RAUL HERNANDEZ, Applicant

E & B INSULATION, Employer

TRAVELERS PROPERTY CASUALTY CO OF AMERICA, 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 October 29, 2007
hernanr . wsd : 101 : 1 ND § 3.42,  § 8.24

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant claims permanent total disability from a back injury he contends he sustained from his occupational activity during his employment with the named employer, a company that installs insulation in residential and commercial buildings.

The applicant's job in general involved putting batts or sheets of insulation between wall studs. However, he also sprayed polyurethane foam into walls, and assisted in blowing foam insulation into attics by keeping the hopper filled or helped move the hose or lights. The job involved a considerable amount of climbing of ladders and scaffolding. Indeed, the applicant estimated 80 percent of the jobs involved the use of ladders or scaffolding and testified he climbed continuously. The applicant would also set up the scaffolding, which required carrying the scaffolding parts that weighed 30 to 40 pounds each. He estimated, too, that the bags of insulation weighed 30 pounds. The applicant's job also involved a kneeling, squatting and twisting to do prep work before actually installing the installation. Sometimes he had to work flat on his back in crawl spaces.

The ALJ dismissed the hearing applicant because she was not persuaded the applicant had proven that his back injury was work related. She pointed out that the applicant's doctor, Dr. Onofrio, referred to his work as "heavy construction work" in his WKC-16B, a characterization she concluded was not borne out by the record. She noted that even if one looked past the WKC-16B practitioner's report to the doctor's office notes to determine his understanding of the applicant's job duties, the problem remains. For example, in his first treatment note dated October 2, 2003, Dr. Onofrio states the applicant "works in heavy construction." In a follow-up note dated May 4, 2004, Dr. Onofrio, noting the failed surgeries and current symptoms, stated in connection with a possible return to work that "[c]ertainly, going back to his wallboard construction days seems to be unreasonable."

It is true that some of his treating doctors do describe the applicant as doing insulation work and going up and down stairs and ladders. But these doctors do not opine on causation for the applicant. Only Dr. Onofrio gives an opinion on causation, and his reference to heavy construction and wallboard construction suggests the applicant was a drywaller or sheetrock hanger, not an insulation installer.

The supreme court explained the underlying rationale for rejecting medical opinions based on an inaccurate history in Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959). In those cases, the supreme court held that opinions based on assumed facts that are not proven must be disregarded. The commission has, however, observed that the misapprehension of the facts by the doctor must be material. See, for example, Jack L. Math v. Stoughton Trailers, WC case no. 94005583 (LIRC, June 28, 1996), aff'd sub nom. Stoughton Trailers v. LIRC and Math, case no. 96CV001720 (Wis. Cir. Ct., April 30, 1997).

On appeal, the applicant argues that it is not certain what Dr. Onofrio really meant by referring to "heavy construction" and "wallboard construction." The applicant asserts that construction work is by its nature heavy, and that work as a drywaller is not really that different than work as an insulation installer. In other words, the applicant contends that Dr. Onofrio's imprecision or misunderstanding concerning the applicant's duties is not material.

However, the commission cannot agree. The applicant, as the employer and the insurer points out in their brief, has the burden of proof. In this case, the commission cannot infer that Dr. Onofrio actually knew what the applicant's duties as an insulation installer entailed, but simply characterized them generally as "heavy work." Rather, the doctor's notes suggest he believed the applicant performed a different job altogether. Because the applicant's claim is that work exposure caused his disability, finding causation based on the doctor's understanding that the applicant did "heavy construction" and "wallboard construction work" would go beyond inference. An accurate premise regarding the strenuousness of the work involved would obviously be material in an expert medical opinion on causation by occupational disease. The commission, like the ALJ, cannot credit Dr. Onofrio's opinion on this record.

Even beyond Dr. Onofrio's inaccurate characterization of the applicant's job duties, there is reason to question the relationship between the applicant's job duties and his disability. The applicant's testimony tied the increase in his hip pain to work exposure going up and down the guard tower at Camp Douglas in August 2003. However, this really not borne out in the contemporaneous treatment notes which do not associate that activity with the onset or worsening of the symptoms.

cc:
Attorney Sean W. O'Neill
Attorney Joseph Danas, Jr.

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