CHRISTOPHER IRVINE, Applicant

UNITED PARCEL SERVICE, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

The applicant filed an application in July 2001 seeking compensation for an injury occurring on April 15, 1998. The matter was heard by an administrative law judge (ALJ) for the Department of Workforce Development, Worker's Compensation Division, on February 12, 2002, with a close of record on February 26, 2002. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, that the applicant had suffered a compensable injury on April 15, 1998, and an average weekly wage of $839.20 as of the date of injury.

Although a number of issues were identified in the application for hearing, the hearing itself was limited to the issues of the applicant's claims for temporary disability from August 6 to December 18, 2001, and from January 2, 2002 to the date of the hearing; for medical expense; and for an interlocutory order. Transcript, pages 5-6.

The ALJ issued his findings and order on May 28, 2002. Both parties submitted timely petitions for commission review. The commission has considered the petitions and the positions of the parties, consulted with the presiding ALJ, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The applicant, a mechanic, hurt his back in April 1998 when he fell while trying to fix the windshield wipers on a truck. He underwent a laminectomy and fusion surgery in February 1999. He had a less than successful recovery, and was left with burning leg pain for which his doctors recommended the implantation of a dorsal column stimulator. In an application filed in November 1999, the applicant sought continuing temporary disability pending trial of a dorsal column stimulator.

The matter went to a hearing before administrative law judge Thomas R. Jones in November 2000. ALJ Jones found an October 1999 healing plateau. Under ALJ Jones's decision, the respondent's liability for temporary disability thus ended in October 1999.

The applicant appealed ALJ Jones's decision, and by order dated June 13, 2001, the commission awarded temporary disability to May 2000 based on reports from the respondent's independent medical examiner, Dr. Novom. In so doing, the commission noted Dr. Novom's opinion that the dorsal column stimulator would be palliative only, and would not improve function. As there would be no improvement in function even if the dorsal column stimulator were tried, the commission reasoned that the applicant should not be found in a continued period of healing for which temporary disability should be paid pending the dorsal column stimulator. The commission declined to address specifically the necessity of the stimulator -- assuming it was to be implanted in the future. However, the commission left its order interlocutory, specifically noting that future treatment might occasion additional disability.

No further appeal was taken from the commission's June 13, 2001 order. The applicant has since undergone surgery to implant a dorsal column stimulator. At issue now is the applicant's claim for additional temporary total disability following surgical procedures related to the implantation of a dorsal column stimulator. Specifically, based on a second application filed in July 2001, the applicant seeks compensation for temporary total disability from August 6 through December 18, 2001, and from January 2, 2002 and continuing thereafter. This claim is now before the commission.

The applicant's treatment following the first hearing before ALJ Jones may be quickly recited. The applicant saw physiatrist, Diane Braza, M.D., on November 17, 2000, at which time he complained of continuing severe burning pain in his leg. She recommended a trial of the dorsal column stimulator to treat his pain, noting that if a trial provided at least 50 percent relief, she would recommend surgery to implant a stimulator permanently. See exhibit C, November 17, 2000 note of Braza with attached WKC-16-B dated November 20, 2000.

On December 19, 2000, the applicant's surgeon, Wade Mueller, M.D., referred the applicant to Dennis J. Maiman, M.D., to see if there was a surgical option for treatment of the applicant's persistent right leg burning, numbness and lower back pain.

Dr. Maiman discussed implantation of a dorsal column stimulator, which Mueller believed would be very reasonable. Exhibit C, report of Mueller dated January 23, 2001. The medical records in exhibit E indicate that the trial was carried out in June 2001. In a note dated June 26, 2001, Dr. Mueller -- still seeing the applicant on follow-up for the February 1999 fusion surgery -- described the trial implantation as helping quite a bit.

Accordingly, the applicant underwent surgery for the permanent implantation of a dorsal column stimulator. Specifically, based on diagnoses of right lumbar radiculopathy and failed back surgery syndrome, Douglas Milosavljevic, M.D., performed a percutaneous placement of permanent spinal cord leads on August 6, 2001. This was an inpatient procedure, and the applicant was discharged the next day, August 7, according to notes in exhibit E.

The applicant testified that, after the August 2001 dorsal column stimulator surgery, no one ever told him he could return to work, nor did the employer contact him about coming back to work. Transcript, page 19-20. The applicant also testified that the stimulator provided instant pain relief.

According to handwritten notes, pain was still noted over the surgical wound site on August 13, 2001 (exhibit B). However, the applicant's shooting and burning pain from before the surgery was gone. He was directed to return to the clinic in a month.

Indeed, the applicant was seen again on September 10, 2001. The applicant evidently complained of pain at the incision site; on examination redness and tenderness, but no drainage, was noted at the site. A note from September 10, 2001 noted "poor wound healing;" it appears the applicant was prescribed an antibiotic. He was directed to return in one month.

This led to another visit on October 8, 2001. A note from this visit mentions incisional pain again. The handwritten notes appear to indicate the area of the incision and implantation of the leads was healing better, but still not fully healed. The applicant was directed to return again in a month.

The commission could not locate a note for follow-up treatment in November. Nor does the record seem to contain medical notes setting work restrictions following this surgery. Of course, the applicant was not working even before the surgery. In any event, the commission located nothing expressly stating that the dorsal column stimulator surgery -- as opposed to his restrictions from the February 1999 fusion surgery generally -- prevented the applicant from working.

The record does contain a note from Dr. Mueller dated December 18, 2001, who stated he was seeing the applicant on follow-up from the February 1999 lumbar procedure and the August 2001 dorsal column stimulator implant. The doctor reported that the applicant had improvement from the implantation of the dorsal column stimulator. He concluded that "for the purposes of legal determinations, I think we can consider that he has reached a healing plateau." Exhibit A.

The applicant's testimony also indicates that Dr. Mueller's December 18, 2001 note was not meant to opine that the applicant had reached a healing plateau from the dorsal column surgery per se, but more generally from the 1998 work injury, including apparently both the 1999 fusion procedure and the 2001 dorsal column stimulator implant. Transcript, page 23.

The applicant required another surgery to deal with a battery problem in the dorsal column stimulator in January 2002. He testified that he was again hospitalized for a couple of days, and thereafter never told he could return to work. After the second surgery, the applicant's doctor never told him when he would reach a healing plateau or set work restrictions, but only vaguely indicated to do the things as after his prior surgeries in terms of limited lifting and bending.

Finally, the record contains a note from the insurer's independent medical examiner, Dr. Novom, following an attempted examination on September 5, 2001. While Dr. Novom did not examine the applicant, he did rate permanent partial disability and set permanent work restrictions, resulting from the April 1998 work injury. He did not discuss the dorsal stimulator procedure generally, nor did he set the date the applicant would have reached an end of healing from that procedure.

As noted above, the applicant now claims compensation for medical expenses related to the dorsal column surgeries, and also for temporary total disability from August 6 through December 18, 2001, and from January 2, 2002 and continuing thereafter. The respondent disputes the payment of any temporary disability or medical expense related to the implantation of the dorsal column stimulator. It asserts that there is insufficient evidence that the applicant was in a period of renewed healing after the dorsal column stimulator implant. It also argues that since the stimulator was palliative rather than restorative --  that is it provides pain relief but does not actually fix anything -- he should not get temporary disability. Regarding the medical expense, the respondent asserts that there is no evidence to prove it was reasonably required to cure and relieve the effects of the work injury.

The dorsal column stimulator surgeries are a compensable medical expense. There is ample medical evidence that the dorsal column stimulator surgeries were related to the work injuries and reasonably required to cure and relieve the effects of the work injury. Wis. Stat. § 102.42(1). For example, Dr. Mueller indicated that the applicant's radicular symptoms -- residuals from the work injury -- would benefit from the stimulator. And the operative note indicates that the dorsal column stimulator procedure was done for radicular symptoms following the failed fusion surgery required as a result of the work injury.

Moreover, by providing treatment, doctors are implicitly opining it is necessary. Widiker v. Hoffman Construction Co., WC Claim No. 1993061724 (LIRC, December 29, 1999). Dr. Novom recommended against the dorsal column stimulator surgery in his opinion offered at the time of the first hearing, because he did not think it would work. But it did work, at least according to the testimony of the applicant which the ALJ found credible. In any event it seems clear that the treatment was incurred in good faith to treat a work injury, so it is compensable even if the commission were to agree with Dr. Novom. Spencer v. ILHR Department, 55 Wis. 2d 525 (1972); Honthaners Restaurants Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234.

Moreover, the fact the treatment was palliative, that is directed at pain relief, does not make it noncompensable or unnecessary. Wisconsin Stat. § 104.42(1) specifically refers to payment of expense to cure and relieve the effects of a work injury, and the commission has previously found palliative-only treatment (including most obviously pain medication) to be reasonable and compensable. The commission did indicate in its first decision that it might not keep a worker, who has recovered as much as he is going to from surgery following a work injury, in a healing period indefinitely pending the trial of palliative measures. The commission did not hold that palliative treatment is inherently suspect or not compensable.

Regarding the medical expense, exhibit F indicates the applicant incurred reasonable and necessary medical expenses from Froedtert Memorial Lutheran Hospital up to and including the second dorsal column stimulator surgery on January 2, 2002 in the amount of $84,271.43, of which $66,777.15 remains outstanding. Exhibit F also indicates that the applicant incurred $27,581 in treatment expenses from MCW Physicians, of which $13,454.22 remains outstanding. The exhibit also indicates payments on these expenses from nonindustrial insurers CMS of $18,112.80 and Aetna of $4,693.93. Finally, the exhibit shows unpaid patient copayments for which the applicant is liable in the amount of $5,141.32, and medical mileage of $1,010.21. The respondent does not appear to challenge the accuracy of these amounts, but rather asserts that it was not proven the services charged were compensable consequences of the work injury. Since the commission resolved that issue against the respondent, it shall order payments in accordance with exhibit F.

The next issue is the extent of temporary disability from the dorsal column stimulator surgery. The record contains very little in the way of a direct statement to the effect that the applicant was actually unable to work because of his recovery from the dorsal column surgeries. The supreme court has defined a healing period during which temporary disability is paid as follows:

"The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit."

Knobbe v. Industrial Commission, 208 Wis. 185, 189-90 (1933).

In this case, the record contains little direct evidence that the applicant's dorsal column stimulator surgery ever actually prevented him from working, except for the applicant's hearsay testimony about his doctor's vague reference to prior surgeries. In general, 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 (or does not) 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); Coates v. Mitek Corporation, WC claim no. 1998060168 (LIRC, December 9, 2002).

The record does indicate, however, that the applicant was having problems with healing after the first surgery, at least as of September 10, 2001, when "poor wound healing" was noted in the handwritten notes in exhibit B. By the time of the next visit, October 8, 2001, the applicant's healing had improved, and the commission cannot conclude from the handwritten notes from that date that problems with healing rendered him unable to work. Based on the evidence of a continuing and painful post-surgery infection, the commission concludes in this case that the applicant is entitled to temporary total disability from the date of his surgery on August 6, 2001 to October 8, 2001.

The commission declines to extend the period of temporary total disability to the December 18, 2001 date when Dr. Mueller found an end of healing. The record indicates that the doctor meant that was the date that the applicant had reached an end of healing from the work injury generally, rather than from the implantation of the dorsal column stimulator specifically. However, extending the date of healing to December 18, 2001 on the basis of Dr. Mueller's opinion as to an overall end of healing is precluded by the commission's earlier finding that the applicant had reached an end of healing from the February 1999 fusion surgery in May 2000.

Administrative law judge Leonard E. Martin, who presided at the February 2002 hearing, declined to address the second period of renewed disability sought by the applicant beginning with the second surgery in January 2002 because there was little chance to obtain supporting medical documents and opinion regarding an end of healing before the February 12, 2002 hearing. The commission shall not disturb ALJ Martin's prudent exercise of discretion to control his calendar by in effect granting a postponement on the issue.

The applicant is therefore entitled to temporary total disability from August 6, 2001 to October 8, 2001, a period of nine weeks. At the escalated rate of $582 per week for periods of renewed temporary total disability under Wis. Stat. § 102.43(5), this results in $5,238.00 in additional temporary total disability.

The applicant agreed to an attorney fee, set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded, or $1,047.60. That amount, with costs of $494.85 shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The remaining amount, $3,695.55, shall be paid to the applicant within 30 days.

Because the applicant is left with considerable permanent disability and because future treatment resulting in additional periods of temporary disability may be warranted, this order shall be left interlocutory.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within thirty days, the employer and its insurer shall pay all of the following:

1. To the applicant, Christopher G. Irvine, Three thousand six hundred ninety-five dollars and fifty-five cents ($3,695.55) in disability compensation.

2. To the applicant's attorney, Roland C. Cafaro, the sum of One thousand forty-seven dollars and sixty cents ($1,047.60) in fees and Four hundred ninety-four dollars and eighty-five cents ($494.85) in costs.

3. To MCW Physicians, Thirteen thousand four hundred fifty-four dollars and twenty-two cents ($13,454.22) in medical treatment expense.

4. To Froedtert Memorial Lutheran Hospital, Sixty-six thousand seven hundred seventy-seven dollars and fifteen cents ($66,777.15) in medical treatment expense.

5. To CMS, Eighteen thousand one hundred twelve dollars and eighty cents ($18,112.80) in reimbursement of medical treatment expense.

6. To Aetna, Four thousand six hundred ninety-three dollars and ninety-three cents ($4,693.93) in reimbursement of medical treatment expense.

7. To the applicant, the sum of Five thousand one hundred forty- one dollars and thirty-two cents ($5,141.32) in out-of-pocket treatment expense for unpaid copayments, and One thousand ten dollars and twenty-one cents ($1,010.21) in medical mileage.

Jurisdiction is retained for further orders and awards as are warranted.

Dated and mailed March 6, 2003
irvinch2 . wrr : 101 : 9  ND § 5.46

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

The issues raised in the respondent's petition for review are discussed at length in the commission's decision. In his petition, the applicant asserts ALJ Martin should have ordered payment of temporary disability and medical expense, even in the absence of supporting medical proof, based on a new statute permitting prospective awards, and another new statute requiring employers to pay disability compensation following unnecessary treatment undertaken in good faith. The applicant also disputed ALJ Martin's findings regarding the bad faith penalty claims, noting that the bad faith issue was not noticed for hearing.

The commission, like ALJ Martin, orders paid the $39,501.70 expense from Froedtert Memorial Lutheran Hospital related to the January 2002 repair of the dorsal column stimulator. However, the new provision regarding prospective orders for treatment expense, Wis. Stat. § 108.18(b), as affected by 2001 Wis. Act 37, does not authorize prospective payment of disability, McDuffy v. Kennedy Hahn TV & Appliance, WC Claim no. Claim No. 2000-030626 (LIRC, October 8, 2002), and even if it did, the provision is discretionary. Here, the ALJ properly exercised his discretion in declining to address the applicant's entitlement to temporary disability following the second dorsal column stimulator surgery, considering the complete absence of any supporting medical evidence.

However, the commission agrees that findings on the bad faith issue should not be made at this time, as that issue was not noticed for hearing, and was not included among the issues identified at the start of the hearing. February 2002 transcript, pages 4 to 6. See Wright v. LIRC, 210 Wis. 2d 289 (Ct. App. 1997).

The commission conferred with ALJ Martin concerning witness credibility and demeanor. He indicated the applicant was credible about his pain. He said the applicant seemed credible in his testimony that his doctor had told him he would be in a 16 to 18 week healing period following his second dorsal column stimulator, the same as after his first. Transcript, page 45. On other hand, the applicant's earlier testimony about what he was told after the first surgery was more equivocal (transcript, pages 22-23), and the medical record does not contain any written evidence in this regard. Thus, for the reasons explained above, the commission reduced the temporary disability award.

cc: 
Attorney Roland C. Cafaro
Attorney Kurt Van Buskirk

Appealed to Circuit Court. Affirmed December 15, 2003.

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