DENNIS L VELEKE, Applicant
SPEED QUEEN CO, Employer
LIBERTY MUTUAL FIRE INS CO, Insurer
The applicant filed an application for hearing in March 2009. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 31, 2010.
Prior to the hearing, the employer and insurer (collectively, the respondent) conceded jurisdictional facts, a compensable injury on January 20, 1995, and an average weekly wage as of the date of injury of $496.80. The respondent also paid some compensation for temporary disability, and made some payments under a limited compromise described below. At issue at the hearing was the nature and extent of disability including, specifically, the applicant's claim for permanent total disability, as well as the respondent's liability for medical expenses.
The ALJ issued his decision on November 19, 2010. The respondent filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
The applicant was born in March 1949. In May 1986, the applicant underwent a discectomy surgery done by Dr. Tibbits as a result of a prior work injury occurring a few weeks earlier. See exhibit A, March 12, 1990 report of Brown, page 5. The 1986 injury is not now at issue.
In January 1995, the applicant sustained the injury now at issue while doing assembly work for the employer. The injury occurred when the applicant attempted to separate the product to clear a jam on the assembly line. After doing so he noticed the onset of back and left leg pain. Dr. Tibbits did a second surgery, an L4-5 discectomy in June of 1995, which left the applicant with a left foot drop. As noted below, the foot drop eventually necessitated an ankle surgery many years later in 2009.
Shortly after the injury, however, the applicant was able to return to work with restrictions for the employer. The applicant stopped working, apparently in 1997 or early 1998, because of anxiety. He has been eligible for social security disability benefits since September of 1997.
Indeed, the applicant had begun treating for the anxiety condition apparently in March of 1997. In December of 1997 the employer's non-industrial insurer began paying him disability benefits for a condition described as: "Conversion reaction/panic disorder with left-sided tremors." The doctor who treated him for this condition, Richard J. Gauthier, M.D., certified at that time that the applicant would never be able to return to work in any occupation as the result of this condition. See Exhibit 5.
Dr. Gauthier fleshed out this opinion in a letter to the applicant's attorney that was an exhibit at a prior hearing on September 21, 1998.(1) Dr. Gauthier wrote:
I have not returned the patient to work. I believe he has completed the healing period from his injury of January 20, 1995. He has several diagnoses. He had disk herniation of L4-5. He also has had intermittent left-sided shaking spells which after extensive evaluation by a number of physicians appears to be a conversion reaction/panic disorder with diffuse left greater than right-sided tremors. In terms of relation to his injury, this is a difficult question. I believe his left lower extremity weakness and foot drop could be explained on the basis of his injury, but that it would be difficult to show causality between the work injury and the apparent conversion reaction symptoms of tremulousness.
Would I ever return him to work at this point? No, I do not believe he is capable of returning to work, primarily on the basis of the left-sided tremors. I consider this condition to be permanent. I do consider it to be total.
There is also a report that was an exhibit at the prior hearing from Brad K. Grunert, Ph.D., in which Dr. Grunert opined that, based on his interview of the applicant and a review of the medical records:
[The applicant] would seem to have a diagnosis of atypical panic attack. He does not appear to be agoraphobic although he does have some social embarrassment when an attack occurs in public. He does get some relief with his Chlorazepam although he does continue to have attacks on a two to three time weekly basis. By history, as provided by [the applicant] and by his medical records, he clearly appears to have experienced at least an aggravation of a preexisting condition, if not the onset of an atypical panic disorder as a result of his work injury. I do believe, therefore, that his condition is related to the work injury that he sustained on January 20, 1995. He certainly would benefit from treatment for this including evaluation by a psychiatrist for the possibility of medication management of his condition.
(Exhibit E from 1998 hearing, February 12, 1998 note from Dr. Grunert.)
Also in February 1998, Dr. Grunert completed a practitioner's report that stated that the applicant was disabled due to an atypical panic disorder that was either directly caused by, or aggravated, accelerated and precipitated beyond normal progression by, his January 20, 1995 work injury.
Calvin J. Langmade, the psychologist retained by the respondent at the time of the 1998 hearing, on the other hand, opined that the applicant's psychological condition in 1998 was not related to his work injury. See exhibit 4 from the 1998 hearing.
However, the question of the work-relatedness of the applicant's psychological condition is not before the commission. In October 1998, the parties entered into a limited compromise, which was approved by the department by order dated October 27, 1998. Under the limited compromise, the respondent paid the applicant $20,000 to settle, among other things, "all claims related to the alleged psychological claims."(2) The limited compromise also provided that the respondent was to receive "credit on PPD claims for the conceded back injury as though the Respondents paid 17% PPD," though "PPD claims for the back injury over and above 17%" were not compromised.
Meanwhile, the applicant continued to treat for his back and leg on and off. As the result of the foot drop condition, he underwent a left ankle arthrodesis and osteotomy of the foot on January 12, 2009. In a letter to the applicant's attorney dated March 13, 2009 (Exhibit G), the treating surgeon, Dr. Rongstad, opined that the surgical intervention on the applicant's left ankle was due to the original injury of January 20, 1995, the subsequent spinal surgery, and neurological complications. See also exhibit E, report of Tibbits.
The applicant was examined by Dennis Brown, J.D., M.D., in March of 2010. Based on his examination and review of the medical notes, Dr. Brown opined that the applicant's work accident of January 20, 1995, precipitated, aggravated and accelerated beyond normal progression, the applicant's progressively deteriorating degenerative condition of lumbar disc disease. He opined that the accident caused the L4-5 disc herniation and resulted in a more profound left foot drop than the applicant had experienced following the prior back injury and a 1986 surgery. Dr. Brown went on to opine that the back condition and associated neurogenic left leg and left foot weakness necessitated a left ankle fusion on January 12, 2009. He noted that a medical examiner retained by the respondent had appropriately assessed a 40 percent loss at the left ankle for the successful ankle fusion.
Dr. Brown also noted that the applicant had left knee pain which he found probably had been caused by the faulty biomechanics due to his back-related neurogenic left leg weakness that had resulted in the need for the ankle fusion surgery. He stated it was medically probable that the applicant would require future medical treatment of his left knee as it continued to deteriorate because of the back-related left leg weakness. Dr. Brown also set the following work restrictions:
Low back-related permanent work restrictions: no lifting greater than 25 pounds, no carrying, no repetitive bending, no squatting, no climbing, and no work at unprotected heights. Left ankle-related permanent work restrictions: no lifting greater than 35 pounds, no squatting, no running, no standing greater than 20 minutes or walking greater than 100 yards without the opportunity to sit for 30 minutes.
Dr. Brown also concluded that it was possible the applicant would require further medical treatment for his left knee.
As alluded to above, the respondent had the applicant examined by its own examiner, Thomas J. O'Brien, M.D., in July 2009. Dr. O'Brien's initial report is at Exhibit 1. He opined that the ankle fusion surgery done by Dr. Rongstad was technically well-executed and helped relieve the applicant's ankle pain. As Dr. Brown stated, he rated permanent partial disability at 40 percent compared to amputation at the left ankle. Dr. O'Brien further opined that the applicant reached an end of healing from the January 2009 ankle fusion procedure done by Dr. Rongstad as of May 2009.
Regarding what caused the applicant to need the 2009 ankle surgery, Dr. O'Brien reported that some earlier medical notes showed the applicant had at least some neurological weakness prior to the second discectomy surgery done by Dr. Tibbits in 1995. Accordingly, Dr. O'Brien attributed two-thirds of the left foot drop to the 1995 discectomy surgery and one-third to the 1986 discectomy surgery.
The earlier medical notes to which Dr. O'Brien referred are discussed in a practitioner's report that he did at the time of the first hearing (Exhibit 1 from 1998 hearing). This report documents a weakness of dorsiflexion to the feet, although it is bilateral. (Exhibit 1 from 1998 hearing, April 1997 report of O'Brien, reference to December 1994 note from Dr. Majid.) There is also a note from Dr. Vistie in November 1994 mentioning weakness in the left lower extremity. Similar notes referring to left leg weakness are documented in Dr. O'Brien's report from June 1996.
The respondent also offers an updated report from Dr. O'Brien in June 2010 (exhibit 2). In this report, the doctor rated permanent partial disability at 5 percent following the 1986 discectomy and an additional 6 percent after the 1995 discectomy(3), for a total of 11 percent for the lumbar injuries. Regarding the lumbar condition, he opined the applicant could return to normal activities with appropriate lifting techniques and mechanics--that is, without restriction. As a result of the ankle fusion and altered gait, on the other hand, Dr. O'Brien set permanent restrictions against walking on uneven terrain, no jumping, no running, and no ladder climbing.
Both parties submit vocational opinions based on the work restrictions. The applicant relies on the report of Timothy Riley who opined that based on a combination of the ankle and back restrictions assigned by Dr. Brown, the applicant had access to sedentary work only. However, noting that the applicant had no experience performing clerical or clerking jobs which comprised the majority of occupations at the sedentary level, and that the applicant never performed work outside of a production environment or any work greater than semi-skilled work, Mr. Riley opined that the applicant had no transferable skills.
Accordingly, in Mr. Riley's opinion the applicant was permanently and totally disabled on an odd-lot basis based on the work restrictions set by Dr. Brown. He also opined that given the applicant's age and level of education, re-training was not a realistic option.
The respondent's vocational expert, Michael Campbell, meanwhile opined that the applicant would have no loss of earning capacity if one only considered Dr. O'Brien's opinion that the applicant needed no restrictions for his lower back. Mr. Campbell did agree, however, that if one considered the lower back and ankle restrictions of Dr. Brown, the applicant would be left with permanent total disability on an odd-lot basis.
On the other hand, combining the lower back restrictions set by Dr. Brown with the ankle restriction of Dr. O'Brien, Mr. Campbell felt that the applicant would have a loss of earning capacity in the range of 41 to 47 percent because he would remain available for jobs such as security worker, bindery worker, assembler, hand packager, bus driver, packaging machine operator, sales clerk, counter clerk, lobby attendant, counter attendant, and cashier.
This case poses two main legal issues:
(1) the Mireles issue, addressing the question of when scheduled and unscheduled restrictions may be combined in a permanent total disability claim, and
2) the Kohler-like issue, addressing what happens when a worker who is already disabled from work due to a non-work-related (or compromised) psychological condition, becomes further disabled due to a work injury.
a. Combination of scheduled and unscheduled disabilities under Mireles.
In Mireles v. LIRC, 2000 WI 96, 63-64, 71, 237 Wis. 2d 69, the court held that an award for permanent total disability may be based on a combination of injuries affecting both scheduled and unscheduled parts of the body. See also: Secura Insurance v. LIRC, 2000 WI App 238, ? 17, 239 Wis. 2d 315. Indeed, the Mireles court quoted with approval language from the court of appeals decision in Langhus v. LIRC, 206 Wis. 494, 505 note 9 (Ct. App. 1996), where the court noted that a worker could prove permanent total disability stemming from both scheduled and unscheduled injuries, under the directive in Wis. Stat. § 102.44(2) for the department (and the commission) to "find the facts." Mireles, 237 Wis. 2d 69, 63.
The Langhus court, in turn, stated that the commission may properly require a worker to show that an ascertainable portion of his or her permanent total disability was from an unscheduled injury. Langhus, at 206 Wis. 2d 506. See also: Mireles, 237 Wis. 2d 96, 68. In other words, in cases of claims for permanent total disability based on combinations of scheduled and unscheduled injuries,(4) the commission acts within its authority to require the applicant to show that an ascertainable portion of the total disability is attributable to an unscheduled injury. Secura, 239 Wis. 2d at 351, 20.
In sum, under Mireles, and its discussion of the Langhus case, an applicant may make a claim for permanent total disability based on a combination of scheduled and unscheduled disabilities under Wis. Stat. § 102.44(2), if the scheduled injuries constitute an "ascertainable portion of the applicant's disability" and, taken as a whole, the applicant's restrictions from her work-related scheduled and unscheduled injuries make the applicant unemployable on an odd-lot basis.
b. Effect of psychological disability preceding the ankle-related disability.
However, in this case the Mireles issue is complicated by the fact that, well before the ankle surgery in 2009, the applicant had already stopped working due to the psychological condition which was the subject of the limited compromise. The fact the applicant was not working, and had not worked for several years when he underwent the ankle surgery, has a direct effect on his disability claim in this case.
While the applicant claimed temporary disability in his hearing application, he did not pursue it at the hearing, choosing instead to pursue permanent total disability from the date of the January 12, 2009 ankle surgery. Temporary total disability is paid to injured workers for current wage loss, so in some cases where a worker is no longer working or attached to the labor market for reasons unrelated to the work injury, the commission has found there is no current wage loss entitling him or her to temporary disability.(5) Here, because the applicant was no longer working due to psychological disability--and had not been working for many years--there was no current wage loss entitling him to temporary disability.
However, while temporary disability is paid for current wage loss, permanent disability is paid for permanent functional impairment and vocational impairment to the applicant's residual earning capacity. Thus, in a number of cases, the commission has held that the lack of current wage loss--such as when a worker has retired--does not necessarily extinguish a loss claim for permanent disability based on loss of earning capacity.(6) In such cases, the commission has noted the supreme court's holding that it is the worker's disability, not the separation from employment per se, that is the focus of the disability claim. See Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 403 (1969). The underlying basis for paying compensation for loss of earning capacity in voluntary retirement cases is that a worker may change his mind and decide to un-retire(7)--that even a retired worker had some vocational capacity that was reduced or eliminated by the work injury--and that it would be improper to discount totally a loss of earning capacity claim under that circumstance.
Here, however, the applicant was not working due to his psychological disability when his claim for permanent total disability due to the physical effects of the injury arose. Indeed, the applicant was able to work, despite the physical effects of the work injury, until the compromised psychological disability intervened. The record includes reports from two of the applicant's treating doctors opining that he could not work because of his psychological disability.
Once the applicant was taken off work--and stopped working--due to his psychological disability, he no longer had any residual earning capacity. He had, in effect, already been completely and permanently removed from the labor market due to the psychological disability by the time he had the 2009 foot surgery. On this point, the commission notes that the applicant was 61 at the time of the hearing in August 2010 and had not worked for at least 12 years.
Therefore, the commission cannot award the applicant permanent disability--whether permanent total disability on an odd-lot basis or permanent partial disability on a vocational basis--for loss of earning capacity based on his back injury. There was no earning capacity left to lose once the applicant was found to have been permanently disabled from work due to his psychological condition. And, again, the applicant compromised his claim for psychological disability.
Nor, for the reasons stated above, is the applicant entitled to compensation for temporary disability. However, he is entitled to permanent partial disability on a functional basis (not based on loss of earning capacity) due to his ankle and back surgeries. See Wis. Stat. § 102.44(6)(h).
In this case, Dr. Brown and Dr. O'Brien agree that the applicant was left with a 40 percent permanent partial disability compared to loss of the foot at the ankle due to the January 12, 2009 ankle surgery. Dr. O'Brien apportions one-third of this disability to the earlier 1986 injury and surgery, and two-thirds to the 1995 injury now at issue. Dr. Brown does not appear to question that apportionment in his report at exhibit A. He states generally that the applicant's "back condition and associated neurologic left leg and left foot weakness" made the left ankle fusion surgery necessary, rather than attributing the need for the surgery specifically to the 1995 injury and surgery. Indeed, Dr. Brown states the 1995 work injury resulted "in a more profound left foot drop than Mr. Veleke experienced following a previous back injury and 1986 back surgery. [Italics supplied.]" As recited above, the medical notes document a left foot drop to some degree after the 1986 injury. The commission therefore adopts Dr. O'Brien's apportionment of disability from the ankle surgery as credible.
Under Wis. Stat. § 102.52(12), a worker is entitled to compensation for 250 weeks of permanent partial disability for loss of a foot at the ankle. A 40 percent loss thus works out to 100 weeks under Wis. Stat. 102.55(3). Since the respondent is liable for only two-thirds of that loss under Dr. O'Brien's apportionment, the permanent partial disability for the ankle surgery made necessary by the 1995 back injury is 66.67 weeks.
The applicant is also entitled to permanent partial disability at 6 percent for the discectomy done in June 1995, as Dr. O'Brien opined. There is no deduction from the 1000-week base under Wis. Admin. Code DWD 80.50(2) due to the ankle disability because this permanent disability rated to the body as a whole would have accrued long before the additional permanent disability rated at the ankle and because the limited compromise agreement seems not to have contemplated a reduction to the base.(8) The applicant is thus entitled to 60 weeks of permanent partial disability to the body as a whole due to the June 1995 discectomy surgery to treat the work injury.
The multiple injury factor under Wis. Stat. 102.53(4) requires the "lesser disability"--in this case the 60 weeks to the body as a whole--be increased by 20 percent. In all, the applicant is entitled to 138.67 weeks of permanent partial disability due to the 1995 back injury. However, under the limited compromise agreement, the respondent is to receive "credit on PPD claims for the conceded back injury as though the Respondents paid 17% PPD." The commission reads this to mean that the respondent is to receive credit for the first 170 weeks of permanent partial disability paid as a result of the back injury, including the weeks of scheduled disability rated at the ankle that resulted from the back injury. Accordingly, no additional permanent partial disability is due under this order.
As a result of the work injury, the applicant incurred $684.36 in out-of-pocket medical expense and medical mileage, of which the respondent had paid two-thirds, or $456.24. Transcript, page 5. Because Dr. O'Brien's report supports apportionment of medical expense as well as disability, no further medical expense payment is due.
The last issue is whether to reserve jurisdiction. In general, an interlocutory--as opposed to final--order is appropriate when it may not definitely be determined that the injured worker will not sustain additional disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956); Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). Issuing an interlocutory order is discretionary under Wis. Stat. § 102.18(1)b), "to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate." DWD, Worker's Compensation Act of Wisconsin with Amendments to April 2011, note 112 (WKC-1-P R. 04/2011). Based on Dr. Brown's opinion, the commission cannot rule out the need for additional treatment, including additional disability, for the work injury in the future. This order shall thus be left interlocutory to permit further orders and awards regarding additional medical expense and disability as may arise in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
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.
No compensation is due under this order.
Jurisdiction is retained for future orders and awards as are warranted.
Dated and mailed
November 30, 2011
veleked . wrr : 101 : 9 ND6 6.21, 6.32
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission consulted with the presiding ALJ concerning witness credibility and demeanor. He informed the commission that he believed the applicant was giving his best effort to give correct answers and did not exaggerate his symptoms. The ALJ also stated that the applicant seemed to find the hearing process stressful, and was nervous. He added that the injured appearance of the applicant's leg was obvious. He added that the applicant was a physically powerful fellow, and the ALJ believed the applicant's self-perception was largely based on what he could or could not due physically.
The commission has no reason to doubt the ALJ's credibility impressions. It is convinced that the applicant testified honestly and made every effort to give truthful answers. It did not reverse the ALJ's decision based on the applicant's credibility, however, but on the legal effect of the compromise of the applicant's psychological disability as explained above.
Attorney Dennis H. Wicht
Attorney Alan E. Seneczko
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(1)( Back ) The ALJ presiding at the August 10, 2010 hearing admitted the exhibits from the September 21, 1998 hearing into the record without objection from the parties. Transcript, page 6.
(2)( Back ) The ALJ presiding at the August 10, 2010 hearing took administrative notice of the limited compromise agreement and the department order approving it, admitting them into the record without objection from the parties. Transcript, page 6.
(3)( Back ) Of the 6 percent rated for the January 1995 injury, Dr. O'Brien stated 5 percent was for the lumbar decompressive laminectomy and 1 percent for permanent neural injury.
(4)( Back ) The scheduled ankle disability has its genesis in the discectomy surgery to treat the injury to the spine and that disability to the spine is unscheduled. However, it is the location of the disability or impairment, not the location of the injury, that determines whether and how the scheduled disability ratings apply. Vande Zande v. ILHR Department, 70 Wis. 2d 1086, 1093, 236 N.W.2d 255 (1975). See Neal & Danas, Worker's Compensation Handbook 6.18 (7th ed., 2010). 5
(5)( Back ) Carl B. Keys v. Tower Automotive and American Manufacturers Mutual Insurance Company, W.C. claim no. 2002-043158 (LIRC October 29, 2007).
(6)( Back ) Binder v. Neenah Foundry, WC claim no. 2009-010250 (LIRC May 24, 2001) (holding an award for permanent disability based on loss of earning capacity cannot be denied solely on the basis that a worker would have voluntarily retired soon anyway or that he had independent sources of income); Erdman v. Stora Enso North America, WC claim no. 2005-001532 (LIRC June 2, 2006); Istvanek v. County of Kenosha, WC claim no. 200045183 (LIRC March 25, 2004) (where the worker had actually returned to work after retirement). As to the distinction between TTD and PTD on this issue, see Nicholas Thimm v. City of Mequon, WC claim 2001-004046 (LIRC February 18, 2005), note 2 (discussing General Motors v. LIRC and Edward Hoff, case no. 83-CV-1339 (Wis. Cir. Ct. Rock County November 22, 1983), aff'd case no. 83-2378 (Ct. App. 1985), where the court specifically distinguished between temporary disability (which is a claim for past actual wage loss) and permanent disability (which is a claim for future wage impairment).) The circuit court in General Motors Corporation further cited two supreme court decisions which emphasize that there must be actual wage loss to collect temporary disability and that a theoretical wage loss does not suffice, Employers Mut. L. Ins. Co. v. Industrial Commission, 230 Wis. 270, 281 (1939) and Delta Oil v. Industrial Commission, 273 Wis. 285, 291 (1956).
(7)( Back ) As the Kohler court observed:
"Nor can we agree that accepting Social Security old age benefits moves one into a fixed class or category. The decision to cease working is not fixed or irrevocable. Many a person has started drawing his Social Security benefits, only to change his mind and re-enter the employment market. Retirement living is a blessing to many, an empty vacuum for others. In fact, the Social Security Act itself permits supplementary earnings up to a certain limit in a calendar year without diminution of the retirement allowance."
(8)( Back ) The limited compromise gave the respondent a "credit on PPD claims for the conceded back injury as though the Respondents paid 17% PPD." If the applicant sustains additional scheduled permanent disability (say to his knee), deducting weeks of disability for more distal injuries from the 1000-week base would make the amount of the credit a moving target that would be difficult, if not impossible, to calculate with certainty.