LAWRENCE JENSEN, Applicant

DOMINOS PIZZA, Employer

SOCIETY INSURANCE, Insurer

Dominos Pizza, Venture Insurance, and Society Insurance together submitted a petition for commission review alleging error in the Administrative Law Judge's Findings and Interlocutory Order issued in this matter on October 8, 2003. Dominos and Society Insurance concede a work-related injury sustained in an automobile accident occurring on July 6, 1999, but contest the nature and extent of disability, as well as liability for certain medical expenses, which the applicant has claimed are attributable to that injury. Dominos and Venture Insurance deny that any compensable injury occurred in the robbery incident of September 19, 1997, while the applicant claims a psychological injury attributable in part to that incident.

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 her Findings and Interlocutory Order. The commission makes the following:

The applicant, whose birth date is May 30, 1954, was employed as a delivery driver and prep work person for the employer, Domino's Pizza. On September 19, 1997, he and his supervisor were closing up when three men entered the store and robbed them. The robbers were armed and made the employee and the supervisor get down on the floor, where they duct taped their hands. The employee was terrified because a gun was pointed directly at him. The applicant and the supervisor were left unharmed and the applicant continued to work for Domino's. He had a preexisting history of personality disorder, adjustment disorder, and depression for which he had previously received psychiatric treatment including medication.

The applicant saw physicians on a number of occasions after the robbery. However, he did not mention the robbery to any of them until February 24, 2000, when he told his psychiatrist, Dr. Bruce Rhoades, that the incident was one of the things making him anxious. On February 24, 2000, Dr. Rhoades diagnosed post- traumatic stress disorder and panic disorder with agoraphobia. On April 24, 2000, Dr. Rhoades diagnosed panic disorder with agoraphobia and major depression. Some subsequent diagnostic summaries given by Dr. Rhoades include post-traumatic stress disorder, others do not. On June 5, 2000, Dr. Rhoades indicated that the applicant "may" have experienced physical abuse from his older brothers when he was a child, and that "maybe" he had been sexually abused by someone outside his family. Other than these references, Dr. Rhoades' records do not discuss the applicant's pre-injury psychiatric history.

On July 6, 1999, the applicant was delivering pizza when he was involved in a serious motor vehicle accident that fractured his left acetabulum (hip socket) and pelvis. The accident also caused aggravation of a preexisting low back condition. The applicant underwent open reduction/internal fixation of the acetabulum and was on bed rest for eight weeks followed by physical therapy. He was assessed 10 percent permanent partial disability at the left hip, and 2 percent permanent partial disability for the low back problem. He now uses a cane. The employer thereafter took him back to work on a half-time, restricted duty basis. However, the employer discharged him in January 2000, because he was late for work after having been warned about leaving work early. He has not found new work and is receiving social security disability.

One of the applicant's primary treating physicians was Dr. Joseph Hebl, a physical medicine and rehabilitation specialist. Dr. Hebl gave various diagnoses including status post pelvic and left acetabular fracture, depression and anxiety, personality disorder, panic disorder, chronic pain syndrome, low back pain, diabetes, and mild neurocognitive disorder. In his WKC-16-B dated April 25, 2002, and in a clinic note dated April 19, 2002, Dr. Hebl added a diagnosis of post-traumatic stress disorder. In his other diagnostic assessments Dr. Hebl did not include post- traumatic stress disorder. On April 19, 2002, Dr. Hebl assessed 60 percent permanent partial disability, which he broke down as 24 percent attributable to psychiatric residual from the motor vehicle accident, 10 percent attributable to the left acetabular fracture, and 5 percent for low back pain. He did not specifically account for the other 21 percent, but indicated he would draft a separate note regarding the impact of the robbery on the applicant's condition.

On July 31, 2002, Dr. Hebl broke down the 60 percent permanent partial disability as 24 percent attributable to the robbery, 24 percent attributable to the motor vehicle accident, and 12 percent attributable to the applicant's preexisting depression.

On September 26, 2000, Dr. Rhoades wrote a letter indicating that the applicant's "emotional problems," which Dr. Rhoades described as "panic attacks and depression," were related to the stress of the hold up rather than the auto accident. On August 5, 2002, Dr. Rhoades, assigned 60-70 percent permanent partial disability attributable to the effects of the 1997 robbery, and 30-40 percent attributable to the effects of the 1999 motor vehicle accident.

At respondents' request Dr. Donald Feinsilver, a psychiatrist, examined the applicant on March 14, 2003. He diagnosed depressive disorder, anxiety disorder, history of childhood conduct disorder, personality disorder, history of fractured left acetabulum and pelvis, history of low back pain, and personal stressors such as interpersonal relationships and economic problems. He opined that the applicant has suffered from depression virtually all of his life, but that his principal diagnosis was personality disorder (referring to the way the applicant perceives himself and others, his control of emotions and impulses, and his ability to deal with interpersonal relationships). Dr. Feinsilver opined that the applicant's personality disorder predisposed him to problems with anxiety and depression. Dr. Feinsilver also opined that the applicant recovered from the 1997 robbery and was not suffering from post-traumatic stress disorder. However, he further opined that the physical discomfort from the 1999 motor vehicle accident had impacted the applicant's psychological condition, and he assigned a 3 to 5 percent permanent partial disability to this impact.

Applicant's vocational expert, Jeanne Krizan, completed a report dated April 15, 2003. She found permanent total disability based on either the opinion of Dr. Rhoades or the opinion of Dr. Hebl. Her report was issued prior to the issuance of Dr. Feinsilver's report. Respondents' vocational expert, Jay Smith, completed a report dated May 2, 2003. He agreed that accepting the opinion of Dr. Rhoades or the opinion of Dr. Hebl, the applicant is permanently totally disabled. Smith recounted Dr. Feinsilver's opinion, but did not address the question of what loss of earning capacity would be if one accepted that opinion. Venture Insurance was on the risk for the 1997 robbery and Society Insurance was on the risk for the 1999 motor vehicle accident.

The commission agreed with the administrative law judge that the applicant is permanently and totally disabled. However, the commission bases this finding on the opinion of Dr. Feinsilver concerning the nature of the applicant's injuries, together with its own analysis of the other basic facts including the applicant's age, education, capacity, and training. The commission agrees with Dr. Feinsilver that the diagnosis of a post-traumatic stress disorder attributable to the 1997 robbery is not credible. The applicant did not mention the incident to a medical practitioner until 29 months after it occurred. During that 29-month interim he told a physician he had sought counseling due to emotional problems related to his relationship with his girlfriend, and also discussed unresolved conflicts concerning his childhood relationship with his deceased father. However, there is no record of him mentioning the robbery. Neither Dr. Rhoades nor Dr. Hebl consistently gave
post-traumatic stress disorder as a diagnosis, nor did either physician describe the symptoms that presumably led them to make this occasional diagnosis.

Dr. Feinsilver credibly acknowledged that the effects of the 1999 motor vehicle accident had a permanent effect on the applicant's preexisting depression, anxiety, and personality disorder. The permanent physical effects of that accident are undisputed. The applicant was 46 years old as of May 30, 2000. He attended school through the 11th grade, having been held back for three years in earlier grades. He obtained a high school equivalency diploma from a technical college in 1989. He performed construction work for his father's business until his father died in 1979. His subsequent employments included unskilled labor at a meat plant and in a county forestry program, taxicab driver, security guard, and factory worker. He began his employment with the employer in June 1997. The employer discharged him on an unspecified date, apparently in April 2000, due to attendance issues. He has not worked since that discharge. The employer had modified the applicant's duties in order accommodate his restrictions for a half-time position.

The commission infers from all the evidence that when the applicant lost his job with the employer, a job the employer had structured to accommodate his restrictions, he became permanently and totally disabled. The 1999 motor vehicle accident caused substantial physical disability as well as permanent aggravation of his severe depression, anxiety, and personality disorder. Together with the other basic facts outlined above, the commission infers that he is unable to perform employment services other than those that are so limited in quality, dependability, and quantity that a reasonably stable market for them does not exist. The commission further finds that Dr. Hebl's and Dr. Rhoades' attempts to apportion the liability for the applicant's current condition between the effects of the 1997 robbery and the 1999 motor vehicle accident are incredible. Their opinions contain internal inconsistencies with regard to their diagnosis of post-traumatic stress syndrome, and with regard to the asserted apportionment itself. Full liability for the applicant's permanent total disability therefore attaches to Society Insurance, the insurer on the risk for the 1999 motor vehicle accident.

The exact date of the applicant's discharge is not in the record before the commission, thus making it impossible to calculate the exact amount of accrued compensation for permanent total disability. Furthermore, there is a social security offset in this case requiring updated information for calculation. Accordingly, the matter will be remanded to the department for prompt calculation of the compensation due, with accrued compensation beginning on the day the applicant was discharged by the employer. Applicant's counsel shall immediately contact respondents' counsel to determine whether there is agreement regarding that date. Assuming there is agreement, a verbal or written stipulation shall immediately be submitted to the department, so that it may make the calculations. Should there be a disagreement regarding the date of disability, an expedited hearing shall be held concerning that issue.

Reasonably required medical expenses are immediately due as noted below in the Interlocutory Order.

Further medical treatment may be required, and all awards for permanent total disability are made on an interlocutory basis. Jurisdiction shall therefore be reserved.

NOW, THEREFORE, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Dominos Pizza and Society Insurance are liable to the applicant for permanent total disability in accordance with the above findings. The applicant's attorney, Manlio Parroni, is entitled to a 20 percent fee plus costs in the amount of Two thousand seven hundred six dollars and fifty cents ($2,706.50).

Dominos Pizza and Society Insurance shall also pay the following medical expenses: to Clutter Chiropractic, the sum of Four thousand eight hundred seven dollars ($4,807.00); to Midelfort Clinic, the sum of Two thousand eight hundred thirteen dollars ($2,813.00); to Luther Hospital, the sum of Eleven thousand six hundred seventy-two dollars and fifty cents ($11,672.50); to Medical X-ray Consultants, the sum of Twenty-five dollars and eighty cents ($25.80); to Chippewa Falls Fire and Rescue, the sum of Four hundred thirty dollars ($430.00); to Eau Claire Anesthesiologists, the sum of Eighty-two dollars ($82.00); to Chippewa County Human Services, the sum of Two thousand two hundred twenty-six dollars and fourteen cents ($2,226.14); to Marshfield Clinic, the sum of Nine hundred ninety-six dollars and eighty cents ($996.80); to Medical Assistance, the sum of Four thousand four hundred seventy-six dollars and eighty cents ($4,476.90); to General Relief, the sum of One thousand two hundred sixty-one dollars and sixty-eight cents ($1,261.68); to Konsella Drug, Inc., the sum of Twenty-six dollars and thirty-five cents ($26.35); and to the applicant, the sum of Two hundred three dollars and fifty-two cents ($203.52) as out of pocket medical expenses and Two hundred fifty dollars ($250.00) as mileage expense.

The matter is remanded to the department for purposes of calculation, as noted in the above findings. The claim against Venture Insurance is dismissed.

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

Dated and mailed October 27, 2004
jensela . wrr : 185 : 2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission consulted with the administrative law judge regarding her credibility/demeanor impressions of the applicant. She indicated that she believed the applicant's testimony that his psychological problems were worse after the 1997 robbery. The commission inferred that while the robbery was certainly a traumatic event, and had a temporary effect on the applicant's psychological well being, the credible medical evidence did not support a finding of a permanent psychological residual attributable to that incident. The diagnosis of post-traumatic stress disorder was not made on a consistent basis, the applicant did not mention the incident to any medical practitioner for 29 months, and there was no medical description of the specific symptoms of post-traumatic stress disorder. The commission infers that in looking back on the incident, the applicant may genuinely consider the robbery to have permanently affected him on a psychological basis. However, the credible, objective evidence does not support that conclusion.

cc:
Attorney Manlio G. Parroni
Attorney James A. Pelish

Appealed to Circuit Court. Affirmed October 6, 2005. Appealed to the Court of Appeals.

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