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

DANIEL SKOUG, Applicant

PAYLESS SHOESOURCE INC, Employer

PACIFIC EMPLOYERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1987-015980


In February 2005, the applicant filed an application for hearing seeking compensation for medical expenses and transportation costs, and also inexcusable delay and bad faith delay in payment. The medical and transportation expense issues were heard before administrative law judge (ALJ) Thomas J. McSweeney for the Worker's Compensation Division of the Department of Workforce Development on February 1, 2006. On September 18, 2006, ALJ Joseph Schaeve issued a decision in the matter. The applicant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts and posture.

The applicant was born in 1964. Following a work injury in 1987, he underwent an L4-5 laminectomy in 1985, an L5-S1 laminectomy in 1987, and another L5-S1 laminectomy in 1989. He continued work in a lighter job, but increasing pain led to an MRI in 2000 which showed post-operative scarring and multilevel degenerative changes. An IDET procedure was recommended and performed, but provided no relief.

On May 21 2002, ALJ Mark Shore found the applicant permanently and totally disabled. The commission affirmed ALJ Shore's findings and order on December 9, 2002.

The applicant continued to treat for pain related to his work injury. Oral pain medication was insufficient. He had stomach problems from the pain medication, and began experiencing emotional problems for which he was prescribed psychotherapy. His doctor recommended a trial implantation of a morphine pump, a device which provides pain medication directly to the applicant's spine.

The applicant underwent implantation of a morphine pump in his back in early 2004. Thereafter, the applicant subsequently developed headaches and ringing in the ears or tinnitus. The only issue before the commission at this point is whether medical expenses and transportation expenses incurred to treat the headaches and ear ringing are compensable.(1)  The issue turns on the question of whether the headache and tinnitus complaints for which the applicant sought treatment were caused by the morphine pump implantation.

Notes regarding the trial implantation of the morphine pump are at exhibit D. There is a note dated February 4, 2004, from Stephen M. Endres, M.D., which reports the applicant was seen for placement of a trial epidural catheter for the purpose of infusing preservative free morphine for pain control. The doctor noted the applicant had multilevel degenerative inoperable back disease with unrelenting pain, that a spinal cord stimulator did not give him satisfactory relief, and that he was getting unacceptable side effects from oral narcotics.

The initial trial was done on February 5, 2004. The idea was to have a permanent implantation with a continuous flow pump on February 13. The initial placement seemed to go well. The follow-up notes did not indicate any problem and the insertion of the permanent pump went forward as scheduled on February 13, 2004.

The note for this operation indicates the applicant tolerated the procedure well and was returned to the recovery room in stable condition. Exhibit B, OakLeaf Surgical Hospital Operative note dated February 13, 2004.

According to the applicant, when he awoke after that surgery, he had a horrible headache, and could not tolerate light, sound, or anything. He had experienced symptoms similar to this with a myelogram. The applicant also testified he had begun experiencing loud ringing in his ears immediately after the implantation of the morphine pump.

The first treatment note after the surgery is dated February 24, 2004. Actually there are two notes for this date. One, dictated by Ann Hoepner, R.N., for Dr. Endres, reports that the applicant's postoperative recovery was uneventful. The other, dictated by Dr. Endres himself, states:

He is also feeling better. Again, in retrospect, I do believe a good deal of his postoperative symptoms were secondary to the fact he was quitting smoking and having some nicotine withdrawal.

A note from Dr. Endres dated March 2, 2004, states:

Dan comes in today doing all right from a surgical repair standpoint. His intrathecal catheter is still in the proper position. He however, has had increasing problems with some occipital headaches that are worse when he is up on his feet, some dizziness, some nausea.

Presently, I am wondering if he is not having a small dural leak, probably along his catheter. I told him at the present time we would once again try to give him conservative care with bedrest, lots of caffeinated beverages, see how he does and then if things do not change by the end of the week consider epidural blood patches.

In an office note from March 9, 2004, Dr. Endres noted that the applicant continued to complain of occipital headache, which he described as light headache at the base of the skull. He told the doctor:

When he first gets up in the morning his headache is not bad. He rates it 4 on the 0-10 pain scale. As the day goes on, his headache has the tendency to get worse, but he does lie down then. He had been shopping the other day and lifted groceries, and his headache was quite uncomfortable at that time. He had feelings like his ears were going to pop. The patient does have times of slight dizziness and nausea also.

On examination, Dr. Endres observed a 50 cent size area where there is fluid buildup. The doctor asked the applicant to monitor the area of fluid build up, and discussed the patch.

The applicant then saw Dr. Endres again on March 23, 2004. On this occasion, he reported:

...his wife called stating Daniel was having pain below his shoulder blade area and she noticed a bulge by the incision area on his back. Daniel felt a headache coming on so he drank caffeinated beverages and fluids before he lay down. When he comes in today he is lightheaded and nauseated.

On examination, Dr. Endres noted a "bulge of fluid build up (around .50 size)." He recommended surgery to repair the leak.

On March 30, 2004, then, Dr. Schindler and Dr. Endres did a "repair of the hygroma and replacement of intrathecal catheter splicing it to an existing catheter."

When the doctor next saw the applicant on April 6, 2004, he noted that in a follow up phone call on April 1, 2004, the applicant had told him he had not had any problems with nausea or vomiting. However, on April 6, the applicant told the doctor's nurse:

...he has a feeling like a headache may be coming on so he has pretty much been resting in bed, up for meals, and bathroom privileges only. ... The patient does have some ear symptoms, feeling of pressure, and ringing and sensitivity more so as the patient lies down than when he is up.

Note of Ann Hoepner, RN, dated April 6, 2004. Dr. Endres did x-rays to make sure the pump was correctly placed. A very small amount of swelling was noted in the incisional area.

In his own note for the same date, Dr. Endres reported that the applicant was "struggling with signs of possible subdural leakage yet."

The applicant saw Dr. Endres two days later on April 8, 2004. On that day, the doctor did a "intralaminar approach to the epidural space via L4-5 posterior ligamentum flavum." The doctor took this history:

Dan comes in still having signs and symptoms of dural puncture headache. I am wondering if this may not represent cerebrospinal fluid due to the fact there still has not been an equilibrium with the amount of cerebrospinal fluid he lost in the past and/or a leak from where I had to put the second catheter. In light of this, and due to the fact he is so uncomfortable, I am going to do a blood patch today.... He is very willing to proceed.

The applicant saw Dr. Schindler, the other surgeon involved in the March 30 re-implantation surgery, on April 12, 2004. He saw no evidence of cerebral spinal fluid. He doubted the applicant was experiencing "low pressure" headaches. When the applicant saw Dr. Endres again on April 13, 2004, he noted the applicant, who was being very careful with his activities post surgery, was having problems with ringing in his ears. The doctor again encouraged the applicant to drink plenty of fluids "especially eliminating caffeinated beverages."(2)

The applicant saw Dr. Endres again on May 26, 2004, when the doctor noted:

Patient has been taking aspirin and averages four daily for headaches. Daniel's headaches start as soon as he gets up and intensifies the longer he is up. The patient feels his back pain and headache coincide. The more he is up, the more uncomfortable he is, and the more sensitive his ears are.

Dr. Endres consulted with another doctor, Dr. Ebbersold, who wanted to do a myelogram to determine if there was a CSF (cerebrospinal fluid) leak. According to Dr. Ebbersold's note of June 2, 2004, the myelogram did not show any evidence of contrast leak, and it appeared the repair was very successful. He did not have a good explanation for the headaches, but was satisfied there was no evidence of any CSF leakage.

Dr. Endres also saw the applicant on June 2, 2004. He, too, noted the absence of a CSF leak. He continued:

In light of the fact it would appear the headaches Dan continues to experience are not likely to be related to CSF leakage, we discussed them in a little bit more detail Dan describes them as starting mid day and he says they start around the base of the neck and spread up into the head. Not being headache experts it is hard to say, but this seems to be more consistent with muscle tension type symptoms. We discussed the fact Dan is still consuming considerable quantities of caffeine. He developed this routine under the assumption he did have a CSF leak. We discussed gradually tapering back...

Of some concern is the continuing tinnitus which he describes as being in both ears. We discussed it could be related to the intrathecal medication although that would not necessarily clear. We discussed how a prudent thing might be to decrease, and then eliminate caffeine there. I did discuss that the prudent thing for the tinnitus, and this has been suggested in the past, was to see his primary care physician and follow his advice for an appropriate work-up. We also talked about other iatrogenic[(3)]  contributors to tinnitus and it would not seem that aside from over the years with multiple surgeries having multiple exposures to antibiotics, there wouldn't seem to be anything else contributing to this condition.

Dr. Endres's recommendation, then, was to initially taper off caffeine, decrease the use of Lortab, and use regular Tylenol.

On July 22, 2004, the applicant saw his family doctor, Paul Loomis, M.D., for some poison ivy he got while cleaning out his yard. The applicant told Dr. Loomis he had been having a lot of headaches since a plantable morphine pump was put in. The applicant also complained of tinnitus. The doctor gave him a three day supply of Prednisone and some cream for the poison ivy.

When the applicant saw Dr. Endres again, he noted the prednisone prescription. The applicant told him that the last six days (while he had been on Prednisone) he had been comfortable and had not had headaches or problems with his ears. The doctor told the applicant to keep a diary if his headaches recurred after going off the Prednisone.

The applicant then had an appointment with a neurologist, Donn D. Dexter, M.D., on referral from Dr. Endres, on August 20, 2004. The applicant told the doctor his symptoms of headache and ear ringing had begun quite suddenly following implantation of a morphine pump. The doctor noted that tapering pain medications and caffeine had proven ineffective, but that he had dramatic improvement with Prednisone.

Dr. Dexter noted a surgical history of multiple laminectomies, intradiscal electrotherapy and pump implantation, and surgical repair of a leak around an implantable pump catheter site. The doctor's diagnostic impression was headache and ear ringing of what sounded like an acute onset following a CSF leak, possibly representing CSF hypovolemia syndrome. Dr. Dexter wanted to do an MRI.

In a note dated September 10, 2004, Dr. Dexter reported that the MRI was entirely normal, making the diagnosis of CSF pressure syndrome less likely, though Dr. Dexter did think there were features of low pressure syndrome. He felt the definitive test would be an Indium 11 study. The alternative was empiric treatment with Prednisone. The applicant chose the Prednisone, which was prescribed.

On September 27, 2004, the applicant told Dr. Dexter's office his symptoms had improved with the Prednisone, but that he may have overdone it, causing a return of symptoms. By note dated September 29, 2004, the doctor recommended increasing the dosage with a fairly rapid taper if it were not working. Noting that the symptoms started after the implantation of the morphine pump, but that the MRI did not show changes consistent with a low pressure headache and that position did not affect the headache, Dr. Dexter wondered if the intrathecal morphine itself was causing the symptoms. The doctor recommended a referral to a headache specialist at the Mayo Clinic.

Apparently, the Mayo Clinic would not see him unless the insurer pre-approved the treatment. The applicant continued with the Prednisone regimen prescribed by Dr. Endres.

When the applicant retuned to Dr. Endres on November 24, 2004, he was continuing to taper his Prednisone, but told the doctor his headaches had significantly improved. His most severe headache was now a 4 on a scale of ten, as opposed to a 9 at this last visit. Dr. Dexter continued to recommend a slow taper.

However, the applicant continued to complain of headaches and ear ringing to Dr. Endres, whom he saw on December 2, 2004, and to Dr. Dexter's office on December 10. The applicant continued to experience evidently increased headache symptoms as he tapered down the Prednisone dosage.

When he saw Dr. Dexter on January 7, 2005, the applicant continued to complain of headache. He told the doctor it was present all day, though it was less--about a five--when he first arose in the morning and rose to nine during the course of the day. His symptoms were no different on the days he was off prednisone as compared to the days he was on prednisone. The doctor diagnosed chronic headache. The doctor now saw no orthostatic(4) element to the headache that would be suggestive of a CSF leak. His main concern was getting the applicant weaned off the Prednisone steroids.

The applicant's headache pain was so bad the following weekend, that he had to go to an emergency room for an injection. According to a note from Dr. Dexter's nurse, the doctor believed the applicant had developed chronic pain due to all his medications. Note of Sandomierski dated January 17, 2004.

When the applicant saw Dr. Endres on February 3, 2005, the doctor noted the applicant was on his last day of prednisone, and that his pump medication was being reduced to see if that had an effect on his headache.

The medical notes do not indicate that the change in medication had much effect. The applicant was prescribed antidepressants in April 2005. His medical notes after that point really do not mention much in the way of headache or tinnitus. However, at the hearing, the applicant testified that when his back flares up, he gets a loud ringing in his ears, and this causes the headaches. Transcript, page 24.

For expert medical opinion, the applicant offers the opinion of Dr. Endres, whose letter dated January 17, 2006 is at exhibit C. In relevant part, his letter states:

... Immediately following the implantation of [an intrathecal drug administration system pump], however, [the applicant] experienced a common complication of leaking cerebral spinal fluid around the intrathecal catheter at the point where it penetrated the outer covering of the spinal cord. He then had a revision of the catheter and the cerebral spinal fluid leak was corrected. Symptoms of cerebral spinal fluid leak are quite obvious in most patients manifested by severe postural headache, sometimes accompanied by dizziness and nausea.

Subsequent to the revision of Dan's drug administration system catheter he continued to report symptoms of headache as well as severe tinnitus. Due to the persistent nature of headaches he underwent further testing including a myelogram to assess for the possibility of a tear in the dura. The myelogram completed May 27, 2004 demonstrated that there was no apparent dural tear, no apparent leak of cerebral spinal fluid. His drug administration system seemed to be intact. There was no question of integrity with the device.

By August, 2004 [the applicant] was also reporting that the ringing in his ear returned and was persistent. At this point, he was provided with an appointment with Dr. Dexter in the department of Neurology, Midelfort Clinic, for further evaluation. A thorough evaluation by Dr. Dexter was completed which included completion of an MRI scan to rule out the possibility of cerebral spinal fluid, hypovolemia. Again, this entire diagnostic work-up would have been consistent with ruling out the possibility of complications related to the drug administration system. The MRI scan was interpreted as normal, fortunately, and this would seem to have ruled out the possibility of the drug administration symptom directly causing the headaches. Nevertheless, it is of course plausible that treatment of the chronic low back pain which included the drug administration system pump was chronologically and plausibly related to the development of headache and tinnitus.

The headache and tinnitus were treated symptomatically and eventually these symptoms have more or less subsided.

The applicant also relies on the April 8, 2006 opinion of Dr. Dexter (Exhibit E), who writes:

I did indeed see [the applicant] for problems with headaches. My consultation of August 20, 2004, was completed at the request of Dr. Endres for ringing in the ears, headache, and neck pain. The patient's symptoms began suddenly following implantation of morphine pump in March of 2004. He had symptoms consistent with CSF hypovolemia syndrome. This syndrome can either come on spontaneously or following a rupture of the arachnoid resulting in CSF leak. Given the patient's history, I felt this was certainly likely.

The evaluation of CSF hypovolemia syndrome routinely involves MRI scan of the brain where there are certain abnormalities that are expected, including low lying cerebral tonsils and enhancement of the meninges. This is not invariable, and the scan cannot rule this out completely. I do think that the testing was completely reasonable and in keeping with the patient's clinical presentation.

In summary, the MRI scan of the brain was done in direct result of the patient's spine procedure, which clinically appeared to have caused a CSF leak. I do think that coverage of this in relation to his treatment for his back pain is reasonable.

The employer's expert is Richard K. Lemon, M.D. In the discussion portion of his report, Dr. Lemon states:

Initially, Dr. Endres was concerned that Mr. Skoug had a dural leak causing his headache, neck pain, and ringing in his ears. However, Mr. Skoug had an MRI of his brain in September of 2004, which was normal. Mr. Skoug's myelograms of his thoracic spine and lumbar spine were also normal. There was no evidence of any abnormality. Obviously, Mr. Skoug's treatment for his headaches, neck pain and ear pain are not related to his low back condition.

In response to a direct interrogatory, Dr. Lemon added:

No. Mr. Skoug's treatment for headaches, neck pain, and ear pain was not related to his chronic low back pain. Mr. Skoug's work injury was to his low back only. Mr. Skoug did not have an epidural leak, as confirmed by myelogram. The reasons for Mr. Skoug's headaches, neck pain, and ear pain remain independent from his chronic low back pain.

As noted above, the case was heard by ALJ Thomas J. McSweeney. He left the worker's compensation division before writing a decision, and chief ALJ Janell M. Knutson wrote to the parties asking them to inform her if further hearing would be necessary and what evidence would be presented. She added that if no further hearing was requested, the file would be assigned to another ALJ "to review the transcript and the file (i.e. the exhibits received at hearing and to take administrative notice of the exhibits received, etc., at the prior hearing) and issue a decision."

Neither party desired further hearing, and the case was assigned to ALJ Joseph P. Schaeve. He issued a decision in favor of the respondent and denying the claimed medical expenses. ALJ Schaeve explained that Dr. Endres's expert opinion at exhibit C--which refers to the symptoms being "chronologically and plausibly related" to the implantation of the pump was insufficient to meet the degree of medical probability required in a worker's compensation opinion on causation. He rejected Dr. Dexter's opinion because it relied on a history of the sudden onset of symptoms, a history which is not completely supported by the medical records. In particular, ALJ Schaeve cited portions of Dr. Dexter's September 29, 2004 office note which refers to the "possibility" of a leak being lessened by both the MRI and the fact that change of position did not control the headache, as well as Dr. Dexter's January 7, 2005 office note that stated the doctor found "no evidence of orthostatic component of his headache now to suggest CSF leak."

On appeal, the applicant notes that while ALJ Schaeve questioned his credibility, he did not actually see him testify. He argues that when the headaches persisted after the March 30, 2004 surgery to revise the catheter implantation, "it was certainly reasonable and necessary to attempt to determine if the headaches, etc., were caused by a further CSF leak, the morphine itself, or an imbalance in the cerebral spinal fluid stemming from the first leak."

2. Discussion.

In analyzing this case, the commission gave careful consideration to the issues raised by the applicant in his brief, as well as these closely-related concerns:

However, after reading the reports on which the applicant relies, the commission agrees with ALJ Schaeve's conclusion that the expenses at issue are not compensable. The commission agrees it was reasonable to investigate the possibility that the applicant's headaches and tinnitus were caused by the CSF leak, morphine side affects, or cerebrospinal fluid imbalance. However, none of the doctors, including Dr. Endres and Dr. Dexter, has actually said it is probable that any of those actually caused the headaches or tinnitus. The commission does not read the notes or opinions of either Dr. Endres or Dr. Dexter to provide a sufficient medical basis for concluding the headaches and ear ringing were caused by the applicant's back injury, or the treatment for his back injury, the need for the repair surgery on March 30, 2004 notwithstanding.

In Wisconsin, "the consequence of treatment of a work-related injury relates back to the original compensable event and the consequences of medical treatment, whether the result of negligence or not, are the liability of the employer." Jenkins v. Sabourin, 104 Wis. 2d 309, 315 (1981). Under Wis. Stat. § 102.42, medical expenses are compensable when reasonable and necessary to cure and relieve the effects of the work injury. However, where it is disputed that the condition for which surgery is performed is related to the compensable industrial injury, and the factfinder determines that the compensable industrial injury did not necessitate the surgery, treatment expenses must be denied. See City of Wauwatosa v. LIRC, 108 Wis. 2d 295, 301 (Ct. App. 1982).

In other words, if the applicant were to prove that his headaches or tinnitus were related to a CSF leak, cerebrospinal fluid imbalance, morphine side effect, or other aspect of the treatment he underwent for his back injury, the headache and tinnitus treatment expense would be compensable, even if not directly caused by the original work injury. The question remains: has the applicant proven his headaches and ear ringing are consequences of his treatment for the compensable back injury?

ALJ Schaeve correctly points out that Dr. Endres's opinion, stated in terms of chronology and plausibility, does not meet the required degree of medical probability required of expert opinions on medical causation. See Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959); Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). Dr. Endres states that "treatment of the chronic low back pain which included the drug administration system pump" was a plausible cause of the headaches and tinnitus. However, "plausible" does not mean probable (5).  Rather, it is often a word used to avoid actually saying something is more likely than not, or probable. For example, Dr. Endres used "plausible" to describe causation here, after acknowledging that "the MRI scan was interpreted as normal, fortunately, and this would seem to have ruled out he possibility of the drug administration symptom directly causing the headaches."

The reference to the chronological relationship by Dr. Endres also falls short. (6)  Dr. Endres does not opine that it was probable the headache and ear ringing was caused by the implantation of the catheter in a medical sense because of the chronological relationship. He simply points out that there was a chronological relationship between the implantation of the device and the onset of the headaches.

Dr. Dexter's opinion also does not actually say that the applicant's headaches were caused by the CSF leak. Rather, Dr. Dexter states that it was reasonable for him to order the tests he did based on that hypothesis. That, of course, is different from saying the test showed the pump, a CSF leak, cerebrospinal fluid imbalance, or the morphine itself caused the headaches. Supporting this reading of his letter is the fact that Dr. Dexter's earlier treatment notes generally refer to the possibility of CSF leak causing the headaches and tinnitus as just that, a possibility. The doctor viewed a CSF leak as a possible cause for the headaches that he was trying to eliminate, and reasonably so. But that does not establish that a CSF leak caused the applicant's ongoing headaches and tinnitus symptoms.

In his brief, the applicant argues that at least some of the tests were reasonable and necessary to treat the work injury because they might not have been done if the applicant had not had the thecal catheter implant, which clearly was done because of the work injury. Certainly, the reinsertion of the catheter, done on March 30, 2004, after the initial February 13, 2004, permanent implantation should be paid. It is obviously related to the treatment for the back injury. But that expense is not among those claimed.

In short, the record does not establish a causal relationship between the work injury, or the treatment for the work injury, and the applicant's headaches and tinnitus symptoms. Consequently, the commission cannot conclude the expenses claimed were reasonable and necessary to cure and relieve the effects of the work injury.

Consistent with the ALJ's order, the commission infers that the insurance carrier already has paid the "bills conceded" in the March 1, 2006 letter from the respondent's attorney (exhibit 4), subject to deduction for amounts written off under Darlene R. Hoefs v. Midway Hotel/Paytons Restaurant and Wausau Underwriter's Insurance Company, WC Claim No. 1999-029146 (LIRC, October 21, 2003.)

Accordingly, the applicant's February 2005 application for hearing, as it pertains to the disputed medical and associated expense, must be dismissed with prejudice. This order shall be left interlocutory under the terms of ALJ Shore's May 21, 2002 order, as affirmed by the commission, as well as with respect to the inexcusable delay and bad faith claims raised in the applicant's February 2005 application for hearing. However, as stated in the ALJ's order, the department need not schedule the inexcusable delay and bad faith claims for hearing until the applicant's attorney clarifies them. (Transcript, pages 29-31.)

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and as modified are affirmed. The February 1, 2005 application for hearing, as it pertains to the disputed claimed medical and associated expenses, is dismissed with prejudice.

Jurisdiction is retained consistent with this decision.

Dated and mailed September 27, 2007
skougda2 . wrr : 101 : 1 ND §§ 3.40  5.46  8.24  9.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility or demeanor with either ALJ Schaeve or ALJ McSweeney. ALJ Schaeve did not conduct the hearing and so did not actually observe the applicant, the only witness, testify. A conference with ALJ McSweeney is unnecessary because the applicant's credibility is not at issue in the commission's decision. Rather the commission's decision is based on the sufficiency of the reports and letter from the medical experts, none of whom testified. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998). See also Shawley v. Industrial Commission, 16 Wis. 2d 535, 541-42 (1962) (holding that where credibility of witnesses is at issue, it is a denial of due process if the administrative agency making a fact determination does not have the benefit of the findings, conclusions, and impressions of the testimony of each hearing officer who conducted any part of the hearing)."

cc:
Attorney Steve M. Jackson
Attorney Richard E. Ceman



[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Apparently, when the application was filed, the WC insurer was refusing to pay for medication refills for the pump. At this point, the insurer has conceded its liability and agreed to pay for these expenses at this point. See exhibit 4.

(2)( Back ) The commission concludes the word "eliminating" is used as an adjective rather than a gerund here, so that the doctor meant the applicant should drink caffeine drinks because they are diuretics and aid in the elimination of fluid from the body.

(3)( Back ) Iatrogenic means resulting from the activity of physicians. Dorland's Illustrated Medical Dictionary (29th ed. 2000).

(4)( Back ) Orthostatic means pertaining to or caused by standing erect. Dorland's Illustrated Medical Dictionary (29th ed. 2000).

(5)( Back ) According to Webster's Third International Dictionary, "plausible" as an adjective means:

1 obs a: worthy of being applauded b: APPLAUSIVE, PLAUDITORY: expressing approval 2: obtain approbation or favor: AGREEABLE, AFFABLE, POPULAR, SUITABLE. 3 a: superficially fair, reasonable or valuable: SPECIOUS. b of a person: apparently trustworthy or fair: superficially pleasing or persuasive. 4 a: superficially worthy of belief: CREDIBLE b: being such as may be accepted as real.

The first definition of "plausible" in Webster's Ninth New Collegiate Dictionary is "superficially fair, reasonable or valuable but often specious."

(6)( Back ) On this point, ALJ Schaeve raises the logical fallacy of post hoc, ergo propter hoc. The "foreign words and phrases" section of Webster's Ninth New Collegiate Dictionary defines that phrase as "after this, therefore on account of it (a fallacy of argument)." Of course, some care needs to be taken in the area of medical expertise, since cause-and-effect is also accepted medical principle. Thus, where a doctor says strenuous work activity probably caused a back disability in part because the activity occurred before the disability, that alone does not make the opinion invalid as post hoc, ergo propter hoc. See Scheuerman v. Land-O-Lakes, WC claim no. 1995-009716 (LIRC, March 20, 2001). Here, again, Dr. Endres at most observed the chronological connection as a basis for stating causation was plausible; he does not offer it as a basis for concluding the device implant probably caused the headaches and tinnitus.

 


uploaded 2007/10/02