STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

EMMA STEINHOFF, Applicant

PIGGLY WIGGLY NO 9, Employer

RELIANCE INS CO, Insurer (In Liquidation)

WISCONSIN INSURANCE SECURITY FUND

WORKER'S COMPENSATION DECISION
Claim No. 1995-033813


The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 16, 2003. The applicant 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 a conceded psychological injury in the form of depression, arising out of the injury to the applicant's left index finger which occurred on May 30, 1995.

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 affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is September 19, 1935, began her employment as a deli clerk for the employer in 1990. While cutting meat at work on May 30, 1995, she accidentally punctured the metacarpophalangeal joint of her left index finger with a knife. The wound became infected and the first two of six surgeries were performed on the joint on July 10, 1995, and September 11, 1995. The applicant was then referred to a hand surgeon, Dr. Ronald Stark, who ultimately performed four more surgeries, the second of which involved amputation of the finger. The last two surgeries involved resections of neuromas and a nerve.

Following the amputation performed in the fourth surgery, the applicant returned to her regular employment on a four-hour-per-day basis. On May 13, 1996, she went back to full-time employment, but by October 8, 1996, her symptoms prompted Dr. Stark to take her back off work. There were several subsequent periods during which the applicant temporarily returned to some form of work for the employer, but on September 28, 2000, she submitted her resignation. At that time she was working four hours per day in the employer's bakery department. She indicated that she retired in order to collect her pension, and also indicated that bagging items caused pain in her left hand.

The applicant developed psychological problems as a result of all the medical complications caused by the work injury. She has suffered from a major depression. She received treatment from a number of medical practitioners and received prescriptions for various medications including Prozac, Lithium, and Methadone. Respondents' Dr. Walter Davison saw the applicant in April of 1999, and agreed that she was temporarily totally disabled due to major depression related to the work injury. He suggested a referral to Dr. E. Kaplan, a psychiatrist. Dr. Kaplan administered seven treatments of electro-convulsive therapy (ECT) between August and September of 2000. Initially these treatments had a salutary result, with Dr. Stark writing in a clinic note dated August 25, 2000:

"The patient has undergone electro-convulsive therapy at Columbia Hospital. This has given her dramatic improvement in her depression. In fact, she is no longer clinically depressed at all. The patient is very up-beat, the best I have seen her in years. She is extremely happy. It has reduced the pain in her arm substantially."

Nevertheless, the applicant subsequently experienced some symptoms of depression, and in her testimony at the latest hearing (July 16, 2003) she indicated that she could not even remember feeling better after the ECT. She continues to see Dr. Wess Vogt, a psychiatrist, from whom she continues to receive antidepressant medications. Dr. Vogt completed a WKC-16-B dated January 2, 2001, in which he assessed 60-65 percent permanent partial disability for major depression, and indicated the applicant is unable to return to any substantial, gainful employment. However, treatment notes found in Respondents' Exhibits 3 and 4 from the latest hearing show that the applicant's depression had improved in 2002. On June 11, 2002, Dr. Vogt indicated the applicant's depression appeared to be in remission. On August 6, 2002, Dr. Vogt indicated the applicant was positive and cheerful and her depression was resolved. Subsequent notes indicate some continuing symptoms of depression. The applicant continues to see Dr. Vogt on a monthly basis, and on June 26, 2003, he indicated that he believed she would need to continue this treatment for at least a couple of years. He further indicated that while the applicant has made significant improvement, he believed the stress of returning to work would adversely affect her.

Dr. Michael Jorn, a psychologist, was also heavily involved in the applicant's treatment for her psychological injury. He completed a WKC-16-B with attached narrative dated December 21, 2000, in which he diagnosed major depression and dependency characteristics. He assessed 15 percent permanent partial disability and indicated the applicant was unable to return to gainful employment. Dr. Jorn drafted a letter dated June 30, 2003, in which he indicated that when he last saw the applicant on June 11, 2002, her mood was stable. He did not recommend a return to work given her depression and her age. He expressed concern that if the applicant were to reinjure herself at work she could "relapse" into depression, and that the applicant was in the "retirement phase" of her life anyway.

Dr. Kaplan completed a WKC-16-B dated January 2, 2001, in which he diagnosed severe depression and assessed 90 percent permanent partial disability. He opined that the applicant would not be able to return to gainful employment due to the severity of the depression. In an updated opinion dated June 30, 2003, Dr. Kaplan indicated that the applicant still suffered from depression but it was somewhat better. Nevertheless, he repeated his assessment of 90 percent permanent partial disability and his opinion that she was unable to return to gainful employment.

Dr. Davison reexamined and reevaluated the applicant on June 27, 2003. He indicated that the applicant told him she was completely better after the ECT, but currently she was "going down a little bit." She told him she was active in visiting with her mother and her daughter, who both live close to her, and is active socially with them at church. He noted that her speech was clear and articulate, and that psychological testing he administered had normal results with no evidence of symptomatic depression or anxiety. He diagnosed a major depression disorder in remission and at the same time opined that the applicant had completely recovered. However, he did believe she would require monthly visits to Dr. Vogt for the next two years, and would need to continue her medication.

The applicant's vocational expert, John Birder, found 100 percent loss of earning capacity whether based on the medical reports of Dr. Kaplan, Dr. Jorn, or Dr. Vogt. He found no loss of earning capacity based on Dr. Davison's report. Respondents' vocational expert, Bruce Schuyler, gave the same opinion. However, Schuyler called into question Dr. Vogt's WKC-16-B, given that physician's indication in 2002 that the applicant's depression was in remission and then had resolved.

In consultation with the commission, the administrative law judge indicated that he found the applicant to have been a credible witness. He concluded that the medical opinions and vocational opinion that the applicant submitted established a prima facie case for permanent total disability, which had not been rebutted by the respondents. The commission did not find the applicant to have been an entirely credible witness, and did not find that she had established a prima facie case for permanent total disability.

In Ralph E. Beecher v. LIRC, et al, 2004 WI 88, 273 Wis. 2d 136, 682 N.W2d 29, the court stated:

Balczewski (1) holds that certain basic facts---the claimant's injury, age, education, capacity, and training---may in combination demonstrate an inability to secure continuing, gainful employment such that these basic facts constitute prima facie evidence of another (presumed) fact, namely that the claimant is permanently and totally incapable of earning a living. Ordinarily this is accomplished through expert testimony. The employer may introduce expert evidence in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising. (Emphasis added) Id. at 54.

The claimant must prove the industrial injury and medical aspects of his claim. Id. at 55.

To establish a prima facie case for permanent total disability on an odd-lot basis, a claimant must present, usually by way of expert reports and testimony, evidence demonstrating to the satisfaction of the DWD that the claimant's injury, combined with his age, education, training, and capacity shows that he is unable to secure continuing, gainful employment, putting him into the odd-lot category. (Emphasis added) Id. at 57.

Pursuant to its authority under Wis. Stat. § 102.18(3), and consistent with the Beecher decision, the commission must first determine whether the applicant presented a prima facie case for permanent total disability. If no prima facie case is found, the commission must review all the evidence of record to determine what loss of earning capacity the applicant did sustain as a result of her psychological injury (Wis. Stat. § 102.17(7)). To determine whether a prima facie case has been established, the commission must weigh the expert evidence (basic facts) submitted by the applicant and by the respondents.

Dr. Davison noted that psychological testing had normal results, and that the applicant had "completely recovered" from her depression. However, he also opined that her depression was "in remission," and that she would require psychological counseling for the next two years as well as continuing medication for depression and anxiety. Dr. Vogt indicated on August 6, 2002, that the applicant's depression was resolved, even though he had previously assessed a 65-70 percent permanent partial disability attributable to major depression. Dr. Jorn indicated that on June 11, 2002, the applicant's mood was stable, but expressed concern that a reinjury at work could cause a relapse in the applicant's depression. Even Dr. Kaplan, who arguably gave the most straightforward opinion regarding the issue of permanency, qualified his severe assessment of 90 percent permanent partial disability with a subsequent, ambiguous opinion that the applicant was "somewhat better."

With regard to the applicant's credibility, Dr. Davison recorded the fact that on June 27, 2003, the applicant told him she was "completely better" after her ECT. This is contrary to the applicant's testimony at the hearing held three weeks later on July 16, 2003, to the effect that she could not even remember feeling better after the ECT. This calls into question the applicant's credibility.

All of the medical opinions contain internal inconsistencies, and the commission does not find any of them to be entirely credible. Accepting the credible elements of each opinion, the commission infers that together they describe an individual who sustained a work-related depression that has a permanent functional residual, but that this depression is and has been largely in remission. Her functional limitations allow her to work on a half-time basis. Dr. Jorn's functional assessment of 15 percent permanent partial disability is accepted as credible. Because each vocational opinion is premised on total acceptance or total rejection of particular medical opinions, the vocational opinions are rejected. Based particularly on the commission's assessment of the evidence concerning the nature of the applicant's injury and her functional capacity, it finds that no prima facie case for permanent total disability has been established.

The applicant sustained a serious injury and disability to her left index finger and hand, as well as a permanent psychological injury that must be monitored by the medical practitioners. She was 65 years old when Dr. Jorn assessed 15 percent permanent partial disability attributable to the work-related depression. She completed 12 years of education in her native Germany, and moved to the United States in 1958. In Germany she was employed as a sewing machine operator and carpet loom operator. She was a homemaker for several years after moving to the United States, but subsequently worked at various employments as a waitress, punch press operator, polisher, nurse's aide, convenience store owner/manager, and housekeeping supervisor for a rehabilitation center. She began her employment with the employer (a grocery store) in 1990, where she remained until retiring. The employer accommodated the applicant's half-time, light-duty restrictions by providing her with a half-time position in its bakery. While it is accepted that on occasion she experienced a degree of pain in her left hand/forearm as a result of her duties in the bakery, there is no indication in the record that any physician or psychologist advised her to cease that employment due to her functional limitations. She decided on her own to retire and collect a pension, and additionally collects social security disability benefits. The commission concludes that the applicant could have remained employed in her half-time position with the employer had she chosen to do so. In addition, with her varied vocational background she is capable of performing numerous part-time jobs within her current functional restrictions. After considering all the relevant factors, the commission finds that the applicant sustained a 50 percent loss of earning capacity attributable to her work-related depression.

This amounts to 500 weeks of compensation at the applicable rate of $164.00 per week, for a total of $82,000.00, of which $32,800.00 is accrued as of October 20, 2004. Applicant's attorney is entitled to a 20 percent fee, less an interest credit of $1,748.83, for a present value fee of $14,651.17. The applicant's attorney is also entitled to costs in the amount of $529.53.

Temporary disability was paid up to December 20, 2000, in accordance with the commission's interlocutory order issued in the applicant's case on August 8, 2001. This order was affirmed by the Racine County Circuit Court in a decision issued by Circuit Judge Emmanuel J. Vuvumas on April 30, 2002. No additional temporary disability has been credibly established through the date of hearing on July 16, 2003.

The applicant submitted claims for various medical expenses found at Applicant's Exhibit F. The administrative law judge ordered respondents to make a good faith review of the claims and pay those attributable to either the applicant's hand injury or her depression. Apparently, there was no agreement that all the bills submitted were attributable to one of those compensable injuries. The administrative law judge's order for respondents to pay those bills that it in good faith finds attributable to either of the applicant's injuries, is hereby reiterated. Should disagreement arise concerning the compensability of one or more of these bills, this order remains interlocutory with respect to such disagreement.

The applicant will require additional medical treatment, and may sustain additional disability (temporary and/or permanent) should her psychological condition change. In addition, the record before the commission does not indicate that the issue of the assessment for permanent functional disability attributable to the injury to the applicant's fingers/hand was ever resolved. Accordingly, this order will be left interlocutory with respect to all issues.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

Within 30 days from this date, respondents shall pay to the applicant the sum of twenty-five thousand seven hundred ten dollars and forty-seven cents ($25,710.47); and to applicant's attorney, Richard A. Fortune, fees in the amount of fourteen thousand six hundred fifty-one dollars and seventeen cents ($14,651.17), and costs in the amount of five hundred twenty-nine dollars and fifty-three cents ($529.53).

Additionally, beginning on November 19, 2004, respondents shall pay to the applicant the monthly amount of seven hundred ten dollars and sixty-seven cents ($710.67), until the currently-unaccrued compensation has been paid in the total amount of thirty-nine thousand three hundred sixty dollars ($39,360.00).

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

Dated and mailed October 15, 2004
steinem . wrr : 185 : 8   ND § 5.31

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Richard A. Fortune
Attorney Michael C. Frohman
Attorney James A. Friedman



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Footnotes:

(1)( Back ) Balczewski v. DILHR, 76 Wis. 2d 487, 251 N.W.2d 794 (1977).

 


uploaded 2004/10/18