Wis.LIRC WC Decision: Templin - April 25, 1995 - ND � 5.20 - Non-Schedule Injury; � 5.31 - Non-Schedule Injury - "odd-lot" doctrine; � 9.2 - Petition for Review

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

BENJAMIN TEMPLIN, Applicant

KLUG & SMITH COMPANY, Employer

AETNA CASUALTY AND SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90070176

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on March 23, 1994, following a hearing on March 18, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Both the respondent and the applicant submitted briefs. During its review of this case, this commission ordered the applicant to appear before the commission under sec. 102.18 (3), Stats., by letter dated March 6, 1995. The applicant, his attorney John A. Kay, the applicant's brother Tim Templin, the respondent's attorney John A. Griner, and its representative Judy Jarchow, appeared before all three members of the commission on March 27, 1995. Prior to the hearing before the administrative law judge, the respondent conceded jurisdictional facts, an average weekly wage resulting in the maximum compensation rates for disability, and an October 11, 1990 compensable injury. The respondent also conceded and paid temporary total disability from October 26, 1990 to December 10, 1992 in the amount of $1,580.00, and a 10 percent permanent partial disability compared to amputation at the right shoulder in the amount of $6,550. The issues are the nature and extent of disability beyond that conceded, and liability for medical expenses. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his Findings of Fact and Interlocutory Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Injury and treatment.

The applicant was born on August 30, 1945, and began working for the employer as an ironworker in 1990. He has been an ironworker for twenty-two years.

The respondent concedes a work injury on October 11, 1990, while the applicant was doing "air arcing." Air arcing involves holding a tool weighing thirty-five pounds at eye level for twelve to fifteen minutes at a time. On the date of injury, the applicant's right arm went numb and he felt pain down his back, head and neck. He denied experiencing such pain in the past.

The applicant continued to work, despite the pain and numbness, until October 26, 1990. On or about that day, the applicant cut his right hand but did not realize it because of the numbness. At the hearing before the administrative law judge, he complained of right side pains generally, in his head, shoulder, right arm, hip and groin.

The applicant first saw Robert B. Gage, his family doctor, on October 26, 1990. Dr. Gage described the applicant's numbness in his thumb, second and third fingers of the right hand for approximately two weeks. Dr. Gage also reported that the applicant's numbness was severe enough that he did not notice a puncture on his right hand, even though it bled. The applicant could not recall any specific injury, according to Dr. Gage's notes, but did tell the doctor he did a lot of heavy work with his right hand. The doctor also noted the applicant's history of gastrointestinal problems.

Dr. Gage noted a positive Tinel's sign over the radial nerve in the right wrist, and diagnosed right radial nerve neuropathy, probably at the right wrist. He arranged for the applicant to have EMG testing done, and referred him to a orthopedic doctor, William Niedermeier, M.D.

Neurologist Gregory S. Connor, M.D. performed this EMG on October 29, 1990. The EMG indicated right side carpal tunnel syndrome of recent onset and evidence for a chronic right ulnar neuropathy. When Dr. Niedermeier reviewed the results of the EMG in November 1990, he recommended and performed a release immediately. Some improvement was noted, but the applicant continued to experience severe symptoms. See Connor's report dated October 29, 1990 (Exhibit I); Gage's note for 3/21/91 (Exhibit I) and Zerofsky's note April 12, 1991 (Exhibit I).

On Dr. Niedermeier's referral, a second EMG was performed by Dr. Connor on January 30, 1991. This EMG showed carpal tunnel syndrome in the right side with right ulnar neuropathy at the elbow. The January 1991 EMG showed no improvement from the October 1990 test, despite the intervening surgery.

Dr. Connor noted the applicant's "gradual increase in pain in September and October" of 1990 and opined that the applicant "almost certainly has reflex sympathetic dystrophy of the right arm... probably brought on by the type of work he was doing last September or so." Dr. Connor opined that the carpal tunnel problems were probably the result of edema (swelling) from the reflex sympathetic dystrophy and was not surprised that the carpal tunnel surgery did not help the condition. See Connor's report dated January 30, 1991, Exhibit I.

The applicant then saw a colleague of Dr. Connor's, R. A. Zerofsky, M.D., in April 1991. Dr. Zerofsky reports that the applicant:

"feels his symptoms were brought on by when he was doing air arcing holding a 35-pound instrument with his forearm flexed above the shoulder. He noted the abrupt onset of right hand numbness. He states this occurred on October 11, 1990."

Dr. Zerofsky also noted the injury initially caused pain and numbness in the right elbow and wrist, numbness in the right hand, and a pinching like sensation over the medial aspect of the right arm and over the anterior aspect of the right chest. By the date of his examination on or about April 12, 1991, the applicant complained of a variety of symptoms in the right hand and arm; throbbing over the right anterior chest; and spasms of pain in the right shoulder, the right axilla, the back and the back of the neck. Dr. Zerofsky noted the EMG testing done in October 1990 and January 1991 which showed right carpal tunnel syndrome and right ulnar neuropathy at the right elbow. Dr. Zerofsky (like Dr. Connor) diagnosed reflex sympathetic dystrophy in the right upper extremity and, by EMG and nerve conduction studies, a right ulnar neuropathy and right median neuropathy. See report dated April 12, 1991.

When Dr. Zerofsky saw the applicant again on April 29, 1991 he noted improvement in the EMG testing, including no evidence of carpal tunnel syndrome and significant improvement of the right ulnar neuropathy. On May 10, 1991, Dr. Zerofsky rated the applicant's condition as stable with no definite weakness in the applicant's right upper extremity. He noted "perhaps some improvement." On May 24, 1991, Dr. Zerofsky noted that the applicant continued to have significant symptoms, including headaches, and was depressed. The treatment notes for April 29, May 10, and May 24 mention shoulder pain, neck pain, and headaches. Subsequent treatment notes from Dr. Zerofsky indicate the headaches lessened but the sensory loss in the right arm worsened. By July 1991, though, the doctor noted improvement, but that "even minor activity such as gripping a strain gauge exacerbates his symptoms."

During this time, the applicant was receiving "sympathetic blocks," apparently by injection, for his pain symptoms. The injections were given first by a Dr. Brill and later by Brad Vilims, M.D.

Dr. Vilims referred the applicant to Joseph H. Perra, M.D., who first saw the applicant in July 1992. Dr. Perra noted the applicant's employment as an ironworker and progressive arm symptoms with an onset in 1990. Dr. Perra also noted the applicant's complaints of decreased sensation on the whole right side. He diagnosed congenital cervical stenosis and right arm causalgia "with symptoms not correlating to focal neurologic deficit." He ordered further tests and ultimately recommended against further decompressive surgery. He did recommend percutaneous placement of a dorsal column stimulator. The surgery to place the stimulator, including a laminoplasty, was performed on June 25, 1992. A further surgery was necessary in September 1992 to reposition the battery pack for the stimulator. By October 1992, the applicant reported about 20 percent pain relief with the stimulator.

Finally, the applicant also suffers from severe gastroesophageal reflux, which led to constipation. Dr. Gage indicated that the medication that the applicant took for the reflex sympathetic dystrophy probably contributed to his constipation, but little else in his treatment notes associates the gastroesophageal condition with the work injury. See generally Dr. Gage's notes in Exhibit I. On the other hand, Drs. Gage and Vilims do suggest in their practitioner's reports that the gastroesophageal problems are related to the work injury.

2. Reports of experts.

The file contains reports from medical experts. One is a certified practitioner's report from Dr. Vilims dated April 15, 1993. In an attached letter dated December 2, 1992, Dr. Vilims opined that the applicant had reached a healing plateau as of that date, and that he was "virtually totally disabled and given his right upper extremity involvement, his cervical and thoracic spine involvement and his gastrointestinal problems that he is at least 60 percent and more likely 80 percent to 100 percent totally and permanently disabled."

Dr. Vilims explained in a March 25, 1993 letter attached to his practitioner's report that:

" [the applicant's] cervical spine, thoracic spine, and right upper extremity pain is all fairly well interrelated and cannot be separated out. This is one continuous problem under the main heading of a causalgia which is an injury to a large nerve fiber usually secondary to a high velocity or stretch type injury."

Exhibit F. He also stated that he did not believe the applicant could engage in "much in the way of any gainful type of employment."

Dr. Vilims signed a functional capacity evaluation rating the applicant's physical ability to work at "below sedentary," with basically no lifting ability. The evaluation was prepared by physical therapist Michael Miller on April 19, 1993. Mr. Miller reported that the applicant could stand for only 10-15 minutes at time and could walk for only 15 minutes or one block at a time. According to the evaluation, the applicant must lie down due to fatigue and pain for thirty minutes twice each morning and afternoon. Mr. Miller described the applicant's pain as "constant aching, burning and tingling (often numbness) over entire spine, right upper back, right neck (anterior and posterior), right shoulder (A & P), and arm (A & P) [with] sciatic nerve pains of the A & P right leg above the knee...."

In the functional capacity evaluation, Mr. Miller goes on to state:

"I do not believe the [applicant] can be placed even in the sedentary category of work on even a part time basis. This is because he would most likely not tolerate any posture (sit/stand/walk) while engaged in any functional activity-even at negligible weights for more than a few minutes.... Based on intolerance of 2 hours of involvement, with fairly innocent activity, and reports of [increased] delayed symptoms lasting over 24 hours, I do not believe the [applicant] to be a vocational rehabilitation candidate."

Dr. Gage also prepared a practitioner's report to which is attached a letter dated November 16, 1992. The doctor recounted the applicant's continued sympathetic dystrophy resulting in a mostly non-usable right arm and severe continuous pain in the right arm and neck. He also recounted the treatment by injections and, later, by implantation of a dorsal column stimulator. He concluded:

"My opinion to a reasonable degree of medical certainty is that [the applicant] is currently permanently disabled from his previous occupation as an iron worker. Additionally, because of the severe pain secondary to the sympathetic reflex dystrophy involving his dominant hand and a severe pain that this causes in his arm and neck, that he is to be considered between 60-70 percent disabled at this time. Additionally, because the severe gastroesophageal reflux causes him to not be able to bend over or perform other activities, it is my opinion to a reasonable degree of medical certainty, that he should also be granted an additional 10 percent disability for the gastroesophageal reflux and the contribution his chronic pain makes to worsening or aggravation this condition. My opinion is that [the applicant] will not be able to return to any sort of strenuous activity for work. He may be able to return to some sort of a totally non-strenuous, nonphysical job involving no physical exertion, and an occupation which will allow him to get up and move around, and change positions whenever he needs to. Because of severe pain, [the applicant] has no stamina whatsoever, and any work that he would perform would have to be limited to, at most, four hours per day."

Exhibit B.

Dr. Perra also signed a practitioner's report, to which was attached a letter dated October 19, 1992. In this letter, Dr. Perra states that he was the surgeon who implanted the dorsal stimulator, that the applicant had not yet plateaued from that surgery, and that he estimated a 7 percent permanent partial disability from the surgery alone as of the end of healing. He went on to state that, although he is not expert in rating disability associated with pain, he thought that if that component of the applicant's condition was considered "his disability rating is quite high as I think there will be very little that he can do in a functional standpoint, and likely nothing for which he was previously trained." Exhibit E.

The applicant was also seen by an independent medical examiner hired by the respondent, John J. Siegert, M.D. He opined that the applicant suffered a work-related carpal tunnel syndrome, and had reached a healing plateau by December 2, 1992. Dr. Siegert also opined that he had only a ten percent permanent partial disability of the arm at the shoulder. He also opined that causation of the carpal tunnel syndrome was by occupational disease, and that it left the applicant capable of "moderate level activity work." He also opined that no further treatment was necessary.

Dr. Siegert went on to state that while the carpal tunnel surgery and initial pain clinic treatment was reasonable, he doubted the necessity for the length and extensiveness of the treatment. Stated simply, the Dr. Siegert believed the applicant exaggerated his pain, based on:

1. Discrepancies between the way the applicant reported pain to Dr. Siegert and the way it was reported to the practitioners.

2. The lack of "tan lines" from a "Philadelphia collar," although the applicant told Dr. Siegert he wore one all the time.

3. Discrepancies in finger flexion on examination.

4. Lack of evidence of atrophy from disuse in the applicant's right arm.

The file also contains verified reports of vocational experts submitted by both parties. The applicant's expert, Leslie Goldsmith, issued an opinion based only on the opinions of the treating physicians. He noted the applicant's only work experience was as a skilled ironworker which requires a great deal of strength. He also noted the functional capacity evaluation, prepared by physical therapist Miller and signed by Dr. Vilims, which limited the applicant to two hours of work per day with minimal lifting. Mr. Goldsmith observed that the reports of the other treating doctors also assign a large degree of functional disability. He also noted that Dr. Gage limited the applicant to four hours per day. Mr. Goldsmith concluded that the applicant has a permanent total disability on a vocational basis.

The respondent's vocational expert, Leanne Panizich, assessed an 80-87 percent loss of earning capacity assuming the applicant could only work part-time at a physically non- demanding job. Her opinion was based in part on an assumption that the applicant could earn $5.00 to $8.00 per hour in sedentary part-time work. She noted, though, that her opinion assumed all the disability was nonscheduled, even though some of the applicant's disability affected his arm and seemed to be covered by the schedule under sec. 102.52, Stats.

Ms. Panizich went on to state that if Dr. Siegert's opinion was accepted, there would be no loss of earning capacity. As Ms. Panizich notes, Dr. Siegert found only a "scheduled disability" comparable to amputation of the arm at the shoulder. Loss of earning capacity may be awarded only for "nonscheduled disability;" that is, disability that is not rated under the schedule under sec. 102.52, Stats. See: 102.44 (4), Stats., and Mednicoff v. DILHR, 54 Wis. 2d 7, 14 (1972).

Ms. Panizich finally stated that her vocational analysis depended on the accuracy of the information provided to her. She suggested that if the applicant was able to engage in more than sedentary work, her estimate of loss of earning capacity based on the reports of the treating doctors would be much lower.

3. The videotape (Exhibit 4).

Finally, the file contains a videotape (Exhibit 4) showing the activities occurring outside the applicant's home on May 18, 1993. The videotape first shows a man and a woman, whom the applicant identified as his wife, walking out of the applicant's home at 7:43 a.m. The man, dressed in a dark, short-sleeved T-shirt, continued walking. On two occasions, he bent down without apparent difficulty, evidently to find a pet. He then returned to the home. The tape next shows the same man taking out garbage at 8:09 a.m. He carried five bags of garbage to the curb, sometimes carrying a bag in each hand. On one return trip, he rubbed his right arm. One of the bags of garbage, at least, appeared quite heavy, but the man carried it easily.

The videotape next shows a man at 1:45 p.m. dressed in a blue jacket and a cervical collar, but otherwise his clothing, particularly his pants and shirt, appeared quite similar to those worn by the subject described above. The man walked to a car and sat in a chair. He moved with great difficulty and in a very guarded fashion.

The applicant testified at the hearing that the male shown during the first two time periods could have been his brother, Tim Templin, and the person during the third time period might have been the applicant himself. The applicant also testified that he could not tell if the person carrying the garbage out at 8:09 a.m. was he instead of his brother, but that on occasion he himself has carried out light paper garbage in a bag.

The applicant testified that his brothers, including Tim, reside near him and would stop by in the mornings or afternoon to see him if they were not working. The applicant also testified he was aware he was being surveilled because he would on occasion see an unfamiliar person crouching in a rented car across the street from his home.

4. Extent of disability.

a. Functional disability.

The commission held its own hearing in this matter in order to see the applicant and his brother in person, and compare them to the videotape. Having done so, the commission concludes that the person shown in the videotape during all three periods was in fact the applicant. The commission also concludes that the applicant was exaggerating his symptoms during the third period shown on the tape, presumably because he realized that he was being surveilled.

Given the relative agility of the applicant as shown in the videotape, the commission concludes that the applicant is less disabled than he represented to his treating doctors and physical therapist Miller. The commission also relies on the observations of Dr. Siegert who concluded that the applicant was exaggerating his pain and his symptoms. Because the treating doctors relied on inaccurate and exaggerated reports of symptoms from the applicant, the commission must conclude that they overstated the extent of his disability and restrictions from the work injury.

On the other hand, the commission cannot conclude that the work injury left him with only a small amount of scheduled disability to his arm as Dr. Siegert opined. The medical records document pain in the chest, shoulders, and cervical and thoracic spine. It is the applicant's testimony about the degree of disability, not its location, that the commission questions. Finally, the commission notes that the applicant has had a surgical implantation of a dorsal column stimulator, and his treating doctor associated his gastroesophageal problems with the effects of the work injury. In short, the commission is satisfied that the applicant has disability affecting both "scheduled" and "unscheduled" areas of the body, but that it has not left him with the extensive restrictions assessed by his treating doctors.

Thus, the commission is faced with three problems concerning functional disability. First, no doctor rates the applicant for both scheduled and unscheduled disability, even though the applicant has suffered disability to his hand, arm, neck and trunk region. Second, Drs. Vilims and Gage overstate the applicant's disability based on an exaggerated presentation of symptoms, while Dr. Siegert understated the applicant's disability by failing to assess the unscheduled disability that is present. Third, the commission must determine whether and to what extent the restrictions in the functional capacity evaluation were assessed with respect to the scheduled or unscheduled components of the applicant's injury.

The commission believes that the work restrictions imposed by physical therapist Miller and adopted by Dr. Vilims were properly determined on the basis of the applicant's unscheduled disability. First, the symptoms described by Mr. Miller in his functional evaluation emphasize pain in the neck, upper back and shoulder. Dr. Vilims' December 2, 1992 note refers to limitations in motion as a result of the problems with his cervical and thoracic spine. Finally, Dr. Vilims opined that the applicant's problems could not be "separated out" and that the applicant's cervical spine, thoracic spine and right arm problems were all interrelated. To the extent that some part of the applicant's restrictions to sedentary work are based on the disability to the applicant's arm, the commission concludes from Dr. Vilims' report that the work injury may be classified as one that causes effects extending to the whole body and interferes with efficiency of the unscheduled areas of the applicant's body. Mednicoff, supra, at 54 Wis. 2d 15.

The commission also concludes that the applicant has sustained a 55 percent disability to the body as a whole, or five percent lower than the 60 percent minimum rated by both Drs. Vilims and Gage. The commission specifically concludes that this rating includes any scheduled disability to the arm that each doctor would have rated had they considered it separately, as well as the disability to the unscheduled areas of the applicant's body, including the gastroesophageal condition. Given Dr. Vilims' March 25, 1993 note, moreover, the commission does not believe that he or Dr. Gage unreasonably considered the applicant's disability as affecting his whole body.

The commission also concludes that the applicant ended his healing and plateaued at 55 percent disability to the body as a whole on December 2, 1992, as opined by Dr. Vilims' in his letter of that date. Since the employer conceded and paid temporary total disability to December 10, 1992, the commission concludes that permanent partial disability shall not begin to accrue until December 11, 1992.

b. Loss of earning capacity.

The next issue is whether, given his functional restrictions, the applicant has suffered a permanent and total impairment of earning capacity. This issue turns on the applicability of the odd-lot rule. According to the supreme court, the odd-lot doctrine is primarily an evidentiary rule. Balczewski v. DILHR, 76 Wis. 2d 487, 497 (1977). The court of appeals summarized the Balczewski decision as stating that:

"once the claimant prima facie proves 100% disability upon the basis of future unemployability, the burden is upon the employer to rebut that prima facie showing and to demonstrate 'that some kind of suitable work is regularly and continuously available to the claimant.' That court stated, in employment of the odd-lot doctrine for nonscheduled industrial injuries, that the crucial factor in establishing permanent total disability was proof of total and permanent impairment of earning capacity.... If evidence of the degree of physical disability coupled with other factors 'such as mental capacity, education, training or age, establish prima facie that the employe will be unable to obtain regular and continuous employment and is therefore in the "odd lot" category.' The burden then switches to the employer to show regular and continuous employment is available."

Advance Die Casting Co. v. LIRC, 154 Wis. 2d 239, 251-52 (Ct. App. 1989). Finally, Professor Larson has noted that in odd-lot cases "it is not unreasonable to place the burden of proof on [the employe] to establish the unavailability of work to a person in his circumstances, which normally would require a showing that he has made reasonable effort to secure suitable employment." 1C Larson, Workmen's Compensation, sec. 57.61(d) (1993).

The commission concludes that the applicant has not made a prima facie case under the odd-lot rule. Mr. Goldsmith's opinion to that effect depends on the functional capacity evaluation dated April 19, 1993. Again, however, the commission believes that this report was based on the applicant's exaggerated presentation of his symptoms. The commission has difficulty believing the applicant, as shown in the earliest two periods of the videotape surveillance, should be restricted to a two-hour, or even a four-hour, work day; that he can walk for only fifteen minutes or one block; or that he is required to rest for one-half hour every few hours because of pain.

The commission therefore concludes that the applicant's restrictions were generally overstated in the functional capacity evaluation, that he could work full time in at least a sedentary capacity, and that he has not shown that such work is not regularly and continuously available to him. Consequently, the commission concludes the applicant is not permanently and totally disabled under the odd-lot rule.

The commission also concludes that the applicant could earn at least $8.00 per hour in sedentary work. Although the wage rate is at the high end of the range set by Ms. Panizich, she assumed he would be limited to part- time work. This would work to a post-injury annual earnings of about $16,640. While Ms. Panizich opined that the full time annual wages earned by an ironworker in Wisconsin was from $36,760 to $40,840 annually, the applicant's actual earnings from 1984 through 1989 were between $30,325 in 1984 and $20,633 in 1986.

In addition, the commission notes that the applicant is of average intelligence and was 47 years old at the time of his healing plateau in 1992. Given that he worked for years as a journeyman ironworker, a skilled trade, the commission concludes that he could be retrained and should be able to adapt to an occupational change. The applicant made minimal efforts to find other suitable work, a significant omission given that the commission concludes that he has exaggerated his symptoms and the extent of this disability. After considering the record in this case in light of the factors set out in sec. Ind 80.34, Wis. Adm. Code, the commission concludes that the applicant's loss of earning capacity does not exceed 55 percent.

5. Compensation for disability.

Because the respondent conceded and paid temporary total disability for several days after the applicant reached a healing plateau, the applicant is not entitled to any additional award for temporary total disability.

However, the applicant has sustained a permanent partial disability of 55 percent compared to permanent total disability to the body as a whole, accruing as of December 11, 1992. The applicant is thus entitled to 550 weeks of permanent partial disability benefits at the statutory maximum for injuries occurring in 1990, $131 per week. This results in a total additional award for permanent partial disability of $72,050. As of May 5, 1995, 125 weeks of permanent partial disability will have accrued amounting to $16,375. As noted above, the respondents previously conceded and paid $6,550 in permanent partial disability (50 weeks at $131 per week).

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional 500 weeks of permanent partial disability benefits awarded in excess of the 50 weeks conceded. The total fee is thus $13,100 {20 percent of ($72,050 minus $6,550)}. Of that amount only the fee attributable to the first 75 weeks of additional permanent partial disability ($1,965) has yet accrued; the fee attributable to the final 425 weeks ($11,135) remains unaccrued. As a result, the unaccrued fee is subject to an interest credit of $2,530.46, leaving a net unaccrued fee which reflects its present value of $8,604.54. The present value of the total fee (the accrued fee plus the present value of the unaccrued fee) is $10,569.54. This sum shall be deducted from the applicant's award as set out below and paid within 30 days.

The amount of $7,860 is immediately due to the applicant under this order and shall be paid to him within 30 days. This is determined by starting with the permanent partial disability benefits accrued to May 5, 1995 ($16,375), then subtracting the amount already paid by the respondent for permanent partial disability ($6,550) and the accrued attorney fees on the difference ($1,965).

The amount remaining to be paid to the applicant as it accrues beginning on June 5, 1995 is $44,540. This is determined by starting with the unaccrued permanent partial disability, which equals the total award for permanent partial disability ($72,050) less the amount of permanent partial disability accrued to May 5, 1995 ($16,375). From the unaccrued permanent partial disability ($55,675) must be subtracted the unaccrued attorney fee without deducting the interest credit ($11,135), leaving $44,450 remaining to be paid. This amount shall be paid to the applicant in monthly installments of $567.67, beginning June 5, 1995.

6. Medical expenses and other issues.

The next issue is medical expenses. As pointed out above, the commission concludes only that the applicant exaggerated his symptoms, not that he did not continue to suffer some disability and pain from the effects of the injury. The commission therefore finds the following medical expenses to be reasonable and necessary to cure and relieve the applicant from the effects of the October 11, 1990 work injury: to Physicians Plus Medical Group, the sum of $45.50; and to Meriter Hospital, Inc., the sum of $3,092.25. The applicant also traveled 2,760 miles between September 17 and October 24, 1993, and 120 miles on February 1, 1994, to obtain medical treatment. The commission orders reimbursement at the rate of $0.24 per mile for travel in 1993 and $0.26 for travel in 1994, amounting to a total of $693.60.

The applicant did not request vocational rehabilitation in his application, and indeed introduced a document from the division of vocational rehabilitation (DVR) in the department of health and social services tending to establish that retraining would be futile (Exhibit N). However, the commission recognizes that the letter from DVR is dependent to a large extent on functional capacity and work restrictions which the commission finds questionable on the basis of the videotape. Under these circumstances, the commission does not wish to foreclose the possibility of vocational retraining, and retains jurisdiction to permit the applicant to pursue vocational retraining and benefits under sec. 102.43 (5) and 102.61, Stats., within a reasonable period of time. If the applicant is certified for vocational retraining, however, it may be necessary to redetermine the permanent partial disability rating under this order.

The applicant has applied for social security benefits. If social security disability insurance is awarded, the worker's compensation benefits may have to be recalculated. In addition, further medical treatment may be necessary to cure and relieve the applicant from the effects of this injury. Jurisdiction is therefore reserved as provided in the preceding paragraph, and on issues of the possible social security offset and future medical treatment expenses.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified is affirmed in part and reversed in part. Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Benjamin Templin, the sum of Seven thousand eight hundred sixty dollars ($7,860) for permanent partial disability.

(2) To the applicant's attorney, Robert A. Kay of Madison, the sum of Ten thousand five hundred sixty-nine dollars and fifty-four cents ($10,569.54) as attorney fees.

(3) To Physicians Plus Medical Group, the sum of Forty-five dollars and fifty cents ($45.50) for medical treatment expenses.

(4) To Meriter Hospital Inc., the sum of Three thousand ninety-two dollars and twenty-five cents ($3,092.25) for medical treatment expenses.

(5) To the applicant, Benjamin Templin, the sum of Six hundred ninety-three dollars and sixty cents (693.60) for medical mileage.

Beginning on June 5, 1995, and continuing on the fifth day of each month thereafter, the employer and the insurer shall pay the applicant, Benjamin Templin, the sum of Five hundred sixty seven dollars and sixty-seven cents ($567.67) each month until the sum of Forty-four thousand five hundred forty dollars and no cents ($44,540.00) has been paid. Jurisdiction is retained to issue such further orders as are consistent with this decision.

Dated and mailed April 25, 1995
ND � 5.20 � 5.31 � 9.2

Pamela I. Anderson, Chairman

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge told the commission that he found the applicant to be a credible witness about the extent of his disability based on the way he presented himself at the hearing. He went on to state, as he did in his decision, that he could not tell for certain whether the applicant was the subject of the videotape shown at the hearing, Exhibit 4. However, the administrative law judge told the commission that he would have discredited the applicant's testimony if the applicant were the person shown in the videotape.

The commission ordered further hearing so that it might see the applicant in person and compare him to the videotape. The applicant, his counsel, and the applicant's brother Tim all appeared at the hearing before the commission. At its hearing, the commission chairman placed the brothers under oath, and asked them to identify themselves. The commission also played the videotape admitted as Exhibit 4. As stated above, based on the commission's personal observation of the applicant and his brother, the commission was convinced the applicant, not his brother, was the subject of the videotape.

The applicant objected generally to the hearing before the commission as a violation of his due process rights and of sec. 102.18 (3), Stats. The applicant contends that the commission may only order further hearing before an administrative law judge. However, sec. 102.18 (3), Stats., which allows the commission to direct the taking of additional evidence, does not so restrict the commission. In addition, the commission has explicit authority to take testimony under sec. 101.03, Stats. Such authority is also consistent with the commission's ultimate authority to find facts in worker's compensation cases. Indianhead Truck Lines v. Industrial Commission, 17 Wis. 2d 562, 567 (1962).

Finally, the commission awarded medical mileage, as requested in the applicant's brief, based on its conclusion that the treatment was necessary and its belief that the administrative law judge unintentionally omitted it from his decision.

Richard T. Kreul, Commissioner, (Dissenting)

I cannot agree with the decision of the majority of the commission in the case at hand and I dissent. The ALJ made a very thorough and carefully researched decision. After reviewing the file and watching some questionable footage of a poorly documented videotape, the commission ordered further hearing in an attempt to support the decision they ultimately reached. The applicant and his brother were in attendance along with his attorney and the attorney for the respondent.

From my personal observations at this hearing, I conclude that the decision of the ALJ was the only just and proper one and that any decision that would whittle this award down would be very narrow and unjust to the applicant. As the result of the special hearing, I conclude that the applicant is totally disabled and without a doubt will be unable to perform any type of employment. Further, the amount of pain and suffering that he is enduring on a daily basis has been well-established and should be beyond compromise. A fundamental tenet of this state's worker's compensation system is to fairly compensate an injured worker, and I cannot conclude that the majority's action reaches that result in this case. A fundamental tenet of this state's worker's compensation system is to achieve fundamental fairness in its results, and I cannot conclude the majority's action reaches that result.

For these reasons I dissent.

Richard T. Kreul, Commissioner

cc: ATTORNEY JOHN A GRINER IV
SPINDLER ROITBURD SCHWEMER & GRINER

ATTORNEY ROBERT A KAY

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