THOMAS GUTOSKI, Applicant
KOHLER CO, Employer
KOHLER CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 22, 2005. Briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the applicant's work injury of June 24, 1998, and specifically the applicant's claim for permanent total disability. Also at issue is liability for the claimed medical expenses.
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 affirms in part and reverses in part his Findings and Interlocutory Order. The commission makes the following:
The applicant also sustained work-related injuries to both his shoulders. The left shoulder was injured in November 1995 and resulted in rotator cuff repair surgery performed in February 1996. The right shoulder was diagnosed with overuse syndrome and resulted in an acromioplasty performed in October 1996.
The applicant initially injured his neck in May 1996, while pushing a stack of pallets across the floor, but after about two weeks of treatment the symptoms resolved. On June 24, 1998, he bent over and reached into a bin to grab some parts. As he came up with the parts he also jerked hard on a plastic liner, and felt a pain and "pop" in his neck. He initially treated at the employer's medical clinic, and then with Dr. D. S. Sellinger, who administered conservative treatment. Dr. Sellinger ordered a cervical MRI on August 12, 1998, and it was read as showing degenerative changes and disc bulging at C5-6 and C6-7.
The applicant was referred to Dr. Arvind Ahuja, who ordered another cervical MRI on June 3, 1999. It was read as showing osteophytic spur formation at C5-6, and disc bulging at C6-7. On June 25, 1999, Dr. Ahuja assisted Dr. James Wolter in performing discectomies and fusions at C5-6 and C6-7, including insertion of instrumentation. This surgery was not successful in relieving the applicant's symptoms, and in fact, he developed difficulty swallowing that was attributed to the implanted instrumentation. On December 10, 1999, Dr. Wolter and Dr. Ahuja surgically removed the instrumentation, and this reduced the applicant's difficulty with swallowing.
The applicant's neck symptoms continued and included radiating pain through his shoulders and down his arms into his hands. He received pain management treatment and epidural steroid injections from Dr. B. S. Saini, but without sustained relief. Another MRI performed on August 8, 2000, was read as showing a small annular tear with minimal disc bulging at C4-5. On November 22, 2000, Dr. L. Reedyk performed radiofrequency denervation of the applicant's cervical facets, but this too was unsuccessful in relieving his symptoms. On September 5, 2001, Dr. Ahuja performed a discectomy/fusion with insertion of instrumentation at C4-5, together with surgical exploration of the previous fusions at C5 through C7. This surgery also failed to relieve the applicant's symptoms.
Since the last surgery, the focus of the applicant's treatment has been pain management. In October 2002, an attempt was made to surgically implant an electrical nerve stimulator. However, the applicant had to turn the electrical power up so high to affect his pain that the electrical stimulus hurt him, and use of this device was abandoned. In February 2004, the applicant underwent a trial with a morphine pump mechanism, but this also had to be abandoned because the high doses of morphine affected his heart rhythm.
Currently, the applicant experiences symptoms of neck pain, bilateral shoulder and arm pain all the way into his hands, and headaches. He can perform minimal chores, but turning his head and moving his arms aggravates his symptoms. He used to be an avid hunter and fisherman, but indicates that he now only goes for "a few days each" of deer and turkey hunting, which he does with the help of friends and relatives. He also does much less fishing.
After his first neck surgery, the applicant had gone back to light duty work with the employer in September 1999, but was off again for the December 1999 surgery. Then he returned again to light duty in January 2000, which apparently lasted until the radiofrequency denervation in November 2000. He returned briefly, but in February of 2001 he stopped working due primarily to his knee difficulties. He attempted to return to work with the employer in June 2002, but he was told there was no work available for him with his physical restrictions. He is receiving disability benefits through an employer-sponsored medical plan, and is also receiving SSDI. He continues to take significant amounts of narcotic pain medication.
The applicant has also received treatment for depression which his psychiatrist, Dr. Suzanne Grimm, relates to the pain and difficulties caused by the neck and knee injuries. She has prescribed antidepressant medication that he continues to take.
Dr. Ahuja completed a WKC-16 dated October 2, 2002, in which he found work causation and indicated healing had not ended, but that there would be at least 30 percent permanent partial disability.
At the employer's request, Dr. Allen Kagen examined the applicant on January 7, 2002. In his report dated January 11, 2002, Dr. Kagen diagnosed an acute cervical strain sustained in the June 1998 work incident, chronic cervical myofascitis, and failed neck surgery syndrome. He indicated he personally would not have performed surgery on the applicant, but conceded that under the circumstances, other physicians might have. He opined that all the neck surgeries were causally related to the June 1998 incident. He also agreed that the applicant's psychiatric treatment for depression was related to the work injury. He anticipated a healing date of September 5, 2002, which would be one year after the C4-5 fusion surgery, and assessed 33 percent permanent partial disability. He opined that the applicant was capable of returning to sedentary work with no lifting, carrying, or pushing of over 10 pounds; and that the applicant would have to avoid repetitive neck motion, and avoid or do a minimum of work at or above shoulder level.
One of the applicant's treating physicians, Dr. S. K. Bahal, opined that the applicant's neck pain is severely disabling, and that the heavy narcotic medication causes drowsiness and side effects that preclude even sedentary work. Dr. Bahal completed a WKC-16-B dated September 9, 2004, in which he assessed 40 percent permanent functional disability for the applicant's neck injury, and further opined that the applicant is unable to return to work and is permanently and totally disabled. On July 12, 2005, Dr. Ahuja wrote in a letter that he agreed with Dr. Bahal that the applicant is not able to work on a continuous and predictable basis.
At the employer's request, Dr. Michael Borkowski examined the applicant on January 21, 2005. In his report dated February 4, 2005, Dr. Borkowski reviewed the applicant's medical history relative to his neck injury and his knee injury. He diagnosed chronic pain syndrome resulting from the numerous surgeries, pervasive depression, somatic preoccupation with reported disability greater than amount of impairment, overuse of narcotic medication, and iatrogenic disability. Dr. Borkowski opined that to account for failed medical intervention the applicant has been labeled as disabled without any occupational management, and that he needs occupational medicine counseling and a return to some form of work to regain his personal identity. He gave restrictions of no lifting, pushing, or pulling over 10 pounds, no operation of power equipment or machinery, and no squatting, kneeling, climbing, or twisting. He opined that the applicant could perform sitting or standing work, that narcotic utilization should be reduced, and that it is medically necessary to return the applicant to work. Dr. Borkowski noted that the applicant sat for approximately 90 minutes during discussion of his medical history.
Also at the employer's request, Dr. Stephen Robbins reviewed the applicant's medical records and submitted a report dated February 22, 2002. Dr. Robbins diagnosed discogenic neck pain attributable to degenerative processes and unrelated to the June 1998 work incident. He assessed 15 percent permanent partial disability and opined that the applicant is capable of full-time employment with a 15-20 pound lifting restriction, that he should avoid repetitive flexion and extension of the cervical spine, and that he must be able to alternately sit or stand every 30 minutes.
The applicant's vocational expert, C. A. McReynolds, submitted a report dated May 14, 2003, and an addendum report dated July 11, 2005. In the first report he assessed permanent total disability based on the restrictions provided either by Dr. Kagen or by Dr. Bahal. In the addendum report he again assessed permanent total disability, but noted that this would apply even under Dr. Borkowski's restrictions. McReynolds cited the cumulative effect of the neck and knee injuries, the depression, and the medication on the applicant's ability to work. He noted that the applicant has a narrow vocational history, having gone to work for the employer after graduating from high school, and thereafter never working elsewhere.
The employer's vocational expert, Michael Campbell, submitted a report dated July 13, 2005. He opined that under the restrictions given by Dr. Borkowski or Dr. Kagen, the applicant could perform the full range of sedentary work and selective light work. He listed possible job categories such as production helper, station or counter attendant, stock or desk clerk, security work, or cashier. Under these assumptions he assessed loss of earning capacity at 65-70 percent.
In consultation with the commission, the administrative law judge indicated that he did not find the applicant to have been credible with respect to the degree of physical activity which he currently undertakes. The administrative law judge noticed that the applicant's fingernails appeared soiled and his hands calloused, consistent with physical activity. The administrative law judge also reiterated his impression that the applicant did not appear to be in any distress at the hearing, and his inference that the applicant hunted and fished more often than he admitted.
The administrative law judge's observations were significant and were well articulated. Nevertheless, the undisputed facts of the applicant's medical history are that he has had multiple cervical spine surgeries, multiple left knee surgeries, and surgery on each shoulder. Dr. Robbins gave a 15-20 pound lifting restriction rather than the 10-pound restriction given by the other physicians who examined the applicant at the employer's request, but even Dr. Robbins severely restricted cervical spine movement and required alternate sitting and standing every 30 minutes. The applicant takes prescription narcotic medication in order to deal with his chronic pain, and the failed electrical implant and morphine pump trials give insight into the level of pain he experiences. The applicant also takes antidepressant medication, which Dr. Grimm's and Dr. Kagen's unrebutted psychiatric opinions attribute to depression related to the applicant's chronic pain.
Based on the administrative law judge's observations at the hearing, the commission infers that the applicant performed some physical activity involving his hands and arms prior to that hearing. The commission also agrees with the administrative law judge that it is probable the applicant hunts and fishes more often than he conceded. However, while these inferences reflect negatively on the applicant's credibility, the overwhelming medical evidence reveals a seriously disabled individual with severe physical restrictions, chronic and substantial cervical spine pain, ongoing depression, and a narcotic prescription. All of these elements combine to severely restrict the applicant's ability to perform continuing and gainful employment. (1) When the applicant's physical restrictions, age, education, and narrow work experience are considered, it is clear that McReynolds' opinion is reasonable, and that the applicant presented a prima facie case for permanent and total disability. Accordingly, the burden fell to the employer " . . . to demonstrate that the injured employee is actually employable and that there are actual jobs available to him." Beecher v. LIRC, 2004 WI 88, ¶ 44, 273 Wis. 2d 136, 682 N.W.2d 29.
Michael Campbell's table of selected occupational groups in Sheboygan County, together with his listing of ten general "job titles," which are more job categories than specific jobs, fall far short of demonstrating actual jobs that are available to the applicant. The employer itself, which is a large corporation, has not been able to find a job the applicant can actually perform.
Therefore, the commission finds that as of February 5, 2001, the applicant became permanently and totally disabled as a result of his June 1998 work injury. The matter will be remanded to the department for immediate calculation of the compensation due the applicant for permanent total disability. The attorney's fee and any costs shall also be computed. The commission will not attempt to make these calculations itself, because the record is unclear with respect to whether a limited compromise agreement (not in the record) and/or social security disability offset (Wis. Stat. § 102.44(5)) may affect the amounts awarded. Reasonably required medical expenses will be awarded, thus making the commission's decision appealable. As is appropriate for all orders awarding permanent total disability, jurisdiction will be reserved.
NOW, THEREFORE, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Kohler Company shall pay to the applicant as reimbursement for medical expenses the sum of Eleven thousand eight hundred sixty-seven dollars and ninety-four cents ($11,867.94); to Medicare the sum of Ten thousand sixty-nine dollars and ninety-two cents ($10,069.92); to ACL Laboratories the sum of Three hundred five dollars ($305.00); to Aurora Medical Group of Sheboygan the sum of Thirty-five dollars and sixteen cents ($35.16); and to Advanced Pain Management the sum of Two hundred fifty-three dollars and seventy-four cents ($253.74).
The matter is remanded to the department for calculation of the amounts due the applicant and his attorney for the permanent total disability award made in accordance with the above findings.
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed February 23, 2006
gutosth . wpr : 185 : 8 ND § 5.31
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney Richard A. Fortune
Attorney William Sachse
Appealed to Circuit Court. Affirtmed September 26, 2006. Appealed to the Court of Appeals. Affirmed in unpublished per curiam decision, October 3, 2007. Petition for Supreme Court review denied, March 19, 2008.
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