a whiplash-type injury to his neck and upper back. He was seen in the emergency room that day and the physician noted tenderness to palpation in the cervical and thoracic spine, but no lumbar spine tenderness. The physician released him with a diagnosis of probable muscle strain and gave him pain medication. The applicant was still taking aspirin and Tylenol for low back and left leg discomfort.

The applicant saw his personal physician, Dr. Wilfong, on January 24, 1997. The applicant's automobile accident was discussed and the applicant's cervical/thoracic strain symptoms were noted. In a clinic note dated May 2, 1997, Dr. Wilfong recounted a visit in which the applicant indicated that he had "never been 100 percent better" since the motor vehicle accident in January. The applicant complained of neck pain and the diagnoses given were cervical sprain with a persistent inflammatory component, and cervical/thoracic muscle spasm. In a note to the insurer dated June 17, 1997, Dr. Wilfong indicated that the applicant did not return to see him after May 2, 1997, but the prognosis was for full recovery which might not have yet occurred. The applicant continued to have upper and lower back symptoms, and continued to take aspirin.

The applicant went to the emergency room on November 4, 1997, with a complaint of lumbar back pain that had its onset in the slip-and-fall incident at work "several months ago." The pain was recorded as being worse over the previous three weeks. The attending physician diagnosed degenerative disc disease at L5-S1, and prescribed medication. A MRI performed on November 4, 1997, showed annular bulging at L3-4 and L4-5 with no significant compressive disease, a slight central posterior bulge at L5-S1 with large patent neuroforamina, no hypertrophic changes involving facets, and no disc space narrowing.

On April 1, 1998, the applicant was referred to Dr. Gregory Gnadt, an orthopedic surgeon. X-rays revealed a one-tenth compression fracture at L2, and a CT scan revealed slight disc bulging with slight encroachment at L3-4, central and right subligamentous disc herniation with slight compression at L4-5, and disc bulging and disease with hypertrophic change and slight central disc protrusion with slight neuroforaminal narrowing and moderate disc space narrowing at L5-S1.

At respondents' request, Dr. Richard Lemon examined and evaluated the applicant on October 1, 1999. Dr. Lemon took a history of the work injuries and subsequent medical treatment, and in his exam found positive Waddell signs for symptom magnification. Dr. Lemon concluded from his review that the applicant did not seek any medical care for the low back, slip-and-fall injury until November of 1997, and that this long delay in seeking medical care argued against any permanent injury on January 3, 1997. He opined that the incident resulted in a minor, temporary aggravation of the applicant's preexisting multilevel degenerative disc disease, and that he should have been back to baseline with no permanent residual with 30 days from the incident. He further opined that the low back symptoms that began in November of 1997 were only due to preexisting degenerative disc disease. Dr. Lemon never addressed himself to the effects of the cervical injury which occurred on January 15, 1997, other than to recount that this incident did occur.

On February 14, 2000, Dr. Gnadt drafted a long diagnostic letter addressed to the applicant's attorney. He took issue with virtually all of Dr. Lemon's conclusions, and assessed seven percent permanent partial disability to the applicant's low back condition, one to two percent to his cervical condition, and two percent to fibromyalgia. Dr. Gnadt attributed the low back disability to the effects of the work injury of January 3, 1997, the cervical disability to the effects of the work injury of January 15, 1997, and the fibromyalgia to a combination of both incidents (80 percent attributable to the motor vehicle accident and 20 percent attributable to the slip-and-fall).

The commission consulted with the administrative law judge regarding her credibility impressions gleaned from the hearing, and agreed with her conclusion that the applicant's testimony that he sought immediate medical care on January 3, 1997, was credible. The applicant gave specific testimony concerning the hospital he went to and the physician who examined him. The employer presented no firsthand witness to the events of that day, even though the applicant credibly testified that two of his supervisors were aware of the accident and advised him to go to the hospital. Respondents' arguments that the applicant did not seek immediate medical care for this injury are therefore rejected.

The commission also agreed with the administrative law judge that Dr. Gnadt credibly described the effects of the low back and cervical injuries, with the exception of the extent of permanent partial disability assessed. Dr. Gnadt explained that the applicant, who had no significant low back problems prior to the event of January 3, 1997, experienced symptom progression dating from that event. He noted how this progression was documented in the MRI reports of November 4, 1997 and June 23, 1999, and explained that Dr. Lemon's findings of symptom magnification were questionable. Dr. Gnadt's medical opinion was also consistent with the administrative law judge's credibility determination of the applicant.

However, based on analysis of the medical evidence, the commission did not find credible Dr. Gnadt's assessment of seven percent permanent partial disability attributable to the low back injury. Evidence of objective changes shown in the applicant's MRI results support a minimal permanent partial disability rating, but the applicant's functional capacity evaluation was not placed in evidence, nor did Dr. Gnadt's report recount the applicant's physical restrictions/limitations. Based on that portion of Dr. Gnadt's opinion indicating that the applicant sustained some permanent disability to his low back attributable to the injury of January 3, 1997, together with the MRI results and the other evidence of record, the commission finds that the applicant sustained a two percent permanent partial disability to his low back.

Dr. Lemon offered no opinion regarding the applicant's cervical injury, although he did acknowledge that it occurred on January 15, 1997. Dr. Gnadt credibly explained that his assessment of two percent permanent partial disability to the neck was attributable to pain, stiffness, headaches, and cervical crepitation. The applicant gave credible testimony supporting the presence of these symptoms and Dr. Gnadt's assessment of two percent permanent partial disability attributable to them is accepted.

Dr. Gnadt also assessed two percent permanent partial disability to the applicant's fibromyalgia for sleep disturbance, chronic fatigue, and diffuse aching. The applicant testified that he "can't sleep all the time at night," and that leaning over the sink makes his back and neck sore. He did not describe any other symptoms which could be construed as diffuse aching, nor did he testify regarding chronic fatigue. Dr. Gnadt credibly explained that the applicant's classic fibromyalgia has been largely brought under control with medication and physical therapy, but that he will require continued treatment for flare-ups. Considering Dr. Gnadt's opinion, especially the fact that the applicant's fibromyalgia is largely controllable, the commission finds that the applicant sustained a one percent permanent partial disability attributable to his fibromyalgia.

The total award due the applicant for both injuries is therefore five percent permanent partial disability, which constitutes 50 weeks of compensation at the applicable rate of $174.00 per week totaling $8,700.00. A 20 percent attorney's fee ($1,740.00) and $750.00 in costs will be subtracted from the award.

All claimed medical treatment expenses (as enumerated in applicant's Exhibit B and incorporated herein by reference) were reasonably required to cure and relieve the applicant from the effects of the two work injuries.

Dr. Gnadt credibly opined that additional treatment may be required and therefore this order will be left interlocutory.

INTERLOCUTORY ORDER

Within 30 days from this date, Lear Corporation and Zurich American Insurance Company shall pay to the applicant as compensation the amount of six thousand two hundred ten dollars ($6,210.00); to applicant's attorney, Dennis H. Wicht, fees and costs in the total amount of two thousand four hundred ninety dollars ($2,490.00); to the applicant as reimbursement for medical expenses the sum of three hundred thirty-three dollars and seventy-four cents ($333.74); to Wisconsin Radiology Specialists the sum of forty two dollars ($42.00); to Homestead Physical Therapy the sum of two hundred seventeen dollars and ninety-five cents ($217.95); to St. Mary's Hospital the sum of one thousand seventy dollars and seventy-five cents ($1,070.75); to Dr. Roger Klettke the sum of fourteen dollars and forty cents ($14.40); to Dr. Gregory Gnadt the sum of one thousand one dollars and twenty-four cents ($1,001.24); and to Aetna US Health Care reimbursement in the amount of four thousand four hundred twenty-six dollars and fifty-one cents ($4,426.51).

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed August 15, 2001
puchge . wpr : 185 : 8 ND § 5.25

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc: 
Attorney Dennis H. Wicht
Attorney Gary S. Stanislawski


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