RAELENE ANDERSON, Applicant
SERVICEMASTER PROFESSIONAL, Employer
WEST BEND MUTUAL INS CO, 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 makes the following:
1. Work injury; treatment
The applicant, Raelene Anderson, was born September 3, 1996. She worked as a manager with ServiceMaster Professional Cleaning Services, bidding jobs for property-disaster restoration. On May 7, 2002, she was helping other employees remove furniture from a property in Clintonville. As she was pulling a large buffet across a concrete slab in a shed, one of the buffet's legs broke, causing the buffet to stop suddenly. The applicant thought that she had pulled a neck muscle, and felt immediate pain in her neck and shoulder, with a hot, burning sensation in her shoulder.
On May 20, 2002, the applicant treated with Karen Biemborn, M.D., her family doctor. See Exhibit K. Initially, Dr. Biemborn diagnosed a work-related cervical strain and took the applicant off work. She referred the applicant for physical therapy, and prescribed Celebrex and Skelaxin. On May 30, 2002, Dr. Biemborn modified her diagnosis to a cervical and left upper trapezius strain. After several more exams, on June 28, 2002, Dr. Biemborn diagnosed a cervical and thoracic strain, with a possible rotator cuff injury. She referred the applicant to Jan Sarnecki, M.D.
On July 9, 2002, Dr. Sarnecki diagnosed a left shoulder strain with a possible rotator cuff injury. See Exhibit K. Dr. Sarnecki continued the physical therapy, but indicated that if the applicant did not improve in two weeks, she would consider a subacromial injection and an arthrogram. On July 30, 2002, the applicant reported increased pain in her trapezium after she slipped and slid down some stairs. However, Dr. Sarnecki indicated that the applicant had good range of motion in her neck, and that she had declined x-rays on her neck because she felt that it was improving. Dr. Sarnecki referred the applicant to Erik A. Emaus, M.D., for a consultation on the applicant's shoulder condition.
On August 16, 2002, Dr. Emaus diagnosed a mild, grade-2 impingement syndrome with some inflammation of the AC joint. See Exhibit K. He treated her with cortisone injections at the AC and subacromial joints. He discontinued her strengthening exercises for 10 to 14 days, but indicated that she should continue her therapeutic exercises with follow-up in a month.
On September 6, 2003, the applicant returned to Dr. Biemborn for a re-check of her left shoulder. See Exhibit K. Dr. Biemborn recommended a gadolinium MRI. The applicant persuaded Dr. Biemborn to try another injection first.
The applicant credibly testified that, because Dr. Emaus had not proposed aggressive treatment, Wendy DeBlaey, the case manager at West Bend Mutual Insurance, suggested that the applicant see Timothy A. Mjos, M.D., at Northeast Wisconsin Orthopedics. On October 1, 2002, Dr. Mjos examined the applicant's left shoulder. See Exhibit B. X-rays were normal. Dr. Mjos made a five-part diagnosis:
1. Glenoid laborum tear SLAP lesion rule out SLP lesion type;
2. Rotator cuff tear rule out rotator cuff tear;
3. Impingement grade II;
4. Tendonitis - Biceps - Supraspinatus;
5. Instability anterior type II instability.
Dr. Mjos recommended no further treatment or discussion of surgery until further testing. The applicant felt confident with Dr. Mjos and elected to continue treatment with him.
On October 21, 2002, based on a gadolinium arthrogram followed by an MRI scan, Dr. Mjos opined that the applicant had a partial rotator cuff tear and a possible biceps tendon tear. He ordered an EMG. He also prescribed Bextra, which the applicant continued to take daily up to the date of hearing. The October 30, 2002 EMG studies were normal.
On November 2, 2002 the applicant broke her foot in an automobile accident. On November 5, 2002, Dr. Mjos prescribed a wheelchair.
On November 11, 2002, the applicant was examined by Dr. Mjos for the last time (although she discussed her worker's compensation case with him on January 20, 2003). Dr. Mjos indicated that there was no change in her shoulder condition after the accident. Based on the MRI, he diagnosed a slight tear in the supraspinatus tendon. Dr. Mjos recommended arthroscopic surgery on the applicant's left shoulder and a possible arthroscopic rotator cuff repair. According to Dr. Mjos's medical records, the applicant wanted to consider his surgical recommendation further in light of the foot injury from the car accident. Dr. Mjos indicated that he would see the applicant for a pre-op visit when a surgery date was finalized. The work release slip signed by "Dr. Tanyos/SC" on November 11, 2002 indicated that the applicant was restricted to light duty "on November 11, 2002 until surgery."
In an addendum dated November 13, 2002, Dr. Mjos's medical records indicated that if the applicant used crutches for the broken foot it would be very deleterious to a shoulder repair. He also "very strongly" recommended that the applicant fix the foot before the shoulder.
The applicant treated with a podiatrist, Adam Richardson, D.P.M., for her foot injury following the November 2, 2002 automobile accident. On December 12, 2002, Dr. Richardson indicated that the applicant was restricted from weight-bearing activities for another two weeks, and then could begin weight bearing. See Exhibit 7. On January 9, 2003, Dr. Richard issued "a release to work," stating that her only limitation is that there is "no barefoot, slippers or stockingfoot as well as no ballistic (1) activities for 1 month..." However, there was no follow-up appointment in a month. At hearing, the applicant testified that she was unaware of Dr. Richardson's restrictions until the date of hearing. She further opined that those restrictions would not have prevented her from working.
Finally, regarding the foot injury, the physical therapy records dated January 13, 2003 indicated that Dr. Richardson wanted the applicant to discontinue using crutches. Based on the medical records, there was some confusion about when the applicant discontinued using crutches. The applicant credibly testified that she had stopped using crutches "a long time" before January 20, 2003.
At the behest of Ms. DeBlaey, the applicant saw Daniel Metz, M.D., for another opinion regarding possible shoulder surgery. However, Dr. Metz recommended a more conservative treatment plan, specifically additional physical therapy. To that end, the applicant underwent evaluation on January 16, 2003, by Leah Smejkal, P.T., who recommended the applicant be seen twice a week for treatment to include joint mobilization for the left glenohumeral joint, ultrasound, and myofascial release.
On January 20, 2003, Dr. Mjos and the applicant discussed her condition again. While he did not physically examine her, his note reiterated his treatment plan: he did not want to operate on her shoulder until "such a time as she will not need crutches" and that "she needs to resolve the heel and foot wound problems and then the surgery can be done."
Thus, on January 23, 2003, physical therapist Smejkal noted that "Raelene did consult with Dr. Mjos regarding the left shoulder and the decision was made to discontinue therapy as she is going to be having surgery on the left shoulder in the near future." This is consistent with a note in Dr. Mjos's records in which Nurse Walters documented a phone call with Ms. Smejkal on the issue of continuing therapy. Nurse Walters noted the applicant was continuing to treat with Dr. Mjos and that he did not recommend physical therapy before surgery. Exhibit B. The remainder of the applicant's physical therapy visits were for low back problems, foot problems, and cervical problems from the November 2, 2002 automobile accident.
The applicant spoke by phone with Nurse Waters in March, May, July and September 2003. The applicant credibly testified that Nurse Waters made it difficult to schedule shoulder surgery. According to the medical records (and the applicant's clarifying testimony at hearing), on March 14, 2003, the applicant told Nurse Waters that her foot doctors told her for a second time that she may need surgery on her foot. See Exhibit 8. The applicant also indicated that her shoulder was still bothering her. On May 12, 2003, Nurse Waters indicated that if the applicant had foot surgery, it would be permissible to use crutches, but that shoulder surgery would have to be put off until the foot problem cleared up. On July 31, 2003, the applicant told Nurse Waters that she continued to have foot and shoulder problems. Nurse Waters told the applicant that Dr. Mjos was retiring, and that if she was interested in shoulder surgery, she should call for an appointment with Etienne Mejia, M.D. On September 11, 2003, Nurse Waters declined the applicant's request to schedule an appointment for shoulder surgery, telling her to contact the worker's compensation insurer for an okay. Thereafter, the applicant's attorney called Nurse Walters and successfully arranged an appointment with Dr. Mejia. See Exhibit M.
After examining the applicant on October 9, 2003, Dr. Mejia recommended an arthroscopic subacromial decompression and possible debridement of a partial rotator cuff tear. See Exhibit M. The applicant had surgery on October 27, 2003, and the respondent insurer resumed temporary total disability payments. Although Dr. Mejia performed shoulder surgery before the applicant's foot condition was fixed, the commission, like the ALJ, finds that delay was due to the applicant's good faith reliance on Dr. Mjos's opinion that shoulder surgery should be put off until her foot was fixed and the difficulty the applicant had in scheduling surgery.
2. Expert medical opinion.
Both parties offer expert medical opinion on the issue of the cause and extent of the applicant's disability from work due to her work injury.
On August 1, 2002, H. Keith Stinson, M.D., examined the applicant for the respondent. In a certified medical report attached to a form WKC-16B dated August 12, 2002, Dr. Stinson opined that on May 7, 2002, the applicant sustained a work-related cervical injury and a possible rupture of her rotator cuff. See Exhibit 2. He opined that the physical therapy on her neck had been very successful, that she had reached an end of healing for her cervical injury on August 1, 2002, with an excellent prognosis, and that she needed no further treatment for her neck except to continue home exercises. With respect to her shoulder injury Dr. Stinson opined that the applicant probably had a rotator cuff tear, but recommended an arthrogram to confirm the diagnosis. Dr. Stinson further opined that, if there was a tear, and if further physical therapy was "not availing," then the applicant should consider surgical repair. Dr. Stinson opined that the applicant needed temporary restrictions on working not more than 4 hours per day, with no work above her shoulder, but that she had no permanent partial disability at that time.
In a practitioner's report for the applicant dated April 21, 2003, Dr. Mjos opined that the applicant's healing period has not ended until after surgery which can not be done until her foot heals." He also opined that the only future treatment that was necessary was surgery. Exhibit A.
In a report for the respondent dated February 12, 2003, Dr. Stinson recommended the applicant undergo shoulder surgery, specifically an "arthroscopic exploration and possible repair of the small rotator cuff tear." He opined that the applicant reached a "temporary healing plateau" for her May 7, 2002 shoulder injury on November 11, 2002. See Exhibit 3. Dr. Stinson cited one of Dr. Mjos's letters in support of his opinion that the applicant's symptoms were stable at that time. He also noted that the numbness and tingling in her shoulder had improved. However, Dr. Stinson indicated that it would be premature to rate permanent partial disability, if any, because the applicant had not reached a "complete" end of healing because she needed further surgical treatment.
In a follow-up report for the respondent attached to a form WKC-16B dated November 26, 2003, Dr. Stinson opined that, based on his review of further records, "it becomes apparent that the major reason for (the applicant's) continued disability after the foot injury, was not the shoulder situation but the situation concerning the foot fracture and dislocation." See Exhibit 4.
In another follow-up report for the respondent dated February 5, 2004, Dr. Stinson indicated that he re-examined the applicant on February 4, 2004. Dr. Stinson opined that the applicant's post-surgical condition was not stable or stationary, that she had not reached an end of healing, and that she would likely benefit from further shoulder surgery. He did not change any of his earlier opinions. See Exhibit 5.
3. The cervical injury.
Based on Dr. Stinson's credible opinions regarding the applicant's neck condition, the commission finds that on August 1, 2002, the applicant reached an end of healing for her cervical injury on May 7, 2002, with no need for further treatment. In assessing credibility, the commission adopts the reasoning set out by the ALJ on this point. First, there was no medical record showing that the applicant treated for her neck condition from August 1, 2002 until after a motor vehicle accident on November 2, 2002. Second, at hearing, the applicant could not recall treating for a cervical condition from August 1, 2002 to November 2, 2002. Third, according to the medical records, after her motor vehicle accident on November 2, 2002 the applicant repeatedly attributed her cervical problems to the motor vehicle accident.
4. The shoulder injury.
a. Healing period.
With respect to the shoulder claim, the first question is whether the applicant has remained in a healing period continuously from the date of injury to the date of the hearing as she claims.
The healing period is understood to mean ... the period prior to the time when the condition becomes stationary. This requires the postponement of the fixing of the permanent partial disability to the time that it becomes apparent that the leg will get no better or worse because of the injury. The healing period is expected to be temporary, during it the employee is submitting to treatment, is convalescing, still suffering from his injury, and unable to work because of the accident. The interval may continue until the employee is restored so far as the permanent character of his injuries will permit.
Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932).
Citing that definition, the supreme court in Larsen. Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960) emphasized that a healing period is not determined simply by finding the point at which a condition becomes stationary, or when it is apparent the condition will get better or worse. Rather, the Knobbe definition of a healing period is qualified by the additional conditions that the injured worker still be submitting to treatment and convalescence, and that the disability be of a temporary nature. The court added:
An employee's disability is no longer temporary when the point is reached that there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence. At such point the commission is enabled to make a determination of the percentage of permanent partial disability...
Larsen Co., 9 Wis. 2d at 386. The Larsen Co. court went on to say that if the record before the commission "indicates that a definite determination cannot then be made that the employee will not sustain a greater percentage of disability in the future" the commission should reserve jurisdiction and not continue to pay temporary disability until the maximum amount of permanent partial disability that may occur in the future could be determined.
In GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460-61 (1994), the court again quoted the definition of healing period from Knobbe, and -- citing Larsen Co. -- added that "LIRC does not have the authority to order an employer to pay an injured employee TTD benefits for the period after the employee's medical condition has stabilized and before the employee undergoes surgery."
In this case, the respondent argues that Knobbe, Larsen Co., and GTC Auto establish that temporary disability compensation may be suspended, even though not all the medical treatment has been rendered, when the applicant stops treating for the work injury. Consequently, even though both treating doctor Mjos and employer-retained doctor Stinson agreed that the applicant required the shoulder surgery she eventually underwent in October 2003, the respondent contends that her healing period was suspended by her failure to treat for her shoulder from November 12, 2002, to the date of the shoulder surgery.
However, the applicant did not stop treating for her work injury on November 12, 2002, or any other point before her October 2003 surgery. While Dr. Mjos may not have physically examined the applicant after November 11, 2002, he did see her again to discuss her shoulder on January 20, 2003. More importantly, the doctor did recommend a treatment plan, a surgery including a shoulder arthroscopy. In adherence with this plan, the applicant may have elected not to seek physical therapy with Ms. Smejkal. However, declining to undergo a specific course of physical therapy with Ms. Smejkal based on Dr. Mjos's advice does not mean the applicant completely stopped treating for her shoulder in general.
Nor do Knobbe, Larsen Co. or GTC Auto compel a contrary result. First, of course, those cases are factually distinguishable. In Knobbe, the supreme court upheld the commission's decision to pay two years of temporary total disability for a foot injury, stating:
Where there is credible evidence that respondent sustained an injury to his right leg sufficiently severe so as to be followed by serious consequences rendering him incapable of working, is still causing him to suffer pain, and the prognosis is a likelihood of a resulting amputation of the leg at the ankle or knee or possibly at the hip joint, the Industrial Commission is warranted in holding that the healing period, as that term is used in the statutes, has not passed even though the evidence is opposed by very strong testimony that the condition is at present fixed and that the permanent partial disability is of much less extent than would result in case of amputation.
Knobbe, at 208 Wis. 188.
In Larsen Co., the applicant broke her ankle in August 1954 and her treating orthopedist declared an end of healing with a 25 percent permanency rating at the ankle in February 1955. Thereafter, the applicant developed traumatic arthritis in her ankle, requiring another orthopedist to perform an arthrodesis of the ankle in December 1956. Upon healing from the arthrodesis, the applicant's permanency rating was 40 percent. The commission awarded compensation for temporary disability that included the period from the end of healing/permanency rating in March 1955 to eventual surgery in December 1956.
The Larsen Co. court reversed, noting that the applicant underwent no treatment from February 1955 to December 1956 (discounting a single doctor's visit in April 1956, when a doctor recommended
against surgery). The court also noted the testimony of the original treating orthopedist who said that when he declared a healing plateau in February 1955 the injured worker had not yet developed
-- might not ever have developed -- the traumatic arthritis that later would require surgery in 1956.
In GTC Auto Parts, the injured worker underwent back surgery in August 1988. His treating surgeon opined he reached a healing plateau in March 1988, rating permanent partial disability at 22 percent. The treating surgeon did not recommend further surgery, though a second surgeon did. The applicant opted against surgery. He was not interested in vocational retraining, and the worker's compensation insurer was not interested in funding it.
The presiding ALJ in GTC Auto Parts found that if the applicant's condition were unchanged, he would be permanently totally disabled. However, the ALJ found, too, that neither the worker's compensation insurer nor the injured worker had established the present status quo was permanent. Accordingly, he ordered temporary total disability benefits until the injured worker's death, unless the worker chose to undergo surgery or the insurer agreed to pay for retraining. The commission affirmed, stating that it was paying temporary disability for an indefinite period until the applicant's death or the department issued a contrary order.
The supreme court reversed, finding that the treating surgeon's opinion established that the applicant's condition had become stationary by March 1989. It noted that while the applicant might enter a period of renewed temporary disability if he underwent surgery or his condition nonetheless was stationary at the time of the hearing. The court also characterized the commission's order as forcing the insurer to fund retraining in the absence of statutory authority.
Knobbe, Larsen Co., and GTC Auto were not cases where a worker's treatment for a work injury was interrupted by a nonwork related injury. Nor did those cases involve a situation where temporary disability was denied based on a doctor setting what he or she termed at the time as a "temporary healing plateau" while declining to rate permanent disability, as Dr. Stinson did here. Rather, in Larsen Co. and GTC Auto, the applicant's treating doctor opined the applicant reached an end of healing and rated permanent disability.
In this case, by contrast, the applicant's treating surgeon, Mjos, declined to find an end of healing and did not rate permanent partial disability. Employer-retained examiner Stinson set what he described as a "temporary end of healing," but he declined to rate permanent partial disability -- at any amount -- until the shoulder surgery could be performed. In so doing, he forthrightly acknowledged that while he regarded the applicant's symptoms as remaining stabilized, "a complete end of healing has not been reached." Exhibit 3, report of Stinson, page 3. The commission construes this statement to mean that the "stabilization" relied upon by Dr. Stinson, like the "healing period," was only temporary.
Thus, in this case, it cannot be said that "there ha[d] occurred all of the improvement that is likely to occur as a result of treatment and convalescence" as of November 12, 2002. Nor is "the commission ... enabled to make a determination of the percentage of permanent partial disability" with respect to the applicant's shoulder injury of November 12, 2002, or even as of the date of the hearing. This is significant because the commission reads Larsen Co. and Knobbe to use the terms "stationary" or "stabilizes" in the context of the point when it becomes possible to rate permanent disability (as opposed to when it becomes possible to determine the maximum permanent disability that may occur). That point has not been reached in this case.
True, Larsen Co. and GTC Auto indicate that the commission cannot delay the end of healing until it can determine with certainty the maximum level of permanency that may occur in the future. But in both of those cases, a doctor was willing to rate permanent disability at the point he declared a healing plateau. In this case, Dr. Stinson and Dr. Mjos agree that the applicant will have permanent disability following shoulder surgery, yet neither doctor was willing to rate permanent disability -- in any degree -- before the surgery was performed. Stated another way, the applicant here is not asking for an extension of the healing period to the point at which the maximum level of permanent disability that may occur in the future may be determined. Rather, she is contending that because her condition has not stabilized to the point that permanent disability can be ascertained, she has not reached an end of healing.
The respondent, however, asserts that the healing period was effectively suspended by the applicant's hiatus in treatment for her shoulder injury from November 2002 to October 2003. In response, the applicant argues that simply because a worker does not see his or her doctor does not mean or she is not treating a work injury. On this point, the applicant cites ITW Deltar v. LIRC, 226 Wis. 2d 11 (Ct. App. 1999). There, the court of appeals distinguished both Larsen Co. and GTC Auto, noting that those were cases where a worker had reached a plateau "and then sought temporary disability because of changes in their condition." Id., at 226 Wis. 2d 21. The court also noted that in GTC Auto, the applicant elected to forgo the surgery recommended by one of her doctors.
Noting the Worker's Compensation Act's remedial purpose, the ITW Deltar court further held "although [the injured worker] did not see her doctor, she was still submitting to treatment from her injury, still suffering from it, and still in need of surgery to correct it before she would reach healing plateau." Ibid. That statement accurately describes the situation here. In sum, the commission concludes the applicant here, like the injured worker in ITW Deltar, remained in her healing period from November 2002 through October 2003, notwithstanding the fact she was not regularly seeing her doctor about her shoulder during that period.
b. Disability during healing period due to work injury or "personal ailment."
The question remains, however, whether the applicant's disability from work during her healing period was caused by the work-related shoulder injury or by the off-duty foot injury. In ITW Deltar, the court of appeals noted the commission addressed this question in three ways. Id., at 226 Wis. 2d 19-20. First, the commission noted that, because the worker in ITW Deltar was pregnant when injured, her pregnancy was subject to the guiding principle that employers take their workers as they are. The court concluded the commission properly applied the "as is" rule to cover a situation where a pre-existing or "as is" condition delayed treatment of an occupational injury.
The second basis for the commission's determination in ITW Deltar that the applicant's disability related to the work injury was an analysis under Wis. Stat. § 102.42(6). That statute provides that compensation may be denied if disability is aggravated, caused or continued by unreasonable refusal to submit to treatment or follow competent medical advice. The commission concluded that that provision implies that if a disability is continued by a reliance on competent medical advice -- such as Dr. Mjos's advice here that the applicant delay her treatment for her shoulder until her foot injury was resolved -- the continued disability would be compensable.
Third, the commission's decision in ITW Deltar gave credit to the insurer for the post-natal period of time when the applicant's disability was associated with her child's birth. In other words, the commission did not require the insurer to pay temporary disability for that period within the worker's healing period that the worker was disabled by her pregnancy and childbirth. In discussing that point, the commission quoted from 4 Larson, Workers' Compensation Law § 57.12 (e) (1997) (2), where Professor Larson wrote:
"[I]f the claimant's continued unemployment is the result, not of his employment-related impairment, but of personal ailments unrelated to his employment, there is no possible ground for continuing temporary benefits."
The commission stated in ITW Deltar:
Professor Larson's point is sensible, and the ALJ actually followed it in reaching her decision. If a worker sustains a nondisabling laceration cut at work, but is disabled from an off-duty car accident, the mere fact the worker had a work injury should not entitle him to disability benefits. The closer case, of course, is where both the work injury and the off duty injury or "ailment" are disabling. In this case [ITW Deltar], the ALJ decided this closer issue in favor of the respondent by denying temporary disability during the period the applicant was recovering from the birth of her child.
Karla Mitchell v. ITW Deltar Chippewa, WC claim no. 96001304 (LIRC, October 30, 1997). On the point of the "close case" where both the work injury and a personal ailment are disabling, the current version of Professor Larson's treatise states:
There can be such a blending between a claimant's personal ailment (or condition) and the employment-related impairment that assigning responsibility for continued unemployment to one or the other can be difficult. Generally, the difficulty is resolved in favor of the employee.
4 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 80.03[4] (LexisNexis 2003).
In the applicant's case now before the commission, because the car accident causing the applicant's foot injury occurred after the work injury to her shoulder, the facts seem to fall outside the traditional analysis of the "as is" rule. However, the "as is" rule is after all a principle generally offered to support the payment of compensation when a worker suffers disability from a work injury where a healthier worker might not have. The commission declines to use the rule conversely to justify the denial of compensation during the applicant's healing period in this case simply because her personal, but "non-as is," condition and a work injury were simultaneously disabling. Indeed, the underlying premise of the "as is" rule -- that the liability for the effects of a work injury should be not limited to the effects that would be experienced on an objective basis by a "reasonable person" suffering the same injury, but rather based on the effects the injured worker actually experiences -- supports the payment of compensation here.
The second basis for paying compensation during the applicant's healing period in ITW Deltar despite her simultaneous pregnancy -- the doctor's advice to postpone surgery and the analysis of Wis. Stat. § 102.42(6) -- applies here as well. This leaves the question of the third basis for affirming the commission's payment of temporary disability as discussed by the court in ITW Deltar: whether to exclude from the payment of temporary disability some period of time when the applicant's foot injury both was independently disabling the applicant from employment and delayed the shoulder treatment (as was done with respect to the injured worker's post-natal period in ITW Deltar).
The applicant has, of course, the burden of proving her eligibility for temporary disability compensation for the period claimed. Larsen Co., at 9 Wis. 2d 391. The commission is satisfied that the applicant has satisfied that burden here. As noted above, on January 9, 2003, the applicant's treating podiatrist, Dr. Richardson, released her to work with respect to her foot injury. His release restricted her only from barefoot, slipper foot, and stocking foot walking, and from ballistic activity. Exhibit 7. While subsequent notes from Dr. Quinn refer to immobilization from the cam walker, he did not impose work restrictions. Accordingly, the commission concludes that the applicant was no longer disabled from her foot injury by January 9, 2003.
Regarding the period during which the foot injury may have delayed the shoulder surgery, the commission notes that Dr. Mjos did not recommend the shoulder surgery until November 12, 2002. The record does not establish precisely when the applicant would have undergone the shoulder surgery had she not injured her foot. However, the commission declines to infer it would have occurred before Dr. Richardson released her on January 9, 2003. On this point, the commission notes that the employer's doctor, Dr. Stinson, did not recommend surgery until his report of February 12, 2003. Exhibit 3. Consequently, unlike the situation in
ITW Deltar, the commission cannot conclude that there was a period of time when the off-duty foot injury both delayed surgery for the work-related shoulder injury and was independently disabling. There thus is no basis to exclude from the payment of temporary disability any period during the applicant's healing period from the work injury.
5. Award.
Accordingly, the applicant is entitled to compensation for temporary total disability for the period at issue, from November 12, 2002 through October 26, 2003, a period of 49 weeks, 5 days. At the weekly rate of $647 (the statutory maximum for temporary total disability in 2002), the applicant is entitled to a total of $25,320.65 in temporary total disability compensation for this period. However, the respondent previously paid $6,521.01 in temporary disability compensation for some of this period, leaving the amount of $18,799.64 now due in temporary disability compensation.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order, or $3,759.93. That amount shall be deducted from the amount now due under this order, and paid to the applicant's attorney within 30 days. The remainder, $15,039.71, shall be paid to the applicant within 30 days.
The applicant had not ended healing from the shoulder surgery as of the date of the hearing in this case. Accordingly, this order shall be left interlocutory to permit further orders and awards as may be necessary.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part. Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Fifteen thousand thirty-nine dollars and seventy-one cents ($15,039.71) in disability compensation.
2. To the applicant's attorney, Lynne A. Layber, Three thousand seven hundred fifty-nine dollars and three cents ($3,759.03) in fees.
Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.
Dated and mailed April 4, 2005
anderra . wrr : 101 : 9 ND § 5.6 § 5.9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
The commission did not confer with the presiding ALJ concerning witness credibility and demeanor, as its reversal was not based on a differing view of the applicant's credibility. The ALJ found the applicant credible in her testimony that she stopped using crutches a long time before January 20, 2003, and that Nurse Waters made it difficult to schedule shoulder surgery. The commission accepts both of these credibility impressions. While the ALJ did not indicate whether he credited the applicant's testimony that she could work under Dr. Richardson's no barefoot, slipper foot or stocking foot walking, and no ballistic activities restriction, the commission is satisfied that she could have returned to her job with the employer had that been her only restriction.
The only area where the ALJ seems to expressly question the applicant's credibility is with respect to whether she treated for her shoulder from November 12, 2002 to October 27, 2003, specifically with respect to the applicant's testimony about whether she underwent physical therapy for her shoulder during that period. As set out above, the commission agrees with the ALJ that the applicant did not. Rather, the commission concludes that physical therapy was discontinued in adherence to Dr. Mjos's treatment plan. In short, the commission's conclusion that the applicant remained in a healing period does not rest on a different impression of her demeanor or credibility.
______________________________________
ROBERT GLASER, Commissioner, (Concurring):
I agree that the applicant remained in a healing period from November 12, 2002, through October 26, 2003, and that she should receive temporary total disability compensation for that entire period. However, I do not agree with the majority decision to the extent it approves of cutting off temporary disability compensation for a work-related injury during a healing period based on disability from an intervening off-duty injury.
The majority, to be sure, is motivated by the apparent unfairness to an insurer whose liability for temporary disability for a work injury coincides with, and is perhaps extended by, disability from an unrelated injury. However, worker's compensation remedies are established by statute, the relief provided must be within the statute, and the commission cannot fashion a remedy where none exists by statute. Yunker v. LIRC, 155 Wis. 2d 525, 534 (Ct. App. 1983). Therefore, an insurer remains liable for temporary disability compensation when a worker is temporarily disabled due to a work injury in the absence of a statutory provision for terminating compensation. Brakebush Brothers, Inc. v. LIRC, 210 Wis. 2d 623, 634 (1997).
I realize that carving out a period of insurer non-liability during a healing period appears to be supported by the court of appeals' decision in ITW Deltar v. LIRC, 226 Wis. 2d 11 (Ct. App. 1999). However, that case was before the court of appeals on appeal by the employer who contested its liability for any temporary disability. The court was not addressing an argument by the injured worker that it was inappropriate to have denied her compensation while she was both disabled from her work injury and recovering from childbirth. Consequently, I believe that the language in ITW Deltar on this point may well be dicta which would not withstand direct judicial scrutiny under Brakebush.
I therefore respectfully concur.
/s/ Robert Glaser, Commissioner
cc:
Attorney Lynne A. Layber
Attorney William R. Sachse Jr.
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