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

STUART JENSEN, Applicant

BAY SHIPBUILDING CO, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2003-001363

Bay Shipbuilding Company and Sentry Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on September 12, 2005. The applicant also submitted a petition for review alleging error in the administrative law judge's decision. Briefs were submitted by the parties. The parties stipulated to certain facts as set forth in a written stipulation dated August 24, 2005. At issue is whether the applicant's work injury of January 4, 2001, is within the jurisdiction of the Wisconsin's Worker's Compensation Act, or solely within the jurisdiction of the Federal Longshore Act. If the injury is found to be within Wisconsin's jurisdiction, the nature and extent of disability and liability for medical expense are also at issue. The stipulation includes agreement that Sentry Insurance previously paid the amount of $21,471.59 to the applicant for the functional equivalent of temporary disability. No payments have been made for permanent partial disability.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The current status of the jurisdictional relationship between the Longshore Act and state Worker's Compensation Law, with exceptions not applicable to this case, is that there is concurrent (dual) jurisdiction. An applicant whose injury occurs within the statutory bounds of the Longshore Act and Wisconsin's Act may claim under either or both acts. However, compensation received from one act for a disability (permanent or temporary) offsets against compensation claimed for the same type of disability under the other act. Sun Ship, Inc. v. Pennsylvania et al, 447 U.S. 715; 100 S.Ct. 2432 (1980). The applicant's injury arose out of and in the course of his employment with a Wisconsin employer, and is compensable under the Wisconsin Act.

The applicant is a steelworker who injured his low back on Thursday, January 4, 2001, while performing welding and fabricating duties on a hull (an unfinished ship) that on that date was frozen into the ice at a berth in a Sturgeon Bay shipping channel. The applicant twisted his body while grabbing onto "something" to pull himself out of a tight area. As he did this he felt something "let loose" in his back. He reported the injury the following Monday and went to a chiropractor, but this did not help. He next saw Dr. Sandra Martens who prescribed conservative treatment and eventually referred him to Dr. Richard Jones. Dr. Jones ordered a lumbar MRI on March 28, 2001, and it was read as showing a disc protrusion with possible impingement at L5-S1, and annular bulging at L4-5 without evidence of nerve root compression. Physical therapy and epidural injections were prescribed.

The applicant was referred to Dr. Christopher Van Saders who ordered a discogram performed on August 14, 2001. It was positive for pain at L5-S1 but not at L4-5. Dr. Van Saders recommended an IDET procedure, as did Dr. James Stoll, to whom the applicant was referred on January 28, 2002. Dr. Robin Ferron performed an IDET procedure at L4-5 and L5-S1 on March 26, 2002. The procedure did not relieve the applicant's symptoms, and work hardening was attempted with a return to light duty. The applicant's work hardening program was being directed by Dr. S. K. Bahal, who ordered another lumbar MRI on July 8, 2002, and it was read as showing degenerative disc changes at L4-5 and L5-S1.

Dr. Stoll recommended a two-level fusion at L4-5 and L5-S1, and on December 23, 2002, the U.S. Department of Labor had Dr. John Kihm examine the applicant. Dr. Kihm diagnosed discogenic back pain with an iatrogenic component, and his prognosis was "extremely guarded." He opined that if the applicant was going to get relief of his symptoms he would require arthrodesis of the L4-5 joint complex.

On February 18, 2003, Dr. Stoll performed a two-level fusion at L4-5 and L5-S1, with insertion of pedicle screws. This had a good result, although the applicant subsequently did have episodes of increased back and right leg pain, particularly with work. On September 15, 2003, Dr. Stoll indicated the applicant had no leg pain and his back pain was improving. He increased the applicant's lifting restriction to 65 pounds. On December 15, 2003, Dr. Stoll noted that the applicant was doing very well but had occasional back pain. He continued the applicant's pain medication as well as his physical restrictions, and recommended a follow-up appointment in one year. On April 15, 2005, the applicant saw Dr. Stoll after a slip and fall at work that caused increased back and leg pain. A lumbar MRI did not show any change in the stable fusion. The applicant now sees Dr. Stoll about once a year and works under a 50-pound restriction, changing positions once each hour and doing no squatting.

Dr. Stoll found work causation. In a WKC-16-B dated April 9, 2003, he assessed a minimum of 20 percent permanent partial disability for the fusion, but noted that the applicant had also undergone the IDET procedure. He indicated permanent partial disability would be assessed at the end of healing, but the record does not contain Dr. Stoll's final assessment. Dr. Stoll wrote a letter giving a final permanency assessment, but it was not written until after the hearing date, and the administrative law judge did not accept this late submission. (See Wis. Stat. § 102.17(1)(d), and Wis. Admin. Code ch. DWD 80.22).

At the insurer's request, Dr. Richard Lemon examined the applicant on September 17, 2002. He diagnosed a work-related low back strain that had resolved without permanency by February 4, 2001, preexisting degenerative disc disease, and symptom magnification. He opined that any surgery and ongoing care would be related to the preexisting degenerative disease, not the work injury. In his updated opinion of February 3, 2003, Dr. Lemon reiterated his previous opinions, and specifically disagreed with Dr. Kihm that there was a need for fusion surgery.

The administrative law judge accepted Dr. Stoll's opinion that the work injury necessitated the IDET procedure and the fusion surgery at L5-S1. However, he indicated that he relied on Dr. Lemon's opinion, and his own interpretation of the discogram results, to find that the L4-5 disc problem was preexisting and not work-related. Dr. Lemon opined that the applicant's work injury consisted of a temporary low back strain. He mentioned the discogram results in the medical history portion of his report, but did not indicate that he relied upon those results in formulating his opinion on causation. The administrative law judge's interpretation of the discogram results, relative to the issue of causation, is the equivalent of a medical opinion with no supporting statement from a physician. In any case, the commission finds Dr. Stoll's opinion that the applicant's work injury aggravated, accelerated, and precipitated his preexisting, multi-level degenerative disc disease beyond normal progression to be credible. The applicant was functioning normally prior to the work incident, but thereafter experienced low back symptoms that led to the two-level IDET procedure and the two-level fusion. Dr. Stoll credibly indicated that both disc levels were compromised, and that is why he recommended a two-level IDET procedure, and ultimately performed a two-level fusion procedure.

Respondents dispute the administrative law judge's award of 5 percent permanent partial disability for each level of the IDET procedure. However, Dr. Ferron provided a detailed operative report that confirms this procedure resulted in "ablation" (removal) of disc material through application of the radiofrequency wand to the L4-5 and L5-S1 discs, and creation of channeled lesions in both those discs. Wis. Admin. Code ch. DWD 80.32(11) provides a minimum of 5 percent permanent partial disability for removal of disc material at any level, and that minimum is applicable in this instance. Of course, the minimum of 10 percent permanent partial disability is also applicable for each level of the fusion procedure, resulting in a total of 15 percent permanent partial disability at each of the two disc levels, for a cumulative award of 30 percent permanent partial disability. This amounts to 300 weeks of compensation at the applicable rate of $184.00 per week, for a total of $55,200.00.

The administrative law judge found that for temporary disability occurring between January 4, 2003, and a date not clear from the decision, the accelerated temporary rate did not apply. He reasoned that even though there had been a break in the applicant's temporary disability, his disability had been "one continuous period." Wis. Stat. § 102.43(7), provides that if an employee has a renewed period of temporary disability commencing more than two years after the date of injury, and the employee returns to work for at least ten days proceeding the renewed period of disability, payment of compensation for this new period of disability shall be at an accelerated rate. The administrative law judge's adoption of a "one continuous period" rationale is rejected. The applicant had returned to work for over ten days prior to his renewed period of temporary disability occurring after January 4, 2003, and pursuant to the statute, he is entitled to the accelerated rate for temporary disability paid subsequent to January 4, 2003.

The applicant has also claimed that he should be paid temporary disability on an hour-by-hour basis for each occasion on which he left work to receive follow-up medical treatment. Wis. Stat. § 102.43(2), provides that temporary partial disability shall be paid at such proportion of the weekly indemnity rate for temporary total disability as the actual wage loss sustained by the applicant for the week in question bears to the applicant's average weekly wage. Because temporary disability is computed and paid on a weekly basis, if the applicant loses wages in any week due to missing work for medical treatment, he may be entitled to temporary partial disability for that week. The entire issue of temporary disability is made difficult by the poor record submitted to the commission. The stipulation lists numerous dates of missed work for various periods of time, including specific days when specific hours of work were missed. The administrative law judge's decision awards specific amounts of temporary total disability and temporary partial disability which do not entirely coincide with the stipulated dates, and it is unclear from the decision how or if credit was given for the conceded prior payment of $21,471.59.

Accordingly, the commission hereby sets aside the administrative law judge's findings regarding temporary disability, and will remand the matter to the department for resolution of this issue, consistent with the commission's other findings. The applicant should immediately reconstruct his claims for temporary disability, on a week-by-week basis, and submit such claims to Sentry Insurance. Sentry should thereupon make immediate payment of all such claims that it accepts, taking into account the prior payment of $21,471.59. Any such claims disputed by Sentry shall be subject to resolution by the department, including opportunity for new hearing if necessary.

The applicant's attorney is entitled to a 20 percent fee against the entire award for permanent partial disability, and against any award for temporary disability exceeding $21,471.59. The attorney is also entitled to $287.46 in costs.

Dr. Stoll has credibly indicated that additional treatment may be required and additional disability may be sustained. There is also the possibility of a loss of earning capacity. Accordingly, this order will be interlocutory. The applicant's attorney has also indicated that a claim for unreasonable refusal to rehire may be contemplated, and the matter also remains interlocutory with respect to that issue.

The uncertainty with regard to the actual periods of temporary disability results in an inability to determine precisely how much permanent partial disability has accrued to date. Accordingly, the commission will order $10,000.00 in permanent partial disability (less a 20 percent attorney's fee and costs), which would be somewhat less than the currently-accrued permanent partial disability. Of course, as soon as the dates of temporary disability have been resolved, the applicant should apply to the department for calculation of the remaining permanent partial disability award. Such award would be subject to offset by any award of permanent disability made under the Longshore Act, and the appropriate attorney fee would also be subtracted.

The administrative law judge indicated that no medical expenses remained outstanding. However, the applicant submitted a medical treatment statement with invoices indicating $150.00 remaining due to Advanced Pain Management, and $619.80 remaining due to Door County Memorial Hospital. These sums will be ordered paid, with the understanding that if they were previously paid there shall be no duplicative payment.

NOW, THEREFORE, this

INTERLOCUTORY ORDER


The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, respondents shall pay to the applicant for accrued permanent partial disability the sum of Seven thousand seven hundred twelve dollars and fifty-four cents ($7,712.54); to applicant's attorney, Holly Lutz, fees in the amount of Two thousand dollars ($2,000.00), and costs in the amount of Two hundred eighty-seven dollars and forty-six cents ($287.46); to Advanced Pain Management the sum of One hundred fifty dollars ($150.00); and to Door County Hospital the sum of Six hundred nineteen dollars and eighty cents ($619.80).

Additional permanent partial disability and temporary disability are due in accordance with the above findings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed February 28, 2006
jensest . wpr : 185 : 8  ND § 5.24   ND § 5.11

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The partial reversal of the administrative law judge's decision was based on analysis of the written medical records. The commission had no disagreement with the administrative law judge's credibility determinations of the applicant's testimony.

cc:
Attorney Holly Lutz
Attorney Gregory P. Sujack

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