LANI C FAY, Applicant

EMERSON ELECTRIC CO, Employer

EMERSON ELECTRIC CO, 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, except that it makes the following modifications:

1. Delete the final four paragraphs on page 9 of the ALJ's decision, and substitute:

"Fay is entitled to temporary total disability from July 24, 2002 to December 9, 2002, a period of 19 weeks and four days, at the weekly rate of $315.27 (the rate for renewed TTD under Wis. Stat. § 102.43(7).) The total due in temporary total disability is thus $6,200.39.

"Fay is also entitled to 400 weeks of compensation for permanent partial disability at the weekly rate of $184 (the statutory maximum for injuries in 2000), totaling $73,600. However, as of September 9, 2004, only 168.333 weeks of permanent partial disability compensation totaling $30,973.33 has accrued; 231.667 weeks totaling $42,626.67 remains unaccrued.

"Fay agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the amount beyond that conceded, which in this case is based on the temporary total disability compensation awarded ($6,200.39) and the additional 250 weeks of permanent partial disability compensation ($46,000) awarded beyond the 150 weeks conceded. The future value of the fee thus equals $10,440.07 {0.20 times ($6,200.39 plus $46,000.)} However, as of September 9, 2004, all that has accrued in permanent partial disability beyond the 150 weeks conceded is 18.333 weeks totaling $3,373.72. Adding in the fee attributable to the accrued temporary total disability award, only $1,914.73 in fee {0.20 times ($6,200.39 plus $3,373.27)} has actually accrued. The remainder of the fee ($8,525.34) has not yet accrued and is subject to an interest credit of $1,205.49 for advance payment. The present value of the entire fee, thus is $9,234.58 ($10,440.07 minus $1,205.49.) That amount, plus costs of $887.69 shall be paid to Fay's attorney within 30 days.

"The amount due Fay personally in disability compensation as of September 9, 2004, is $11,248.72. This equals the sum of the temporary total disability awarded ($6,200.39) plus the permanent partial disability compensation accrued to September 9, 2004 ($30,973.33), but less the amount the employer had paid as of the date of the hearing toward its concession of permanent partial disability ($23,122.57), less the accrued attorney fee ($1,914.73), and less the attorney costs ($887.69).

"The amount remaining to be paid to Fay as it accrues after September 9, 2004 is $34,101.33, which equals the unaccrued permanent disability compensation ($42,626.67), less the future value of the fee thereon ($8,525.34). (1)   The remaining amount shall be paid in monthly installments of $797.33."

2. Delete the ALJ's Interlocutory Order and substitute the second, third and fourth paragraphs of the ALJ's decision set out below.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Lani C. Fay, Eleven thousand two hundred forty-eight dollars and seventy-two cents ($11,248.72) in disability compensation.
2. To the applicant's attorney, Terrence J. Bouressa, Nine thousand two hundred thirty-four dollars and fifty-eight cents ($9,234.58) in fees and Eight hundred eighty-seven dollars and sixty-nine cents ($887.69) in costs.
3. To Aurora Algoma Clinic, Two hundred forty-four dollars and eighty-eight cents ($244.88) in medical treatment expense.
4. To BayCare Benchmark Anesthesia, One thousand seven hundred sixty-four dollars ($1,764.00) in medical treatment expense.
5. To BayCare Clinic Consulting Surgeons, Fourteen dollars and forty cents ($14.40) in medical expense.
6. To BayCare Clinic Neurological Surgeons, Thirteen thousand five hundred sixteen dollars and four cents ($13,516.04) in medical expense.
7. To BayCare Clinic Physical Medicine Rehab, One thousand five hundred ninety-seven dollars and forty-four cents ($1,597.44) in medical expense.
8. To BayCare Clinic Radiology, One hundred one dollars and twenty cents ($101.20) in medical expense

Beginning on October 9, 2004, and continuing on the ninth day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred ninety-seven dollars and thirty-three cents ($797.33) per month until the additional amount of Thirty-four thousand one hundred one dollars and thirty- three cents ($34,101.33) has been paid.

Jurisdiction is reserved for future orders and awards as are consistent with this decision.

Dated and mailed August 31, 2004
fayla . wmd : 101 : 9    ND § 5.9  § 5.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The self-insured employer conceded a compensable back injury occurring on March 15, 2000. The employer also conceded permanent partial disability on a "functional" basis at 15 percent to the body as a whole following a fusion surgery done in November 2000 and a second surgery to remove the fusion instrumentation on July 24, 2002. At issue before the ALJ was the nature and extent of disability beyond that conceded, and the employer's liability for medical expenses following a fusion surgery.

The ALJ awarded additional temporary total disability from July 24, 2002 to February 19, 2003. She also found the applicant had sustained permanent partial disability on a "functional" basis at 22 percent compared to permanent partial disability, which she merged into an award for permanent partial disability on a vocational basis at 40 percent. Finally, the ALJ paid medical expenses associated with injections the applicant received post surgery on a diagnosis of facet joint syndrome.

Both parties have filed petitions for review.
 

2. Discussion

a. Overpayment of TTD?

On appeal, the employer asserts the ALJ overpaid temporary total disability. The employer contends its liability for temporary disability should have ended (and the accrual of permanent partial disability should have begun) on December 9, 2002, when the applicant's treating rehabilitation doctor (Merritt) set permanent work restrictions and rated permanent partial disability following the July 2002 surgery to remove the fusion instrumentation.

The commission agrees with the employer on this point. Dr. Merritt is the only treating doctor to give permanent restrictions and a permanent disability rating, and he did so as of December 9, 2002. See exhibits I, J, and K. Dr. Haffar, who was retained by the employer, estimated an end of healing within six weeks of his evaluation in the spring of 2002, though of course this preceded surgery to remove the fusion instrumentation.

The applicant points out that the applicant continued to treat into February 2003 per Dr. Merritt's instructions. That is true. However, Wis. Stat. § 102.42(1) provides that "the obligation to furnish such treatment and appliances shall continue as required to prevent further deterioration in the condition of the employee or to maintain the existing status of such condition whether or not healing is completed." This, of course, means that simply ordering ongoing treatment does not necessarily prevent a doctor from a finding a healing plateau by setting permanent restrictions and rating permanent disability. Thus, while the ALJ found that the applicant's pain symptoms worsened in December 2002 and January 2003, Dr. Guo's December 12, 2002 note supports the conclusion that the applicant had reached a healing plateau in terms of functionality, and that injections he performed thereafter were to provide short term pain relief and to determine what type of treatment would provide longer term pain relief. Exhibit I, December 12, 2002 note of Guo, PLAN point 2. Consequently, the commission amended the ALJ's order to end temporary disability as of December 9, 2002.
 

b. PPD/LOEC; calculation of the award.

The employer also asserts that the ALJ miscalculated the award -- independent of the temporary total disability -- and offers its own calculations. However, the ALJ's award was correctly calculated (assuming the February 19, 2003 end of healing date), and followed a WC Hearing Summary Sheet prepared by the worker's compensation division and the Supplemental Reports on form WKC-13 submitted by the employer. The point is moot, nonetheless, because the commission recalculated the award based on its earlier end of healing date and a longer accrual period through the date of the commission's order.

This leads to issues raised by the applicant on cross-appeal. She contends that the ALJ's award of permanent partial disability at 40 percent is supported by the record only if it is made in addition to her 22 percent award for permanent partial disability on a "functional" basis following her surgeries. The applicant points out that neither of the vocational experts rated permanent partial disability for loss of earning capacity at 40 percent. Rather, the applicant's vocational expert estimated loss of earning capacity at 55 to 65 percent, while the employer's vocational expert rated it at 15 to 20 percent.

However, the ALJ followed the standard practice of merging the 22 percent "functional" rating into the rating for loss of earning capacity to reach a single permanent partial disability award. The supreme court has emphasized that in cases (like this one) of unscheduled disability, there is one award for permanent partial disability based on a consideration of both the functional loss and the loss of earning capacity. (2)    This is generally accomplished by determining the effect of the permanent work restrictions from the injury on the applicant's future earning capacity, rather than basing the award purely on the functional loss.

The applicant suggests, however, that even assuming a "merged" functional and vocational loss award, a 40 percent award for permanent partial disability cannot be sustained as neither expert rates loss of earning capacity at 40 percent. However, the ALJ is not required to issue an "all or nothing" award accepting the opinion of one side's vocational expert in total. Rather, Wis. Stat. § 102.17(7) provides that the reports of vocational experts may be received into evidence, but are to be considered with all the evidence to determine loss of earning capacity, presumably by application of the standards under Wis. Admin. Code § DWD 80.34. The department's interpretative note specifically states that Wis. Stat. § 102.17(7) "gives the department the option of using or not using the testimony or reports of expert witnesses in determining the loss of earning capacity resulting from nonscheduled injuries." DWD Worker's Compensation Act of Wisconsin with Amendments to January 1, 2002 (WKC-1-P (R. 07/2002)), note 89.

In this case, the ALJ explained her deviation from the vocational experts' ratings. In the last paragraph of page eight of her decision, the ALJ explained that given the applicant's age and aptitude, her lack of motivation to obtain suitable vocational retraining must be held against her, but that she nonetheless had permanent restrictions that significantly affected her ability to find work. Thus, the ALJ appropriately weighed the vocational reports in light of the factors in Wis. Admin. Code § DWD 80.34 in assessing the vocational loss at 40 percent.

One last point with respect to the award -- the applicant's attorney asserts fees were not deducted from the temporary disability award. In fact, fees were awarded under the ALJ's calculation -- and are under the commission's -- though of course fees were not paid on the full amount awarded because of the employer's prior concession of 15 percent permanent disability.
 

c. Medical expenses.

The last issue raised by the employer is the payment of medical treatment expense for L4-5 facet syndrome and sacroiliac dysfunction. The employer acknowledges that Dr. Merritt did rate permanent partial disability for the chronic pain/facet joint condition, thus implying he felt it was work-related, but the doctor did not expressly so state. The employer also points out that its medical expert, Dr. Haffar, specifically stated the condition was not work-related. Because the applicant has the burden of proof on all issues, the employer continues, her claim for these treatment expenses must fail.

However, as the ALJ explained in her decision, Dr. Merritt associated the right sacroiliac pain with the applicant's altered gait, and the commission infers the doctor meant the applicant's gait as altered by the recent work injury and surgery. Exhibit I, January 29, 2003 report of Merritt. Further, the doctor who provided some of the injection treatment for the facet joint problem, Danzhu Guo, M.D., stated his impression of

Chronic low back pain secondary to a job-related injury, status post L5-S1 spinal fusion. I believe her current low back pain with the component of facet joint dysfunction above the fusion level as well as the myofascial pain syndrome involves the bilateral spinal muscles.

Exhibit I, December 12, 2002, report of Guo.

This report, together with opinion of Dr. Merritt, sufficiently ties the continuing chronic pain/facet joint problem back to the work injury and resulting fusion surgery, permitting the payment of the challenged medical expenses.

cc:
Attorney Terrence J. Bouressa
Attorney David L. Weber

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(1)( Back ) The award "adds up" as follows: The full amount of the award in temporary total disability ($6,200.39) plus permanent partial disability ($73,600) equals $79,800.39. That amount is distributed as follows: to the applicant immediately $11,248.72 and over time as it accrues $34,101.33; to the applicant's attorney, $9,234.58 in fees and $887.69 in costs; and retained by the insurer, $23,122.57 in compensation previously paid as of the date of the hearing and $1,205.49 as an interest credit.

(2)( Back ) In general, awards for permanent disability in cases of nonschedule injuries must be based on some kind of prediction of impairment of loss of earning capacity. Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d. 522, 528 (1976); Northern States Power Co. v. Industrial Commission, 252 Wis. 70, 76 (1947). The court has stated:

"In a number of cases we have said that a finding of permanent partial disability by the Industrial Commission must be based on a consideration of both factors -- loss of bodily function and loss of earning capacity. Consideration of both factors is necessary to implement the objective of the Worker's Compensation Act, namely `to compensate in some measure injured workmen for loss of wage- earning power sustained in the industry...'" [Citations omitted.]

Pfister & Vogel Tanning Co. v. DILHR, 86 Wis. 2d 522, 527-28 (1979). Similarly, in Balczewski v. ILHR Department, 76 Wis. 2d 487, 492-493 (1977) the court noted that Northern States "traced early decisions under the Workman's Compensation Act stressing the loss of earning capacity as well as the loss of function" and held that "the emphasis in awards for nonschedule injuries was on the future ability to earning a living" -- that is loss of earning capacity.

uploaded 2004/09/08