DALE H BECKER, Applicant

THE BOLDT CO, Employer

THE BOLDT 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 July 19, 2007
beckerd . wsd : 101 : 8   ND § 3.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

1. Work exposure, treatment.

The applicant was born in 1944. He has worked operating a crane on construction jobs for forty years. He works through a union hiring hall, and so has been employed by a number of different employers over the years. He worked for the named employer, for a year to a year-and-a-half, beginning in about March 2004. In all, he worked 44 weeks and about 1700 hours for the employer.

While employed by the employer, on about April 20, 2005, the applicant began experiencing pain in his neck, right shoulder and right arm. The pain continued into early May. The applicant described the crane operation duties at about that time as:

...[the crane] was next to a building there in Mosinee and looking straight up like a three-story building and then your are pushing on one [lever] and pulling on the other or pushing and pulling and you are looking straight up and you got to move your head around to see where your signal man is or what have you ... and you got to watch your people there that you are working with...

...you have to reach forward and lean forward sometimes and then you are bending, looking you have to bend your head way back and look up especially next to a building, you know, it is impossible to see up there without bending way back.

The applicant then demonstrated the position at the hearing and the ALJ described his motion as "looking pretty much straight up, your back is leaned back a little bit."

The applicant added that he would be looking straight up "a lot of times" and that he was looking up most of the day. Even when not doing a lift, he explained, he was still looking up to see if the crew up above needed help.

On cross examination, it was brought out that the applicant would at times attach objects to his crane that were on the ground or truck bed. According to the applicant, the communications between the crane operator and other workers was done by hand signals; a walkie-talkie or radio was used only seldomly. However, the respondent brought a witness, Tom Cady, who said he observed the applicant using a headset and radio -- that there was some communication by radio between the crane operator and the work crew. Transcript, page 57. It was also brought out that the applicant periodically operated a 175 ton crane while working for the employer, which required him to bend at the waist forward and "crank" his neck back to see out of a window on the roof of the crane. The seat was fixed and did not recline. Transcript, page 24. Respondent's witness Cady agreed this was an accurate description of that crane. Transcript, pages 57-58.

Mr. Cady, and one of the applicant's witnesses (Shayne Olson), also brought out the detail that a worker would be moving regularly to keep an eye on the environment. That is, a crane operator's neck is not fixed in one place all the time. Transcript, pages 51 and 58. Mr. Cady also testified that the amount of neck movement varied from operator to operator. Transcript, page 71.

In early July 2005, the applicant sought treatment with his family doctor, Ross Lange, M.D., who referred him to John Hugus, M.D. On August 3, 2005, Dr. Hugus performed an anterior cervical discectomy and fusion at C5-6.

2. Expert medical opinion.

The primary issue in this case is whether the applicant's work exposure caused his disability related to the condition treated by the August 2005 fusion surgery. Both sides submit expert medical opinion on that point.

Family doctor Lange described work exposure to which the applicant attributed his condition as:

The patient works as a crane operator which requires him to look upwards while at the same time operating controls with both right and left arms.

Dr. Lange's diagnosis was right arm numbness and tingling secondary to C6 radiculopathy which is secondary to severe right C5-6 foraminal stenosis. He marked affirmative the boxes on the WKC-16B form practitioner's report which indicated direct causation, and that the applicant's condition was caused by an appreciable period of workplace exposure that was a material contributory causative factor in the onset or progression of applicant's condition.

Dr. Hugus' expert medical opinion is stated in a practitioner's report at exhibit A. He refers to his treatment notes -- which refer to "repetitive exposure to the vibration and neck extension as while working as a crane operator" -- for the appreciable period of workplace exposure that he opines was either the sole cause or a material contributory causative factor in the onset or progression of the applicant's condition. He reported that the applicant could work subject to permanent restrictions to medium duty as of December 12, 2005, when he reached an end of healing with permanent partial disability at 10 percent to the body as a whole.

In a September 2005 note, Dr. Hugus also made the following observations regarding causation:

...his pain was consistently and repetitively aggravated by his work as a crane operator. In the end, he voluntarily stopped work because of in ability to continue any neck extension or vibration associated with his crane work. His pain substantially improved away from work although not completely resolved. He states he has been having neck and arm symptoms for a long time even before it escalated significantly over the summer. I believe Mr. Becker has been very accurate and honest in detailing the nature of his pain in relations to work. I believe his neck and arm symptoms are related to a repetitive exposure to the vibration and neck extension as while working as a crane operator.

The employer and its insurer (collectively, the respondent) offers the opinion of Richard K. Karr, M.D., who reviewed the treatment records. His diagnostic impression was:

1. Multilevel degenerative cervical spondylosis (degenerative disc disease/arthritis), associated with right sided C5-6 severe foraminal narrowing due to hypertrophic bone spurs causing right C6 radiculopathy (pinched nerve symptoms), secondary to the normal progression of degenerative factors, predating 2005.
    
2. Right arm numbness for years while driving, and flares of neck pain and right cervical radiculopathy symptoms in May 2005 and subsequently, had solely been due to normal progression of #1.
    
3. Status post C5-6 instrumented anterior cervical discectomy and fusion (ACDF) 8/3/05, mandated by #1 and #2.
    
4. Work-exposure as a crane operator did not cause a structure cervical spine injury; did not cause #1 and #2; had not been a material contributory causative factor in the onset or progression of #1 or #2; did not mandate #3; has not resulted in PPD, temporary total disability, nor permanent alteration in working capacity. Mr. Becker is not suffering from an occupational cervical disease.

In explaining his impression, Dr. Karr stated the normal progression of cervical spondylosis is the commonplace scenario, present in this case, of the gradual onset of symptoms in the absence of any clear aggravating event. In refuting Dr. Hugus' opinion, Dr. Karr said there is no scientific evidence supporting the notion that vibration exposure is injurious to the cervical spine anatomy or function. He added looking up -- tilting one's head back -- requires extension of the spine, which simply requires the cervical anatomy to function in a normal, non-injurious fashion.

Dr. Karr added:

I acknowledge that exposure to extreme "extension," i.e., prolonged hyperextension of the cervical spine, could cause aggravation of an underlying degenerative spondylosis condition in turn causing a flare of clinical symptoms. An example of this would be an electrician performing prolonged overhead work, such as installing a fixture or facilitating a repair directly overhead, or overhead and posterior to the mid axis of the body. Again this would comprise prolonged hyperextension of the neck. I do not believe this is equivalent to Mr. Becker's crane-operation environment. [Emphasis in original.]

Dr. Karr admitted he had never operated a crane or done a personal analysis of crane operation ergonomics. Nonetheless he concluded that a crane operator's line of sight does not require cervical hyperextension, does not mandate exposure to directly-overhead work, and simply requires the spine to function normally. Finally, noting that the applicant had had pain with driving and sleeping as well as work, Dr. Karr stated:

So had "sleeping" or "driving" exposure also been injurious to Mr. Becker's degenerative cervical spine condition? Or instead is it more reasonable to conclude that the normal progression of Mr. Becker's degenerative cervical spine condition had simply been periodically intolerant of such postural issues?

In my view, the multi-year history of right arm numbness associated with driving, as well as Mr. Becker's relative intolerance of "sleeping" and "looking up" postures as of July 2005, had solely been a clinical manifestation of the normal progression of degenerative cervical spondylosis, associated with C6 adiculopathy symptoms.

In conclusion, Dr. Karr opined that the applicant is not suffering from an occupational spine injury as a result of his employment at Boldt Construction.

3. Discussion

The ALJ credited Dr. Hugus' opinion, and found a compensable injury. On appeal, the respondent argues that the ALJ erroneously assumes the applicant hyperextended his neck, a fact the respondent says was never proven. The respondent points to the ALJ's observation that a crane operator would have more exposure to hyperextension than Dr. Karr's hypothetical electrician as there are times when a crane operator cannot look down, but must keep his head in a viewing position in extension to avoid disaster. That is, the respondent reads the ALJ's decision to equate prolonged extension -- looking up for a long time without being able to look down -- with hyperextension. On other hand, Dr. Karr refers to the extreme extension or hyperextension required to establish an occupational injury in terms of degree of position, not simply duration.

However, Dr. Hugus, whose medical report the ALJ adopted, does not share Dr. Karr's opinion that extreme extension or hyperextension is required to establish a compensable injury by occupational exposure. Instead, Dr. Hugus based his opinion that the applicant sustained a work injury from occupational disease on a history of prolonged extension and exposure to vibration -- not prolonged hyperextension. Further, Dr. Hugus' reference to "prolonged" is most reasonably read to mean the length of time the applicant extended his neck at any one time. To the extent that Dr. Hugus relies on a history of prolonged extension of the neck, it is fully supported by the applicant's testimony about his work duties with the employer, and for that matter by the testimony of the other witnesses as well. The ALJ's observation that there are times when a crane operator cannot look down, but must keep his head in a viewing position in extension to avoid disaster, is entirely valid on this point.

The respondent also notes that the applicant only worked for the employer for a relatively short portion of his many years of employment. However, in an occupational disease case, a worker need not show the liable employer caused all or even most of the injury or injurious exposure. All he needs to show is that his work exposure with the liable employer is a material contributory causative factor.  (1)  On this point, the commission notes that the applicant's severe, disabling symptoms started during his employment with the employer. Also noteworthy is that Dr. Karr does not say the 1 to 1 1/2 years of employment when the applicant worked for the employer was insufficiently long to cause injury by occupational disease. Rather, his opinion is based on the absence of hyperextension during the applicant's work duties -- which again goes to the position of a worker's neck during employment, not the length of employment. Further, there is no particular length of employment necessary as a matter of law to support a finding that work exposure constituted a material contributory causative factor in the onset or progression of occupational disease. See North River Ins. Co. v. Manpower Temp. Servs., 212 Wis. 2d 63, 73 (Ct. App., 1997) (finding liability in an occupational disease case based on a single day's work activity.)

The commission is also satisfied that Dr. Hugus had a sufficient history to serve as the basis for his expert medical opinion. The respondent's expert, Dr. Karr, did a record review and based his own opinion to a large extent on the history taken by Dr. Hugus. Dr. Karr does not say that history taken by Dr. Hugus was not sufficiently detailed to serve as a base for an opinion or that it inaccurately described the actual work exposure. Rather, Dr. Karr reached a different expert conclusion on the same history.

In sum, like the ALJ, the commission finds Dr. Hugus' opinion more credible than Dr. Karr's. The applicant had to crank his neck to look up for long periods of time while reaching out from his body to operate hand controls. Whether or not this may be characterized as extreme flexion or hyperflexion is not dispositive under Dr. Hugus's opinion. Further, while the human body may permit such movements and while the applicant might not work in a constant state of full cervical extension, while performing this work he began to experience symptoms that were later shown to have degenerative cervical disease. On this record, Dr. Hugus' opinion that the applicant's workplace exposure was a material contributory causative factor in the onset or progression of the applicant's disabling condition is more reasonable than Dr. Karr's contrary opinion.

cc:
Attorney James Kurth
Attorney William R. Sachse, Jr.

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(1)( Back ) Under Wisconsin's Worker's Compensation Act, an injury that results from working in an industry over an extended period of time is caused by "occupational disease" rather than by an accident. Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App. 1982). Where occupational disease is caused by employment with several employers, the entire liability rests on the last employer whose employment caused the disability resulting from the disease. Travelers Ins. Co. v. ILHR Department, 85 Wis. 2d 776, 782, 784 (Ct. App. 1978). Employment exposure need not be the sole cause or the main factor in the worker's disabling condition. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).

The respondent also argues for reversal because the applicant himself did not initially attribute his condition to work exposure with the employer. Regarding a similar argument, the commission has previously stated:

Further, the fact the applicant initially treated the condition as non-occupational is not dispositive. The applicant is neither a doctor nor a lawyer. She is a lay person who cannot be expected to understand the medical [relationship] between her occupational exposure and her back, or to be aware that such a condition is even compensable.

Susan Brown v. Sams Club, WC Claim No. 1998-012372 (LIRC, August 31, 1999). See also Van Vonderen v. Miller Electric Mfg. Co., WC Claim No. 20001061234 (LIRC, April 14, 2002).

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