MARY ANN KOSER, Applicant
DOSKOCIL FOODS, Employer
LUMBERMENS MUTUAL CASUALTY COMPANY, Insurer
The applicant seeks compensation based on a February 8, 1999, date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (the department) heard the matter on August 30, 2000, November 14, 2000, February 5, 2001, April 12, 2001, June 25, 2001, and September 19, 2001. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $732.29 at the time of the alleged injury.
At issue before the ALJ was whether the applicant sustained a compensable injury, the nature and extent of disability from such an injury, and the respondent's liability for medical expenses. On November 2, 2001, the ALJ issued a decision finding, among other things, that the applicant in fact sustained a compensable injury and was permanently and totally disabled as of August 15, 2001. The respondent has filed a timely petition for commission review.
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 makes the following:
1. Facts.
a. Alleged injury and treatment.
The applicant, who was born in 1941, began working for the employer's meat processing plant in the late 1950s when she dropped out of high school at age 16. She has spent her entire career working for the employer, except for 12 years when she raised children.
Her job involved lifting and carrying sausage links on a repetitive basis, an activity shown on the videotape exhibit 7. The applicant basically would take a number of linked sausages as they came off the line after being stuffed by another worker, wrap the link around a horizontal metal stick, lift the stick with the linked sausages and hang it on a metal rack (or tree), and then begin the process again.
The sticks of linked sausage might weigh 8 to 13 pounds for the relatively smaller sausages like wieners, and up to 34 to 48 pounds for the largest product (called Ryan's or Golden Corral.) The employer's numbers suggest an average worker might lift 5,400 pounds per day.
At least some of the hanging activity involved over-the-shoulder reaching. There is some bending at the waist involved in this job. One of the applicant's coworkers in fact testified the job involved a lot of repetitive bending and twisting, and was accurately described by the applicant. June 25, 2001 transcript, page 67.
The applicant described herself as working faster than the average employee, and twice as fast as the worker shown in the videotape. The coworker verified that the applicant worked twice as fast as the worker shown on the tape. June 25, 2001 transcript, page 62, 67. Indeed, the employer concedes the applicant worked faster than average.
In late January 1999, the applicant began experiencing hip pain. She initially saw F. Bradford Meyers, M.D., on February 8, 1999 (1); his notes are at exhibit D. Dr. Meyer's history states:
"Patient came in today for a Worker's Comp injury. She states that on or about 01/29/99 while lifting Ryan's Smoked Sausages she developed pain in her right hip. She had pain to her right hip after her particularly heavy Friday activities for the last moth or so but seemed particularly bad on Monday. She complains of pain in the right hip."
On exam, the doctor noted that the applicant was limping, favoring her right leg significantly. She was not tender on palpation, either at her leg or her back, though she did complain of a burning sensation in her buttocks and right leg. His assessment was acute right hip strain and low back strain.
Dr. Meyers noted that the applicant did not want to return to work in her condition, but that the employer would not accept a total release unless she was hospitalized. He allowed her to return to work, sit down only, no walking, with the caveat that her medicine would make her drowsy.
The applicant returned to Dr. Meyers on February 15, 1999. She continued to have symptoms, but had not yet started therapy. On this occasion, the doctor noted the development of acute pain on January 29, 1999. Assessing acute pain right low back and hip and leg strain and pain, Dr. Meyers stated he wanted a second opinion from David Solfelt, M.D. Dr. Meyers continued the restrictions against lifting or carrying more than 10 pounds, or any pushing or pulling, though he did allow sit-down work.
Dr. Solfelt saw the applicant on February 17, 1999, for evaluation of her hip and leg pain. He noted that on January 29, she was hanging heavy meat products and afterwards noted the onset of pain into her right hip and leg. He noted prior back problems of many years earlier. Dr. Solfelt reported that that x-rays showed extensive degenerative changes from L3-4 to the sacrum. His diagnostic assessment was:
"It appears that the patient's right leg and back pain are on the basis of extensive degenerative disc and facet joint changes in the lower lumbar spine. The patient is not experiencing signs of acute sciatica or radiculopathy, but she does have referred pain into both legs."
Exhibit 2.
Dr. Solfelt ordered an MRI, which was done on February 19, 1999. It showed multilevel degenerative changes primarily involving the facet articulations of the low segment with a slight slippage of L3 upon L4 as a result of facet arthropathy. The findings were consistent with fairly advanced degenerative changes given the applicant's age.
After reviewing the MRI, Dr. Solfelt and the applicant discussed her treatment options. They decided to try medication. The next step would be an epidural injection.
The applicant returned to Dr. Solfelt on March 23, 1999. She told the doctor she had had some improvement of her hip pain, though she continued to have discomfort down the right calf and a burning sensation in the right leg. The doctor noted she could walk without a limp.
The doctor's assessment was acute aggravation of low back and lower extremity pain, which was improving. He thought she had a work-related aggravation of degenerative lumbar disc disease and degenerative Grade I L3-4 spondylolisthesis. The applicant told Dr. Solfelt she thought the condition was work-related, as it came on while hanging heavy meats, an activity she had been doing for 25 years. She told the doctor that activity put far more stress on her back than her activities in everyday life. From the doctor's "standpoint as a treating physician the patient certainly has a work-related aggravation of her underlying degenerative disc disease." Exhibit 2. He recommended she continue in light duty work for six weeks, followed by an epidural steroid injection if her symptoms increased.
Dr. Solfelt wrote a letter to the insurer that day stating:
". . .The patient's current condition is a work-related aggravation of degenerative lumbar disc disease and a degenerative L3-4 spondylolisthesis. The degenerative changes noted on x-ray did not occur on the day of her injury, but obviously have developed over time. The patient describes, however, the manipulation of Golden Corral sausage which weighs approximately 50 pounds. The patient reported that this is an exceedingly difficult activity for her and other workers. Because of the length of the sausage she has to back up and drag it off the table. She then is left supporting it to another location to lift it up and hang it. The patient is not ready to return to that type of activity and based upon the appearance of her x-rays, I do not believe she is likely to tolerate that activity in the future, regardless of our treatment."
Exhibit 2.
When the applicant returned to Dr. Solfelt on May 4, 1999, the doctor noted she still reported stiffness and soreness in her back, which could go into her right leg. Given the continuation of her problems, despite rest, medication, and work restrictions, the doctor recommended she proceed with steroid injection at L3- 4.
Also on May 4, 1999, the applicant saw James Martin, M.D., the employer's doctor. He noted she came with a question about an epidural injection, and that she had a history of degenerative disc disease with increased problems with low back and right hip pain, despite being on light duty.
Dr. Martin did not examine the applicant, but assessed degenerative disc disease of the lower back with a recent exacerbation in symptoms. He did not know why the symptoms had increased, assuming they were in fact work related, if she had been on light duty. He seemed to recommend the injections, and physical therapy.
The applicant elected to go with the injections, but the doctor scheduled to
perform it apparently thought the injection would not help after looking at her
MRI. This led to another appointment with Dr. Martin, who referred her to Kris
Chan, M.D.
When the applicant saw Dr. Chan, she told the doctor her job involved lifting
sausage weighing 33-34 pounds and hanging it on racks, which was very physical
work. He noted that she reported work-related injury on January 29, 1999. She
described, too, her symptoms of pain in her right leg and hip.
The doctor's diagnostic impression was mild findings of L5 and S1 radiculopathy. He noted, too, that x-rays showed marked degenerative changes with a collapsed disc at L4-5, and mild grade one spondylolisthesis at L3-4. He noted back spasm as well.
Dr. Chan thought the applicant had mild spinal stenosis at L3-4, that the L4-5 disc had completely collapsed due to degenerative changes, but that he saw no evidence of nerve root compression or foraminal stenosis that could account for her leg pain. He thought it would be worthwhile to try an epidural steroid injection.
Thomas Strauss, M.D., did an injection, on June 3, 1999. He described the applicant as a 58-year-old woman involved with lifting of heavy meat at work. He noted a pins and needles type pain in the right leg, which the applicant attributed to the heavy lifting. He noted her current symptoms included a persistent aching, burning, and sharp sensation in the right low back. He noted, too, that she continued to work in light duty.
The doctor noted much improvement in the right hip pain on June 10, 1999, and a second injection was performed on July 15, 1999.
The applicant then returned to Dr. Solfelt on August 12, 1999 (exhibit I). He noted she had undergone three injections, which she reported had decreased her leg pain. She still had pain in her low back, however, and told the doctor that any lifting aggravated her symptoms. His diagnostic assessment was pain consistent with stenosis and degenerative changes throughout the lower lumbar spine.
Dr. Solfelt did not believe the applicant was capable of returning to her normal job, opining it would almost certainly aggravate her condition. He set permanent restrictions against lifting more than ten pounds, against lifting above shoulder height, and against lifting away from the body. He thought she should have the chance to alter her position as necessary, with a maximum of 30 minutes in any one position. He did allow full time work, eight hours a day five days a week. Finally, Dr. Solfelt recommended consideration of surgery if her symptoms worsened.
The applicant again saw Dr. Martin on September 28, 1999. He noted her concern with low back pain, and began to wonder if some of the increase was not due to anxiety. His assessment was degenerative spine disease symptomatically worsening. In a subsequent visit, he wrote out a referral to James Leonard, D.O., of the UW Spine Clinic.
Dr. Leonard saw the applicant on December 2, 1999. He noted complaints of pain primarily in the lumbosacral area, but also radiating into the coccyx. She dated the onset of her pain to January 1999, when she had difficulty doing lifting in the course of her work at the meat plant. He reports "[s]he did injure it on January 29, 1999." Exhibit I, letter from Leonard to Martin dated December, 1999. After reviewing her medical records, scans, and doing an examination, he confessed he was a little confused regarding the applicant's pain, and wondered if she had a vascular problem. He ordered additional testing of her circulatory system.
Accordingly, the applicant saw Sandra Carr, M.D., on December 14, 1999. Dr. Carr did vascular testing, and concluded that her pain was more likely neurogenic and not vascular in origin.
When the applicant returned to Dr. Leonard on January 13, 2000, he described the main issue as gaining some closure on the workers compensation case. Accordingly, he ordered a functional capacity evaluation to define permanent restrictions, before proceeding with a disability evaluation. He noted "the one issue that is difficult to define is how much of the symptoms are due to underlying degenerative changes as opposed to the work injury." Exhibit I, letter from Leonard to Meyers dated January 13, 2000. He continued the ten-pound lifting limit set by Dr. Solfelt.
The functional capacity evaluation was done on January 27, 2000. The applicant told the occupational therapist who did the test that she was injured on January 29, 1999, when she was lifting product at work weighing about 48 pounds. She set work restrictions which permitted standing only rarely, walking occasionally, rarely lifting 5 pounds from floor to waist and ten pounds from waist to overhead, no bending or rotating.
Following the functional capacity evaluation, Dr. Leonard saw the applicant again on February 17, 2000. Noting that she had not had any significant improvement in the lumbosacral pain problem, he assigned a permanent partial disability compared to disability to the whole body for the strain. He also stated her work restrictions, as set out in the functional capacity evaluation, were permanent. He did not recommend surgery.
Meanwhile, the applicant continued to work for he employer in restricted duty. The efforts of the employer to find work for the applicant, and of the applicant to perform the work provided, are discussed in more detail below.
Dr. Meyers subsequently restricted the applicant from working in a cooled environment in August 2001.
b. Expert medical and vocational opinion.
Dr. Leonard completed a practitioner's report on form WKC-16-B on February 17, 2000. Exhibit A. He identifies a January 29, 1999, date of accident or last day of work, and identifies a lumbar strain as his diagnosis. He noted she was working, and set a permanent ten pound lifting limit. He marked the Lewellyn 3 (2) causation box, indicating that the accident or work event caused disability by aggravation, acceleration, and precipitation of a preexisting degenerative condition beyond normal progression. Dr. Leonard went on to rate permanent partial disability at 3 percent compared to disability to the body as a whole, for continuing lumbar pain. He reiterated that the restrictions set out in the January 2000 FCE were permanent.
Dr. Leonard submitted another practitioner's report form on April 17, 2000. In this form, he identified "occupational injury due to repetitive lifting, bending and carrying activities at work over many years" as the work exposure to which the applicant attributed her condition. He again referred to the functional capacity evaluation for a description of the applicant's permanent restrictions. He marked the Lewellyn 3 causation box again, and referred to his prior report for the applicable permanent partial disability rating.
The applicant also submits Dr. Leonard's letter to Dr. Meyers dated February 27, 2000. He opines:
"Mary Ann has not had any significant improvement in the lumbosacral pain problem. Therefore, I have suggested that we assign her a
3 % permanent partial disability of the body as a whole for her lumbosacral strain. It is my opinion that the work injury of January 29, 1999, has aggravated underlying degenerative changes in the lumbosacral area beyond their normal progression."Her 10-pound lifting limit will be considered permanent."
Dr. Leonard completed yet another practitioner's report in October 2000 (exhibit H.) This one describes January 29, 1999, as an LDW (last day of work), and describes the accidental event causing disability as occupational exposure due to repetitive lifting, bending and carrying activities at work over many years. It describes the diagnosis and disability as:
"The back strain which the employee experienced at work on 1/29/99 was one of a series of traumas experienced at work by the employee and combined with the heaving [sic] lifting described above, caused a disability by precipitation, aggravation and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond its normal progression. The referenced episode of January 29, 1999, was combined with numerous mini trauma and the heavy repetitive lifting described above to cause the aggravation as cited."
As noted above, Dr. Solfelt has opined:
"The patient's current condition is a work-related aggravation of degenerative lumbar disc disease and a degenerative L3-4 spondylolisthesis. The degenerative changes noted on x-ray did not occur on the day of her injury, but obviously have developed over time."
Exhibit 2, letter from Solfelt dated March 23, 1999.
Finally, Dr. Meyers prepared a fitness for duty form opining that the applicant's injury was work-related on August 6, 2001. Exhibit U. He also added a restriction against working the cooler.
The respondent submits expert medical opinion as well. Richard Lemon, M.D., performed an independent medical examination for the employer on July 10, 2000. In his report at exhibit 3, the doctor diagnosed:
In the discussion section of his report, Dr. Lemon opined
Dr. Lemon adhered to these opinions in a subsequent report dated October 20, 2000, written after he reviewed more records.
The employer also submits reports from Dr. Martin, its plant physician. Dr. Martin prepared a WKC-16-B dated August 11, 2000 (exhibit 4), which lists a January 29, 1999, date of traumatic event, and describes the traumatic event as low back and right hip pain while lifting a 48 pound stick of meat. He opined the applicant could work as of April 29, 1999, with permanent restrictions, but that the work incident did not cause any disability. He thought her prognosis was excellent for her work-related strain, but guarded for the underlying degenerative disease process.
Dr. Martin explained further in a narrative note that the applicant has degenerative spine disease affecting multiple levels of lumbar spine, and that she may have suffered a muscle strain in the lumbar spine. He opined, however, that the applicant's disease was not related to the January 29, 1999 muscle strain injury. He cites to an article he says shows little or no evidence that degenerative spine disease is associated with work tasks. He stated that the major factors associated with degenerative spine disease are increasing age, and familial influences (genetics). He specifically opined the back strain would not contribute to the applicant's degenerative spine disease. He again stated generally that "the medical literature does not support work activities as a significant contributing cause to degenerative spine disease."
Dr. Martin went on to opine that the applicant recovered from her muscle strain injury--without permanent disability---no later than April 29, 1999. He opined that a ten pound lift restriction and limited bending and twisting at the waist for her personal comfort would be prudent, due to the underlying degeneration. He thought further treatment for the underlying condition might be warranted.
Dr. Martin also prepared a letter dated October 25, 2000, to address Dr. Leonard's practitioner's reports, or one of them. Exhibit 4. Dr. Martin reported that there did not seem to be much support for the conclusion the applicant suffered a traumatic or accidental injury, but rather that the inferred mechanism of injury was heavy lifting.
Dr. Martin explained that, given the applicant's duties, a strain might have been a reasonable basis for her initial symptoms, but a strain seems less likely as her symptoms did not resolve as one would expect with strain. This leaves her degenerative disc disease as a source for her complaints, and, Dr. Martin continues, this was not caused by work. Rather, symptoms from disease only became evident during work, Dr. Martin believed. In this respect, Dr. Martin explained, the condition resembles angina, a symptom of coronary artery disease. Angina may become evident during strenuous activity, but that does not mean that strenuous activity causes the underlying coronary artery disease.
Dr. Martin also watched the videotape showing the hanging of small sausages. He thought from an ergonomic perspective, the demands were minimal. Indeed, he characterized the work as putting less demand on the lumbar spine than simply being in a seated position. He reported, too, that she could work on the chubby line stamping date codes.
The respondent also offered the report of Kurt Hegmann, M.D. He states:
"[T]he synopsis of the literature is that, while there are uncertainties, it is felt that frequent heavy lifts are associated with an increased risk for low back pain. The occupational risk(s) for the specific anatomic diagnosis that Ms. Koser has have not been clearly defined as indicated by the article cited by Dr. Martin. However, there is a theoretical risk for this problem based on the biomechanics involved with repetitive heavy lifting."
Exhibit 6, October 26, 2000, report of Hegmann, page 4. He noted also
"If lifting tasks were frequently and usually over 25 pounds (i.e., that her work activities regularly and usually consisted of lifting 48 pounds), rather than a rare infrequent or occasional occurrence, then back problems would be predicted and there would be support from both biomechanical modeling and epidemiological data to support work-relatedness of low back pain. On the other hand, if such actives were infrequent or not on a regular basis, then there is not support for work relatedness of back problems, in this case the job would be safe."
Exhibit 6, report of Hegmann, page 7.
The record also contains expert opinion concerning the vocational effect of the applicant's work restrictions. The employer's expert is Leanne Panizich. In her August 12, 2000, report, she acknowledges that given the ten pound lifting limit imposed by Drs. Solfelt and Leonard, the applicant would have great difficulty finding any employment consistent with her preinjury earning capacity. Ms. Panizich, who administered tests to the applicant, also opined that the applicant would have to pursue "entry level positions that do not require significant clerical skills or use of computers." Exhibit 4, Panizich report, page 11.
Ms. Panizich went on to observe that the applicant would likely require selective placement in positions such as cashier-clerk, telemarketer and electronics assembly, paying in a range of $6.42 to $8.57 per hour, resulting in a 55 to 60 percent loss of earning capacity in the open market. Ms. Panizich did state that these are not the only vocational options open to the applicant, but merely the most prevalent. Ms. Panizich also points out that the applicant made $498 per week in light duty with the employer, which translated to a 32 percent loss compared to her $723.72 pre-injury wage. Accordingly, she rated a 32 percent loss of earning capacity if one considered the opportunity available to her with the employer.
In a supplemental report dated October 19, 2000 (exhibit 5), Ms. Panizich opined the applicant could do the chubby line work. She opined, too, that while the work duties done by the applicant might not represent "real work," this often happens while an employer is in the process of identifying suitable permanent positions and prevents a lengthy absence from work.
In another supplemental report dated June 11, 2001, Ms. Panizich identified a number of jobs the applicant could do in the open labor market, after contacting the employers directly to make sure the positions would be available within the restrictions. The jobs identified included assembler, community service worker, delivery driver, support worker, security, and attendant. See exhibit 25.
The applicant's expert is Timothy Greenya. He noted that the applicant, who was still working light duty with the employer when he wrote his report, had about a 35 percent wage loss. He opined that, given her 10-pound lifting restriction, the other limitations which permit some sedentary work, her age, her limited education, and her lifelong attachment to the unskilled or semiskilled workforce, she was available only for "odd-lot" work. He concluded, then, that the applicant was permanently and totally disabled.
2. Discussion.
a. Causation.
The first issue is causation. Like the ALJ, the commission concludes the applicant has established a compensable injury. The commission views the videotape to show fairly strenuous work that involves repetitive bending, lifting and reaching. The commission notes, too, that the job shown was performed at a slower pace than the applicant did it. The weight she was required to lift at any one time varied, but she sometimes lifted up to forty-eight pounds, and the commission concludes she did substantial lifting of 25 pounds or more. Moreover, Dr. Leonard treated the applicant on referral from Dr. Martin, the plant doctor. This referral gives Dr. Leonard's opinions added credibility in this case.
Further, the commission believes the lengthy cross-examination of Dr. Martin at the first hearing, indicates that he may be drawing an extreme conclusion from the literature which he cites for the proposition that work exposure is not a significant contributory cause of degenerative disc disease. The summary of the article upon which Dr. Leonard relies states:
"Occupational factors suspected of accelerating spinal degeneration include accident-related trauma; heavy physical loading and materials handling, including lifting, bending and twisting; prolonged sitting; and sustained nonneutral work postures and vehicular driving.
"There is evidence to suggest that occupational exposures have an effect on disc degeneration. However, these factors explain little of the variability in degeneration found in the adult population. Furthermore, the lack of a clear dose-response relation between time spent in various occupational loading conditions and degenerative findings adds to doubt about a strong causal link. The contribution of suspected occupational risk factors appears to be particularly modest when compared with familial influences. These findings challenge the dominant role assumed for occupational loading in disc degeneration and associated back problems, and suggest a more complicated etiology."
Exhibit 2, Viderman and Battie, "Spine Update: The Influence of Occupation on Lumbar Degeneration," Spine, vol. 24, number 11, page 1164. After reading the Viderman and Battie article, the commission is left with the impression that its authors state:
In short, the article seems to acknowledge it expresses a minority view, and even the view it expresses only reduces, but does not discount completely, the role played by occupational exposure. Indeed, as further indication that the article does not completely rule out the effects of occupational exposure in the progression of degenerative disc disease, Drs. Viderman and Battie write:
"Conversely, Hult showed a 'linear' increase in disc degeneration based on osteophytes and disc space narrowing on lumbar radiographs, to nearly 100% by the age of 59 years in workers performing heavy physical work. Yet, similar findings were noted approximately 10 years later among those engaged in light work, suggesting that physical work demands may have influenced the degree of degenerative findings."
Exhibit 4, Spine Update, Spine, vol. 24, number 11, page 1164.
This type of influence, which hastens the progression of an existing condition, is compensable under the worker's compensation laws. Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191, 226 N.W.2d 492 (1975). Further, even if heavy physical work is not an absolute predictor of the disc degeneration in every individual, but works in concert with factors such as age and heredity, Wisconsin applies an "as is" rule in workers compensation under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968) and E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978).
Additionally, Dr. Hegmann, whose opinion the respondent also offers, opines that frequent heavy lifting at 25 pounds or more, including for example regular lifts of 48 pounds, would be predictive of back pain. He also opines that biomechanical modeling and epidemiological data would support a finding of work-relatedness of the applicant's degenerative disease in her back in that case.
The respondent argues, and this cannot be denied, that Dr. Leonard's opinions are not entirely consistent, and that the applicant's case seems to vacillate on whether there was a traumatic injury at work. Having read Dr Leonard's and Dr. Solfelt's opinions and notes, however, the commission concludes that the applicant never meant to convey to her doctors that she suffered an accidental injury occurring at a discrete point in time on January 29, 1999, but rather that the work with the heaviest sausage product on that day made her back sore -- as work with the heaviest sausage product often did -- but that she did not recover over the weekend. That is, while she puts a date to her disability, that does not mean she claims a discrete injury on that date, rather than the culmination of the disease process from ongoing exposure.
In sum, the commission is satisfied that the applicant's disability was caused by an appreciable period of work place exposure which was at least a material contributory causative factor in the progression of her degenerative lumbar spine conditions. In other words, she has established disability from occupational disease arising out of her employment with the employer, sustained while performing services growing out of and incidental to that employment.
b. Extent of disability; temporary disability and functional permanent disability.
The next issue is the extent of disability. The applicant claimed, and the ALJ awarded, temporary partial disability from August 27, 1999, to February 18, 2000, in the amount of $6,780.94. The respondent disputes the award, though its post- hearing briefs do not indicate exactly why. The commission infers the respondent believes the applicant had reached a healing plateau as of August 27, 1999, ending her period of temporary disability. On this point, the respondent notes that Dr. Solfelt set permanent work restrictions on August 12, 1999.
However, after August 12, 1999, the applicant underwent considerable subsequent treatment, including diagnostic treatment with Dr. Carr and a functional capacity evaluation in January 2000. Moreover, in September 1999, Dr. Martin noted the applicant's condition was symptomatically worsening, which of course suggests a stable plateau may not have been reached. In sum, the commission believes an end of healing is appropriately set on February 17, 2000, when Dr. Leonard saw the applicant after the functional capacity evaluation and rated permanent partial disability. Accordingly, the commission finds the applicant was temporarily and partially disabled for the period claimed.
Treating doctor Leonard rates permanent partial disability on a functional basis at 3 percent, and set as permanent the work restrictions in the functional capacity evaluation. In his July 2000 practitioner's report, Dr. Lemon agreed the restrictions were reasonable (though he of course associated their need solely with the applicant's physique and her underlying condition.) The commission adopts Dr. Leonard's functional permanent disability rating and work restrictions.
c. Permanent disability on a vocational basis.
The vocational effect of the permanent restrictions is another highly contested issue in this case. The argument turns on the mutual efforts both parties made to return the applicant to work with the employer within her restrictions. At the core of the dispute is (a) whether the employer attempted in good faith to accommodate the applicant's restrictions but the applicant blocked those attempts by not making a reasonable effort to do the work, versus (b) whether the employer only provided odd-lot work or jobs that were unrealistic for a 60-year old with an eighth grade education. After reading the transcript, the commission is satisfied that the truth lies in between.
The applicant, for her part, continued to work for the employer within restrictions for much of her healing period. The respondent suggests that, after reaching the end of healing subject to the restrictions in the functional capacity evaluation, the applicant could have worked in the chubby line or the tiromat line marking date codes on product. However, the applicant claims, with considerable credence given that she actually performed the work for some time, that those jobs were painful and went beyond her restrictions. Moreover, it does not appear that those jobs are still available with the employer, or at least that they are regularly and continuously available. Further, the work was done in the cooled condition of the employer's plant, and the applicant eventually obtained a work restriction prohibiting cooler work. (3)
The respondent also asserts that office work was available, but that the applicant was unwilling to apply herself to learning basic computer skills to data entry. The applicant testified that she did what she was told. The applicant also argues in her brief that accepting the office work would require her to forfeit her rights under the collective bargaining agreement that covered her as a union employee.
The applicant also contends that the employer made no effort to follow through with recommendations made by Ken Hagmann, who was retained by the employer for help in accommodating her physical restrictions to respondent to an office position, shipping clerk. Mr. Hagmann, of course, noted in his March 12, 2001, report (exhibit 17), that the applicant was resistive to computer training based upon her perception she could not learn to operate the computer. He noted, too, that the prior incumbent in the job was also an elderly plant worker who had to be retained. In order to accommodate the applicant's restrictions, Mr. Hagmann concluded the two most essential factors would be a good ergonomic chair and the ability to change position.
While Michael Wendt did testify that no effort was made to follow through with the ergonomic changes recommended by Mr. Hagmann, he testified also it was because she had no interest in the job. June 2001 transcript, pages 243. Under these circumstances, the commission declines to conclude that the employer's lack of follow-through in buying a better chair is the reason the applicant did not want to continue working as a shipping clerk.
The commission acknowledges that the applicant has an eighth grade education
and was in her late fifties, and that the employer's vocational expert herself
referred to the applicant's deficient clerical and computer skills. Nonetheless, the
commission cannot find on this record that the applicant lacked the capacity to
learn to do the job. Instead, the commission was left with the strong impression
that the applicant simply did not want to learn office work, because she felt she
had little aptitude for it, and would likely never be as good an office worker as she
was a production worker. Further, while the applicant's concerns about forfeiting
union seniority provides an understandable financial reason for refusing the work,
it does not prove the applicant is available only for odd-lot work.
As noted above, while Mr. Greenya opines the applicant was permanently and
totally disabled on an odd lot basis, Ms. Panizich opined she was not. This is a
key area of disagreement because, if a worker makes a prima facie case of odd-lot
unemployability, the burden shifts to the employer to show that the worker is in
fact employable and that jobs due exist for the worker. In making this showing,
an employer cannot simply point to evidence showing the worker is available for
light duty work, and then round out the case with a presumption that light duty
work is available. Balczewski v. DILHR, 76 Wis. 2d 487, 495 (1977).
On the question of whether the applicant has made a prima facie case, the commission carefully considered the applicant's efforts to find work, and particularly her efforts to continue to work for the employer. While the commission is satisfied that the applicant made a reasonable effort to return to production work, it cannot reach the same conclusion with respect to the office work. The applicant's unwillingness to make more of an effort in this regard limits her opportunity to find work within her restrictions. (4) Under these circumstances, the commission is left with considerable doubt as to whether the applicant is unable to secure continuing and gainful employment because her injury limits her to performing services so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. It therefore concludes the applicant has not made her prima facie case.
Even if the applicant had made her prima facie case, however, Ms. Panizich's August 12, 2000, and June 1, 2001, reports would rebut it. Specifically, the first report indicates that while the applicant would require select placement in positions such as cashier-clerk, telemarketer, and electronics assembly, such work was the most generally prevalent in the labor market though not the only vocational options open to her. The second report, undertaken after actually contacting employers, lists a number of other jobs the applicant could perform in her labor market. These jobs, of course, are separate and apart from the work offered by the employer, and pose opportunities regardless of the applicant's ability to learn the employer's shipping clerk job. Considered together, Ms. Panizich's reports do far more than simply round out the case for employability with a presumption of the availability of light work.
In sum, the applicant is not entitled to compensation for permanent total disability.
However, the applicant remains entitled to compensation for permanent partial disability on a vocational basis for loss of earning capacity, even if that loss is not 100 percent. On this point, the commission turns again to the August 2000 report of Ms. Panizich (Exhibit 4.) It shows that the applicant was paid considerably less in her post-injury placement with the employer than she earned before the injury. Her weekly pay rate, even with a post-injury pay raise, was only $498 per week (Exhibit 4, page 11), reflecting a 32 percent loss in comparison with her pre-injury weekly wage of $723.72. Indeed, Ms. Panizich herself calculates the loss at 32 percent. Because the actual wage loss exceeds 15 percent, the applicant is entitled to an award for loss of earning capacity under Wis. Stat. § 102.44(6), regardless of the circumstances of her departure from the employer.
Ms. Panizich rates the applicant's loss of earning capacity at 55 to 60 percent on the open market, and 32 percent given the available work for the employer. Mr. Greenya, of course, opined that the applicant was permanently and totally disabled on an odd-lot basis, a contention which the commission has rejected. Mr. Greenya did recognize, however, the applicant's 35 percent wage reduction in her post-injury employment with the employer was not truly reflective of her lost capacity. He makes the point that the work restrictions due to her injury have substantial effect on her ability to earn wages in the open market given her age, her eighth grade education, and her limited vocational skills.
The commission agrees that the measurement for lost earning capacity is not the same as the measurement of actual wage loss. The commission also agrees that the measurement of lost capacity in this case should reflect the applicant's loss of ability to earn wages in the open market, at least to some degree. The commission also considered the applicant's age, education, and limited skills, as negative factors tending to increase the amount of the loss. While the applicant's efforts to find work or continue working may preclude an award for permanent total disability, they do not overcome the effects of her age, education and skills by any means, especially given the significant work restrictions imposed upon the applicant due to her injury. Considering those factors, and the others under Wis. Adm. Code, § 80.34, and giving the vocational reports due weight under Wis. Stat. § 102.17(7)(a), the commission concludes the applicant has established a loss of earning capacity at 60 percent.
d. Medical expense.
The employer does not appear to be contesting, on appeal at least, the reasonableness or necessity of the medical treatment expense, apart from its assertion that the applicant's condition is not work related. Accordingly, the commission concludes the applicant has incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury, for which the respondent is liable. Exhibit D documents expenses claimed from a single provider, UW Health University Physicians, in the amount of $1,020, of which $265 was paid the insurer, $45 was apparently written off and $710 remains outstanding. The applicant also incurred $189.95 in medical mileage. The respondent shall pay the medical mileage and the outstanding medical expense.
3. Calculation of award; interlocutory order.
As stated above, the applicant is entitled to $6,780.94 in temporary disability compensation for the period from August 27, 1999, to February 18, 2000. The parties have informed the commission that no compensation for temporary partial disability has previously been paid for that period, so the entire amount remains outstanding.
The applicant also has sustained permanent partial disability based on a 60 percent loss of earning capacity, into which the functional disability at three percent to the body as a whole is merged. The applicant is therefore entitled to 600 weeks of permanent partial disability compensation, at the weekly rate of $184, the statutory maximum for injuries in 1999, totaling $110,400 accruing as of February 18, 2000. As of August 14, 2002, 129 weeks, 5 days, in the amount of $23,889.33 have accrued; 470 weeks, 1 day, in the amount of $86,510.67 remains unaccrued.
The applicant approved an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the additional amounts awarded. The future value of the fee is $23,436.19 {0.20 times ($110,400 plus $6,780.94).} As of August 14, 2002, only $6,134.05 in fee attributable to the temporary disability award and accrued permanent disability award is due, so the remaining $17,302.13 in fee attributable to the unaccrued award is subject to an interest credit of $4,488.31 for advance payment. This leaves a present value fee now due the applicant's attorney of $18,947.88. That amount, together with costs of $1,747.46, shall be paid to the applicant's attorney within 30 days.
The amount currently due the applicant is $22,788.76 which equals the sum of the temporary disability award and accrued permanent partial disability award ($30,670.27), less the fees thereon ($6,134.05) and less costs ($1,747.46). The amount remaining to be paid as it accrues after August 14, 2002, is $69,208.54, which equals the unaccrued award ($86,510.67) less the fees thereon ($17,302.13). The remaining amount shall be paid the applicant in monthly installments of $797.33, beginning September 14, 2002.
Because the medical record establishes that the applicant may require additional treatment and sustain additional temporary or permanent disability, this order shall be left interlocutory to permit additional orders and awards to compensate future medical expense and disability, if any.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are affirmed in part and reversed in part.
Within 30 days, the employer and its insurer shall pay to all of the following:
1. The applicant, Mary Koser, Twenty-two thousand seven hundred eighty-eight dollars and seventy-six cents ($22,788.76) in disability compensation.
2. The applicant's attorney, James A. Meier, the sum of Eighteen thousand nine hundred forty-seven dollars and eighty-eight cents ($18,947.88) in fees and One thousand seven hundred forty-seven dollars and forty-six cents ($1,747.46) in costs.
3. UW Health University Physicians, the sum of Seven hundred ten dollars ($710) in medical treatment expense.
4. The applicant, the sum of One hundred eighty-nine dollars and ninety-five ($189.95) in medical mileage.
Beginning on September 14, 2002, and continuing on the fourteenth day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred ninety-seven dollars and thirty-three ($797.33) per month until the additional amount of Sixty-nine thousand two hundred eight dollars and fifty-four cents ($69,208.54) is paid.
Jurisdiction is reserved for future orders and awards as are warranted and consistent with this decision.
Dated and mailed August 9, 2002
koserma . wrr : 101 : 3 ND § 3.4 § 5.31
/s/ David B. Falstad, Chairman
James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). He explained that he regarded the applicant as a hard worker who could no longer physically work in the plant and tried her best to do the office work. He did not credit the respondent's attempt to portray the applicant as someone who was obstructing the efforts to return her to work. Given her age, education, and limited skills, and the other factors in Wis. Admin. Code, DWD 80.34, he concluded she was restricted to odd lot work.
The commission agrees that the applicant was a hard worker, and acknowledges that she made a good faith effort to return to production work. However, as explained above, the commission concluded the applicant's reluctance to learn the office work was due to factors other than her physical and mental limitations. In addition, its decision is based in part on the opinion of Ms Panizich, an expert who like Mr. Greenya did not testify in person, about the availability of work. Accordingly, it concludes she had not made her prima facie case of odd-lot unemployability.
cc:
Attorney James A. Meier
Attorney Alan E. Seneczko
Note: This decision is shown as affected by an August 29, 2002 amendment which affected the computations of the amounts due.
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(1)( Back ) This evidently is the first date of lost work time due to the symptoms of the alleged injury, making it the "date of injury" for the purposes of an injury by occupational exposure or disease, even though the symptoms may have started earlier.
(2)( Back ) See Lewellyn v. Industrial Commission, 38 Wis. 2d 43, 58-59 (1968).
(3)( Back ) On this point, the commission notes that Ms. Panizich's October 19, 2000, opinion that the applicant could do the chubby line/date coding work (exhibit 5) does not consider Dr. Meyers subsequent restriction against working in a cooled environment.
(4)( Back ) See for example, Frederick West v. LIRC, case no. 95-2622 (Wis. Ct. App., June 11, 1996). When a worker is not obviously odd-lot due to the combination of his physical capacity and the various odd-lot vocational factors (age, mental capacity, education, and training), it has been suggested that it is not unreasonable to place the burden of proof on the applicant to the extent of requiring reasonable efforts to secure suitable employment. 4 Larson, Workers Compensation Law § 84.01[4].
uploaded 2002/08/23