JACK L. MATH, Applicant
STOUGHTON TRAILERS, INC., Employer
STOUGHTON TRAILERS, INC., Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 June 28, 1996
mathja . wsd : 101 : 0 ND § 3.42, § 8.24
Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ David B. Falstad, Commissioner
The ALJ based her award on the expert medical opinion of the applicant's treating doctor, John R. Whiffen, M.D. Dr. Whiffen opined that heavy lifting at work before the date of injury caused a permanent change to the applicant's underlying spondylolysis condition, making that condition symptomatic on the date of injury and causing the need for surgery. Specifically, the doctor opined that an appreciable period of work exposure was at least a material contributory factor to the progression of his disabling spondylolytic condition, and that work activity aggravated, accelerated and precipitated a pre-existing degenerative condition beyond its normal progression.
In crediting Dr. Whiffen's opinion, the ALJ noted that the independent medical examiner, Anoo P. Patel, M.D., agreed that the applicant had done very heavy work for the employer in the past. However, the ALJ noted that Dr. Patel did not address the issue of whether the applicant's prior heavy work had some causal effect on the pre-existing condition to which he related the applicant's sudden manifestation of symptoms while doing light work on January 3, 1994.
The employer appeals, asking for reversal of the ALJ's decision and dismissal of the application. In summary, the employer challenges the ALJ's decision because the applicant provided only the expert opinion of Dr. Whiffen rather than earlier treating doctors, because Dr. Whiffen's report is based on an inaccurate history, and because the timing of the accident (after an hour of light work after a return from Christmas vacation) was suspicious.
a. No reports from initial treating doctors.
The commission cannot discredit Dr. Whiffen's opinion because the applicant did not get opinions from the doctors he initially saw following his injury. In this case, the initial treating doctor referred the applicant to his family doctor, who referred the applicant to Dr. Whiffen. These were all referrals within the same clinic in what appears to be normal health maintenance organization operating procedure. The applicant offered the treatment notes from all these doctors. In addition, it was only after the referral to Dr. Whiffen in March 1994 that any serious effort was undertaken to diagnose the applicant's problem as something other than a strain that would hopefully resolve.
The commission has considered the employer's citation to Applebeck v. DILHR and Johnson Service Company, court of appeals case no. 77-848, district IV unpublished decision (April 27, 1979). However, that case does not stand for the proposition that an applicant's failure to get an opinion from the initial treating doctor automatically renders the opinion of a subsequent treating doctor incredible. The facts in Applebeck raised the suspicion of doctor-shopping. However, the referrals in this case do not support such an inference, but rather indicate good faith attempts to deal with a continuing medical problem.
b. Suspicious timing.
Nor does the employer's allegation of "suspicious timing," justify a reversal. It is conceivable that the applicant may have suffered a traumatic off-duty injury during the Christmas shutdown, then reported to work and fraudulently reported a work injury. However, the only evidence of this is that the injury occurred early in the first shift back from Christmas vacation; that the applicant seems to now remember the accident happening later in the work day than it did (near 7 a.m. as opposed to 6:15 a.m.); and that he had done significant heavy work without back pain before.
On the other hand, there is no medical record to establish an off-duty injury (a November 1993 car accident caused neck pain), and no admission or observation of an earlier injury. Nor does the applicant's medical opinion on causation, heavy work caused the scar at the spondylolytic defect to become symptomatic, really depend that much on a single traumatic injury. Nor does the opinion of the independent medical examiner, that the applicant's pre-existing condition simply became symptomatic at work on January 3, 1994, rest on some traumatic injury that may have occurred off-duty. Finally, the ALJ, who observed the applicant as he testified, found him credible about when the onset of pain occurred.
c. Inaccurate history.
The commission has also considered the argument that Dr. Whiffen's report is based on an inaccurate history. First, the commission must note that the applicant never gave his doctors the inaccurate impression that he hurt himself on January 3, 1994 doing his normal, heavy floorboard work. In fact, just the opposite is true.
Dr. Day's note for January 12, 1994 notes an injury while lifting "modest objects." The "prescreen report" of his physical therapist notes that the applicant "finds it odd that he was out of his normal area and actually lifting lighter loads than usual when injured." He told the independent medical examiner that he was injured while lifting two three-pound posts (admittedly he testified it was four posts, but the employer's witnesses substantiate the higher number.) As best as the commission can tell from the medical records, the applicant never suggested his January 1994 injury occurred while he was doing the floorboard work.
The next basis for an inaccurate history is the applicant's testimony on cross-examination about lifting 300 pounds. The applicant testified he did in fact tilt up a 300 pound siding to insert a spacer. The only other time the medical records mentioned lifting 300 pounds, as best as the commission can tell, is in the July 1995 "prescreen report" which states "the maximum reported lift is 300 to 400 pounds, with the average being 75 to 100 pounds." Exhibit I.
In any event, Dr. Whiffen did not base his expert medical opinion on the assumption the applicant lifted 300 pounds. Such a lift is not mentioned in his treatment notes. In his October 5, 1995 letter, Dr. Whiffen refers only to heavy lifting making the applicant's pre-existing condition symptomatic by increasing the scar around his spondylolysis. Exhibit C. In his response to Attorney Stafford's letter of October 13, 1995, the doctor based his opinion on a history of lifting in excess of 100 pounds. Exhibit B.
The last possibility for an inaccurate history is that the applicant's normal duties involving the 45-foot long planks that the employer admitted weighed 100 pounds did not constitute "lifting." A videotape, Exhibit 7, shows two workers installing the floorboards. At times the workers just slid, kicked or flipped the planks, while at other times they lifted the planks. A single worker is never shown lifting a plank all the way off the ground, and the applicant testified he never did a clean lift of a floorboard. On the other hand, the fact remains the applicant lifted the floorboards, and that he at times laid the boards by himself. Given that the employer's own independent medical examiner described the floorboard work as heavy, the commission is not persuaded that Dr. Whiffen's report is flawed by a material inaccuracy.
d. Other concerns.
During its review, the commission also considered the ALJ's finding that the applicant sustained both traumatic and occupational disease injuries. Certainly, the applicant's testimony may be viewed to support these findings, although Dr. Whiffen's report deals primarily with occupational disease from months of heavy lifting. Further, whether a traumatic injury occurred on January 3, 1994 or the applicant simply first lost work due to disability from on occupational disease on that date, January 3, 1994 remains the date of injury.
The commission also notes Dr. Whiffen opined that the applicant's months of heavy work increased the scar in the region of a pre-existing spondylolytic defect causing it to be symptomatic. Given that diagnosis, four months of heavy work would be "an appreciable period of work place exposure" sufficient to be at least a material contributory causative factor in the spondylolytic condition's progression to the point of disability. Shelby, supra, and Universal Foundry Co. v. DILHR, 82 Wis. 2d 479, 487 note 5 (1978). (1) Or the heavy work could reasonably be viewed as work activity which aggravated, accelerated and precipitated a pre-existing degenerative disease beyond normal progression under Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). (2) Regardless of which (if not all) of the legal theories of causation apply in this case, the fact is the applicant has established he sustained disability from an injury compensable under the worker's compensation laws.
cc:
James E Hammis
General Counsel and Secretary
Stoughton Trailers Inc
Attorney Margaret Stafford
Stafford & Neal SC
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