DOROTHY REED, Applicant
WAL MART STORES INC, Employer
ILLINOIS NATIONAL INSURANCE CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard this matter on February 19, 2004. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded a compensable injury on April 22, 2000, an average weekly wage on that date of $362, certain periods of temporary disability from the injury, and permanent partial disability at 5 percent. At issue was whether the applicant was also injured on May 9, 2000, January 26, 2002 and May 9, 2002. Also at issue was the nature and extent of the applicant's disability beyond that conceded for the conceded injury and for the non-conceded injuries, as well as liability for medical expenses.
The ALJ issued his decision in this matter on May 18, 2004. The applicant filed a timely petition for commission review.
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. Facts.
a. Injury and treatment.
The applicant was born on November 20, 1962. She held a variety of jobs before June 1999 when she began working for the employer as a stocker and department manager. While lifting a box while stocking on April 22, 2000, she felt the onset of back pain radiating to her legs. Although she was able to finish her work shift that day, the following day she was unable to get up. She presented at a local emergency room on April 23, 2000, and was prescribed analgesic medication and excused from work. She contacted the employer who directed her to Tosha Wetterneck, M.D., who diagnosed a moderate lumbar strain.
Dr. Wetterneck prescribed conservative treatment consisting of analgesic medication and physical therapy. The applicant returned to work after about one week but on May 11, 2000, experienced a significant increase of symptoms, including numbness and tingling in the feet, while lifting a heavy item at work. She returned to see Dr. Wetterneck who again excused her from work. On follow-up Dr. Wetterneck ordered physical therapy and later an MRI examination, which was conducted June 15, 2000. Dr. Wetterneck referred the applicant to an orthopedic surgeon, Clifford Tribus, M.D.
Dr. Tribus saw the applicant June 22, 2000, and reviewed the MRI scan, which revealed a left paracentral disc herniation at L5-S1 encroaching on the S1 nerve root and a smaller left paracentral disc herniation at L4-5. An EMG examination and an epidural anesthetic and steroid injection was recommended. The applicant declined the epidural injection, but underwent the EMG examination on July 6, 2000, which was viewed as normal.
On July 12, 2000, the applicant saw Frank Salvi, M.D., on referral. Dr. Salvi concurred with the prior diagnosis of disc herniation at L5 and L4-5. He also recommended an epidural injection and she again declined. On July 18, 2000, Dr. Wetterneck returned the applicant to part-time, light work and recommended an epidural steroid injection, which the applicant again declined. On July 25, 2000, Dr. Wetterneck again excused her from work.
The applicant continued to see Dr. Wetterneck, who ordered a repeat MRI October 13, 2000. This was unchanged from the earlier study. Conservative treatment continued under Dr. Wetterneck. On October 30, 2000, she again saw Dr. Salvi and again declined epidural injection treatment. On November 28, 2000, the applicant was referred for chiropractic manipulation. From January 12, 2001 through October 26, 2001, the record documents 21 such treatments. The applicant continued to see Dr. Wetterneck, with visits on December 18, 2000, January 11, 2001, January 25, 2001, and February 8, 2001, when the applicant was again referred to Dr. Salvi for consideration of surgical intervention.
Dr. Salvi saw her February 12, 2001, and in turn referred her to an orthopedic surgeon, Dr. Clifford Tribus who saw her March 12, 2001. Dr. Tribus did not recommend surgical intervention. She saw Dr. Wetterneck on follow-up on March 22, 2001. At that time Dr. Wetterneck said she had nothing left to offer the applicant. The applicant then saw Dr. Salvi April 30, 2001. She declined to accept his recommendation for trigger point injections. The applicant next saw Dr. Wetterneck May 17, 2001 and May 9, 2001. She next saw Dr. Wetterneck on August 7, 2001, and again on December 6, 2001.
While working on January 26, 2002, she experienced an increase in symptoms and for this obtained medication at an emergency room that day. She next saw Dr. Wetterneck January 31, 2002, who excused her from work until February 5, 2002, and then with temporary restrictions until February 14, 2002. She next saw Dr. Dale Gerdes on May 9, 2002. On May 14, 2002, she was excused from work for one week because of an increase in symptoms from work. She saw Dr. Wetterneck on June 17, 2002. She saw Dr. Salvi August 5, 2002, at which time a repeat MRI was ordered and the applicant was excused from work until it was performed August 23, 2002. Dr. Salvi also referred the applicant for a surgical consultation with Dr. Thomas Zdeblick, which occurred September 6, 2002. At that time the applicant declined Dr. Zdeblick's surgical recommendation.
Thereafter, the applicant saw various practitioners for back pain including Pamela Ryan, M.D., on April 17, 2003. Following examination on August 21, 2003, Dr. Salvi reported an end of healing.
b. Expert opinion
The parties submit substantial expert medical opinion concerning the cause and extent of disability.
Dr. Salvi reported that the applicant experienced initial back and leg pain after bending, twisting and lifting on April 22, 2000, which directly caused the applicant's disability. He noted, too, that she had subsequent exacerbations with bending, twisting and lifting on May 9, 2000, January 26, 2000, and May 9, 2002, which precipitated, aggravated, and accelerated her condition beyond its normal progression. Dr. Salvi rated permanent disability of seven percent as compared to permanent and total disability. He restricted her to working no more than four hours per day with a maximum lift of 20 pounds occasionally and 10 pounds frequently, a mild restriction in driving, exposure to marked atmospheric change and being around moving machinery and a total ban on activities involving unprotected heights. He noted that the hourly limitations were based in part on the applicant's refusals of recommended treatments.
At the request of the respondent, the applicant was examined by Dr. David A. Solfeldt on January 31, 2001. Dr. Solfeldt concluded that the applicant sustained an L5-S1 disc protrusion, lateralizing to the left as a result of the accidental injury of April 22, 2000. He reported a healing plateau to have been reached November 20, 2000. He rated permanent disability at 5 percent as compared to permanent and total disability. He found prior treatment to have been reasonable and necessary with the exception of the repeat MRI. He recommended the applicant be weaned from narcotic analgesics. Dr. Solfeldt declared permanent restrictions of maximum lifting of 40 pounds occasionally and 20 pounds intermittently, no regular repetitive bending and lifting and avoidance of climbing and crawling. There were no restrictions on work hours. He noted that if the applicant were unable to function with these restrictions it would be an indication for additional medical intervention.
The applicant was also examined at the request of the respondent by Dr. Kenneth Yuska on January 30, 2004. Dr. Yuska concurred with Dr. Solfeldt's opinions on causation, end of healing and permanency. Dr. Yuska opined that chronic use of morphine medication was inappropriate. He reported permanent restrictions of 35 pounds occasionally and 20 pounds frequently. He also imposed no restriction on the number of hours worked.
The parties also submit expert opinion on the vocational effect of the work restrictions set by the medical doctors.
The applicant's vocational expert, Leslie Goldsmith, assumed a loss of earning capacity of 70 percent if the applicant worked 12 hours a week, and 50 percent if she worked 20 hours a week, under Dr. Salvi's restrictions assuming she kept her job with the employer. Without her job, but with the ability to work 20 hours a week, he rated loss of earning capacity at 55 to 60 percent. Mr. Goldsmith did not rate loss of earning capacity under the restrictions of Drs. Solfelt or Yuska.
The respondent's vocational expert is Michele Albers. She rates a 35 to 50 percent loss of earning capacity under Dr. Salvi's restrictions. She rates no loss of earning capacity under the restrictions of Drs. Solfelt or Yuska, unless the applicant lost her job with the employer, which would result in a 5 to 10 percent loss for loss of access.
2. Discussion
a. Date of injury
The applicant claims several dates of injury. Indeed, Dr. Salvi attributes 3 percent of the 7 percent permanent partial disability he rated to exacerbations occurring at work in 2000 and 2002, which he suggested aggravated her pre-existing condition from the original injury beyond its normal progression. However, the commission, after carefully reviewing all the evidence, concludes from the medical notes and the opinions of the other medical experts that the applicant sustained only one work injury causing permanent disability, the injury on April 22, 2000, and her subsequent exacerbations with work exposure were due to the permanent effects of that injury.
b. Refusal to treat
The next question is the extent of disability from the injury, which implicates the question of whether the applicant's refusal of epidural steroid injections justifies or requires the denial of compensation under Wis. Stat. § 102.42(6). That statute, which has been described as an exception to an employer's general liability for treatment, Klein v. Industrial Salvage, 80 Wis. 2d 457, 463-64 (1977), provides:
102.42 (6) Treatment rejected by employee. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby.
The statute appears to be an outgrowth of the supreme court's holding in Lesh v. Illinois Steel Co., 163 Wis. 124 (1916). In that case, the court -- citing principles from tort law -- discussed the rationale behind the rule for denying worker's compensation benefits when a worker unreasonably refuses treatment for a work injury. (1)
The parties cite Braun v. Industrial Commission, 36 Wis. 2d 48 (1967), a case discussing Wis. Stat. § 102.42(6) itself. (2) There, a worker underwent skin grafting on his feet. He left the hospital, walking on his feet, against medical advice, returned to the hospital and left again contrary to medical advice. He continued to treat on an outpatient basis until the date of hearing. The commission paid the claimed medical expense, and the court affirmed. However, the court went on to note that the worker impeded his final cure by leaving the hospital against advice, and cautioned the commission to look with strict discerning scrutiny on any claim for benefits after the date of hearing. Further, in assessing the worker's conduct, the court rejected the idea the applicant was not unreasonable in leaving the hospital in that he had already been in the hospital for eight weeks when the surgery was performed, that he was depressed and lonely, and that he in fact sought treatment thereafter, only on an outpatient basis. The court stated:
This argument is amiss. The unreasonableness of a claimant's actions is judged by an objective standard. The employer may have to take an employee "as he is" in regard to his physical injury, but not as to his refusal or neglect to follow competent and reasonable medical treatment.
Id., 36 Wis. 2d 61.
Finally, the supreme court has held that this exception to liability only applies when the respondent has offered to pay for or provide the treatment and "when treatment is not offered by the employer it cannot be refused under [Wis. Stat. § 102.42(6)]". Klein Industrial Salvage V. ILHR Department, 80 Wis. 2d 457, 463-65 (1977).
In this case, the commission concludes the applicant did not unreasonably refuse or neglect to submit to or follow competent and reasonable medical advice. It is true she refused the epidural injections, which her treating doctors recommended. However, while the Lesh case does indicate a person should undergo minor surgery -- at least if an ordinarily prudent and courageous person would submit to the surgery if no question of compensation was involved -- the court indicated its concern was with the situation where a worker might "create, continue, or even increase his disability by his wilful, unreasonable, and negligent conduct." Further, the Lesh holding has been modified by the statute which uses the standard "unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment." That the standard is not met simply because the treatment is reasonable, rather the refusal to undergo it must be unreasonable.
Here, after Dr. Tribus first suggested an epidural injection and EMG examination on June 22, 2000, the applicant told Dr. Wetterneck she had reservations with both procedures because she was reluctant to have needles stuck in her. Exhibit G, note of Wetterneck dated June 27, 2000. However, she agreed to have the EMG examination, and in fact underwent that procedure, her concern about needles notwithstanding.
The applicant testified she refused the steroid injections because she had had swelling with a prior IVP dye injection. Transcript, page 30. She discussed the epidural injection with Dr. Salvi -- evidently mentioning the dye allergy as well as an unsatisfactory experience with a prior epidural injection -- as his note states:
"RECOMMENDATIONS: I would recommend that she proceed with an epidural anesthetic and steroid injection. We discussed the question of past epidural injection at the time of a remote pregnancy when she felt significantly increased back pains. It is doubtful that fluoroscopy was used to help guide that epidural. The patient is extremely reluctant to proceed with any type of injection treatment. She still wonders whether or not surgery might be an option, although she admits that she is not having any progressive loss of neurologic function or bowel or bladder dysfunction. I am unclear about what the reported IVP dye allergy represents, but should she eventually decide that she wants to proceed with an epidural type of treatment, this would need to be explored in greater detail."
Exhibit G2, report of Salvi note of July 12, 2000.
As the court pointed out in Braun, the unreasonableness of a claimant's actions is judged by an objective standard. However, the commission infers the objective standard does not rule out consideration of the applicant's individual circumstances or treatment history. Further, whether to undergo medical treatment recommended by doctors is often a question on which reasonable minds may differ. The question posed by Wis. Stat. § 102.42(6) is not whether a reasonable person in the applicant's situation would undergo the procedure, but whether only an unreasonable person -- that is, a person acting unreasonably -- would refuse the procedure. (3)
The commission cannot conclude that the applicant acted unreasonably in refusing treatment here. The applicant told Dr. Salvi she had had a problem with increased back pain from a prior epidural injection. Dr. Salvi apparently told her that risk would be lessened as the injection would be guided by fluoroscopy. His note also reports that her concerns about an IVP dye allergy would have to be investigated further. In short, the doctor does not reject either of the applicant's medical concerns with the epidural injection out-of-hand.
Further, while the doctors agree the steroid injection is the next reasonable step, none have opined her refusal to take it is unreasonable. They do suggest that it is impeding her recovery, and Dr. Salvi stated his restrictions are based in part on her refusal to undergo the epidural injection. But that is not the same as saying the applicant acted unreasonably in refusing to undergo the procedure.
As the ALJ observed, the department consistently holds that it is not unreasonable to refuse treatment involving risk to life or limb, including treatment under general anesthesia. That does not mean, however, that if a recommended treatment does not require surgery under anesthesia, a worker acts unreasonably in refusing it. Further, the facts in this case are far from the behavior of the worker in Braun, who left the hospital and walked on the site of a recent skin graft because he was lonely in the hospital. In sum, the commission declines to apply Wis. Stat. § 102.42(6) to limit or deny the applicant's compensation in this case.
c. Extent of disability.
The next question is the extent of the applicant's temporary disability from the work injury. As to the length of the healing period, the commission, like the ALJ, finds February 20, 2001, the date upon which the respondent ceased paying temporary disability benefits in accordance with Dr. Solfeldt's opinion, to be the appropriate date for the end of entitlement to temporary disability benefits. Dr. Solfeldt's report was dated January 31, 2001, but it must be inferred that the contents did not become apparent to the parties until February 20, 2001, and the respondent does not challenge the ALJ's use of the later date on appeal.
The applicant's visits to medical practitioners after February 20, 2001, resulted in only palliative measures with no showing of any additional healing or active treatment to that end. However, exacerbations occurred resulting in renewed periods of temporary disability from January 31, 2002 to February 14, 2002, May 14, 2002 to May 26, 2002, and a period of qualifying active medical treatment from August 5, 2002 to August 23, 2002.
The applicant seeks a later date of healing to August 21, 2003, based on Dr. Salvi's opinion. However, Dr. Salvi had previously noted the applicant's condition was "unchanged" over a year earlier when he issued work restrictions. See exhibit A, May 20, 2002 estimate of capabilities. While the applicant was subject to periodic exacerbations of her conditions after February 20, 2001, her condition had progressed to the point that there had "occurred all of the improvement that [was] likely to occur as a result of treatment and convalescence," Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960).
The next question is the extent of the applicant's permanent disability. As to functional permanency, the opinion and report of the treating practitioner, Dr. Salvi is most credible. Dr. Salvi had the benefit of treating the applicant over an extended period of time. His report is in persuasive detail, and again, the respondent does not challenge the ALJ's decision to credit Dr. Salvi's rating on appeal. The commission therefore finds the applicant sustained permanent partial disability on a functional basis at 7 percent.
Because the applicant has not returned to work with her time-of-injury employer with an actual wage loss of less than 15 percent, the question of permanent disability on a vocational basis for loss of earning capacity for this unscheduled disability must also be considered. See Wis. Stat. § 102.44(6). The first step in this analysis is to determine which doctor's work restrictions are most credible. The commission credits Dr. Salvi's restrictions. They are most in line with the applicant's complaints from her symptomatic disc herniation, which require her to take medication that makes her feel "loopy." The restriction to 20 hours a week is supported by a restriction set by the applicant's current doctor, Dr. Ryan, though she of course limits the applicant's hours even more. The commission questions Dr. Yuska's restrictions, which do not limit bending and twisting, in contrast to restrictions set by both treating doctor Salvi and respondent's examiner Solfelt. Further, Dr. Solfelt forthrightly acknowledged that the applicant might not be able to work within the restrictions he set.
The next step is to determine the effect of the work restrictions on the applicant's earning capacity in terms of present and potential earnings, in light of the reports of the vocational experts and the various factors including the applicant's age, education, training, work experience, and prior earnings. See Wis. Stat. § 102.17(7)(a) and Wis. Admin. Code § DWD 80.34(1). At the time of hearing, the applicant was working 15 hours a week for the employer under hourly restrictions set by her treating doctor, Pam Ryan, M.D. See transcript, pages 38-39; Exhibit 3, report of Albers, page 3; exhibit C, August 28, 2003 report of Ryan. She continues to have pain symptoms and takes medications which make her feel "loopy." Transcript, page 32. She has pain with bending and lifting, and experiences increased back and leg pain at the end of a work shift. Transcript, page 43. Her doctors have prescribed a cane, which she occasionally uses.
The commission notes the applicant is currently working under a 15 hour a week restriction set by Dr. Ryan, which is less than the 20 hours set by Dr. Salvi. An increased loss from this reduction in hours of employment, however, is offset by the applicant's refusal to undergo the epidural injection. While that refusal may not result in an outright bar of disability compensation, it is a factor that militates toward a lower loss of earning capacity under Wis. Admin. Code § DWD 80.34(1)(j).
The applicant was 38 when she reached an end of healing, which is a relatively neutral factor, though her vocational expert described her as a younger worker. She did not graduate from high school but obtained a GED, and has a completed certification in cosmetology. Testing done by the respondent's vocational expert indicates a 5.5 grade level in sentence comprehension and a 10.5 grade level in paragraph comprehension, though the applicant's vocational expert did not detect significant deficits in her basic skills. She has significant prior employment history, but of course this is offset by her current work restrictions. The commission considers her education, academic skills, prior employment history, and transferable skills to suggest a relatively higher loss of earning capacity.
Balancing these factors, the commission is satisfied the applicant has a loss of earning capacity at 50 percent, which is the intersection of the ratings given by the experts under Dr. Salvi's restrictions.
3. Award.
Based upon the foregoing, the applicant is entitled, as a result of the compensable injury of April 22, 2000, to $1,627.54 in additional temporary disability compensation during periods of exacerbation as follows:
The applicant has also sustained permanent partial disability at 50 percent, into which are considered Dr. Salvi's functional ratings totaling 7 percent and his loss of earning capacity at 50 percent. While Dr. Salvi does attribute 3 percent of the 7 percent functional disabilities to exacerbations of the original work injury occurring at work in 2000 and 2002, the commission concludes that these were exacerbations of the April 22, 2000 injury, and not new injuries. Consequently, benefits shall be based on the rate of compensation for injuries in 2000.
The applicant is therefore entitled to 500 weeks of permanent partial disability at the weekly rate of $212, yielding a total of $92,000. As of May 9, 2005, 214 weeks of permanent disability compensation totaling $39,376 have accrued; 286 weeks totaling $52,624 remain unaccrued. The respondent previously conceded and paid permanent partial disability compensation at 5 percent, or $9,200, so that the total additional amount awarded in PPD equals $82,800.
The applicant approved an attorney fee set under Wis. Stat. § 102.26, at 20 percent of the additional amounts awarded hereunder. The future value of the fee equals $16,885.51 {0.20 times ($1,627.54 plus $82,800)}. However, the fee is subject to an interest credit of $1,794.05 to reflect the advance payment of fee attributed to unaccrued permanent disability. This present value fee due the applicant's attorney is thus $15,091.46 which, together with costs of $1,357.13, is due to the applicant's attorney within 30 days.
The amount due the applicant within 30 days for accrued disability compensation to May 9, 2005, is $24,085.70, which equals the sum of the TTD award ($1,627.54) and the total accrued PPD ($39,376), less the amounts already paid ($9,200), less the fee on the TTD and accrued unconceded PPD ($6,360.71), and less the attorney costs ($1,357.13). The amount remaining to be paid to the applicant as it accrues after May 9, 2005, is $42,099.20, which equals the unaccrued portion of the award ($52,624), less the future value of fees ($10,524.80) thereon. That amount shall be paid to the applicant in monthly installments of $797.33 per month, beginning on June 9, 2005.
The parties do not contest the ALJ's resolution of the issue of medical expenses on appeal, accordingly his findings on that point are substantially reiterated. As a further result of the work injury the applicant incurred necessary medical expenses of $171.30 from LSM Chiropractic Clinic of which $14.92 was paid by Unity/Dane MA; $12,702.68 from UW Health/UW Hospitals and clinics, of which $10,064.01 was paid by unity/Dane MA and $201.68 by Claims Management; $8,043 from UW Health/Physicians Plus, of which $2.898.79 was paid by Unity/Dane MA and $1,631.30 by II National; $39.38 from UW Health Pharmacy, which was paid by Unity/Dane MA. The respondent shall further reimburse the applicant $540.70 for prescription expenses paid and mileage incurred in traveling for medical treatment.
The respondent requested, without objection, an opportunity to assess the reasonableness of the fees, which was granted by the ALJ. The commission assumes that this has occurred. It therefore shall award medical expenses as set out above, subject to that assessment.
The applicant may undergo further treatment resulting in further periods of temporary disability, additional (or reduced) permanent disability, and additional medical expenses. This order shall be left interlocutory for further orders and awards as are 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, the employer and its insurer shall pay all of the following:
Subject to having successfully challenged the reasonableness of the expenses, the employer and its insurer shall pay within 30 days of the date of this order, all of the following:
Beginning on June 9, 2005, and continuing on the ninth day of each month beginning thereafter, the employer and its insurer shall pay the applicant the amount of ($797.33) per month, until the total additional amount of ($42,099.20) has been paid.
Jurisdiction is reserved for further findings and awards as are warranted and consistent with this decision.
Dated and mailed May 24, 2005
reeddo . wrr : 101 : 8 ND § 5.49
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission's decision incorporated much of the ALJ's careful and through recitation of the treatment history and expert opinion in this case. The commission conferred with the ALJ concerning witness credibility and demeanor concerning the failure to treat issue. The ALJ told the commission he felt the applicant did not want to have the epidural injection because she did not want to have needles stuck in her. He added that he did not think the applicant was refusing the epidural injection in an attempt to increase her award.
However, the commission was persuaded that the applicant's refusal involved more than a desire to avoid having needles stuck in her. The applicant voiced that concern in the visit with Dr. Wetterneck on June 27, 2000, in connection with both the EMG examination and the epidural injection. Nonetheless, the applicant did eventually undergo the nerve conduction testing, a procedure that does involve needles. Consequently, the commission concluded the applicant's failure to treat was not due solely to an unwillingness to undergo injection by needle, but was also due to a prior experience with swelling from an IVP dye -- a concern which Dr. Salvi indicated warranted further investigation -- and to her dissatisfaction with a prior procedure involving epidural injection.
cc:
Attorney Robert A. Kay
Attorney Joseph Danas, Jr.
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