WILLIE MARTIN, Applicant
ASHLEY FURNITURE INDUSTRIES, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, 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 31, 2007
martinw . wsd : 101 : 1 ND § 3.42
James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Background and posture.
The applicant seeks compensation for a torn rotator cuff which he alleges occurred on June 14, 2004, when he slipped and jammed his shoulder into a pole on the outside of a truck while moving a piece of furniture. The applicant treated initially at the VA Hospital in Tomah. Thereafter, he was examined and treated by a number of different doctors, including Drs. Quinn, Bowman, and Nolte. Eventually, a rotator cuff tear was discovered, but his initial treating doctors declined to opine the tear was caused by work or even that the tear was causing his symptomatic complaints. On March 10, 2006, the applicant began treating with Scott Cameron, M.D., who recorded this history in his treatment note:
...a 44-year old male. He has a work-related shoulder injury from an injury at Ashley Furniture about 12 or 14 months ago. Had an MRI scan showing he has a full thickness rotator cuff tear. He is here now for further treatment considerations.
Dr. Cameron's assessment was a rotator cuff tear, left shoulder. He recommended surgery. Dr. Cameron performed an arthroscopic procedure on July 18, 2004, during which he noted a nearly full thickness bursal side rotator cuff tear of at least 2 centimeters in size, which he repaired with open procedure.
Since the surgery, the applicant testified at the September 2006 hearing, he has been undergoing physical therapy. By the date of hearing, he had only recently gotten out of a brace he had been wearing since the surgery.
Regarding causation, the applicant relies on the expert medical opinion of Dr. Cameron, who completed a practitioner's report on March 27, 2006. Describing the accidental event to which the applicant attributed his disability, the doctor refers to his March 10, 2006, treatment note stating "he had a work-related shoulder injury from [an] injury at Ashley Furniture about 12 or 14 months ago." Dr. Cameron also diagnoses a left shoulder rotator cuff tear, and opined the event of the "work-related shoulder injury" directly caused the applicant's disability from that condition.
The employer and its insurer (collectively, the respondent) rely on Michael W. Orth, M.D., whose August 23, 2006 report is at exhibit 1. After examining the applicant and the medical record, including Dr. Cameron's July l8, 2006 surgical report, the doctor noted that while the applicant felt the range of motion was slightly better since the surgery, in fact he could only do flexion and abduction on examination to 60 degrees which was considerably less than his pre-surgery range of motion.
Regarding causation, Dr. Orth opined that neither a work place incident nor work place exposure caused the applicant's rotator cuff tear which he described as chronic and pre-existing. He noted the findings were minimal, the tear only partial, and the pre-surgery clinical examinations benign. In narrative form the doctor stated:
The conditions that he had are chronic, old and degenerative. It is not related to the June 12, 2004, incident at Ashley Furniture, which consisted merely of a contusion as he struck his left shoulder on a pole or a sprain while lifting, depending on which history is accurate. At most his June 12, 2004, incident resulted indirectly in a contusion or a sprain of the left shoulder, which reached an end of healing by August 11, 2004. The mechanisms of injury described would not produce any of the abnormalities noted on the magnetic resonance imaging scan. These were chronic, old, and pre-existing.
It is my opinion that the rotator cuff tear was not related to the examinee's employment at either Truss Specialists [the post-injury employer] or at Ashley Furniture. This was a chronic and old condition, which was a partial tear. The examinee had no findings to indicate that this condition was the cause of his subjective complaints. In reviewing the records, his subjective complaints were out of proportion to his objective findings. I am in agreement with all of the previous physicians, other than Dr. Cameron, that this is a chronic, old, and pre-existing condition that is not work-related and not directly caused or permanently aggravated by the incident of June 12, 2004. It was not caused by any workplace exposure at either Ashley Furniture or Truss Specialists. In addition it is my opinion that the subjective complaints the examinee had did not correlate with the findings on the magnetic resonance imaging scan. He had significant subjective complaints and, in spite of that when examined by multiple physicians, Dr. Quinn, Dr. Bowman, and Dr. Nolte, he had full range of motion and normal examination. It is not clear what the cause of the partial thickness rotator cuff tear was. It was not related to any workplace incident at either Ashley Furniture or at Truss Specialists. In addition, the findings on the magnetic resonance imaging scan were not findings that would be expected to produce the severe subjective complaints that he stated he had.
The ALJ found for the employer and dismissed the application. He explained that Dr. Cameron's opinion that the work incident caused the rotator cuff tear was at odds with the opinions of three treating doctors, Quinn, Bowman and Nolte, as well as the opinion of Dr. Orth. He also noted that of these doctors, Dr. Cameron had the least complete history of how the injury happened-that of a simple conclusory "work-related shoulder injury"-rather than the falling-backward-into-a-pole history that other doctors relied on and that provides some basis for concluding those doctors had a better idea of the body mechanics involved.
2. Discussion.
On appeal, the applicant asserts that as the operating surgeon, Dr. Cameron had firsthand knowledge of the extent of the tear. He suggests the MRI showed a less serious 1 centimeter partial thickness tear while the surgical note documented a 95 percent, 2 centimeter tear. The applicant notes that while Dr. Orth did see the surgical report before writing his report, he refers back to the MRI.
Of course, Dr. Cameron also based his opinion on causation on the MRI-his practitioner's report was done pre-surgery. He does not say his operative findings make that opinion more credible or that the operative findings are different in a medically material way from what was shown on the MRI. Dr. Orth, of course, examined both the MRI and the surgical note and did not make that point either. Further, the fact remains that, despite the surgical findings, Drs. Bowman and Nolte reported a full range of motion for many months after the work injury.
The applicant also argues that given his testimony that his condition improved post surgery, his disability was related to the tear despite the suggestions from other doctors, particular Drs. Nolte and Orth. However, as Dr. Orth pointed out, the range of motion he displayed on his post-surgical examination was considerably reduced from the range of motion he displayed in several examinations done by Drs. Nolte and Bowman after the injury but before surgery.
The applicant also faults the opinions of Dr. Nolte, Bowman, Quinn and Orth for not discussing the VA records. Of course, Dr. Cameron's report does not discuss them either. Further, while the VA records contain Dr. Birling's June 12, 2004 note that is somewhat consistent with the applicant's hearing testimony (though it did not mention the applicant's later description of the injury as being like a dislocation of the shoulder with the shoulder being pushed in front of the chest), the VA records also contain Dr. Sharif's June 14, 2004 note stating:
He refers that over the weekend was lifting some boxes, approximately 50 pounds and upon putting them above 7 feet noted shoulder pain. Denies any acute trauma on the affected shoulder.
That is, VA doctor Sharif's history opinion is inconsistent not only with the version given to VA doctor Birling two days earlier, but with the version given to the other doctors, and even denies any acute trauma. It is hard to see how the opinions of Drs. Nolte, Bowman, and Quinn would have changed to favor the applicant if they had discussed the VA notes in more detail.
The applicant also argues that Dr. Nolte never opined whether the applicant's disability is work related or not. Of course, in his initial treatment note, Dr. Nolte said:
I would agree with Dr. Bowman in the fact that I would have a hard time finding some cause and effect relationship to this gentleman's injury and the amount of disability that he currently explains.
while in his final note, Dr. Nolte said:
.. had "a hard time believing that the small, nonretracted injury to the rotator cuff ..., which has been there for quite some time, can cause this much weakness an pain."
The applicant further argues that "Dr. Bowman erroneously believes that in order for an injury to be work-related there must be a 51% finding of causation" because Dr. Bowman "could not say with greater than 51% certainty that this is related to work." On this point, the applicant notes the commission's decision in Woelffer v. Kohler Co., WC claim no. 1992017380 (LIRC, February 3, 2000), which the applicant characterizes as holding that "the LIRC standard is 5% material contributory causative factor for work relatedness, not 51% or more."
This argument, however, is unpersuasive. An employer may be held liable for workers compensation even if employment exposure is not the sole cause or the main factor in the applicant's occupational disease. 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 point the commission made in Woelffer is that an occupational exposure that contributes only 5 percent to the development of a disabling condition may still be a "material factor" in the development or progress of the disabling disease. (1)
This is different than an opinion stating the probability that the occupational exposure caused the disability -- or contributed to the development of the disabling condition -- in the first place. When that question involves medical expertise, the commission must be satisfied that the medical expert states an opinion with a reasonable degree of medical certainty or probability. Indeed, the supreme court has held that the words "likely," "liable," and "probable" are sufficient to connote reasonable probability as opposed to possibility, whereas "perhaps" or "might be" are insufficient. Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959).
A reasonable degree of medical probability means more than a 50 percent likelihood; this is what Dr. Bowman was trying to express. (2) Put another way, Woelffer holds that an employer may be liable even if its work exposure contributes only 5 percent to the cause or progress of a disabling condition. Woelffer does not hold that an employer may be held liable based on the opinion of a doctor who is only 5 percent sure that the work exposure was a contributing cause in any degree. The holding in Woelffer does not modify the standard of proof.
The commission acknowledges that applicant sustained a rotator cuff tear for which he ultimately had a surgery. However, this is not a case where the initial treating doctors lacked all the facts; Drs. Bowman and Nolte themselves ordered the MRI that Dr. Cameron later cited as a basis for surgery. However, Drs. Bowman, Nolte and Quinn did not believe the applicant's range of motion squared with his pain complaints. They concluded that given the range of motion that the applicant had on examination, his rotator cuff tear was not actually disabling him. Nor did they think the work accident the applicant described caused a rotator cuff tear, especially as the changes were chronic and old. For his part, Dr. Cameron does not expressly say that the applicant's rotator cuff tear was caused by striking the back of his shoulder on a pole. As the ALJ cogently points out, Dr. Cameron's note does not even refer to the fall into the pole incident as a mechanism of injury.
Further, the applicant's history denying any acute trauma to the affected shoulder, given to Dr. Sharif two days after the June 12, 2004 accident, is contrary to his hearing testimony. It is only later in the course of treatment that the applicant mentions the shoulder being pushed to the front of the chest as if it were dislocated. In sum, the commission is left with doubt as to whether the rotator cuff tear was actually causing the applicant's symptoms, let alone whether the rotator cuff tear was in fact caused by the event at work on June 14, 2004.
cc:
Attorney Donald E. Robinson
Attorney Kevin M. McDonald
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