ROBERT J CHAUSE, Applicant

LINDENGROVE INC, Employer

UNITED WISCONSIN, Insurer

The applicant filed an application for hearing in October 2005 seeking compensation related to a right hip injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on November 1, 2006. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $612 in 2004. At issue was whether the applicant sustained an injury which arose out of his employment with the employer while performing services growing out of and incidental to that employment, the nature and extent of disability from any such injury, and the respondent's liability for medical expenses.

On February 16, 2006, the ALJ issued his findings and order dismissing the application. The applicant filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, discussed witness credibility and demeanor with the presiding ALJ, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

1. Facts.

The applicant was born in 1941. He began working for the employer in September 1996. During the entire course of his employment, he has worked as a maintenance assistant at a nursing home operated by the employer.

The applicant's duties, set out in detail at exhibit A, were typical for a maintenance worker or janitor at a large facility like a nursing home. He repaired furnishings and equipment, and did carpentry, plumbing, minor electrical, painting. He did garbage removal, snow removal, and maintain the grounds. He cleaned, including shampooing carpets and stripping and waxing floors. He unloaded some incoming freight orders.

One of the particularly heavy aspects of the applicant's job involved the maintenance of circulating pumps, which required work on motors weighing 500 or 600 pounds. He also worked on air condition/heating fans in resident's rooms which required working in cramped spaces. About once a week, the applicant would empty a resident's room to paint it.

The work unloading freight involved mostly cleaning and laundry supplies, as well as soap, paper towels and toilet paper. He estimated these items weighed 20 to 40 pounds, and he unloaded and stored two or three pallets of these products once a week during his employment.

The applicant estimated disposing of 40 or so bags of garbage a day--these weighed 10 to 30 pounds and he moved them from the nursing home to a dumpster by cart, then threw them into the dumpster. He operated a large, self-propelled, carpet cleaner every day. He stripped and rewaxed floors once a week for the first 8 years of his employment, but did relatively less of that after more carpeting was put in.

The applicant also worked in the laundry at least once every other week, and sometimes more if needed. The laundry included towels, sheets, adult diapers and incontinent pads. The laundry bags were five feet tall. The laundry bags weighed 40 to 45 pounds on average, but some weighed more, up to 75 pounds. The applicant would move a cart with perhaps 30 or 35 bags on it from a chute by cart about 100 feet to the washers. The applicant would weigh the individual bags so he did not overload washers, then put the laundry in the wash machine.

A coworker, Mickoleen Cormann, agreed with the applicant's testimony concerning the size and weight of the laundry bags used by the employer at the time of the applicant's injury. She added that the employer began using smaller bags after the date of injury. Transcript, page 70.

There is one medical record documenting hip pain before the July 25, 2004 date of injury alleged in this case. Specifically, exhibit 6 contains a November 4, 1998 note from a rheumatologist, Daniel J. McCarthy, M.D., who apparently examined the applicant because of swelling of the ankles, knees and elbow. After mentioning some other medical conditions, Dr. McCarthy states:

There is absolutely no joint involvement at this time although his hips are both stiff, raising the questions of AVN.(1) He can squat without difficulty and has not crepitus, so I doubt whether this is a problem....

Turning to the date of injury here, on July 25, 2004, the applicant's duties included moving a laundry bag from the cart at the bottom of the chute to another cart to take to the washers. As he was making a twisting motion, he said, he felt a snap in his hip as if he had been stabbed with a knife. He worked the day out, but in considerable pain.

The applicant saw his family doctor, Dr. Cary Kuhl, D.O., on July 28, 2004. Exhibit 6. He told the doctor he had pain in the right groin, after injuring himself lifting laundry bags at work. Dr. Kuhl's assessment was an acute right inguinal strain. He maintained that diagnosis upon reexamination. When the applicant continued to have pain in mid-September, Dr. Kuhl ordered an x-ray which showed arthritis.

This led to consultation with Scott Stanwyck, M.D., on September 14, 2004, who noted a chief complaint of right hip pain after lifting laundry bags at work in July, when he twisted and had sudden right hip pain and groin pain. The applicant complained of pain when he moved, and decreased range of motion in his right hip. Dr. Stanwyck also reported the applicant's right hip and pelvis x-ray.

Degenerative arthritis with significant medial joint space loss and mild to moderate superior space loss, with osteophyte formation over the femoral head.

Noting a limited range of motion on examination, the doctor diagnosed degenerative arthritis in the left hip. The doctor had recommended a total hip replacement, though he thought a cortisone injection might provide temporary relief.

The applicant evidently never had the cortisone shot. Instead, he saw William Davies, M.D, on September 29, 2004. He gives this history:

[The applicant] is a pleasant 62-year old gentleman who has been seen in the past for degeneration of his right hip. His [primary care physician] is Dr. Gary Kuhl. He has also been seen in the past by Dr. Stanwyck. He states that he has been having pain in the hip over the years, but it has become more significant in July when he twisted while lifting laundry bags. X-rays were obtained which revealed degenerative hip arthrosis.

The applicant told the doctor he had been having a lot of disability and pain, and asked about a joint replacement. After discussing the matter with the doctor, he decided to have a total hip replacement.

Dr. Davies in fact performed the surgery--a right hip total arthropalasty--on October 20, 2004. The applicant's recovery seems to have been relatively uneventful, with the applicant telling the doctor his groin pain had completely resolved, but he still had thigh pain, which the doctor associated with trochanteric bursitis. See exhibit A, note for February 11, 2005.

Dr. Davies released the applicant to sedentary work in December 2004, and to regular duty as of January 3, 2005. The applicant has returned to work without restrictions, and is able to do his work.

The main issue here is causation. Both parties submit expert opinion on this question.

Dr. Davies wrote a practitioner's report on form WKC-16-B dated September 11, 2006 (exhibit A), which lists the July 25, 2004 date of traumatic event. The report describes the accidental event or work exposure to which the applicant attributed his condition as set out in the doctor's September 29, 2004 note--that the applicant had had hip pain over the years but it became more significant when he twisted while lifting laundry bags.

In his practitioner's report, Dr. Davies diagnosed degenerative arthritis in the right hip for which the total hip replacement was done. He opined that the work event--this would be twisting while lifting laundry bags on July 25, 2004--caused his disability by precipitating, aggravating and accelerating beyond normal progression the applicant's pre-existing degenerative condition. Dr. Davies also specifically marked the "no" box for the direct causation and occupational disease causation questions on the form report.

Dr. Davies also reported the applicant could do seated work (no lifting, bending or stooping), four hours a day as of December 17, 2004. He reported the applicant could return to work with no restrictions as of January 3, 2005. The doctor rated permanent partial disability at 40 percent compared to loss of the leg at the hip, which is the minimum under the administrative code for a total hip replacement. Wisconsin Admin. Code § DWD 80.32(3).

Also attached to the practitioner's report is a March 25, 2005 narrative report from Dr. Davies which states:

I have been treating [the applicant] for degenerative joint disease of his right hip since 2004. It is my opinion that his occupation as a maintenance assistant aggravated and accelerated his right hip arthritis which required total hip replacement in October of 2004.

For its part, the respondent relies on the report of John S. Xenos, M.D., who examined the applicant on November 23, 2004. His reported that:

[o]n July 25, 2004, [the applicant] developed right hip pain while lifting and doing laundry. He denied any specific injury but attributed this right hip pain to the twisting motion and significant weight he was lifting at the time, which was approximately 40 pounds.

Dr. Xenos' impression was that the applicant had a significant preexisting condition of right hip degenerative joint disease, a degenerative process involving articular cartilage of the hip joint. While he thought the applicant's treatment to date had been reasonable, he felt the applicant's symptoms on July 24, 2004 were simply the manifestation of his pre-existing degenerative condition. He did not think any work injury occurred. He stated, too, that the degenerative joint disease took years to develop and could not be attributed to the work incident or onset of symptoms on July 25, 2004.

After reading some additional treatment notes, Dr. Xenos' opinion was unchanged when he wrote a supplemental opinion on October 16, 2006.

The respondent also submits a report from Richard K. Karr, M.D., who did a records review. Dr. Karr also felt the applicant's right hip degenerative osteoarthritis was solely due to the normal progression of degenerative factors, not a work injury. He stated this was consistent with the very first note from treating surgeon Davies indicating the applicant had been having pain in the hip over the years before the pain got worse on July 25, 2004. His report does not specifically identify the weight of the laundry bags the applicant was lifting when injured, but he does refer to Dr. Xenos' report which describes the bags as weighing 40 pounds.

The respondent also offers an opinion from an ergonomist, Laura Hintz, an injury consultant. Ms. Hintz is a certified ergonomist who holds a Bachelor of Science degree in occupational therapy and an Master of Science degree in industrial-engineering-human factors. Based on her belief that the laundry bags weighed 12 to 16 pounds, she opined that the laundry tasks the applicant performed would
cause only a minimal risk for total hip replacement. On this point, Ms. Hintz noted:

The [National Institute of Occupational Safety and Health, Lifting Guide, 1991] was used to determine the risk of lifting. It calculates a 13 lbs. recommended weight limit (RWL) for the above described lift. Once again the bags are 12-16 lbs.; therefore the bags are within the RWL. [Italics in original.]

2. Discussion.

The court of appeals has recently explained that:

Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." [Citations omitted.]

Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, ¶ 10, 288 Wis. 2d 206. The commission appreciates that one might read Dr. Davies' opinions as not entirely clear on whether the applicant hurt himself in an accidental event lifting and twisting with a specific bag on July 25, 2004 that precipitated, aggravated, and accelerated beyond normal progression a pre-existing degenerative condition, or whether his injury was caused by occupational disease, that is, an appreciable period of workplace exposure to such activities over time which were a material contributory causative factor in the disabling condition or progression.

However, the applicant points out that the court of appeals also stated in Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App. 1982):

As Professor Larson notes, however, "This contrast between accident and occupational disease is gradually losing its importance, and awards are frequently made without specifying which category the injury falls in." 1B A. Larson, The Law of Workmen's Compensation § 41.31, at 7-357 (J. Duke ed. 1980).

Indeed, the court in Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59 (1968) provides that even absent breakage, if work activity precipitates, aggravates, and accelerates the pre-existing condition beyond normal progression, the injury is compensable. In other words, the applicant's injury would remain compensable if it was caused by lifting and twisting with a single bag on July 25, 2004, or more generally by the work activity of lifting or twisting with laundry bags generally that day.

Dr. Davies' practitioner's report attributes the applicant's work injury to lifting laundry bags on July 25, 2004 and states that this activity precipitated, aggravated, and accelerated the pre-existing degenerative condition beyond normal progression. While it might be argued that in a legal sense it would have been more accurate to have marked the occupational disease box affirmatively,(2) Dr. Davies' practitioner's report does refer to the work activity of twisting while lifting laundry bags.

In contradiction to Dr. Davies's opinion, of course, Drs. Karr and Xenos both indicate that absent a traumatic injury, just lifting bags of laundry will neither aggravate the underlying arthritic condition beyond its normal progression, nor serve as a material contributory causative factor in the arthritic condition's progression. In other words, Drs. Xenos and Karr believe the applicant merely began experiencing symptoms from his pre-existing degenerative arthrosis in his hip while at work, but did not actually injure his hip at work.

However, the commission finds Dr. Davies' opinion more credible. The applicant's job was fairly physically demanding, at least for a fellow in his 60s with an arthritic hip. Despite his arthritic condition, there was apparently only a single occasion of medical treatment for the hip before the date of injury. The applicant told Dr. Kuhl his hips had been bothering him, but it is clear that his right hip got much worse in July 2004. Further, Dr. Xenos and apparently Dr. Karr base their opinions on work with 40-pound laundry bags (if not the much lighter weights described by Ms. Hintz (3) ). However, the applicant's testimony that the weight of the bags he worked with in the laundry in 2004 went uncontradicted and some of the bags of laundry--and the work generally--were considerably heavier than Drs. Xenos and Karr understood.

The commission is persuaded that the applicant's work activity on July 25, 2004 precipitated, aggravated, and accelerated the applicant's pre-existing progressively deteriorating or degenerative condition beyond its normal progression. He has thus established that his hip injury arose out of his employment with the employer, while performing service growing out of and incidental to that employment.

3. Award.

The applicant is entitled to compensation for temporary total disability for the period claimed, from October 19, 2004 (the day preceding surgery) to January 3, 2005 (when he was released by Dr. Davies), a period of 10 weeks and 5 days. At the weekly rate of $408 (two-thirds the conceded wage of $612), the total in temporary disability compensation is $4,420. However, during his period of temporary disability, the applicant received $7,224 in gross sick pay benefits, and has evidently agreed (4) to the partial reimbursement of that amount by application of his award for temporary disability compensation, subject to the crediting of sick leave under Wis. Stat. § 102.30(3).

Based on the disability estimate given by Dr. Davies, the applicant is also entitled to permanent partial disability at 40 percent compared to loss of the leg at the hip, the minimum disability rating for a total hip arthroplasty under Wis. Admin. Code § DWD 80.32(3). This amounts to 200 weeks of permanent partial disability compensation at the weekly rate of $232 (the statutory maximum for injuries in 2004), or $46,400, accruing as of January 3, 2005. As of November 7, 2007, 160 weeks and 5 days (160.8333 weeks) amounting to $37,313.33 has accrued (5); 39 weeks and 1 day (39.1667) amounting to $9,086.67 remains unaccrued.

The applicant approved an attorney fee set under Wis. Stat. § 102.26, at 20 percent of the additional amount awarded to the applicant. The future value of the fee equals $9,280 (0.20 times $46,400). However, the fee is subject to deduction for an interest credit of $48.24 to reflect the advance payment of fee attributed to unaccrued permanent disability as of November 7, 2007. The present value fee of $9,231.76 shall be paid the applicant's attorney within 30 days.

The amount due the applicant within 30 days for accrued disability compensation to November 7, 2007, is Twenty-nine thousand, eight hundred fifty dollars and sixty-seven cents ($29,850.67), which equals the accrued award Thirty-seven thousand, three hundred thirteen dollars and thirty-three cents ($37,313.33), less the fee thereon Seven thousand four hundred sixty-two dollars and sixty-seven cents ($7,462.67). The amount remaining to be paid to the applicant as it accrues after November 7, 2007, is Seven thousand two hundred sixty-nine dollars and thirty-three cents ($7,269.33), which equals the unaccrued portion of the award Nine thousand eighty-six dollars and sixty-seven cents ($9,086.67), less the future value of fee One thousand eight hundred seventeen dollars and thirty-three cents ($1,817.33) thereon. That amount shall be paid to the applicant in monthly installments of One thousand five dollars and thirty-three cents ($1,005.33) per month, beginning on December 7, 2007.

In addition, the applicant has incurred reasonable and necessary medical expenses to cure and relieve the effect of the work injury, documented in exhibit B as follows: $13,455.00 from William A. Davies, M.D., of which $4,516.82 was paid by Humana Insurance, $5,304.00 remains outstanding, and the remainder was evidently deducted from the bill; $1,009.00 from Gary L. Kuhl, D.O., of which the applicant paid $45.00 out of pocket, Humana Insurance paid $716.39, and $247.61 remains outstanding; $23,938.37 from Waukesha Memorial Hospital, of which the applicant paid $50.00 out of pocket, Humana Insurance paid $17,190.00, and the remainder was evidently deducted from the bill; $290.50 from Walgreens, all of which was paid by Humana Insurance; and $43.00 from Infowerks, of which the applicant paid $30.00 out of pocket and Humana Insurance paid $13.00.

The applicant testified he had a good result from the surgery, and Dr. Davies opined the applicant's condition is stable though he expects occasional follow-up visits. Nonetheless, the applicant has undergone extensive treatment, including surgical treatment, for his work injury. Pursuant to Wis. Stat. § 102.18(1)(b), this order shall be left interlocutory to permit further findings and awards for additional disability compensation and medical expenses as might arise in the future.

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

The findings and order of the administrative law judge are reversed. Within 30 days from the date of his order, the employer and its insurer shall pay all of the following:

1. To the applicant, Robert J. Chause, the sum of Twenty-nine thousand eight hundred fifty dollars and sixty-seven cents ($29,850.67) in permanent disability compensation and One hundred twenty-five dollars ($125.00) in out of pocket medical expense.
2. To the applicant's attorney, Hans A. Buehler, Nine thousand two hundred thirty-one dollars and seventy-eight cents ($9,231.78) in disability compensation.
3. To William A. Davies, M.D., Five thousand three hundred and four dollars ($5,304.00) in medical treatment expenses.
4. To Gary L. Kuhl, D.O., Two hundred forty-seven dollars and sixty-one cents ($247.61 in medical treatment expenses.
5. To Humana Insurance, Twenty-two thousand seven hundred twenty-six dollars and seventy-one cents ($22,726.71) in reimbursement of medical expenses.
6. To Lindengrove Inc., Four thousand two hundred and forty dollars ($4,240.00) in reimbursement of sick pay, subject to Wis. Stat. § 102.30(3).

Beginning on December 7, 2007, and continuing on the seventh day of each month thereafter, the employer and its insurer shall pay the applicant One thousand five dollars and thirty-three cents ($1,005.33) per month, until the additional amount of Seven thousand two hundred sixty-nine dollars and thirty-three ($7,269.33) has been paid.

Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.

Dated and mailed November 6, 2007
chausro . wrr : 101 : 1 ND §§ 3.3, 3.4, 8.24, 8.32, 9.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission conferred with the applicant concerning witness credibility and demeanor. See Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). During the conference, the ALJ reiterated his belief, as stated in his findings; the applicant's job duties did not include the sort of heavy or repetitive activities which likely cause a "wear and tear" or occupational injury. On this point, the ALJ stated that he believed the respondent's witness contradicted the applicant's testimony about the weight of the laundry bags the applicant was lifting on the date of injury. However, for the reasons explained above, the commission found the testimony of the applicant and Ms. Cormann more credible than that of respondent's witness Hintz on this point. Otherwise, the commission's decision to reverse the ALJ's decision turned largely on the reports of the medical experts, none of whom testified before the ALJ. Hermax Carpet Marts. v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).

The ALJ issued his decision on February 16, 2004, which was 107 days after the date of hearing on November 1, 2006. The applicant asserts the ALJ's order is void, pointing to 102.18(1)(b), which provides that "[w]ithin 90 days after the final hearing, the department shall make and file its findings ...". However, the commission has previously interpreted this provision as directory rather than mandatory and thus has declined to take any action based on an ALJ's failure to meet the 90-day deadline. Day v. Mills Fleet Farm, WC claim no. 1994024731(LIRC, June 19, 1999); Marc Tutlewski v. Big Buck Building Supply, WC claim no. 95027768 (LIRC, March 12, 1998) and cases cited therein. The commission's interpretation, which is consistent with the department's interpretative footnote appended to the statute, has been upheld on judicial review. Fish v. LIRC, case no. 94-2831-FT (Wis. Ct. App., February 9, 1995); Big Buck Building Centers v. LIRC, case no. 98-CV-002542 (Wis. Cir. Ct. Milwaukee County, February 5, 1999).

cc:
Attorney Hans A. Buehler
Attorney Roland C. Cafaro

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(1)( Back ) The commission infers "AVN" refers to avascular necrosis

(2)( Back ) The commission generally rejects the "wrong box" theory. Gray v. Master Lock, WC Claim No. 94024018 (LIRC, April 30, 1996) and generally elevates the substance of narrative explanations given by doctors over marked box in the form report. Neitzel v. Northcott Hospitality International, WC claim no. 2003-039230 (LIRC, July 31, 2007).

(3)( Back ) Ms. Hintz opined that the laundry tasks would cause only a minimal risk for total hip replacement. However, Ms. Hintz is not one of the medical practitioners whose written report would be admissible as evidence of the diagnosis and cause of disability under Wis. Stat. § 102.17(1)(d), raising some question as to her competence to give that opinion. Further, her report was based on the assumption the bags only weighed 12 to 16 pounds which is within NIOSH's "maximum safe lift," but which is far less than the 40 to 75 pound weights testified to by the applicant (who in fact weighed the bags as part of the laundry duties). Indeed, the respondent stipulated the bags Ms. Hintz saw in her walk-through of the employer premises in 2006 were different than those used by the employer in 2004 when the applicant was injured. Transcript, page 83. She referred to tasks as "sorting laundry bags" and admitted she did not actually enter the laundry room where the injury occurred, or observe the 5-foot tall laundry bags that the applicant and Ms. Cormann testified about, nor did she see the incontinence pads and cloth diapers that the applicant testified were in the bags. Transcript, page 85-86. She also testified she did not actually see the 3-page job description when she wrote her report (and not until the date of hearing.) See transcript, pages 84, 98-99. Apart from the question of competence, then, Ms. Hintz acknowledged some question as to the validity of her own opinion on this issue. See transcript, pages 98 et seq.

(4)( Back ) The applicant did not object to the colloquy between the respondent's attorney and the ALJ concerning this repayment. Transcript, pages 5 and 6.

(5)( Back ) Consistent with its understanding of the department's practice, the weeks of accrued PPD include "gap" weeks between the date of injury and the date of surgery when the applicant was working and no temporary disability was paid. See Wis. Stat. § 102.32(6)(e).  

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