KEVIN SCHRANK, Applicant
AUTO PARADISE INC, Employer
HARLEYSVILLE INSURANCE CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 31, 2005. Auto Paradise, Inc. and Harleysville Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is whether the applicant sustained a compensable back injury in a workplace fall occurring on March 27, 2004. A sprained ankle injury was conceded as having occurred in this fall. Assuming a compensable back injury, nature and extent of disability and liability for medical expense are also at issue.
The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:
The applicant, whose birth date is September 20, 1980, was employed for less than two months as a tire changer and sorter for the employer. On April 27, 2004, he was walking in an aisle between tire racks carrying a tire rim in each hand when he remembered that he needed a clipboard. The clipboard was hanging on a tire machine located next to one of the tire racks, and the applicant had to turn back and to his left to grab it. He transferred the wheel rim in his left hand to his right hand, but as he was turning he tripped on a tire that was lying on the floor. He fell onto the concrete floor dropping the wheel rims on the way down, and landed first on his upper buttocks and then on the flat of his back. He twisted his right ankle during the fall and initially was most concerned with the pain from that injury. The employer's owner and a co-worker each testified that they came upon the applicant shortly after his fall, and he told them he had tripped and sprained his ankle, but did not mention his back. Another co-worker talked to the applicant at the end of the shift and no injury was mentioned. However, the applicant credibly testified that after the fall he did feel some back pain.
The applicant spent the remaining 90 minutes of his shift performing paperwork, primarily because he could not stand on his ankle. When he got home he took a hot shower to try to relieve his back pain, and took Ibuprofen before going to bed at about 10:30 p.m. He woke up about one hour later with sharp lower back pain and tingling pain going down his legs and buttocks. He drove himself to the emergency room where an x-ray and CT scan of his back revealed compression and burst fractures of T11 through L1. (1) On April 28, 2004, Dr. Shekhar Dagam performed a three-level interbody fusion with removal of disc material from T11 to L2. Dr. Dagam opined that the fall at work directly caused the decompression fractures and the resulting surgery. He assessed 45 percent permanent partial disability, noting that there were five laminectomies (25 percent), three fused disc spaces (15 percent), and post-surgical arachnoiditis (5 percent).
Another treating physician, Dr. Thomas Perlewitz, also opined that the applicant's vertebral fractures and resulting surgery were directly caused by his fall at work on April 27, 2004. Respondents obtained medical opinions from two physicians. The first was from Dr. Michael Borkowski, who performed a medical records review on May 11, 2004. Dr. Borkowski opined that it was inconceivable that the applicant could have sustained such significant spinal disruption from a fall at ground level. Dr. Borkowski additionally opined that it was inconceivable that the applicant would have been able to continue to perform his regular work after such an injury (it is inferred from this opinion that Dr. Borkowski did not know the applicant performed only paperwork after the fall). Dr. Borkowski also opined that radiographic imaging described considerably abnormal and multilevel disease, unrelated to any event, and that the cause of the applicant's condition stemmed from "personal and non-work-related" factors.
Dr. Mark Aschliman also performed a medical records review on May 20, 2004, and opined that it was highly unlikely the applicant sustained vertebral body compression fractures in the work incident. He opined that such fractures would be associated with significant acute pain and functional limitation, unlike the applicant's description of his immediate post-injury status. Dr. Aschliman submitted a second report dated October 22, 2004, after examining the applicant in person. He opined that the applicant's spinal fractures were not consistent with the mechanism of injury described by the applicant. He did not find it believable that the applicant could have sustained such serious injury in such a fall, and again emphasized the lack of immediate onset of serious pain. (2) Dr. Aschliman also was under the misapprehension that the applicant continued to perform his regular duties after the incident. (3) Dr. Aschliman opined that something unrelated to the workplace event must have occurred to account for the compression fractures.
In consultation with the commission, the administrative law judge indicated that the applicant gave consistent testimony concerning the fall on April 27, 2004. However, he believed that if the applicant had sustained the compression and burst fractures in the workplace fall, he would have felt more severe back pain immediately after the incident and complained to others about such pain. Of course, this is also the view expressed by Dr. Borkowski and Dr. Aschliman.
While the severity of the applicant's back injuries is unusual for a trip and fall incident, the applicant is a relatively thin individual, (4) and he landed on a concrete floor with what is inferred to have been extra momentum generated by the weight of the wheel rims he had been carrying. Dr. Dagam and Dr. Perlewitz credibly opined that the workplace fall caused the injuries. The commission recognizes that the applicant bore the burden of proof in establishing a work-related injury, and his testimony together with his physicians' medical opinions carried that burden. In deciding whether there was any other credible explanation for the applicant's injuries, the commission inferred that if he had been involved in some other "high impact" occurrence subsequent to the workplace fall, such as a motor vehicle accident, he most probably would have presented at the emergency room with some other evidence of injury such as contusions or scrapes. It is also significant that the applicant had been hobbled by a sprained ankle since the fall, and therefore would not likely have been physically active that evening. Finally, the commission's experience with large numbers of worker's compensation injuries has taught it that each injury is to some extent unique. So too is each individual's pain response, particularly for back injuries. It is inferred that as severe as the applicant's injuries were after the workplace fall, they did not result in the immediate onset of severe back pain to the applicant. Rather, the pain advanced later that evening as described by the applicant.
Accordingly, as a result of the workplace fall on April 27, 2004, the applicant sustained compression and burst fractures at T11 through L1. He is entitled to temporary disability from April 28, 2004 through February 11, 2005, when Dr. Dagam initially assessed permanent partial disability in his WKC-16-B of that date. However, the applicant earned unspecified wages in part-time employment beginning in November 2004. Depending upon the amount of wages earned in any given week, the applicant would be entitled to temporary partial disability or possibly no temporary disability for such weeks. The commission will therefore order payment of temporary total disability from April 28, 2004 through October 31, 2004, and leave the order interlocutory with respect to the amount of temporary disability due for the period of November 1, 2004 through February 11, 2005. The applicant should submit to respondents a week-by-week summary of his earning for this latter period, and respondents should thereupon pay temporary disability in accordance with Wis. Stat. § 102.43(1) or (2), as appropriate for each week. Should respondents have a reasonable basis to dispute the applicant's earnings figures for any particular week, jurisdiction will be reserved to resolve such dispute. The period of April 28, 2004 through October 31, 2004, is a period of 26 weeks and four days, which at the applicable rate of $240.00 per week totals exactly $6,400.00.
Dr. Dagam initially assessed permanent partial disability at 30 percent but later amended his assessment to 45 percent. The surgery the applicant underwent requires a minimum award of 40 percent permanent partial disability, and the additional five percent for arachnoiditis is accepted as credible. Accordingly, the applicant is entitled to 450 weeks of permanent partial disability at the applicable rate of $232.00 per week. This award began to accrue as of February 12, 2005.
The applicant's attorney is entitled to a 20 percent fee against the awards for temporary disability and permanent partial disability, as well as $379.08 in costs. A present value interest credit in the amount of $4,473.75 will be subtracted from the attorney fee.
The applicant is also entitled to medical expenses reasonably required by the effects of the work injury. Respondents dispute the reasonableness of the charges enumerated on the applicant's WKC-3, and since this issue was not addressed at the hearing, the commission will remand it for the dispute resolution process under Wis. Stat. § 102.16(2) and Wisconsin Administrative Code Chapter DWD 80.72.
Dr. Dagam credibly opined that the applicant may require additional medical treatment and/or sustain additional disability. Jurisdiction will therefore be reserved.
NOW, THEREFORE, THIS
Within 30 days from this date, respondents shall pay to the applicant for temporary disability through October 31, 2004, and for accrued permanent partial disability, the total amount of Ten thousand eight hundred sixty-five dollars and nineteen cents ($10,865.19); and to applicant's attorney, Monika Hartl, fees in the amount of Seventeen thousand six hundred eight-six dollars and twenty-five cents ($17, 686.25), and costs in the amount of Three hundred seventy-nine dollars and eight cents ($379.08).
Beginning on November 26, 2005, respondents shall also pay to the applicant the monthly amount of One thousand five dollars and thirty-three cents ($1,005.33), until the currently-unaccrued permanent partial disability has been paid in the total amount of Seventy-six thousand six hundred eighty-three dollars and seventy-three cents ($76,683.73).
The applicant's claims for medical expense are remanded to the dispute resolution process pursuant to Wis. Stat. § 102.16(2) and Wisconsin Administrative Code Chapter DWD 80.72.
Jurisdiction is reserved with respect to the unresolved period of temporary disability between November 1, 2004 and February 11, 2005, and with respect to the possibility of additional disability and/or medical expense accruing subsequent to the date of hearing on March 15, 2005.
Dated and mailed October 21, 2005
schrake . wrr : 185 : 2 ND § 3.3
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Monika A. Hartl
Attorney Matthew C. Siderits
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