CHRISTINE A CHIALIVA, Applicant
CITY OF NEW BERLIN POLICE, Employer
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 February 19, 2002
chialch . wsd : 175 : 1 § 40.65
David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
The employer asserts in its petition for commission review that the applicant's claim for duty disability benefits pursuant to Wisconsin Statute section § 40.65 should be dismissed because the applicant failed to provide two physicians in this state to certify to her disability caused by her work related injury. However, both Dr. Baltrusaitis and Dr. Jackson, signed certifications attesting to the applicant's permanent disability and limitations due to her work related motor vehicle accident required under the statute. Subsequent to the hearing in this matter Dr. Baltrusaitis filed a second report dated November 13, 2000, in which he concluded that the additional records he had reviewed changed his opinion that the applicant is disabled and unable to work as a police officer. However, the fact that Dr. Baltrusaitis subsequently changed his opinion more than a year later after his initial certification and following the hearing in this matter, does not change the validity of the original certification. The statute does not provide for any retroactive rescission of the certification based on a physician's change of opinion subsequent to the department's denial of the claim, and the applicant's appeal under the statute. Under Wis. Stat, § 40.65(3), the department shall determine whether or not the applicant is eligible for benefits on the basis of evidence submitted by the two physicians, and an applicant may appeal a determination to the Department of Workforce Development if her eligibility is denied. The administrative law judge appropriately noted that without the certification by the city, and therefore no eligibility finding by the department, the applicant is entitled by statute to a hearing before the Department of Workforce Development to produce medical evidence supporting the compensability of her claim, and that Dr. Baltrusaitis's subsequent report did not negate his initial certification. Therefore, the commission dismisses the employer's and insurer's a motion to dismiss based on the lack of a proper certification under Wisconsin Statute section § 40.65.
The employer also contends that the administrative law judge erred in determining that the applicant is entitled to duty disability benefits in this matter. The evidence indicates that the applicant suffered a cervical injury as a result of her motor vehicle accident while working for the employer on July 13, 1998. The employer contends that the applicant is not permanently restricted due to the motor vehicle accident on July 13, 1998, but rather any continuing neck problems and disability are largely psychological in origin, and therefore not compensable. Dr. Novum, who examined the applicant on behalf of the employer and prepared several reports, stated in his most recent report on June 12, 2000, that, based on a thorough review of all of the information in the applicant's case, to a high degree of medical confidence, there is no medical evidence to support the applicant's having sustained anything more than a commonplace, self limited, minor musculoskeletal neck and back strain in connection with her July 1998 motor vehicle accident, to which a healing plateau had long ago been reached. In addition, Dr. Baltrusaitis stated in his subsequent report of November 2000, that since the applicant's neurological examination is intact, her range of motion is normal, and her sensation is intact and her strength normal, he felt her diagnostic tests results were irrelevant and that from an anatomical standpoint she should be able to resume her activities as a police officer. The employer also points to a psychological evaluation dated September 7, 2000, prepared by Dr. Lynch, a clinical psychologist, who concluded that the applicant is psychologically able to perform the essential responsibilities of her police officer position based on a clinical interview. Dr. Lynch stated that it was very likely that compensation issues are affecting her cooperation, motivation and compliance.
The evidence does not indicate that the applicant had a history of prior psychological or motivational problems. The applicant had no history of neck symptoms or restrictions prior to the work injury in July 1998. The applicant presented a CT scan of her neck taken on October 16, 1998 which showed a C4-5 midline disc herniation as well as disc bulging which deformed the ventral sac, but did not contact the spinal cord. Dr. Mueller's notes on July 6, 1999, confirmed that the applicant was seen for cervical radiculopathy and he noted that her MRI scan showed a persistent midline C4-5 disc herniation, and extension film showed exaggerated motion at that level. The applicant presented treatment notes from 1998, indicating that she had received substantial physical therapy which had improved her symptoms, including range of motion of the cervical spine, but that her neck pain persisted, and that she has had recent exacerbations of her cervical spine when she has attempted to return to work. The applicant presented the medical notes from Dr. Deckard, dated September 14, 1998, which stated that the applicant does have the neck and back pain as noted, which appears to be musculoskeletal in origin. Dr. Jackson indicated in his initial report dated June 22, 1999, that the applicant sustained a cervical myofascial strain sprain, with a C4-5 disc herniation, as a result of the motor vehicle accident in July 1998, which had progressed into a fibromyalgia syndrome, which is the reason she continues to have problems with her pain.
The applicant testified that since her work injury she has attempted to return to work on a full-time basis, but due to neck pain and headaches was unable to perform her normal work for more than a short period of time, and was therefore restricted to light duty four hours per day. The applicant testified that before she was hired by the employer she was put through physical and psychological examinations, and she had no physical disabilities or psychological problems at that time. The applicant testified that she was assigned light duty desk work following her work injury; she is still working four hours a day, three days a week; and she had sharp pain in the back of her neck and burning in her shoulders, pain in her right arm and headaches in the back of her head. The applicant admitted that she had requested Dr. Jackson to return her to full duty work at one point, but when she attempted the work she suffered a lot of neck pain and her vision became blurry. The applicant testified that she is unable to work as a police officer on a full time basis due to the neck pain because she no longer has the strength.
The administrative law judge, who could observe the demeanor of witnesses and therefore was in a good position to make a determination as to credibility, credited the applicant's testimony. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination.
Dr. Novum noted in a letter dated July 13, 1999, that he had reviewed additional records pertaining to the applicant's ongoing evaluations and treatment, and that the applicant's ongoing myofascial pain involving the neck region bears no relationship or causal connection to the motor vehicle accident in July 1998. However, the treatment notes from Dr. Brownell on November 5, 1999, refer to the applicant's ongoing neck pain which Dr. Brownell attributed to her cervical disc herniation causing intermittent right arm pain and numbness. Dr. Mueller stated in a letter dated January 26, 2001, that the applicant's imaging showed what was either a large bulge or midline disc herniation at C4-5, and flexion extension films showed an area of exaggerated motion at that level. Dr. Mueller reasoned that given this data it seems that the problems that the applicant suffers at the C4-5 are within a reasonable medical certainty a result of her motor vehicle accident in July 1998. Based on a review of all of the medical evidence, including the reports from Dr. Baltrusaitis, Dr. Lynch, and Dr. Novum, the commission credits Dr. Mueller's assessment that the applicant's continuing disability and restrictions are due to her work related neck injury in July 1998. The commission does not find Dr. Baltrusaitis' change of opinion to be persuasive. The evidence indicates that the applicant's neck pain and range of motion waxed and waned over time, but that she had consistent complaints of neck problems over an extended period of time, and there was no evidence of any prior neck disability or disc herniation. Dr. Mueller's assessment is corroborated by Dr. Jackson. Given the evidence of the applicant's neck injury and disc herniation as a result of the work injury in July 1998, and given the evidence of the applicant's ongoing pain and restrictions, as well as the reports from Dr. Mueller and Dr. Jackson, the commission finds that the evidence was sufficient to establish that, due to her work related injury and subsequent disability and permanent restrictions, the applicant is permanently restricted to light duty. Therefore, the applicant is entitled to duty disability benefits pursuant to Wis. Stat. § 40.65.
cc:
Attorney Michael H. Gillick
Attorney Alan E. Seneczko
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