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

GEORGIA HAMBERLIN, Applicant

TOWER AUTOMOTIVE, Employer

LUMBERMENS MUTUAL CAS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-037455


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed November 10, 2004
hamberl . wsd : 101 : 1  ND § 5.31

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The ALJ found the applicant permanently totally disabled on an odd lot basis from an injury at work on July 24, 1998. The employer and its insurer (collectively, the respondent) contend the applicant failed to prove her back problems are from any work injury, that even if injured she sustained only a temporary aggravation of a pre-existing condition, and that in any event she has not proven she is permanently totally disabled on an odd lot basis. The respondent also challenges certain medical expenses paid by the ALJ as beyond the "second choice" of practitioner permitted under Wis. Stat. § 102.42(2).

a. Did applicant sustain an injury arising out of her employment?

The applicant was born in 1950, and began working for the employer in 1974. On Monday, June 22, 1998, she began doing inventory work for the employer. This required her to check the small truck parts for defects, and was within a weight restriction set because of a prior hand injury. When doing the inventory job, the applicant worked with three crates in front of her. One was a crate of uninspected parts. The applicant would reach into that crate, inspect the part, and then throw it into the second crate if it was good, and a third if it was bad.

The crates sat on the floor. They were four feet wide, and 2 or 2½  feet high. The applicant, who is 5'11" tall, had to bend to below the waist to get the uninspected parts when the crate was full. As the crate became empty, naturally, she would have to reach further, eventually almost all the way to the floor. After inspecting each part, the applicant would also have to twist to throw the part in the proper crate.

By Wednesday, June 24, the applicant started having problems with her back. She testified she thought she had just pulled a muscle or was tired, so she worked the next day. She was still having pain, in fact more pain, however. The pain went down her left leg. The applicant testified the pain affected her ability to reach into the crate of inspected parts to do her work. A forklift driver lifted the crate of uninspected parts up on his forklift so she did not have to bend.

The applicant finished out the workday on Friday, apparently using Ibuprofen with no success, and began a two-week vacation. She was in pain over the weekend, and stayed in bed. She testified that

"After X amount of days of laying in that bed and using the furniture to get around with, that's when my husband says, 'Well, you are going to the doctor.' And he took me to the doctor. I  -- - I  -- - I just felt that I could soak, and it would work, but it just didn't work for me this time.

". . . My husband made the statement. I was ready."

Transcript, page 70. She testified, too, that while on vacation, her pain did not get worse, so much as not go away as she expected it would. Transcript, page 71.

On Thursday, July 9, 1998, then, the applicant saw Arthur Mines, M.D., whose note at exhibit O is the center of the causation controversy. He wrote:

"S  --  For about two weeks, she had had back pain after doing some moving of some furniture. She has not done any particular treatments on her back. Similar problems in years past but this has been acute."

According to the applicant, however, she told Dr. Mines that her back started to hurt about the middle of the inventory week; that she had pain in the back and down her leg; and that she told him she had to lean on furniture to move around her home after hurting her back. Transcript, pages 29-30, 72 et seq. The ALJ asked the applicant flatly if she injured herself moving furniture around while she was on vacation, and she denied it. Transcript, page 93.

The respondent argues that Dr. Mines' July 9 note contradicts the applicant's testimony about how she was injured, and gives rise to legitimate doubt on that aspect of her claim. The respondent further points out that the doctor marked a "work status report" dated July 10, 1998 to indicate the applicant did not have a work injury. The respondent also points to an apparent inconsistency between: (1) the applicant's testimony that she received the first "work status report" incorrectly indicating her injury was not work related on July 9 and that she called the doctor's office to have it corrected on July 10, and (2) the facts that the initial "work status report" is dated July 10 not July 9, that notes from Dr. Mines' clinic seem to indicate that the first work status report was not sent until July 10, and that a work status report indicating the applicant had a work injury was not issued until July 16, 1998.

The commission gave relatively little weight to the dispute about when the work status forms were obtained. The essence of the applicant's testimony was that the form was initially marked incorrectly, and she called to obtain a corrected form. While the first work status form is marked to indicate a non-work injury, the July 16 work status form does in fact show a work-related injury. See exhibit O.

Further, the ALJ observed the applicant as she testified under oath, and found her credible. The commission conferred with the ALJ concerning witness credibility and demeanor and, having done so, shares his views regarding credibility. The ALJ emphasized during the credibility conference, as he did in his decision, that the applicant struck him as straightforward and honest, particularly when he asked her pointblank if she injured herself moving furniture.

The commission also observes that Dr. Mines' July 9 note states that the injury occurred "two weeks ago." That, of course, corresponds with the time while the applicant was still working on the inventory and had not yet gone on vacation. Dr. Mines' note also substantiates the fact she delayed in seeking treatment; that is, even under Dr. Mines's note she still waited two weeks before seeking treatment, suggesting she was not treating for a recent off-duty injury.

The commission is satisfied that the applicant, who would been 48 at the time of injury with a history of back problems, hurt her back as she described at the hearing: she felt back pain increasing in severity during the week she was doing repetitive bending to handle the parts to perform an inventory at work. As explained below, while Dr. Karr opined that the work exposure was benign, Dr. Cain's contrary opinion is more credible. The applicant sustained an injury arising out of her employment, while performing services growing out of and incidental to that employment.

b. Nature of disability.

After her injury, the applicant treated with a number of doctors and eventually saw Nileshkumar Patel, M.D., who performed intradiscal electrothermal therapy (disc annuloplasty) at L3-4 and L4-5, on November 30, 1998. The procedure was not successful, and the applicant underwent continued testing and a rehabilitation program in 1999.

The applicant also treated with James E. Cain, M.D. On September 2, 1999, Dr. Cain performed an L4 bilateral hemilaminectomy, a partial medial foraminotomy, a left sided L4-5 discectomy, and L4-5 fusion with instrumentation. In August 2000, Dr. Cain opined the applicant's fusion had fully matured, and he rated an end of healing with permanent partial disability at ten percent for a one level fusion.

However, the applicant's pain continued, as noted by Dr. Cain in February 2001. This led to further testing and a second surgical procedure, an anterior fusion at L4-5 on June 7, 2001. Dr. Cain opined the applicant reached an end of healing from the second procedure on February 20, 2002.

Dr. Cain signed several practitioner's reports, the most recent of which is exhibit D dated March 13, 2002. This report refers back to attached treatment notes for the accident or work exposure to which the applicant attributed her condition, and Dr. Cain's July 13, 1999 note states:

"She injured her back at work on July 24, 1998. She reports that she was working inventory and this required a lot of repetitive bending and lifting."

Dr. Cain's opinion as stated in the March 2002 practitioner's report was that the work injury of June 24, 1998, precipitated, aggravated, and accelerated beyond normal progression a progressively deteriorating or degenerative condition. He estimated permanent partial disability at 20 percent, and attached his February 20, 2002 "return to work" authorization which allowed no more than 10 pounds lifting/pushing/pulling, required alternate sitting and standing, and permitted no repetitive bending, stooping or climbing. He also attached a functional capacity evaluation dated March 13, 2002, which allowed occasional lifting and carrying up to 10 pounds, and indicates the applicant could only occasionally bend, squat, crawl, climb or reach.

The respondent, for its part, relies on the reports of Richard Karr, M.D. In his first report, from April 2000 (exhibit 4), Dr. Karr diagnosed L3-4 and L4-5 degenerative lumbar disc disease and chronic low back pain, predating the work injury. He felt that a lumbar strain or sprain occurred in late June 1998 -- causing no structural injury -- resulted in a temporary aggravation of the degenerative condition. On this point he noted the objective testing done after the work injury initially was benign, showing mild degenerative disc disease and minimal left side bulging. However, Dr. Karr also noted a contradiction between the claimed injury of June 1998 with bending, lifting and twisting to inspect parts, and Dr. Mines' initial history of an injury moving furniture. As a result, Dr. Karr declined "to state work relatedness to a reasonable degree of medical probability." Exhibit 4, page 14.

Dr. Karr went on to opine that the applicant's surgeries and subsequent treatment were not necessary to cure and relieve the effects of the sprain injury of June 1998. He suggested her current diagnosis was post fusion syndrome, for which he rated permanent partial disability at 10 percent. While he opined that her June 1998 strain injury, work related or not, would only have caused a temporary aggravation of her underlying condition from which he expected a return to preinjury capacity (exhibit 4, page 15), he also opined that permanent partial disability at 2 percent would be appropriate for the sprain or strain suffered in June 1998, with a plateau of healing being reached on or about June 1999 (exhibit 4, page 16.)

In a follow-up report from March 4, 2002, Dr. Karr reported that none of the applicant's current residual complaints were related to her work exposure on or about June 24, 1998. He explained his position on causation noting that the applicant did not report a work injury to the employer when it happened; that the workplace exposure was "benign" involving lifting five-pound pieces regularly; the absence of any structural injury; and the fact she did not improve with significant treatment. He noted she presented herself as totally disabled, despite the fact she had a one level fusion that was solid.

Dr. Karr also opined that future treatment should focus on narcotic detoxification and improving fitness. He felt she had plateaued from the second surgery in June 2001 with a twenty-percent permanent partial disability. He set restrictions given the normal progression of her underlying degenerative disc disease and surgery which permitted:

The commission cannot credit Dr. Karr's opinion that the work exposure caused at most a temporary aggravation of an underlying condition. The amount of lifting involved in the inventory job may have been relatively light, but repetitive bending at the waist was required. Further, while the applicant had had prior back treatment for back strain (multiple visits in 1989 and single visits in 1991 and 1995), these were insignificant in comparison to her extensive course of diagnostic testing and treatment, including operative treatment, following the work injury. See exhibit 4, pages 2 and 3, compared with pages 3 through 12. Based on this record, the ALJ properly credited the opinion of Dr. Cain regarding the permanent nature of the applicant's disability from her work injury, and reasonably adopted Dr. Cain's permanent work restrictions for the purposes of the vocational analysis.

c. Loss of earning capacity.

On the vocational issues, the applicant relies on the report of Joan Tompsett. See exhibit S. She noted Dr. Cain's restrictions to sedentary work, including: the ten- pound lifting, carrying, pushing, pulling and carrying restrictions; the requirement of alternate sitting and standing; and the restriction against more than occasional bending, squatting, crawling, climbing, and reaching. Ms. Tompsett noted, too, the applicant's previous permanent restrictions due to carpal tunnel syndrome, which included no sustained repetitive motion -- including writing -- more than 15 minutes with both hands.

Ms. Tompsett concluded that considering both the carpal tunnel restrictions and Dr. Cain's restrictions, the applicant "would be capable of so few jobs which would be limited in quality, dependability, and quantity that a reasonably stable labor market does not exist for these jobs" and that therefore under odd lot doctrine, the applicant would be permanently totally disabled from a vocational perspective.

Because Dr. Karr declined to opine the injury arose out of employment, Ms. Tompsett observed, his report did not support any award for loss of earning capacity. Ms. Tompsett did not offer an opinion on Dr. Karr's restrictions, regardless of causation.

The respondent offers the report of Leanne Panizich. She identified a number of vocational alternatives in view of her transferable skills and the restrictions set by either Dr. Cain or Dr. Karr. She then evaluated the availability of these alternatives by a labor market survey and actual contact with potential employers, and identified positions including: driver/chauffeur, caregiver, executive sales, sales specialist, inside sales, night auditor, customer service, sales associate-admissions, customer service operator, teller, customer service representative, and customer service.

Ms. Panizich noted the applicant would be able to do the various clerical positions she listed despite the restriction against sustained repetitive motion (including writing) longer than 15 minutes with both hands. She explained:

The restrictions concerning use of upper extremities do not preclude involvement in all types of clerical work activities. She simply has to pursue positions that will not involve sustained activity such as writing, keyboarding, etc., exceeding more than 15 minutes at one time.

Ms. Panizich went on to rate loss of earning capacity at 20 to 30 percent, though this rating is based on the "dislocated worker theory" due to layoffs which occurred in the last few years at Tower Automotive because of production changes and economic forces. (This is based on a statement in Ms. Panizich's report that Tower Automotive has laid off workers -- apparently permanently -- with 1971 seniority dates. Exhibit 7, page 4.)

Disregarding the displaced worker analysis, Ms. Panizich rated a 60 to 70 percent loss of earning capacity under the restrictions of either Dr. Cain or Dr. Karr. She, too, pointed out that under Dr. Karr's opinion on causation, there would be no award.

Finally, Ms. Panizich testified at the hearing regarding the jobs listed above, and what they meant. She stated:

The way labor market surveys are done in my office is that I give information concerning restrictions to an employee that's dedicated to doing labor market survey analyses. He knows the qualifications of the individual and the restrictions that I outline in meeting with him.

He subsequently makes contacts with employers and discusses the sets of the restrictions and provides me with a survey that says whether or not the employer said the restrictions are consistent with various positions, prescribed sets of restrictions.

I then take that data, look at that data along with the results of any testing and interview and then I make the final determination as to whether or not a position is consistent with the injured worker's residual capabilities.

[Q. You list various jobs and a wage. Is it your testimony that those were actual jobs which existed?]

Those are jobs that existed and were identified as being consistent with restrictions at the time the survey was performed.

Transcript, pages 96 to 98.

The ALJ credited Ms. Tompsett's report and found the applicant to be permanently totally disabled. The respondent argues first that the applicant did not make her prima facie case of odd lot employability, and that if she did, the respondent rebutted it.

Under the "odd-lot" rule, when a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id.

The supreme court has recently reiterated its adherence to the odd lot doctrine in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29. In Beecher, the court made three points quite clearly. First, the commission cannot require a worker to show evidence of a job search or efforts to find work as part of the prima facie case. Id., at ¶¶ 44, 48, 57, 58. Second, the court analogizes the odd lot rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption the worker is permanently totally disabled arises. Id., at ¶¶ 53, 54.   Third, once the presumption arises, in rebutting the presumption the employer bears a burden of persuasion on the issue of whether the worker is in fact employable and that jobs do exist for him or her. Id., at 55.

In this case, the respondent argues the applicant has not made her prima facie case because (1) her expert, Tompsett, did not provide statistical support for his conclusion there was no work within the applicant's restrictions; and (2) Ms. Tompsett relies on the restrictions from the carpal tunnel condition, but Dr. Cain did not reaffirm those restrictions when he set out work restrictions following her final back surgery.

The commission is not persuaded that, simply because Dr. Cain did not reaffirm the carpal tunnel restrictions when he set the restrictions for the back injury, the carpal tunnel restrictions disappear from the analysis. Both labor market experts, even Ms. Panizich, considered the carpal tunnel restrictions. Consideration of both sets of restrictions is appropriate under Mireles v. LIRC, 2000 WI 96, 71, 237 Wis. 2d 69, 97-98.

Regarding the lack of statistical support, an expert is generally not required to disclose the underlying facts supporting his opinion for that opinion to be admissible and competent. See Wis. Stat. § 907.05. (1)    An opposing party may inquire into that basis on cross-examination, but Ms. Tompsett did not testify. In other words, statistical support does not appear to be a legal necessity, though it may be a factor going to the comparative persuasiveness of the expert's opinion.

In this case, of course, the applicant's claim for permanent total benefits is based not only on the back injury, but on her restrictions for her carpal tunnel injury as well. In total, the applicant is subject to a 10-pound lifting restriction; the requirement that she be able to change positions; restrictions to only occasional bending, squatting, crawling, climbing or reaching; and a prohibition against repetitive hand use. Relevant considerations also include the applicant's age (which at 53 as of the hearing date is becoming a negative vocational factor); her high school education and fifth grade math skills; her relative lack of training; her long-term unskilled factory employment; and (indicative of her capacity) the fact she continues to take Kadian, a morphine derivative, for pain. Transcript, page 50. In sum, the applicant has provided satisfactory evidence that her injury combined with her age, education, training and capacity make her unable to secure continuing, gainful employment, putting her in the odd-lot category. Beecher, at 57.

The commission reaches the same conclusion even after considering Ms. Panizich's opinion "in contradiction of the basic facts of the employee's prima facie case in order to prevent the presumption from arising." Beecher, at 54. Ms. Panizich opines the applicant could find work as a clerk, so long it is clerical work which does not require more than 15 minutes of repetitive hand use. This, the commission cannot credit. The commission is satisfied that the applicant has made her prima facie case under the odd lot doctrine.

Because the applicant made her prima facie case, the burden shifts to the respondent to show that there exists suitable employment for the applicant (Beecher, at 55), that there is an actual job that the applicant can do (id., at 54), or that the applicant "is actually employable and that there are actual jobs available to [her]" (id., 44). In this case, Ms. Panizich's survey shows at most that jobs may be generally available in the open, competitive labor market that do not violate the applicant's restrictions. However, the survey does not show that work is actually available to the applicant, who at 53 on the date of hearing is a longtime unskilled factory worker with a high school education subject to permanent work restrictions. In other words, giving due weight to Ms. Panizich's survey, and considering the applicant's work restrictions, age, education, and training, the commission is not persuaded that the applicant is actually employable and that there are actual jobs available to her.

d. Medical expense.

The final issue involves whether the applicant's medical treatment expenses were within the two choices of practitioner permitted by Wis. Stat. § 102.42(2) in the absence of pre-approval from the employer or insurer. The parties agree that the applicant's first choice was the Family Plan Clinic doctors (Miner, Teschan, et al.) The parties agree the second choice was Dr. Frank whom the applicant saw for a second opinion. The parties likewise agree that the treatment with Dr. Cusick does not count against the applicant as she was referred to him by the WC insurer's nurse.

The dispute, then, is whether the treatment by Curtis Kommer, M.D. -- which included the referral to treating surgeon Cain by Dr. Kommer's colleague Dr. Gunderson -- was within the two permitted choices. The applicant contends it was, testifying the treatment with Dr. Kommer was on referral from Dr. Swan of the Family Health Clinic after an "insurance change." Transcript, pages 85-86. The respondent asserts the applicant's treatment with Dr. Kommer was a third choice.

Other than the applicant's testimony, there is little direct evidence of a referral by Dr. Swan of the Family Health Clinic to Dr. Kommer or the Glendale Clinic. The record does contain a September 9, 1999 note from Glendale Clinic which documents a telephone call listing the applicant as a new patient, and indicating that she originated the call for an appointment "to see CGK only" about back pain and incontinence. The desire to see a specific doctor supports the idea of a referral.

The respondent, of course, points out that the applicant treated simultaneously at the Family Health Clinic and Glendale Clinic. Indeed, the respondent notes, the applicant saw Dr. Teschan of Family Health as late as May 1999, suggesting it may not have been an insurance change that prompted the applicant to seek treatment with Dr. Kommer. On the other hand, Dr. Wichman (to whom the applicant was referred by Dr. Teschan of Family Health Clinic) does describe Dr. Kommer as her primary care physician in his note of October 24, 1998. See exhibit N. Indeed, in his September 28, 1998 note, Dr. Kommer noted he intended to do a physical, and thereafter treated her for a variety of complaints.

After considering the record, the commission is satisfied the applicant's testimony on this point is credible, and it affirms payment of the disputed treatment expense.


cc:
Attorney Isreal Ramon
Attorney Gary Stanislawski

 

DAVID B. FALSTAD, Commissioner, (dissenting):

I disagree with the majority in this case on causation. According to the applicant, she hurt her back at work doing the inventory and thereafter leaned on furniture to move around at home while on vacation. However, Dr. Mines reported in his July 9, 1998 treatment note that the applicant had back pain after moving furniture and said nothing about a work injury. Further, the doctor marked the initial work status report to indicate the applicant did not report a work injury.

I recognize the presiding ALJ credited the applicant's explanation that Dr. Mines incorrectly recorded her history and also incorrectly the "work status report" to state she did not report a work injury. However, I cannot agree. It seems unlikely to me that Dr. Mines could have confused a statement along the lines of "I hurt so bad after doing an inventory at work that I must lean on furniture to move about" to mean "my pain began after moving furniture."

I am also troubled by the applicant's testimony about how she obtained the work status report which she contends Dr. Mines mismarked to show no work injury. According to the applicant, she got the work status report from Dr. Mines on July 9, but did not read it until July 10 and only then noticed he had incorrectly marked the "not work-related box" leading to the July 10 phone calls documented in the Family Health Plan's record. However, while Dr. Mines's signature on the release is dated July 10, the release lists July 9 as the date of treatment and July 9 as the date of absence. I cannot believe that a doctor filling out a form on July 9 after treatment on July 9 would correctly list the dates of treatment and absence as "July 9" but then erroneously date his signature on the same form as "July 10." Rather, I believe Dr. Mines prepared the report in the first instance -- and indicated her injury was not work related -- only after the applicant called on July 10.

Further, the note documenting the applicant's phone call to Dr. Mines's clinic on July 10 states that the applicant "forgot to ask the doctor for the work excuse," not that she was calling to have him correct a mistake. Additionally, the phone message note indicates that after the applicant's phone calls something was faxed to the employer and mailed to the applicant on July 10. However, whatever was faxed and mailed on July 10 does not appear to have been a "corrected" work status report from Dr. Mines on July 10; no such document is in the file nor was it produced by the applicant. The first work status report to mention a work injury follows a separate occasion of treatment with a different practitioner on July 16.

In short, I am not persuaded that Dr. Mines incorrectly noted on July 9, 1998 that the applicant's back pain started after moving furniture, nor am I persuaded he actually mismarked the first work status report based on what he was told. Therefore, I respectfully dissent.

_________________________
/s/ David B. Falstad, Commissioner



Appealed to Circuit Court. Affirmed July 18, 2005.

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Footnotes:

(1)( Back ) 907.05 Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give the reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

 


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