GEORGE A NOHELTY, Applicant
COUNTY OF WAUKESHA, Employer
COUNTY OF WAUKESHA, Insurer
The self-insured employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on December 21, 2001. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
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 his Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is August 21, 1948, has been employed as a Waukesha County Deputy Sheriff for over 15 years. On December 4, 1999, he and a coworker were transferring three or four prisoners in a van from the county jail to state facilities. The first stop was at Waupun, and there a prisoner escaped from the van and the applicant gave chase on foot. The chase took place in a residential area and lasted about three city blocks before the applicant lost sight of the prisoner, who escaped. At this point the applicant started to experience chest pains and was concerned that he might be having a heart attack. An ambulance was called and the applicant was taken to the hospital.
He was transferred into the hospital on a gurney and tests were performed which showed there had not been an infarction. His medical history of diabetes, hypertension, and hypercholesterolemia was noted. The applicant also has a history of peripheral vascular disease. He was kept in the hospital overnight and discharged with a diagnosis of anginal chest pain. As the applicant was walking out of the hospital at about 9 a.m. the day after he had been admitted, he noted pain and cramping in the calf of his right leg. This symptom persisted.
The applicant saw his primary physician, Dr. William Gaver, after his release from the hospital on December 5, 1999. Dr. Gaver ordered a cardiac catheterization and the applicant and his wife went to a different hospital that same day to have this test done. As the applicant was walking through the hospital hallway on the way to his test, his leg cramped so badly that he had to stop and lean against the wall. The nurse took the pulse of his right foot and it was very diminished. He was referred to a vascular surgeon, Dr. Michael Phillips, who found that his popliteal artery was occluded at the right knee, just above the trifurcation of that artery. Dr. Phillips performed a popliteal artery bypass procedure on the leg on January 21, 2000, but for reasons which are not clear, it was unsuccessful. The consensus has been that another surgery would place the applicant's leg at risk, and collateral circulation has since developed to give significantly better blood flow to the leg, so no further surgery is currently contemplated.
Dr. Phillips referred the applicant to Dr. Gary Seabrook, another vascular surgeon, for follow-up and second opinion. Dr. Seabrook has recommended against new surgery. Dr. Seabrook completed a WC-16-B and also gave deposition testimony. He attributed the applicant's popliteal artery occlusion to his chasing of the prisoner on December 4, 1999. He opines that the chase ruptured a plaque in the artery causing the occlusion. He bases his opinion on the timing of the onset of the applicant's leg symptoms, the fact that he was functioning normally prior to this event, and the fact that the popliteal artery is a smaller artery and an unusual place for an obstruction to develop without a traumatic event.
Dr. Gaver and Dr. Phillips gave the same opinion regarding causation as Dr. Seabrook gave. At respondents' request, Dr. Richard Steliga performed a medical record review on January 18, 2000. He opined that the popliteal occlusion was most likely secondary to preexisting, progressive occlusive vascular disease. He cited the delay between the chasing event and the onset of symptoms. Dr. Steliga examined the applicant on June 8, 2000. He came to the same conclusions, opining that the manifestation of the popliteal blockage was merely coincidental to the incident of December 4, 1999. He assessed 50 percent permanency at the right hip, attributable to what he saw as a nonindustrial condition.
The applicant had preexisting vascular disease as well as diabetes, and both these conditions made his arteries more susceptible to plaque formation. However, employers take employees "as is" for purposes of worker's compensation liability. Green Bay Soap Company v. ILHR Department, 87 Wis. 2d 561, 566, 275 N.W.2d 190 (Court of Appeals 1978); M & M Realty Company v. Industrial Commission, 267 Wis. 52, 63, 64 N.W.2d 413 (1954). The commission agrees with the administrative law judge that the opinion of work causation given by the applicant's physicians, and best articulated by Dr. Seabrook, was credible. As Dr. Seabrook noted, the applicant was functioning normally prior to the work incident on December 4, 1999. He experienced right leg symptoms as he was walking out of the hospital the day after the incident, after being off his feet since being taken to the hospital in the ambulance. His leg symptoms thereafter persisted. It is not credible that mere coincidence explains the onset of this problem so close in time to the work incident, particularly given the fact that the applicant was confined to bed during his entire hospital stay. In addition, Dr. Seabrook's explanation that the popliteal artery is an unusual place for an obstruction to develop, absent a traumatic event, is credible.
At one point in his testimony, Dr. Steliga conceded that the work incident aggravated and accelerated the applicant's preexisting condition beyond normal progression (see transcript of hearing held on April 18, 2001, page 95). In subsequent testimony Dr. Steliga recanted this opinion, and indicated that he did not believe there was such aggravation and acceleration. However, his recantation was not credible to the commission, particularly given his additional testimony that the work incident "may have" accelerated the preexisting condition enough to have caused a problem (id. at page 100-101).
Finally, the employer asserted that because the applicant's physicians gave affirmative answers to questions which implicated all three legal theories of causation, their opinions should be disregarded. The commission is continually forced to address this argument, because physicians very frequently implicate more than one legal theory of causation, due to their misunderstanding of the precise meaning and exclusivity of each theory. In such cases, the commission looks to the totality of the physician's written statements and/or testimony, in order to discern his/her true medical explanation concerning what occurred. The established "magic words" of the legal theories are not the only acceptable means for a physician to state his opinion. In this case, it is clear from the applicant's physicians' written statements, deposition, and testimony that they believed the applicant's preexisting vascular disease was aggravated, accelerated, and precipitated beyond normal progression by the work incident of December 4, 1999.
With regard to the nature and extent of permanent partial disability attributable to the work injury, the commission notes that none of the physicians has been entirely consistent with his assessment of permanency. When the commission consulted with the administrative law judge, he indicated that he formed no particular credibility impressions of the applicant which would have assisted him in determining the extent of permanency. Given the inconsistent medical opinions, he chose to accept Dr. Gaver's assessment of 50 percent at the right knee and 25 percent at the right hip, because he was a credible treating physician.
Dr. Gaver initially testified at the hearing held on April 18, 2001, that the applicant was going to have 50 percent or less use of his right lower extremity due to the effects of the work injury. After further questioning by the administrative law judge, he refined that estimate to 50 percent at the right knee plus 25 percent at the right hip. Dr. Steliga estimated 50 percent permanent partial disability at the right hip, both in his written medical opinion and in his initial testimony at the hearing. However, he subsequently testified at the hearing that he believed the applicant's current disability was in the range of 10 or 20 percent at the right hip. Dr. Seabrook estimated permanency at 50 percent at the right hip, but indicated that he did not believe he was qualified to calculate permanent disability, and further indicated that he believes "complicated formulas" exist for making such calculations.
The applicant is able to perform sedentary work. He can sit for an hour before having to get up and walk. He can only walk for limited distances but he is able to walk. Dr. Gaver gave no details with respect to why he assessed permanency at the knee in addition to the hip. Even though Dr. Seabrook did not believe he was qualified to calculate permanency, as a medical doctor he is qualified, and his assessment was identical to one of the assessments given by Dr. Steliga. Although Dr. Seabrook initially characterized his assessment as a guess, he subsquently answered affirmatively to the question of whether his assessment was to a reasonable degree of medical certainty. Considering all the aforementioned evidence, the commission finds that the applicant did sustain a 50 percent permanent partial disability at the right hip as a result of the work injury of December 4, 1999.
Permanent partial disability of 50 percent at the hip equates to 250 weeks of compensation at the applicable rate of $184 per week for a total of $46,000, of which $22,110.67 is accrued as of June 20, 2002.
The applicant was temporarily totally disabled from January 20, 2000, until February 29, 2000 (both dates inclusive) a total of five weeks and five days. The applicable rate for temporary total disability is $538 per week for a total amount due of $3,138.33.
A 20 percent attorney's fee will be subtracted from the awards for temporary total disability and permanent partial disability. Immediate payment of the full attorney's fee for the permanent partial disability award results in subtraction of a $396.93 interest credit.
Reasonably required medical expenses are also due as set forth below in the commission's Interlocutory Order.
The medical opinions indicate that additional medical treatment and/or disability may result, and therefore this order will be interlocutory.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, the self-insured employer shall pay to the applicant compensation in the amount of Twenty thousand one hundred ninety-nine dollars and twenty cents ($20,199.20); to applicant's attorney, Christopher M. Miller, fees in the amount of Nine thousand four hundred thirty dollars and seventy-three cents ($9,430.73); to St. Agnes/Waupun Memorial Hospital the sum of Two thousand sixty-five dollars and ten cents ($2,065.10); to Dr. Michael Phillips of the Wilkinson Clinic the sum of Eight hundred sixty-three dollars and twenty cents ($863.20); to United Health Care as reimbursement for payment of medical expense the sum of Three thousand one hundred twenty-eight dollars and eighty cents ($3,128.80); to Waukesha Memorial Hospital the sum of Fifty dollars ($50); reimbursement to the nonindustrial insurance carrier which on February 28, 2000, paid Waukesha Memorial Hospital the amount of Four thousand two hundred forty-seven dollars and sixty-five cents ($4,247.65), and on March 22, 2000, paid Waukesha Memorial Hospital One hundred ninety-two dollars ($192]; to Pine Care as reimbursement for their payment of medical expense the sum of One thousand seven hundred forty-two dollars and fifty-six cents ($1,742.56); to Oconomowoc Memorial Hospital the sum of Twenty-nine thousand seven hundred ninety-nine dollars ($29,799); to Dr. Jeffrey Gaver/Internal Medical Clinic the sum of Four hundred fifty dollars ($450) to Froedtert Hospital Five thousand two hundred three and four cents ($5,203.04); to Prescription Center Pharmacy the sum of Two thousand two hundred sixty-three dollars and fifty-five cents ($2263.55); and to the applicant as reimbursement for his payment of prescription expense the sum of Three hundred fifty-five dollars ($355).
Beginning July 20, 2002, the self insured employer shall pay to the applicant the sum of Seven hundred ninety-seven dollars and thirty-three cents ($797.33) each month until the currently-unaccrued permanent partial disability is paid in the total amount of Nineteen thousand one hundred eleven dollars and forty-seven cents ($19,111.47.)
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June 18, 2002
nohelge . wrr : 185 : 3 ND § 3.37 § 8.24
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc:
Attorney Linda S. Vanden Heuvel
Attorney Paul R. Riegel
Attorney David H. Nispel
Appealed to Circuit Court.
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