MILTON J EBBEN, Applicant

GREEN BAY PACKAGING INC, Employer

WAUSAU UNDERWRITERS INS 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, except that it makes the following modifications:

1. The second and third sentences of the fifth paragraph on page 6 of the ALJ's decision are deleted, and the following substituted therefor:

"Sisco and the 'Alternate Insurance' listing shall be ordered reimbursed under Wis. Stat. § 102.30(7). The worker's compensation insurer (Wausau Underwriters) shall determine the identity of 'Alternate Insurance.'"

2. The caption of the ALJ's "ORDER" is deleted and "INTERLOCUTORY ORDER" is substituted therefor.

3. In the second paragraph of the ALJ's order, delete the material after "Pain Management," and insert:

"Forty-two dollars and sixty cents ($42.60) to 'Alternate Insurance,' Seven thousand six hundred forty-three dollars and twenty-one cents ($7,643.21) to Sisco, Three thousand eight hundred eighty-five dollars and seventy-two cents ($3,885.72) to the employer for payments under its short term disability or 'sickness and accident" coverage, and Five thousand three hundred eighty-three dollars and fifty-eight cents ($5,383.58) to the applicant as reimbursement for treatment expense and mileage."

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

Dated and mailed April 8, 2005
ebbonmi . wmd : 101 : 8 ND § 10.9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant was born in 1959, and has worked for the employer since 1995. He claims -- and the employer concedes -- a work injury to his neck and shoulder on December 12, 1999.

The applicant has treated with a chiropractor since 1997. In his initial treatment question on June 24, 1997, the applicant listed tightness in neck, shoulders and back. Subsequent handwritten treatment notes indicate treatment for pain in the neck and back. Treatment in 1999 seemed to concentrate more on the thoracic spine, but on December 8, 1999, the chiropractor reported spasm in the cervical spine, and noted an increase in pain due to hunting. According to the applicant, this entry referred to stiffness from standing in the cold while hunting.

Four days later, on December 12, 1999, the applicant was injured when he was pulling a shaft weighing 70 to 75 pounds out of a core. He testified he felt a tearing or pop in his shoulder at the time. He reported the injury but his employer told him to stay at work. Again, the injury is conceded.

The applicant contacted his chiropractor's office the next day, a Monday, but the chiropractor, Michael Harkins, D.C., was not in. Consequently, he first treated with Dr. Harkins for the work injury on December 14. At this point, the doctor reported an injury at work pulling a core. The doctor instructed the applicant to ice the neck that day, and at a return visit the next day. The doctor took him off work, and released him to light duty several days later on December 23, 1999.

Thereafter, it appears the applicant was able to work without losing time until October 18, 2000. He then lost time from work to recuperate until he returned to work on January 15, 2001. Meanwhile, the applicant underwent treatment for right neck and shoulder problems. He has had injections and radiofrequency treatment, which has helped, as do exercises, chiropractic treatment, and hot baths. Surgery has not been recommended.

The applicant relies on the report of a treating pain specialist, Mazin Ellias, M.D., whose August 2003 report is at exhibit A. Dr. Ellias opined the incident with the shaft directly caused the applicant's disability which he rated at three percent--evidently to the body as a whole--for pain and limitation of motion on a diagnosis of facet joint dysfunction of the cervical spine. He stated there was no previous PPD, based on the applicant's history and available records.

The applicant also relies on the report of treating chiropractor Harkins, who opined the applicant's injury on December 12, 1999, directly caused his disability. He did not rate PPD--nor did he say there would be none--but he did provide a narrative, stating:

I have had the pleasure of providing Mr. Ebben with care intermittently for several years. Mr. Ebben had received general care for aches and pains that come from life's activities, mostly on an as needed basis.

Based on my experience, having taken care of him over several years, I can without a doubt state that the condition in question was not present until his work incident on 12/10/99 [sic]. The location of his injury, the intense character of the pain, its unrelenting nature, and ease of aggravation with the use of his arms were not present until his injury of 12/10/99. Furthermore, this injury is not related to or in no way similar to any treatment of his neck prior to the date of 12/10/99.

After outlining the treatment he provided, the doctor continued:

Because of the serious nature of this injury, the unrelenting pain, and its interference with his ability to use his arms without increased pain, Mr. Ebben was referred for additional evaluation.

Finally, the applicant was seen by Steven J. Querio, D.C., who saw the applicant only for evaluation in June 2002. Exhibit B. Noting that surgery is not necessary, and that there was no fracture, he rated PPD at three percent to the whole body. He stated there was no prior PPD, and that applicant would need ongoing care.

Notes from Dr. Querio's one-time examination are at exhibit H. The applicant told Querio that, prior to the work injury, he was in good condition without neck pain. He also indicated he had not had similar conditions in the past. A checkbox questionnaire asked about past stiff neck and neck soreness, but the applicant only marked the box for present problems. He testified that he thought the reference to "past" meant past injuries that remained painful, not just any past pain that had gone away.

The respondent retained James Gmeiner, M.D., to examine the applicant. His report following the examination on July 18, 2000 is at exhibit 1. He noted that an MRI showed only minor degenerative changes which did not correlate with the applicant's symptoms. He thought the work incident of December 12, 1999, caused only a sprain to his shoulder from which the applicant should have healed by January 12, 2000. He noted, too, that the applicant had had chiropractic treatment before the work injury -- including particularly the treatment on December 8, 1999 -- and felt that the neck complaints of December 12, 1999, were more of the same. He thought the applicant's ongoing treatment was unrelated to any work injury, but to non-specific musculoskeletal symptoms involving the neck.

The ALJ found for the applicant. The employer appeals. Its main point on appeal is that two of the applicant's medical experts, Drs. Ellias and Querio, were unaware of prior neck complaints including the treatment as recently as December 8, 2000. This, the employer insists, undercuts their credibility regarding cause and extent of disability. On the other hand, Dr. Harkin, who was aware of the prior treatment, did not rate PPD.

Regarding the prior neck complaints, the commission is satisfied that the applicant honestly did not think they were particularly significant, or that his prior instances of neck stiffness were simply every day complaints that were minimal in comparison to what he experienced after the injury. Other than the occasional chiropractic treatment for neck complaints, it does not appear he sought significant medical treatment for those complaints. More importantly, the only doctor who treated him before and after, Dr. Harkins, was adamant the work injury caused new and different neck symptoms and provides a detailed explanation why.

Regarding the extent of permanent disability (as a separate question from whether the work injury caused permanent disability to the neck), of course, the only question would be whether the prior treatment was indicative of prior permanent disability. There is evidence of that. Sporadic chiropractic treatment for a sore neck does not prove ratable PPD to the neck before the work injury.

The commission therefore affirmed the ALJ's decision that the work injury caused PPD, as well as his three percent rating.

Regarding its modification to the ALJ's decision, the commission realizes that the employer is self-insured for non-industrial or group heath insurance and for non-industrial disability or "sickness and accident" coverage. The ALJ did not order the WC insurer to repay the medical expenses paid for the employer by Sisco, or for the "sickness and accident" coverage, reasoning in his synopsis that it is all the employer's money. However, it seems at least possible that the employer charges its employees a premium for sickness and accident coverage and medical coverage, and that the premium may be based on past experience that would include the applicant's injury. In addition, not ordering reimbursement of medical expense and disability coverage has at least the theoretical possibility of dividing the worker's compensation coverage. See Wis. Stat. § 102.16(3) and 102.31(1)(b). Payment under these types of insurance, even when employer-funded, seems distinguishable from a direct payment by the employer subject to Wis. Stat. § 102.30(5). Given these concerns, reimbursement is ordered to Sisco, third party administrator and the employer's "sickness and accident" plan under Wis. Stat. § 102.30(7).

Finally, the commission amended the amount of payment to Alternate Insurance to reflect the amount shown in the "Final Amended Medical Treatment Statement" at exhibit J (subject to the modifications made on the record and reflected in the hearing synopsis).

cc:
Attorney Israel Ramon
Attorney Steve A. Cotton

Appealed to Circuit Court.  Affirmed March 7, 2006.

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/07/12