JAMES N ZENTGRAF, Applicant

ACCESS INDUSTRIES INC, Employer

KEMPER INSURANCE COMPANY, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Finding and Order issued in this matter on April 2, 2001. Access Industries, Inc. and Kemper Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of September 25, 1995. Also at issue is the necessity for an interlocutory order.

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 only witness at hearing, hereby reverses his Findings and Order. The commission makes the following:

The applicant, whose birth date is December 5, 1958, was employed as an elevator repairman for the employer. On September 29, 1995, he was driving a company minivan which was struck from the rear by an automobile. The impact pushed the minivan into the car in front of the applicant, and the applicant's head was snapped back into the metal caging in place behind him. He saw his personal physician, Dr. Jagan Neni, for neck pain that same day. Dr. Neni diagnosed a neck sprain and prescribed conservative treatment. On October 20, 1995, Dr. Neni ordered physical therapy for the applicant's continuing neck pain. The applicant participated in physical therapy from October 26, 1995, through November 17, 1995, and on the last visit, the therapist noted that his only continuing problem was periodic neck stiffness. The therapist also indicated that the applicant had met all the original goals for therapy, and that his strength and functioning should continue to improve with the continuance of his home exercise program.

On December 4, 1995, the applicant went back to Dr. Neni with continued neck pain. Cervical pain x-rays showed slight displacement of C3 relative to C4 and C4 relative to C5, with posterior spurring at C3-4. Dr. Neni referred the applicant to Dr. James E. Cain, who first examined him on January 3, 1996. Dr. Cain noted cervical range of motion was limited by 25 percent in rotation and 35 percent in flexion, but extension was full. He diagnosed a whiplash type injury and began conservative treatment. He also ordered a cervical MRI which was normal, and continued conservative treatment. On April 1, 1996, Dr. Cain indicated in a letter to the insurance carrier that the applicant had reached maximum medical improvement and he would not recommend an award of permanent partial disability.

On May 7, 1996, the applicant returned to Dr. Neni with recurrent neck and shoulder pain, and conservative treatment was continued. On September 16, 1996, the applicant telephoned Dr. Cain's office and indicated his neck was still bothering him, and continued conservative treatment was recommended. The applicant did not see a physician for his neck again until November 13, 1998, when he was examined by Dr. Jan Doenier, who had been substituted for Dr. Neni as his family physician. Dr. Doenier took a history of the neck problem beginning with the accident on September 25, 1995, and continuing as of that date. Dr. Doenier diagnosed neck discomfort secondary to muscular strain, continuous. She prescribed Flexeril together with daily home exercises.

On December 7, 1998, Dr. Stephen P. Delahunt examined the applicant upon referral from Dr. Doenier. Dr. Delahunt also took a history of the neck problem and diagnosed an acceleration-deceleration injury with residual symptomatology. He found rotation to the left was 50 percent of normal and rotation to the right was 90 percent of normal. He suspected that the C4-5 motion segment was the pain generator. He did not recommend surgery but indicated that he could not predict whether it would be required in the future. He changed the applicant's prescription and also recommended physical therapy.

On May 17, 1999, Dr. Delahunt indicated that the applicant continued to have symptoms despite the new physical therapy. He assessed two percent permanent partial disability and reiterated this assessment in a WC-16-B completed on November 28, 2000. On January 18, 2001, Dr. Cain indicated in a letter to applicant's attorney that when he wrote his previous letter on April 1, 1996, he was of the opinion that the applicant's symptoms would resolve. But now that they had not resolved it did not seem unreasonable to him to award the two percent permanent partial disability assessed by Dr. Delahunt.

In consultation with the commission, the administrative law judge indicated that he did not find the applicant to be credible, and that he believed the applicant had resumed his medical treatment in November 1998 solely to support his pending civil law suit. The commission did not agree with these assessments.

The medical records document continuing medical treatment for the year subsequent to the conceded work injury of September 29, 1995. There was a two-year hiatus in treatment between September 1996 and November 1998, and it is likely that the filing of the civil lawsuit was one of the reasons the applicant returned to his position in November 1998. However, no physician of record ever indicated that the applicant's symptoms were not genuine, or that the applicant was not credible in describing ongoing symptoms through the period between September 1996 and November 1998. The applicant credibly testified that he had hoped his neck would get better during this period, which was consistent with what Dr. Neni and Dr. Cain had advised him to expect in 1995 and 1996. When the applicant returned to treatment in November 1998, both Dr. Doenier and Dr. Delahunt diagnosed an ongoing neck problem dating from the work injury of September 25, 1995. When Dr. Cain reviewed this history, he changed his opinion to one of agreement with Dr. Delahunt's assessment of two percent permanent partial disability attributable to the acceleration-deceleration injury. Significantly, the respondents did not submit any medical opinion contradicting these assessments.

It would not have been unreasonable for the applicant to have considered the necessity for an updated medical opinion relative to his pending civil lawsuit in November 1998. Nevertheless, when he did see Dr. Doenier and Dr. Delahunt, both physicians prescribed continued care and confirmed an ongoing neck condition caused by the 1995 work injury. There is no medical opinion to the contrary. Dr. Delahunt's assessment of two percent whole body permanent partial disability attributable to the 1995 work injury is accepted as credible.

Accordingly, the applicant is entitled to 20 weeks of compensation for permanent partial disability. The record contains no indication of what the applicant's average weekly wage was in 1995, although it is presumed that as an elevator repairman his wage exceeded $246.00 per week, which was the maximum wage for permanent partial disability in 1995. Under that assumption, the applicant would be due $164.00 for each week of permanent partial disability, for a total of $3,280.00. A 20 percent attorney's fee would be subtracted from this award. The commission will order payment of two percent permanent partial disability, and leave it to the parties to determine whether the applicant's average weekly wage was at least $246.00. Jurisdiction will be reserved with respect to the issue of average weekly wage in case of a dispute over that issue. Respondents should make immediate payment of the permanent partial disability award as soon as the average weekly wage is verified (Assuming the 1995 maximum wage for permanent partial disability, the payment would be $2,624.00 to the applicant and $656.00 to Attorney James P. Maloney).

Reasonably required medical expenses were also enumerated in Hearing Exhibits C, D, and E. The administrative law judge indicated in the introduction to his order that all medical and mileage expenses had been paid through May 7, 1996, although the record does not reveal how that was discerned. Neither is it clear from review of Exhibits C, D, and E exactly which expenses and reimbursements remain unpaid. Accordingly, the applicant should present the insurance carrier with a new accounting of which of these expenses and reimbursements remain unpaid, and within ten days thereafter, the carrier should make payment.

Finally, the applicant requested an interlocutory order, but Dr. Delahunt indicated in his WC-16-B dated November 28, 2000, that he did not expect that any further treatment would be necessary for the applicant's condition. In a letter to the applicant's attorney dated May 17, 1999, Dr. Delahunt indicated that the applicant had reached a healing plateau with a two percent permanent partial disability, and he did not anticipate the need for surgical care. While Dr. Delahunt did not specifically indicate in this letter whether any additional non-surgical care might be necessary, his subsequent WC-16-B leads to the inference that it will not.

In his WC-16-B dated January 13, 2001, Dr. Cain checked the "yes" box indicating necessity for additional care, but he explained that notation by referring to his belief that the applicant remained under the care of Dr. Delahunt. In fact, Dr. Delahunt had released the applicant from treatment on May 17, 1999. There is no other medical opinion of record indicating additional treatment may be necessary, and therefore the request for an interlocutory order with respect to additional medical treatment and/or disability is denied. The order will be left interlocutory only with respect to the issue of average weekly wage.

NOW, THEREFORE, this

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, Access Industries, Inc. and Kemper Insurance Company shall pay to the applicant compensation for two percent permanent partial disability of the whole body, to be paid in accordance with the correct average weekly wage. Should a dispute arise with regard to the issue of average weekly wage, jurisdiction is reserved to resolve that issue alone.

Access Industries, Inc. and Kemper Insurance Company shall also make payment of the claimed medical expenses and reimbursements, including mileage expense, after submission to them of a new accounting of these expenses by the applicant.

Dated and mailed August 30, 2001
zentgja . wrr : 185 : 8  ND § 5.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorney James P. Maloney
Attorney Michael J. Hicks

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