DANIEL L SKOUG, Applicant

VOLUME SHOE CORP, Employer

PACIFIC EMPLOYERS INS CO, 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
skougda . wsd : 101 : 9  ND § 5.29   § 4.14 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

1. Facts and posture.

The applicant, who was born in April 1964, originally hurt his back in 1985 while working as a roofer. He underwent a laminectomy/discectomy at L4-5 in 1985, and discectomy at L5-S1 in 1986. Thereafter, he was able to return work without restrictions.

In 1987, the applicant began working for the employer, which operates Payless Shoes Stores. He quickly became a store manager. In March 1987, when he was not yet 23 years old, he slipped and fell on some cardboard, hurting his back and right leg. Diagnostic imaging showed a recurrent right-sided L5-S1 disc herniation. The applicant underwent a decompression discectomy at L5-S1 in March 1987. He underwent yet another L5-S1 laminectomy/discectomy at L5-S1 in September 1989.

Thus, by 1989, the applicant had had three laminectomies at L5-S1, and a fourth at L4-5. His treating surgeon, Robert Narotzky, M.D., assessed a 30 percent permanent partial disability; an independent medical examiner (Varia) retained at the time assessed a 24 percent permanent partial disability. In May 1991, the treating doctor also set permanent restrictions against repetitive lifting, sitting or driving more than 30 minutes, and any lifting over 25 pounds.

The applicant continued to work into 1992, moving to better paying sales opportunities at home appliance and television retailers. He stopped working following his father's death in 1992, and lived off some investments he was left by his father. During this time, too, the applicant's pain was increasing, making it more difficult to work and causing him to seek further treatment.

In 1994, the applicant returned to the labor market, working for a couple businesses that sold fireplace products. By early 1998, the applicant had risen to the level of sales manager/assistant store manager at one of the businesses, Allied Fireplaces, earning annual wages of about $45,000 to $48,000. The job involved a great deal of standing on the sales floor, as well bending to demonstrate lower or floor level controls. This increased his pain to the point he often had to lie down on cardboard on the floor in the back room.

In 1999, the applicant then took work as a pre-viewer for Allied Fireplaces, where he "previewed" customer job sites to make sure the product could be installed properly. Although there was little lifting, he had to do a lot of driving, and at times bending, twisting, and climbing, causing flare-ups in his pain. Nonetheless, he was able to do the job for a year without using prescription drugs or seeking medical treatment. This job paid less, variously estimated to between $36,000 and $41,000 per year.

In February 2000, however, due to increasing pain, he returned for medical treatment -- and after briefly suspending treatment again due to reluctance to undergo surgery -- the applicant underwent an MRI in September 2000 which showed post-operative scarring and multi-level degenerative changes. Dr. Bodeau limited the applicant to half-time work, and he underwent an IDET procedure at L4-5 in February 2001.

The IDET procedure provided no relief. The applicant saw an orthopedic surgeon, Dr. Perra, in July 2001. Dr. Perra set out three options: symptom management with medication; implantation of a dorsal column stimulator; or an L1 to sacrum (six level) fusion. Later that month, Dr. Bodeau noted that Dr. Perra was not anxious to do the fusion. After consultation with Dr. Bodeau, the applicant decided on a chronic pain management program, with the prescription of pain medications and an antidepressant.

The applicant, however, continued to have disabling pain -- requiring the applicant to recline at work on a frequent basis -- as well as anxiety and depression. Dr. Bodeau took the applicant off work on August 27, 2001, on a diagnosis of failed back surgery syndrome; panic disorder; and ineffective medical treatment regimen. On that date, Dr. Bodeau indicated long term disability was expected.

In a letter dated October 24, 2001, Dr. Bodeau opined that the applicant entered a renewed healing period in September 2000 when he returned to Dr. Bodeau for evaluation and treatment, and that he reached a functional end of healing on or about August 27, 2001. At that time, the doctor noted, he took the applicant completely off work because he was unable to tolerate even part-time sedentary work. The doctor continued:

"We have not formally stated that these are permanent physical restrictions for him, however, he has made so little progress with these that his prognosis is quite dismal for ever returning to full-time sedentary work or anything greater."

The insurer retained an independent medical examiner, Patrick Healy, M.D., who examined the applicant on December 4, 2001. He diagnosed chronic pain syndrome, noting the applicant's three prior L5 laminectomies, one prior L4 laminectomy, and one prior IDET procedure at L4. He noted that both Dr. Narotzky and IME Varia assessed significant permanent partial disability back in 1990 after the four laminectomy procedures. For his part, Dr. Healy rated permanent partial disability at 25 percent.

Regarding employability and work restrictions, Dr. Healy stated:

". . . It would be my impression that at the relatively young age of 37 that he should be considered as being employable. I understand that Dr. Bodeau has been taking care of this examinee for some time and feels otherwise, but to expect a person of this age to function with a disability status for the remainder of his adult life seems to me to be unrealistic. I would think every attempt should be made to find current employment at a sedentary level. He clearly would not be capable of activity that would involve standing for significant periods of time, greater than 90 minutes, sitting for significant periods of time, greater than 90 minutes; or any activities that would involve pushing, pulling, lifting, bending, twisting, or climbing. This examinee would have a lifting restriction of 10 pounds consistent with a sedentary activity restriction.

"At the present time, recommendations for further treatment would consist of, as his current physicians have suggested, exhausting all conservative care protocols before considering a major invasive procedure such as a multilevel spinal fusion. I believe if this examinee's pain continues at his present level and he undergoes such a surgical procedure that his restrictions would become much tighter. To have a legitimate potential chance to return to the employment sector he needs a strong conservative care program emphasizing regular exercises, liberal use of medication to control pain, and potentially appropriate job retraining."

Joint exhibit 1, December 11, 2001 report of Healy, pages 9-10.

Both sides have submitted expert vocational opinion as well.

The applicant relies on the report of Jeanne Krizan. She made the point that the type of conservative measures advocated by IME Healy in his report as possible ways of returning the applicant to employability have already been tried and failed. She also pointed to the applicant's work history, including his willingness to accept lower wages as a previewer, as indicative of his desire to remain employed and a preference not to accept disability status.

These observations aside, Ms. Krizan opined that if the applicant were able to work under the restrictions suggested by Dr. Healy, the applicant would have 50 to 60 percent loss of earning capacity. Based on the restrictions set by Dr. Bodeau- who stated the applicant was not capable of working and no change was expected-Ms. Krizan found the applicant permanently and totally disabled.

The employer relies on the vocational opinion of Richard G. Armstrong who both provided a report and testified. He opined that under IME Healy's restrictions the applicant would have a loss of earning capacity approaching 15 percent. At the hearing, Armstrong testified that the applicant's sales skills were transferable, that his IQ was relatively high at 113, and that applicant did not seem mentally impaired by narcotics. Mr. Armstrong also believed that the applicant could have continued to work as a "previewer" under IME Healy's restrictions. Under Dr. Bodeau's restrictions, Mr. Armstrong agreed the applicant would be permanently and totally disabled.

3. Discussion.

The primary issue in this case is whether the applicant is permanently and totally disabled. This of course, requires determining the effect of the applicant's permanent work restrictions from the injury on his capacity to earn wages. The ALJ found the applicant permanently and totally disabled, rejecting IME Healy's permanent work restrictions.

On appeal, the employer and its insurer (collectively, the respondent) contend that there is a legitimate doubt. On this point, the respondent points not only to Dr. Healy's report, but also to the fact that Dr. Bodeau did not formally assess permanent restrictions against ever working.

However, the commission is persuaded that the only reasonable reading of Dr. Bodeau's report is that he does not expect the applicant to be able to resume work. Further -- and this is evident from the ALJ's detailed findings regarding the treatment and employment facts from 1989 to 2000 -- the applicant has tried to work with his disabling pain, and in fact changed jobs specifically to try to find lighter work or work he could handle better. He has tried the conservative methods advocated by Dr. Healy in good faith, and they have not succeeded. And no one, not Dr. Bodeau, not surgeon Perra, and certainly not IME Healy, is enthusiastic about the multi-level surgical option.

In short, the applicant has had four open surgical procedures on his back, and one failed IDET. He has constant pain for which the IME himself recommends liberal use of pain medication. The only possible surgery is drastic and the IME recommended against it. Even the IME is only talking about a "potential chance" to return to employment. It is unfortunate -- for both the insurer and the applicant himself -- that he has reached this juncture at a relatively young age, but that cannot realistically be viewed as reason to find he is not permanently and totally disabled. The commission is satisfied that the applicant has established that he is permanently and totally disabled on a vocational basis.

The next issue is the wage upon which the permanent total disability payments should be based. Because the applicant was only 22 when he was injured back in 1987, the ALJ concluded the applicant was entitled to the statutory maximum wage for the purpose of calculating his permanent total benefits under Wis. Stat. § 102.11(1)(g) which provides:

"102.11(1)(g)   If an employee is under 27 years of age, the employee's average weekly earnings on which to compute the benefits accruing for permanent disability or death shall be determined on the basis of the earnings that the employee, if not disabled, probably would earn after attaining the age of 27 years. Unless otherwise established, the projected earnings determined under this paragraph shall be taken as equivalent to the amount upon which maximum weekly indemnity is payable."

Indeed, this case is one that illustrates the evident purpose of the Wis. Stat. § 102.11(1)(g) presumption. As the applicant grew older and more experienced, the applicant was eventually able to improve his earnings to $45,000 by 1998 before the progressing effects of his injury forced him to stop working.

Pointing, however, to the fact that the parties stipulated to an average weekly wage of $260 (transcript, page 3), the respondent contends the applicant is not entitled to the maximum wage. The commission, however, concludes that the applicant's right to the maximum wage presumption has not been waived by the bare stipulation to an average weekly wage of $260 at the time of injury in 1987. It certainly was not done so explicitly. Wisconsin Stat. § 102.11(1)(g) sets out a presumption in favor of a younger employee whose actual average weekly wages are lower than the maximum. The stipulated wages in this case could be viewed as simply making it clear that the applicant -- who at age 22 had average weekly wages of $230 -- was such an employee.

Moreover, Wis. Stat. § 102.32 (7) requires a hearing prior to the approval of a lump sum permanent total disability payment based on life expectancy. Given that language one may reasonably assume that compromising the wage rate to a level below the rate set by law for payment of permanent total disability, especially when not done expressly, is disfavored.

cc: 
Attorney Steven M. Jackson
Attorney Richard E. Ceman, Jr.

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