VIVIAN M CURRIE, Applicant

GENERAL MOTORS CORP, Employer

GENERAL MOTORS CORP, Insurer

The self-insured employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on November 22, 2005. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are the nature and extent of disability attributable to the conceded low back injury of November 19, 2002.

The commission has carefully reviewed the entire record in this matter and hereby modifies and affirms the administrative law judge's Findings and Interlocutory Order. The administrative law judge's Findings and Interlocutory Order are set aside and the following substituted therefor:

The surgery provided partial relief of the applicant's symptoms, with some low back and intermittent left leg pain continuing. The applicant subsequently returned to work and her symptoms increased, including the onset of right-sided low back and right leg pain. On September 29, 2004, Dr. Jeffery Masciopinto performed a re-decompression at the L4-5 level, with a foraminotomy and fusion including insertion of pedicle screws. This surgery had a good result, although the applicant continues to experience mild symptoms in her low back and legs.

On September 29, 2005, Dr. Thomas Midthun saw the applicant for a disability rating evaluation (Exhibit D). Dr. Masciopinto assessed permanency in a letter dated September 2, 2005 (Exhibit E). In a letter dated March 22, 2005 (Exhibit F), Dr. Masciopinto opined: ". . . the progressive spondylolisthesis and, nerve impingement created by the listhesis, was directly cause (sic) by the initial injury and subsequent surgery."

At the employer's request, Dr. C. Johnson examined the applicant on June 17, 2005. In his report dated July 29, 2005 (Exhibit 2), he opined that the cause of the September 2004 surgery was the severely degenerated condition of the facet joints at the mid and lower lumbar levels. He pointed to that part of Dr. Masciopinto's surgical note that described "severe hypertrophic facet disease as well as external synovial cyst." Dr. Johnson indicated that he believed the applicant's severely degenerated facet joints, which he believes were not related to the 2002 work injury, were the cause of the listhesis that led to the September 2004 surgery.

The administrative law judge accepted the opinions of Dr. Midthun and Dr. Masciopinto. However, she did so after allowing Exhibits D and E into evidence, even though the applicant and his attorney failed to submit these exhibits within the required 15 days prior to hearing (Wis. Stat. § 102.17(1)(d)3.). She allowed these admissions over the employer's objections, apparently relying upon the fact that she held the record open for two weeks to allow further comment on such admissions, and did not receive any response during those two weeks. However, the objections had been raised at hearing and never retracted. The applicant's attorney argues in the petition that they had trouble obtaining the reports on a timely basis from Dr. Midthun and Dr. Masciopinto, but there is not enough in his argument to support a "good cause" exception. Exhibits D and E are excluded as untimely.

However, Exhibit F was stipulated into evidence. The employer asserts that because this exhibit was not accompanied by a WKC-16-B, it carries less weight, but there is no substance to this argument. Exhibit F was timely filed and there was no objection made to the lack of an accompanying WKC-16-B. The employer had time to subpoena Dr. Masciopinto if it had so desired. His report is competent evidence.

The applicant objected to the submission of Dr. Johnson's report (Exhibit 2), on the basis that the employer did not immediately submit a copy of that report to the applicant. The applicant did not receive a copy until just over a month after it was submitted to the employer. Wis. Stat. § 102.13(1)(b)4., provides that applicants are entitled to receive copies of such medical reports "immediately upon receipt" of the report by the employer/insurer. However, there is no penalty set forth in the statute for noncompliance, such as there is in Wis. Stat. § 102.17(1)(d)3., which provides for exclusion of untimely-filed reports. This leaves the commission and the administrative law judge with discretion as to what to do in such a case, and the relevant question to be asked is whether the late submission of the report prejudiced the applicant in any way. Dr. Midthun's report of September 29, 2005 (Exhibit D), and Dr. Masciopinto's opinion of September 27, 2005 (Exhibit E), were both completed after the applicant's receipt of Dr. Johnson's report (received by the applicant on September 7, 2005). Accordingly, even had Exhibits D and/or E been admissible, there would have been no substantial prejudice to the applicant. Accordingly, Dr. Johnson's report is allowed.

After weighing Dr. Masciopinto's opinion articulated in his letter dated March 22, 2005, against Dr. Johnson's opinion, the commission finds Dr. Masciopinto's opinion concerning causation to be credible. The applicant had no significant back problem prior to the November 2002 work injury, and Dr. Masciopinto credibly opined that her progressive spondylolisthesis was directly caused by the work-related laminectomy and discectomy performed on November 2003. Dr. Johnson's attempt to attribute the September 2004 surgery to a degenerative process not substantially related to the prior injury and surgery is incredible.

The applicant was temporarily totally disabled from April 7, 2004 to May 7, 2004, a period of four weeks and one day at the applicable rate of $647.00 per week, for a total of $2,695.83. She was also temporarily totally disabled from June 21, 2004 to November 20, 2004, a period of 21 weeks and 4 days at the applicable rate of $647.00 per week, for a total of $14,018.33. However, the applicant received $16,640.00 in sickness and accident benefits during these two periods, resulting in a net amount due for temporary total disability of $74.16.

The applicant also sustained functional permanent partial disability of 10 percent of the whole body, which is the equivalent of 100 weeks of compensation at the applicable rate of $212.00 per week, for a total of $21,200.00.

The applicant's attorney is entitled to a 20 percent fee against the net award for temporary total disability, and against the entire award for permanent partial disability, for a total fee of $4,254.83, less a reduction of $19.78 for interest credit. Applicant's attorney is also entitled to $1,037.66 in costs.

Reasonably required medical expenses are due as detailed below in the commission's Interlocutory Order.

Jurisdiction will be reserved with respect to the possibility of additional treatment expense and/or additional disability including loss of earning capacity.

NOW, THEREFORE, this

Beginning May 21, 2006, and continuing monthly thereafter, respondents shall additionally pay the applicant the sum of Nine hundred eighteen dollars and sixty-seven cents ($918.67), until the currently-unaccrued permanent partial disability has been paid in the total amount of Four thousand four hundred nine dollars and sixty cents ($4,409.60).

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

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Charles M. Soule
Attorney Bryan Scholnick

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