Aplin & Ringsmuth

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November 2018 Worker’s Compensation Case Law Update

By Attorney Hayley Clark

Labor and Industry Review Commission

  1. Bretl v. Marinette Marine Corp., Claim No. 2016-004518 (LIRC Nov. 20, 2018).

Rule: To be credible, physicians need to “provide a credible medical explanation in support of their respective causation opinions.”

Facts: Richard Bretl worked 18 years with the insured as welder. On September 12, 2006, a fire started in an enclosed area causing him to inhale black smoke. He reported injuring his wrist and shoulder in the incident, but he did not report any breathing or lung symptoms. He was diagnosed with minimal left basilar atelectasis and reduced lung capacity in 2008, but he continued to work without complaint. He first complained of throat and breathing complications in 2010, at which time he reported having the symptoms ever since the industrial accident with exposure to fire.

Bretl was terminated in 2015 for difficulties with his job duties, and he reported continually increasing symptoms following termination. In 2016, he was diagnosed with moderate restrictive lung disease, reactive airway disease, dyspnea, and a cough, which his physician opined was occupationally caused; he also noted that it was “possible” that there was also a direct causation component. At Bretl’s attorney’s request, Dr. Brown completed an examination and opined to direct work causation.

At the request of the respondents, Dr. Habel performed an independent medical examination and opined that Bretl’s conditions were not related to his work activities. He attributed Bretl’s conditions to a history of poorly treated gastreosphageal reflux disease (GERD), of which Bretl denied knowledge at hearing. Dr. Habel, however, noted that Bretl’s medical records listed a non-compliance with medications for GERD. At hearing, testimony was also presented showing that, as of 2006, there was only concern following one reading in 2012. The Administrative Law Judge (“ALJ”) found Bretl to be permanently and totally disabled.

Decision: The Commission reversed the findings of the ALJ and dismissed the claim with prejudice. It did not believe that the treating physician or Dr. Brown (Bretl’s independent examiner) provided a credible explanation in support of their causation opinions. The Commission also did not believe Bretl was a credible witness; he testified that he began experiencing throat and breathing difficulties directly after the 2006 incident, but his medical records showed otherwise.

  1. Mendez v. Mayville Engineering, Co., Claim No. 2014-023612 (LIRC Nov. 20, 2018).

Rule: (1) Experts need to explain their reasoning for permanent partial disability assessments; and (2) an applicant can still be eligible for vocational retraining if he/she is earning the same pre-injury wage but not the same pre-injury actual annual earnings.

Facts: Marty Mendez sustained a compensable injury at work. He was driving a forklift when his foot was crushed between the forklift and steel pole; the torque twisted his leg and caused him to fall from the forklift. Mendez underwent emergency surgery, but he developed an infection resulting in an amputation of his third, fourth, and fifth toes. Within months of the injury, Mendez began complaining of low-back pain and phantom pain in his left toes. Mendez’s physicians related his low-back pain to his work injury. He was ultimately given light-to-medium work restrictions and diagnosed with complex regional pain syndrome, phantom limp syndrome with pain, and low-back pain. Mendez was assessed with the following permanent partial disability ratings: 40% to the left ankle and 5% to the body as a whole. The respondents’ expert, Dr. Friedel, opined that Mendez needed less severe work restrictions and assessed him with 35% permanent partial disability to the left ankle. Dr. Friedel did not believe Mendez’s back condition was related to the injury, as the symptoms did not manifest for a number of months.

Mendez’s employer offered him work within his restrictions, but he was no longer earning his pre-injury wages because he was not offered the large number of overtime hours that he was offered before the date of injury. The DVR approved him for retraining, but the respondents’ expert, Mr. Schulyer, opined that Mendez did not qualify for retraining because his post-injury hourly wage was within 90% of his pre-injury hourly wage.

After a hearing, the ALJ awarded Mendez everything he claimed.

Decision: The Commission affirmed the ALJ on medical causation and necessity of DVR retraining, but the Commission disagreed with the ALJ’s determination for permanent partial disability ratings. The Commission noted that Mendez’s physician and the ALJ did not provide any reasoning for assessing 40% permanent partial disability, while Dr. Friedel noted that the rating factored in the amputations of the toes and the limitation of motion in the remaining digits. The Commission only assessed 1% permanent partial disability for the low-back injury. The Commission recognized that the low-back condition did not manifest until months following the injury, but the respondents did not put forth any evidence of prior back pain/complications or evidence of a subsequent injury.

III.       Grosenick v. Professional Detailing Network, Inc., Claim No. 2013-012166 (LIRC Nov. 20, 2018).

Rule: Procedural rules must be followed by all parties, including the Administrative Law Judge, or else the Commission will set aside an Order and remand the claim for further proceedings.

Facts: Mary Grosenick allegedly sustained injuries to her left hip and shoulder. Grosenick failed to submit some or all of her proposed medical evidence to respondents prior to the hearing date, and she offered no good reason for her failure to comply with the 15-day filing deadline. The ALJ tried to remedy the situation by allowing the respondents to temporarily remove Grosenick’s proposed exhibits, make copies of them, and return the documents to the hearing. The ALJ then accepted the exhibits into evidence and based his decision upon those records.

Grosenick claimed that the respondents “sabatoged” her evidence by tampering with the records’ content. Grosenick tried to file (1) a WKC-16 from Dr. Hee, who indicated that it was too early to determine end of healing or a permanency assessment; (2) a WKC-16 from Dr. Swiontkowski, who indicated that Grosenick was not yet at her end of healing; (3) and, attached to the latter WKC-16, Grosenick attached a non-certified medical record of Dr. Swiontkowski placing her at an end of healing and assessing permanency.

The respondent also filed incomplete records, as one of the WKC-16Bs they filed was not signed by the physician. The respondents’ experts also did not take into consideration one of Grosenick’s claims (shoulder). The ALJ ultimately admitted all evidence into the record and based his decision upon all of said evidence.

Decision: The Commission set aside the ALJ’s decision and remanded the claim for further proceedings. There was a brief discussion in the opinion about the parties’ respective medical opinions, but the Commission felt that neither party put forth adequate evidence for an ALJ (or the Commission) to make a decision in the claim with regards to the disputed issues. The Commission noted that the “ALJ’s findings [were] compromised by the unorthodox procedure he utilized to admit” Grosenick’s exhibits, and the Commission further noted that no party is allowed to remove and subsequently return proposed evidence.