LINDA L CALKINS, Applicant
PLEASANT CO INC, Employer
HARTFORD FIRE INSURANCE CO, Insurer
In November 2001, the applicant filed an application for hearing seeking compensation for disability and medical expense arising from a January 2, 2001 injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 18 and September 5, 2002.
Prior to the hearings, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $354 resulting in a compensation rate for temporary total disability of $236, and that no disability compensation had been paid. The threshold inquiry is whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment. If a compensable injury is established, the issues also include the applicant's claims for temporary disability from February 20, 2001 to September 5, 2002, for compensation for medical expenses, and for an interlocutory order.
The ALJ issued his decision on October 2, 2002. The respondent filed a timely petition for review. Briefs to the commission were not requested, and have not been 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 makes the following:
The applicant was born in 1953. She worked for the employer on a seasonal basis, and was in her fourth season in January 2001. She injured her low back on January 2, 2001, when she was moving product from a production line to a cart. According to the note documenting her initial treatment, she was injured while lifting a 2-foot-by-1-foot plastic tote weighing 30-35 pounds from a conveyor to a three-tier cart. The process required her to reach to her right side, then twist and bend to put the tote on the cart. In the process of the twisting and bending motion to put a tote on the cart, she felt a sharp, stabbing pain in her back.
The applicant treated at Aurora Occupational Health Services on January 2, 2001. A note from Julie Boerner, PAC, diagnoses a work-related "left acute low back strain (acute)." Ms. Boerner allowed the applicant to return to work immediately, but subject to temporary restrictions requiring frequent positional changes; prohibiting prolonged sitting, bending, twisting, squatting, and kneeling; and prohibiting lifting more than 20 pounds. Ms. Boerner also prescribed certain medication.
The applicant continued treating at Aurora. On January 15, 2001, she saw a Scott Dresden, M.D., who diagnosed "low back pain muscular." The doctor maintained the prior work restrictions with minor modifications. His recommendation included physical therapy, which the applicant began on January 17, 2001.
When the applicant returned to the clinic on February 2, 2001, she again saw Ms. Boerner who noted lumbosacral pain, and diagnosed low back pain-muscular, with left sciatic pain. Ms. Boerner continued the restrictions, but did relax the lifting limit slightly to 25 pounds. Ms. Boerner instructed the applicant to continue with physical therapy.
During this period shortly after her work injury, the applicant was able to work in light duty for the employer. The employer's records show the applicant worked on February 9, and then called in sick with the flu, or because a family member was sick, from February 12 through February 16, 2001. See exhibits 3 and 5. The employer then sent the applicant a letter stating it considered her to have "voluntarily resigned" by being "no-call-no-show" on February 19 and 20, 2002. Exhibits 6 and 8. The employer's records indicate that the applicant had previously been warned about being no-call-no-show. Exhibit 7. The employer's witness (Trimberger) and exhibit 3 indicate that light duty work would have been available to the applicant for February 19 and 20 had she reported for work.
The applicant does not dispute that she missed work on February 19 and 20, or that light duty work was available from the employer. She did, however, testify that she notified the employer of her absence on February 19. She denied voluntarily resigning. She testified that when she contacted the employer after February 20, she was told she had been discharged.
The applicant saw Dr. Dresden on February 21, 2001. He noted the applicant had been off work for flu-type symptoms the past few days, but noticed no difference in her back symptoms despite the time off work. His assessment remained thoracic (1) muscular strain, and he continued her work restrictions.
The applicant continued to receive physical therapy, and returned periodically to the Aurora Clinic. In March 2001, Dr. Dresden advanced her lifting restriction to 35 pounds, with one to three hours of twisting/bending. Then on April 3, 2001, Dr. Dresden -- still noting a diagnosis of work-related lumbar strain -- released the applicant to return to work without limitation, and discharged her from care with the instruction she complete a three month conditioning program. Specifically, his treatment note from that date states:
"I feel she would benefit greatly from a prolonged conditioning program and I would like to minimize the cost as much as possible and therefore I am recommending that she perform a conditioning program on her own at the Wellness Center and I have written her a script to have this billed to her Workman's Comp carrier. I imagine this will take approximately three months before we fully reach[] a level where I don't feel she will have any chance of re-injury. If she would still have any problems at that time or until that time I would like her to see me back. She is otherwise discharged from my care without permanency."
Exhibit C.
The applicant was discharged from physical therapy on April 10, 2001. At that point, the therapist noted mild trigger points in the left paraspinal musculature. The doctor's assessment was increased range of motion, decreased pain, and increased function. The applicant reported no pain or symptoms or functional limits at the time of the visit, though she did note that she experienced discomfort with prolonged standing, and that she wakened at night due to discomfort.
The applicant did not treat again until November 20, 2001, when she returned to Dr. Dresden. He noted that "she had been discharged on a conditioning program" in April 2001, but that the worker's compensation insurer would not pay for the program, and that the applicant since had intermittent back pain that never fully resolved and remained at a 2 to 4 of ten pain level. His diagnostic assessment was low back pain, muscular, secondary to injury. His plan was to restart physical therapy. He did not reset any work restrictions.
On November 30, 2001, the applicant returned to and told Kenneth M. Niec, PAC, who examined her that she felt about the same since restarting physical therapy. Some tenderness was noted on examination, and Mr. Niec diagnosed low back pain, muscular. She was released to work without restriction.
The applicant returned to Dr. Dresden in February 2002, who sent her for an MRI which showed disc bulging at D12-L1, and L1-2. The MRI also showed a moderate-sized central disc herniation at the L4-5 level extending to the right of midline, and which did appear to result in at least mild encroachment on the exiting nerve root. Exhibit E, radiology report dated February 6, 2002. The MRI led Dr. Dresden to change his diagnosis to an L4-5 disc herniation. He also set work restrictions as of February 11, 2002. Exhibit E.
The applicant saw a neurosurgeon, Arvind Ahuja, M.D., shortly thereafter. Specifically, Dr. Ahuja saw the applicant on March 11, 2002, on a complaint of "back pain." He reported that the applicant initially injured her back on January 2, 2001, while putting totes on a cart. He noted, too, the applicant's prior treatment up to the February 2002 MRI.
Dr. Ahuja went on to observe that the applicant's condition had not improved, and that she had been tolerating her problem for a year. He noted back pain worse than leg pain, but also noted electrical shock sensation in the leg much worse on the right than the left. He noted, too, her belief that she had plateaued, and was getting neither better nor worse. Dr. Ahuja's diagnosis was discogenic pain, with some attempts at conservative therapy. He recommended further conservative treatment including medication adjustment, and less stressful forms of exercise to help her lose weight.
The applicant returned to Dr. Ahuja on April 15, 2002. She told the doctor her condition had improved since the last visit, and that she felt the medications helped. She was doing home exercises, and her only pain complaint was back pain after a long drive. His impression was that the applicant had discogenic pain which improved with therapy. He suggested she try to return to light duty, half-time work, with a 25 to 35 pound lifting limit.
The applicant saw Dr. Ahuja again on June 3, 2002. On this occasion she complained of continuing back pain, in the lower left part of the back to the tailbone. He noted radiation to the buttock, but not the leg, and numbness and tingling in the left leg had improved. Her pain was at four to nine on a scale to ten. On examination, the doctor noted some limitation on range of motion due to discomfort, with an area of tenderness to palpation in the lower back. He recommended injections. Exhibit G.
The record of the applicant's treatment ends at this point. During the course of her treatment for the work injury after her separation from the employer, the applicant has worked in part time or temporary jobs.
Both sides submitted expert medical opinion on the cause, nature and extent of disability. Specifically, the applicant submits expert medical opinion from physician's assistant Niec, (2) dated May 10, 2002. He described the injury as it was reported to physician's assistant Boerner on January 2, 2001, and diagnosed a central disc herniation at L4-5 encroaching on the exiting nerve roof on the right, with moderate disc bulging at multiple other levels. He opined the work injury directly caused the problem.
Regarding restrictions, Mr. Niec opined the applicant was subject to a lifting restriction of 25 pounds maximum pushing, pulling, carrying or lifting, with no twisting or bending at the waist. He declined to characterize these as permanent restrictions, however. Mr. Niec indicated that the applicant's permanent disability could not be rated at the time of his report, that she required further treatment from Dr. Ahuja, and that Dr. Ahuja would best determine her prognosis.
The employer retained David A. Goodman, M.D., as an independent medical examiner. His diagnosis was low back problem with activity intolerance. He opined that the mechanism of injury on January 2, 2001, was consistent with a simple mechanical low back strain. However, he noted she improved from the strain to the point Dr. Dresden released her without permanency or work restriction.
Dr. Goodman went on to opine that the applicant's continuing problems thereafter are simply the common low back pain that is a normal and natural incident of the general population. He noted that x-rays showed the kind of diffuse degenerative disc abnormalities common in 48 year olds, regardless of symptoms. He noted, too, that the MRI findings did not correlate with her complaints, pointing out that the pathology on the MRI was right-sided, while the applicant's pain was left-sided, and that she did not have the typical specific clinical neurological deficits, including intractable leg pain, or other obvious spinal pathology. In other words, Dr. Goodman suggests that the applicant does not have the typical "disc herniation symptoms" but more like the sore back symptoms individuals commonly experience as they age.
Dr. Goodman went on to opine that the applicant reached an end of healing on April 3, 2001, when Dr. Dresden discharged her. He declined to rate permanent disability. However, he thought her prognosis was unfavorable due to her obesity (the applicant is 5'6" and weighs 220 pounds) and the fact she is no longer working.
Technically respondent contested the occurrence of a compensable work injury, that is, whether the applicant sustained disability from an accident arising out of her employment with the employer while performing services growing out of or incidental to that employment. However, the ALJ correctly pointed out that the employer's independent medical examiner, Dr. Goodman, opined the applicant had suffered a back strain causing a short period of temporary disability. As the ALJ explained, the real issue is not whether the work injury caused disability, but the nature and extent of disability that the injury caused. More to the point, the issue is whether applicant has established a compensable disability and medical expense after Dr. Dresden discharged her from care on April 3, 2001.
The first step in resolving this issue is to determine which medical expert to credit. On the one hand, physician assistant Niec opines that the applicant's work injury caused the applicant's continuing complaints into 2002. In support of his opinion the commission notes that:
Dr. Goodman, of course, opined that the work injury caused only a short-term strain from which the applicant completely recovered with no residual disability by April 3, 2001, and that her subsequent problems are only the natural consequence of aging. Dr. Goodman's opinion is supported particularly by the applicant's unrestricted release by a treating doctor, Dresden, in April 2001, after a short period of time off work from what was being treated as a strain.
Between the competing opinions, the commission concludes that Mr. Niec's opinion is better supported by the facts, and therefore more credible. In addition to the points set out above, the commission reads Dr. Dresden's November 20, 2001 treatment note -- and in particular the doctor's observation that he had discharged the applicant in April 2001 with the expectation she would undergo a conditioning program -- to suggest that he did not mean to opine that the applicant had completely recovered without residual disability by releasing her without restriction on April 3, 2001.
The next issue is the extent of temporary disability from the work injury. In general, temporary total disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Admin. Code § DWD 80.47. The "healing period" is:
"...the period prior to the time when [an injured worker's] condition becomes stationary. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his work 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 (1932). See also ITW Deltar v. LIRC, 226 Wis. 2d 11, 21-22 (Ct. App. 1999). In other words, the healing period ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).
In her application for hearing, the applicant sought ongoing temporary total disability from February 20, 2001. The respondent's position is that the applicant refused suitable work by failing to report for work after February 20, 2001, and that in any event she reached an end of healing on April 3, 2001.
In deciding the applicant's eligibility for temporary disability, then, the commission must first consider whether she is disqualified by virtue of her separation from employment on February 20, 2001. On this point, the ALJ noted potential applicability of Brakebush Brothers Inc., v. LIRC, 210 Wis. 2d 623 (1997). In that case, the court was confronted with the argument that "employers should be relieved from liability for worker's compensation disability benefits to an employee who is terminated for misrepresenting his or her physical condition." Id., 210 Wis. 2d at 633. The court held generally that such a worker may continue to receive temporary disability, despite a discharge for misconduct, because the employee continues to be limited by the work-related injury and it is the injury, not the termination, that is the cause of the employee's economic loss. Brakebush Bros., at 210 Wis. 2d 634-37.
However, Brakebush involved the discharge of a worker who had not returned to work with his employer; it was not a case where, as here, the employer provided work within the applicant's restrictions during his or her healing period and then discharged the applicant for refusing to perform the work. Indeed, neither of the Wisconsin cases cited by the court in Brakebush involved a situation where a worker's purported misconduct arose from a refusal or failure to perform work within his or her temporary restrictions during his healing period. On this point, it is noteworthy that the employer in the Brakebush case attempted to raise the argument that the injured worker effectively refused light duty work by convincing the employer he was on bed rest when he was engaging in strenuous recreational activity. That argument, of course, is analogous to the argument the respondent makes in the case now before the commission. In Brakebush, however, the supreme court expressly did not address the argument, Brakebush Bros., at 210 Wis. 2d 631, note 1.
Wisconsin Admin. Code DWD 80.47 provides:
"DWD 80.47 Even though an employee could return to a restricted type of work during the healing period, unless suitable employment within the physical and mental limitations of the employee is furnished by the employer or some other employer, compensation for temporary disability shall continue during the healing period."
Thus, the commission has previously stated that if an employer offers work to an injured worker during the healing period and the worker refuses it without reasonable cause, the applicant's temporary disability benefits may be reduced by the wages he would have earned had he accepted the work. Wellsandt v. Chippewa County, WC case no. 93050745 (LIRC, November 28, 1997). However, the burden of providing such work is on the employer. Wendt v. Fredrick Redi-Mix, WC Claim No. 1995030200 (November 30, 1998). See also, Baker-Drayton v. St. Annes Home, WC Claim No. 1995-038417 (LIRC, July 12, 1999); Neal & Danas, Workers Compensation Handbook, § 5.10 (4th ed., 1997).
Further, the commission has recognized that there is support for reducing or denying temporary total disability benefits following a discharge from employment during a healing period if the applicant's conduct leading to the discharge is the analytic equivalent of refusing an offer of work. Banach v. Bucyrus International Inc., WC Claim No. 1998050520 (LIRC, Mar. 23, 2001); Falk v. Cummins Great Lakes, WC Claim No. 1995034834 (July 6, 2001).
In the current case, however, the commission declines to find that the applicant's actions leading to the separation from her employment with the employer amounted to the analytic equivalent of refusing work within her restrictions. While it does appear that the applicant, even under her own version of events, failed to call in sick on Tuesday, February 20, 2001, exhibit 5 indicates that she had provided at least some notice of her absence for illness (or for the illness of a family member) during the prior week. Further, Dr. Dresden's note of February 21, 2001, substantiates the applicant's testimony that she had a valid reason, illness, for missing work on February 19 and 20. While the applicant may have failed to comply with the employer's absence/attendance policies, and while that failure may have justified a discharge, the commission cannot conclude her actions were the analytic equivalent of refusing work within her restrictions that justify ending the employer's obligation to pay temporary disability or provide work within the applicant's restrictions. Thus, because the applicant remained in a healing period, and because work within her restrictions was provided by the employer only through February 20, 2001, the applicant is eligible for temporary disability as of February 21, 2001.
However, the applicant was subsequently released to work, without restriction, by Dr. Dresden as of April 3, 2001. While she may not have been fully recovered or completely without residual disability at that point, it cannot be said she was "submitting to treatment ... and unable to work because of the accident." Knobbe, supra, at 208 Wis. 189-90. Nor does it appear that the applicant was again restricted from work by her doctors, and so may at least arguably be regarded as "unable to work because of the accident," until Dr. Dresden re-instituted work restrictions on February 11, 2002.
Even as of that date, the commission, like the presiding ALJ is not certain whether these restrictions are imposed because the applicant re-entered a healing period or whether they are simply the result of her residual permanent disability. Certainly, as the ALJ points out, the applicant has not re-entered a period of renewed healing by virtue of any surgical treatment that has temporarily disabled her from employment.
Like the ALJ, then, the commission declines to decide whether the applicant is entitled to temporary disability as of February 11, 2002, and leaves the matter open pending receipt of additional evidence at a later hearing. The commission is satisfied, however, that the applicant was entitled to temporary disability from February 21 through April 2, 2001, but that temporary disability compensation should be denied from April 3, 2001 through February 10, 2002.
Regarding the amount of temporary disability from February 21 through April 2, 2001, the applicant was employed during this period with the Society of St. Vincent de Paul in a job she did not hold at the time of her injury. Therefore, under Wis. Stat. § 102.43(6)(c), wages from this employment must be taken into account in calculating the applicant's temporary disability. Temporary disability shall be calculated based on exhibit M, which shows no wages from the Society of St. Vincent de Paul in the weeks ending February 24, March 3, March 10, and April 7, 2001, but does show wages of $48.75 for the week ending March 17, wages of $117 for the week ending March 24, and wages of $170.63 the week ending March 31.
Accordingly, the applicant is entitled to temporary total disability from Wednesday, February 21, 2001 through Saturday, March 10, 2001, a period of two weeks and four days, which, at the weekly rate for temporary total disability of $236, equals $629.33. As set out in the attached form WKC-7359, the applicant is entitled to temporary partial disability in the amount of $203.50 for the week ending March 7, 2001; in the amount of $158.00 for the week ending March 24, 2001; in the amount of $122.25 for the week ending March 31, 2001. The applicant is entitled to temporary total disability for April 2, 2001, (3) or one day at the weekly rate of $236, equaling $39.33
In all the applicant is entitled to $1,152.42 in temporary total disability compensation. She has consented to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded, or $230.48. The fee shall be paid to the applicant's attorney within 30 days, and the remainder ($921.93) shall be paid to the applicant within 30 days.
As set out above, the commission adopts Mr. Niec's opinion and concludes that the applicant's injury did not result in a short-term strain that completely resolved by April 3, 2001, but remained symptomatic and required treatment. As the ALJ correctly pointed out, the respondent is liable for this treatment, even if the applicant's healing had completed by April 3 and her continuing problems were permanent residuals from the work injury. Wis. Stat. § 102.42(1). Thus, as established in exhibit G, the applicant incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury as follows: from Lakeland Medical Center, $1,937.50, of which the insurer paid $933.30, $103.70 was adjusted from the bill, and $900.50 remains outstanding; from Memorial Hospital of Burlington, $2,217, of which the insurer paid $1,388.94, $131.81 was adjusted from the bill, and $696.25 remains outstanding; from Midwest Neurological, $705, all of which remains outstanding; from Aurora Occupational Health, $3,015, of which the insurer paid $418.12, $16.88 was adjusted from the bill, and $2,580 remains outstanding. In addition, the applicant is entitled to reimbursement for out-of-pocket prescription expense of $146.98, and medical mileage documented in exhibit N at $390.05.
Mr. Niec opined that further treatment would be necessary, suggesting that the applicant may sustain future periods of disability and incur additional medical expense. In addition, of course, the issues of permanent disability and whether the applicant is eligible for temporary disability on or after February 11, 2002, have not been decided. Accordingly, this order shall be left interlocutory to permit awards for permanent disability, temporary disability after February 11, 2002, and future medical expense.
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 reversed in part and affirmed in part.
Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Linda Calkins, Nine hundred twenty-one dollars and ninety-three cents ($921.93) in disability compensation.
2. To the applicant's attorney, Lynne A. Layber, Two hundred thirty dollars and forty-eight cents ($230.48) in attorney fees.
3. To Lakeland Medical Center, Nine hundred dollars and fifty cents ($900.50) in medical treatment expense.
4. To Memorial Hospital of Burlington, Six hundred ninety-six dollars and twenty-five cents ($696.25) in medical treatment expense.
5. To Midwest Neurological, Seven hundred five dollars and no cents ($705.00) in medical treatment expense.
6. To Aurora Occupational Health, Two thousand five hundred eighty dollars and no cents ($2,580.00) in medical treatment expense.
7. To the applicant, the sum of One hundred forty-six dollars and ninety-eight cents ($146.98) in out-of-pocket prescription expense and Three hundred ninety dollars and five cents ($390.05) in medical mileage.
Jurisdiction is reserved for further orders and award consistent with this
decision.
Dated and mailed April 9, 2003
calkins . wrr : 101 : 8 ND § 5.9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
James T. Flynn, Commissioner
The commission's modification of the ALJ's findings was not based on a different conclusion as to witness credibility or demeanor.
cc:
Attorney Michael D. Stotler
Attorney Lynne A. Layber
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(1)( Back ) This was evidently a mis-statement by Dr. Dresden. The applicant's prior complaints -- and Dr. Dresden's and Ms. Boerner's prior assessments -- had been of low back or lumbar pain not mid-back or thoracic pain.
(2)( Back ) Technically, physician's assistants are not qualified to give expert opinion on causation, nature and extent of disability. See Wis. Stat. § 102.17(1)(d). However, the respondent does not raise the issue and the treatment records of medical doctors Ahuja and Dresden -- while not practitioner reports certified by the doctors as required under Wis. Stat. § 102.17(1)(d) -- support PAC Niec's opinion as explained below.
(3)( Back ) Sunday, April 1, 2001 is excluded under Wis. Stat. 102.43(4).
uploaded 2003/04/18