River Pines Community Health Center v. Peters

• Decision Date: 24 August 1989
• Docket Number: No. 88-2086,88-2086
• Citation: 447 N.W.2d 538,152 Wis.2d 87
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. RIVER PINES COMMUNITY HEALTH CENTER, and National Union Fire Insurance Company, Plaintiffs-Appellants, v. Mary J. PETERS, Labor and Industry Review Commission, and Blue Cross and Blue Shield United of Wisconsin, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 538

447 N.W.2d 538

152 Wis.2d 87

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

RIVER PINES COMMUNITY HEALTH CENTER, and National Union Fire Insurance Company, Plaintiffs-Appellants, v.Mary J. PETERS, Labor and Industry Review Commission, and Blue Cross and Blue Shield United of WisconsinDefendants-Respondents.

No. 88-2086.

Court of Appeals of Wisconsin.

Aug. 24, 1989.

Circuit Court, Portage County.

AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.

APPEAL from a judgment of the circuit court for Portage county: MICHAEL W. BRENNAN, Judge.

Before EICH, C.J., DYKMAN and SUNDBY, JJ.

SUNDBY, Judge.

River Pines Community Health Center and its insurer, National Union Fire Insurance Company(River Pines), appeal from a judgment affirming an interlocutory order of the Labor and Industry Review Commission finding that Mary Peters, when hired, did not falsely conceal a preexisting back condition and that she suffered temporary total and permanent partial disability as a result of her compensable back injury of December 29, 1982.

Three issues are presented.First, is there credible and substantial evidence to support LIRC's finding that Peters did not, at the time of her hiring, falsely conceal her preexisting back condition?Second, is there credible and substantial evidence to support LIRC's finding that Peters suffered temporary total and permanent partial disability?Third, if Peters at the time of her employment falsely concealed her preexisting back condition, is she nonetheless eligible for worker's compensation benefits for her back injury of December 29, 1982?

If LIRC's finding that Peters suffered permanent partial and temporary total disability is not supported by credible and substantial evidence, we need not reach the other issues.We conclude, however, that its finding is supported by credible and substantial evidence.As to the falsification issue, we conclude that LIRC did not consider all of the evidence bearing on the issue.We therefore reverse that part of the judgment affirming LIRC's finding that Peters did not falsely conceal her preexisting back condition and direct the circuit court to remand the cause to LIRC for reconsideration of that finding.

I.BACKGROUND

In January 1982 Peters was employed by River Pines as a nurse's aide.Her claimed back injury occurred on December 29, 1982 when she was assisting in transferring a heavy patient from the patient's bed to a wheelchair.She left her job on that day and subsequently worked at River Pines for approximately a day and a half.She subsequently obtained other employment.

After December 29, 1982, Peters was treated for her claimed back injury by numerous doctors.Her treatment included multiple attempts at physical therapy with the use of anti-inflammatories, epidural steroid injections, bilateral facet joint injections, back braces and a lumbrosacral fusion with obliteration of her L5-S1 facet joint.Her diagnostic treatment included a myelogram which was negative, a CT scan and x-rays which revealed mild lumbrosacral disc narrowing but no evidence of disc herniation.

At the request of River Pines, Peters was also seen by Gay R. Anderson, M.D.

The facts relating to Peters's alleged concealment of her preexisting back condition are stated in our discussion of that issue.

II.LIRC'S FINDING OF TEMPORARY TOTAL AND PERMANENT PARTIAL DISABILITY

River Pines claims that the evidence supporting LIRC's finding that Peters suffered a compensable injury resulting in temporary total and permanent partial disability is incredible as a matter of law and should not be given any weight.River Pines characterizes Peters's course of treatment as "the fantastic medicalization of a simple back strain."Its examining physician, Dr. Anderson, concluded that Peters had a trivial back strain from which she should have recovered and returned to work within two or three weeks.He stated in his opinion:

there has been a fantastic manipulation of the system, confusing an inappropriate medicalization of a patient with the patient obviously in control and having now evolved into more favorable circumstances.Beyond a benign back strain incident, there is certainly no evidence that this individual sustained any significant or permanent injury relative to her industrial exposure; and there was no evidence of any industrial permanency.Furthermore, her surgery was conducted without clear indication and also without any connection demonstrated relative to the industrial incident in 1982, save for the patient's vociferousness.It is quite apparent that the treating physicians of this young woman have not developed an [in-depth] appreciation of the complexity of this clinical syndrome.

The evidence does not support Dr. Anderson's conclusion that Peters's treating physicians did not have an in-depth appreciation of Peters's medical problem.From September 27, 1983 to June 24, 1985 Peters was seen by J.H. DeWeerd, Jr., M.D., an orthopedic surgeon.Dr. DeWeerd referred her to S.C. Stoddard, M.D., also an orthopedic surgeon.In his referral letter of April 23, 1985 Dr. DeWeerd stated: "Mary has been a reliable patient since I saw her first in September of 1983 and she continues to return with persistent and unchanging symptoms."

In the same letter, Dr. DeWeerd stated,

At the present time I am thinking that the only thing that could help her would be a lumbrosacral fusion with obliteration of her L5, S1 facet joints.Granted this is a major undertaking for a 22 year-old woman without a lot of objective evidence of disease and in addition for one that was injured at work.

Dr. DeWeerd did note, however, that bilateral L5-S1 facet joint injections were the only thing that had given her any symptom relief.Upon Dr. Stoddard's examination of Peters on May 7, 1985, he concluded that her marked improvement with facet injection, while possibly carrying some placebo effect, suggested that the pathology was located at the L5-S1 facet, and that therefore facet fusion "should prove to be a worthwhile consideration."However, before proceeding with what both Dr. Stoddard and Dr. DeWeerd recognized as a drastic procedure, Dr. Stoddard prescribed a lumbrosacral custom molded orthosis (brace) to see if immobilization would produce any significant pain relief.Ultimately, however, Peters, after consultation with Dr. Stoddard, decided to undergo fusion of the L5-S1 facet joint.This was performed on October 7, 1985.Dr. Stoddard's post-operative notes indicate that on November 12, 1985, he observed that the "[p]atient is getting along quite nicely....She is obviously moving around more comfortably," and on February 18, 1986, "[s]he seems basically to be greatly improved compared to her preoperative status."Dr. DeWeerd's WC-16-B of September 30, 1986 states that "[t]he patient has been seen recently in the community and stated at that time that her back was very well.She has returned to work and was comfortable with little if any back pain."

At the time of the hearing on October 30, 1986 Peters was employed as a dental assistant.She described the condition of her back as "a lot better than before I had the surgery, but there's a lot of room for improvement."

Contrary to River Pines's position, we do not find that the medical evidence in support of LIRC's finding of temporary total and permanent partial disability is incredible and of no weight.Dr. Anderson's opinion supports River Pines's position.Dr. Anderson's position, however, is not supported by the medical evidence of the numerous doctors who treated and examined Peters from the time of her injury.From the evidence presented by Drs. DeWeerd and Stoddard, LIRC could reasonably conclude that the facet joint fusion was medically appropriate to relieve a persistent back condition resulting from the December 29, 1982, incident.In evaluating medical testimony, LIRC is the sole judge of the weight and credibility of the witnesses.Manitowoc County v. ILHR Department, 88 Wis.2d 430, 437, 276 N.W.2d 755, 758(1979).We conclude there is ample credible and substantial evidence to support LIRC's finding that on December 29, 1982 Peters sustained a compensable injury within the meaning of sec. 102.03(1)(a), Stats., which resulted in her temporary total and permanent partial disability.

III.PETERS'S CONCEALMENT OF HER PRIOR BACK CONDITION

It is undisputed that when Peters applied for employment with River Pines in January 1982she had a back condition which had been medically treated.It is also undisputed that if River Pines had been aware of her back condition, it would not have hired her as a nurse's aide.

At the time of her application, Peters filled out an "Applicant's Health Questionnaire" which asked a series of questions, including: "Have you ever had: ....7.Spine, back, neck, chest injures?(Include any operation, pain or disability.)"She answered "No" to this question.The word "pain" was, however, underscored.It is disputed whether Peters underscored the word "pain" or whether she disclosed her prior back pain to River Pines's assistant administrator who underlined the word "pain" to reflect the disclosure.

Peters was also given a physical examination by River Pines's examining physician, Dr. Casbow.Dr. Casbow signed the "Employee Physical Examination" form, which reflected the results of his...