LESTER W STOFLET, Applicant

RODRIGUEZ CONSTRUCTION, Employer

EMCASCO INSURANCE CO, Insurer

MAYNARD, MONSEN & SONS INC, Employer

ACUITY INSURANCE CO, Insurer

Maynard, Monsen & Sons, Inc. and Acuity Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 2, 2003. Rodriguez Construction and Emcasco Insurance Company, as well as the applicant, submitted answers to the petition. Briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to each of the conceded work injuries of June 22, 1998, and July 31, 2002. This includes the issue of whether there should be apportionment of liability between the two injuries, both with respect to temporary disability up to the date of hearing, and with respect to the permanent disability and medical expense attributable to the surgery of March 11, 2003.

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

Thereafter, the applicant experienced intermittent neck symptoms, as well as headaches and pain radiating down both arms and into his fingers. He did not seek medical treatment because he hoped the symptoms would go away, but instead they worsened. On or about November 3, 1998, he woke up and his neck was so stiff he couldn't move it, so he went to see Dr. Bruce Klink. A cervical MRI performed on November 19, 1998, showed multilevel degenerative disc disease with stenosis at C3 through C6, and a moderate disc bulge at C6-7 with foraminal narrowing secondary to an osteophyte.

Dr. Klink referred the applicant to Dr. James Hackett on November 30, 1998, and Dr. Hackett diagnosed cervical stenosis with degenerative disc disease and evidence of early myelopathy probably precipitated by the injury of June 22, 1998. Dr. Hackett continued conservative treatment including physical therapy. In December 1998, the applicant told the physical therapist that he was having trouble with daily activities including lifting, driving, bending his head down, and lifting his arms over his head. Dr. Hackett referred the applicant to Dr. Thomas Doers on November 19, 1999. Dr. Doers gave the applicant the option of a three-level carpectomy at C4, 5, and 6. The applicant spent some time deciding whether or not to have the surgery. After deciding to have it, Emcasco asserted that his condition was not work-related, and the nonindustrial health insurer asserted that it was. Because nobody would pay for the surgery the applicant did not have it. On March 5, 2001, Dr. Hackett completed a WKC-16-B in which he found that the 1998 work injury had precipitated, aggravated, and accelerated the applicant's preexisting condition beyond normal progression, and assessed 5 percent permanent partial disability of the whole body.

The applicant changed jobs in July 1999, and went to work for Maynard, Monsen & Sons, Inc. (Acuity Insurance). He still drove a truck but made more money and the truck he drove had a better ride to it.

On April 20, 2001, the applicant returned to Dr. Doers with symptoms that had not improved. Dr. Doers indicated that he believed the 1998 work incident had exacerbated the applicant's preexisting cervical condition beyond normal progression, and that there would be permanent disability, but the extent of permanency would depend on whether he had the surgery.

At Emcasco's request, Dr. Stephen Weiss examined the applicant on June 23, 2001. He diagnosed severe cervical stenosis and degenerative disc disease, as well as a contusion of the neck and upper back on June 22, 1998. He opined that the applicant healed from the contusion within a few weeks, and that it did not permanently aggravate the preexisting condition. His opinion is primarily based on the fact that the applicant did not seek medical treatment until November 3, 1998. From that fact Dr. Weiss inferred that the work-related contusion was unrelated to the symptoms of stenosis, and that those symptoms worsened on their own in November of 1998.

On July 31, 2002, the applicant was driving his truck on the interstate when a truck heading in the opposite direction was hit from behind and crossed over the barrier wall to crash into the applicant's truck. This caused injury to his head, neck, shoulders, and upper back. He was treated at a hospital and released that day with a prescription and instructions to see his personal physician. The applicant saw Dr. Klink on August 2, 2002, and was referred back to Dr. Doers on August 9, 2002. Dr. Doers continued conservative treatment which included taking the applicant off of work. He ordered another cervical MRI on August 14, 2002, and the results were nearly identical to the MRI performed on November 19, 1998. Dr. Doers recommended surgery and referred the applicant to Dr. Spencer Block.

Dr. Block first saw the applicant on October 9, 2002. He took a history that included both work incidents, and recommended surgery which he performed on March 11, 2003. It consisted of diskectomies and fusions with insertion of plates at C3 through C7 (four levels). The surgery relieved only some of the applicant's symptoms.

On January 23, 2003, Dr. Block completed a WKC-16-B in which he indicated that both work-related injuries had precipitated, aggravated, and accelerated the applicant's preexisting condition beyond normal progression. However, he gave no opinion as to the percentage of such aggravation attributable to each injury.

Dr. Weiss reexamined the applicant on March 1, 2003, prior to his surgery. He opined that the proposed surgery was reasonable, but that the July 2002 motor vehicle accident was "propelling the need for surgery," and that the June 1998 accident was not causative. In subsequent opinions dated April 4, 2003 and May 9, 2003, Dr. Weiss reiterated his opinion that July 2002 motor vehicle accident contributed to the need for surgery, but that the June 1998 accident did not.

At Acuity's request, Dr. Richard Karr examined and evaluated the applicant on December 26, 2002. In his reports dated December 27, 2002, and February 24, 2003, Dr. Karr diagnosed multilevel degenerative cervical spondylosis with severe spinal stenosis and C4-5 spinal cord myelomalacia. He further opined that both work injuries had aggravated these conditions beyond expected progression, and apportioned responsibility between them for the applicant's then upcoming surgery. He apportioned 90 percent of the work-related causation to the June 1998 work injury, and 10 percent to the July 2002 work injury. Dr. Karr noted that the scope of the ongoing symptoms subsequent to the work injury of June 22, 1998, was sufficient for Dr. Doers to have recommended multilevel decompression/fusion surgery in November 1999 and again in April 2001. On July 8, 2003, Dr. Doers opined in a letter that he agreed with Dr. Karr's opinion apportioning 90 percent causation to the June 1998 work injury and 10 percent to the July 2002 work injury.

The administrative law judge assessed 100 percent liability for the surgery and its consequent temporary disability to the July 2002 injury. He emphasized that the applicant was able to continue driving a truck after the June 1998 injury, but not after the July 2002 injury. He also cited Dr. Block's medical report of February 12, 2003, in which that physician recommended that the applicant undergo surgical intervention as soon as possible, while no physician opined that surgery was "definitely necessary" after the July 2002 injury. Finally, the administrative law judge noted that Dr. Doers recommended a three-level surgery in 1999, but the March 2003 surgery was a four-level procedure.

The medical evidence supports the inference that the applicant sustained a permanent injury to his cervical spine on June 22, 1998. He had no cervical symptoms prior to that injury, but after sustaining it he was never symptom free. In his report dated April 20, 2001, Dr. Doers credibly opined that since the applicant had not healed from the June 1998 injury, there would be a permanent disability from that injury, the extent of which would depend upon whether he underwent surgery. In an interrogative dated December 10, 2002, Dr. Doers was asked whether the applicant's need for surgery was attributable to the July 2002 injury. He responded:

"No, surgery was recommended on his cervical spine prior to MVA of 7/31/02. His symptoms per the patient had increased markedly with the accident."

It is clear from this statement by Dr. Doers, as well from the uncontradicted testimony given by the applicant, that Dr. Doers did recommend surgery prior to the July 2002 injury. As previously noted, the applicant also gave uncontradicted testimony that he did not go ahead with the surgery at that time because neither Emcasco nor his nonindustrial health carrier would agree to pay for it. The credible inference from Dr. Block's opinion, as well as from Dr. Doers' opinion, is that the July 2002 injury further aggravated the applicant's condition beyond normal progression. It substantially contributed to the need for the surgery. However, medical evidence supports the inference that the damage done to the applicant's cervical spine in the June 1998 injury was just as substantial a causative factor as the July 2002 injury for the entire surgery performed on March 11, 2003.

Dr. Karr and Dr. Doers opined that the apportionment for causation should be 90 percent for the 1998 injury and 10 percent for the 2002 injury. Dr. Weiss attributed no causation to the 1998 injury, and Dr. Block attributed causation to both injuries without specifying percentages of causation. Based on the commission's analysis of these medical opinions, as well as the uncontradicted testimony of the applicant concerning the effects of each injury, the commission infers that the two injuries were equally causative of the March 2003 surgery, and of the temporary total disability sustained after that surgery.

The applicant was temporarily totally disabled from July 31, 2002 (exclusive) until the date of hearing on July 29, 2003 (inclusive). Despite his ongoing symptoms, the applicant was able to continue working up until his injury on July 31, 2002. Given that fact, Dr. Weiss' opinion will be accepted to the extent that he attributed no disability to the June 1998 injury through March 10, 2003. However, his opinion that after that date the applicant sustained no disability attributable to the June 1998 injury is rejected, because the commission accepts the other physicians' opinions to the extent that they find the June 1998 injury was also causative of the surgery. Accordingly, through March 10, 2003, Maynard, Monsen/Acuity were solely liable for the applicant's temporary total disability. This was a period of 31 weeks and 5 days at the applicable rate of $647.00 per week for a total of $20,596.17. Acuity previously paid temporary total disability in the amount of $16,123.15, leaving a balance due of $4,473.02. As of March 11, 2003, liability for the applicant's temporary total disability (an additional period of 20 weeks up to the date of hearing) was one-half the responsibility of Maynard/Monsen/Acuity, and one-half the responsibility of Rodriguez Construction/Emcasco. Emcasco's liability is at the applicable 1998 temporary total disability rate of $400.00 per week, for a total of $4,000.00. Acuity's liability is at the applicable 2002 temporary total disability rate of $647.00, for a total of $6,470.00.

A 20 percent attorney's fee shall be subtracted from the outstanding amounts due, and costs in the amount of $440.59 shall be evenly divided and also subtracted from the outstanding amounts due.

Dr. Block credibly opined that the applicant had not reached his healing plateau as of the date of hearing (July 29, 2003), and therefore the order will be left interlocutory.

Based on the commission's determination that the two sets of employers/insurance carriers are equally liable for the March 2003 surgery, when the applicant does reach healing each employer/insurance carrier shall be liable for one-half of the 40 percent minimum permanent partial disability attributable to a four-level fusion procedure (see Wis. Admin. Code § DWD 80.32(11)). Apportionment of liability for any permanent partial disability assessed in excess of that 40 percent figure, if there is any, would be a medical question which has not yet been addressed.

All the medical expenses claimed by the applicant through March 10, 2003, are the responsibility of Rodriguez Construction/Emcasco, and all the medical expenses incurred between March 11, 2003 and the date of hearing are one-half the responsibility of Rodriguez Construction/Emcasco and one-half the responsibility of Maynard, Monsen/Acuity. The billing records submitted by the applicant demonstrate that $1,178.17 in medical expense was incurred from Milwaukee Neurological Institute prior to March 11, 2003, and paid by Primecare. The remainder of the reasonably required medical expenses claimed were incurred on the date of or after the surgery of March 11, 2003. Therefore, the amounts due from Rodriguez Construction/Emcasco are as follows: to Milwaukee Neurological Institute the sum of $1,768.83; to Primecare as reimbursement the sum of $4,444.30; to Acuity as reimbursement for one-half of the $3,038.00 Acuity paid to Advanced Healthcare, S. C., the sum of $1,519.00; to Advanced Healthcare, S. C. the sum of $308.25; to Rossman Physical Therapy the sum of $2,149.50; and to the applicant as one-half of the reimbursement for medical expense due to him the sum of $10.00.

The amounts due from Maynard, Monsen/Acuity are as follows: To Milwaukee Neurological Institute the sum of $1,768.82; to Primecare as reimbursement the sum of $3,266.12; to Advanced Healthcare, S. C. the sum of $308.25; to Rossman Physical Therapy the sum of $2,149.50; and to the applicant as one-half the reimbursement for medical expense due to him the sum of $10.00.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Rodriguez Construction and Emcasco Insurance shall pay to the applicant compensation for temporary total disability in the amount of two thousand nine hundred seventy-nine dollars and seventy-one cents ($2,979.21); and to applicant's attorney, Timothy S. Clark, fees in the amount of eight hundred dollars ($800.00), and costs in the amount of two hundred twenty dollars and thirty cents ($220.30).

Also within 30 days from this date, Maynard, Monsen & Sons, Inc. and Acuity Insurance Company shall pay to the applicant compensation for temporary total disability in the amount of eight thousand five hundred thirty-four dollars and twelve cents ($8,534.12); and to applicant's attorney, Timothy S. Clark fees in the amount of two thousand one hundred eighty-eight dollars and sixty cents ($2,188.60), and costs in the amount of two hundred twenty dollars and twenty-nine cents ($220.29).

Also within 30 days from this date, the respective respondents shall pay the outstanding medical expenses and reimbursements as detailed in the above findings.

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

Dated and mailed February 27, 2004
stoflle . wpr : 185 : 8  ND § 3.43

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission's partial reversal of the administrative law judge's decision was based solely on the commission's differing analysis of the written medical opinions. The commission had no disagreements with the administrative law judge regarding the credibility of the applicant's hearing testimony, and the applicant was the only witness at the hearing.

cc: 
Attorney Timothy S. Clark
Attorney Joseph Berger
Attorney James W. Goonan

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