STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RUTH BENDICKSON, Applicant

CUSTOMIZED TRANSPORTATION INC, Employer

RELIANCE INS CO, Insurer

WORKER'S COMPENSATION DECISION
, Claim No. 2001-042840


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.

ORDER

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

Dated and mailed December 29, 2006
bendicr . wsd : 101 : 1  ND § 8.24

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

1. Background.

The applicant testified she was injured on May 23, 2000, while she was loading gas tanks into a rack. The door or gate to the rack unexpectedly fell open, and a tank fell forward. The applicant tried to stop the tank from falling, jolting her neck and shoulders forward. She experienced a burning sensation in her neck and shoulder. The applicant called her supervisor, who produced an accident report, which the applicant completed.

The applicant introduced corroborative testimony from a coworker, Timothy Phetteplace, who testified that he was working across the aisle from the applicant when the accident occurred. He heard the applicant screaming for the ops manager, and saw the rack of gas tanks had collapsed on the floor. Mr. Phetteplace observed the applicant in tears, rubbing her shoulder. He did not actually see the accident occur, but he verified that the supervisor got an accident report form which the applicant filled out.

After some initial treatment with a chiropractor, Dr. Damrow, and a family doctor, Dr. Sitorius, the applicant treated with Dr. Fuiks, who performed an anterior cervical discectomy and fusion at C6-7 on February 18, 2002. Dr. Fuiks noted at the time that there was a chance the applicant would develop adjacent segmental degeneration at C5-6 and require a second operation. Indeed, the applicant underwent a second surgery, a C5-6 fusion performed by Dr. Sturm, in November 2003.

2. Expert medical opinion.

Both parties submit documents expressing expert medical opinion. The applicant relies on reports that were written in the form of letters to her attorney by Dr. Sturm. Exhibits A and B.

In the first letter, dated June 28, 2004, Dr. Sturm states that the applicant underwent an anterior cervical discectomy and fusion at C6-7 on February 18, 2001  (1) after an injury at the employer; that she experienced an incomplete recovery with regard to her symptoms (but did have improvement of dysesthesia in her right fourth and fifth fingers); that there had been evidence of spondylosis at C5-6 at that time but it was not addressed; that upon returning to work she was in an incident where she was lifting a 59-pound object with another person who let the object drop, imparting force on her neck; that thereafter she noted increasing posterior cervical neck pain and sensory disturbances in her left arm and pain traveling to her left thumb; and that on evaluation she had elements of a left C6 nerve root abnormality.

Dr. Sturm went on to note that he reviewed MRIs from October 2001 and October 2003, and that in the later scan the C6-7 area was well decompressed while the C5-6 area showed increased compression. Getting to the heart of the causation issue, the doctor stated:

...based upon the patient's history, she developed posterior cervical neck pain and symptoms in the right arm after sustaining a work-related injury. A surgical procedure was performed at C6-7, which resulted in an incomplete improvement of those symptoms. At the time, it was noted that the patient had pathologic changes not only at C6-7 but also C5-6, C5-6 being the area that was not addressed at the time of the first surgical procedure. These symptoms continued and actually intensified with an associated intensification of the abnormalities noted at C5-6. When these symptoms failed to improve with conservative therapy measures, the patient successfully underwent an anterior cervical disecectomy and fusion at C5-6 with subsequent resolution of her symptoms. Given these facts, it does appear within a reasonable degree of medical probability that the patient's difficulties with respect to her cervical spine were closely related to her work injury in May of 2000. While the surgery was performed at C6-7, she sustained incomplete relief of these symptoms, which subsequently completely resolved when surgery was performed at C5-6. Furthermore, there was evidence of degenerative changes at C5-6 on the images obtained prior to her surgical procedure at C6-7. In addition, given the fact that the patient had a cervical discectomy and fusion at C6-7, a surgical procedure that was performed again related to her work-related injury, this likely increased the stresses experienced at C5-6, subsequently leading to an intensification of the difficulties with regard to C5-6. This would further support the claim that the surgical procedure at C5-6 was indeed related to the original injury sustained in May of 2000.

Dr. Sturm went on to rate permanent partial disability at 20 percent (10 percent for each of the two cervical levels fused), and noted the work restrictions set by his assistant, Ms. Synder.

The employer and its insurer (collectively, the respondent) rely on reports from Morris Marc Soriano, M.D., who examined the applicant on the respondent's behalf. In his first report, dated February 21, 2002 -- which was based on her history of hanging on to a falling gas tank with her right arm on May 1, 2000, followed by neck and arm pain she attributed to pulled muscles, followed by the treatment from chiropractor Damrow, family doctor Sitorius, and the Urgent Care -- Dr. Soriano opined it was more likely than not that the applicant suffered a herniated disc at C6-7 as a result of the work injury in question. However, he did not believe the degenerative disc disease at C5-6 was caused, aggravated, or progressed beyond normal progression as a result of this accident. In summary, Dr. Soriano initially concluded that a singular work trauma on May 1, 2000 did cause the disc herniation at C6-7, but did not aggravate any underlying condition at C5-6.

Dr. Soriano did not think, however, that the C6-7 fusion surgery performed by Dr. Fuiks on February 18, 2002 was necessary. He felt the applicant's main complaints were related to C5-6 and possibly C8, and he also noted Waddell signs. He did agree that there was an absent triceps reflex -- apparently related to the C6-7 herniated disc -- but he felt the disc had nonetheless healed and in fact reached an end of healing as of his February 2002 exam, based on the absence of atrophy and fasciculations at the triceps muscle. He rated permanent partial disability at five percent.

Dr. Soriano wrote a second report on December 3, 2004, in which he retracted his first opinion that the applicant's C6-7 disc injury was caused by a May 2000 work injury. In reviewing additional medical records provided to him, Dr. Soriano noted the absence of a contemporaneous incident report documenting the incident of May 2000, and no sworn statement from a coworker corroborating the event. He noted, too, the prior treatment with chiropractor Damrow, albeit with a gap between March 19, 1999 and May 24, 2000. He noted, as well, the absence of any mention of a work injury in Dr. Damrow's May 24, 2000 note, and that the applicant made no effort to have Dr. Damrow bill the worker's compensation insurer. Dr. Soriano stated that Dr. Sitorius's note of February 8, 2001 did not mention a work-related injury. He noted as well, the applicant's motorbike accident of July 7, 2002, and her treatment for depression. Exhibit 2, December 3, 2004 report of Soriano, pages 3 and 4.

After considering this additional information, Dr. Soriano did not believe that there was any work-related incident, that is, that the May 2000 injury with the fall gas tanks actually happened. Exhibit 2, December 3, 2004 report of Soriano, page 6. He rated permanent partial disability following the two cervical fusion surgeries at 20 percent, though he maintained that Dr. Fuiks' surgery was unnecessary. Dr. Soriano felt that the treatment after February 18, 2002, was reasonable, but related to her motorcycle injury or other trauma, not any May 2000 work injury.

Dr. Sturm then responded to Dr. Soriano's report -- particularly Soriano's conclusion in his first report that the C5-6 pathology was unrelated to the work injury -- by letter dated February 13, 2005, stating:

Certainly, the patient's cervical spondylosis at C5-6 with the posterior osteophytic changes and subsequent neural foraminal compromise did not occur spontaneously while performing duties at work. This does not mean however, that the symptoms referable to these degenerative changes, did not begin while performing activities at work. Given this, it does appear, based upon the patient's history, that there was an acceleration of the natural history with regard to the cervical spondylosis at C5-6 given the development of symptoms referable to this location through the performance of performing work-related activities. Despite the fact that there was no evidence of any HNP at C5-6 at the time of the surgical procedure, there very clearly was evidence of cervical spondylosis and correction of the spondylosis resulted in improvement of the patient's symptoms, again those symptoms which began while performing those duties at work. Another way stated, the absence of a C5-6 HNP does not indicate that the development of the symptoms referable to the C5-6 region were not work-related.

3. Discussion

a. ALJ decision

The ALJ found for the applicant. He concluded the work injury happened as the applicant alleged. He noted the credible, corroborative testimony of the applicant's coworker, Mr. Phetteplace. The ALJ noted, too, that foreman Sorenson was not called to testify to dispute the testimony from the applicant and Mr. Phetteplace that an incident occurred in May 2000 and that an accident report was completed.

The ALJ went on to opine that the reports of Dr. Sturm and Fuiks fit together, noting that Dr. Fuiks warned that the C6-7 fusion could place additional stress on the already weakened C5-6 level and Dr. Sturm stating that exactly that did happen.

b. The factual defenses -- the occurrence of the May 2000 injury happened and its relationship to the C5-6 and C6-7 conditions and surgeries.

On appeal, the respondent argues that there is reasonable doubt the injury happened, noting that Damrow does not mention it, and that the first mention of the injury in the medical notes is made 8 months later in Dr. Sitorius's report of February 8, 2001. Further, when chiropractor Damrow does refer to a work injury in his letter of February 12, 2001, he only mentions "work activity" not a specific event. The employer points out too, that while the applicant says she worked on restrictions, there are no contemporaneous notes from doctors setting light restrictions after the work injury. The employer concluded

It is simply not credible that the applicant sustained a work injury on 5/23/2000 and then continued working for fourteen months before she finally started losing time from work late in July 2001.

Of course, when he wrote his first report, Dr. Soriano was aware of that timeline, yet he opined the C6-7 disc herniation was work-related. Dr. Soriano did not opine that the treatment history per se -- a few chiropractor treatments after the work injury with follow up with her family doctor in February 2001 and at the urgent care clinic in July 2001 -- ruled out a herniated L6-7 disc with the May 2000 work injury. Rather, he initially opined the May 2000 work injury caused a disc herniation, and that the disc injury slowly healed thereafter.

What made Dr. Soriano change his mind about causation at the time of his second report was the lack of a report to the employer on the date of injury, the lack of sworn testimony substantiating an injury, the lack of mention of an injury to Damrow in May 2000, and the lack of mention of an injury to Dr. Sitorius in February 2001. In other words, his second opinion is based more on inference drawn from facts, rather than medical expertise. (2)   However, as explained below, some of Dr. Soriano's underlying factual assumptions are unsupported.

First, of course, the applicant testified credibly that she reported the injury to foreman Sorenson on May 1, 2000. She reported having done so when she made a second report in July 2001. See exhibit 7, page 3. She told Dr. Soriano himself during his first examination in 2002 that she reported the injury when it happened. Exhibit 1, February 21, 2002 report of Soriano, page 2. Dr. Soriano later concluded she was lying in part because the employer did not have the May 2000 report and because there were no sworn reports from coworkers. However, the applicant introduced sworn corroborative testimony from Mr. Phetteplace at the hearing which substantiates both the occurrence of an accident that injured the applicant and that a report was made.

The employer provided no countering testimony to rebut the testimonies of the applicant and Mr. Phetteplace. The commission emphasizes that this is not a situation where an employer is surprised by a worker's claim for the first time at hearing that he or she informally reported an injury to a superior or coworker. The applicant's position on this has been clear throughout. The respondent itself put in dispute the issue of whether the injury was reported to foreman Sorenson, in Dr. Soriano's second report dated well in advance of the hearing. An adverse inference may be reasonably drawn from Mr. Sorenson's absence in this situation.

Also, Dr. Soriano is incorrect when he says that family doctor Sitorius's February 2001 treatment notes do not mention a work-related injury of May 2000. The handwritten part of that treatment note does mention the prior work injury nine months earlier. Indeed the prior injury is noted in two different places in two different handwritings in Dr. Sitorius's February 8, 2001 office note. Compare exhibit 2, December 3, 2004 report of Soriano, page 4, and exhibit 5, page "6".

Further, the respondent suggests the applicant is incredible in her testimony that the employer put her in a kind of informal light duty after the May 2000 injury. Again, the respondent did not put on a witness to disprove the testimony. The July 21, 2001 urgent care note and Dr. Fuiks' December 27, 2001 note both state that the applicant had been on light duty. Her claim that she was in post-injury light duty status did not first arise at the 2005 hearing.

This leaves the absence of mention of a work injury in Dr. Damrow's May 2000 notes shortly after the injury report as a basis for concluding it did not occur. Had it not been for Mr. Phetteplace's testimony, that absence might have led the commission to doubt the occurrence of the injury in this case. But Mr. Phetteplace testified the May 2000 tank falling incident happened, and that the applicant looked and behaved as if she were injured thereby.

The commission is persuaded the May 2000 injury occurred as alleged and that the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment. The commission also credits the opinion of the treating doctors -- and respondent-retained doctor Soriano's first opinion -- that the May 2000 work injury caused the applicant's C6-7 disc herniation.

The commission also concludes the applicant's C5-6 condition was precipitated, aggravated, and accelerated beyond its normal progression by the work injury and that the disability and need for treatment related to the C5-6 disc was related to the surgical treatment of the C6-7 disc. Dr. Sturm explained that increased stress from the C6-7 surgery led to the intensification of the C5-6 disc condition. As the ALJ observed, Dr. Fuiks predicted this possible result when he did the C6-7 surgery. (3)  While the July 2002 motorbike incident -- which occurred between the first and second surgeries -- did not help matters, it does not break the causal link on this record. (4)

c. The legal defense -- uncertified practitioner's reports and the Gehin issue

The respondent also raises a defense based on the fact that Dr. Sturm's opinions are not attached to a certified practitioner's report on form WKC-16B, or otherwise certified as provided under Wis. Stat. § 102.17(1)(d). Neither Dr. Sturm nor Dr. Soriano testified at the hearing, but Dr. Soriano's reports are attached to signed and certified practitioner's report forms. On this point, the respondent cites Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, 278 Wis. 2d 111, which holds that uncorroborated hearsay, even if admissible under a statutory exception, may not be substantial and credible evidence sufficient to support a finding made by an administrative agency.

Under Wisconsin Stat. § 102.17(1)(d)1 and Wis. Admin. Code DWD § 80.22 the contents of certified medical reports by physicians are prima facie evidence as to the matter contained in the report, and certified reports of physicians are admissible as evidence of diagnosis, necessity of treatment, and cause and extent of disability. Whether Wisconsin Stat. § 102.17(1)(d)1 insulates opinion expressed in certified practitioner's reports from the effects of Gehin has not been decided by an appellate court in a published decision. The question is resolved prospectively by the enactment of Wis. Stat. § 102.17(1)(d)4 (5), but that change first applied to cases going to final hearing on April 1, 2006, too late for the November 2005 hearing in this case. See 2005 Wis. Act 174, SECTIONS 23, 24, 75(1) and 76(1).

In this case, the respondent does not argue that an opinion expressed in a practitioner's report certified under Wis. Stat. S 102.17(1)(d) would run afoul of Gehin. Rather, the respondent contends that because exhibits A and B were not certified by Dr. Sturm, or submitted on the standard form WKC-16B, they do not comply with Wis. Stat. § 102.17(1)(d)1 and cannot be regarded as prima facie evidence of cause or extent of disability. As mere uncorroborated hearsay with no special statutory status, the respondent continues, the letters cannot serve as substantial and credible evidence. The respondent acknowledges the exhibits were admitted without objection by the employer. However, the respondent asserts that the fact that Dr. Sturm's letters are admissible does not mean they constitute substantial and credible evidence -- the very point made by the court in Gehin, 278 Wis. 2d 111, ¶¶ 52-53 (holding that properly admissible evidence may not necessarily constitute substantial evidence, and that mere uncorroborated hearsay does not constitute substantial evidence.)

The applicant responds that by stipulating to the admission of Dr. Sturm's letters at exhibits A and B, the employer waived its hearsay objections to opinions stated therein and agreed to their admission as if they were certified under Wis. Stat. § 102.18(1)(d). The applicant asserts the respondent must have known why the reports were being offered: for the very purpose of giving an opinion. The letters had no other purpose; Dr. Sturm's treatment notes themselves were in evidence as exhibit 5, and Dr. Sturm's letters on their face express expert medical opinion. Yet the respondent agreed to their admission with no expressed reservation.

The commission agrees with the applicant. The letters were clearly written to express opinion on causation and extent of disability. The respondent does not argue they were not to it at least fifteen days before the hearing as required under Wis. Stat. § 102.18(1)(d) for certified reports. It does not seem the respondent made the Gehin argument to the ALJ when it agreed the exhibits could be introduced into the hearing record; at least the ALJ did not address Gehin in his otherwise thorough and informed decision. The commission is satisfied that the understanding of the parties -- and the ALJ -- at the time exhibits A and B were admitted into evidence, was that they were to be treated as certified reports for all purposes, including the consent by Dr. Sturm to cross-examination (6), in compliance with Wis. Stat. § 102.17(1)(d)1. (7)

Further, the opinions expressed in exhibit A and B are supported by Dr. Soriano's first opinion. Dr. Soriano's report was certified and it serves as an independent basis for affirmance -- at least with respect to the injury to the C6-7 disc -- because, as explained above, the commission is satisfied the work injury occurred as alleged. The commission did consider the alternative of remanding the matter to allow the applicant's attorney the chance to have Dr. Sturm sign a WKC-16B, and eliminate the Gehin argument. However, because it concludes the respondent in effect waived the formalities of Wis. Stat. § 102.17(1)(d)1 in this case, it declined to follow that course.

cc:
Attorney Philip Lehner
Attorney Michael Gillick



 

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Footnotes:

(1)( Back ) This surgery was done on February 18, 2002.

(2)( Back ) The ALJ observed that, rather than offer opinions on the credibility of testimony given by other witnesses, the better course for an expert is to give alternative opinions based on the different sets of facts. State v. Haseltine, 120 Wis. 2d 92, 96 (Ct App. 1984).

(3)( Back ) Aggravation of an injury by medical treatment remains compensable. Jenkins v. Sabourin, 104 Wis. 2d 309, 315 (1981).

(4)( Back ) Even if the commission were to conclude that the July 2002 motorbike accident played a role in the disability from the C5-6 disc condition, if the earlier C6-7 injury or surgery played any role in the progression of the C5-6 condition, the May 2000 work injury remains implicated. Lange v. LIRC, 215 Wis. 2d 561, 565 (Ct. App. 1997). Dr. Fuiks suggested the C6-7 fusion played such a role in the development or progression of the C5-6 injury. Dr. Jaikumar specifically said in his September 24, 2002 note that one should expect increased neck pain after an incident like a motorbike accident in light of the prior C6-7 surgery. On the other hand, the commission does not read Dr. Soriano to credibly rule out the role of the C6-7 injury or surgery in the progression of the C5-6 condition as required by Lange.

(5)( Back ) 102.17 (1) (d) 4. A report or record described in subd. 1., 2., or 3. that is admitted or received into evidence by the department constitutes substantial evidence under s. 102.23 (6) as to the matter contained in the report or record.

(6)( Back ) Lack of an opportunity to cross-examine was a factor considered by the Court in Gehin, 278 Wis. 2d 111 82.

(7)( Back ) The commission has, as the employer pointed out, held in the past that opinions expressed in passing in treatment notes in medical records certified by record custodians are not prima facie evidence on causation and extent of disability, and cannot serve as substitutes for doctor-certified reports in lieu of oral testimony under Wis. Stat. § 102.18(1)(d) on issues of medical expertise. Donovan v. Milwaukee Transport, WC case claim no. 1999034575 (LIRC, April 30, 2001); Lange v. Federal Express, WC Claim No. 94026706 (LIRC Mar. 20, 1996). Thus, while Dr. Sturm expressed substantially the same opinions he states in his letters at exhibits A and B in his treatment notes at various places at exhibit 5, the treatment notes themselves cannot serve as a basis for expert opinion. However, the applicant is not relying on the office notes, but on the letter clearly expressing an opinion.

 


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