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


LINDA VAN MUN, Applicant

CAREGIVERS HOME HEALTH, Employer

UNITED WISCONSIN INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96013487


The administrative law judge issued his findings of fact and interlocutory order in this case on April 11, 1997, following a hearing on January 29, 1997. 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 and an average weekly wage of $141.11.

The issues at the time of the hearing, and now before the commission, were the nature and extent of disability and liability of medical expense arising from the applicant's work injury of January 5, 1994.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. Having done so, the commission sets aside the ALJ's Findings of Fact and Order and substitutes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Employment history, work injury, and treatment.

The applicant was born in 1960. She began working for the employer in October 1993 as a nursing assistant. On January 5, 1994, the applicant was injured while trying to move a patient from a wheelchair to a bed. She testified the patient was six foot eight inches tall and weighed over 200 pounds. She experienced immediate pain in her low back.

The employer referred the applicant to James G. Gmeiner, M.D. Dr. Gmeiner saw the applicant on January 6, and diagnosed a lumbosacral strain. He noted pain confined to the low back, without radicular complaints, and that the applicant had no prior history of back pain. He thought she could resume her normal duties on January 7, and recommended she take ibuprofen. He later extended her time off work to January 10.

The applicant returned to work on January 10, 1994, and worked for two days. She stopped working, presumably because of the pain. See exhibit B, Dr. Teff's response to question 9. She also moved from Oshkosh to the Madison area about this time, where she began treating with a Middleton chiropractor, Joseph J. Teff, on self-referral.

Dr. Teff noted back pain radiating into the applicant's left leg. He treated the applicant on a number of occasions in January and February, 1994, and noted gradual improvement until a flare-up after slipping on the ice in mid-February. His diagnosis was sacral subluxation, and lumbar sciatica.

Dr. Teff noted continuing improvement into March, but that she complained of increased soreness after twisting her back wrong late in the month. The applicant eventually stopped treating with Dr. Teff in April 1994, when she moved to Merrill.

The applicant testified that she was referred to Gary Mueller, D.C., when she moved to Merrill, but the medical records do not establish a referral. Dr. Mueller opined that the applicant had no permanent disability, and that she was able to work when he saw her on April 24, 1994. However, he referred her to Jeff Winter, D.C., on a diagnosis of segmental dysfunction, lumbar strain, and sciatica. Exhibit 4.

The file does not contain Dr. Winter's notes. He completed a medical report of injury form, though, which indicates he treated the applicant for one month from April 25 to May 25, 1994. Dr. Winter diagnosed a segmental dysfunction of the sacroiliac joint, segmental dysfunction of the lumbar spine, and an associated myofascial pain syndrome. He was unsure whether the applicant would have permanent disability when the applicant ended healing, but thought there would be none. He then referred the applicant to Daniel Seybold, M.D., an orthopedic specialist. Exhibit 3.

Dr. Seybold first saw the applicant on June 15, 1994, noting a consult from Dr. Winter. He noted she had no problems prior to a work injury with the employer, occurring while the applicant moved a patient from a wheelchair to her bed. At the time, according to Dr. Seybold, the applicant noted the abrupt onset of left low back pain radiating to the left hip and buttocks. Over the course of time, the applicant began to experience pain down the hip into the thigh above the knee. He also noted the temporary aggravation of her symptoms when she slipped during treatment.

Dr. Seybold's diagnostic impression was musculoligamentous back pain and possible associated SI [sacroiliac] irritability. He noted that the chiropractic manipulations were providing at best temporary relief. He recommended a back exercise and flexibility program instead. He opined that the applicant's problems stemmed from the original work injury and that the off duty slip on ice did not contribute to, accentuate or worsen her condition. However, Dr. Seybold deferred to the doctor who was treating the applicant who treated her at the time of the slip on the ice (Dr. Teff) on that issue.

The applicant then began receiving physical therapy on Dr. Seybold's prescription. By August 3, the applicant reported to Dr. Seybold's assistant that she was 90 percent improved from her worst condition. Dr. Seybold released her to pursue employment with a 25 pound lifting restriction provided she avoid lifting and bending where possible.

The applicant continued to be symptomatic with bending and twisting into October, but was able to work as a waitress. Dr. Seybold indicated she did not appear to have a bone or joint problem but a muscular one, which he recommended treating with "symptomatic modalities" (which the commission believes means aspirin, hot compresses, and the like.) He recommended also physical therapy modalities including ultrasound, and that she keep up with her exercises. He recommended she check back if there were significant changes. Exhibit A, note for October 3, 1994.

Dr. Seybold rechecked the applicant on December 12, 1994. He noted the applicant had left lower buttock pain, possibly sacroiliac. He noted she "appears to have reached a plateau although it does seem to be more focalized now and nonradiating." He thought her problems were mostly associated with the left SI type process. He concluded she might have to live with the pain, but thought it made sense to try another four to six weeks of conservative treatment.

The notes of her physical therapist indicate that while Dr. Seybold only ordered a month of additional physical therapy, she continued to receive therapy into April 1995. At some point in February she began receiving physical therapy not only for her low back, but for a chronic neck problem (evidently from a car accident) as well. See Trish Mitchell note for February 9, 1995. At any rate, the physical therapist noted continued improvement of the low back during this period, see Trish Mitchell notes for March 15 and April 26, 1995.

On May 19, 1995, Dr. Seybold again opined the applicant seemed to be reaching a plateau. He noted occasional problems, including a waxing and waning of symptoms related to her overall activity level. The applicant was doing the exercises she learned in physical therapy at home, though she thought occasional manipulation might help. Dr. Seybold thought she could handle her therapy needs herself through exercise or massage. The straight leg raising test was negative except for hamstring tightness.

Dr. Seybold concluded the applicant had reached a healing plateau, though she would continue to have a waxing and waning of low grade symptoms. He thought that if she kept up with her stretching and flexibility program, no further specific treatment or therapuetic measures would be necessary. He thought significant change or worsening would be unlikely.

The applicant saw another chiropractor, Steven Silverman, D.C. Dr. Silverman reported that he has been treating the applicant since July 10, 1995, for an unresolved chronic sacroiliac joint dysfunction from the January 4, 1994 work injury. Exhibit C.

After the applicant stopped working for the employer in January 1994, she worked as a waitress at a bar called Mulligans, and went to school for massage therapy. She also earned several hundred dollars in 1994 and the first three months of 1995 providing massages.

She testified that she currently has chronic pain that waxes and wanes, and that she continues to do stretches and take Advil or Aleve.

2. Expert medical opinion.

The parties introduced several documents providing expert medical opinion.

Dr. Seybold prepared a practitioner's report dated November 20, 1995. Exhibit A. He opines that the applicant's January 5, 1994 work injury while transferring a quadriparetic patient from wheelchair to bed directly caused disability which he diagnosed as musculoligamentous back pain and associated sacroiliac irritation. He stated she could not return to work as a nursing assistant, but could return to light duty upon the completion of her physical therapy in April 1995. He rated permanent partial disability at two percent to the whole body, given her chronic waxing and waning back pain.

Dr. Seybold went on to state that he did not know if additional treatment would be necessary, but stated he did not recommend any formal therapy or treatment at the time of his report. He also referred to his May 19, 1995 clinic note which, of course, reported that the applicant "seemed to be reaching," healing plateau by that date.

Exhibit B is a report from chiropractor Teff. He opined that the applicant's injury while moving a patient caused disability both directly and as an occupational disease, but declined to give an opinion as to the date of a healing plateau or residual permanent disability as he stopped treating the applicant in April 1994.

Exhibit C is a report from chiropractor Silverman (who continues to treat the applicant.) He opines the work injury directly caused disability, and he rated permanent partial disability at five to ten percent comparable to disability to the body as a whole.

Exhibit 7 is the report of the respondent's independent medical examiner, David Zeman, M.D. His diagnostic impression is that the work injury directly caused a lumbar muscular strain. He found it unlikely that pre-existing degenerative changes apparent on an x-ray were the source of her pain. He also discounted the slip on ice as a source of continuing temporary disability. He found an end of healing on May 1, 1995, based on Dr. Seybold's note (Zeman mistakenly reports May 1 as the date of Seybold's May 19 note.) He concluded she had no residual permanent disability, and that she did not need permanent work restrictions.

3. Discussion and award.

The first issue is the length of the applicant's healing period, which in turn fixes the period during which the employer may be liable for temporary disability. The employer points out that Dr. Gmeiner released the applicant to full duty only five days after the injury occurred, that Dr. Mueller opined the applicant had no disability and could return to work on April 25, 1994, and that Dr. Seybold himself stated the applicant plateaued on December 12, 1994.

True, at first glance, Dr. Seybold's suggestion that the applicant may have plateaued on December 12, 1994, seems troubling. However, it is evident from reading Dr. Seybold's entire December 12, 1994 note that the doctor was ruminating on the issue of the end of healing, and decided to give physical therapy another chance before finding an end of healing. Clearly, the notes of the physical therapist establish further improvement into April 1995. Moreover, the employer itself introduces a January 1995 report from Dr. Seybold clearly stating the applicant had not yet ended healing. Exhibit 6.

In addition, neither Dr. Mueller nor Dr. Gmeiner expressly opined the applicant had reached a healing plateau; that is, had stopped improving. Dr. Mueller indicated that the applicant would have no permanent disability, not that she had ended healing completely. Further, he referred her for further treatment to another chiropractor on a diagnosis of segmental dysfunction, lumbar strain and sciatica. Dr. Gmeiner saw the applicant only once immediately after the injury and while she was still complaining of symptoms; he gave her a prospective release to work and he knew nothing of her continuing symptoms on or after the day he released her to work. Finally, a release to work is not the same as finding an end of healing, particularly when another treating doctor imposes restrictions upon the release to work. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1960).

The commission also notes that the respondent's own independent medical examiner, Dr. Zeman, agrees with Dr. Seybold's May 19, 1995 healing plateau date. The commission therefore finds an end of healing as of May 19, 1995.

The next question is the amount of temporary disability benefits to which the applicant is entitled from the date she stopped working for the employer (January 13, 1994) to the end of healing (May 19, 1995). The applicant admits she worked as a waitress and was self-employed during some of her healing period. If a worker earns wages in her healing period, her temporary disability benefits are reduced in the same proportion the wages earned bear to her pre-injury wages. See Wis. Stat. 102.43 (2) and (6), DWD Wisconsin Workers Compensation Act with amendments to January 1, 1996, footnote 128, and Neal and Danas, Workers Compensation Handbook 5.10 (4th ed., 1997).

Wage statements in exhibit 9 indicate that the applicant earned wages and tips in varying amounts as a waitress at Mulligans from August 8 to October 30, 1994. Specifically, the applicant received pre-tax earnings of $654.44 during that period.

Exhibit 9 also contains ledgers establishing that the applicant received money performing massages as a sole proprietor from July 13 through December 24 1994. However, exhibit 9 also indicates the applicant's massage business, Northwoods Massage, operated at a loss in 1994. Consequently, only the wages from Mulligans shall be considered in calculating temporary partial disability benefits in 1994.

Exhibit 10 contains ledgers establishing that the applicant's sole proprietorship, Northwoods Massage, received $1,251 in revenue from January 9 to May 17, 1995 on its own, and that Northwoods Massage received an additional $1896 in revenue from January 4 through April 29, 1995, as its share of a venture with an entity called Ishalla. In sum, then, the applicant's sole proprietorship received gross revenues of $3,147 from January 1 to May 19, 1995.

The applicant's 1995 tax returns indicate the applicant's sole proprietorship earned a net profit of $4,446.52 on gross receipts of $10,904.10. In other words, the applicant's actual pre-tax earnings from her sole proprietorship were $0.4078 for every dollar in receipts. Applying this percentage to the applicant's gross receipts from January 1 to May 19, 1995, the commission concludes the applicant's net pre-tax earnings from the sole proprietorship during that period were $1,283.30.

The applicant's compensation rate of temporary total disability is $94.07 per week (two-thirds of the conceded average of $141.11.) The applicant is entitled to temporary total disability of $2,759.48 for the 29-week, 2-day period from January 13 to August 7, 1994; temporary partial disability of $676.91 (based on earnings of $654.44) for the 11-week, 5-day period from August 8 to October 30, 1994; temporary total disability of $815.30 for the 8-week, 4-day period from November 1 to December 31, 1994; and temporary partial disability of $1,010.25 (based on earnings of $1,283.30) for the 19-week, 6- day period from January 1 to May 19, 1994. The total award for temporary disability is thus $5,261.95

The next question is the extent of permanent disability. The commission believes that Dr. Seybold had the best view of the applicant's treatment history, and he rated permanent partial disability at two percent compared to permanent total disability on a functional basis. The applicant testified she has continuing back pain, complaints which the ALJ and Dr. Seybold credited. While chiropractors Winter and Mueller did not anticipate permanent disability, neither of them were still treating the applicant when she reached her healing plateau. The commission therefore concludes the applicant has sustained a permanent partial disability on a functional basis at two percent compared to permanent total disability.

The applicant is therefore entitled to 20 weeks of permanent partial disability. Her compensation rate for permanent partial disability is $94.07 (two-thirds of her average weekly wage of $141.11). The award for permanent partial disability thus equals $1,881.47, all of which is accrued.

The applicant approved a fee of 20 percent of the total amount awarded under this order pursuant to Wis. Stat. 102.26. The total award under this order equals $7,143.42, so the fee equals $1,428.68. The attorney fee, together with costs of $14.27, shall be deducted from the total award and paid to the applicant's attorney with 30 days. The amount remaining, $5,700.46, shall be paid to the applicant within 30 days.

The final issue is medical expense. The respondent argues that the applicant exceeded her second choice with treatment after Dr. Teff. The respondent also asserts that the insurer invoked the Wis. Stat. 102.16 dispute resolution process, so the expenses may not be paid by the ALJ at a hearing under Wis. Stat. 102.17.

As the applicant points out, however, since she was told to see Dr. Gmeiner by the employer, and she only saw him once, he was not her choice, but the treatment tendered by the employer. Dr. Teff was her first choice. Even assuming there was no referral to chiropractor Mueller, Dr. Mueller would have been the second choice. Since Dr. Mueller referred the applicant to Dr. Winter, and Dr. Winter referred her to Dr. Seybold, treatment from these practitioners would all normally be compensable as within her second choice. See Wis. Stat. 102.42 (2).

The applicant argues that there was in fact a referral to Dr. Mueller. She testified simply that she moved to Merrill "and was referred" to Dr. Mueller. Her attorney argues in his brief she got an open-ended referral from Dr. Teff. However, the commission cannot find a referral under these circumstances. Thus, treatment with Drs. Teff, Mueller, Winter and Seybold is within the second choice (or on referral from the second choice); except as provided below, and these expenses shall be paid. Treatment with Dr. Silverman is noncompensable as he was the third "choice;" (1) the bill of Advance Chiropractic for treatment by Dr. Silverman shall not be ordered paid. (2)

The record also indicates that the insurer challenged the necessity of all treatment rendered by Dr. Teff after February 24, 1994 and of x-rays Dr. Teff had done on January 28, 1994. The insurer also challenged the necessity of all the treatment rendered by Dr. Winter. The insurer also claimed that the treatment rendered by Dr. Mueller was not for a work-related injury. The letters challenging the necessity of treatment by Drs. Teff and Winter specifically mention the dispute resolution process under Wis. Stat. ?.16. The commission has consistently held that, once that process is begun, the department may not resolve the disputed expense outside the Wis. Stat. ?.16 process. (3)

The applicant argues that the insurer's letters providing notice of the insurer's intent to deny payment are insufficient to trigger the dispute resolution process. However, the commission disagrees. The insurer's April 4, 1994 letter to Dr. Teff and its July 13 and August 15, 1994 letters to Dr. Winter appear to comply with administrative rule that specifies what must be done to put the necessity of treatment in dispute. Wisconsin Administrative Code DWD 80.73 (3). If they in fact do not comply, that is an issue for the department to decide as part of the dispute resolution process.

The disputed expenses for treatment rendered by Drs. Teff and Winter are therefore remanded to the department. The applicant, of course, is entitled to relief from the disputed expenses under Wis. Stat. 102.16 (2m)(b).

In sum, then, the applicant incurred reasonable and necessary treatment to cure the effects of her illness from Dr. Teff through February 21, 1995 (except for the January 28 x-ray) in the amount of $693.00, of which $480 has been paid and $213 remains unpaid; from Mueller Chiropractic in the amount of $118.18, of which the applicant has paid $20, and $98.18 remains unpaid; from Wausau Medical Center in the amount of $1,916.15, of which the applicant has paid $130, the insurer has paid $202, and $1,584.15 remains unpaid; from Radiology Associates, in the amount of $306.25, of which the applicant has paid $121, and $185.25 remains unpaid; and from Wausau Hospital in the amount of $322.95, of which the applicant paid $100, and $222.95 remains unpaid. The applicant has also incurred mileage expense to secure medical treatment in the sum of $576.44, which represents her total claim less mileage to treat with Dr. Silverman.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.

Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Linda Van Mun, Five thousand seven hundred dollars ($5,700.46) for disability compensation.

(2) To the applicant's attorney, William A. Wulf, the sum of One thousand four hundred twenty-eight dollars and sixty-eight cents ($1,428.68) as attorney fees and Fourteen dollars and twenty-seven cents ($14.27) as costs.

(3) To Teff Chiropractic, Two hundred thirteen dollars and no cents ($213.00) for treatment expense.

(4) To Mueller Chiropractic, Ninety-eight dollars and eighteen cents ($98.18) for treatment expense.

(5) To Wausau Medical Center, One thousand five hundred eighty-four dollars and fifteen cents ($1,584.15) for treatment expense.

(6) To Radiology Associates, One hundred eighty-five dollars and twenty-five cents ($185.25) for treatment expense.

(7) To Wausau Hospital, Two hundred twenty-two dollars and ninety-five cents ($222.95) for treatment expense.

(8) To the applicant the sum of Three hundred seventy one dollars and no cents ($371.00) and Five hundred seventy-six dollars and forty-four cents for medical mileage.

The issues of necessity of the treatment provided by Dr. Teff after February 24, 1994; of the x-rays performed for Dr. Teff on January 28, 1994; and of all treatment rendered by Dr. Winter are remanded to the department for implementation of the dispute resolution process under Wis. Stat. ?.16 (2m).

Dated and mailed: November 6, 1997
vanmu.wrr : 101 : 8  ND 5.10

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

cc:
ATTORNEY PETER L HESSERT
PATTERSON RICHARDS HESSERT WENDORFF & ELLISON

ATTORNEY WILLIAM A WULF
AMENT WULF & FROKJER SC


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Footnotes:

(1)( Back ) UFE Inc. v. LIRC, 193 Wis. 2d 361, 368-71 (Ct. App., 1995), affirmed 201 Wis. 2d 274 (1996); Sazama v. Collins Construction and Remodeling, WC claim no. 92068079 (LIRC, November 7, 1996); Falluca v. Palermo Villa, Inc., WC claim no. 88013914 (LIRC, December 6, 1995); Tellman v. Baraboo Sysco Food, WC claim no. 90043471 (LIRC, September 18, 1995); and Santspree v. Jones Intercable, WC claim no. 91057737 (LIRC, April 28, 1995).

(2)( Back ) Given that Dr. Seybold specifically recommended against manipulation, which the commission infers means chiropractic manipulation, but the applicant chose to treat with Dr. Silverman anyway, those expenses might not be compensable even if Dr. Silverman had been the second choice. Spencer v. DIHLR, 55 Wis. 2d 525, 532 (1972).

(3)( Back ) Mary Sommerfeldt v. Ace Hardware Ripon, WC claim nos. 93039786, 92053398 and 90035314 (LIRC, December 13, 1995), affirmed sub nom., Ace Hardware Ripon et al. v. Mary Sommerfeldt et al., no 96-CV-8 (Wis. Cir. Ct. Fond du Lac County September 6, 1996). The insurer's petition for judicial review was dismissed as LIRC's order did not grant or deny compensation. The insurer's request for declamatory relief (to the effect that LIRC's action in remanding for dispute resolution was) was not yet ripe. See also Robert Nitschke v. Parkway Garage, WC case no. 95005279 (LIRC, November 7, 1996); Judianne Hull v. Copps Corporation, WC case no. 91039585 (LIRC, February 28, 1995), rev'd and remanded on other grounds sub. nom. Copps Corporation v. LIRC, no. 95-CV-93 (Wis. Cir. Ct. Portage County, October 3, 1995); Neal & Danas, Worker's Compensation Handbook, sec. 5.43 (4th ed. 1997).