EDWARD COATES, Applicant

MITEK CORPORATION, Employer

AMERICAN PROTECTION INSURANCE COMPANY, Insurer

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 December 9, 2002
coatese . wsd : 101 : 3   ND § 5.9   § 5.46 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

1. Posture.

The applicant was born in 1956. He hurt his back at work on July 16, 1998, while bending to load a pallet. A herniated lumbar disc was subsequently discovered on MRI scanning. The applicant ultimately underwent a laminectomy and discectomy surgery at the VA hospital for his herniated disc on September 24, 1999.

The employer and its insurer (collectively, the respondent) conceded and paid temporary disability from July 16 to October 15, 1998, and again from September 23, 1999 (when he underwent surgery), to January 16, 2000 (when he reached a healing plateau following surgery). The respondent also conceded permanent partial disability, on a vocational and functional basis, at 15 percent, of which it had paid $28,939.69 by the date of the hearing.

The applicant claims temporary total disability for the period from October 15, 1998, to September 23, 1999. He also claims permanent total disability from the date of his post-surgery healing plateau, on January 15, 2000. He also seeks reimbursement of his medical expense.

The ALJ denied the claim for additional temporary disability and permanent total disability. She did award additional permanent partial disability on a vocational basis for loss of earning capacity resulting in a total award for permanent disability at 20 percent of permanent total disability. She also awarded the medical expense to the date of Dr. Clark's final opinion on November 14, 2001, finding expenses to that date necessary. However, she denied them thereafter, as not supported by the record.

The applicant appeals, challenging all three findings.

2. Discussion.

a. TTD.

Regarding the temporary total disability claim, the applicant points out that IME Clark felt the applicant was entitled to some temporary total disability shortly after the injury, essentially time off to recuperate. The applicant also pointed out that Dr. Backonja found him totally disabled from work beginning in October 1998.

However, the ALJ correctly noted that-except for the relatively brief period of TTD paid by the insurer in the summer and early fall of 1998-there is no medical support in the form of releases from work. Dr. Clark authorized only brief time off work which the insurer paid. Thereafter, Dr. Gaertner set restrictions with which the applicant did not comply. Dr. Leonard -- though he released the applicant to work in February 1999 with a ten-pound restriction -- did not actually tell the applicant he should stop working in the light duty provided by the employer.

Supporting medical evidence is required for temporary total disability awards, ordinarily in the form of work restrictions which either completely take the applicant off work or impose restrictions with which the employer cannot comply. See: John Goldsworthy v. Ruffalo Special Pizza II, WC Claim No. 96052840 (LIRC, February 10, 1998); Clausing v. Water Services of America, WC claim nos. 1994031641 and 1998000785 (LIRC, September 24, 1999). The commission has recognized an exception when the supporting medical reports could not be obtained because the insurer has stopped paying for treatment expense. See John E. Wagner v Fox Erectors, Inc. WC Claim no. 1999-055504 (LIRC, Nov. 21, 2001). However, that it not the case here.

Rather, the applicant's own doctors stated repeatedly that he could work with restrictions, and never set the hour restrictions he desired. The employer was evidently willing to accommodate the restrictions set by the treating doctors. Moreover, the record establishes considerable doubt about the applicant's desire to return to work, including his failure to pursue assistance from DVR, his statements indicating he desires a disability award to meet child support obligations, and his statements to both vocational experts he did not plan to return to work or think he could work due to his condition.

Nor is the commission inclined to award temporary disability based on Dr. Backonja's statement on his practitioner's report that the date the applicant's disability from work began was October 1998. Dr Backonja did not treat the applicant until 2000, and wrote his report in 2001.

b. Permanent total disability.

The commission further concludes the ALJ properly declined to award permanent total disability. Dr. Backonja simply does not adequately explain or support his opinion that the applicant has a loss at his back at 100 percent compared to permanent total disability. A diagnosis of mechanical and myofascial back pain, with insomnia, with a reference to pain and lack of endurance are not sufficient. See exhibit J.

In contrast, Dr. Clark's reports, some of which were introduced by the applicant himself, reflect a reasonable post-surgery opinion on functional loss and work restrictions. The applicant's vocational expert, Hill, rated loss of earning capacity at 25-30 percent on those restrictions, while the respondent's expert, Meltzer, rated loss of earning capacity at 20 to 25 percent. A twenty percent award for loss of earning capacity on this record is quite reasonable, and the commission adopts it.

c. Medical expense.

The final issue is medical expense. Dr. Clark opined that the expense -- at least to the date of his report -- was related to the injury but not necessary apparently as it was palliative only given that the applicant's condition was permanent in January 2000. However, expense for palliative treatment may nonetheless be compensable. Wis. Stat. § 102.42(1) provides statutory authority for payment of expenses incurred to "cure and relieve the effects of a work injury" and also specifically allows for payment of post-plateau medical expense. See Wis. Stat. § 102.42(1).

ALJ Smiley accordingly paid the expense to November 14, 2001, the date of Clark's report, specifically finding expense to that point was necessary. She denied the expense thereafter "for lack of sufficient medical support," implying the expense was not shown to have been necessary or work related.

On appeal, the applicant inquires about his ability to bring future claims, specifically identifying medications, for his permanently disabling condition. Such claims -- if supported -- may be permitted within the terms of ALJ Smiley's interlocutory order. They are also within Lisney v. LIRC, 171 Wis. 2d 499, 503, 493 N.W.2d 14 (1992) (holding that even final orders do not necessarily bar future medical expense claims.)

cc: 
Attorney Daniel J. Collins
Attorney Andrew J. Quartaro

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