EDWARD LONGTINE, Applicant
S & J BUS SERVICES, Employer
ACUITY INSURANCE 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 November 29, 2007
longted . wsd : 101 : 1 ND 8.7, 8.8, 8.24
James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Facts and posture.
The applicant claims that a work injury in early August 2003 when he hit a pothole while driving a school bus has left him permanently and totally disabled. The employer and its insurer (collectively, the respondent) contend that the applicant's problems are due solely to his pre-existing condition. The ALJ credited that defense and denied the claim.
A treatment note from Nebojse Stevanovic, M.D., dated August 7, 2003, gives this history:
He is a pleasant 47-year old gentleman who is complaining of lower back pain. He was driving a bus at work and I believe on the 5th of August 2003 when he hit a pothole and since then, he is complaining of severe lower back pain. The pain increases with activity. The pain is moderate to severe in intensity. He is presently taking Vicodin. He has difficulty sleeping, and he is complaining of muscle spasms.
The doctor's assessment was lower-back pain, probably from muscle strain.
However, it does not appear the applicant treated again for lower back pain until January 13, 2004, when the applicant complained of both neck and lower back pain. On examination, Dr. Stevanovic noted tenderness in the lumbosacral area with a slightly decreased range of motion. The doctor's assessment was neck pain that is fairly intractable and lower back pain. There is no mention of the pothole accident with the school bus.
In February 2004, or about six months after the work injury, the applicant was examined by Ward Jankus, M.D., with respect to a social security disability claim. In the history he gave to the doctor at that time, the applicant mentioned chronic low back pain beginning with an accident in 1986. The applicant also told Dr. Jankus he had hip pain--which the applicant now claims as an element of his current back claim--since the mid-1990s following an Achilles tendon injury. The applicant also told Dr. Jankus an x-ray done in the late 1990s showed early degeneration in the hip. Dr. Jankus's report does not say anything about the August 2003 pothole incident.
Two treating doctors have given opinions that run contrary to the applicant's claim. One, occupational medicine specialist Scott Dresden, M.D., diagnosed degenerative disc disease at L4-5 and L5-S1 then flatly stated:
Explained to him that his MRI shows basically years [of] wear and tear consistent with his active childhood and athletic activities, incompatible with the single episode of driving over a pothole. He is not happy with this explanation. Tried to explain to him that arthritis and spondylolisthesis do not occur overnight, but that I cannot with a reasonable degree of medical certainty deem his current condition to be work related....
Exhibit 3, November 11, 2004 report of Dresden.
Another doctor, Marjorie Delo, M.D., is a sports medicine specialist who treated the applicant between February and May 2005. One of her notes states:
...it appears he has seen multiple doctors, has had evidence of some radicular symptoms, but predominant findings are that the patient does have some degenerative changes, but physically he is able to return to work. No physician could definitely say if the exacerbation of his pain was secondary to driving over the pothole while working for J&S Bus Line...
Exhibit 3, Delo note dated February 22, 2005.
Indeed, Dr. Delo herself completed a practitioner's report in which she identified the August 2003 pothole, but opined the applicant's condition was not directly caused by that. She noted that because she did not treat the applicant until two years after the event, she did not feel qualified to answer whether the pothole incident caused disability by precipitating, aggravating, and accelerating a pre-existing degenerative condition beyond normal progression, though she stated it was "possible." See exhibit 4.
The applicant submits practitioner's reports from a treating chiropractor, Bryan Gerondale, M.D., who--marking all three causation boxes on the form reports--opined the applicant's accident in which he hit the pothole and developed low back spasms, caused disability which he rated first at 10 percent, then 100 percent, for pain, low back weakness, and leg weakness. See exhibits E and F. He diagnosed lumbar strain/sprain, multiple bulging/protruding lumbar discs, and myofascial sprain.
The respondent retained as its examiner Richard K. Karr, M.D., who opined the applicant's disability is not caused by a work injury, but by the normal progression of the pre-existing degenerative conditions. In particular, Dr. Karr noted the prior treatment for the spine going back to 1999, as well as post-injury notes referring to years of back pain. He also noted the period of nontreatment following the work injury from August 2003 to January 2004.
2. Discussion
The ALJ credited Dr. Karr's opinion and denied the claim. The applicant appeals. He makes several points on appeal, including:
The respondent initially filed an answer to the application that conceded an injury arising out of employment. However, the respondent subsequently filed an amended answer on February 9, 2005 upon retaining counsel; this not only denied that an injury arose out of employment but that the pothole incident even occurred. Under the administrative code provisions governing worker's compensation procedure (Wis. Admin. Code § DWD 80.08), an amendment to an application or answer may be made by mail, so long as it is done before the date the hearing notice is mailed. Here, the hearing notice was mailed on August 29, 2006. In short, a party who makes a concession in an answer may withdraw the concession by filing an amended answer, provided it does so in accordance with the procedures set out in the administrative code.
Dr. Gerondale is, of course, a treating chiropractor. However, under the Wisconsin worker's compensation laws, there is no rule giving more weight to the opinions of treating physicians. In Conradt v. Mt. Carmel School, 197 Wis. 2d 60 (Ct. App., 1995), the appeals court specifically rejected a presumption in favor of treating doctors under Wisconsin worker's compensation law. Even if there were a rule favoring the opinions of treating doctors, two treating doctors, Dresden and Delo, offered opinions contrary to Dr. Gerondale.
Dr. Dresden, again, flatly disputes work causation. Dr. Delo declined to mark the causation question "yes," instead writing that it is "possible" that work caused the injury. However, expert medical opinions must be stated to a reasonable degree of medical probability, not possibility.(1) Further, while the applicant points out that both Drs. Delo and Dresden only began treating the applicant months after the work injury, the same is essentially true of Dr. Gerondale. While he did treat the applicant some years before the injury, it appears his treatment did not resume until some point in 2004, months after the August 2003 injury.
Turning to the applicant's remaining points, the fact the applicant may have notified the employer of the pothole incident after August 7, 2005 does not mean that such an incident resulted in a back injury or caused disability. Further, ALJ Martin is an experienced administrative law judge who has held many hearings over the past years. The commission does not doubt that ALJ Martin understands that an "IME" is an employer-retained examiner; certainly the commission understands that Dr. Karr was retained by the respondent and, after conducting its de novo review, it too credits his opinion.
The commission conferred with ALJ Martin concerning witness credibility. He explained that he found the applicant sincere, but concluded that his testimony could not sustain his case in light of the medical record. The commission agrees. Like ALJ Martin, the commission must conclude the applicant did not meet his burden of proving his case beyond a legitimate doubt.
Finally, the transcript of the hearing ends with ALJ Martin taking the case off the record rather than formally stating the record was closed. When the commission mentioned this point during the credibility conference, the ALJ stated that he believed the parties had no more questions or witnesses after he went off the record and the hearing effectively ended at that point. Indeed, on appeal, neither party contends the ALJ ended the hearing prematurely. According, the commission concludes that the record was closed when the ALJ went off the record on October 19, 2006.
cc:
Attorney Vincent J. Guerrero
Appealed to Circuit Court. Affirmed August 13, 2008. Appealed to the Court of Appeals. Affirmed June 7, 2010.
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