EVELYN RUCKER, Applicant

KOHLS DEPARTMENT STORES INC, Employer

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and order dated August 21, 2001. At issue is the applicant's claim for additional temporary total disability from March 24, 2000, to July 15, 2000, and from February 26, 2001, to June 22, 2001, and treatment and mileage expense.

The commission has carefully reviewed the entire record in this matter and after consultation with the administrative law judge concerning his assessment of the credibility of the witnesses, hereby modifies the findings and interlocutory order of the administrative law judge. The commission makes the following as follows:

Delete the paragraph which begins on the bottom of page three and ends on the top of page four of the administrative law judge's Findings of Fact and substitute therefor:

"The evidence does not establish the applicant refused an offer of suitable work and therefore she remains eligible for further temporary total disability benefits if otherwise entitled under the act. However, the medical evidence indicates the applicant reached a healing plateau from her work related injury on August 31, 1999, by November 13, 1999. Therefore the applicant's claim for additional temporary total disability to the present is dismissed."

The findings and interlocutory order of the administrative law judge are affirmed except as modified in accordance with the above findings.

Dated and mailed July 31, 2002
ruckeev . wrr : 175 : 3   ND § 5.9 

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Dr. Reddy, one of the applicant's treating physicians, stated on November 30, 1999, the applicant's cervical spine range of motion had improved considerably and was approximately forty degrees of flexion and forty degrees of extension and approximately sixty degrees of lateral rotation to each side with complaints of pain. Dr. Reddy stated that in view of the 75 percent reduction in pain and continued improvement, an additional short course of physical therapy would likely benefit the applicant over a two to four week duration. Dr. Reddy felt the applicant was making very good progress and should be considered as reaching a healing plateau in approximately two weeks with physical therapy, and she was discharged from care.

Dr. Walsh, another treating physician, stated on November 9, 1999, the applicant's cervical range of motion was mildly limited in all vectors of excursion and movement. Dr. Walsh listed the applicant's complaints of localized pain and stated the EMG studies of October 6, 1999, yielded findings of minimal inactive right C7 radiculopathy and she had a negative MRI. Following her move to South Carolina in December 1999 the applicant did not again seek treatment until March 24, 2000, when she saw Dr. Wenner. Dr. Wenner took a history which included multiple types of neck and back pain, including dull or aching back pain, sharp or stabbing back pain, burning or searing back pain, and back pain pattern different from the initial onset, and multiple other types of reported restrictions and back pain. The applicant reported personality changes in the last six months with nervousness and anxiousness. Dr. Wenner could not pinpoint any specific cause for her ongoing pain and restrictions during her initial evaluation. The applicant again treated with Dr. Wenner after March 24, 2000, when she saw him on June 21, 2000, and December 8, 2000.

Dr. Wenner testified he did not have a cause certain in the records for the neck pain at the time of her initial visit because he could not make one, and he noted the applicant's situational anxiety. However, Dr. Wenner stated since that time he concluded the source of the applicant's ongoing pain were the muscles that had been injured in the work incident in August 1999.

The applicant was examined by Dr. O'Brien in October 1999 on behalf of the employer. Dr. O'Brien noted upon examination the applicant's neck showed withdrawal to light touch, and she has normal cervical lordosis with tenderness to palpation over the cervical and periscapular muscles. Dr. O'Brien opined the applicant sustained a muscle strain of the right periscapular muscles as a result of the work incident on August 31, 1999. Dr. O'Brien opined this is a self limited injury which will heal within a two to eight week time period and he anticipated she would reach a healing plateau by October 31, 1999, for such a minor soft tissue injury. Dr. O'Brien opined the applicant could return to light duty work with restrictions to no over-the-head lifting greater than 35 pounds, and to avoid overhead work.

The commission disagrees with the administrative law judge's conclusion the applicant refused an offer of suitable work within her restrictions from the employer in March, 2000, and therefore was not eligible for temporary total disability benefits for the periods in dispute. Under Wis. Admin. Code § DWD 80.47 even though an employee could return to restrictive type of work during the healing period, unless suitable work within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period. The commission does not disagree the employer made a good faith offer of work to the applicant in this case. However, at the time the applicant moved to South Carolina in the fall 1999, she had no prospects of employment with the employer and the employer had not indicated there would be any work available within her restrictions in the foreseeable future. The applicant testified she was forced to move due to the transfer of her husband who was in the military. The commission does not find the work offered by the employer which would have required the applicant to relocate over one thousand miles and move her family in order to accept the offer of work constitutes suitable work. The administrative rule specifically contemplates the applicant may be offered work by other employers, presumably including an employer in her new location, which would be within her restrictions which would also act to remove her eligibility for temporary total disability benefits if she in fact refused to accept such offer within her new locality. However, the commission does not find an offer of work in this situation where the applicant had no prospects of work with the employer and was forced to move due to her family situation more than one thousand miles from the employer's location, that the applicant refused an offer of suitable work pursuant to Wis. Admin. Code § DWD 80.37.

The commission finds the applicant reached a healing plateau as of November 13, 1999, following her relatively minor work injury in August 1999. The applicant's objective tests were within normal limits and her EMG showed minimal inactive right radiculopathy. There is no evidence the applicant suffered any disc herniation or breakage as a result of the work incident, and she had been diagnosed with a thoracic cervical strain with myofascial pain component and no surgery was recommended.

The applicant was able to go four months without the need for treatment following her move to South Carolina prior to seeing Dr. Wenner in March of 2000. Dr. Reddy recommended the applicant undergo further physical therapy which the applicant did not pursue. Dr. Reddy noted in her final treatment notes in Wisconsin the applicant showed considerable improvement in her pain and range of motion, and he expected she would reach a healing plateau within a short period of time. Dr. O'Brien opined the applicant would reach a healing plateau by October 31, 1999, for such a minor soft tissue injury.

The commission consulted with the administrative law judge concerning his assessment of the applicant's demeanor and testimony concerning her ongoing pain and restrictions as a result of her work injury in August 1999. The administrative law judge indicated he found the applicant to be credible that she still had symptoms and the need for more treatment when she moved to South Carolina. However, the applicant's initial treatment notes with Dr. Wenner give a variety of back complaints and various symptoms which had not been present earlier. The applicant went an extended period of time until March 2000 without the need for treatment prior to seeing Dr. Wenner, and then only treated with him on two other occasions. Based on Dr. O'Brien's assessment and the applicant's objective tests the commission does not find the applicant's continuing complaints were related to her work injury in August 1999. Therefore the applicant's claim for additional temporary total disability benefits from March 24, 2000, to July 15, 2000, and from February 26, 2001, to June 22, 2001, is dismissed.

cc: 
Attorney Michael H. Gillick
Attorney Kurt Van Buskirk

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