STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DARRELL GILLETTE, Applicant

MILWAUKEE COUNTY, Employer

FORT ATKINSON MEMORIAL HEALTH SERVICE, Employer

MILWAUKEE COUNTY, Insurer

UNITED WISCONSIN, Insurer
c/o UNITED HEARTLAND INC

WORKER'S COMPENSATION DECISION
Claim No. 1991-007916


The department issued an interlocutory order in this matter on September 16, 1999, in which respondent Milwaukee County (hereinafter County) was found liable for the applicant's ongoing disability and medical expenses, attributable to the conceded work injury to his low back occurring on December 22, 1990. The order further found that there had not been an additional work injury occurring while the applicant was employed with respondent Fort Atkinson Memorial Health Services (hereinafter FAMHS) on January 15, 1998. The order also found that the issue of additional functional permanent disability had not been foreclosed by a previous department order issued on July 11, 1994, and that the issue of loss of earning capacity was not ripe for resolution because the applicant might be seeking vocational rehabilitation.

The County submitted a petition for commission review of the department order, but before it was reviewed by the commission, the parties indicated that a proposed compromise agreement had been reached, and the matter was remanded to the department for review of the proposed compromise. On March 23, 2000, the department issued an order approving the compromise; however, on March 9, 2001, the applicant submitted an application for review and request for setting aside the compromise. That application was dismissed by a department order issued on August 22, 2002, but the applicant petitioned this order to the commission, and the commission set aside the compromise in an order issued on April 23, 2003. That commission order gave the County 21 days to reinstate its original petition of the department order issued on September 16, 1999, which the County did on a timely basis.

Presently at issue before the commission are the findings made in the department order of September 16, 1999, with respect to whether the County and/or FAMHS are liable for the applicant's ongoing disability and medical expense, whether the issue of additional functional permanent disability was foreclosed in the department order of July 11, 1994, whether the issue of loss of earning capacity is ready to be decided, and what are the nature and extent of disability and liability for medical expense. Additional issues have arisen regarding the allocation of amounts paid and continuing to be paid under the compromise agreement which was set aside.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part her Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is May 5, 1951, was employed as a respiratory therapist for the employer, Milwaukee County. On December 22, 1990, he slipped on the ice in the employer's parking lot and sustained a conceded injury to his lower back. Dr. Sandford Larson performed L4-S1 fusion surgery on July 12, 1991, and refusion surgery with new hardware on February 4, 1993. On July 11, 1994, the department issued a decision which accepted the opinion of Dr. Dennis Brown and awarded 15 percent permanent partial disability. In addition to assessing this percentage of disability, Dr. Brown placed the applicant in the light work category with a 25-pound lifting restriction.

On April 21, 1995, a third surgery for removal of hardware was performed. No additional permanent disability was paid for this surgery, but the applicant's back pain continued to be substantial. The applicant had returned to restrictive work for the employer but was terminated for excessive absenteeism in 1995. He began new employment as a respiratory therapist for Fort Atkinson Memorial Health Service (FAMHS) in November of 1996. He alleges that on his way into the work the morning of January 15, 1998, he again slipped and fell on the ice in a parking lot and reinjured his back. Another surgery, consisting of a foraminotomy and nerve root decompression at L5-S1, was performed by Dr. R. L. Harrison on February 16, 1998. The applicant has continued to receive medical treatment for his back condition.

After careful review of the evidence the commission concurs with the administrative law judge that the surgery of February 16, 1998, together with the resultant disability and medical expense including the disability and medical expense immediately preceding the surgery, were attributable to the work injury sustained while the applicant was employed by the County on December 22, 1990. As noted by the administrative law judge in her order, the applicant underwent low back treatment on a continual basis after the 1990 injury, his symptoms worsened in 1997 and shortly before January 15, 1998, and the evidence leads to the inference that a slip-and-fall injury did not occur on January 15, 1998. Dr. Geoffrey Smith's office note of January 15, 1998, made no mention of a slip and fall allegedly occurring that day, even though the applicant asserted that he saw Dr. Smith only three or four hours after the alleged fall. The applicant also alleged that he knocked out a tooth when his face hit a car as he fell. Dr. Smith's clinic note does not mention the applicant losing a tooth or sustaining any injury to his face. It is additionally inferred that it would be unlikely for the applicant to have suffered the loss of a tooth, but to have gone straight to his desk and worked for three or four hours, without contacting someone for assistance. No treatment bills were submitted for dental care.

Finally, Dr. Stephen Robbins credibly opined that the February 1998 surgery was necessitated by the injury of December 22, 1990, which caused degenerative disc disease, three prior surgeries, and chronic pain syndrome. Dr. Richard Harrison assessed permanency in a WKC-16-B form dated June 10, 1998, and that is determined to have been the date the applicant reached a healing plateau from the period of disability which began on January 16, 1998. This was a period of 20 weeks and 5 days at the applicable rate of $413.67 per week, totaling $8,618.13. The rate was escalated pursuant to Wis. Stat. § 102.43(7).

The surgery of February 16, 1998, resulted in an additional 5 percent permanent partial disability on a functional basis. The commission also concurs with the administrative law judge that the order of July 11, 1994, contains inconsistent and ambiguous language with regard to the issue of additional permanent functional disability. Given the nature of the applicant's condition at the time that order was issued, and the fact that the order was left interlocutory due to "the nature of the applicant's condition," the commission infers that the order was intended to be final only with respect to the permanent functional disability which had been sustained as of the date of the hearing held on June 6, 1994.

The commission does not concur with the administrative law judge's decision to leave the order interlocutory with respect to the issue of loss of earning capacity. Relevant evidence was submitted by the parties concerning this issue, and the applicant testified that he had not had any recent contact with the Department of Vocational Rehabilitation, because the last time he spoke to them they indicated they could not do anything for him. At another point in the hearing he testified that he was "unsure" about schooling, but that he had no current plans in that regard. As of the hearing date on June 1, 1999, the applicant indicated that he had been frustrated by his unsuccessful work search, and that he was receiving social security disability payments.

The evidence leads to the inference that the applicant has no intention of returning to school for vocational retraining. It is also inferred that given his chronic back and leg pain, and the narcotic medication which he regularly takes to combat this pain, it would be extremely difficult for him to complete an extended period of retraining. Dr. Harrison and Dr. Aschliman gave permanent restrictions that place the applicant in the sedentary work category. The applicant's vocational expert, Daniel Modder, estimated loss of earning in the range of 50 to 60 percent; while the County's vocational expert, Michael Campbell, estimated the loss at 20 to 25 percent. The applicant is currently 52 years old, graduated from high school, and has an associate degree in respiratory therapy. His occupational history is outlined in the report submitted by Mr. Modder, and includes experience with medical equipment and supply sales.

The numerous physical restrictions placed upon the applicant prevent him from performing a large number of jobs for which he would otherwise be qualified. He may be able to obtain some form of employment which makes use or partial use of his training as a respiratory therapist. However, his inability to perform any significant lifting, and his need to make frequent changes of position preclude him from any typical position which would be held by a respiratory therapist. Mr. Modder suggested that the applicant could find employment in various clerk or customer service positions, although his restrictions will again impact on the accessibility of many of these jobs. On the other hand, the applicant's apparent decision to stop looking for work is inappropriate, given his restrictions and transferable skills. The applicant was earning approximately $17 per hour in his employment with FAMHS, and Mr. Modder gave realistic estimates of wages the applicant might earn in the range of $9.50 to $9.90 per hour. Of course, the applicant would have been earning more than $17 per hour had he been able to remain with FAMHS, and his accessibility to most employment has been limited to some degree by the effects of his work injury.

Considering all the relevant factors, the commission finds that the applicant sustained a 60 percent loss of earning capacity attributable to the work injury of December 22, 1990. The additional 5 percent permanent functional disability is subsumed into the award for loss of earning capacity, and considering the previous payments of 15 percent permanent partial disability, a net award of an additional 45 percent permanent partial disability is due. This amounts to 450 weeks of compensation at the applicable rate of $131 per week.

As of the hearing date of June 1, 1999, the following medical expenses were shown to have been reasonably required by the effects of the 1990 work injury: Kettle Moraine Ambulance, $304.25 (paid by Wellmark); Waukesha Memorial Hospital, $1,034.56 (paid by Wellmark); Radiology Waukesha, $63.50 (paid by Wellmark); Emergency Medical Associates, $345 (paid by Wellmark); Medical College of Wisconsin, $786 ($644.30 paid by Wellmark, $141.70 unpaid); Froedtert Memorial Hospital, $2,555.92 (unpaid); Radiology Chartered, $20.50 (paid by Wellmark); Northeast Wisconsin MRI Center, $2,400 ($1,200 paid by Wellmark, $1,200 paid by JVMC); Spine Therapy Center, $832 ($208 paid by Wellmark, $624 unpaid); Neurological Surgeons, Ltd., $5,446 ($3,710 paid by JVMC, $1,726 unpaid); Bellin Hospital $5,052.10 ($187 paid by Wellmark, $4,865.10 unpaid); Family Practice Associates, $262.30 ($220.60 paid by Wellmark, $32.40 paid by applicant, $9.30 unpaid); Johnson Creek Medical Center, $494 ($457.47 paid by JVMC, $36.53 unpaid); Bellin Anesthesia Associates, $844.96 (paid by Wellmark).

Medical expenses claimed at the hearing held on June 1, 1999, but not ordered paid, were not substantiated by medical records establishing a relationship between the treatment and the back injury of December 22, 1990.

Attorney fees and costs in this case are dependent upon the fee agreements the applicant had on the one hand with Attorney Israel Ramon, who represented the applicant at the time of the compromise agreement; and on the other hand with Attorney Richard Steinberg, who on an unspecified, subsequent date assumed representation of the applicant. As will be noted below, Attorney Ramon must repay to the County the $42,821.81 he received from it pursuant to the compromise agreement. After repayment of that amount to the County, Attorney Ramon may be due fees and costs against compensation payments made to the applicant as a result of his representation. This may include fees and costs against the temporary total disability and permanent partial disability awarded by the commission, or it may include no fee or a partial fee shared with Attorney Steinberg, depending upon the provisions of the fee agreements with the applicant.

The applicant has continued to incur medical expenses, and the order will be left interlocutory with respect to medical expenses due subsequent to the hearing date of June 1, 1999. There may also be a social security offset due pursuant to Wis. Stat. § 102.44(5), and the order will be interlocutory with respect to that issue.

Additional difficulties arise in this case due to the fact that the County has made payments to the applicant and to Attorney Ramon, in accordance with the terms of the compromise agreement which was set aside. The County asks the commission to order repayment of any net overpayment of compensation and attorney fees and costs, which may arise after offsetting the amounts paid under the compromise agreement against amounts due the applicant and his attorneys pursuant to the commission's order. The commission has consistently noted that the statutes do not provide it with authority to order payment of overpaid compensation, including overpaid attorney fees. However, pursuant to its authority to award compensation, the commission may order the offset of overpaid amounts against awards which it makes.

The applicant received $48,178.19 as a lump sum payment under the compromise, which was to be allocated to outstanding medical bills. If the County and the applicant agree that the medical bills paid with this money were reasonably required by the 1990 work injury, then that money was properly paid for medical treatment and does not constitute an overpayment. If the County does not agree that the medical bills paid with this money were reasonably required by the 1990 work injury, then there would be an overpayment until and unless the compensability of the bills has been adjudicated. Of course, if any of the $48,178.19 was used to pay any of the medical bills listed above, then such bills would have been satisfied and no overpayment would accrue for such payments.

Attorney Ramon must return to the County the $42,821.81 in fees and costs which he received pursuant to the compromise, which was set aside. Although the commission has no authority to order Attorney Ramon to actually make this payment, the County may use this order to enforce judgment against Attorney Ramon for that amount in circuit court. Because this money was paid to Attorney Ramon and not to the applicant, it will not offset any amounts due the applicant.

Pursuant to the compromise agreement, the applicant has been receiving annuity payments of $829.32 per month since April of 2000. This means that to date he has received approximately $35,000.00 in such payments, and continues to receive them because the annuity cannot be cancelled. These payments offset any amounts due under the commission's order, and the continuing payments will offset against any additional amounts due the applicant, including continuing medical expenses.

Given all the above considerations, including the unknowns with respect to the amount of medical expense the applicant has incurred to date and continues to incur, with respect to the amounts of attorney fees and costs, and with respect to the possible social security offset under Wis. Stat. § 102.44(5), the commission is unable to discern the exact amounts which should be ordered paid at this time. The applicant and his attorney(s) should meet immediately with representatives of the County to resolve these matters. Of course, if there are disagreements concerning the amounts due for medical expense those disagreements may require further hearing before the department. The applicant is burdened with substantial, ongoing medical expenses, and the parties and attorneys should proceed with all reasonable speed to resolve the allocation of payments and offsets due in accordance with the commission's order. Further hearing should be had only as a last resort. In order to make this order appealable, the commission will order Milwaukee County to make payment of $100 to the applicant towards his medical expenses.

Now, therefore, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Milwaukee County shall pay to the applicant as reimbursement for medical expense the sum of One hundred dollars ($100). Additionally, Milwaukee County shall make payment of compensation for temporary total disability, permanent partial disability, and medical expense in accordance with the provisions of this order, and after calculation of the appropriate offsets as contemplated in the above findings. Appropriate attorney fees and costs shall also be paid out of the awards for all compensation, excluding medical expense. Milwaukee County remains liable for all ongoing medical expense attributable to the effects of the 1990 work injury.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed October 21, 2003
gilleda . wpr : 185 : 9   ND § 5.42

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney Richard J. Steinberg
Attorney Mark A. Grady
Attorney Linda D. Kiemele
Attorney Israel Ramon


Appealed to Circuit Court.

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