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


STEVEN THOMAS KALKOFEN, Applicant

BEMIS MFG CO INC, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89077673


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 28, 1997. The employer and its insurer submitted an answer to the petition and briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the applicant's conceded low back injury which occurred on December 11, 1989.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is May 26, 1964, began his employment with the employer in 1985 or 1986. When his work injury occurred on December 11, 1989, his job involved pulling rough wood through a chop saw, and then either placing the wood on a conveyor or on a skid. The work involved twisting, bending, and steady lifting. On December 11, 1989, he was bending over to stack lumber on a skid when he felt a "snap" in his lower back and was unable to get up. He was unable to continue working that day and was seen by a chiropractor. The chiropractic treatment offered some temporary relief, but the back pain continued and the applicant obtained conservative treatment from his family physician, Dr. Neheaus.

The applicant's back problem persisted and the employer sent him to Dr. George Anast, an orthopedist, who first saw him on June 12, 1990, Dr. Anast ordered a lumbar CT scan which was read as negative, except that it did show the applicant to have six lumbar vertebrae as well as some facet irregularities. Dr. Anast continued conservative treatment and referred the applicant to his colleague, Dr. Marc Durette, for evaluation.

Dr. Durette first saw the applicant on July 9, 1991, and his initial impression was status low back strain. Dr. Durette ordered a lumbar spine MRI on February 23, 1993, and it was normal except for disc degeneration at L3-4 and L4-5. Dr. Durette referred the applicant to Dr. Thomas Faciszewski, an orthopedic surgeon. Dr. Faciszewski first saw the applicant on September 23, 1993, and his initial impression was low back pain secondary to degenerative disc disease at L3-4 and L4-5. Dr. Faciszewski offered the applicant the alternative of fusion surgery. On April 27, 1994, Dr. Faciszewski performed discecetomy and anterior/posterior fusion procedures at L3-5. The surgery was partially successful in relieving the applicant's back symptoms. On October 26, 1995, Dr. Faciszewski completed a Practitioner's Report which attributed direct causation of the applicant's internal disc disruption to the work injury of December 11, 1989. Dr. Faciszewski assessed 20 percent permanent partial disability, citing the double-level discecetomy and fusion.

At the insurance carrier's request, Dr. Robert Fielden, an orthopedic surgeon, examined and evaluated the applicant. The exam took place on October 7, 1993, and Dr. Fielden submitted a written report dated November 4, 1993. He opined that the work injury of October 11, 1989, caused chronic muscular back pain associated with tight hamstrings. Dr. Fielden concurred with Dr. Durette's July 1991 assessment of 2 percent permanent partial disability, which Dr. Fielden indicated was awarded for "the original back strain." He gave restrictions attributable to the work injury of no awkward twisting, or repetitive bending or lifting. On December 13, 1993, Dr. Fielden submitted a supplemental report after reviewing the results of discography performed in October 1993. Dr. Fielden discussed the "unpredictable" features of discography, and recommended against the proposed fusion surgery. He opined that the surgery offered only a 50 percent chance of providing pain relief, but a 100 percent chance of destroying two levels of disc function.

The administrative law judge (ALJ) accepted Dr. Fielden's 2 percent assessment. He awarded just over 44 weeks of temporary total disability for periods between April 25, 1994 and April 23, 1995, as well as temporary partial disability for the weeks between November 5, 1994 and April 22, 1995. These are post- surgical periods. In a memorandum appended to his decision, the ALJ indicated that the exhibits received do not include any medical records from the Marshfield Clinic (where Dr. Faciszewski practices); and that there was only one letter submitted into evidence from Dr. Faciszewski, in which he expressed his disagreement with Dr. Fielden's recommendation against future treatment and surgery. The ALJ also indicated that the WKC-3 submitted only contained a summary of medical expenses without the actual invoices, so he disallowed those expenses.

In fact, the last page of respondent's Exhibit 1 includes a Practitioner's Report (a WC-16-B form reprinted by Marshfield Clinic) from Dr. Faciszewski. It was dated and signed on October 26, 1995. Applicant's Exhibits B and C contain numerous medical invoices from the providers listed in the applicant's WKC-3 (applicant's Exhibit A). The Worker's Compensation Division file also contains a packet of clinic notes from Marshfield Clinic detailing Dr. Faciszewski's treatment, but this packet appears to have been left out of the record by error.

The compensation issues in this case are resolved by reference to Spencer v. ILHR Department, 55 Wis. 2d 525, 200 N.W.2d 611 (1972). The relevant quote from that case reads:

". . . where an employe, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment (increased period of temporary total disability, increased permanent partial disability and the expense of the arthrodesis) because it finds the treatment either unnecessary or unreasonable." Id. at 532.

Dr. Fielden disagreed with the necessity for surgery, and arguments have been made concerning whether he was right or wrong. But the determinative fact is that Dr. Fielden never asserted that the treatment the applicant was receiving or would receive from Dr. Faciszewski was attributable to anything other than the work injury. If there had been such an assertion it could have been argued that the additional treatment and surgery were due to this other condition. City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 N.W.2d 882 (Court of Appeals 1982). However, one of the specific questions Dr. Fielden answered in his report (Respondent's Exhibit 1) was whether the applicant's physical complaints were a manifestation of a preexisting condition, and Dr. Fielden answered "No." Accordingly, the temporary disability, medical expense, and permanent disability attributable to the surgery of April 27, 1994, are compensable.

In his Practitioner's Report dated October 26, 1995, Dr. Faciszewski credibly opined that the applicant's disability related to his surgery began on April 27, 1994, and that he reached a healing plateau on April 21, 1995. However, the record is unclear with regard to the exact dates during this period when the applicant went back to work on a full or part-time basis. Based on the conceded average weekly wage of $340.56, the applicant's temporary total disability rate would be $227.04 per week. However, it also appears that there were either one or two renewed periods of temporary disability between the dates of April 27, 1994 and April 21, 1995, which would result in a higher temporary disability rate pursuant to Wis. Stat. 102.43 (7). Again, the record is unclear with regard to whether and when such periods took place, preceded by a return to work of at least ten days. Accordingly, the matter will be remanded to the Worker's Compensation Division for resolution of these issues involving the exact days of temporary partial or temporary total disability for the period between April 27, 1994 and April 21, 1995, and the applicable temporary disability rate for these days.

Dr. Faciszewski's assessment of 20 percent permanent partial disability of the whole body is accepted as credible, given the two-level fusion which the applicant underwent. This amounts to 200 weeks of compensation at the applicable rate of $125 per week, for a total of $25,000. Two percent, or $2,500, was previously conceded and paid, leaving a balance of $22,500. Accrued but unpaid permanent partial disability as of January 20, 1998, will total $12,193.54. A 20 percent attorney's fee against the unconceded award amounts to $4,500, less an interest credit of $52.95, for a present value fee of $4,447.05. Costs are also due the applicant's attorney in the amount of $173.13. Beginning February 20, 1998, the applicant is due the sum of $541.67, until the unaccrued permanent partial disability ($5,633.33) has been paid.

It is impossible to discern whether the computer-generated invoices accumulated in applicant's Exhibits B and C fully support the medical expenses claimed on the applicant's WKC-3. In addition, reimbursement pursuant to Wis. Stat. 102.30 (7)(a) is claimed in substantial amount to an "unknown" nonindustrial carrier. The issue of the amount of these medical expenses appears not to have been explored at the hearing, and the matter will also be remanded with regard to that issue, with the understanding that only the reasonableness of the amount of the expenses, not their necessity, remains at issue.

Dr. Faciszewski credibly opined that the applicant may require additional treatment in the future and therefore jurisdiction will be reserved.

NOW, THEREFORE, this

INTERLOCUTORY REMAND ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. Within thirty days from this date, the employer or its insurer shall pay to the applicant as compensation for accrued permanent partial disability the sum of Twelve thousand one hundred ninety-three dollars and fifty-four cents ($12,193.54); to applicant's attorney, Leon D. Stenz, fees in the amount of Four thousand four hundred forty-seven dollars and five cents ($4,447.05), and costs in the amount of One hundred seventy- three dollars and thirteen cents ($173.13).

Beginning on February 20, 1998, and continuing monthly thereafter, the employer or its insurer shall pay to the applicant the sum of Five hundred forty-one dollars and sixty-seven cents ($541.67) until currently unaccrued permanent partial disability has been paid in the total amount of Five thousand six hundred thirty-three dollars and thirty-three cents ($5,633.33).

The matter is remanded to an administrative law judge to be designated by the Worker's Compensation Division so that the issues involving the amounts due for temporary disability and medical expense, as noted in the above decision, may be resolved.

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

Dated and mailed: January 15, 1998
kalkost.wrr : 185 : 5  ND 5.50

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge, who indicated that the credibility and demeanor of the applicant did not influence his decision. He found Dr. Fielden's opinion that the surgery was ill-advised to have been credible. However, as the commission has explained in its decision, the applicant underwent the surgery in good faith reliance upon the advice of his treating physician. Spencer requires that the surgery and its effects be found compensable.

cc: ATTORNEY LEON D STENZ
OMELIA SCHIEK & MC ELDOWNEY SC

ATTORNEY PATRICK M COOPER
LAW OFFICE OF JEFFREY T OCONNOR


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