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


DAVID STANLEY MILLEN II, Applicant

VANDE HEYS ROOFING TILE CO INC, Employer

TRANSPORTATION INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 94045641


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. Delete paragraphs twenty and twenty-one (the last two paragraphs) of the ALJ's Findings of Fact, and substitute:

"Although the applicant sustained four types of physical harm at about 7:30 a.m. on June 29, 1994, none of these injuries resulted in permanent partial disability. Dr. Zeman opined that the applicant had fully recovered from his injuries by October 29, 1994, four months after the injury. However, Dr. Zeman did not actually examine the applicant until January 25, 1995. Consequently, the applicant is found to have reached a plateau of healing on January 25, 1995, by which time he recovered without permanent disability attributable to the work injury.

"The applicant is therefore entitled to no further primary compensation for disability. Indeed, the respondent overpaid temporary total disability from January 25 to February 5, 1995, both dates exclusive, a period of one week and three days. At the statutory maximum for injuries sustained in 1994, this results in of a total overpayment of $699 (1.5 weeks at $466 per week).

"Objective diagnostic tests (MRI) done on October 12, 1994 and a physical therapy assessment and treatment from November 23 to 30, 1994 were reasonable and necessary to cure and relieve the applicant from the effects of the work injury. These expenses, respectively $374 from Radiology Specialists Madison and $233.20 from Meriter Hospital, Inc., shall be ordered paid. The other expenses documented in the applicant's statement of treatment expense on form WC-3 were all incurred after the healing plateau date by which the applicant had fully recovered from the work injury; compensation for these expenses are denied. The total amount of medical expenses compensable under this is $607.20, from which Attorney Kutschenreuter is entitled to a 20 percent fee totaling $121.44 under sec. 102.26, Stats."

2. Delete the Order paragraph, and substitute:

"Within 30 days, the employer and its insurer shall pay all of the following:

"(1) To Radiology Specialists Madison, the sum of Two hundred ninety-nine dollars and twenty cents ($299.20) for medical services performed.

"(2) To Meriter Hospital, Inc., the sum of Forty- six dollars and sixty-six cents ($46.66) for medical treatment services performed.

"(3) To the applicant's attorney, Mark F. Kutschenreuter, the sum of One hundred twenty-one dollars and forty-four cents ($121.44) as attorney fees.

"The amount of Six hundred ninety-nine dollars ($699) has been overpaid in temporary disability."

ORDER

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

Dated and mailed August 30, 1996
milleda.wmd : 101 : 0   ND 9.3

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

In his brief, the applicant asserts that the ALJ abused his discretion in connection with a reference to 1C Attorney Textbook of Medicine, sec. 15.34 (3d ed., 1991). Essentially, after discussing Dr. Whiffen's note indicating that an MRI showed a normal cervical spine, the ALJ cited a passage from the Textbook of Medicine indicating that MRI testing yields excellent results, but perhaps over-estimates disc pathology.

The commission does not view this as an abuse of discretion. Regardless of what the Textbook of Medicine says, the fact remains the MRI showed a normal cervical spine. In addition, a contemporaneous MRI of the lumbar spine showed degenerative disc disease at L3-4 and L4-5, but no evidence of protrusion, bulging or herniation. Dr. Zeman accurately reported the results of the MRI tests, and presumably relied on them to reach his opinion that the applicant had no permanent partial disability.

The primary issue in this case is whether the Dr. Zeman's opinion is more credible than those of Dr. Whiffen and the applicant's chiropractor. Upon examination, Dr. Zeman opined that the applicant had highly nonphysiologic pain responses, that his physical appearance and mobility suggested that he is an entirely able-bodied young man, and that this belied the applicant's complaints indicating he is completely disabled.

Dr. Zeman's opinion that the applicant's actual condition did not correspond to his subjective complaints is supported by a February 1995 work tolerance screening. The physical and occupational therapist who performed the screening observed variously that the applicant was positive for symptom magnification on some simulated tests; that he was inconsistent on squat-lift ability; that he seemed to over-react to any back exercise; that his reports of the nature and location of pain were inconsistent; and that "[t]here was not good correlation between observed behavior and the client's symptom reports." Exhibit A, Work Tolerance Screening Report, page 5.

In addition, of course, the ALJ observed the applicant's physical condition and his demeanor as he testified about that condition. Having reviewed the record in its entirety, the commission agrees with the ALJ that Dr. Zeman gave the most credible medical opinion.

The applicant attaches to his brief a recent practitioner's report from Dr. Whiffen restating his rating of permanent partial disability at ten percent compared to disability to the body as a whole, but now stating the rating is based on the applicant's need for a fusion surgery. Also attached is Dr. Whiffen's March 22, 1996 note outlining the result of a discogram test. Dr. Whiffen also reported that the applicant could live with the pain without great risk of becoming worse. The doctor also reiterated his opinion that the pain would eventually resolve after a long period of time. The other option, Dr. Whiffen reported, would be a fusion surgery, and the applicant was interested in a laproscopic anterior fusion procedure. Thereafter, Dr. Whiffen notes the applicant's desire to have a laproscopic ASF.

As best as the commission can tell, however, Dr. Whiffen did not really change his mind about the eventual effectiveness of conservative treatment. Nor did he explain why the discogram results made a fusion procedure a more viable option, or how the discogram results established that the applicant had sustained permanent disability from the work injury. Certainly the discogram does not show that ALJ Ryan's decision was based on mistake of fact or law.

Nor can the commission conclude the additional material submitted with the applicant's brief fits the definition of newly discovered evidence as used in sec. 102.18 (4)(c), Stats. Under the traditional test used to determine whether evidence is truly newly-discovered: the evidence must first come to the party's knowledge after the hearing, the party must not have been negligent in failing to discover it, and it must be not merely cumulative. (1) The commission also usually requires that the evidence, if considered, would probably cause the commission to reach a different result. (2)

In this case, the applicant suggests he could not have had the discogram done sooner because the doctor would only do it after he was on medical assistance. Consequently, the applicant contends, he was not negligent in failing to "discover" the discogram results before the hearing. However, the commission notes that Dr. Whiffen's note for December 11, 1995 indicates a discogram was scheduled, and that the applicant canceled the discograms until after the January 1995 hearing before ALJ Ryan, but no mention is made of medical assistance or payment. That point aside, though, the commission must conclude, for the reasons stated above, that neither the recent practitioner's report nor the discogram would be likely to change the outcome in this case.

Finally, the commission considered the respondent's request to amend ALJ Ryan's order to state that the insurer overpaid temporary total disability from October 29, 1994 (Dr. Zeman's plateau date) to February 5, 1995 (when the insurer stopped paying on Zeman's January 31 report.) However, Dr. Zeman's "healing plateau date" seems to be an estimate based on the passage of four months' time from the date of injury. He did not actually examine the applicant until January 25, 1995. Consequently, the commission amended ALJ Ryan's order to find an overpayment of temporary total disability, (3) but only for the period from January 25 to February 5, 1995, and to pay expenses for medical treatment received prior to January 25, 1995.

cc: ATTORNEY MARK KUTSCHENREUTER
KUTSCHENREUTER & MC GREGOR

ATTORNEY PETER M SILVER
LAW OFFICES OF MARK H MILLER


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Footnotes:

(1)( Back ) Seaman Body Corporation v. Industrial Commission, 252 N.W. 718, 720 (1934).

(2)( Back ) Naden v. Johnson, 61 Wis. 2d 384 (1973).

(3)( Back ) See Marla R. Sandridge v. Mid America Long Distance, WC claim no. 89023179S (LIRC, July 17, 1996).