ROBERT HAAS, Applicant
PREFERRED METAL PRODUCTS, Employer
AMERICAN FAMILY MUTUAL INSURANCE CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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.
The findings and order of the administrative law judge are affirmed.
Dated and mailed June 30, 2006
haasro . wsd : 101 : 8 ND § 3.4 § 8.7
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Facts; expert opinion
The employer conceded that the applicant suffered a traumatic injury on March 1, 2001. The injury caused arm pain, but the applicant continued to work, and his continuing left arm pain was ultimately diagnosed as cervical radiculopathy. He contends that his heavy employment caused him ultimately to need cervical fusion.
The parties offer substantial expert opinion on the issues of the cause, nature and extent of the applicant's disability.
The applicant offers Dr. Stone's practitioner report dated September 2, 2002 (exhibit A). Dr. Stone's report identifies a traumatic event in May 2001 while the applicant was "working on a machine and noted a sharp pain in his arm that felt like a bullet in the bone" which he identified as a direct cause of the applicant's disability. He noted permanent disability had not yet been rated.
The applicant also offers the practitioner's report of Dr. Hussaini, who performed steroid injections. Dr. Hussaini's practitioner's report dated September 30, 2002 (exhibit B) also identified a May 2001 traumatic event, while
"utilizing a machine which requires heavy lifting with repetitive movements in upper extremities and neck. There is also twisting while lifting."
Dr. Hussaini opined that this caused the applicant's disability, both directly and as an "occupational disease," that is, an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of the applicant's disability.
Regarding the actual diagnosis, Dr. Hussaini noted that the applicant's August 2001 MRI showed osteophytes at C3-4, 4-5, 5-6, and 6-7, though the EMG done at that time showed no damage present.1(1) He noted as well that a shoulder MRI showed tendonitis, hypertrophy, and a possible glenoid ligament tear in the shoulder. He, too, noted that permanent partial disability could not yet be rated.
The applicant also offers a report dated July 15, 2003 (exhibit C) from Dr. Saxena. In this report, Dr. Saxena refers to his attached evaluations of August 2, 2001 and March 19, 2003 (documented by August 10, 2001 and March 26, 2003 treatment notes), regarding the event or exposure that caused the applicant's disability. The August 10, 2001 report refers to working with some heavy machinery when he felt a sharp "bullet in the bone" pain in his arm, attributed to muscle strain or his heavy work.
Dr. Saxena marked both the direct cause and the "occupational disease" causation boxes affirmatively, though he identified the date of disability as being the spring of 2001. He indicated that work restrictions and a permanent partial disability rating would have to wait until a functional capacity evaluation could be done.
The applicant also offered the October 5, 2004 (exhibit E) practitioner's report of Dr. Suberviola. In this report, Dr. Suberviola described the event or exposure causing disability as "Neck pain-headaches, Arm pain numbness." Regarding a description of the disability and diagnosis, he referred to his notes including an August 8, 2003 note referring to a work injury two years earlier, a two-year history of neck pain with radiation to the left shoulder and upper extremity, and a diagnosis of cervical radiculopathy.
Dr. Suberviola also indicated the applicant could return to work as of January 12, 2004 with a 50-pound lifting limit, and he rated functional permanent partial disability at 7.5 percent to the whole body. He identified the elements causing disability as pain in the neck and arm, and generalized limitation in range of motion.
The applicant offers, too, the December 2003 report of Dr. Polachek (exhibit F), the doctor who did a functional capacity evaluation on referral by Dr. Saxena in July 2003 before the applicant had his surgery. She noted the applicant brought a videotape of his job, which she reviewed. Regarding the cause and description of disability, she referred to her notes, which identified symptoms starting in March 2001 and September 2002 which were related due to lifting and turning on machines at work. Dr. Polockek also marked the "direct cause" and "occupational disease" boxes on the form practitioner's report.
Dr. Polachek rated permanent partial disability at 10 percent, and attached her functional capacity evaluation restricting the applicant to sedentary work. She indicated in her practitioner's report that this was a permanent restriction as of July 3, 2003. Again, Dr. Polachek's July 2003 examination of the applicant preceded the August 2003 surgery by Dr. Suberviola.
The employer offers the opinion of Dr. O'Brien, who did a record review in August 2002 (exhibit 1.) Dr. O'Brien diagnosed a muscle strain of the cervical paraspinal muscles as the direct result of a work incident on July 1, 2001. He stated the resulting soft tissue injury would have healed within 2 to 8 weeks. He did acknowledge that the applicant had multilevel cervical spondylosis, but stated this was an age-related condition that was often asymptomatic in its early stages.
Dr. O'Brien stated the applicant's current condition was not due to the July 1, 2001 injury, and that he would have reached an end of healing with no disability from that injury by August 25, 2001. In the specific interrogatory part of his opinion, the doctor specifically stated the July 1, 2001 work injury caused disability from a strain, but did not aggravate a pre-existing degenerative condition beyond its normal progression. He stated the occupational disease theory was "not applicable" and opined the applicant required no treatment for the work injury after August 25, 2001.
The employer also submits the July 26, 2003 report of Dr. Aschliman (exhibit 2). He stated his impression as:
[the applicant] has a condition of mild left rotator cuff arthropathy of longstanding. A magnetic resonance imaging s scan in 1993 demonstrated findings not essentially different than those noted in a more recent magnetic resonance imaging scan. Mr. Haas also has a condition of cervical spondylosis with left sided C6 radiculopathy.
The job activities of [the applicant] would be consistent with activities that may lead to some rotator cuff symptoms. Currently shoulder symptoms are not accounting for the complaints of the examinee. Rather, I believe the symptoms relate to a C6 radiculopathy. As a result of the July 1, 2001, event in question, Mr. Haas has sustained a shoulder strain. He also, at that time, may have had a symptomatic aggravation of an underlying cervical condition. Care and work-up were appropriate
By the completion of his course of epidural steroids and diagnostic work up, Mr. Haas I believe, returned to his preaggravation status by December 1, 2001.
Dr. Aschliman went on to opine that treatment thereafter related to a manifestation of the applicant's pre-existing condition of cervical spondylosis with left sided radiculopathy that caused him pain. Noting that the applicant remained symptomatic even after leaving the work place he added:
The work activities of the examinee would not be consistent with activities that would either cause directly or aggravate on a structural basis an underlying cervical spondylosis with an associate cervical radiculopathy. Mr. Haas has simply noted symptoms relative to the nature of his condition.
With respect to the July 1, 2001 incident, Dr. Aschliman opined that there was likely a symptomatic aggravation of a pre-existing degenerative process involving the applicant's cervical spine, adding
this was an aggravation of cervical spondylosis with some cervical radiculopathy and perhaps a shoulder strain. These issues were addressed, and by December 1, 2001, I believe the examinee returned to pre-aggravation status.
Dr. Aschliman went on to opine that the applicant reached an end of healing with no permanent partial disability from the July 1, 2001 injury by December 1, 2001. He thought the applicant could work full time, and added that if the applicant should avoid certain tasks if they made them feel uncomfortable.
On July 30, 2003, Dr. Aschliman watched videotape of the applicant's job duties--the tape demonstrated an individual performing a variety of machine tasks--but stated the tape did not change his opinion. He added that "the job activities demonstrated are not consistent with activities that would either cause directly or aggravate beyond normal progression" the applicant's cervical spondylosis condition.
The applicant's vocational expert, Barbara Lemke, thought the applicant would be available for only select machine operation jobs. However, she acknowledged that Dr. Suberviola's restrictions allowed the applicant to work in medium duty, and her report includes a chart indicating that at least two-thirds of the miscellaneous assembler/fabricator work, the cutting, punching, and press machine setter, operator and tender work, the packaging and filling machine operator work, general production work, and machine feeder and off-bearer work was in the medium or lower physical demand level. She felt his post-injury wages would be in a range from $8.46 to $13.40 per hour, which compared to $15.00 per hour resulting in a 25 to 30 percent loss of earning capacity.
The employer's vocational expert is Leanne Panizich. She noted the applicant was a high school graduate with no post-secondary training, who earned about 35,000 per year with the employer. His reading and spelling scores were average, his math skills below average. His IQ was above average, however. Ms. Panizich noted that the applicant would be able to return to the bulk of machine operation positions under Dr. Suberviola's restrictions, and would have only a 5 to 10 percent loss of earning capacity.
2. ALJ decision; PCR
The ALJ credited the opinions of Drs. Saxena, Hussaini and Polachek and concluded that an appreciable period of workplace exposure was at least a material contributory causative factor in the onset or progression of the applicant's disability. He found the applicable date of injury was March 1, 2001, because no alternative date was provided. He credited Dr. Suberviola's work restrictions, and awarded permanent partial disability for loss of earning capacity at 27.5 based on Ms. Lemke's rating.
On appeal, the employer argues there is no basis for a finding of injury by occupational disease with a March 1, 2003 date of injury as the applicant testified to traumatic injuries in earlier years, and as the hearing application itself alleged no date of injury and was filed well before March 1, 2003. The employer argues also that for the ALJ even to consider such a date of injury given the procedural posture of the case denies due process. Further, the employer states there is no support for the temporary total disability period claimed and the loss of earning capacity award is too high.
3. Discussion.
a. Causation by occupational diseases; due process
Regarding causation, the commission concludes that the applicant's duties as described and as shown in the videotape were a material contributory causative factor in the progression of the applicant's underlying condition. The commission credits the opinions of the treating doctors, particularly Dr. Polachek who watched the videotape, over that of Dr. Aschliman on this point.
The employer, to be sure, does raise a question about the accuracy of the tape as it shows only some of the applicant's duties. However, the commission concludes the duties that were shown were sufficient to support the conclusion that the applicant's disability was caused by occupation exposure. The employer could have introduced the tape that Dr. Aschliman watched if it was more accurate than the videotape at exhibit V, but it did not.
Beyond the factual defense, the employer asserts that the manner in which the occupational disease theory was pleaded, or not pleaded, raises a due process defense.
On April 15, 2003, the respondent's attorney sent a letter to the department, noting that the matter was scheduled for hearing in a few weeks, but the hearing application did not identify any claims. Then, on May 9, 2003, his attorney sent a letter to the department stating:
"This case possesses administrative difficulties in discerning the specific date of injury as well as the period of time that my client was off work. This arises out of the fact that Mr. Haas performs heavy labor and he continually re-injures himself after returning to work as medically directed.
..While the initial date of injury is in late March 2001, Mr. Haas has had exacerbations amounting to an occupational injury as opined by Dr. Hussaini. More recently, the applicant has been off work due to positive finding on an EMG performed by Dr. Saxena....
...Please allow this letter to act as an amendment to the original application if necessary....
Thereafter, the applicant asked, and was granted, a postponement to obtain a medical examination and report from Dr. Aschliman.
The commission is satisfied that the employer had adequate notice of the applicant's occupational disease claim. The April 15, 2003 letter from the applicant's attorney identified the occupational disease claim, as did the reports of Dr. Saxena, Hussaini, and Dr. Polachek which were submitted before the hearing before ALJ Sass in September 2005. (2) Even employer-retained Aschliman opined on the occupational disease theory in his supplemental report of July 20, 2003. The fact that the applicant, who is after all not a medical expert, particularly emphasized the traumatic events in the medical reports and his hearing testimony, does not mean the employer did not have notice of an occupational disease claim.
Rather, the employer argues that
"The order of the ALJ finds an injury date of March 1, 2003. This date is not supported by the evidence."
Employer's brief dated March 23, 2006. However, the ALJ's order does not find the date of disability was March 1, 2003 (or for that matter March 10, 2003 based on the applicant's last day of work.) Rather, the ALJ specifically stated that March 1, 2001, was the date of injury. ALJ decision, page 8, paragraph 1, sentence 2.
Wisconsin Stat. § 102.01(2)(g) provides:
102.01(2)(g) Except as provided in s. 102.555 with respect to occupational deafness, "time of injury", "occurrence of injury", or "date of injury" means:
1. In the case of accidental injury, the date of the accident which caused the injury.
2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.
Cases often turn on whether there was a "date of disability" before the last day of work. Given the factual nature of this inquiry, the commission sometimes finds liability on a different date than one pleaded, and has previously held.:
The responsibility for determining the correct date of injury rests with the administrative law judge and, on appeal, the commission. There have been numerous occupational injury cases where the administrative law judge, the commission, and/or the courts have determined a date of injury other than that alleged by the applicant. Such determination did not result in dismissal of the application....
Pergande v. Stoughton Trailers, WC Claim No. 93-018851 (LIRC, June 5, 1997).
Here, of course, the ALJ did not find a different date of injury than the one pleaded. Rather, he found a date of injury on March 1, 2001, which is fully supported by Dr. Saxena's report at exhibit C. Dr. Saxena's July 15, 2003 report at exhibit C stating that the applicant had sustained disability from an appreciable period of work place exposure. While the doctor mentioned the onset of increased pain two weeks before March 26, 2003, his report specifically states the date of disability was in the spring of 2001. Given the record in this case, the commission, like the ALJ, concludes the applicant's exposure to March 1, 2001 caused the applicant's disability. The commission therefore adopts that date as the date of disability and, under Wis. Stat. § 102.01(2)(g), the date of injury.
b. Extent of disability
The employer also challenges the award for temporary total disability. The applicant was taken off work in March 2003, and began a course of treatment that ultimately led to a referral to a surgeon, Dr. Suberviola. When the applicant was ultimately seen by Dr. Suberviola, that doctor immediately recommended surgery. The commission therefore agrees that the applicant should be entitled to temporary total disability from March 10, 2003 when he stopped working until the end of healing from the surgery. That date, according to Dr. Suberviola, was January 8, 2004. The commission is satisfied that the applicant has proven his entitlement to temporary total disability from March 10, 2003 to January 8, 2004.
The last issue is the applicant's loss of earning capacity. The applicant cannot return to his job with the time-of-injury employer, where has worked since 1993 and earned $15 per hour. The commission agrees with the ALJ that the 25 to 30 percent loss of earning capacity assigned by Ms. Lemke based on Dr. Suberviola's 50-pound restrictions is more reasonable than the 10 percent rating given by the employer's vocational expert.
cc:
Attorney Steven Kmiec
Attorney James Ratzel
Appealed to Circuit Court. Affirmed April 24, 2007.
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