STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
BRIAN LEISZ, Applicant
TWIN TOWN CHEESE FACTORY, Employer
LIBERTY MUTUAL INS CO, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 92006883
The administrative law judge issued his findings of fact and interlocutory order in this case on January 21, 1997, following hearings on May 8, 1996 and October 29, 1996. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.
Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $476.73, and a December 14, 1991 work injury. The issues at hearing were the nature and extent of disability, and liability for medical expenses.
The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order and substitutes the following therefor:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant was born in 1967. He started working for the employer in 1984. He sustained a conceded work injury on December 14, 1991.
The injury occurred when the applicant opened a valve on a tank, causing 185 degree caustic liquid to pour onto his left foot. The liquid went into the ankle high rubber shoe/boot the applicant was wearing. He experienced a burning pain immediately, and then flushed his foot with water for 25 minutes according to the employer's safety instructions. He finished out his shift in his street shoes.
When the applicant was relieved at the end of his shift the next morning, he removed his shoe. His foot was swollen and green. He subsequently sought medical care at a hospital emergency room.
Thomas Lingren, M.D., dictated an "ER report" on December 16, 1991. Exhibit A. The note describes the work accident, and a caustic burn with ulcer on the top of the applicant's foot. The doctor recommended daily cleaning and the application of Silvadene cream.
The applicant was off work until late December. He testified he sought follow up treatment with a Dr. Reimer. Dr. Lingren reported on November 9, 1992 that the burn had healed well, but that the applicant then developed soreness in the left foot and tingling up to his ankle in September 1992. The doctor diagnosed nonspecific left foot pain. Dr. Lingren eventually referred the applicant to Stanley Skinner, M.D., and a podiatrist, Darren Barbacci.
Dr. Barbacci saw the applicant in January 1993. He noted that the area of the December 1991 chemical burn slowly healed, leaving the applicant with no specific problems in the area of the burn, but causing sensory problems in the left foot and leg. Specifically, the applicant told Dr. Barbacci he had shooting and sharp pains in his left foot up to his knee, and that his left foot felt cold.
On examination, Dr. Barbacci noted no sensory deficit, though the left foot did seem cooler to him than the right. He noted normal hair growth, and diagnosed possible neuroma and possible reflex sympathetic dystrophy.
The applicant next saw Dr. Skinner on February 24, 1993. The doctor noted the work injury, and the applicant's post-injury complaints of dysesthesia. He found no evidence of sympathetic dystrophy, such as redness, rubor, temperature change. He did note hypersensitivity in and around the burn site. The doctor diagnosed dysesthesia in and around the burn site which he opined should settle down with time. On re-examination on April 22, 1993, Dr. Skinner still noted little to support a neurologic diagnosis, and no evidence of reflex sympathetic dystrophy.
Nonetheless, on April 26, Dr. Lingren reported pain and sensory deficits of a reflex sympathetic dystrophy and neuroma which did not respond to conventional, conservative treatment. In May 1993, evidently on the advice of Dr. Lingren, (1) the applicant saw D.A. Nye, M.D., for a second opinion. Dr. Nye reported pain in the foot in the area of the scar, but saw no evidence of reflex sympathetic dystrophy (RSD), and mentioned setting him up with a pain clinic anesthesiologist.
In June 1993, then, the applicant was seen at the Sacred Heart Hospital Pain Clinic on referral from Dr. Nye. There he treated with S. M. Endres, M.D., who diagnosed left foot pain, possibly secondary to sensitized peripheral nesioceptors status post burn, and possible reflex sympathetic dystrophy. The doctor noted the applicant had very few signs of reflex sympathetic dystrophy. The doctor recommended a Clonidine patch to see if that settled down the symptoms, before deciding whether to proceed with a paravertebral sympathectomy to confirm a diagnosis of RSD.
The paravertebral sympathectomy was done in July 1993. In a subsequent report dated August 12, 1993, Dr. Endres reported that:
". . . It is my feeling that he has a very hypersensitized area of ceptors over the area of burn and this hypersensitive area is irritated by the boots and types of shoes and socks that he has to wear during his shifts at work. He does tell me that when he is not at work and does not have this type of equipment on that he is fairly and almost completely symptom-free.
"I am very certain that the majority of his pain is not a sympathetic mediated problem, but a problem as dictated above. In our discussion we talked with him about what his options were in terms of his pain management. It is my feeling as well as Dr. Nye's, and other physicians he has seen, that time may be his most important ally in terms of his getting better.
Exhibit B.
The doctor concluded, though, that if the applicant's symptoms changed or became more characteristic of RSD, he would be happy to apply the modalities used to treat that condition.
In October 1993, Dr. Lingren reiterated his diagnosis of persistent right [sic] leg and foot pain secondary to RSD and neuropathy. He also noted the scar on that foot was well healed and not sensitive to touch, and that the applicant had a normal range of motion with no swelling.
The applicant returned to Dr. Endres on November 10, 1993. At that time, the doctor noted continuing symptoms, but on examination, the applicant's left foot seemed very warm, veno- dilated and the burn area did not look any different. His impression continued to be chronic pain, status post burn. He had little to offer but encouragement, and referred the applicant to Tuenis Zondag, M.D.
The applicant first saw Dr. Lingren on November 18. The doctor noted the applicant's continuing and chronic discomfort beginning with the chemical burn. He also noted the applicant wanted a referral from Endres to the Mayo Clinic, but the insurer would not permit it. The doctor reported the applicant seemed depressed. He also noted no inflammatory changes, swelling or evidence of infection. At this point, Dr. Lingren diagnosed only chronic left foot pain, secondary to chemical burn.
The applicant then saw Dr. Zondag on December 7, 1993. Dr. Zondag noted complaints of pain radiating from his left foot to his upper back. On examination, Dr. Zondag noted some breakdown in the area of the burn, together with swelling and some blueness. The doctor's assessment was status post caustic burn to the left foot with increased skin breakdown problems, chronic pain which appeared to be a sympathetic type of pain, and possible problems with addiction to pain medication. Dr. Zondag wanted to do a bone scan to confirm the diagnosis of RSD.
Dr. Zondag next saw the applicant on December 13, 1993. On this occasion, he noted a three to four degree difference in the temperature of the left foot compared to the right, a classic RSD sign. He again noted some breakdown of the skin in the vicinity of the scar. Diagnosing "chronic simple pain," the doctor suggested a procedure to break the sympathetic pain.
This procedure in fact was performed in late December 1993. The results are outlined in exhibit F. Dr. Zondag began to mention rating permanency upon the applicant's discharge from the hospital for the procedure.
On January 11, 1994, Dr. Zondag diagnosed some poor healing over the burn, and a sympathetic-type of pain which had been effectively [ineffectively?] treated "with all kinds of things." He wanted the applicant seen by a Dr. Pilling in the Twin Cities, and otherwise figured the applicant would plateau in a month or so.
Loran F. Pilling, M.D., is director of a pain clinic. He saw the applicant in late January 1994, and recommended a one month treatment program. As part of the evaluation, a flap graft was performed over the area of the burn, as a prelude to effective pain management. The graft did not do real well according to Dr. Zondag, though the treating surgeon indicated the applicant recovered from this procedure by May 1994. Exhibit H.
A functional capacity evaluation was done on May 12, 1994. This listed a diagnosis of RSD of the left lower leg. Indeed, the summary of the physician's assistant reports RSD throughout the entire left leg. Under the functional capacity evaluation, the applicant was released to work in light work, with occasional lifting up to 20-29 pounds, and carrying up to 30 pounds. It appears his rated capacity was within job requirements for his "intake operator" job with the employer, except for his "stand/walk" tolerance. More specifically, the applicant could only stand for about an hour before requiring ten to fifteen minutes off his feet. See Zondag's note for May 18, 1994.
On May 19, 1994, Dr. Zondag noted improvement in the left foot with both healing and coloration. He noted that experts on RSD opine that it may take two to three years for the symptoms to settle down. He returned the applicant to work effective May 19, 1994, provided the accommodations listed in the functional capacity evaluation (10-15 minutes per hour off his feet) could be met.
On June 9, 1994, Dr. Zondag noted that the applicant was only able to work for a few days after his May 23 release, despite the accommodations. On examination, the skin graft had completely healed, and that his left foot was cold, mildly blue, and painful. The doctor reiterated the functional capacity evaluation restrictions, but stated he did not believe the applicant could "return competitive to his level of work" and recommended evaluation by the division of vocational rehabilitation. The doctor rated a 15 percent permanent partial disability at the left foot with respect to the injury from the burn, and another five percent compared to disability to the body as a whole equivalent to a loss at the lumbar spine.
The employer had the applicant examined by an independent medical examiner, Edward Kelly, M.D. His diagnosis was chemical burn of the left foot, status post Z-plasty, a neurotic reaction as shown by pain behavior, and depression. Taking into account leg strength and foot calluses, he opined the applicant was faking a limp on examination. He noted the objective orthopedic findings were normal, and concluded the applicant had no permanent partial disability and no RSD. In short, he saw no disability or need for medical treatment for the foot, though he noted the possibility of psychiatric problems.
However, on September 22, 1994, Dr. Zondag opined the applicant continued to suffer from RSD which was severe, and which rendered him unable to return to sedentary work even with restrictions. He reiterated his ratings, and his opinion that the applicant could not return to competitive work in a subsequent report dated January 5, 1995 (exhibit L).
At the hearing (transcript pages 14 to 20) and in a letter dated February 9, 1996 (exhibit O), Dr. Zondag explained why he gave the applicant unscheduled permanent disability for the RSD. According to the doctor, the root of the cause of the applicant's RSD is part of his nervous system in the lumbar spine. Analogizing the applicant's symptoms to a herniated disc causing radicular symptoms in the leg, he opined the RSD should be rated as compared to the body as a whole. When asked point blank what areas of the body other than the leg were affected, however, the doctor really gave no clear response other than to mention psychological problems. Transcript, page 19.
The applicant testified he continues to experience pain in his left foot, shooting up to his back. He has trouble sleeping, and even sitting. He states he limps, and has fallen often because of weakness in the leg.
The record also contains reports from vocational experts concerning the applicant's earning capacity. The applicant's expert, Jeanne Krizan, opined that based on Dr. Zondag's opinion that the applicant was permanently and totally disabled, but based on Dr. Kelly's opinion he had no loss of earning capacity. Exhibit Q. The respondent's expert, Dawn Seeman, rated loss of earning capacity at 30-40 percent under the May 1994 functional capacity evaluation and Dr. Zondag's report of June 9, 1994. She, too, rated no loss of earning capacity under Dr. Kelly's restrictions. Exhibit 3.
The commission begins its analysis by noting what is not at issue on appeal. No claim for temporary disability was advanced at the hearing; at least the ALJ awarded no temporary disability and the applicant does not raise the issue on appeal.
The applicant did claim compensation for depression, based on Dr. Zondag's opinion that chronic pain from the work injury caused an over-reactivity of the nervous system resulting in depression. Dr. Zondag rated permanent partial disability from the depression at twenty percent of the body as a whole. Exhibit O. However, the ALJ expressly rejected the claim, and awarded no disability for depression. The applicant does not appeal this issue, and the commission concludes the ALJ correctly rejected the claim for a psychological injury. The commission likewise concludes the applicant has failed to establish he is entitled to compensation for depression.
The ALJ did award permanent partial disability at fifteen percent compared to amputation at the left ankle based on the residuals of the chemical burn. He also awarded a five percent permanent partial disability to the whole body, on a functional basis, for RSD caused by the work injury. The employer does not contest the fifteen percent permanent partial disability rated at the left ankle and, after considering the record as a whole, the commission is satisfied the applicant has established permanent partial disability at fifteen percent disability compared to amputation of the ankle at the foot.
However, the employer challenges Dr. Zondag's diagnosis of RSD, and also his opinion that it should be rated compared to disability to the body as a whole. Thus, the main issue on appeal is the ALJ's award of permanent partial disability at five percent rating to the body as a whole for RSD.
The commission concludes that the opinions of treating doctors Nye, Skinner and Endres raise considerable doubt as to Dr. Zondag's diagnosis of RSD, even if the reports of treating doctor Lingren and podiatrist Barbacci provide some support that diagnosis. On this point, the commission notes that its review of the medical records do not disclose whether the bone scan recommended by Dr. Zondag confirmed the diagnosis of RSD, or even whether it was done. In addition, the applicant's complaints of coldness and blueness were confined to the injured foot itself. The records do not indicate that the foot injury caused those symptoms in some more distant part of the body.
Of course, even if the applicant has RSD, the question remains whether he has established permanent partial disability beyond the now-conceded fifteen percent compared to amputation at the foot. The applicant would only be entitled to unscheduled permanent partial disability at five percent to the body as a whole if he established that the effects of the disputed RSD condition extend to other parts of the body and interfere with their efficiency. Mednicoff v. DILHR, 54 Wis. 2d 7, 15 (1972), Hagen v. LIRC, ___ Wis. 2d ___ (1997). This, of course, turns not only on the credibility of the applicant's testimony that he has pain radiating to his upper back, but also on whether Dr. Zondag credibly rated disability for those complaints.
Dr. Zondag explains that he rated disability to the body as a whole for the RSD because it prevented him from working (exhibit L) and because it caused problems with the applicant's leg similar to those that might be caused by a herniated disc (exhibit O). However, neither of these explanations, in the commission's view, meets the standard for awarding disability to the body as a whole as set out in Mednicoff. In sum, while the applicant testified he has back pain, Dr. Zondag evidently did not reach his rating of disability compared to the body as a whole on that basis.
The commission is left with legitimate doubt as to whether the applicant sustained RSD from the work injury, or whether RSD, if properly diagnosed, caused any permanent partial disability beyond fifteen percent compared with amputation of the ankle at the foot.
The commission therefore finds that the applicant sustained a permanent partial disability of fifteen percent compared to amputation of the left foot at the ankle. He is therefore entitled to 37.5 weeks of permanent partial disability at $137 per week (the maximum statutory rate for injuries occurring in 1991). This amounts to a total of $5,137.50, all of which is accrued.
The applicant authorized protection of an attorney fee of twenty percent under Wis. Stat. § 102.26. The amount of the fee is thus $1,027.50; costs of $3,894.81 are also awarded. The remainder, $515.19 is payable to the applicant within 30 days.
The last issue is medical expense. The commission is satisfied that the items of medical expense for which the applicant sought compensation at the hearing were necessary to cure and relieve the effects of his work injury. Indeed, the respondent does not argue otherwise. Consequently, the commission affirms the award of the following medical expenses awarded by the ALJ: (1) from William Woerhman, DDS, 244, all of which remains outstanding; (2) from Gosso-Waidelich Clinic, the sum of $142.65, all of which remains outstanding; (3) from Cumberland Clinic, $102, all of which is outstanding; (4) from Pain Clinic of Northwestern Wisconsin, $129, all of which is outstanding; (5) from the Middlefort Clinic, $345.50, all of which is outstanding and of which National Recovery Systems seeks $285; and (6) from James Pharmacy, $878.47, all of which is outstanding. In addition, the respondent shall pay the applicant the sum of $129.10 for out-of-pocket treatment expense, $31.52 for out-of-pocket prescription expense, and $988.78 for medical mileage.
Because the applicant may require further treatment, jurisdiction is reserved.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days from the date of this order, the employer and its insurer shall pay to all of the following:
(1) The applicant, Brian Leisz, Five hundred fifteen dollars and nineteen cents ($515.19), for disability compensation.
(2) The applicant's attorney, Manlio G. Parroni, the sum of One thousand twenty-seven dollars and fifty cents ($1,027.50) for attorney fees and Three thousand five hundred ninety-four dollars and eighty-one cents ($3,594.81) in costs.
(3) William Woehrmann, DDS, Two hundred forty-four dollars ($244), for medical treatment expense.
(4) Gasso-Waidelich, One hundred forty-two dollars and sixty-five cents ($142.65), for medical treatment expense.
(5) Cumberland Clinic, One hundred two dollars ($102), for medical treatment expense.
(6) Pain Clinic of Northwestern Wisconsin, One hundred twenty-nine dollars ($129), for medical treatment expense.
(7) National Recovery Systems, Two hundred eighty-five dollars ($285), for medical treatment expense rendered at Middlefort Clinic.
(8) Middlefort Clinic, Sixty dollars and fifty cents ($60.50), for medical treatment expense.
(9) James Pharmacy, Eight hundred seventy-eight dollars and forty-seven cents ($878.47), for medical treatment expense.
(10) The applicant, Brian Leisz, the sum of One hundred twenty-nine dollars and ten cents ($129.10), for reimbursement of medical treatment expenses; Thirty-one dollars and fifty-two cents ($31.52), for prescription expense, and Eight hundred seventy-eight dollars and forty-seven cents ($878.47), for medical mileage.
Jurisdiction is retained for such future orders and awards as may be warranted consistent with this decision.
Dated and mailed August28, 1997
leiszbr.wrr : 101 : 5 ND § 5.18
Pamela I. Anderson, Chairman
David B. Falstad, Commissioner
MEMORANDUM OPINION
The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness with respect to his pain complaints. The commission does not dispute this. However, while the applicant may have testified credibly about his symptoms, that does not prove Dr. Zondag reached the correct diagnosis, or that he properly rated disability to the body as a whole.
cc: ATTORNEY MANLIO G PARRONI
PARRONI SIEDOW & JACKSON SC
ATTORNEY RICHARD D DUPLESSIE
WELD RILEY PRENN & RICCI SC
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