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

RONALD D STUHR, Applicant

DAIRYLAND POWER COOPERATIVE, Employer

MCDONALDS, Employer

EMPLOYERS INSURANCE COMPANY OF WAUSAU, Insurer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1988-044557 & 2005-008078


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 25, 2006. Answers to the petition were submitted, and briefs were submitted by the parties. Dairyland Power Cooperative and Employer's Insurance Company of Wausau conceded that the applicant sustained a compensable low back injury on July 24, 1988, and conceded certain compensation including 18 percent permanent partial disablity. The applicant's average weekly wage at the time of this 1988 injury was conceded to be $503.60. McDonald's and United Wisconsin concede only an average weekly wage of $288.00. The applicant claims that he sustained a compensable injury arising out of and in the course of employment with McDonalds, with a date of injury on February 7, 2005. The applicant also claims additional compensation attributable to the July 1988 work injury. Medical expenses are also claimed. Accordingly, in addition to the issue of whether or not the applicant sustained a compensable injury at McDonald's, the nature and extent of disablity and liability for medical expense are at issue for the conceded 1988 work injury at Dairyland Cooperative, and for the alleged 2005 work injury at McDonald's.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses her Findings and Interlocutory Order. The commission makes the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is October 20, 1957, sustained a conceded work injury to his lower back while working for Dairyland Power Cooperative on July 24, 1988. This injury resulted in a two-level decompressive laminectomy and fusion at L4-5 and L5-S1, performed by Dr. H.G. Sullivan on April 4, 1989. Initially, the applicant did well after the surgery, but his back pain began to return. On March 8, 1990, Dr. Sullivan surgically removed the fusion hardware in the hope that this might help relieve the applicant's symptoms. The additional surgery did not ultimately help, and on June 11, 1990, Dr. Sullivan indicated the applicant's fusion had resulted in relief of his gluteal and leg pain, but only resulted in 20-30 percent improvement in his low back pain. Dr. Sullivan assessed 18 percent permanent partial disability and recommended that the applicant lose weight. X-rays were performed on April 30, 1990, and a treating physician, Dr. J.K. Williams, wrote that both fusions appeared very solid. However, Dr. Williams noted that there was a "clear space at the anterior one-third of the interspace between the plug and the superior surface of S1."

The applicant followed up with Dr. Williams on July 11, 1990, and indicated he had stabbing and aching pain primarily in the low lumbar and sacral regions, with only occasional discomfort in his buttocks and legs. He had not worked since February of 1990. He weighed 272 lbs. (he is 6 feet tall), and Dr. Williams diagnosed chronic, post-surgical low back pain. Dr. Williams also noted that the applicant was obese and deconditioned, prescribed medication, and urged the applicant to exercise and lose weight. Subsequent medical records recount treatment for minor ailments but not the low back condition. The applicant has continued to experience back pain since undergoing the fusion surgery, and has attempted to control it with ibuprofen and anti-inflammatories. He subsequently underwent training as an electro-neurodiagnostic technologist, and worked in two different hospitals. However, he left this type of employment in 1999, and became a correctional officer with the South Dakota Department of Corrections, where he worked until 2004.

In September 2004, the applicant moved back to Wisconsin and accepted employment with a McDonald's restaurant. His primary duties there involved cooking hamburgers on a grill, which required him to operate a "clam," an apparatus that closes down onto the topside of the burgers to help cook them. The applicant had to bend down and press two buttons to make the clam come down onto the burgers. This was a repetitive process, although the applicant's testimony exaggerated the frequency with which he had to perform his bending and pushing of buttons. The applicant also had to carry boxes of meat or other food, but again engaged in some exaggeration of the weights he actually carried. In December 2004, McDonald's installed two new grilling machines. Operating these machines increased the applicant's low back pain to the point that it was intolerable by the end of the day. The manager modified the applicant's duties to perform less grilling work, but his back and leg pain persisted.

The applicant quit working at McDonald's on February 7, 2005, and went to see a nurse practitioner, Michelle Lambert, on February 9, 2005. He told Lambert McDonald's had him lifting 100-lb. boxes and he had an exacerbation of preexisting back pain. (1)  He also mentioned the bending required to operate the grills. Lambert referred the applicant to Dr. T. Sunil Thomas on March 16, 2005, and Dr. Thomas took a history of the 1989 fusion, but recorded that "he was doing well" until the exacerbation at McDonald's. Dr. Thomas notes that an MRI had been done in February 2005, and it showed a solid fusion at L4-5, but a probable pseudoarthrosis at L5-S1. There was also disc degeneration at L3-4, and Dr. Thomas opined that the applicant's pain could either be from the pseudoarthrosis at L5-S1, or from adjacent segment degeneration at L3-4. He recommended conservative treatment and completed a WKC-16-B on December 19, 2005, in which he opined that the applicant had sustained an occupational injury with a date of injury on February 7, 2005. Dr. Thomas wrote in an attached narrative that the McDonald's exposure aggravated the applicant's preexisting back condition, and that his current back problems were related to a combination of this preexisting back condition and the occupational injury at McDonald's. He further wrote that the effects of the McDonald's injury should have resolved within six months after February 7, 2005, and anything beyond that time frame would be attributable to the prior work injury and surgeries. Nevertheless, in his WKC-16-B Dr. Thomas assessed 2 percent permanent partial disability to the occupational injury at McDonald's.

At applicant's attorney's request, Dr. Peter Ihle examined and evaluated the applicant on April 18, 2006. Dr. Ihle noted Dr. Thomas's opinion of a pseudoarthrosis at L5-S1, and that another physician had read a 1994 X-ray as showing a partial fusion at L5-S1. Dr. Ihle also noted in his exam that the applicant weighed well in excess of 300 lbs. Dr. Ihle assessed a total of 38 percent permanent partial disability for the fusion, removal of hardware, non-union, and persistent difficulties. He opined that all disability was due to normal progression of the underlying disease and non-union, with no disability attributable to the McDonald's exposure. He further opined that the applicant was limited to sedentary work secondary to the 1988 injury, and that the applicant should have bariatric surgery to reduce his weight to a level at which he could undergo surgery for re-fusion of L5-S1.

The applicant was also referred to Dr. Matthew Luedke, whom he first saw on April 5, 2005. Dr. Luedke recorded that "things went well" after the hardware removal in 1989 (sic), but there was a re-injury at McDonald's. Dr. Luedke diagnosed low back pain with history of fusion, and obesity. He prescribed Methadone for the back pain, and on April 15, 2005, recorded a body weight of 398 pounds. Dr. Luedke completed a WKC-16-B dated January 25, 2006. He opined that the applicant's back condition was directly attributable to the work at McDonald's, with a date of injury on February 7, 2005, and assessed 28 percent permanent partial disability. He completed a functional capacity evaluation that limited lifting and carrying to 10 lbs., and sitting and standing to total of two hours per eight-hour day.

Dr. Sullivan completed a WKC-16-B dated December 21, 2005, in which he found direct work causation attributable to the 1988 work injury, and assessed 28 percent permanent partial disability based on less than satisfactory surgical results.

At McDonald's' request, Dr. Dennis Brown reviewed the applicant's medical records and submitted a report dated November 18, 2005. He opined that a recent MRI showed a moderately-sized central disc protrusion at L3-4, but concluded that the likely pain generator was not the L3-4 disc, but more likely the pseudoarthrosis at L5-S1. He recommended a weight loss program and then consideration of a revision of the L5-S1 pseudoarthrosis. Dr. Brown further opined that the work at McDonald's had nothing to do with the applicant's back condition.

Also at McDonald's' request, Dr. Stephen Weiss examined the applicant on April 19, 2006. In his report dated May 1, 2006, Dr. Weiss diagnosed status post L4-5 and L5-S1 laminectomy/fusion and removal of fusion plates. He opined that the applicant's back and leg complaints were related to a pseudoarthrosis from the prior surgery. He further opined that the work exposure at McDonald's was not sufficient to have caused the pseudoarthrosis, which he also believed should be surgically corrected if the applicant lost sufficient weight to allow surgery. Dr. Weiss opined that the repetitive bending at McDonald's could have produced some mild muscle pain and soreness, but that this should have resolved within two-to-six weeks from the cessation of that work.

At Dairyland Power's request, Dr. Michael Orth reviewed the applicant's medical records and submitted a report dated January 3, 2006. Dr. Orth indicated that he had seen no documentation supporting the conclusion that the applicant had a pseudoarthrosis at L5-S1. Dr. Orth opined "... this 375 lb., deconditioned individual is manifesting chronic back pain associated with degenerative disc disease." Dr. Orth noted the applicant had not been seen by a medical provider for low back problems between 1993 and 2005, except for X-rays taken when he fell in 1994. That X-ray showed a full fusion at L4-5 and a partial fusion at L5-S1. Dr. Orth also opined that there was no evidence that the McDonald's work exposure caused a problem with the applicant's back. He opined that the applicant was obese and deconditioned, and that these were the reasons he was experiencing chronic muscular back pain. Dr. Orth assessed no additional permanent disability and no additional work restrictions attributable to the 1988 injury or the alleged injury at McDonald's.

The vocational experts have submitted opinions indicating that the applicant is either permanently and totally disabled, or has no loss of earning capacity, depending upon which medical opinion is accepted.

Dr. Orth is alone in opining that there is no pseudoarthrosis at the L5-S1 level, (2)  and the credible inference is that a pseudoarthrosis exists at that lumbosacral level. Evidence supporting this inference includes Dr. Williams' description of an open interspace at S1, Dr. Thomas' reference to the February 2005 MRI showing a probable pseudoarthrosis at L5-S1, Dr. Ihle's reference to a 1994 x-ray taken in South Dakota that showed a partial fusion at L5-S1, and Dr. Brown's and Dr. Weiss' diagnoses of a pseudoarthrosis at L5-S1. The pseudoarthrosis is a significant objective fact, that leads to the inference that the aforementioned five physicians are all correct, to the extent that they all attribute ongoing back difficulty to the effects of the work-related fusion surgery. The commission additionally infers from weighing these opinions, together with the applicant's testimony and medical records, that Dr. Thomas and Dr. Brown are correct to the extent that they both opine the applicant sustained a work injury at McDonald's, with a date of injury on February 7, 2005. The applicant exaggerated the amount of stress that the McDonald's employment placed on his back, but it is inferred from the applicant's and the manager's descriptions of the job that there was enough stress to aggravate the applicant's preexisting back condition.

The commission additionally finds credible the opinions of Dr. Thomas and Dr. Weiss, to the extent that they both believed the effects of any work injury at McDonald's should have resolved within a limited period of time. Dr. Weiss described the McDonald's work injury as muscle pain and soreness, and Dr. Thomas described it as an aggravation of a pre-existing back condition. The commission found Dr. Thomas' description credible. However, the commission did not find credible Dr. Thomas' unexplained assessment of 2 percent permanent partial disablity to that injury. This permanency assessment is inconsistent with Dr. Thomas' statement that the effects of the McDonald's injury "should be short lived," and any treatment given beyond 6 months from the date of that injury would not be related to it.

The commission therefore finds that the applicant sustained a temporary aggravation of his preexisting low back condition as a result of his work injury with McDonald's, with the date of injury being February 6, 2005. As a result of this injury, the applicant was temporary totally disabled for the 6-month period beginning on February 7, 2005. This was a period of exactly 26 weeks, which at the applicable rate of $192.00 per week  (3)  results in total compensation of $4,992.00. A 20 percent fee shall be subtracted from this award and paid to applicant's attorney.

The commission further finds credible the opinions of all of the physicians, with the exception of Dr. Orth, that the applicant's current back condition is at least in substantial part related to the effects of the 1988 work injury and resulting fusion surgery. Dr. Ihle assessed a total of 38 percent permanent functional disablity, and Dr. Luedke assessed a total of 28 percent. Dairyland Power and Employers Insurance Company of Wausau previously conceded and paid 18 percent permanent functional disablity. Based on these medical opinions, the commission concluded that the applicant's back condition related to the 1988 work injury and fusion surgery has left him with a permanent functional disablity of 30 percent. This results in an additional 12 percent permanent functional disablity, or 120 weeks at the applicable rate of $121.00 per week, for an accrued total of $14,520.00. A 20 percent attorney's fee is also due from this award.

The commission finds that at this time it is premature to assess loss of earning capacity, because the applicant is in need of additional surgery to correct his pseudoarthrosis. It is inferred that he has the ability to lose weight, so that this surgery may take place, after which assessment of loss of earning capacity would be appropriate. The cost of such surgery and liability for any loss of earning capacity would be the responsibility of Dairyland Power Cooperative and Employers Insurance Company of Wausau. The commission infers from the medical opinions that the applicant has reached a healing plateau relative to the effects of the 1988 work injury, and it is his excessive body weight that prevents final healing. Wisconsin Administrative Code Chapter DWD § 80.34(1)(j) provides that one factor to be taken into account in assessing loss of earning capacity is:

"(j) Success of and willingness to participate in reasonable physical and vocational rehabilitation program."

Consideration of this factor requires the commission to leave the issue of loss of earning capacity interlocutory for the reasons noted above. After a reasonable period of time, should the applicant fail to lose the weight necessary to allow surgery, a loss of earning capacity assessment would be required. However, such assessment would take into account the effort the applicant made or failed to make to lose weight.

The commission's policy is not to require injured workers to undergo back surgery if they choose not to do so. However, the reasonableness of such choice is also a factor to be considered in assessing loss of earning capacity.

Applicant's attorney also claims costs in the amount of $10,300.41. At the hearing, the applicant agreed to the reasonableness of these costs, and therefore they will be subtracted from his compensation in the same proportion as the employers/insurance carriers are liable for compensation under this order (.2558 of total compensation awarded is the responsibility of McDonald's/United Wisconsin, and .7442 of total compensation awarded is the responsibility of Dairyland Power Cooperative and Employers Insurance Company of Wausau).

Reasonably required medical expenses, including medical mileage expense, are due as claimed in the applicant's WC-3 (applicant's Exhibit M). McDonald's and United Wisconsin are responsible for those expenses incurred between February 7, 2005 and August 7, 2005, and Dairyland Power Cooperative and Employers Insurance Company of Wausau are responsible for expenses incurred during any other period. The applicant shall redo the WC-3 in order to reflect which expenses are attributable to the relevant periods of time.

NOW, THEREFORE, this:

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are reversed. Within 30 days from this date, McDonald's and United Wisconsin shall pay to the applicant the sum of One thousand three hundred fifty-eight dollars and seventy-six cents ($1,358.76); and to applicant's attorney, Curtiss N. Lein, fees in the amount of Nine hundred ninety-eight dollars and forty cents ($998.40), and costs in the amount of Two thousand six hundred thirty-four dollars and eighty-four cents ($2,634.84).

Within 30 days from this date, Dairyland Power Cooperative and Employers Insurance Company of Wausau shall pay to the applicant the sum of Three thousand nine hundred fifty dollars and forty-three cents ($3,950.43); and to Attorney Lein, fees in the amount of Two thousand nine hundred four dollars ($2,904.00), and costs in the amount of Seven thousand six hundred sixty-five dollars and fifty-seven cents ($7,665.57).

Within 15 days from the applicant's submission of his reworked WC-3, showing the breakdown of medical expenses as noted in the commission's decision, the respective insurance carriers shall make payment of those expenses in accordance with the commission's findings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed February 28, 2007
stuhrro . wrr : 185 : 1 ND § 5.21

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In consultation with the commission, the administrative law judge emphasized the applicant's lack of credibility with respect to the amount of repetitive bending and lifting he did while working for McDonald's. The commission agreed with this credibility assessment. However, the credible evidence, including testimony from McDonald's manager, established that the applicant did perform bending and lifting duties of sufficient magnitude to have temporarily aggravated his preexisting back condition. This is consistent with those aspects of the various medical opinions accepted by the commission. The administrative law judge accepted Dr. Orth's written medical opinion, but for the reasons noted in its decision, the commission found this opinion incredible.

cc:
Attorney Curtiss N. Lein
Attorney Mark Parman
Attorney Karl Vandehey



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Footnotes:

(1)( Back ) McDonald's manager estimated the weight of the boxes the applicant carried to be no more than from 30 to 36 pounds. The commission infers that they weighed much closer to 36 pounds than to 100 pounds.

(2)( Back ) Dr. Orth did not declaratively state that there was no pseudoarthrosis. He wrote: "I saw no documentation that indicated that Mr. Stuhr, in fact, had a pseudoarthrosis at L5-S1."

(3)( Back ) The applicant's average weekly wage at McDonald's was $288.00 per week, which translates into a temporary total disablity rate of $192.00 per week. 

 


uploaded 2007/03/02