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


DONALD DYKEHOUSE, Applicant

DURO BAG MANUFACTURING COMPANY, Employer

MICHIGAN MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93066128


The administrative law judge issued his findings of fact, conclusions of law and interlocutory order in this case on March 1, 1995, following a hearing on November 15, 1994, and the close of the record on December 28, 1994. 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, with the final brief submitted on July 20, 1995.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $508, and an October 14, 1993 compensable injury. The respondent conceded and paid benefits for temporary total and temporary partial disability for various periods to March 7, 1995.

The issues are the nature and extent of disability beyond that conceded. Liability for medical expenses is also at issue.

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 affirms his findings of fact, conclusions of law and interlocutory order, except as modified herein:

MODIFIED FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first paragraph of the administrative law judge's findings of fact and conclusions of law is amended to substitute for the second sentence in that paragraph:

"The applicant had had no previous back or cervical problems causing symptoms or pain like those he experienced after moving the paper roll on October 14, 1993."

As amended, the first paragraph of the administrative law judge's findings of fact and conclusions of law is affirmed and reiterated as if set forth herein.

The second paragraph of the administrative law judge's findings of fact and conclusions of law is affirmed and reiterated as if set forth herein.

The third paragraph of the administrative law judge's findings of fact and conclusions of law is deleted and the following substituted therefor:

"On December 9, 1993, the applicant began treating with David P. Kraker, M.D., of the Midwest Spine Institute, on referral. Dr. Kraker's note for that day describes the work injury as occurring on October 14 while the applicant was moving a large roll of paper. Dr. Kraker notes the applicant then felt a pull and heard a snap in his neck, leading to tightening in the neck region.

"Dr. Kraker noted the applicant was working four hours per day at the time of the December 9 visit, but that the applicant reported this was not working out well for him. The doctor diagnosed: (1) C6-7 degenerative disc disease, (2) C5-6 left paracentral disc protrusion with minimal nerve impingement, (3) chronic cervical thoracic strain, and (4) possible T2 compression fracture. He suggested the applicant return in two weeks for reevaluation. He released the applicant to work four hour days with a 10 pound lifting restriction.

"The applicant returned to Dr. Kraker on December 23, 1993. The doctor noted disc degeneration in the cervical spine, and recommended he work in physical therapy on strengthening the spine. He also noted a 10 pound weight restriction at 4 hours per day for two weeks, then six hours per day for three weeks.

"When the applicant returned to Dr. Kraker again on January 13, 1994, the doctor noted that he was working four-hour days. Dr. Kraker released him to one week at 4 hours, one week at 5 hours and then to six hours per day. He suggested the applicant return in four weeks.

"The applicant was next seen on February 1, 1994, by Dr. Kraker's physician's assistant, Marilyn Modak, during an unscheduled office visit. Ms. Modak noted that the applicant had progressed to a six hour work day, but he reported he could not tolerate it and that the last two hours were particularly painful. Ms. Modak told the applicant she would not reduce his hours back to four per day. She instead put him at five hours per day until he could again see Dr. Kraker.

"When the applicant next saw Dr. Kraker on February 10, the doctor noted that the applicant had tried but was unable to work six hours the prior Monday. The doctor reiterated his diagnosis of degenerative disc disease at C5-6 and C6-7, with bilateral foraminal narrowing at C6- 7. He recommended an epidural injection at C6-7, and continued the five-hour per day, 10-pound maximum work restrictions.

"In his note from the next visit on March 1, the doctor noted no symptom relief from the injection, and little progress in general. He recommended continued physical therapy, and released the applicant to work for five-hour days, increased to 6-hour days after two weeks. The doctor noted that if the applicant's symptoms continued, he would order a post-myelographic CT scan of the cervical spine.

"The applicant again saw Dr. Kraker on March 31, 1993. On that day, Dr. Kraker noted the applicant was working six hour days, but that his pain was increasing. Dr. Kraker again noted that he wanted a CT and post-myelographic CT scan.

"Thus, on Dr. Kraker's orders, the applicant was scheduled for a CT scan with myelography on April 4, 1994. The results from this test are found at exhibit J, and show:

'1. There is a marked degeneration of the C6-7 disc with a broadly based posterior and right sided disc protrusion. The cord is indented and there is bilateral foraminal encroachment, right side greater than left.

'2. There is a central and left paramidline disc protrusion at C5-6 which slightly indents the cord.

'3. There is annular bulging at C4-5 and C3-4 without cord or neural compression.'

"On June 2, 1994, Dr. Kraker noted that the applicant was then tolerating work at six hours per day, with a 10-pound limit. On June 16, the doctor noted that the applicant had essentially two options: live with the pain or have a C5-6 and C6-7 fusion surgery with foraminotomies.

"The applicant opted for the fusion surgery and this was performed on August 23, 1994. Following the surgery, the applicant was taken off work. Dr. Kraker noted a normal recovery in his October 12, 1994 note, but recommended he remain off work of at least another four weeks. The applicant was still off as of the hearing on November 15, 1994.

"On November 1, 1994, Dr. Kraker opined that the October 14, 1993 injury while moving a large roll of paper at work precipitated, aggravated and accelerated a pre-existing degenerative condition beyond its normal progression. He described the applicant's condition as status post C5-C6 fusion, and opined that while there would be permanent disability, he could not yet determine it. He also stated that the applicant had been able to return to work on December 9, 1993 with a 10 pound, four-hour per day lifting restriction, but was taken off work completely following the August 23, 1994 fusion surgery."

The fourth and fifth paragraphs of the administrative law judge's findings of fact and conclusions of law are affirmed and reiterated as if set forth herein.

The sixth and seventh paragraphs of the administrative law judge's findings of fact and conclusions of law are deleted and the following substituted therefor:

"The disputed period of temporary disability begins with March 7, 1994. The applicant was temporarily partially disabled from March 7, 1994 to August 23, 1994, both dates exclusive. During the period of temporary partial disability, the applicant was working five hours per day at $9.91 per hour from March 7 through April 1, 1994, both dates exclusive, and six hours per day at $9.91 per hour from March 31 to August 23, 1994, both days exclusive. The applicant was temporarily totally disabled from August 22, 1994 to at least February 21, 1995, both dates exclusive.

"Dr. Kraker's opinions and notes reflect disability during these periods. Dr. Kraker was the applicant's treating physician and intimately aware of his condition. In addition, the applicant testified credibly as to his condition during this period.

"The applicant's award for additional temporary disability is based on a rate of temporary total disability of $336 per week (two-thirds of the conceded pre-injury weekly wage of $504). His award is calculated under sec. 102.43 (1) through (4), Stats., as follows:

1. From March 7 to April 1, 1993, both dates exclusive, the applicant worked five hours per day, 25 hours per week, at $9.91. This equals a weekly wage of $247.75, which is subtracted from the conceded average weekly wage before the injury of $508, to yield an actual wage loss of $260.25. The wage loss in proportion to the conceded average weekly wage ($260.25 divided by $508) yields the decimal fraction 0.51. Multiplying that fraction by the temporary total disability rate yields the weekly rate for temporary partial disability during this period of $171.36. Applying that rate over 3 weeks and 3 days equals the sum of $599.76 in temporary partial disability.

2. From March 31 to August 23, 1994 both dates exclusive, the applicant worked six hours per day, 30 hours per week, so that the decimal fraction representing proportional actual wage loss equals 0.41. This, in turn, yields a temporary partial disability rate of $137.76, which, over the 20 weeks and 2 days during this period, equals $2,801.12 in temporary partial disability.

3. From August 22, 1994 to February 21, 1995, both dates exclusive, the applicant was off work entirely. He therefore is entitled to temporary total disability, calculated at the rate $336 per week over a period of 26 weeks, in the amount of $8,736.00.

"In total, then, the applicant's award for additional temporary partial and temporary total disability under this order equals $12,136.88. Because the applicant had not reached a healing plateau as of the date of the hearing, the issues of additional compensation for temporary and permanent disability remain open."

The eighth paragraph of the administrative law judge's findings of fact and conclusions of law is affirmed and reiterated as if set forth herein.

The ninth paragraph of the administrative law judge's findings of fact and conclusions of law is deleted and the following substituted therefor:

"The applicant approved attorney fees not to exceed 20 percent of any additional amounts awarded. The fee thus equals $2,427.38.

"Ordinarily, this would leave the applicant with the amount of $9,709.50. In this case, however, the applicant's award is subject to an 'assignment of income' dated July 17, 1986 and an 'order for assignment of income' dated March 3, 1993. The assignment and order for assignment both direct payers of income to the applicant to instead pay the St. Croix County Circuit Court Clerk the amounts of $46.66 and $46.16 respectively.

"The employer and carrier submitted the documents after petitioning for review, together with a letter from St. Croix County child support agent indicating the documents are still enforceable. Therefore, for each 50 weeks of temporary disability awarded under this order, the sum of $92.81 is deducted from the applicant's award and shall be paid to the St. Croix County clerk of courts under sec. 102.27 (2)(a), Stats. The amount of the assignment to the clerk of courts totals $4,640.50, leaving $5,069 for the applicant."

The tenth paragraph of the administrative law judge's Findings of Fact and Conclusions of Law is affirmed and reiterated as if set forth herein.

The first paragraph of the administrative law judge's Interlocutory Order is deleted and the following substituted therefor:

"Within 30 days, the employer and insurance carrier shall pay to the applicant, Donald Dykehouse, the sum of Five thousand six hundred nine dollars and no cents ($5,609.00) for temporary disability; to the applicant's attorney, David Erspamer, the sum of Two thousand four hundred twenty-seven dollars and thirty-eight cents ($2,427.38); to the St. Croix County Clerk of Court, the sum of Four thousand six hundred forty dollars and fifty cents ($4,640.50) as an assignment of benefits under sec. 102.27 (2)(a), Stats."

The second paragraph of the administrative law judge's Interlocutory Order is amended to set out a thirty day period for payment of medical expenses consistent with the period for judicial appeal of this commission's decision. Otherwise, the second and third paragraphs of the administrative law judge's interlocutory order are affirmed, and reiterated as if set forth herein.

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.

Dated and mailed September 8, 1995
5.44

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

MEMORANDUM OPINION

The respondent raises three main issues in its petition. The first issue deals with whether the work injury happened as the applicant testified at the hearing and reported to his medical expert, and includes the question of whether the applicant had previous upper back and cervical pain. This issue deals directly with the respondent's liability for additional compensation and medical expenses. The second and third issues deal with the actual calculation of the temporary disability benefits, and the assignment of those benefits.

The commission affirms the administrative law judge's decision in connection with the first and primary issue dealing with additional liability. Its modifications to his findings and order address primarily the more technical second and third issues concerning amounts.

1. Work injury and additional liability.

In its petition for commission review, the respondent's main contention is that the administrative law judge erred in finding that the applicant injured himself on Thursday, October 14, 1993, when he moved a paper roll at work. The respondent notes that the applicant did not identify to P.J. McCann, M.D., a specific work event that caused an injury or symptoms when he saw Dr. McCann on October 14. The respondent also points to the October 14 report from Roger Hinkley, P.T., indicating that the applicant first experienced upper back and neck pain the preceding Sunday, and could not account for any specific trauma at work leading to his symptoms. The respondent concludes that the applicant's award should be dismissed on this basis.

However, the respondent's analysis overlooks three points. First, the respondent conceded a work injury on October 14, even though it was aware of the applicant's symptoms as reported to company doctor McCann and physical therapist Hinkley. Presumably this is because, while the applicant did not specifically relate a single action to Dr. McCann as the cause of his injury, he did identify increased work duties as a probable cause. Further, the applicant testified that he mentioned moving the paper roll to Dr. McCann, as part of the normal duties in the increased machining work he had been doing. This may account for the fact that the applicant originally attached no special significance to that particular action.

The second point concerns the expert opinion of David Kraker, M.D., upon whom the administrative law judge relied. Dr. Kraker found a work injury caused by moving the paper roll and does not specifically account for "Sunday symptoms" mentioned by Mr. Hinkley. However, Dr. Kraker also states that that work activity aggravated, accelerated and precipitated a pre-existing condition beyond normal progression. This causal theory is not inconsistent with pre-injury pain in the cervical spine and the upper body.

This raises the third point. It may be possible that a doctor reviewing the record might come to the conclusion that the real injury occurred on Sunday, October 10 and that the increased symptoms during the ensuing work week were simply a manifestation of the condition caused by that injury. However, that is not the medical opinion the respondent offered. Rather, Dr. Galbraith opined no objective or abnormal findings explained the applicant's continuing pain or continuing functional restrictions after March 1994. Dr. Galbraith simply opined, without regard to cause, that the applicant had reached a plateau of healing without permanent disability. Respondent's Exhibit 8.

Dr. Galbraith held to that opinion even when provided with the results of an April 1994 post-myleographic CT scan interpreted by Kurt Schellhas, M.D., as showing:

"marked degeneration of the C6-7 disc with a broadly-based posterior and right sided disc protrusion. The cord is indented and there is bilateral foraminal encroachment, right side greater than left."

Exhibit J. Indeed, after reviewing this scan, Dr. Galbraith opined that an earlier MRI was sufficient to determine whether surgery was necessary, and he concluded it was not. Exhibit 2.

In short, based on the April 1994 CT scan and the applicant's credible complaints of continuing pain, the administrative law judge correctly disregarded Dr. Galbraith's opinion that the applicant had completely healed without permanent disability and that surgery was unnecessary. Nor is the commission inclined to attribute the applicant's continuing disability to an injury on Sunday, October 10, 1993, or to a pre-existing degenerative condition unaffected by a work injury, given the absence of medical opinion to that effect and the respondent's concession of a work injury on October 14. See: Leist v. LIRC, 183 Wis. 2d 461-62 (1993).

Finally, the commission consulted with the presiding administrative law judge about the applicant's credibility and demeanor during his testimony about the work injury occurring on October 14. The administrative law judge stated he found the applicant credible when he described the sharp pull in his neck while moving the paper roll which lead to symptoms which he had never felt before. The commission finds the administrative law judge's credibility determination reasonable. While the applicant may have had some discomfort in his neck earlier than October 14, unusual pain from a work incident or work activity led him to see Dr. McCann about his neck and upper back on that date.

2. Temporary disability and child support lien.

The commission also consulted with the administrative law judge concerning the calculation of temporary disability. Resolution of this issue does not depend on witness credibility, so much as attempting to reconcile the various medical reports to determine how much the applicant was able to work and when. The administrative law judge candidly admitted that, unlike the work injury issue discussed above, he had no strong credibility impression one way or another and simply tried to make the best finding he could based on the facts available. Applying the same standard, the commission makes some modifications on this issue, based on its reading of the medical records.

The commission also amended the administrative law judge's decision to provide for assignment of benefits to the St. Croix County Clerk of Courts based on documents first submitted on commission review. The commission does not read secs. 102.27 (2)(a) and 767.265, Stats., to be applicable only if raised at or before a hearing. The commission also realizes that, during those weeks that the applicant was both employed and receiving temporary partial disability, he might be subject to a "double assignment." If that occurred, however, it is better raised with the St. Croix County clerk of courts than with the commission.

cc: ATTORNEY DAVID M ERSPAMER

ATTORNEY BEVERLY WICKSTROM
MISFELDT STARK RICHIE & WICKSTROM


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