JEFF GRACE, Applicant
SBC AMERITECH CORP, Employer
NATIONAL UNION FIRE INS CO OF PITTSBURGH, 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed January 11, 2005
graceje . wsd : 101 : 1 ND § 5.15 § 5.49
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant was born in 1961. He is a telephone lineman. On September 2, 2000, he was struck in the head by a tree branch while cutting a tree away from a downed telephone line.
The employer and its insurer (collectively, the respondent) concede a compensable injury causing a herniated cervical disc. The applicant underwent a cervical fusion which was not entirely successful. Even the physician retained by the respondent, Dr. Kagan, opined the applicant is consequently subject to restrictions and probably will be unable to resume full time work.
The ALJ, crediting the restrictions set by the applicant's treating physiatrist, Dr. Hardin, found the applicant permanently and totally disabled. He noted the applicant contacted the Division of Vocational Rehabilitation, and was told he would not be retrained.
The respondent appeals, raising two points: First, that the applicant should have a shoulder surgery according to one treating doctor and will probably need a neck surgery according to another, making it premature to rate permanency at this point. Second, that in any event, the applicant's current restrictions do not make him permanently totally disabled, but only cause a loss of earning capacity of somewhere between 75 and 90 percent.
Regarding the respondent's first argument, the commission concludes that it is not premature to rate permanency for several reasons. First, of course, Dr. Hardin has said the shoulder surgery,(1) even if performed, would not change the applicant's permanent restrictions which are based on his neck problem. No doctor -- including respondent-retained Dr. Kagan -- has said otherwise. Indeed, Dr. Kagan's report states no treatment, including implicitly a shoulder surgery, would be anything but palliative.
Second, the applicant does not want to have the shoulder surgery, at least not now. While an applicant's benefits may be denied to the extent the disability is aggravated, caused or continued by an unreasonable refusal to treat, Wis. Stat. § 102.42(6), that situation is not present here. Wisconsin Stat. § 102.42(6) applies when the refusal to treat is unreasonable, not just when the treatment plan offered is reasonable. Jentsch v. Cramer Coil Transformer, WC hearing no. 1990-000661 (LIRC, March 20, 2001); Booker T. Johnson v. PFT Services, WC claim no. 1998065713 (LIRC, March 29, 2000). Here, given that Dr. Pennington told the applicant the surgery would not help his neck pain and might not even help his shoulder pain, the applicant's decision to delay the surgery until his symptoms worsen is not unreasonable.
Lastly, ALJ Kaiser's order awarding permanent total disability reserves jurisdiction. If the applicant does in fact undergo the surgery, and it in fact renders him able to work, the respondent may file a reverse application asking the department to review the order finding the applicant permanently totally disabled.
Turning to the argument that the applicant is not permanently totally disabled in any event, the ALJ reasonably credited Dr. Hardin's restrictions. Both vocational experts found the applicant permanently totally disabled under Dr. Hardin's restrictions (which, as the doctor testified at the hearing, includes the requirement the applicant be allowed to lie down.) Further, respondent-retained Dr. Kagan has opined that the work injury probably prevents the applicant from returning to work full time. Retraining will not be provided by DVR. On this record, the ALJ reasonably found the applicant is permanently totally disabled on an odd lot basis.
cc:
Attorney Peter Stanford
Attorney Douglas M. Feldman
Appealed to Circuit Court.
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