SUSAN BROWN, Applicant
SAMS CLUB, Employer
WALMART CORPORATION
NATIONAL UNION FIRE INS CO OF PITTSBURGH, 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 August 31, 1999
ND § 3.4
David B. Falstad, Chairman
Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
The applicant worked for the employer, a "wholesale warehouse club," from 1988 to 1997. During this time, she worked as a cashier, a caller, a checkout supervisor, a membership/marketing clerk, a stocker, a setter (who set up shelving), a manager, and finally in the shipping/receiving area. In many, but not all, of these jobs she did repetitive lifting, heavy lifting, or both. She ultimately underwent a lumbar fusion surgery.
The applicant claims an occupational back injury; that is, one that is not traumatically caused, but rather the result of an appreciable period of exposure that causes either the onset or material progression of a disabling condition. The employer contends the applicant's back condition and need for surgery was not caused by work. The record contained expert medical opinions on this issue.
Treating surgeon Stephen Delahunt, M.D., notes the applicant's nine-year history of repetitive bending and lifting, sometimes lifting objects weighing 75 pounds and stocking items weighing 100 pounds. Based on this history, he felt her prolonged work exposure was a material contributory factor in the onset and progression of her disability from her low back condition. Exhibit A. He ultimately rated PPD at 15 percent and, as noted above, set a permanent 25-pound lifting restriction. Exhibits A and C.
Consulting doctor Christopher Evanich, M.D., while deferring to Dr. Delahunt's opinion, also noted that he thought the applicant's occupational work exposure aggravated a pre-existing degenerative condition (her degenerative disc disease) beyond its normal progression.
Joseph Cusick, M.D., whom the applicant also saw on consultation, stated in January 1998 that he did not appreciate a work-related causative basis for her condition, and was "unable to say in all probability that such a basis could or did exist." Exhibit 2.
Finally, there is the opinion of the insurer's independent medical examiner, Richard Lemon, M.D. He disagreed with Dr. Delahunt's opinion, noting:
"Degenerative disease occurs in certain people over the age of 20. It progresses with time. It is not related to specific lifting activities or occupation. It can occur with any occupation. Although Ms. Brown's job did involve some lifting, Ms. Brown did not begin working at the receiving dock until April 1996. I do not believe it anatomically possible for Ms. Brown's job from April 1996 through the end of 1996 to cause advanced degenerative disease at the LK4-5 level. In addition, Ms. Brown has evidence of spinal stenosis at the L4-5 level compromising her neural canal. This degenerative disc disease and congenital spinal stenosis necessitated her surgery of August 5, 1997. This surgery was not necessitated by her work at Sam's Club.
"I believe that Ms. Brown would have had surgery even if she had not been working at Sam's Club. Ms. Brown's job at Sam's Club, although it involved heavy lifting, was quite varied throughout the years from 1988 to 1996. In 1996 Ms. Brown began doing more repetitive lifting. This repetitive lifting, however, did not cause her degenerative disc disease and her spinal stenosis. This is a preexisting problem. I also do not believe that her work at Sam's Club was a material contributory causative factor to the onset or progression of her preexisting degenerative disc disease. I base this on the fact that the contemporaneous medical records document the insidious onset of low back pain. They do not document any specific lifting injury nor do they relate the onset of her symptoms to her work at Sam's Club."
Employer's exhibit 1, report of Lemon, pages 6 and 7.
Dr. Lemon agreed with Dr. Cusick's opinion. In the interrogatory portion of his report, Dr. Lemon also suggested that the applicant's degenerative condition has been evident since she was 28, noting that she had noticed occasional aching since 1988. He concluded her surgery would have been necessary even if she had worked in a sedentary occupation.
The ALJ credited the opinions of Drs. Evanich and Delahunt, and found the applicant sustained an occupational back injury. In so doing she noted that Dr. Cusick did not know exactly what the applicant did, other than work as a warehouse worker. She noted that Dr. Lemon concluded that the applicant did not have an occupational back in part because she did not complain of traumatic injury; the ALJ pointed out that these are competing theories and the applicant's theory was that she injured her back incrementally over time from heavy lifting, not that she suffered a single traumatic accident. She also noted that Dr. Lemon had the mistaken impression the applicant started repetitive lifting only in 1996, when in fact she had been engaged in repetitive lifting even earlier.
The respondent appeals, raising several points: (a) the testimony of a supervisor (Patrick Kohnke) that the applicant told him the injury was "old" in 1996 or early 1997, (b) the applicant initially treated the injury as non-industrial and Dr. Delahunt so treated it, (1) (c) the fact that a treating doctor, Cusick, opined the applicant's work did not cause the applicant's disability, and (d) the ALJ incorrectly discredited Dr. Lemon's opinion as assuming too short a period of repetitive work as Dr. Lemon ultimately concluded the applicant's condition would have occurred in even a sedentary occupation.
The commission conferred with the presiding ALJ under Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 283-84 (1972). The ALJ described the applicant as credible and a hard worker who did what was necessary to get the job done. The ALJ believed the applicant and Mr. Kohnke misunderstood one another in the conversation when the applicant told Kohnke her injury was "old." The ALJ concluded that the applicant was attempting to convey that the back pain came on gradually over time and was not the result of a specific, traumatic work accident, not that she sustained her back injury off-duty or elsewhere.
The commission also notes that, regardless of what she may have told Mr. Kohnke, the applicant consistently told her doctors that her pain started in about September 1996. True, Evanich's April 1997 history of eight or nine months pain and Kusick's August 1997 history of "many months" pain stray a little from the September 1996 date. But neither of those histories, nor any of the histories of the other doctors, tally with a report of an "old" injury, presumably pre-dating the employment in 1988. Further, the applicant gave these histories before she determined to proceed with her claim that the injury was work-related.
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 medical relations between her occupational exposure and her back, or to be aware that such a condition is even compensable.
Third, like the ALJ, the commission questions Dr. Lemon's opinion. He opines that degenerative disc disease is not related to lifting activities or occupations and that the applicant would still have needed surgery if she had done sedentary work. The respondent suggests that given Dr. Lemon's opinion, an accurate understanding of a work history that included several years of heavy lifting is irrelevant. The commission declines to credit such an extreme position.
In sum, this applicant has done heavy work for the employer for years. Dr. Lemon notes the onset of occasional backache beginning in 1988 in support of his conclusion the condition simply degenerative. Of course, 1988 was the year the applicant started working for the employer in the "caller" position that involved precisely the type of repetitive heavy work Dr. Lemon suggests the applicant began only in 1996. On this record, the commission, like the ALJ, finds more credible the conclusions of Drs. Evanich and Delahunt that the applicant's disability from her back condition was caused by work.
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