DAVID TIRADO, Applicant
HARTERS QUICK CLEAN UP INC, Employer
AMCOMP ASSURANCE CORPORATION, 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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed October 11, 2005
tiradav . wsd : 101 : 4 ND § 3.38
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Background facts.
The applicant suffered a conceded compensable wrist injury. He also claims to have suffered a herniated disc in his back while doing a back or leg stretch that he was given by a treating physical therapist for back and leg stiffness due to work hardening therapy ordered for his wrist injury after he had become deconditioned by time off work because of the wrist.
The ALJ credited the applicant's testimony that he was prescribed the back stretches due to his pain upon starting work hardening with a deconditioned back. The applicant ordered the payment of disability compensation and medical expense. The employer and its insurer (collectively, the respondent) appeal, contending that the back injury is not compensable and that the record does not support the temporary disability award.
The applicant submits expert testimony from surgeon McDonnell to support his back claim. Dr. McDonnell's first report dated March 24, 2004 (Exhibit B) was done between the first and second disc surgeries. The report states that the applicant injured his left hand in a motor vehicle accident at work, and was recovering and doing exercises including stretch exercises. While performing the exercises, the doctor continued, the applicant experienced a pop and significant, progressive, low back pain. The doctor added that the applicant likely had degenerative disc disease before the November 5, 2003 injury, but that the stretching just aggravated a preexisting condition that resulted in the herniated disc.
Providing after-the-fact support for the applicant's contention he had been prescribed with stretching exercises because of stiffness from deconditioning due to the work injury, the doctor added:
Stretch exercises and hip flexion exercises are good for general conditioning. Anyone who is inactive for any period of time regardless of the cause would benefit from doing such exercises. The fact that the episode occurred while he was doing stretch exercises does not in and of itself mean that the stretch exercises caused the herniated discs. It only exacerbated a preexisting condition as previously stated.
In line with the "exacerbation of a pre-existing condition" theme, Dr. McDonnell marked all three causation boxes on his accompanying practitioner's report form, but added "contributing factor" to the direct causation box. The commission reads Dr. McDonnell's report to establish that the stretching accident precipitated, aggravated, and accelerated beyond normal progression a preexisting degenerative condition.
Dr. McDonnell indicated that the applicant would not require additional medical treatment and that he had qualified for a five percent permanent partial disability under the administrative code. The doctor stated both that the applicant's "recovery from the herniated disc has been slow, but he is recovering" and that "he has pretty much recovered from the lumbar disc surgery." After this report, of course, the applicant in fact needed more treatment. Specifically, he experienced continuing pain for which he had injections and underwent a repeat discectomy surgery on May 13, 2004.
Following this second surgery, Dr. McDonnell wrote another practitioner's report dated January 7, 2005. Exhibit A. The doctor noted the recurrent disc required repeat surgery on May 13, 2004 "and has been recovering quite well following this procedure." Nonetheless, the doctor reported that the applicant has erectile dysfunction and incomplete bladder emptying. The doctor estimated permanent partial disability at ten percent for the two surgeries "followed by elements of cauda equina syndrome."
The employer offers the opinion of Aftab Ansari. He opines that the back stretching exercises performed in November 2003 were not in any way related to the wrist injury. Exhibit 4, Ansari report dated October 27, 2004, point 7.
2. Is the back injury compensable?
As noted above, if an injured worker suffers an additional disability as a consequence of treatment for a work injury, the additional disability is compensable. In Jenkins v. Sabourin, 104 Wis. 2d 309, 316 (1981), the court held:
It is established Wisconsin law that, when an employee is treated for a work-related injury and incurs an additional injury during the course of treatment, the second injury is deemed as one growing out of, and incidental to, employment -- in the sense that the employer, by virtue of the Act, becomes liable for the augmented injury.
Thus, if the applicant was actually injured doing stretches to treat stiffness acquired either from deconditioning from the work injury or acquired during work hardening for the work injury, or both, the stretching injury would be compensable. The ALJ found that is what happened here.
The respondent argues that the applicant has not proven the stretches were given to the applicant -- assuming they were even recommended to the applicant -- for back pain due to deconditioning and work hardening from the wrist injury. However, the applicant credibly testified that he felt back and leg soreness after the work hardening, and the medical notes and Dr. McDonnell's first practitioner's report provides sufficient support on that score.
The respondent also argues that there needs to be a written prescription in the certified medical records ordering the stretches to treat stiffness from the work injury in order for the stretching injury to be compensable. Certainly, such a written prescription would aid the applicant's credibility. However, the commission is not persuaded a prescription is necessary as a matter of law. What is necessary is a medical report saying that the stretching -- assuming it occurred -- was causally-related to the herniated disc, and the record contains a report from Dr. McDonnell to that effect. Dr. McDonnell also reports that stretches may reasonably be prescribed to treat stiffness from deconditioning or work hardening following an injury. That opinion, too, supports the applicant's credibility in his testimony that the work hardening physical therapists in fact prescribed the stretches for that reason.
Another aid to the applicant's credibility, the commission concludes, are certain notes in Exhibit B that are apparently from the work hardening therapists who he had been working with since late October 2003 on Dr. Cox's order. A note under the heading "Gunderson Lutheran Rehabilitation Services -- Industrial Rehabilitation -- Industrial Rehabilitation Therapist Activity Flowsheet" from October 21, 2003, states the applicant was oriented to "stretches-walking-mechanics of program." The note from October 23 says the applicant was a little sore, so the therapist had "do p/p [with] crate versus s/td." Subsequent under the heading "Gunderson Lutheran Rehabilitation Services -- Industrial Rehabilitation -- Patient Activity Flowsheet" report that the applicant worked with dumbbells, an aerodyne bike, a hand bike, and a pulley mechanism, in addition to work with a gripper. These notes establish that the applicant was not simply working on his wrist in work hardening and that he was given stretches and experienced soreness.
Further, a note under the heading "Gunderson Lutheran Rehabilitation Services -- Industrial Rehabilitation -- Industrial Rehabilitation Therapist Activity Flowsheet" dated November 10, 2003 indicates the applicant stopped at the work hardening clinic complaining of back pain and stating he was on his way to see a doctor. The note states the applicant wanted a copy of stretches he was doing when he hurt his back.
In a subsequent note "Gunderson Lutheran Rehabilitation Services -- Industrial Rehabilitation -- Work Hardening Progress Discharge Note" dated November 11, 2003, a clinic employee, presumably a therapist, noted:
He stopped at FRC 11/10/03 & reported he hurt his LB & would be going to PM&R for LBP. He wanted copy of stretches to present to Dr. Dierschke.
The therapist added:
He called FRC Mon 11/10/03 & reported he hurt his back doing stretches at home. He said the stretches were provided to him by FRC therapist. Consult [with] therapists in FRC could [hole punch] confirm the stretches he reports injured him were provided to him. He was provided with hamstring stretches & he reports he was hurt doing groin stretch. No parameters can be provided at this time.
The applicant evidently was unaware of the note at the hearing. Transcript, page 81 (applicant affirmatively stated he was unaware of any written proof that a therapist named Kristin had given him stretches). However, the commission reads the November 11 note to acknowledge that the work hardening therapists gave the applicant at least some kind of stretch for the hamstrings. The commission observes that the note refers to the provision of hamstring stretches, not back stretches. The commission also observes that in light of an unfortunately placed hole punch in the exhibit, the actual note could read "consult with therapist could not confirm..." (1)
Nonetheless, the November 10 and 11 notes from the work hardening clinic -- like the November 8 emergency room note and subsequent medical reports -- show that the applicant was associating his herniated disc with the stretches he was given in work hardening shortly after the injury occurred. Even the November 5 emergency room note which merely states the applicant had been doing stretches because his back had been tight does not directly contradict his contention the applicant's back was tight because of time off work and work hardening.
Further, the November 11 note acknowledges that the applicant was at least provided with hamstring stretches for leg stiffness by a work hardening therapist, or at least these were the only stretches the therapist could confirm were provided to him. Although the therapist could not confirm that groin stretches were provided to the applicant, the commission infers a work hardening personnel provided the applicant with the stretch he was performing when injured as he testified. Certainly the November 11 note goes a long way toward validating the applicant's testimony he was given some stretches for soreness from the effects of post-wrist injury deconditioning and work hardening.
3. TTD
The last issue is the respondent's contention that the temporary disability compensation was overpaid. The reduction the respondent seeks for the periods before September 23, 2004, is based on the assumption that the back injury is not compensable, or that the commission should credit the respondent's examiner on the healing plateau date for the wrist injury. However, the commission is satisfied the back injury is compensable and that treating doctor Hayden's opinion regarding the work restrictions and plateau date is reasonable.
On September 23, 2004, Dr. Hayden cleared the applicant for unrestricted duty with respect to his wrist injury. The doctor indicated that the applicant had not yet fully healed, but for industrial purposes any temporary disability affecting his ability to work ended with a complete release to work. The definition of a healing period requires both that the injured worker be submitting to treatment and be unable to work because of the work injury. Knobbe v. Industrial Comm., 208 Wis. 185, 190, 242 N.W. 501, 503 (1932). (2)
However, the applicant was not released to work following the second back surgery until November 2, 2004. Even then, he was released with temporary restrictions. While the respondent asserts the employer was not provided with the restrictions, the applicant testified he did provide the restrictions to the employer and the ALJ credited that testimony. This is supported by notes from Dr. McDonnell's office dated November 19 and 23, 2004, indicating the applicant specifically requested written restrictions to provide to his employer.
While the applicant was released with restrictions on November 2, these were temporary. Dr. McDonnell's November 2 note indicated he expected further healing. It was not until January 7, 2005 that the doctor declared an end of healing and estimated permanent partial disability. Indeed, it appears that the applicant did improve between November 2004 and January 2005; at least the January 7, 2005 restrictions were not as restrictive in terms of weight permitted to be lifted as the November 2 restrictions. Thus, because the employer did not provide work within the temporary restrictions from November 2, 2004 to January 7, 2005, (3) the applicant remained eligible for temporary disability to January 7, 2005 as the ALJ held.
The applicant, in turn, seeks continuing temporary disability after January 7, 2005, because Dr. Hayden has not yet declared a complete end of healing for the wrist because he anticipates further surgery to remove a plate. Again, however, he imposes no current work restrictions for the wrist. See Exhibit A, letter to Cafaro dated December 16, 2004. Thus, while the applicant may re-qualify for temporary total disability when he has the plate removal surgery, ALJ McSweeney correctly determined the applicant was not eligible for temporary disability after January 7, 2005 on the record before him.
cc:
Attorney Mark A. Siefert
Attorney Roland C. Cafaro
Appealed to Circuit Court. Affirmed April 3, 2006. Appealed to the Court of Appeals. Affirmed, unpublished per curiam decision, August 31, 2006.
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