PAUL FLATLAND, Applicant
VILLAGE OF COLFAX, Employer
WAUSAU UNDERWRITERS INSURANCE COMPANY, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on July 14, 2003. The Village of Colfax and Wausau Underwriters insurance company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to the conceded work injury of May 9, 1996.
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 reverses his Findings and Order. The commission makes the following:
The applicant began medical treatment for this injury and a CT scan performed on May 20, 1996, revealed a bilateral pars defect at L5, a disc protrusion at L3-4, and a bulging disc at L5-S1. The applicant was referred to Dr. James Manz on October 25, 1996, and Dr. Manz diagnosed an aggravation/acceleration beyond normal progression of a preexisting L5-S1 spondylolisthesis with pars defect. Conservative treatment was continued, including injections, but the symptoms persisted. On March 31, 1997, Dr. Manz, with Dr. R.A. Narotzky assisting, performed a bilateral repair of the L5 pars defect using an iliac crest bone graft and including insertion of spinal instrumentation. The surgery had a good result and the applicant was released to his primary treating physician, Dr. Donald Bodeau. On March 30, 1998, Dr. Bodeau assessed 10 percent permanent partial disability and permanent restrictions of maximum 50 lbs. lifting and frequent lifting up to 25 lbs., with limited bending, twisting, etc.
Thereafter, the applicant did well with his back, having returned to restricted work with the employer in July of 1997. However, he experienced soreness in his back about once a month, sometimes with spasms. He had no significant medical treatments for his back between March 1998 and August 1999. He did follow up with Dr. Manz in April of 1999, and indicated that he experienced occasional aching in his back. Also in April of 1999, the applicant resigned his position with the Village to accept a higher-paying job as a civil technician for Cedar Corporation. His back condition was not a consideration in this change of employment.
On September 18, 1999, the applicant was squatting in a manhole measuring about 4 feet in diameter, which was 7 or 8 feet deep. He was using a 4-foot-long shovel that had an 8-by-10-inch blade to push about an inch and one-half of dry sand out of the way in a large pipe, in order to facilitate measurement of the pipe. The shovel blade was less than one-half full. While performing this light task, he experienced severe back and leg pain that was "the same exact pain" as he had experienced in the 1996 work incident. He was able to continue working but went to the emergency room the next day, where the physician prescribed medication and follow-up with Dr. Manz. The applicant saw Dr. Bodeau on September 21, 1999, with "dramatic increase of low back pain." He also saw Dr. Manz, who diagnosed "mechanical low back pain two years status post bilateral L5 pars repair with instrumentation." A myelogram and follow-up CT scan were performed on December 16, 1999, and no significant changes were seen from previous studies, except for progression of degenerative changes at L4-5. Discography performed on January 25, 2000, was indicative of multilevel discogenic disease.
At Cedar Corporation's request, Dr. Richard Lemon examined the applicant on April 18, 2000. He opined that the applicant's chronic low back pain was due to spondylolysis and preexisting multilevel degenerative disc disease. He further opined that the L5 pars repair was solidly fused, and that the injury of September 18, 1999, was a minor and temporary aggravation of the applicant's preexisting multilevel degenerative disc disease.
On May 22, 2000, Dr. Manz performed a surgical exploration of the L5 pars repair and did find it solidly fused. He removed the instrumentation from the site, but this had no significant effect on the applicant's chronic pain, which currently persists. Dr. Lemon evaluated the applicant again on January 31, 2001. He reiterated his opinion that the applicant's chronic low back pain is due to preexisting bilateral L5 spondylolysis and preexisting multilevel degenerative disc disease. His opinions do not specifically address the effect of the 1996 work injury.
On December 19, 2000, Dr. Stephen Endres performed IDET procedures at L3 through L5, but these brought about no significant change in the applicant's condition. On November 22, 2000, Dr. Bodeau completed a WKC-16B in which he assessed an additional 5 percent permanent partial disability attributable to the work injury of September 18, 1999. On June 18, 2001, Dr. Bodeau assessed permanent restrictions of sedentary work with frequent lifting up to 10 lbs. and no repetitive twisting or bending. Dr. Bodeau subsequently changed his opinion regarding causation. In a letter dated September 5, 2002, he recounted his review of additional records and opined that the 1996 work injury was the significant major event accelerating Mr. Flatland's back condition beyond normal progression. He further opined that the 1999 work incident resulted in a temporary aggravation lasting no more than 60 days, and that the applicant's current condition is the natural and probable consequence of the 1996 work injury. Dr. Bodeau cited Dr. William Ford's radiographic review of April 26, 2001, in which no evidence was found of any structural breakage occurring at the time of the 1999 injury. He also cited additional information he had read concerning the mechanics of the 1999 injury, and the severity of the 1996 injury in comparison to the 1999 injury.
The applicant also presented the testimony of Dr. Peter Ihle, who examined the applicant in July of 2002, and testified several days later. Dr. Ihle related a diagnosis of degenerative changes in the lumbar spine, status post pars interarticularis defect repair, with persistent pain. He assessed 20 percent permanent partial disability and attributed the applicant's chronic, ongoing condition to the 1996 work injury. He explained that the 1996 injury was of sufficient force to have caused the underlying spondylolysis/spondylolisthesis to become symptomatic, and to accelerate beyond normal progression. He opined that the 1999 work injury was merely a back strain from which the applicant had healed within 60 days from its occurrence. At one point while under cross- examination, Dr. Ihle answered in the affirmative to a question asking whether the 1999 incident permanently increased the applicant's symptoms. In all his other testimony, Dr. Ihle indicated that the 1999 incident did not permanently change the applicant's preexisting low back condition. When questioned as to whether his testimony was inconsistent, Dr. Ihle simply related the two primary reasons why he believed the applicant's current low back condition was attributable to the effects of the 1996 injury rather than the 1999 injury. He cited the severity of the later injury as compared to the earlier one, and also cited the absence of any changes seen in the results of the objective testing (discograms, myelograms, and CT scans) performed after the 1999 incident.
In a WKC-16-B dated August 28, 2002, Dr. David Florence opined that the 1996 work injury aggravated, accelerated, and precipitated the applicant's preexisting condition beyond normal progression; while the 1999 work injury resulted in a temporary aggravation without structural change. He concluded that the applicant's current condition is the natural and probable consequence of the 1996 injury.
However, in a letter dated May 7, 2003, Dr. Florence opined that the applicant's current disability should be apportioned 80 percent to the 1996 injury and 20 percent to the 1999 injury.
Finally, there are medical opinions from Dr. James Gmeiner, given at the Village of Colfax's request on September 12, 1996, January 12, 1998, and November 27, 2000. In the 1996 report, Dr. Gmeiner diagnosed a work-related lumbosacral sprain/strain with signs of "illness behavior" by the applicant. He opined that the L5 pars defect was chronic in nature and not caused by the work incident. He believed the applicant could return to unrestricted work and had no permanent disability.
In his 1998 report, Dr. Gmeiner described the applicant's back condition as a preexisting pars interarticularis defect and multilevel lumbar degenerative disc disease. He repeated his work-related diagnosis of lumbosacral sprain/strain with no permanent disability. He further opined that the applicant had healed from the work-related injury by August 29, 1996.
In his 2000 report, Dr. Gmeiner opined that the applicant's ongoing symptoms were consistent with the natural manifestation of lumbar degenerative disc disease. He reiterated his diagnosis for the 1996 work injury, and gave the same diagnosis for the 1999 work injury.
Dr. Gmeiner's opinion that the 1996 work injury was nothing more than a temporary lumbosacral sprain/strain is rejected as incredible. That work injury involved a force of 300-or-more pounds pulling against the applicant's back and resulting in extreme, debilitating pain that led to the surgery of March 31, 1997.
As the administrative law judge indicated in his decision, Dr. Bodeau and Dr. Florence changed their medical opinions, and Dr. Ihle's testimony could be interpreted as inconsistent. However, Dr. Bodeau and Dr. Ihle do explain their reasons for ultimately opining that both of the applicant's surgeries, and all his permanent disability, are attributable to the 1996 work injury. The commission finds these ultimate medical opinions to be credible. The commission makes this finding despite the fact that Dr. Bodeau changed his opinion, and despite the fact that Dr. Ihle answered "yes" to the question on cross-examination asking whether the 1999 incident permanently increased the applicant's symptoms. The commission infers that Dr. Ihle misunderstood what he was being asked on cross- examination. He believed the reference to the increase of symptoms occurring at the time of the "1999 incident" was in reference to the permanent effects of the 1996 work injury. The questioning just prior to his answer had been with respect to the applicant's permanent, preexisting condition, rather than with respect to the 1999 injury. It is inferred that Dr. Ihle perceived his answer as a continuing response to questioning concerning the effects of the 1996 injury, which he believed were manifested in the 1999 incident. It is unmistakably clear from Dr. Ihle's full testimony that he never believed the 1999 injury caused a permanent residual. Rather, his testimony leaves no doubt that he considered the applicant's surgeries and permanent disability to be solely attributable to the 1996 work injury. The commission finds this medical conclusion to be credible.
The administrative law judge indicated that one reason he found Dr. Ihle's opinion incredible was that Dr. Ihle could not point to anything in the clinical records supporting his opinion that the applicant recovered from the 1999 incident within 60 days from its occurrence. However, it is undisputed that the applicant's low back symptoms did not resolve subsequent to September 18, 1999. The question is whether that irresolution, leading to the surgery of May 22, 2000, was attributable to the effects of the 1999 injury or to the effects of 1996 work injury and 1997 surgery. In a clinic note dated November 16, 1999, Dr. Bodeau recorded that the applicant had continuing low back pain which Dr. Bodeau indicated was "status post prior pars repair." The credible inference from this record is that even at this early date Dr. Bodeau attributed the applicant's ongoing low back condition to the effects of the 1996 work injury and 1997 surgery. Dr. Bodeau and Dr. Ihle both estimated that the temporary effects of the 1999 injury should have resolved within 60 days of its occurrence. Obviously, both physicians were estimating the duration of the effects of this temporary injury, and the commission has seen this 60-day-recovery estimation in literally thousands of cases involving temporary back injuries. Ultimately, both Dr. Ihle and Dr. Bodeau attributed the persistence of the applicant's back condition to the effects of the 1996 work injury and resulting surgery.
The change in Dr. Bodeau's medical opinion was simply a change of mind based upon additional medical information and analysis. Dr. Bodeau explained the reasons why he changed his opinion concerning causation, and the commission found these reasons credible. The 1996 work injury was a severe injury resulting in major surgery at the L5 level. Although the applicant had good results from that surgery, he continued to experience intermittent symptoms until again encountering "the same exact pain" at that same vertebral level in 1999. This led to resurgery at the L5 level for removal of the instrumentation placed there in the 1997 surgery. Given the permanent residuals from the 1996 injury and 1997 surgery, and the location and nature of the applicant's symptoms in 1999, the credible inference is that the 1996 injury was causative of his May 2000 surgery and of all his permanent disability. It is not credible that the benign activity the applicant was involved in on September 18, 1999, was causative of any permanent injury.
The applicant's claim for additional temporary total disability, attributable to the 1996 work injury, is allowed. This is for the period between December 14, 2000, and June 20, 2001, a period of exactly 27 weeks, at the applicable rate of $265.77, (1) for a total of $9875.79. A 20 percent attorney's fee and costs of $4321.40 are due against this compensation.
The applicant has additionally claimed permanent total disability as of June 20, 2001. Vocational reports were submitted from both the applicant and the respondent, but the administrative law judge made no findings regarding the conclusions in those reports because his decision focused on causation. Given the amount of time which has elapsed from the last hearing on April 1, 2003, and the fact that the department's decision did not address the issue of loss of earning capacity/permanent total disability, the commission will remand the matter to the department for resolution of this issue. Of course, the department's decision will be subject to the normal appeal rights. The discretionary decision to remand regarding this issue is made in part because four limited compromise agreements were issued relative to the 1996 work injury, but copies of those compromise agreements are not in the record before the commission. Thus, the record does not clarify whether the terms of any of these agreements might impact on the issue of loss of earning capacity.
Claims for medical expenses and reimbursements were submitted in Applicant's Exhibit F, but the administrative law judge indicated in the introduction to his decision that these amounts were to be reduced by the amounts in Applicant's Exhibits J and K. It is unclear to the commission what amounts listed in Exhibits J and K should reduce those claimed in Exhibit F. Accordingly, the applicant should immediately resubmit his claim for medical expenses and reimbursements to the respondents with clarification of the exact amounts due. Respondents shall thereafter make immediate payment, subject to any reasonable defense.
NOW, THEREFORE, this
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant as compensation for temporary total disability the sum of Three thousand five hundred seventy-nine dollars and twenty-three cents ($3579.23); and to applicant's attorney, Jeffrey Klemp fees in the amount of One thousand nine hundred seventy-five dollars and sixteen cents ($1975.16), and costs in the amount of Four thousand three hundred and twenty-one dollars and forty cents ($4321.40).
The matter is remanded to the department for additional proceedings as detailed in the above findings.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed June 30, 2004
flatlpa . wsd : 185 : 3 ND § 3.38
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
The commission was unpersuaded by the fact that Dr. Bodeau met with the applicant's attorney the day before changing his opinion. There is certainly no prohibition against meetings between attorneys and physicians involved in the same worker's compensation case. This even includes meetings between treating physicians and respondents' attorneys and vice versa. It is to be expected that contested legal issues will be discussed during such meetings. It is evident that physicians often require guidance concerning the interpretation and the application of the law to a particular case, just as attorneys and fact finders require guidance concerning medical diagnosis and causation in virtually every case. Wisconsin's worker's compensation system encourages the free flow of information and opinions in the adjudicative process. It relies upon the integrity of the participants, as well as the experience and discernment of administrative law judges and the commission in resolving controversies. With those considerations in mind, the commission did not draw the negative inferences alluded to by the administrative law judge in his decision, concerning the meeting between doctor Dr. Bodeau and the applicant's attorney.
Essentially the same considerations apply to the administrative law judge's negative inference that Dr. Florence and Dr. Bodeau became aware of the fact that the applicant had settled his claim against the 1999 employer and insurance carrier, and that this knowledge allegedly caused them to change their opinions regarding causation. Both physicians did change their opinion, although Dr. Florence's opinion of causation went from uncertainty, to attribution of all permanency to the 1996 injury and 1997 surgery, to an apportionment which assigned 20 percent of the disability to the 1999 work injury. Therefore, Dr. Florence's opinion did not evince an evolving attempt to shift liability away from the 1999 incident. As previously noted, Dr. Bodeau credibly explained the reasons for his change of opinion. In addition, the commission does not believe that a physician of his stature would alter his medical opinion simply to facilitate a larger recovery by the applicant.
David B. Falstad, Commissioner (Dissenting):
I respectfully dissent from the majority's findings in this case. I would adopt the administrative law judge's findings in their entirety. The applicant bears the burden of presenting a credible case for recovery, and the opinions of the physicians attributing causation to the 1996 work injury are so inconsistent and self-contradictory as to be incredible. The applicant's low back condition changed dramatically and permanently with the work injury of September 18, 1999, as initially acknowledged by Dr. Bodeau, and as conceded by Dr. Ilhe on cross-examination. There was no identifiable point at which the effects of the 1999 work injury allegedly disappeared, and the effects of 1996 work injury allegedly took over. As found by the administrative law judge, the medical evidence submitted by the applicant did not reach the level of being credible and substantial, and therefore he failed to carry his burden of demonstrating that his permanent disability was attributable to the 1996 work injury.
__________________________________________
/s/
David B. Falstad, Commissioner
cc:
Attorney Jeffrey J. Klemp
Attorney Kevin M. McDonald
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