GARY MARKOWSKI, Applicant

MILWAUKEE FORGE, Employer

SENTRY INSURANCE CO., Insurer

Milwaukee Forge and Sentry Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on March 20, 2003. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is the extent of permanent partial disability due the applicant for two conceded low back injuries, the first occurring on October 10, 1990, and the second occurring on October 20, 1992.

The proceeding before the administrative law judge included a dispute between the applicant on the one hand, and Milwaukee Forge/Transcontinental Insurance on the other, under the claim number of 2000-003501. That dispute has been resolved pursuant to a compromise agreement reached by the parties and approved by the department in an order issued on October 2, 2003. Accordingly, the following order is addressed only to the remaining dispute between the applicant and Milwaukee Forge/Sentry Insurance, under the three, above-referenced claim numbers.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

The applicant sustained a conceded low back injury while working for the employer on October 10, 1990. The injury resulted in an L5-S l laminectomy and discectomy performed by Dr. Harvey Wichman on February 5, 1991. Dr. Wichman assessed 7.5 percent permanent partial disability to the whole body, and this amount was conceded and paid by Sentry Insurance.

On October 20, 1992, the applicant sustained another compensable low back injury in his employment, and this resulted in another surgery, performed this time by Dr. Stephen Robbins on January 28, 1993. The surgery consisted of an L4-5 laminectomy, an L5-S l discectomy, and a two-level fusion from L4 to S l. Dr. Robbins assessed an additional 15 percent permanent partial disability for this surgery, and Sentry Insurance conceded and paid this additional amount, resulting in the total payment of 22.5 percent permanent partial disability for the two surgeries.

The applicant claims that he is entitled to an additional 5 percent under the provisions of Chapter Ind. 80.32(11) of the Wisconsin Administrative Code as it read at the time of the 1992 injury. Acceptance of the applicant's claim would result in a total payment of 27.5 percent permanent partial disability. The administrative code was changed on July 1, 1994, but the applicant concedes that his disability should be calculated under the provisions of the old code, because his date of injury occurred before July 1, 1994. In essence, the applicant's argument is that application of the new code would result in a total award of 27.5 percent permanent partial disability, and application of the old code yields the same result as the new code for individuals in his circumstance. The administrative law judge agreed with the applicant and awarded 20 percent permanent partial disability in addition to the previously conceded 7.5 percent, for a total of 27.5 percent.

Under the new code "removal of disc material" at one level results in a minimum of 5 percent permanent partial disability. Removal of any disc material at one level, with a fusion at that same level, results in a 10 percent minimum. However, under the old code a "laminectomy" at one level results in 5 percent permanent partial disability, and the minimum for a two-level fusion from L4 to S 1 is only 10 percent. The administrative law judge found that the changes made in the new code did not result in any change for the minimum disability percentage allowed for either a laminectomy or a discectomy (5 percent for either procedure). He further reasoned that because the applicant underwent a two-level fusion from L4 to S 1 on January 28, 1993, which included an L4-5 laminectomy, an L5-S1 discectomy, and fusions at both these levels, the applicant was entitled to a minimum of 20 percent permanent partial disability for the entire procedure (10 percent for the laminectomy and fusion at L4-5, and 10 percent for the discectomy and fusion at L5-Sl). However, the old code unambiguously provides a 10 percent minimum for an L4-S1 fusion, and does not award a 5 percent minimum for each element of a fusion procedure as does the new code. The new code's explanatory note makes it clear that every one-level fusion procedure involving a laminectomy or a discectomy now receives a minimum of 10 percent permanent partial disability, and thus a two-level fusion of this type would receive 20 percent. But that is only under the new code. There is nothing in the wording of the old code, or in the case law or the commission's decisions, which supports a minimum percentage of permanent partial disability greater than 10 percent for an L4-S1 fusion caused by an injury occurring before July 1, 1994. (1)

Accordingly, the dispositive issue in this case is not whether the old code provides for a minimum 5 percent permanent partial disability for a discectomy procedure. Rather, it is whether under the old code there is any support for assessing a minimum greater than 10 percent permanent partial disability for an L4-S l fusion. There is no support for such an assessment.

In the applicant's case the only physician assessing permanent partial disability for the 1993 surgery was Dr. Robbins, and his assessment was 15 percent. Therefore, the applicant is entitled to 15 percent permanent functional disability instead of the 10 percent minimum. As previously noted, respondents have conceded and paid this 15 percent due for the 1993 surgery, and therefore no additional permanent functional disability is due for it. The applicant sustained another injury in 2000, when Transcontinental Insurance was on the risk; and as noted in the introduction to this decision, the applicant recently reached a compromise agreement with Milwaukee Forge/Transcontinental that was approved by the department. However, the administrative law judge appropriately left his order interlocutory in the case at hand, because the applicant's condition attributable to the 1990 and/or 1992 injuries may have been ongoing as of the November 2002 hearing date. There could still be unresolved issues stemming from the 1990 and/or 1992 injuries, and therefore the commission's decision will also be interlocutory with respect to those injuries.

NOW, THEREFORE this

The Findings and Interlocutory Order of the administrative law judge are reversed. The application for additional permanent functional disability is dismissed.

Jurisdiction is reserved for such further findings and orders as may be necessary, with respect to the injuries of 1990 and 1992.

Dated and mailed November 25, 2003
markoga3 . wpr : 185 : 8  ND § 5.18

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney Richard A. Fortune
Attorney Thomas M. Rohe
Attorney Mark H. Miller

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(1)( Back ) For an example of a commission decision applying the 10 percent minimum to an L4-Sl fusion procedure performed under the old code rule see Sandra J. Shafer v. Heyde Health. Systems & Security Ins. Co., WC Claim No. 92063715 (LIRC June 6, 1996). 

The applicant's reliance upon Dennis Hellendrung v. Wal-Mart & National. Union Fire Ins. of Pittsburgh, WC Claim No. 1999039147 (LIRC Feb. 23, 2001) is misplaced. That case involved a 1999 date of injury and dealt with an award of cumulative minimum disabilities for cumulative surgeries at Mr. Hellendrung's left knee.

uploaded 2003/12/04