MARK A TOMASOVICH, Applicant
COUNTY TRANSIT CORP, Employer
WAUSAU GENERAL 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, consulted with the presiding ALJ concerning witness credibility and demeanor, and 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, except that it makes the following modifications:
1. Delete the material from the last paragraph beginning on page 18 through the last paragraph beginning on page 19, and substitute:
"The respondents are not entitled to credit for previously paid and conceded functional permanent partial disability. The commission's policy is to give a credit only for weeks of conceded and paid permanent partial disability which had not yet accrued at the point an applicant became permanently and totally disabled. Michael Molitor v. Pepsi Cola Co., WC claim nos. 91072459 and 93021071 (LIRC, August 28, 1997).
"The applicant was temporarily and totally disabled from October 28, 1999 until February 23, 2001, when the applicant became permanently totally disabled. The most recent WKC-13 Supplementary Report in the file is dated April 30, 2001. It shows that temporary disability benefits were paid from October 28, 1999 through December 4, 2000, at $489.95 per week, an escalated weekly rate under Wis. Stat. § 102.43(7).
"The applicant is entitled to temporary total disability compensation at the escalated weekly rate of $489.95 (1) from December 4 through December 31, 2000. This is a period of 3 weeks, 5 days, totaling $1,878.14, of which $1,502.51 shall be paid to the applicant and $375.63 to his attorney as a fee.
"As of January 1, 2001, the applicant's compensation became subject to the social security reverse offset under Wis. Stat. § 102.44(5). Accordingly, the applicant is entitled to a weekly payment of $255.02 (2) during his temporary total disability from January 1, 2001 to February 22, 2001, yielding a fee for his attorney at the weekly rate of $51.00. The period from January 1 to February 22, 2001, equals 7 weeks, 4 days, totaling $1,955.15 in compensation for the applicant and $391 for his attorney.
"The applicant is entitled to permanent total disability benefits beginning on February 23, 2001. After application of the reverse social security offset on the applicant's weekly rate for permanent total disability ($436.26), (3) the applicant is entitled to compensation at the weekly rate of $214.24, while his attorney is entitled to compensation at the weekly rate of $42.85. From February 23, 2001 though June 3, 2003, a period of 118 weeks and three days have accrued, yielding $25,387.44 for the applicant, and $5,077.73 for his attorney.
"The total currently accrued to the applicant, then, is $28,845.10 ($1,502.51 plus $1,955.15 plus $25,387.44.) Subtracting his attorney's costs of $1,089.10, the applicant is currently due $27,756 which shall be paid within 30 days. The amount due his attorney within 30 days equals $5,844.36 ($375.63 plus $391 plus $5,077.73) in fees and $1,089.10 in costs.
"The applicant is entitled to permanent total disability compensation for life. Beginning on July 3, 2003, the applicant is to receive $928.38 per month until the next social security redetermination occurs on January 1, 2004. Beginning on July 3, 2003, the applicant's attorney is to receive $185.69 per month until the next redetermination on January 1, 2004. The 500-week limit on attorney fees under Wis. Admin. Code § DWD 80.43(3) ends on September 24, 2010."
2. Delete the ALJ's INTERLOCUTORY ORDER and substitute the second, third, and fourth paragraphs of the commission's INTERLOCUTORY ORDER set out below.
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 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Mark Tomasovich, Twenty-eight thousand eight hundred forty-five dollars and ten cents ($28,845.10) in disability compensation.
2. To the applicant's attorney, the sum of Five thousand eight hundred forty-four dollars and ten cents ($5,844.36) in fees and One thousand eighty-nine dollars and ten cents ($1,089.10) in costs.
Beginning on July 3, 2003, and continuing on the third day of each month thereafter until a redetermination by the Social Security Administration on January 4, 2004, the employer and its insurer shall pay all of the following:
1. To the applicant, Nine hundred twenty-eight dollars and thirty-eight cents ($928.38) per month
2. To the applicant's attorney, One hundred eighty-five dollars and sixty-nine cents ($185.69) per month.
Jurisdiction shall be retained for further orders and awards as are appropriate.
Dated and mailed June 6, 2003
tomasom . wsd : 101 : 6 ND § 5.31
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The applicant hyper-extended his right (dominant) elbow on September 25, 1995, while working for the employer as a truck driver. When injured, the applicant was trying to lock or ratchet down a securing strap holding a load of concrete blocks when the straps suddenly separated. He described the pain with the injury as a sting. After about two weeks of continuing pain, he sought treatment.
The applicant initially treated conservatively after his September 1995 injury. When he continued to have problems, however, he underwent an arthroscopic debridement and anterior capsulotomy with capsulectomy and synovectomy in October 1996. The applicant had limited motion, though initially little pain, after healing from this surgery, but then began to develop increased pain and loss of range of motion. Another surgery was done in April 1997; this disclosed lesions of synovial chondromatosis. (4)
Yet another surgery followed in October 1999 after x-rays showed recurrent synovial chondromatosis. Operative findings showed diffuse synovitis with chondromatosis throughout the entire elbow joint, some of which were capable of locking the joint. By January 2000, however, the condition had redeveloped, and at this point the applicant's surgeon was describing the applicant's condition as a malignant arthrofibrosis, spontaneous ankylosis of the elbow, following a relatively trivial trauma or insult.
By May 1, 2000, the applicant had no motion left in his elbow. Two more surgeries were attempted, in July and August 2000. Nonetheless, by November 2000, the applicant was not doing well, with progressive loss of motion and pain. An injection was recommended.
On February 23, 2001, applicant returned to his treating surgeon, Bernard Morrey, M.D., who noted that while the applicant's complaint at the time of his last visit was limitation, he was now complaining of both pain and limitation of motion. The doctor reported a limited arch of motion from 50 to 90 degrees, with 30 degrees of pronation and 20 degrees of supination, with marked pain. The doctor noted the main reason the applicant was being seen was for a disability rating.
Dr. Morrey went on to diagnose a spontaneous arthrofibrosis, and thought while it was possible there might be a variation of reflex sympathetic dystrophy he could not confirm that diagnosis. He suggested a ganglion block might be considered. The doctor also noted the applicant's condition was not improving and had deteriorated. He rated a fifty-percent impairment of the right upper extremity, and dismissed the applicant from treatment.
In addition to his substantial arm pain, the applicant testified at the hearing that he has a great deal of shoulder pain and upper back pain. He describes the back pain as going into the center of his back, between his shoulder blades. He says the pain is so bad he sometimes has to sit or lie down.
The employer and its insurer (collectively, the respondent) conceded a work injury. At issue is the nature and extent of disability from that injury.
Tuenis Zondag, M.D., saw the applicant on referral from a pain clinician (5) on October 18, 2001. In his note from that date, Dr. Zondag noted the purpose of the examination is to determine the applicant's ability to remain with competitive employment. Dr. Zondag noted the spontaneous arthrofibrosis, which the doctor described as a scar reaction that occurred from the injury, which
"produced a scar in the left elbow that not only has scar tissue, but also has difficulty with range of motion and chronic pain because of the entrapped nerves."
Exhibit E, Zondag note dated October 18, 2001, page 1.
Dr. Zondag went on to note that, because of the applicant's preference against using pain medication other than Lidocaine patches, the applicant had learned to live with the pain. He told the doctor he attempts to relieve his symptom by applying the Lidocaine patches, ice and heat, and taking aspirin and muscle relaxers. The applicant also said his pain at times was 5 of 10 and at other times 10 of 10. The doctor reported, too, that the applicant's symptoms were made worse "with any activity with any type of thing."
Dr. Zondag's assessment was hyperextension injury of the right elbow, and a significant formation of scar tissue across the joint including the right elbow joint. He noted the applicant had significant scar formation, and was very sensitive to even light palpation. He opined:
"The patient does show atrophy of his muscles both the biceps and triceps in the forearm because of limited motion and shows over an inch increase in size from scar formation on the right elbow which is nonfunctional compared with a functional left elbow. The patient because of the problem of the progressive scarring that has happened of the fibrosis because of chronic pain with any activity has basically got a nonfunctional very painful right arm consistent with a complex regional pain disorder and a scar reaction. The patient is a symptom minimizer and therefore uses only Lidocaine patches, Tylenol, and ibuprofen and uses ice therapy and uses immobilization and reduction of activities as a way of handling it. The patient will be and has been unable to be completely employed since October of 1999."
Dr. Zondag continued:
"...he has fibrous scar reaction equivalent to a severe arthritis of his right elbow with both joint pain, stiffness, and marked limitation or actually it is frozen in place at about 45 degrees with no motion. X-ray evidence of severe scarring and on arthroscopy the patient has the findings of atrophy. This has also got a chronic pain disorder and basically has a nonfunctional right arm and reduced the activity limited to less than sedentary less than one or two hours less than three days a week as far as his competitive activity goes."
In summary, Dr. Zondag stated:
"It is my opinion that Mr. Tomasovich is disabled under ... the social security code because of a hyperextension injury which went on to produce excessive scarring. This is essentially equivalent to a severe arthritis of the elbow with chronic pain because of the pain fibers being encapsulated in a scar and his reduced ability to function with his upper right extremity. This I hopefully have put it in some type of layman's language that will help to have the administrative judge understand what is going on with this man. I also feel in relationship with Wisconsin Administrative Code 80.32, the patient has a 60% permanency of the right elbow equivalent to ankylosis at 45 degrees. The patient may also be considered for a complex regional pain disorder with some rating from the cervical spine because of this injury and its effect on his body."
Exhibit E, Zondag letter of October 18, 2001.
On December 6, 2001, Dr. Zondag wrote another letter following up on the last sentence of his October 18 letter:
"It is my opinion to a reasonable degree of medical probability that this patient has an eight percent (8%) permanency of the body as a whole because of the hyperextension injury to his right elbow. The permanency is rated to the cervical spine because of the regional complex pain disorder which involves the left elbow and the scarred end nerves at the left elbow. The sympathetic nerves, which are from this area, are connected to the nerve roots in the cervical spine and are equivalent to having a disc herniation in the cervical spine with pain associated. The pain he experiences is so high that it compromises his competitive work capacity. It is my opinion that this patient is totally and completely disabled from any competitive employment."
Exhibit D.
The respondent relies on reports from its independent medical examiners, Brad Grunert, Ph.D, and Hani S. Matloub, M.D. A report following a re-examination of the applicant in May 2002 summarizes their opinions. Exhibit 3.
On physical examination, the doctors noted a very swollen right elbow, with multiple well-healed scars from surgeries. They noted too that pain "localized" over the medial and lateral elbow on the right. The range of motion from flexion to extension at the elbow was limited to the 10-degree arc from 45 to 55 degrees. Supination and pronation were zero. There was some decreased nerve sensation in the right median and ulnar nerve distributions as compared with the left. The doctors noted, too, "some pain in his shoulder, probably due to compensation for the loss of range of motion in his elbow."
In summary, Drs. Matloub and Grunert listed current complaints of extremely limited range of motion in the right elbow; frequent swelling of the right elbow which was apparent on examination; right shoulder pain as a result of compensating for the lack of range of motion; and pain over the medial and lateral epicondyles of the elbow, and the right olecranon.
Drs. Matloub and Grunert went on to diagnose malignant fibrosis status post five operations. They opined he had reached a healing plateau. They noted he could not use his arm to work, and that he slept poorly because of his condition, which might make it difficult to perform a job requiring concentration. They adhered to a 31 percent permanent partial disability rating they had set earlier.
The doctors also concluded the applicant did not suffer from complex regional pain disorder. His pain, they stated, was secondary to entrapment of the nerves in the scar tissue. He did not have the temperature, coloring or hair growth abnormalities commonly associated with complex regional pain disorder. Also the fact that the Lidocaine patches applied directly over the painful area relieved the pain militated against a finding of complex regional pain disorder. In the absence of a complex regional pain disorder, the doctors concluded he had no disability related to his spine or whole body.
By order dated February 27, 2003, pursuant to its authority under Wis. Stat. § 102.18(3), the commission remanded this case to obtain additional evidence regarding how the applicant's injury has caused permanent disability to an unscheduled body part.
In a letter dated March 24, 2003, Dr. Zondag explains how the applicant's regional complex pain disorder has compromised his function to his cervical spine and body as a whole. The doctor stated that the acute pain process from the strain injury to the applicant's arm caused pain messages to be sent in excessive amounts to the cervical spinal cord, in turn causing new nerves to be produced in the dorsal horn of the cervical cord. The brain activates sympathetic nerves of the cervical spine, which become oversensitized, and respond excessively to every day stimuli like temperature changes and motion.
In response, Drs. Matloub and Grunert reiterate their diagnosis of an elbow-only condition, albeit a serious and painful one from malignant arthrofibrosis of the right elbow. They do not believe he has regional pain disorder or complex regional pain syndrome, because he has none of the classic signs including:
The doctors note, too, the effectiveness of the lidocaine patches when applied directly over the elbow, suggesting an elbow rather than cervical or neck problem. See Grunert/Matloub letter dated April 16, 2004.
In addition, the commission conferred with the presiding ALJ, who strongly felt the applicant was permanently and totally disabled. She believed his complaints of pain in the upper back. She believed as well that the applicant's pain adversely affected his ability to concentrate, noting that during examination at the hearing he had to have questions repeated and restated more slowly. She strongly believed, too, that the applicant could not work.
Where loss or disability to a scheduled part extends to another, unscheduled part of the body and interferes with its efficiency, the resulting disability to the unscheduled part may be compensable by an award based on loss of earning capacity. Mednicoff v. DILHR, 54 Wis. 2d 7, 15 (1972). In other words, it is the location of the disability, not the injury, that is significant. See Neal & Danas, Worker's Compensation Handbook § 5.18 (5th ed., 2003).
The applicant here is claiming permanent total disability. Wisconsin Stat. § 102.44(2) provides:
102.44 (2) In case of permanent total disability aggregate indemnity shall be weekly indemnity for the period that the employee may live. Total impairment for industrial use of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, constitutes permanent total disability. This enumeration is not exclusive, but in other cases the department shall find the facts.
In addition to the specified combinations of scheduled injuries, the supreme court has stated that an unscheduled injury which causes a total loss of earning capacity would qualify as disability not specifically enumerated in Wis. Stat. 102.44(2), but on which the commission could "find the facts" to award permanent total disability. Mednicoff, 54 Wis. 2d at 14. In such cases of permanent total disability may be awarded if the worker establishes a prima facie case of "odd-lot" employability by showing he or she can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, Balczewski v. ILHR Dept., 76 Wis. 2d 487, 493 (1977), unless the employer rebuts the prima facie case showing that the worker is in fact employable and that jobs do exist for the worker, id., at 76 Wis. 2d 495.
In Mireles v. LIRC, 2000 WI 96, 71, 237 Wis. 2d 97-98, the court held that an award for permanent total disability may be based on a combination of injuries affecting both scheduled and unscheduled parts of the body. See also: Secura Insurance v. LIRC, 2000 WI App 238, 17, 239 Wis. 2d 315, 323. Indeed, the Mireles court quoted with approval language from the court of appeals decision in Langhus v. LIRC, 206 Wis. 494, 505 note 9 (Ct. App. 1996), where the court noted that a worker could prove permanent total disability stemming from both scheduled and unscheduled injuries, under its "find the facts" in Wis. Stat. § 102.44(2). Mireles, at 237 Wis. 2d 69, 94 63.
However, the Langhus court stated that the commission may properly require a worker to show that an ascertainable portion of his or her permanent total disability was from an unscheduled injury. Langhus, at 206 Wis. 2d 506. See also: Mireles, 237 Wis. 2d 96, 68. In other words, in cases of claims for permanent total disability based on combinations of scheduled and unscheduled injuries, the commission acts within its authority to require the applicant to show that an ascertainable portion of the total disability is attributable to an unscheduled injury. Secura, 239 Wis. 2d at 324, 20.
In this case, the commission acknowledges that treating doctors Drawbert and Morrey rated disability only at the arm for scheduled disability, and the medical records most clearly document pain in the arms and shoulder. However, the applicant testified credibly that he has pain radiating from his arm to his upper back. Dr. Zondag provides a credible explanation of how the arm injury is related to that pain, and provides a credible disability rating to the applicant's body as a whole for the condition. Indeed, treating surgeon Morrey suggested, too, that the applicant may have developed, or been developing, a reflex sympathetic dystrophy (6) in his report of February 23, 2001.
Dr. Zondag credibly opined that the applicant's pain compromises his competitive work capacity, an observation supported by the ALJ's credibility impression. In addition, Dr. Zondag's opinions provide a credible basis for determining that a substantial portion of the applicant's permanent total disability is due to the disabling pain extending to an unscheduled part of his body. In sum, after reviewing the record in this case, including the opinions of the vocational experts set out at length by the ALJ, the commission is satisfied that the applicant is permanently and totally disabled on an odd-lot basis. The commission further finds that an ascertainable portion, indeed a substantial portion, of the applicant's permanent and total disability is attributable to unscheduled disability affecting his body as a whole from the regional complex pain disorder diagnosed by Dr. Zondag. Accordingly, the commission affirmed the ALJ's order, except for the modifications in the disability compensation sought by the applicant and not contested by the respondent.
DAVID B. FALSTAD, Chairman, (dissenting):
I respectfully disagree with the majority on two points. First, I cannot credit Dr. Zondag's diagnosis of regional complex pain disorder. Drs. Matloub and Grunert credibly opine that the applicant lacks the classic diagnostic indicators for that condition. Further, neither neck nor back complaints were noted in Dr. Zondag's October 2001 examination of the applicant, and the doctor specifically reported a normal range of motion in the back. Exhibit E, report of Zondag, page 5 of 6.
Second, regardless of the cause of the applicant's complaints of back pain, the applicant has not shown how the back pain--as opposed to the arm pain requiring him to use the medication patches--disables him, much less that the back pain constitutes an ascertainable portion of his asserted total disability. I do not doubt that the applicant experiences severely disabling and debilitating arm pain. However, where, as here, an injured worker establishes disability affecting only a scheduled part of the body, the commission should not find disability comparable to a total disability for industrial purposes under Wis. Stat. § 102.44(2), as "in the case of scheduled injuries the legislature has already made this comparison." Mednicoff v. DILHR, 54 Wis. 2d 7, 14 (1972). See also Mireles v. LIRC, 2000 WI 96, 68, 237 Wis. 2d 69, 96 (stating, with respect to permanent total disability, that compensation for loss of earning capacity should not be awarded for disability caused either significantly or wholly by a scheduled injury.)
For these reasons, I respectfully dissent.
______________________________________
/s/ David B. Falstad, Chairman
cc:
Mr. Steve J. Jackson
Mr. Steve A. Cotton
Appealed to Circuit Court. Reversed February 10, 2004.
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(1)( Back ) The WC hearing summary sheet on which the ALJ based her decision shows the payment of TTD resuming on December 24, 2000, not December 4, 2000. As a result, a second escalated TTD rate of $500.01 was set based on a renewed temporary disability assuming a second break in disability from December 4 and 24, 2000. Since the applicant in fact was temporarily totally disabled continuously from October 28, 1999 through February 22, 2001, however, no second period of renewed TTD beginning in December 2000 actually occurred.
(2)( Back ) The social security reverse offset worksheet (form WKC-6119) on which the ALJ relied assumed a weekly benefit rate for TTD of $500.01. The commission recalculated the offset based on the weekly TTD rate of $489.95 as follows: The social security reverse offset worksheet shows an initial and redetermined "80 ACE" at $1946.40 per month or $449.17 per week. The applicant's weekly WC TTD rate, as set out above, is $489.95. The applicant's initial "MBA" for social security is $1,018, or $234.93 per week. Since the weekly WC TTD exceeds the weekly 80% ACE rate, the weekly MBA rate ($234.93) is subtracted from the former ($489.95), leaving a remainder of $255.02. That, then, is the weekly amount to be paid to the applicant during his temporary total disability, and the applicant's attorney is entitled to a twenty percent fee in addition, or $51.00 per week.
(3)( Back ) This is two-thirds of the conceded wage. The permanent total disability rate is not escalated under Wis. Stat. §102.43(7).
(4)( Back ) This is the formation of multiple benign tumors or tumor-like growths of cartilage, formed in the synovial membrane (or a membrane in the elbow joint.) See Dorland's Illustrated Medical Dictionary, (29th ed. 2000).
(5)( Back ) An October 1, 2001 the note from the pain clinician, M.R. Schlimgen, whom the applicant apparently saw on Dr. Drawbert's referral, is at exhibit F.
(6)( Back ) "Complex regional pain syndrome" and "reflex sympathetic dystrophy" are synonymous terms, see 2 Attorney's Dictionary of Medicine, "complex regional pain syndrome," (LEXIS NEXIS 2001).
uploaded 2003/06/13