ARTHUR JENKINS, Applicant

CASHEN MOVING & STORAGE CO INC, Employer

GENERAL CASUALTY CO OF WISCONSIN, 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, and it has 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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed December 19, 2003
jenkiar . wsd : 175 : 8  ND § 5.46

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review that the administrative law judge erred in determining the applicant suffered a cervical disc herniation in the course of his employment with the employer on October 25, 2001. The employer contends the administrative law judge should have credited the opinion of the applicant's co-worker's, Mr. Corn and Mr. Pietrowiak, who testified that they helped the applicant move a piano on October 25, 2001, and the applicant was not injured in the process of moving the piano. The applicant testified that he and the co-workers were moving a heavy upright piano up a narrow flight of stairs, and the applicant was on the bottom pushing upwards while his co-workers were on the other end of the piano pulling on it with a strap, when the strap broke, and the piano slid down one step and the applicant attempted to use his left shoulder and arm to brace against the piano, when the bottom step broke and the piano moved further down and was pinned against the wall. The applicant testified he felt a pop in the left shoulder girdle proximal to the lateral aspect of his neck and the superior aspect of his upper back. The applicant testified he promptly reported the injury to the employer's secretary.

The administrative law judge appropriately noted that Mr. Pietrowiak and Mr. Corn gave evasive answers and could not recall many pertinent details of the moving process on October 25, 2001. The administrative law judge also noted that the employer's secretary was present at the hearing but was not presented to refute the applicant's testimony or the written statement that she had been informed of the incident on the day it occurred. The applicant's injury report submitted to Aurora Health Center on October 30, 2001, is consistent with his testimony of the nature and onset of his neck pain while moving a piano on October 25, 2001. The administrative law judge who was in a good position to make a determination as to credibility credited the applicant's version. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination.

The applicant's MRI examination following the work incident on October 25, 2001, demonstrated a herniated disc in the cervical spine which had not been present previously. The applicant performed bull work moving furniture and performing heavy lifting for several months for the employer without evidence of neck problems or restrictions or need for treatment. It is true the applicant had a prior history of back injuries, as well as head and neck complaints, following being hit with a tire iron in 1993 and falling down some steps in October 2000. However, following his last treatment with Dr. Mandel in January 2001 the applicant was able to return to work and perform heavy duties without any noticeable problems. It would seem reasonable to expect if the applicant had ongoing problems with a degenerative neck condition prior to the work incident that he would have reported such problems to the employer or sought treatment as he had in the past. The commission finds that based on the applicant's testimony as well as the evidence of the applicant's cervical herniated disc, and the applicant's reported injury to the Aurora Health Center, the evidence was sufficient to establish the applicant suffered a work-related neck injury leading to a cervical disc herniation while attempting to move a piano at work on October 25, 2001.

The employer also contends that the administrative law judge erred in determining that the applicant continued to be in a healing period and eligible for temporary disability benefits from January 2002 to October 2002. The applicant's MRI in December 2001 showed a central and left paracentral disc herniation at the C4-5 causing mass affect on the cervical spine cord. Dr. Montenegro referred the applicant to Dr. Frazin for his continuing neck and left upper extremity problems. The applicant gave Dr. Frazin a consistent history of injury while moving the piano on October 25, 2001. Upon examination, Dr. Frazin opined the applicant has a significant herniated disc at the C4-5 and to a lesser extent the C5-6, and he believed the applicant should undergo anterior cervical discectomy at the C4-5 level. Dr. Frazin stated in January 2002 the applicant would undergo the surgery when worker's compensation authorized it. The applicant testified that he thereafter did not seek treatment with Dr. Frazin because he did not have the insurance authorization or coverage available to undergo the needed surgery.

The employer contends the applicant's lack of treatment from January 2002 until he gained insurance coverage in October 2002 demonstrated that he reached a healing plateau and was no longer suffering the affects of the work injury. However, it was not established the employer had any work available for the applicant within his continuing restrictions of no lifting over 15 pounds. The applicant credibly testified to his ongoing pain and restrictions as a result of the work injury. Dr. Frazin opined as of January 9, 2002, the applicant was temporarily totally disabled, and he did not lift the applicant's restrictions subsequent to that date. Dr. Frazin noted in October 2002 that the applicant's condition had worsened. Dr. Frazin recommended that the applicant undergo an EMG test prior to determining what procedures would be appropriate at that time in October 2002.

The applicant testified Dr. Frazin's office had contacted him subsequent to his treatment in January 2002, and informed him the worker's compensation insurer did not want to pay for the surgery. The employer points to the fact that it continued to pay temporary total disability benefits through April 2002, but the applicant testified he discontinued treatment because he did not have the necessary coverage to undergo the surgery as recommended by Dr. Frazin. The applicant reiterated on cross-examination that to his understanding the worker's compensation insurer was not going to pay any of his bills after January 2002, and he didn't have money to pay for it himself, and he had been informed by Dr. Frazin that the insurer will not pay for his surgery.

The commission credits the applicant's testimony and finds that the applicant was under the belief that he did not have insurance coverage and the surgery was not authorized in January 2002 or thereafter. Dr. Frazin did not lift his restrictions following January 2002, and noted that the applicant's condition had worsened when he was again seen in October 2002. Based on all of the evidence, including the applicant's testimony and Dr. Frazin's report, the commission finds the applicant continued to be in a healing period, and did not discontinue treatment due to his own volition in January 2002, and therefore was entitled to temporary total disability benefit payments until October 28, 2002.

Finally, the employer and its insurer contend the administrative law judge erred in determining the insurer is liable for payment of the applicant's EMG tests, and any subsequent surgical procedure which may be necessary as a result of the EMG tests pursuant to Wis. Stat. § 102.18(1)(b). Under Wis. Stat. § 102.18(1)(b) the department may include in any interlocutory or final award an order directing the employer and insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the affects of the injury. The footnote to this statutory section indicates that administrative law judge's are now authorized to award payment for necessary medical treatment on a prospective basis given the amendment to the statute effective January 1, 2002.

The employer points to the fact that the applicant's injury occurred on October 25, 2001, and therefore the employer asserts that this new statutory provision does not apply in this case since the statute was not effective until after the applicant's injury. The commission agrees with the administrative law judge that the employer and its insurer had adequate notice that surgery was recommended in this case. Dr. Frazin indicated as early as January 2, 2002, that the applicant was going to require cervical surgery due to his work injury. The insurer had its nurse accompanied the applicant to the appointment with Dr. Frazin at which time he recommended surgery. Further, the employer certainly had adequate foreknowledge to have apprised Dr. Barron that surgery was recommended in this case, and Dr. Barron appears to agree that cervical surgery is reasonable and necessary.

It is true that the applicant's injury occurred prior to the effective date for the change in the law which provides for payment of medical expense on a prospective basis in January 2002. The injury date in this case is in 2001, and the law in effect at that time did not permit prospective orders of medical treatment expense. However, under Wis. Stat. § 102.03(4) the right to compensation and the amount of the compensation shall in all cases be determined in accordance with the provisions of law in effect as of the date of injury, except as to certain employees whose rate of compensation changed as provided in Wis. Stat. § § 102.43(7) and 102.44(1)(5). However, the commission finds that the change to Wis. Stat. § 102.18(1)(b) does not change the right to compensation or the amount of compensation. Reasonable and necessary medical expenses have always been and continue to be compensable. The changes in Wis. Stat. § 102.18(1)(b) merely alter when and how these expenses may be ordered paid. The amendment to Wis. Stat. § 102.18(1)(b) providing for an award for necessary medical treatment on a prospective basis is procedural in character, and does not effect the right to compensation or the amount of compensation in Wis. Stat. § 102.03(4) does not apply. The commission finds that the provisions of Wis. Stat. § 102.18(1)(b) may be applied to the injuries and subsequent medical expenses incurred in this case. Therefore, the commission affirms the administrative law judge's order determining the employer and its insurer are responsible for payment for the applicant's EMG examination, and after reviewing the results of the EMG examination, if Dr. Frazin continues to recommend cervical fusion the employer and its insurer shall pay for the cost of surgery, and any reasonable and necessary associated follow-up treatment.

cc:
Attorney Oyvind Wistrom
Attorney Thomas M. Domer

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