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

RICHARD L HANSEN JR, Applicant

THE GUTTER COMPANY INC, Employer

ALPHA TECH INC.

TRAVELERS INSURANCE CO, Insurer

FRANKENMUTH MUTUAL INSURANCE CO

WORKER'S COMPENSATION DECISION
Claim Nos. 1996-048021, 1991-044785


The applicant sustained a conceded 1991 injury at Gutter Company (Travelers Insurance) that resulted in a two-level fusion with disc removal at C5-6-C6-7. The surgery was performed in 1991 and 10 percent permanent functional disability was assessed by the treating physician.

The applicant sustained another injury in 1996 at Alpha Tech (Frankenmuth Insurance) that resulted in a single-level fusion with disc removal at C4-5. An additional 5 percent permanent functional disability was assessed.

In an order issued on March 4, 2004, the administrative law judge found that the applicant was entitled to 10 percent permanent functional disability for the 1991 injury, and 30 percent loss of earning capacity for the 1996 injury. The applicant petitioned and asserted that he should have received 20 percent permanent functional disability for the 1991 injury. Alpha Tech and Frankenmuth petitioned regarding the loss of earning capacity award, but subsequently reached a compromise with the applicant that has now been approved by the department. The only issue left before the commission is the amount of permanent functional disability due for the two-level cervical fusion done in 1991.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and sets aside in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


On August 26, 2004, the department issued an order approving a full and final compromise between the applicant and Alpha Tech Inc./Frankenmuth Mutual Insurance Company regarding the conceded work injury of August 7, 1996. Accordingly, the findings made by the administrative law judge in her decision of March 4, 2004, regarding that injury, are set aside.

The applicant asserts that pursuant to Wis. Admin. Code ch. 80.32(11), and more recent commission decisions interpreting that code section, the minimum permanent disability assessment for a two-level cervical fusion is 20 percent.

However, the commission decisions implementing the rule that a cervical fusion involving removal of disc material results in 10 percent permanent functional disability for each cervical level are based on the changes in DWD 80.32(11), that became effective July 1, 1994. Prior to those changes the department and the commission only awarded five percent as the minimum for a cervical fusion, even though it included removal of disc material. This is because the only relevant provision in the administrative code prior to July 1, 1994, provided for five percent permanent disability for a cervical fusion. In the 1994 code change, a provision was added that provides five percent permanent disability for removal of any disc material, and an explanatory note provides that an additional five percent is to be paid for the fusion procedure itself. See Terry Manka v. Wittman Builders and American Family Insurance, WC Claim No. 940522401 (LIRC Nov. 25, 1997).

Unfortunately for the applicant, his injury and surgery occurred prior to the code change. The applicant argues that the 1994 language change merely constituted a clarification of existing law, which he asserts always intended a ten percent minimum for each level of cervical fusion. The applicant's argument is not supported by the pre-1994 code language, and is contrary to the actual practice of the department and the commission for the pre-1994 period. Accordingly, the applicant is entitled to the code minimum of ten percent permanent partial disability for his 1991 two-level cervical fusion. This is identical to Dr. Major's actual assessment of permanency for that surgery. This amounts to 100 weeks of accrued compensation at the applicable rate of $137.00 per week for a total of $13,700.00, which has been previously paid by Travelers Insurance Company.

The administrative law judge indicated in her decision that the issue of liability for medical expense attributable to the 1991 work injury was not litigated at the hearing and remained open. No one has indicated to the commission that this medical expense issue was ever finally resolved, and therefore this order will be left interlocutory with respect to that issue. Dr. Major indicated that the applicant has continued to experience neck symptoms, and it is unclear from the record whether any such symptoms are attributable to the effects of the 1991 work injury. Accordingly, the order will also be left interlocutory with respect to the possibility of future medical expense and/or disability attributable to that injury.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Interlocutory Order of the administrative law judge are affirmed in part and set aside in part. Travelers Insurance Company previously paid the applicant $13,700.00 in permanent partial disability which was due for the 1991 work injury.

As noted above, jurisdiction is reserved with respect to medical expense and possible future compensation for the 1991 work injury. All claims relative to the 1996 work injury have been resolved through compromise.

Dated and mailed August 9, 2005
hanseri . wpr : 185 : 8 ND § 5.18

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc:
Attorney Robert T. Ward
Attorney Paul R. Riegel
Attorney John S. Griner IV


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