June 2018 Worker’s Compensation Case Law Update
By Attorney Hayley Clark
Wisconsin Supreme Court
I. Tetra Tech EC, Inc., v. Wisconsin Dep’t of Revenue, 2018 WI 75, ___ Wis. 2d. ___, ___ N.W.2d ___.
*Disclaimer: This is not a worker’s compensation case, but it does affect our cases*
Rule: Courts now afford statutory “due weight”—opposed to “great weight deference”—to administrative agencies (i.e., LIRC) for interpretations of administrative law.
Decision: The Supreme Court of Wisconsin essentially dismantled the tiered levels of deference to administrative agency interpretations of law. Courts no longer afford “great weight deference” to administrative agencies for those decisions, as such “deference” was a creation of the judiciary. Courts should now afford “due weight” to an administrative agency for its interpretation of administrative laws. This affects the worker’s compensation realm, as the court specified in footnote 8 that “[t]his decision applies to judicial review of all administrative agency decisions,” regardless of the statutory chapter under which the decision is being reviewed.
Labor and Industry Review Commission
I. Karpes v. Tradesmen International, Inc., Claim Nos. 2013-027630, 2015-000831 (LIRC June 19, 2018).
Rule: The Commission will not disagree with the DVR’s determination of the necessity of retraining without proof of misrepresentation of highly material facts, or that the DVR abused its power in approving a retraining plan.
Facts: The applicant sustained a work-related ACL tear on August 29, 2013 while working for the insured. He underwent an ACL repair and was placed at an end of healing in August of 2014 with no need for work restrictions. In October 2014, he tripped at work and re-aggravated his knee. He ultimately underwent an arthroscopy in September of 2015, after which he worked with light-duty work restrictions. He was then terminated in July of 2016. The respondents’ IME expert, Dr. Kevin Kulwicki, opined to an end of healing in June of 2016 with no need for permanent work restrictions. The FCE, on the other hand, recommended work restrictions of rarely kneeling, crawling, and crouching.
The applicant applied for services with the DVR. It was noted he had a learning disability that made retraining difficult, but he was ultimately approved for retraining and received an Individualized Plan for Employment (IPE). Emily Veith, on behalf of the respondents, opined that the IPE was not necessary, as the applicant was able to find work within his restrictions for the same wage he was working at the time of injury.
Decision: The Commission ordered that the respondents pay benefits for vocational retraining for the first 80 weeks of the retraining program. The Commission noted that the DVR reviewed the relevant material, noted the need for retraining, and approved the IPE. The record was void of any misrepresentations of highly material facts by the applicant, and there was no indication that the DVR abused its power in approving a retraining plan.
II. Cities & Villages Mutual Ins. v. Kedrowski, Claim Nos. 2013-028657, 2016-001124 (LIRC June 29, 2018).
Rule: Regardless of whether a physician is acting as a treating physician or an expert, physicians must clearly articulate their opinions and provide explanations of the same in order to be considered credible.
Facts: The applicant was a paramedic for the City of Stevens Point during his three dates of injury in this claim: October 7, 2013; November 12, 2013; and January 11, 2016. EMC Insurance was “on the risk” for the 2013 dates of injury, and the city was self-insured for the 2016 claim, so the claim was handled by Cities and Villages Mutual Insurance Company (CVMIC).
On both of the 2013 dates of injury, the applicant injured his lower back while lifting obese patients, the latter date being the worse injury. He was placed at an end of healing in May of 2014, at which time he was assessed with 2% permanent partial disability to the body as a whole and was released to return to work without restrictions. EMC paid the benefits for both claims. On January 11, 2016, the applicant injured his lower back, this time while climbing three flights of stairs carrying a stretcher over his head. CVMIC paid benefits for the claim, but filed a reverse hearing application for reimbursement from EMC. CVMIC claimed that the injury was simply a manifestation of his 2013 work-related injury.
Decision: The ALJ opined, and the Commission agreed, that Dr. Hendricks, the treating physician supporting the claim of a manifestation of the pre-existing condition, was not credible. Dr. Hendricks gave four different opinions about the nature of the injury—each time trying to opine to a manifestation—but each opinion was contradictory. The ALJ and Commission agreed that Dr. Hendricks’ contradictions diminished his credibility. The ALJ and Commission instead adopted the opinions of Dr. Monacci, the respondents’ expert, who more clearly articulated his opinions and outlined his explanation. Dr. Monacci opined that the 2016 injury represented a temporary aggravation of the pre-existing condition beyond normal progression with a return to baseline three months later. Dr. Monacci pointed to the fact that the applicant had a very different mechanism of injury in 2016, that his pain was significantly worse following the injury, and that he went back down to baseline only a few months later. The Commission ultimately dismissed the claim without prejudice.
III. Barnes v. Bremner Food Grp, Inc., Claim No. 2015-010274 (LIRC June 19, 2018).
Rule: This is not a rule from the Commission, but the main takeaway is to collect past medical records and to conduct surveillance when possible. The past medical records and surveillance discredited the applicant’s PTSD claim, and, ultimately, her “perm total” claim.
Facts: The applicant was wearing a hard hat at work when a co-worker struck her in the head with a wrench. The blow was significant enough to leave two indentations in her hard hat. The applicant treated for her condition nine days later. Both parties concede that the incident caused a concussion and post-concussion syndrome. Three months after the incident, the applicant complained of PTSD and accompanying symptoms, and she ultimately claimed that the PTSD left her permanently and totally disabled, such that almost any movements made her light-headed and dizzy. Two treating physicians provided her with medical support for her PTSD claim.
Dr. Novom, the respondents’ IME physician, disagreed with the treating physicians. He noted that she had an unremarkable neurological examination with no contradiction to full-time work, regardless of her headaches, dizziness, and fatigue, along with the fact that three months passed before she claimed any PTSD-related symptoms. He ultimately opined that the applicant’s symptoms were more related to a “psychogenic mediated pain state (somatic symptom disorder),” chronic headaches, and pain/fibromyalgia, which had nothing to do with her minor work-related head injury.
Decision: The Commission discredited the applicant’s treating physicians and sided with Dr. Novom. With regards to the incident and direct treatment, the Commission noted that the applicant’s hard hat only sustained two small indents; she did not lose consciousness; she waited nine days to seek medical treatment; and the CT scan and MRI lacked evidence of a traumatic brain injury. The Commission also relied upon the past medical records filed by the respondents, which established pre-existing fibromyalgia, dizziness, headaches, and migraines for years before the date of injury, along with evidence of prior psychological treatments and reports of sexual and physical abuse. Finally, the Commission also discredited the opinions of the treating physicians. The physicians based their opinions upon reports from the applicant of what she was and was not capable of doing, but significant surveillance footage filed by the respondents showed that the applicant was actually capable of doing much more than she told her physicians, such that the Commission did not believe the applicant was permanently and totally disabled for vocational purposes.