JOHN E WAGNER, Applicant

FOX ERECTORS INC, Employer

SOCIETY INSURANCE COMPANY, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 29, 2001
wagnerj . wsd : 101 : 1  ND § 5.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

1. Posture and expert opinion.

The applicant claims continuing disability and need for medical treatment following a conceded fall at work on October 25, 1999. His position is that he needs surgery to his hand as a result of the fall, and that until he has it he is in a "healing period" and eligible for temporary total disability. The employer and its insurer (collectively, the respondent), on the other hand, opines that he has long since healed from the work injury without permanent residuals, and does not need the surgery.

The ALJ found for the applicant. She credited Dr. Livengood, and awarded temporary disability to the date of the hearing. Shortly after that, the insurer agreed to pay for Dr. Livengood's diagnostic surgery, and paid the temporary disability from the April 20, 2000, independent medical examination to May 2, 2000, when the surgery should have gone forward. The respondent asked the commission to review the temporary disability award only from May 2, 2000, to the date of the hearing.

The parties have submitted expert medical opinion on the issue of extent of disability. The respondent's IME, Gay R. Anderson, M.D., examined the applicant on April 20, 2000. His report describes the work injury, and the following treatment.

Dr. Anderson noted, in addition to the left wrist treatment outlined above, a series of right wrist and right elbow films from the University Hospital and Clinics in June 1998, and that he had been diagnosed with carpal tunnel syndrome in the right wrist in 1995. However, none of the records of the prior right hand treatment in 1995 or 1998 are in the record.

On examination, Dr. Anderson quite evidently had the impression the applicant was inventing his symptoms. He noted the applicant complained at times with certain wrist movements, but on other occasions could function normally without complaints. He also dramatically complained of diffuse pain to light palpation. Dr. Anderson's conclusion was:

"I believe this man simply sustained some contusions and strains in his incident at work in October 1999. He was then erroneously diagnosed and treated as having a carpal navicular fracture. Now he is about to be pursued on a subjective, symptomatic basis with exploratory surgery, which is not rational or warranted from a medical standpoint. In reality, he has long since recovered from his industrial injuries and is capable of normal work activity, as his appearance reveals. He can return to work at this time without any special medical restriction. There is no evidence of any permanent injury or disability relative to the incident in question and no further need for medical care."

On or about May 1, 2000, the applicant received a letter from the insurer denying further liability for medical expense based on Dr. Anderson's report.

On July 21, 2000, treating doctor Livengood completed a practitioner's report on form WC-16-B. He referred to his March 13 and March 27, 2000, notes for a description of the events causing the applicant's condition, and for its diagnosis. He also indicated that when the applicant would be able to work with temporary restrictions, as well as the extent of permanent disability, was "indeterminate at this time." He marked the direct causation box on the WC-16-B form affirmatively.

On April 11, 2001, the doctor wrote a letter to the applicant's attorney stating the applicant had chronic wrist pain following a traumatic fall; that since then he has had continuing pain; that there was a diagnosis of a scaphoid fracture which he believed had been ruled out; and that he was left with "no clear identifying diagnosis to this gentleman's chronic wrist pain."

Dr. Livengood also stated:

"My history on this gentleman is such that he was working up until the time of his injury. Since that time, he has had persistent pain. His date of injury is October 25, 1999. It is my belie[f] that this gentleman's persistent wrist pain is secondary to his work injury of October 25, 1999. I believe the reasons for all of his medical care regarding his wrist to date is secondary to that work related injury."

Dr. Livengood went on to address Dr. Anderson's contrary opinion. Dr. Livengood did not think the applicant had a contusion as Anderson claimed; rather, he suspected a triangular fibrocartilage complex tear or a significant ligament injury, particularly between the scaphoid and lunate bones. He wanted to do a surgery to define the condition.

Dr. Livengood did believe the applicant could do some type of gainful employment. Noting that the prior one-handed, 10-pound restriction had continued to April 2001, he stated:

"In reality, I certainly would allow this gentleman to perform bi-manual work depending on the quality of work that he is considering. Certainly heavy labor is not appropriate at this time."

2. Discussion.

In the commission's view, resolution of this case depends to a large extent on the credibility-based question of whether the applicant actually had continuing wrist pain from the time of his injury to the date of the hearing. If so, Dr. Livengood's opinion that the fall is the source of the pain is more credible. If the applicant in fact is not having symptoms, IME Anderson's opinion that the applicant only had a short-term bruise from the injury would be more credible. One might speculate about a third possibility--that the symptoms are real but were not caused by the work injury--from the mention of a prior right wrist problem in 1995 and 1998, but even IME Anderson does not suggest the pain is real but from another injury.

After carefully considering the record in this case, the commission, like the ALJ, concludes that the applicant's continuing wrist symptoms are genuine. The applicant sought treatment giving a relatively consistent description of his symptoms, right up to time the insurer cut him off. The mechanism of the injury, a fall from a ladder, seems reasonable from a lay view to cause continuing wrist pain. Further, there are the findings of the February 22, 2000, MRI which suggested, at least to Dr. Livengood and the interpreting radiologist, underlying pathology providing an objective basis for the applicant's continuing complaints.

3. Legal issues.

The respondent also makes several legal arguments. First, the respondent asserts that temporary disability should only be awarded during a healing period. However, the question remains: when did the healing period end in this case? If IME Anderson were correct that the applicant suffered a mere contusion from which he stopped healing shortly after the injury, then a shorter period of temporary disability should be awarded. In this case, however, the applicant had continuing pain for which exploratory surgery was ultimately recommended.

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.

However, the commission has also 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). See also, Irvine v. UPC, WC Claim No. 1998-021734 (LIRC, June 13, 2001); Punzel v. Elliot, et al., WC Claim No. 1996042092 (March 3, 2000).

In this case, claiming that there is no evidence that the applicant actually was disabled after the independent medical examination, the respondent cites John Goldsworthy v. Ruffalo Special Pizza II, WC Claim No. 96052840 (LIRC, February 10, 1998). However, in Goldsworthy there was only one opinion about when healing ended; that of the independent medical examiner. Moreover, in Goldsworthy the treating doctor -- after taking the applicant off work -- had issued an intervening opinion that "declined to give an opinion regarding a healing plateau or temporary total disability, because the applicant had not followed up with him."

In this case, Dr. Livengood opined in July 2000 that a return to work date was indeterminate though he did not expressly say it was because he had not seen the applicant since March 2000. Dr. Livengood, admittedly, did state in early 2001 that he could not opine regarding the applicant's then current condition because he had not seen the applicant. However, shortly thereafter, and before the hearing, the applicant returned to Dr. Livengood, who noted continuing pain, set continuing work restrictions, and reiterated his plan to proceed with surgery. The commission concludes that, under the facts of this case, (including the insurer's decision in April 2000 to deny liability for additional medical expense based on Dr. Anderson's opinion), the applicant's hiatus in treatment is understandable. The commission also concludes that Dr. Livengood's March 31, 2001 opinion provides the basis -- absent in Goldsworthy -- for paying temporary disability.

The respondent also argues that the applicant unreasonably refused to seek treatment, citing Wis. Stat. § 102.42(6) which provides:

"102.42(6) TREATMENT REJECTED BY EMPLOYE. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental, hospital or sanatorium treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or sanatorium treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or sanatorium treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby."

The statute by its terms prevents the payment of compensation insofar as disability is aggravated, caused or continued by an unreasonable failure to treat. However, in this case, the defense is not only based on the applicant's failure to seek treatment after the insurer stopped paying for it, but also is based on surgical treatment which its own independent medical examiner said was unnecessary.

As the applicant points out, the supreme court has held that a worker may not be said to have unreasonably refused treatment if the employer offered none. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457, 461 (1978). The employer's response is that it did not formally refuse to pay for the surgery until after the applicant cancelled it. However, the most reasonable inference from the record is that the applicant cancelled the surgery because his examination with IME Anderson led him to believe his claim would be denied and the surgery expense rejected. The employer admits it has no contrary evidence. And, of course, shortly after the Dr. Anderson's examination, the insurer denied further liability, precisely as the applicant had suspected.

Second, in Klein Industrial Salvage the court rejected the "failure to treat defense" based on "credible evidence in the record that [the employer] did not offer to provide the corrective surgery [the injured worker] needed." Id., at 80 Wis. 2d 465. The court went further and noted that Wis. Stat. § 102.44(6) is a defense available to an insurer if it offers treatment which the worker unreasonably refuses; the section does not require the applicant to seek payment of the treatment from another source. Id., at 80 Wis. 2d 461-64. In Klein, there was no formal letter from the insurer rejecting coverage--not even after the fact as here-- rather the employer only told the worker he doubted that insurance would cover the treatment. In Klein, as here, the employer never offered to pay for the surgery and the court rejected the Wis. Stat. § 102.44(6) defense on that basis.

The respondent finally asserts that a worker is not entitled to temporary total disability unless he is totally disabled. In this case, Dr. Wells and Dr. Livengood, both treating doctors, released the applicant to work with restrictions. Consequently, the respondent argues, without citation to authority, its liability for temporary total disability ended at that point since the applicant was no longer temporarily disabled.

However, the liability for temporary disability continues as long as the applicant is healing, see, Larsen and Knobbe, supra. A worker may continue to heal long after he is able to resume work in some restricted capacity. In that case, he gets temporary total disability, unless earns wages lessening the wage loss and resulting in the calculation of temporary partial disability. Wis. Stat. § 102.43(2).

The commission has previously stated:

"The end of healing, or healing plateau, may or may not be the same as the point at which an applicant can return to work subject to restrictions. However, if a worker in fact returns to work while he is still healing, the insurer is able to reduce the temporary disability payment proportionally based on wages. Wisconsin Statutes § 102.43(2). But a return to work does not necessarily mean a worker has reached an end of healing, nor does a doctor's release to work particularly when the release is restricted.

"The commission has previously recognized that, if an employer offers work to an injured worker during the healing period and the worker refuses it without reasonable cause, the applicant's temporary disability benefits may be reduced by the wages he would have earned had he accepted the work. Wellsandt v. Chippewa County, WC case no. 93050745 (LIRC, November 28, 1997). However, the burden of providing such work is on the employer under Wis. Admin. Code § DWD 80.47 which provides:

`DWD 80.47 Even though an employe could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employe is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period.'

"The commission has consistently construed Wis. Admin. Code § DWD 80.47 to place the burden of providing work within an injured worker's restrictions on the employer. See: Neal & Danas, Workers Compensation Handbook, § 5.10 (4th ed., 1997)."

Wendt v. Fredrick Redi-Mix, WC Claim No. 1995030200 (November 30, 1998). See also, Baker-Drayton v. St. Annes Home, WC Claim No. 1995-038417 (LIRC, July 12, 1999); and Falk v. Cummins Great Lakes, WC Claim No. 1995034834 (July 6, 2001).

cc: 
Attorney Michael H.Gillick
Attorney F. Scott Wochos

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