REBECCA L ROSE, Applicant

GENERAL MOTORS CORPORATION, Employer

GENERAL MOTORS CORPORATION, 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. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed April 13, 2007
rosere : 185 : 9  ND § 3.4  § 3.37

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Respondents allege that the applicant sustained an occupational back disease that ripened into a compensable injury on September 16, 1987, which was a conceded date of injury. However, respondents also acknowledge that the only medical opinion of record concerning causation is from Dr. Christopher Sturm. Dr. Sturm credibly opined that the date of injury was October 2, 2003, the date the applicant experienced sharp back and radicular leg pain while pushing on the pneumatic hammer at work for the employer. It is also clear from the applicant's testimony and from her medical history that her back was exposed to substantial occupational stressors over the period between September 1987 and October 2003. It is also clear from Dr. Sturm's descriptive letter dated December 9, 2003 (Respondents' Exh. 1), that there was MRI evidence of progressive changes in the applicant's back condition over the period in question.

Respondents also take issue with the fact that Dr. Sturm checked two causation boxes on his WKC-16-B dated October 16, 2005. The first box indicates that the work incident precipitated, aggravated, and accelerated the applicant's preexisting degenerative condition beyond normal progression. The second box indicates that the applicant's condition was caused by an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of the applicant's back condition (occupational back disease). Physicians frequently check both these causation boxes on the form, because even from a legal standpoint, there is no practical distinction between these two theories of causation in a case such as the applicant's. It is clear that the applicant's back condition was caused in material part by her prolonged period of workplace exposure, but it is just as clear that on October 2, 2003, there was a precipitating incident that aggravated and accelerated her preexisting condition beyond its normal progression. As stated in Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661, 327 N.W.2d 178 (Ct. App. 1982):

As Professor Larson notes, however, "This contrast between accident and occupational disease is gradually losing its importance, and awards are frequently made without specifying which category the injury falls in." 1B A. Larson, The Law of Workmen's Compensation § 41.31, at 7-357 (J. Duke ed. 1980).

The Commission concludes that from a legal perspective, the most accurate description of causation in this case would be Dr. Sturm's opinion that the work incident of October 2, 2003, precipitated, aggravated, and accelerated the applicant's preexisting degenerative back condition beyond normal progression. However, it does not believe that this conclusion is mutually exclusive with the conclusion that there was an occupational disease process that ripened into a disabling affliction with a date of injury on October 2, 2003.

cc:
Attorney Daniel J. Kelley
Attorney Bryan D. Scholnick

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