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

PATRICK D BRIMMER, Applicant

ZEIERS SIDING INC, Employer

RURAL MUTUAL INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1991-066940

Zeiers Siding, Inc. and Rural Mutual Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on October 7, 2004. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability and liability for medical expense attributable to the conceded low back injury of October 14, 1991.

Specifically disputed are whether or not a proposed fusion surgery and certain temporary disability payments are causally related to the 1991 injury.

The commission has carefully reviewed the entire record in this matter and hereby affirms the administrative law judge's Findings and Interlocutory Order, except as herewith modified:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW


Delete the fourth and fifth paragraphs on page 6 of the administrative law judge's decision and substitute the following two paragraphs therefor:

Dr. Kreckman credibly opined that she placed the applicant on temporary total disability beginning December 23, 2003, and that he was able to return to part-time work as of January 28, 2004. Temporary total disability is therefore allowed for this period of 5 weeks and 1 day at the applicable rate of $459.80, for a total of $2,375.63. The applicant was temporarily partially disabled from January 28, 2004 through May 9, 2004. This was a period of 14 weeks and 5 days, at the applicable rate of $178.17 per week, for a total of $2,642.85. Dr. Zdeblick credibly opined that the applicant remained temporarily totally disabled beginning with his evaluation of him on May 25, 2004, and therefore additional temporary total disability is due from that date through the date of hearing on August 17, 2004, a period of 12 weeks and 1 day. At the applicable rate of $472.17 per week this amounts to a total of $5,744.74.

The applicant's attorney is entitled to a 20 percent fee in the amount of $2,152.64, and costs in the amount of $239.16, leaving a net award for temporary disability to the applicant in the amount of $8,371.42.

Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor the commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date respondents shall pay to the applicant the sum of eight thousand three hundred seventy-one dollars and forty-two cents ($8,371.42); to applicant's attorney, Robert T. Ward, fees in the amount of two thousand one hundred fifty-two dollars and sixty-four cents ($2,152.64), and costs in the amount of two hundred thirty-nine dollars and sixteen cents ($239.16); to UW Health Physicians the sum of nine hundred ninety-six dollars and fifty cents ($996.50); to Divine Savior Healthcare the sum of sixty-nine dollars ($69.00); and to the applicant as reimbursement for out-of-pocket medical expenses the sum of twenty dollars ($20.00).

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


Dated and mailed May 4, 2005
brimmpa . wpr : 185 : 8  ND § 5.49

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission agreed with the administrative law judge that the opinions of the applicant's treating physicians were credible. While there may be more than one cause for the applicant's current need for fusion surgery, it is abundantly clear that the effects of the 1991 work injury, including the 1992 and 1997 surgeries related to that injury, are at least a substantial causative factor. Dr. Huffer opined that fusion surgery was preferable even before the 1997 surgery. Dr. Xenos' opinion concerning causation is ambiguous. He opines:

It is my impression the examinee's current complaints are related to lumbosacral spine degenerative disc disease and chronic left S1 nerve root irritation, secondary to recurrent disc herniation at the L5-S1 level eccentric to the left side, status post previous discectomy and revision discectomy on two separate occasions . . . (emphasis added).

However, in the same report Dr. Xenos attributes all the applicant's current symptoms to his "underlying degenerative process" and to his "preexisting condition." At another point Dr. Xenos wrote:

It is my impression that the majority of the examinee's current symptoms are related to his underlying preexisting degenerative disc disease . . . (emphasis added).

Dr. Xenos' opinion is reasonably interpreted to include agreement that the 1991 work injury and its effects were partially causative of the applicant's additional temporary disability and need for fusion surgery.

Respondents argue that by exceeding his lifting restriction at work, the applicant aggravated his condition by failing to follow or submit to medical treatment, and therefore should be denied compensation under Wis. Stat. § 102.42(6). Exceeding physical restrictions while at work is unwise but it does not constitute a refusal to follow medical treatment. While there was testimony that the applicant drove a Bobcat over uneven ground, and occasionally went jet skiing and played pool, no medical opinion was submitted to indicate that these activities had an effect on the applicant's medical condition, or that such occasional behavior was inconsistent with his medical diagnosis. This testimony did concern the commission, but without medical commentary regarding it, the commission will not speculate concerning its significance.(1)

The credible medical evidence demonstrated that the applicant is in need of fusion surgery causally related to the 1991 work injury, and based on the credible medical evidence as of the date of hearing, the applicant remained temporarily totally disabled awaiting this surgery.

cc:
Attorney Robert T. Ward
Attorney Mark W. Andrews


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Footnotes:

(1)( Back ) See Brakebush Bros. Inc. v. LIRC, 210 Wis. 2d 623, 563 N.W.2d 512 (1997).

 

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