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

THERESA ENK, Applicant

APPLIED PLASTICS COMPANY INC, Employer

FIREMANS FUND INSURANCE COMPANY OF WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001-027891


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 September 30, 2002
enkth . wsd : 101 : 3  ND § 3.4

/s/ David B. Falstad, Chairman

/s/ James A. Rutlowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The applicant underwent an L4-5 microdiscectomy following an MRI showing a small disc extrusion centrally with a probable impression on the left L5 nerve root. She contends her back condition is the result of heavy repetitive lifting, bending and twisting in her work duties. She seeks disability compensation and medical expenses for her condition.

The ALJ found that the applicant did injure her back at work. In support of this conclusion, she noted the absence of symptoms before the applicant started working for the employer; the workplace exposure to repetitive lifting, bending and twisting over a period of several months; the development of low back pain without a specific injury at age twenty-three; that despite the concerns about the effect of an off-duty shower incident in May 2000, the applicant had pain in her left thigh as early as March 1999 and a CT scan that month showed a disc herniation already at that point.

The employer and its insurer (collectively, the respondent) appeal. The respondent argues that given the fact the applicant did not relate her problems to work until she was well into her treatment, and that treating doctor Robbins refused to associate her condition with work, there is legitimate doubt about causation.

The commission declines to find legitimate doubt in this case on the basis that she did not immediately associate her injury with an appreciable period of workplace exposure -- that is, with occupational disease. The applicant is not a doctor, and cannot reasonably be expected to immediately associate her condition with work exposure in the absence of a traumatic accident. (1)   Indeed, the statutes themselves use a "knew or should have known" standard with respect to occupational disease for that very reason. (2)   Nor is there any reason to suspect some traumatic event off-duty as the cause of her symptoms in early 1999.

The respondent's second argument is that a treating doctor, Robbins, opines the condition is not work-related. Under other circumstances, the commission could conclude that a contrary opinion on causation from a treating doctor creates doubt concerning a worker's claim. Here, however, the applicant saw Dr. Robbins only twice, and he does not explain why her duties did not cause her problem. Indeed, it is not clear if Dr. Robbins has a complete understanding of the applicant's relatively strenuous job duties with the employer.

In this case, the applicant--who is a relatively small woman--did work that bordered between medium and heavy, and involved considerable lifting, bending, straining, twisting, often while carrying 30 pounds or more. The spontaneous development of symptomatic degenerative disc disease including a disc herniation, in the complete absence of prior symptoms, is difficult to credit in an otherwise healthy twenty-three-year-old given those job duties. Like the ALJ, the commission finds most credible the opinion of Dr. Coran.

cc:
Attorney Charles J. Graf
Attorney Richard T. Mueller



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Footnotes:

(1)( Back ) Susan Brown v. Sams Club, WC Claim No. 1998-012372 (LIRC, August 31, 1999); Vicky L Van Vonderen v. Miller Electric Mfg. Co., WC claim no. 20001061234 (August 14, 2000).

(2)( Back ) For example, Wis. Stat. § 102.42(1) provides in part:

"102.42 Incidental compensation. (1) TREATMENT OF EMPLOYEE ... The employer shall also be liable for reasonable expense incurred by the employee for necessary treatment to cure and relieve the employee from the effects of occupational disease prior to the time that the employee knew or should have known the nature of his or her disability and its relation to employment, and as to such treatment subs. (2) and (3) shall not apply ..."

 


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