GREGORY SKERVEN, Applicant
SCHREIBER FOODS, Employer
ZURICH AMERICAN
INSURANCE COMPANY, 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, except that it makes the following modifications:
1. Delete the last paragraph on page 7 of the ALJ's decision.
2. Delete the second paragraph on page 10 of the ALJ's decision (the last paragraph of his Findings of Fact and Conclusions of Law) and substitute:
"Dr. Vo continues to treat Mr. Skerven for pain management, and opined that a spinal fusion is a treatment possibility. Based upon Dr. Vo's medical opinion, this order shall be left interlocutory with respect to additional disability and treatment expense that may arise in the future. However, based on the record in general and Mr. Maslowski's opinion in particular, it must be concluded that vocational retraining is not warranted, precluding any future claim for vocational rehabilitation based on this injury under Wis. Stat. § § 102.43(5) and 102.61."
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed February 3, 2005
skerveg . wmd : 101 : 1 ND
§ 5.39
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The applicant claims he injured his back at work on August 21, 2002. The ALJ found a compensable injury, and awarded permanent partial disability for loss of earning capacity at 65 percent in an interlocutory order reserving jurisdiction for a possible vocational rehabilitation claim.
On appeal, the employer and its insurer (collectively, the respondent) asserts that the applicant in fact did not injure his back at work on August 21, 2002, but rather his disability is actually due to a pre-existing degenerative condition. The respondent also asserts the ALJ should not have awarded 65 percent for loss of earning capacity on the assumption the applicant cannot be retrained, while simultaneously reserving jurisdiction to permit possible vocational rehabilitation which would have the effect of mitigating the applicant's vocational loss.
1. Compensable injury?
The first question is whether the applicant's need for surgery and current disability was caused by a work injury on August 21, 2003.
a. Expert opinion
Dr. Vo's April 14, 2004 report at exhibit A describes the accidental event or work exposure to which the applicant attributed his condition as:
He was lifting an oven hood and injured his low back. He fell down shortly after surgery (which was done 1-13-03) and reinjured his back. On 3-20-03 he reinjured it while he helped someone who had fallen from their wheelchair. A second surgery performed 7-1-03.
The doctor gave this diagnosis:
L5-S1 disk extrusion with lateral recess stenosis and left S1 nerve root compression. Conservative treatment failed and surgery performed (left L5-S1 hemilaminectomy, mesial facetectomy, and diskectomy). Second surgery 7-1-03 (Removal of inferior L5 facet (fractured) plus redo mesial facectomy and discectomy of left L5-S1, on 8-22-03 a CT-guided needle procedure drained the cyst. Now has enhancing scar tissue at laminectomy site which may lead to encasement of exiting left S1 nerve root. He continues to treat for pain management.
Dr. Vo opined the hood-lifting injury on August 21, 2004 directly caused the applicant's disability, or caused the disability by aggravating, accelerating, or precipitating a pre-exiting progressively deteriorating or degenerative condition beyond its normal progression. He set permanent work restrictions by reference to Return to Work/Physical Capacity Form, which in turn permits light work alternating between sitting, standing and walking, and which requires only occasional bending, squatting, and working overhead. Dr. Vo also rated permanent partial disability at ten percent on a functional basis for severe pain and use of narcotic pain medication. Opining that the applicant's prognosis was "fair," Dr. Vo felt a fusion might be necessary in the future.
The applicant relies on the report of James G. Gmeiner, M.D., who examined the applicant on January 13, 2003, after the October 2002 MRI but before the first surgery. In his report from that examination, Dr. Gmeiner reported the applicant stated he was injured when he
was lifting a hood, bent over, leg apart. It was a square 80-pound stainless steel hood.
Dr. Gmeiner went on to note the applicant's longstanding history of spinal complaints, including lumbar complaints. He noted the applicant's diagnosis after an earlier June 29, 2000 trampoline injury was "left S1 radiculopathy, intermittent." Dr. Gmeiner concluded the applicant was experiencing the natural manifestations of a lumbar disc herniation that is seen in the general population. Dr. Gmeiner further concluded that the applicant's work activities did not accelerate, aggravate, or precipitate his pre-existing condition beyond its normal progression.
Dr. Gmeiner recommended against the surgery was that was eventually done later in January 2003, noting that if the applicant in fact had a radiculopathy from the disc herniation, one would have expected a more positive response to a diagnostic injection the applicant had previously undergone. Dr. Gmeiner noted, too, that the disc herniation shown in the October 2002 MRI was focal and contained, and so not at risk of causing neurogenic bowel, bladder or sexual dysfunction.
In summary, the doctor concluded:
I am of the medical opinion that the examinee has had a long-standing history of mechanical complaints in his low back, even with the complaints into his left lower extremity that preceded the alleged work injury date of August 21, 2002. I do not believe that a work injury occurred on August 21, 2002, either traumatic or from job exposure. I am of the medical opinion that the examinee has the natural manifestations of a lumbar disc herniation that is seen in the general population and also that the work activities did not accelerate, aggravate and precipitate this preexisting condition beyond its natural progression.
Dr. Gmeiner prepared an addendum on November 6, 2003, which took into account additional records including the record from the two surgeries. The doctor then gave a diagnosis of "failed back surgery syndrome with ongoing mechanical and lower extremity complaints." Dr. Gmeiner added the applicant's records were "significant for a probable drug seeking behavior" noting the applicant's multiple prescriptions and demands for narcotics.
Dr. Gmeiner continued by noting that the applicant's condition was not secondary to his alleged residuals from the work-related injury, but "secondary to his post-surgical procedures." He added that it was not reasonable to have proceeded with the surgical treatment. He reiterated his opinion that no injury occurred on August 21, 2002, either by causing breakage directly, or by aggravating the applicant's pre-existing condition beyond its normal progression.
Dr. Gmeiner added that he believed that there was "a very poor correlation of the physical examinations with the subjective complaints in the magnetic imaging scans of the lumbar spine." He stated that the mere association of a herniated disc in an MRI does not establish that the herniation was traumatically induced, or that it is the source of the complaints. He then cited a study that reported that 21 percent of people with non-symptomatic backs were found to have disc herniations, and which concluded:
"Because bulges and protrusions on MRI scans in people with low back pain or even radiculopathy may be coincidental, a patient's clinical situation must be carefully evaluated in conjunction with he results of the MRI."
b. Discussion on causation.
On appeal, the respondent points to the applicant's history of spine problems, and that he had received treatment for worsening lumbar pain specifically, only five days before the work injury. The respondent also challenges the applicant's credibility, pointing out that he misrepresented a prior unrelated knee injury as having occurred off duty to preserve his safety pay.
The commission acknowledges that the applicant had prior lumbar complaints, including a diagnosis of radiculopathy from the lumbar spine, in June 2000. In addition, only a few days before the work injury, on August 16, 2002, he saw Bradley Boettcher, M.D., who documented "low back pain -- worse." In between those dates, however, the applicant's physician-documented complaints seem to be mostly thoracic and cervical rather than lumbar.
More importantly, even after the August 16, 2002, "worsening" of the lumbar pain, the applicant was able to perform his relatively heavy duties until August 21, 2002. While the respondent contends the applicant was not actually injured on August 21, 2002, the respondent offers no witnesses to say the applicant was not working with the heavy hoods or lids on August 21 as he testified.
Rather, the respondent questions the applicant's credibility based on his hearing admission that he falsely told a doctor treating an unrelated knee injury that he was hurt doing Tae Kwon Do, when in fact he injured his knee at work, to preserve a safety bonus. This, the respondent insists, shows a propensity to lie.
However, the asserted propensity to lie is undercut in this case by what the applicant actually told his doctors after the August 21 visit. The applicant, both in his emergency room visit on August 21 and his first visit to Dr. Vo on August 26, clearly let the practitioners know about his prior significant back pain. He did not hide, or even minimize, the prior complaints. Moreover, the ALJ who saw the applicant testify, believed he was hurt as he alleged.
Like the ALJ, the commission credits Dr. Vo's expert opinion over Dr. Gmeiner's. Again, notwithstanding the June 2000 and August 16, 2002 lumbar complaints, the applicant did heavy work until August 21, 2002. Indeed, the duties on that day in particular, moving a heavy object in an awkward position, can be reasonably viewed as making an already degenerative disc worsen to the point of disc extrusion.
Further, the October 2002 MRI was read by the interpreting radiologist as showing a disc extrusion probably causing nerve root compression. While Dr. Gmeiner suggests the applicant was not actually having any nerve impingement or radicular symptoms from the disc herniation, he also notes that treating surgeon Schlindler reported a disc extrusion--not mere herniation or even protrusion--in his operative report. The applicant did initially report improvement from the first surgery until a recurrent herniation was discovered and improvement with the second surgery until scar tissue affecting the S1 nerve root developed. In other words, it does appear that the applicant did have radicular symptoms -- and that the surgeries at least temporarily improved them -- leading the commission to credit Dr. Vo's opinion that the work accident on August 21, 2002 which caused the disc extrusion caused the disability.
2. Vocational issues: LOEC award versus vocational retraining.
a. Background.
The next issue on appeal is the vocational effect of the applicant's permanent residuals.
The applicant was born in 1974, and graduated from high school with a 1.75 grade point average, but required special education because of a learning disability. He can read newspaper articles but does not completely understand them. He can add, subtract and multiply whole numbers, but cannot divide. He began working for the employer in December 1998, and the parties agreed to an hourly wage of $14.48 per hour.
The applicant's vocational expert, Francis Maslowski, rated loss of earning capacity at 55 to 65 percent, while the respondent's expert, Karrie A. Grady, rated loss of earning capacity at 25-30 percent The ALJ awarded loss of earning capacity at 65 percent.
The respondent challenges the ALJ's award, suggesting that the applicant's relatively young age is a positive factor because he has a relatively longer period of time to invest in more skills. However, the report of the applicant's vocational expert' persuades the commission that, given the applicant's intellectual capacity and educational attainments, retraining and learning new skills will be more difficult for him than for most workers, his relatively young age notwithstanding. Given the seriousness of the work restrictions set by Dr. Vo, which the commission credits, the commission agrees with the ALJ's finding that the applicant sustained a 65 percent loss of earning capacity.
The respondent also asserts that the ALJ erred in awarding both permanent partial disability on a vocational basis and reserving jurisdiction for possible vocational rehabilitation benefits under Wis. Stat. § § 102.43(5) and 102.61. The record establishes that applicant applied to DVR for vocational assistance but his application was not processed, apparently due to DVR budgetary constraints. However, the applicant's vocational expert opined that the applicant was not a reasonable candidate for retraining,(1) and the respondent's vocational expert also did not recommend retraining.
The ALJ found that retraining was only a possibility, not a probability. This, the ALJ concluded, allowed the ALJ to go ahead and make award for loss of earning under the assumption the applicant would not be retrained. He thus awarded the relatively high amount of 65 percent based on the opinion of the applicant's vocational expert.
However, the ALJ also felt the applicant--who seemed motivated, had made a good wage for the employer despite his learning disability, and testified that he intended to go to college to become a human resources worker after taking remedial courses at a technical school--might beat the odds and be successfully retrained. Consequently, the ALJ also reserved jurisdiction for a potential vocational rehabilitation claim under Wis. Stat. § § 102.43(5) and 102.61.
The respondent contends on appeal that it should be one or the other. It notes that under Wis. Admin. Code § 80.34(1)(j), the success of, and willingness to participate in, a reasonable vocational rehabilitation program, are factors in assessing loss of earning capacity. Here, the ALJ both awarded loss of earning capacity as if he would not be vocationally retrained -- and the ALJ frankly admitted his 65 percent award assumed no retaining -- and retained jurisdiction for a potential claim for benefits for vocational rehabilitation undertaken to reduce the applicant's loss of earning capacity.
b. Discussion.
The commission agrees with the main thrust of the respondent's argument. The point of vocational retraining is to restore a worker's pre-injury earning capacity. Wisconsin Admin. Code § DWD 80.49(1). The Supreme Court has held that the department (and thus LIRC) may make a finding that retraining is not warranted--and proceed to award permanent disability on a vocational basis, depending on the facts of the case. Transamerica Ins. Co. v. ILHR Dept., 54 Wis. 2d 272, 278-79 (1972). The Transamerica court also addressed the practice of awarding permanent disability while reserving jurisdiction on retraining. Writing when the "ILHR Department" carried out LIRC's current role in administrative review, the court stated:
Overly ambitious it would be to spell out situations in which competent medical evidence would establish that a claimant's cooperation in physical therapy or vocational rehabilitation would be an essential element of full medical or surgical treatment. All that we do here is not to judicially close and lock the door to the possibility that, in appropriate cases, the ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages. That may well be what the hearing examiner in this case sought or set out to do, although deferring a finding as to permanent physical disability for the six months' period would seem a more appropriate route to follow than, as he recommended, determining permanent disability with "further proceedings" reserved for a future date. [Emphasis supplied.]
Id., 54 Wis. 2d at 280-81 (agreeing with the department finding that vocational training in the case was "not warranted").
In other words, the better practice if retraining is warranted would be to postpone the determination of permanent partial disability until it is completed. In this case, neither vocational expert recommends that the applicant pursue vocational retraining, and the applicant's own expert opines it is not feasible given the applicant's limited reading and arithmetic skills and his learning disability. The commission realizes that the applicant himself testified he is interested in pursuing retraining, and that the ALJ found that testimony credible. However, the applicant's vocational expert did not think retraining was reasonable. The applicant himself brought the contradictory claim for a high level of loss of earning capacity under the assumption he could not be retrained. Thus, notwithstanding the applicant's interest in retraining, the commission found that vocational retraining was not warranted based on the hearing record.
cc:
Attorney R. John Symonds
Attorney Thomas K. Mullins
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