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

CATHY A MULROY, Applicant

USF HOLLAND INC, Employer

USF HOLLAND INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-021149


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.

ORDER

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

Dated and mailed May 30, 2002
mulroca . wsd : 175 : 8  ND § 5.46   § 5.23 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in awarding the applicant five percent permanent partial disability as a result of her work injury on March 9, 1998. The applicant testified that on March 9, 1998, she was walking from the employer's offices to her automobile when she was struck by one of the employer's semi trucks that failed to stop at the crosswalk. The applicant testified that she put up her right arm to shield her, and she was knocked approximately four feet and briefly lost consciousness, and she was taken to the emergency room with complaints of injury to her neck, rib cage, left elbow and left knee. Both the applicant's treating physician, Dr. Wolff, and Dr. Suster, who examined the applicant on behalf of the employer, acknowledged that the applicant sustained permanent partial disability as a result of the work injury, and the employer conceded three percent permanent partial disability. The applicant testified to her ongoing pain and restrictions as a result of her work injury, and that she needs to be able to stretch, exercise and go for a walk and change positions as needed when working. The applicant testified that her lower back continues do bother her. The commission credits the applicant's testimony of the nature of her ongoing pain and restrictions since her work injury. Dr. Suster restricted the applicant to sit and stand at will, and to limit sitting to 30 minutes with no repetitive bending, twisting and no lifting with both hands of more than 20 pounds, and no ladder climbing or overhead reaching.

Dr. Wolff completed a WC-16-B dated January 17, 2000, in which he diagnosed the applicant with an acute sprain of the cervical, thoracic and lumbar spine as well as myofascial pain due to the work incident on March 9, 1998. Dr. Wolff assessed the applicant with five-percent permanent partial disability to the body as a whole as a result of her work injury. The commission credits Dr. Wolff's assessment given the consistent history of the applicant's ongoing pain and restrictions as well as Dr. Suster's report and restrictions. The commission finds that the applicant suffered five-percent permanent partial disability as a result of her work injury.

The employer also contends that the administrative law judge erred in awarding the applicant medical expenses for dental treatment following the work injury. The employer contends that Dr. Ross, the applicant's treating dentist, did not provide a report which was sufficient to meet the legal standard for causation to pay the applicant's dental treatment expense. However, the employer did not choose to have the applicant undergo any independent medical examination by a dentist of its choosing to contest Dr. Ross's assessment. Although Dr. Ross does not specifically state that the applicant's dental problems were aggravated by her work injury beyond normal progression, the commission finds that Dr. Ross's assessment is legally sufficient to award medical expenses. Dr. Ross was very careful to state in his report that it was debatable that the applicant's work accident was a substantial cause of her problems, but he noted that even though she had some preexisting conditions these conditions were asymptomatic prior to the work injury. Dr. Ross also stated that such trauma as the applicant experienced on March 9, 1998, can cause irreversible nerve damage to one's teeth. Dr. Ross stated that although the applicant's work injury did not cause her underlying problems the incident definitely seemed to be a contributing factor. The commission finds that on the whole Dr. Ross's thoughtful statement and report is legally sufficient to meet the requirement that the applicant's need for dental treatment following the work incident in March 1998, was caused by the work injury. The applicant suffered a traumatic incident when she was knocked approximately four feet by a semi truck, and landed on the pavement, and this incident aggravated the applicant's underlying dental problems beyond their normal progression leading to the need for dental treatment.

In addition, the commission affirms the payment of the applicant's treatment expense for Rolfing treatment. The applicant was specifically referred by Dr. Alba, one of her treating physicians, for Rolfing treatment. Although the applicant waited an extended period of time after her referral to obtain the treatment, there is nothing in the record which indicates that such treatment was no longer necessary to cure and relieve the effects of the work injury. The applicant continued to have consistent complaints of neck, thoracic and lower back pain, and she testified that such treatment was effective in helping to relieve her symptoms. The employer did not present any countervailing medical evidence to establish that the Rolfing treatment was not appropriate. In addition, the applicant appropriately noted in her response to the employer's petition that her injuries are permanent, and that she has an ongoing need for treatment, and the fact that she waited an extended period of time before seeking treatment with the Rolfer did not undercut the validity of her claim.

The applicant contends in her cross-petition for commission review that the administrative law judge erred in dismissing her claim for loss of earning capacity. The evidence indicates the applicant had an outstanding academic record in high school and college, and has extensive experience in trucking service and sales. The evidence indicates the applicant was able to continue to perform her normal work without restrictions prior to her termination with the employer in April 1998, and thereupon found better paying work in the same field until she was discharged by her subsequent employer for non-injury reasons.

The administrative law judge appropriately noted the evidence indicates that the applicant terminated her employment with the employer because she was angry with the employer over the handling of her accident claim, and her termination did not have anything to do with health related issues. It appears the applicant was able to perform her normal work until the day of her termination without restrictions, and she went on to perform similar work for another employer as well as on her own for an extended period of time after leaving work with the employer. The applicant stated in her letter of termination that due to her current health condition caused by the work injury, she felt that it was in her best interests to pursue other employment opportunities that will provide a safer working environment. However, the applicant was referring to the fact that she still felt that there were unsafe conditions in the employer's parking lot, and she noted in her testimony that she had another close call with a truck subsequent to the work incident in March 1998.

However, the applicant also seemed to be very frustrated and disturbed by the fact that she had to spend time at work dealing with the insurance company to have her treatment expenses paid. The commission finds the applicant was angry and frustrated with the employer over the handling of the claim, and it is certainly reasonable to conclude that the reason for the applicant's termination had more to do with her anger and frustration than any health related issues.

Under Wis. Stat. § 102.44(6)(b) if an employee returns to work for an employer and subsequently terminates her employment because her restrictions prevent her from continuing in such employment the department may make an award for loss of earning capacity. However, in this case it does not appear that the applicant terminated her employment because her physical and mental limitations prevented her from continuing in such employment rather, it appears that the applicant terminated her employment for personal reasons due to her frustration and anger with the employer. Therefore, the applicant's claim for loss of earning capacity was appropriately dismissed.

cc: 
Attorney Robert T. Ward
Attorney Jan M. Schroeder


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