DONALD KERSTEN, Applicant

KOHLER CORPORATION, Employer

KOHLER CORPORATION, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. The applicant and respondent have filed petitions for review.

The commission has considered the petitions and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The applicant was born in 1941. He graduated from high school in 1959. The applicant was in the service for three years and after the service attended machine school. He was a laborer for a short period of time prior to working for the employer. He began employment with the employer in 1969 and last worked for the employer on June 24, 2002. The applicant worked in a variety of positions for the employer, and was a cam grinder in the last ten years of his employment. That position required the applicant to do bending and lift up to 50 pounds.

In 1995 the applicant developed a sore back and sought treatment from his doctor. The treatment notes indicate that the applicant reported low back pain and pain radiating into his legs. He was diagnosed with degenerative disc disease. He was prescribed muscle relaxants which he took until the prescription ran out in August of 1995. He did not treat for that condition after July of 1995. He lost no work time due to his back. He was assessed no work restrictions. The applicant returned to work following his July 1995 treatment, but was off work from January of 1996 to June of 1996 because of treatment for his arm.

On February 11, 1998, the applicant felt immediate pain in his back and right leg after lifting a 50-pound basket of parts. The applicant described the pain as ten times worse than he experienced in 1995. The applicant also reported that he felt something pop. The applicant reported the incident to a supervisor and went home. The next day he saw the company doctor and was given muscle relaxants. The applicant was on light duty on three or four occasions from February to March of 1999 and on occasion went to the company doctor and obtained muscle relaxants. The applicant continued to suffer from occasional back pain and right foot tingling. In late 1998 applicant's symptoms worsened such that by the end of a work week he was limping.

Applicant sought medical treatment from Dr. Robert Wenberg in March of 1999. Dr. Wenberg referred the applicant to Dr. Jan DeRoos in April of 1999. The applicant reported to his doctors that he had intermittent severe pain since the February of 1998 work injury. Dr. DeRoos placed the applicant under light-duty work restrictions and ordered a series of epidural injections. Because of continued symptoms, Dr. DeRoos referred the applicant to Dr. Arvind Ahuja in March of 2000. Dr. Ahuja recommended surgery. The applicant sought a second opinion from Dr. David Coran.

Dr. Coran also recommended a possible fusion in July of 2000. Dr. Coran restricted the applicant from working. The applicant was referred to Dr. Jonathan Kay for pain management. Treatment included nerve blocks and pain medication. The applicant returned to work on November 27, 2000, to a lighter tool crib job. The applicant's symptoms gradually increased after he returned to work. In February of 2001 Dr. Kay recommended an IDET procedure. That procedure was performed by Dr. Kay on May 15, 2001. That procedure seemed to relieve the majority of the applicant's symptoms for a while. In April of 2002 the applicant's symptoms again increased. Dr. Coran then recommended surgery. A lumbar micro-discectomy at the L4-L5 level was performed by Dr. Coran on June 24, 2002. Because of ongoing symptoms a fusion was then recommended. Dr. Coran performed a fusion at the L4-L5 level on March 10, 2003.

The applicant has not returned to work for the respondent. He retired during the summer of 2003, when still in a healing period, and has not worked since that time. The applicant retired because he was told by the company that if he did not do so he would be required to pay over $500.00 in monthly health insurance premiums. The applicant has not returned to work for the respondent or any other employer. He currently receives social security disability, his retirement pension and long-term disability.

In September of 2003 Dr. Coran indicated that the applicant was doing quite well. He kept the applicant off of work. Dr. Coran noted that the applicant was having some foot numbness, but had no pain complaints. Dr. Coran also indicated that the applicant's straight leg raising tests were negative and he had full strength and sensation in both legs.

Dr. Coran saw the applicant for a follow-up visit in February of 2004. At that time he indicated that the applicant was "permanently disabled from gainful employment." On March 29, 2004 Dr. Coran set forth the following restrictions:

1) maximum continuous sitting ability of 30 minutes before he must alternate positions and needs to alternate positions for approximately 15 minutes before returning to a seated position, 2) during an eight-hour work day he can sit for four hours, 3) can stand for a maximum of 30 minutes before alternating positions and then after standing or walking the maximum amounts as stated he needs to lie down or recline in a supine position for 15 minutes, 4) can stand or walk for approximately 2 hours during an eight-hour day, 5) needs to rest at approximately 2 hour intervals to relieve pain, 6) cumulative resting time during an eight-hour work day would be 2 hours and, 7) can occasionally lift and carry up to 10 pounds and never more.

One of the applicant's treating physicians was Dr. Jonathan Kay. It is the opinion of Dr. Kay that the February 11, 1998, injury either was a material contributory causative factor in the onset or progression of applicant's condition, or aggravated and accelerated the pre-existing condition beyond normal progression. Another one of the treating physicians was Dr. Jan DeRoos. Dr. DeRoos opined that the February 11, 1998, injury aggravated and accelerated the applicant's pre-existing degenerative back condition beyond normal progression. The applicant's main treating surgeon was Dr. David Coran. Dr. Coran also opined that the February 11, 1998, incident aggravated and accelerated the pre-existing condition beyond normal progression. In September of 2003 Dr. Coran indicated that the applicant had fairly good results from his surgery and awarded 15 percent permanent disability. He assessed 10 percent for the surgery and 5 percent for residual pain and radiculopathy. In his report of March 29, 2004 Dr. Coran indicated that the applicant had a 20 percent permanent partial disability and indicated that the applicant is "permanently disabled from gainful employment." Dr. Robbins felt that the February 11, 1998, injury was a temporary aggravation of the applicant's degenerative back condition. He did not feel that the additional treatment or disability was related to the 1998 incident.

After a careful review of the testimony given and the exhibits received, the commission finds applicant's doctors' opinions more credible than the opinion of Dr. Robbins. First, the applicant did have a pre-existing degenerative condition. He was noted to have degenerative joint disease as early as 1995. Second, the applicant successfully treated in 1995. He was able to return to work and performed his full duties until this work injury. Third, the applicant did sustain a compensable injury on February 11, 1998. The respondents concede it was at least a strain or temporary aggravation. Fourth, it appears that the applicant has had some ongoing problems since February 11, 1998. While there were occasional gaps in treatment, the commission finds credible the applicant's testimony that he was having some ongoing symptoms. When he again began treating on a regular basis in 1999 he related to his doctors that he had been having some ongoing symptoms since the February 11, 1998, incident. Fifth, the applicant required extensive treatment. He was treated with prescription medications, therapy, an IDET procedure, a micro-discectomy and finally a fusion at the L4-L5 level. The applicant's doctors attempted to conservatively treat the applicant at first, but the treatment progressed to the point where a fusion was required. Sixth, the commission finds extremely credible the applicant's doctors who all believe that the injury of February 11, 1998, was either a material contributory causative factor, or aggravated and accelerated the pre-existing condition beyond normal progression. Only Dr. Robbins, the IME, felt that the treatment and disability were not related to the February 1998 injury.

The applicant submitted a vocational report authored by Mr. Kummel. Mr. Kummel considered applicant's educational background, occupational experience, and medical restrictions. Mr. Kummel found that Dr. Coran's restrictions eliminated the applicant from work for the employer and in the general labor market and thus rendered the applicant 100% vocationally disabled. The commission adopts Mr. Kummel's opinion. The applicant has met his prima facie of odd-lot unemployability. The respondent has not offered a contrary vocational opinion. The respondent has presented no evidence that jobs do exist for the applicant. The respondents have failed to rebut that prima facie case.

Neither applicant's retirement nor his failure to specifically request work from the employer defeats his claim. The applicant retired out of financial necessity. The commission will not require a worker to become indigent to preserve a worker's compensation claim. The applicant was not required to seek out work. The respondent provided no vocational opinion that applicant was not in the "odd lot" category, that work was actually available to the applicant in his labor market or that it had work that applicant could perform within his physical limitations.

The respondents shall be liable for the applicant's medical expenses, temporary disability from July 11, 2000 through November 27, 2000, temporary disability from May 18, 2001 through June 26, 2001, and temporary disability from June 24, 2002 through February 17, 2004.

The respondent documented payments of short-term and long-term disability during the periods of temporary disability claimed. Based on documents in the record those payments total $29,757.04. The respondent will receive a credit for such payments.

The applicant is entitled to temporary total disability for the periods of July 11, 2000, to November 26, 2000, 19 weeks and 5 days, totaling $10,171.60, May 18, 2001 to June 25, 2001, 5 weeks and 3 days, totaling $2,924.21, and June 24 2002, to February 16, 2005, 86 weeks, totaling $52,419.58. The temporary total disability amounts to $65,515.39.

The applicant is entitled to fill in or gap weeks of permanent partial disability accrued before the permanent total disability date of February 17, 2004. The department worksheet shows 150.66 weeks of permanent partial disability to July 2, 2004. However, the permanent partial disability period ended on February 17, 2004. From February 17, 2004, to July 2, 2004, totals 19.5 weeks. Therefore 131.1667 weeks of permanent partial disability accrued before permanent total disability commenced. The permanent partial disability amounts to $23,478.83.

The applicant is entitled to permanent total disability for the period of February 17, 2004, to June 17, 2005, 69 weeks, totaling $34,243.11.

The accrued benefits due $123,237.33, less the long-term and short-term disability payments, amount to $93,480.29. From that amount $18,696.06 will be paid to applicant's attorney as fees and $1,042.00 will be paid to applicant's attorney as costs. The total compensation immediately due applicant totals $73,742.23.

In addition, the respondent shall pay the applicant's medical bills. Respondent shall pay $92.00 to Anesthesiology Associates, $6,312.37 to State Collection, $3,699.00 to Biolectron EBI, $149.67 to Collections Association, $618.56 to Aurora Medical Group and $143.00 to Sports Medicine.

Jurisdiction is retained regarding future medical treatment and expenses.

NOW, THEREFORE, this

The findings and order of the administrative law judge are affirmed in part and reversed in part. Within 30 days of the date of this order the respondent shall pay to the applicant the sum of seventy-three thousand seven hundred forty-two dollars and twenty-three cents ($73,742.23), and to applicant's attorney fees in the amount of eighteen thousand nine hundred fifty-six dollars and six cents ($18,956.06) and costs of one thousand forty-two dollars ($1,042.00). Beginning on July 17, 2005, the respondent shall pay each month to the applicant the sum of one thousand seven hundred eight dollars and six cents ($1,708.06) and to applicant's attorney the sum of four hundred twenty seven dollars and one cent ($427.01). Beginning October 17, 2013, the respondent shall pay to the applicant each month the sum of two thousand one hundred thirty-five dollars and seven cents ($2,135.07).

Respondents shall pay ninety-two dollars ($92.00) to Anesthesiology Associates, six thousand three hundred twelve dollars and thirty-seven cents ($6,312.37) to State Collection, three thousand six hundred ninety-nine dollars ($3,699.00) to Biolectron EBI, one hundred forty-nine dollars and sixty-seven cents ($149.67) to Collections Association, six hundred eighteen dollars and fifty-six cents ($618.56) to Aurora Medical Group and one hundred forty three dollars ($143.00) to Sports Medicine.

Dated and mailed May 31, 2005
kerstdo . wrr : 132 : 1 : ND § 5.31

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ regarding his impressions of the applicant's demeanor and credibility. The ALJ indicated that he found the applicant to be a poor historian but was also of the opinion that applicant would not lie. The ALJ specifically stated that he credited the applicant's testimony that he had ongoing pain and numbness after the February 11, 1998, injury. The commission has found no reason to disagree with such credibility assessment. The applicant did have degenerative disc disease. However, he had not treated for a number of years prior to the injury and had no restrictions on his work activities.

The commission credits the applicant's doctors' opinions on causation and accepts the physical restrictions set forth by Dr. Coran. The credible medical evidence along with the undisputed vocational opinion establishes that the applicant was in the odd-lot category. The respondent asserts that Mr. Kummel believed applicant stopped working in 1999, when in fact he continued to work until March of 2002. However, the Mr. Kummel's opinion in this case of odd-lot employability cannot reasonably be argued to hinge on when applicant stopped working.

The respondent cites the commission's case of Anderson v. General Motors Corp., WC Claim No. Claim No. 92068305 (LIRC Nov. 29, 1993), for the proposition that retirement defeats a loss of earning capacity claim, but in that case a critical fact was that the employer had actually offered the applicant work within his restrictions. No such offer was made in this case. See also, Istvanek v. County of Kenosha, WC Claim No. 2000045183 (LIRC March 25, 2004)(applicant found permanently totally disabled who retired in order to obtain benefits and "make ends meet"); and Thimm v. City of Mequon, WC Claim No. 2001-004046 (LIRC Feb. 18, 2005)(applicant found permanently totally disabled who retired during his healing period and despite employer's assertion it would have provided applicant work).

DAVID B. FALSTAD, Commissioner, (dissenting):

I respectfully dissent from the majority opinion in this case.

The applicant had a long history of back complaints and medical treatment for those complaints. Although he did not seek treatment for back complaints in 1996 and 1997, he was off work a significant amount of time during those years for reasons unrelated to his back. I further believe that if applicant's back pain had persisted for a year he would have sought treatment. The employer's records do not support applicant's claim that he treated for ongoing symptomology. Rather, those records indicate applicant's symptoms had essentially resolved within two weeks of the lifting incident. Applicant continued to work until February of 1999. Applicant had a history of back pain and treatment. Applicant continued to work without seeking outside medical treatment. Applicant worked without any physician imposed restrictions for more than a year. The applicant sought medical treatment in April of 2002, and in June of 2002 his treating doctor indicated he was without back pain. Applicant's treating doctor released applicant to return to work without restrictions. The doctors agree that applicant has multi-level disc disease. These facts lead me to credit the opinion of Dr. Robbins that applicant sustained a temporary aggravation of his preexisting condition from which he healed without permanent disability.

The applicant voluntarily retired for economic reasons, not because of his work injury. The applicant did not provide the employer with his work restrictions to allow the employer to determine whether it had a job he could perform. The employer had no reason to believe the applicant was interested in working, and thus no reason to offer applicant work, as he retired prior to Dr. Coran imposing permanent restrictions. The applicant voluntarily removed himself from the labor market. I would find as did the ALJ that applicant sustained no loss of earning capacity because of the work injury.

_________________________________
David B. Falstad, Commissioner

cc:
Attorney Patrick J. Gillick
Attorney Jan M. Schroeder

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