STEVE D LARSEN, Applicant

BELOIT CORPORATION, Employer

BELOIT CORPORATION, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 22, 2002. Beloit Corporation and Wausau Insurance Company (respondents) submitted an answer, and briefs were submitted by the parties. At issue are nature and extent of disability, liability for vocational retraining benefits, and liability for additional medical expense, all alleged to be attributable to the conceded work injury of February 9, 1998.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and sets aside in part the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW. The commission makes the following:

The applicant, whose birthdate is March 25, 1959, was employed for approximately 19 years as a machine operator for the employer, Beloit Corporation. He sustained a conceded cervical spine injury on February 9, 1998, while assisting in the rescue of a worker trapped in a machine. He continued to work after the injury but needed assistance from a helper. His condition did not improve and on June 29, 1999, Dr. Craig Dopf performed a surgical decompression and fusion at C6-7. The surgery was initially considered successful, and on December 6, 1999, the applicant was released to return to work with temporary restrictions. However, Beloit Corporation had already closed down, so the applicant could not go back to work for them. He could not find work elsewhere so he went to the Department of Vocational Rehabilitation where a plan was developed for a civil engineering technology program at Madison Area Technical College, which first required some remedial course work at Blackhawk Technical College. The entire retraining program would consume approximately three and one-half years.

In early December of 1999, the applicant was videotaped carrying large pieces of wood to a mechanical wood splitter and splitting them. He was also videotaped unloading wood from a trailer onto a woodpile. On June 10, 2000, and June 16, 2000, he was videotaped applying siding to his house and his garage. The tape showed him frequently working overhead with his arms outstretched, an activity which exceeded his physical restrictions.

At respondents' request, the applicant was examined by Dr. Anoo Patel, who submitted a report dated September 6, 2000. He opined that the work incident caused a permanent aggravation of the applicant's preexisting degenerative disc disease at C6-7, and resulted in the surgery. He believed the applicant had reached a healing plateau by December 17, 1999, which is the date respondents assert temporary total disability should end. Dr. Patel did not believe any further medical treatment was necessary due to the effects of the work injury. He assessed 6 percent permanent partial disability (5 percent for the disc removal and fusion, and 1 percent for residual symptoms of persistent pain).

The applicant's post-surgical condition was deemed "unremarkable" by Dr. Dopf, although the applicant continued to complain of neck and interscapular pain. In the late summer of 2000, MRI and CT scans revealed a pseudoarthrosis in a portion of the C6-7 fusion, and Dr. Dopf prescribed an electronic stimulator to be worn around the applicant's neck to stimulate union of the bone. The applicant wore this for about one year. Dr. Dopf opined that the applicant reached his healing plateau on October 29, 2001, and assessed 15 percent permanent partial disability (5 percent for the discectomy, 5 percent for the fusion, and 5 percent for residual pain and lack of endurance). He concurred with a functional capacity evaluation, which assessed various permanent restrictions including infrequent lifting up to 20 pounds, occasional bending, and no overhead reaching. Dr. Dopf believes that additional surgery may be necessary.

Dr. Patel performed a record review and submitted a second report on June 26, 2001. He reiterated his opinions given in his earlier report, but seemed to backtrack a bit concerning the extent of disability attributable to the work injury, stating:

"I believe, therefore, that this impact of the injury of February 9, 1998, on this pre-existing condition, which was symptomatic, has not been that significant."

He opined that medical treatment after December 17, 1999, was related to the applicant's preexisting condition rather than the work incident. He again opined that the work injury aggravated and accelerated the preexisting condition beyond normal progression, but that any subsequent cervical spine surgery would not be related to the work condition.

Dr. Patel examined the applicant again on August 1, 2001, and submitted a third report dated August 10, 2001. He again opined that treatment subsequent to December 17, 1999, was related to the preexisting cervical condition rather than the work injury. This would include use of the electronic bone stimulator. However, his opinions are internally inconsistent because he finds that the June 1999 fusion was work-related, acknowledges that least part of the ongoing treatment is due to that surgery, but then opines that no treatment after December 17, 1999, is related to the work injury.

The administrative law judge found an end of healing on June 10, 2000, because on that date the applicant was able to perform the siding work in excess of his restrictions. He also awarded 10 percent permanent partial disability, which is the minimum permanency award for a cervical fusion as provided in Wisconsin Administrative Code DWD Ch. 80.32(11). He awarded outstanding medical expenses. He left the order interlocutory with respect to loss of earning capacity and retraining expenses, because he believed that before such assessments are made, all the physicians should view the videotape and thereafter restate their opinions regarding the applicant's physical restrictions. The applicant has petitioned and argues that the June 2000 healing date is incorrect because his activities on that date only exceeded his restrictions on a temporary or minor basis. He argues for temporary total disability up to Dr. Dopf's release on October 29, 2001. He also argues that Dr. Dopf's assessment of 15 percent permanent partial disability should have been accepted because he has not had a good result from the surgery. Finally, he argues that vocational rehabilitation benefits should have been ordered paid prospectively.

As noted by the administrative law judge, the applicant's credibility is poor not only because of the videotape evidence, but also because he initially denied that he had performed the type of work he was videotaped performing. Nevertheless, determination of the date on which a healing plateau is reached is primarily a medical question, and no physician of record opined that the applicant's healing plateau was reached on June 10, 2000. Of course, the physicians of record did not indicate that they were aware of the applicant's activities captured on videotape. Accordingly, the commission concludes that the issues of what date the applicant reached a healing plateau, and the resulting additional temporary disability (if any), should be resolved only after the physicians have viewed the relevant videotape evidence, and thereafter given new opinions concerning the healing plateau.

The extent of permanent partial disability is another medical question which the commission believes should be resolved after the physicians have viewed the relevant videotape evidence and restated their opinions. Pursuant to Wis. Admin. Code Chapter DWD Ch. 80.32(11), the minimum percentage of permanent partial disability which could be assessed is 10 percent, and respondents previously paid this.

The commission is bound by the Department of Vocational Rehabilitation's decision to grant vocational retraining (see Wis. Stat. § 102.61(1)) unless: (1) it has been shown that highly material facts were misrepresented to or withheld from DVR; or (2) that the DVR applied an interpretation of the rehabilitation laws which was entirely outside the reasonable scope of interpretation and amounted to an abuse of administrative power. Massachusetts Bonding & Insurance Company, v. Industrial Comm., 275 Wis. 505, 512, 82 N.W.2d 191 (1957). Without new assessments of the applicant's physical restrictions from the physicians, it is not possible for the commission to determine whether the first of the Massachusetts Bonding exceptions is applicable. Accordingly, the order will also be left interlocutory with respect to the issue of vocational retraining benefits.

Jurisdiction will also be reserved with respect to the issue of loss of earning capacity, given the necessity for new medical opinions concerning the applicant's physical restrictions, as well as the fact that vocational retraining is contemplated.

Finally, Dr. Dopf's opinion concerning the reasonableness and the necessity of the medical expenses claimed in applicant's Exhibit A is accepted as credible. Even Dr. Patel acknowledged that the surgery performed on June 29, 1999, was caused by the work injury. His confusing attempt to disassociate the applicant's ongoing medical treatment subsequent to that surgery, from the work-related condition, is incredible. The medical expenses will be ordered paid as set forth below.

The applicant may require further treatment including surgery, and therefore jurisdiction will be reserved with respect to all issues.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and set aside in part. Within 30 days from this date, if not previously paid, respondents shall pay to UW Health (Dr. Craig Dopf) the sum of $3,838.05 (Three thousand, eight hundred thirty-eight dollars and five cents); to Meriter Hospital the sum of $843.20 (Eight hundred forty-three dollars and twenty cents); to Connecticut General/Cigna reimbursement in the amount of $4,968.46 (Four thousand nine hundred sixty-eight dollars and forty-six cents); and to the applicant as reimbursement for prescription and medical mileage expense the sum of $261.88 (Two hundred sixty-one dollars and eighty-eight cents).

The matter is remanded to the department for further proceedings consistent with the above findings, and jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed March 31, 2003
larsest . wrr : 185 : 1 ND § 5.6  § 5.40   § 8.19 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner

The commission set aside the administrative law judge's finding with regard to the date of a healing plateau based on the lack of medical evidence to support such a finding, not because of any disagreement with the administrative law judge's credibility determinations. The commission also concluded that while the applicant's poor credibility reflects negatively on the assessment of extent of permanent partial disability, the final assessment should be made only after the physicians have seen the relevant videotape evidence, and given new opinions. Of course, the final award for permanent partial disability is subject to the minimum provided in the administrative code.

cc: 
Attorney Daniel R. Schoshinski
Attorney Joseph Danas, Jr.

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