FAYE NEITZEL, Applicant

NORTHCOTT HOSPITALITY INTERNATIONAL, Employer

ST PAUL FIRE & MARINE INS 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 31, 2007
neitzfa : 101 : 9  ND § 3.42

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant is seeking compensation related to a right arm rotator cuff tear which she has had surgically repaired. At issue is the relationship, if any, between the rotator cuff tear and her employment as a waitress.

The applicant's waitressing job with the employer involved taking orders, carrying food and drink orders out to tables, etc.  As part of taking out food orders, she would reach into a "heat lamp window" to the kitchen with her right arm, take plates from there, and put them on a tray that she held in her left arm and carry several plates at once to a table. The restaurant uses china plates for its food. November 2005 transcript, pages 14 and 28. The restaurant manager testified that the heat lamp window was at shoulder height, and agreed that waitresses would reach up and into the heat lamp window, remove a plate, put it on a tray, then carry the tray to a customer. October 19, 2006 transcript, page 17. Upon arriving at a table, a waitress would then serve the food, presumably by taking the food off the tray with the right hand and placing it in front of a customer at a table. See November 2005 transcript, page 16.

On July 29, 2003, the applicant testified, she reached into the heat lamp window to pick up a plate and got a stabbing pain in her right shoulder. She described the stabbing as different than her earlier shoulder symptoms discussed, and at a greater level of pain, at 10 on a scale of 1 to 10. The applicant testified that her boss, Clark Burdick, who was cooking that day, noticed her injury. She testified two other managers, Jesse McDowell and Nichole Trickle, were also aware of the injury shortly after it happened. However, Ms. McDowell and Ms. Trickle, neither of whom still work for the employer, both disputed this testimony.

The applicant relies on the opinion of her treating surgeon, Dr. Christie, for expert medical opinion concerning cause, nature and extent of injury. In his initial practitioner's report dated August 24, 2004 (exhibit A), Dr. Christie opined that that a traumatic event in July 2003 -- the act of "reaching into line window picking up plates to move to large tray. Sharp pain in right shoulder" -- directly caused disability from (1) right shoulder impingement, (2) AC joint degenerative changes, and (3) right shoulder rotator cuff tear. He added the applicant could work subject to a restriction against using her right arm on January 5, 2004, but could return to full duty without formal restriction as of April 28, 2004. He also estimated permanent partial disability at 7 percent compared to loss at the shoulder as a result of the surgery. He added that while no formal treatment was planned, it might be necessary in the future.

Dr. Christie's second report, dated February 14, 2006, is at exhibit J. This again refers to a traumatic event in July 2003 -- the act of "reaching into line window picking up plates to move to large tray. Sharp pain in right shoulder" -- and again lists disability from (1) right shoulder impingement, (2) AC joint degenerative changes, and (3) right shoulder rotator cuff tear. However, in this practitioner's report, the doctor opines the traumatic event of July 2003 caused the condition by precipitating, aggravating, and accelerating beyond normal progression a pre-existing degenerative condition. Dr. Christie reiterated his 7 percent permanent partial disability rating and April 28, 2004 release without formal restriction.

Attached to Dr. Christie's February 14, 2006 practitioner's report is a note dated January 19, 2006, which recites:

After review of the medical documentation provided to [me] by your office for past treatment provided to Faye Neitzel by various providers for her right shoulder problem, it is my opinion to a reasonable degree of medical certainty that the right shoulder problems that Ms. Neitzel presented with on 11/25/2003 was a precipitation, aggravation and acceleration of a pre-existing right shoulder problem brought on by years of lifting and carrying trays of food.

The employer and its insurer (collectively, the respondent) rely on opinions from treating doctor Wilkes and their examining doctor, Mark Aschliman, M.D. Dr. Wilkes opines that the applicant's condition was not work related. The respondent submits a practitioner's report on form WKC-16-B in which Dr. Wilkes reports that the applicant attributed her disability to "waitress work." The doctor diagnosed "Type 3 acromion" leading to irritation of the rotator cuff and tearing, but responded negatively to all three of the causation questions on the form report. In a narrative attached to the form he wrote:

...The patient's history is that she started having right shoulder pain while at work as a waitress but gives no specific injury. Her anatomy is such that she does have a type III acromion which is a down hooked acromion which is the bone that overlies the rotator cuff. The more hooked it is the higher number and III being the greatest. More likely it is that patients have irritation of the rotator cuff from the acromion itself. It is my opinion to a reasonable degree of medical probability, that his patient's shoulder problems are not a work-related condition in that the patient does have the anatomy that predisposes her to have inflammation of the rotator cuff and her symptoms began at work. I feel that this would have occurred whether she was at work or not at work. Thus, it is my opinion that her condition is not a worker's compensatable condition...

Exhibit 9.

Dr. Aschliman's report is at exhibit 10. He diagnoses right rotator cuff impingement with acromioclavicular joint hypertrophy, with an associated rotator cuff tear of chronic impingement that was treated surgically by Dr. Christie. Regarding causation, the doctor wrote:

The work injury in question has no relationship whatsoever to the diagnosis. The medical record quite clearly documents symptoms of right shoulder pain as remotely as 1997. At that time a several month history of right shoulder pain without specific incident, injury or occurrence was noted. Symptoms of right shoulder pain were noted also in 2000, again without specific incident, injury, or occurrence having been associated with the development of symptoms.

Dr. Wilkes evaluated [the applicant] for symptoms of shoulder pain in August of 2003. At that time she presented complaining of right shoulder pain that manifested insidiously again without accident, injury, or occurrence. At that time she denied any prior symptoms, but the record clearly documents prior symptoms. Later, [the applicant] claimed to have sustained an acute injury to the shoulder in July of 2003 leading to acute right shoulder pain. The record simply does not support this in the initial evaluations, and the initial record is likely the correct recitation of what happened.

Dr. Aschliman acknowledged that the applicant had symptoms with specific work activities, but stated those activities did not cause the development of AC joint hypertrophy or lead to the development of the rotator cuff tear. Instead, he stated the applicant simply had a manifestation of symptoms at work, which would put this in the non-compensable, second category under the Lewellyn  ⁽¹⁾ case.

Dr. Aschliman did agree that the applicant's treatment had been reasonable and necessary and that, regardless of cause, an end of healing was attained about six months post surgery when the applicant was released by Dr. Christie. He did not offer a disability rating, but did opine no further treatment was necessary.

The ALJ had legitimate doubt as to whether she suffered an accident, or had a specific incident, on July 29, 2003 that resulted in a rotator cuff tear. On this point, the ALJ noted the applicant did not report a work injury on Tuesday, July 29, 2003, when she sought treatment on Saturday, August 2, 2003, but rather that she complained of pain upon waking on July 30. The ALJ noted that Dr. Wilkes, who saw her shortly thereafter, expressly reported "no specific injury."

However, the ALJ did conclude that the applicant had a painful shoulder on July 29, 2003, and that her shoulder injury was caused by workplace exposure. In other words, he concluded that an appreciable period of lifting and reaching with her right arm in her waitressing duties was at least a material contributory causative factor in the onset or progression of her disability from the rotator cuff tear. On this point, the ALJ noted Dr. Christie's narrative in his second practitioner's report which concludes that there:

was a precipitation, aggravation and acceleration of a pre-existing right shoulder problem brought on by years of lifting and carrying of trays of food.

In support of an occupational disease theory, the ALJ noted, too, the earlier treatment records involving the shoulder which include

• The 1997 treatment note indicating right shoulder pain with reaching or lifting heavy pans and a positive finding of mild impingement syndrome, some symptoms of which her doctor then felt were certainly aggravated by her work activities as a waitress, pre-cook, and housecleaner. Exhibit 4. 
   
• The 1997 physical therapy note in which a physical therapist thought the applicant's job duties put her at a risk of recurrence of shoulder complaints. Exhibit 4. 
   
• The 1999 chiropractor's note mentioning a right arm ache for two weeks with reaching or lifting. Exhibit 5.
   
• Dr. Wilkes' treatment note from April 2000, stating that she was experiencing right shoulder pain with lifting over shoulder height that had gotten worse over the last year, with the applicant telling the doctor that repetitive activities aggravated the complaints. Exhibit 6, April 12, 2003 note of Wilkes.

On appeal, the respondent points out that Dr. Christie somewhat inconsistently offers all three theories supporting work causation: an accident directly causing disability, an accident causing disability by aggravating a pre-existing condition beyond normal progression, and a period of work place exposure (with no specific accidental event) causing disability. The respondent also notes the unequivocal opinion of initial treating doctor Wilkes -- a doctor whom the applicant saw on her own because of her prior successful treatment with him -- that the shoulder condition is not work related. The respondent also asserts that most of the weight bearing was done with the nonsymptomatic left arm (which held the trays loaded with plates of food) rather than the injured right arm (which moved the plates to the tray). The respondent further points to the applicant's prior symptoms, some of which preceded the applicant's employment, and argues that applicant's testimony about a traumatic incident-which the ALJ rejected-suggests the work exposure to lifting plates of food generally was not causative.

The commission gave careful consideration to the opinion of Dr. Wilkes, a treating doctor, who opines that condition is not work related and that the applicant would have the rotator cuff problem whether she was working or not. ⁽²⁾  However, the commission is satisfied that her day-to-day job duties, which required reaching to remove china plates loaded with food from the heat lamp window, amounted to an appreciable period of work place exposure that was at least a material contributory causative factor in the progression of her rotator cuff condition. While Dr. Christie did not mark the "occupational disease" causation box on the practitioner's reports that he completed, the commission generally elevates the substance of narratives such as those provided by Dr. Christie in his January 19, 2006 note over the form of the marked box on the practitioner's report. ⁽³⁾

The commission declines to reverse based on the employer's observation about the amount of weight the applicant bore in her left arm as opposed to her right is something of a red herring. None of the medical experts says that the amount of weight involved in normal carrying activities is significant in the development of rotator cuff tears. Indeed, the applicant twice said that when her right arm began bothering her she switched arms to do her job -- she began using her left arm to pick up plates and her right to hold the loaded tray. This suggests it is the reaching with the plates of food that was the activity causing the applicant's problem, not simply carrying a loaded tray across her arm.

Prior symptoms do not rule out an occupational disease claim. The work place exposure does not have to be the sole cause of the disability, nor does it have to cause the onset -- as opposed to simply the progression -- of the disabling condition. ⁽⁴⁾   Further, the fact that the applicant herself did not blame the work exposure initially is not fatal. As the commission has previously observed:

... 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).

cc:
Attorney Walter G. Wefel, Jr.
Attorney Catherine A. Thomas

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(1)( Back ) The Lewellyn court held:

(2) If the employee is engaged in normal exertive activity but there is no definite "breakage" or demonstrable physical change occurring at that time but only a manifestation of a definitely preexisting condition of a progressively deteriorating nature, recovery should be denied even if the manifestation or symptomization of the condition became apparent during normal employment activity. [Footnote omitted.]

Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1968)

(2)( Back ) Of course, an employer is liable for work exposure which hastens the progression of a condition to disability, even if the disability might have eventually occur anyway simply from everyday living. The court in Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191 (1975) held that the Lewellyn rule "is that the work incident be such as induces or triggers an earlier onset of a deteriorative condition."

(3)( Back ) See Barts v. Goetsch Transportation Services, WC claim no. 2003-048419 (LIRC, January 11, 2005).

(4)( Back ) Employment exposure need not be the sole cause or the main factor in the applicant's 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).

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