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

RICK KRIEGEL, Applicant

WALL TECH INC, Employer

REGENT INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2002-007121


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 11, 2004. Wall Tech, Inc. and Regent Insurance Company (respondents) submitted an answer to the petition, together with a cross-petition that was one day late (see Wis. Admin. Code Ch. LIRC 1.026). A compensable injury to the applicant's left lower leg was conceded as having occurred on February 1, 2002. In dispute are the nature and extent of disability and liability for medical expense attributable to this injury. Also in dispute is whether the applicant sustained a compensable lower back injury in the same incident.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is November 26, 1961, was employed as a drywaller for the employer when he accidentally stepped off a three-foot-high scaffolding, scraping and bruising his left leg against the scaffolding as he went down. This occurred on February 1, 2002. The applicant cannot recall how he landed on the floor, but he "tried to get up" and could not. A co-worker who was also a paramedic assisted him and put a splint on the leg. The applicant was taken to a hospital emergency room with a complaint of left leg pain, and treated conservatively for a left leg contusion/abrasion. An x-ray of the lower leg revealed no fracture. The applicant alleged that he mentioned low back pain to the nurse, and that she told him it was probably just from the odd way in which he had to lie while waiting to be seen. However, there is no written record of a complaint of back pain in the emergency room.

The applicant saw Dr. Roy Uberoi-Nangia on Monday, February 4, 2002, with a complaint of continuing knee pain. Dr. Uberoi-Nangia diagnosed a left knee sprain and refilled the applicant's prescription for pain medication. The applicant was referred to Dr. Paul Jacobs on February 5, 2002, and he indicated to Dr. Jacobs that together with the knee pain he noticed that "a few days after the incident" his back was beginning to bother him." Dr. Jacobs diagnosed periostitis of the left leg and low back pain.

The applicant also saw Dr. Daniel Wartinbee, to whom he expressed a complaint of left hip pain. This prompted an MRI of the left hip on March 8, 2002. The MRI showed no fracture but a probable degenerative cystic change at the femoral head. The applicant's hip complaints then ended.

On March 5, 2002, the applicant was referred to Dr. Richard Haas, a pain management specialist. Dr. Haas diagnosed complex regional pain syndrome (CRPS), also known as reflex sympathetic dystrophy, in the applicant's left leg. He noted the left leg was three or four degrees cooler than the right leg. Dr. Haas administered a lumbar sympathetic block on April 4, 2002, but that provided no lasting relief. The applicant also complained of back pain and a lumbar MRI was performed on May 13, 2002, revealing a small disc herniation at L5-S1, that mildly impinged on the right aspect of the thecal sac. Dr. Haas administered a lumbar steroid injection on May 20, 2002, and another lumbar sympathetic block on June 20, 2002. The applicant also received lumbar sympathetic blocks from Dr. Steven Donatello in November 2002.

Dr. Haas completed a WKC-16-B dated August 4, 2003, in which he diagnosed CRPS and neuropathic pain in the left leg that was work-related. He indicated the applicant was still under his care and wrote "unknown" in response to the question of whether there was any permanency.

The applicant's attorney referred him to Dr. Jerome Lerner for a medical evaluation on February 11, 2003. Dr. Lerner also reviewed the applicant's medical records. He diagnosed CRPS in the chronic stage, as well as a persistent low back strain/sprain, both work-related. He assessed 15 percent permanent partial disability at the left knee for the CRPS, and 2 percent of the whole body for chronic back strain. He gave permanent work restrictions and indicated the applicant will need a job that would allow him to sit or stand as necessary for pain relief. He also limited bending and lifting to an occasional basis, and recommend avoidance of cold environments.

At respondents' request, Dr. Richard Lemon examined and evaluated the applicant on October 15, 2002. Dr. Lemon found evidence of symptom magnification with regard to the alleged back problem (positive Waddell signs). He also found the left leg skin color, temperature, and sweatiness to be normal. He ruled out CRSP. He diagnosed a contusion and abrasion to the left leg, which should have healed with no permanency within two weeks from the incident. He opined that the applicant had been overtreated and had developed a narcotic dependence due to his ongoing medication. He further opined that the small, right-sided disc herniation revealed in the May, 2002 MRI was not clinically significant, and did not explain any of the applicant's left-sided symptoms. Finally, he opined that the applicant was capable of full-time work and recommended that he return to unrestricted work immediately.

Dr. Haas and Dr. Lerner both identified objective symptoms of CRPS in the applicant's left lower leg, including lower leg temperature, hair loss, and shiny skin. Their mutual diagnosis of CRPS is accepted as credible, as is Dr. Lerner's assessment of 15 percent permanent partial disability at the left knee.

The parties are in agreement that pursuant to Dr. Lerner's narrative report of February 20, 2003, the applicant had reached a healing plateau at least by that date. Respondents assert that healing ended earlier: either on February 15, 2002, pursuant to Dr. Lemon's opinion; or on March 25, 2002, when Dr. Jacobs released him to full duty work. However, neither Dr. Lemon nor Dr. Jacobs diagnosed the CRPS, which the commission has found was correctly diagnosed by Dr. Haas and Dr. Lerner. Accordingly, the applicant's healing plateau is found to have occurred on February 20, 2003, with temporary total disability due from February 1, 2002 through February 20, 2003. This was a period of exactly 55 weeks, which at the applicable rate of $613.07 per week totals $33,718.85. Credit is given for prior payment of temporary total disability in the amount of $21,458.50.

The permanent partial disability award of 15 percent at the left knee results in 63.75 weeks of compensation at the applicable rate of $212 per week, for a total of $13,515, all currently accrued.

Applicant's attorney is entitled to a 20 percent fee against the additional award for temporary total disability ($12,260.35), and against the entire award for permanent partial disability ($13,515). The total fee is $5,155.07. Costs are also due applicant's attorney in the amount of $1,688.44.

Dr. Lerner and D. Haas both credibly opined that the applicant may require additional treatment for his CRPS, and therefore the order will be left interlocutory.

The applicant's claim for 2 percent permanent partial disability attributable to his lower back injury is rejected. As Dr. Lemon noted, the applicant demonstrated signs of symptom magnification relative to the alleged, ongoing low back condition. Dr. Haas did not diagnose a back condition. The commission also takes note of the inconsistency between the applicant's testimony that he experienced low back pain as early as his emergency room treatment, and Dr. Jacobs' clinic note indicating the applicant complained of back pain beginning a few days after the incident. Dr. Lerner's diagnosis of a low back strain causing permanent disability is rejected in favor of Dr. Lemon's opinion that the applicant sustained a low back strain from which he had healed by February 15, 2002, with no permanent disability.

The applicant submitted claims for numerous medical expenses (Applicant's Exhibit H), which were not addressed by the administrative law judge, other than to order respondents to pay or reimburse those expenses which respondents found reasonable. In their briefs to the commission, neither the applicant nor the respondents addressed the issue of whether the claimed medical expenses were all reasonably required. The commission will therefore not make any specific findings regarding them, other than to state that all such expenses reasonably required by the effects of the left leg injury, and those attributable to the lower back strain through the date of February 15, 2002, shall be paid by respondents. The applicant shall immediately submit to the respondents a summary of the bills matching this description, and thereafter the respondents shall pay all those bills reasonably required. This issue shall also be left interlocutory because disagreements may arise.

Now, therefore, this:

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant the sum of eighteen thousand, nine hundred thirty-one dollars and eighty-four cents ($18,931.84); and to applicant's attorney, Robert C. Menard, fees in the amount of five thousand, one hundred fifty-five dollars and seven cents ($5,155.07), and costs in the amount of one thousand, six hundred eighty-eight dollars and forty-four cents ($1,688.44). Medical expenses shall also be paid in accordance with the above findings.

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

Dated and mailed January 14, 2005
kriegri . wrr : 185 : 4 ND § 3.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission had no disagreements with the administrative law judge regarding the credibility of the applicant, who was the only individual to testify at the administrative hearing. The commission reversed the administrative law judge regarding the date the applicant reached a healing plateau based solely on the written medical reports. There was no medical report that fixed the date of healing on April 15, 2003, the date chosen by the administrative law judge. Based on the written medical opinions of Dr. Haas and Dr. Lerner, the commission also reversed the administrative law judge's decision to make the order final.

cc:
Attorney Robert C Menard
Attorney John E Drana


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