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

VICTORIA RUBENS, Applicant

AURORA MEDICAL CTR, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-043288


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 20, 2007. Aurora Medical Center and Sentry Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained a low back injury arising out of and in the course of her employment with the employer on or about September 9, 2005, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is February 13, 1955, began her employment as a housekeeper for Aurora Medical Center in 2001. After six months she became a "Housekeeper II," which involved heavier work. During the year leading up to her claimed injury date of September 9, 2005, she became the lead housekeeper, which was primarily a supervisory position. However, the position did include some actual housekeeping work, which the applicant was performing on September 9, 2005, due to a shortage of workers and the fact that a large number of patient discharges took place on that day. When a patient was discharged his/her room required complete cleaning.

The applicant and her coworkers were extremely busy that day and the work required a lot of stooping, bending, and reaching. By the end of the day she was experiencing "very bad back pain," and verbally reported this to her supervisor. This was a Friday and the applicant did not work again until the following Monday, but her low back pain worsened over the weekend. By Tuesday, September 13, 2005, she was in so much pain she went to the employer's nurse, and was referred to one of the employer's osteopaths, Dr. Pierce M. Sherrill. Dr. Sherrill took a history of the low back pain starting at work on September 9, 2005, and getting worse over the weekend, instead of resolving as it had after previous work episodes. Dr. Sherrill released the applicant to limited duty and she returned to work on that basis, but her low back problem continued. On September 22, 2005, Dr. Sherrill wrote to the insurance carrier:

"Ms. Rubens clearly had these problems as a preexisting condition. I believe that her work exposure of 9/9/05 caused a flare-up of back pain, which may have accelerated the condition beyond its usual progression. I believe that her anatomic findings were present prior to the date of the injury."

A lumbar MRI performed on October 25, 2005, was read as showing mild to moderate spondylosis at L1 through L5, and a Grade I or II spondylolisthesis secondary to bilateral spondylosis at L5-S1. After receiving conservative care including lumbar injections, the applicant was referred to a neurosurgeon, Dr. Mark Gardon.

Dr. Gardon first saw the applicant on December 16, 2005, and he took a history of severe low back pain onset while the applicant was "doing her job" on September 9, 2005. Dr. Gardon opined:

"I am also of the opinion that during her work she exacerbated her symptomatology and most likely had a rotation and disc herniation causing compression on the respective nerves that 'put her over the edge.'"

On January 3, 2006, Dr. Gardon performed a two-level laminectomy, foraminotomy, and fusion from L4 through S1. He discovered a disc protrusion impinging on the right L5 nerve root, and excised the protrusion. The applicant did not have a good result from the surgery and continues to have severe pain and restrictions. She attempted to return to limited work for the employer but was unable to continue, and the employer discharged her effective November 1, 2006. Dr. Gardon completed a WKC-16-B on August 8, 2006, in which he opined that the work event of September 9, 2005, had precipitated, aggravated, and accelerated the applicant's preexisting low back condition beyond normal progression. Dr. Sherrill completed a WKC-16-B on May 11, 2006, in which he also found work causation, but indicated it was too early to assess permanency.

On June 21, 2006, Dr. Gardon referred the applicant to a rehabilitation specialist, Dr. Danzhu Guo, who prescribed pain medication and occupational therapy. Dr. Guo gave restrictions of no frequent lifting over 10 lbs., and no frequent bending, twisting, or heavy pushing/pulling. Dr. Guo completed two WKC-16-B's, both assessing 20 percent permanent partial disability, and alternately indicating the direct work causation and occupational disease causation.

At respondents' request, Dr. James Gmeiner examined the applicant on February 27, 2006, and submitted a report dated March 8, 2006. Dr. Gmeiner opined that the applicant's "mechanical complaints" at the end of her workday on September 9, 2005, were due to the natural manifestation of her preexisting degenerative disc disease and L5-S1 spondylolisthesis.

Also at respondents' request, Dr. Richard Karr reviewed the applicant's medical records and submitted a report dated May 9, 2007. He also attributed the applicant's entire low back condition to preexisting degenerative changes and spondylolisthesis that flared up on September 9, 2005, without causative effect from the work.

The applicant performed her work for almost four years for the employer without medical treatment for any low back problem. In fact, there is no record of medical treatment for a low back problem prior to the onset of low back pain at work on September 9, 2005. It is clear that the applicant had preexisting spondylosis and spondylolisthesis, but these conditions had not been disabling until the onset of pain that occurred after her strenuous work activities on September 9, 2005, leading to medical treatment on September 13, 2005. The administrative law judge accepted Dr. Gmeiner's and Dr. Karr's opinions, to the effect that this onset of disability was merely a natural manifestation of the applicant's preexisting low back condition, without causal relation to her work activities. The administrative law judge cited the fact that the applicant had done this sort of housekeeping work without a problem on numerous occasions in the past, and the fact that her January 2006 surgery had not relieved her low back symptoms.

However, the administrative law judge also acknowledged that the applicant's credibility was not an issue, and that she did experience an onset of low back pain at work on September 9, 2005, that rapidly worsened. The fact that the applicant had been able to recover from previous temporary aggravations of her preexisting low back condition does not mean that her strenuous work activities on September 9, 2005, did not precipitate, aggravate, and accelerate her preexisting condition beyond normal progression. In accordance with the medical opinions of Dr. Gardon, Dr. Sherrill, and Dr. Guo, the commission finds that this is precisely what occurred. The assertion that the strenuous work activities the applicant performed on that date played no causative role in her L5-S1 disc protrusion, and that it was purely coincidental that she was performing this work when the onset of a debilitating and permanent back condition occurred, is not credible. The applicant's low back condition was dramatically and permanently altered as a result of her work activities on September 9, 2005. Additionally, the fact that the January 2006 surgery did not relieve the applicant's low back symptoms speaks to the medical efficacy of the surgery, not to the cause of that surgery.

Dr. Guo credibly assessed permanent physical restrictions of avoiding frequent lifting over 10 lbs., as well as avoiding frequent bending, twisting, or heavy pushing/pulling. The applicant credibly testified that she needs to lie down after being on her feet for two hours. She quit high school in the tenth grade to begin working as a housekeeper in her family's motel. Subsequently, she worked briefly for a canning company, and then for approximately 12 years on the assembly line for a soft drink company. She then worked for about 14 years on the assembly line for a cheese company, before returning to housekeeping work for the employer. As previously noted, as of November 1, 2006, the employer was unable to accommodate her physical restrictions. The applicant was 50 years old on that date, placing her in an older worker category. The applicant's vocational expert, John Birder, credibly opined that considering all these facts the applicant is in the "odd lot" category, and is permanently and totally disabled. A prima facie case for permanent total disability was therefore established.

Respondents' vocational expert, Cynthia Engebose, merely listed general categories of employment that she believed the applicant could perform under Dr. Guo's restrictions,(1) but no showing was made of an actual job that the applicant could
do.(2)  Accordingly, there was no successful rebuttal of the prima facie case, and the applicant is found to be permanently and totally disabled as of February 28, 2007, when Dr. Guo assessed her permanent physical restrictions. For the period between November 1, 2006 and February 28, 2007, the applicant was receiving treatment from Dr. Guo and was in a healing period, resulting in eligibility for temporary total disability during that period. Based on Dr. Sherrill's, Dr. Gardon's, and Dr. Guo's treatment records, it is further found that the applicant was eligible for temporary disability for any period between September 13, 2005 and November 1, 2006, when the employer was unable to provide employment within her restrictions.

The applicant received prior payments of temporary disability from the respondents for two periods ending on March 4, 2006. It was revealed in testimony that the applicant also received short-term and/or long-term private disability payments for subsequent periods when she was unable to work, but the dates and the amounts of such payments are not in the record. Neither are the exact hours of employment the applicant worked for the employer up to November 1, 2006.

Additionally, the applicant indicated that as of the hearing date she had applied for Social Security Disability Income, which pursuant to Wis. Stat. § 102.44(5), may affect the amounts due for the permanent total disability award. Finally, the first page of applicant's Exhibit K is a summary sheet outlining medical expenses and payments made by nonindustrial insurers.(3) However, the exhibit contains five additional sheets that summarize medical expenses which are impossible to discern as being additional charges or charges included in the exhibit's first page summary. There is no discussion of the medical expenses on record, and no clarification in the briefs submitted to the commission.

Accordingly, due to the substantial lack of detail in the record, as well as the contingency presented by the applicant's claim for SSDI, the commission will not attempt herein to award the exact dollar amounts of compensation, attorney fees/costs, and medical expense due in accordance with its findings. The commission will order $100 to be paid to the applicant towards her permanent total disability award, in order to make this decision appealable. However, the matter will be remanded to the department for resolution and calculation of the exact amounts due in accordance with the above commission findings.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of One hundred dollars ($100) towards the award for permanent total disability. The matter is remanded to the department for resolution and calculation of the exact amounts due in accordance with the above commission findings.

Jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed January 28, 2008
rubenvi . wrr : 185 : 8 ND § 5.31

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission's reversal of the administrative law judge's decision was based on analysis of the written medical opinions, together with undisputed facts of record. The commission concurred with the administrative law judge that the credibility of the applicant, who was the only witness at the hearing, was not at issue.
 

cc:
Attorney Michael B. Kulkoski
Attorney Daiel Zitzer



Appealed to Circuit Court.  Affirmed July 17, 2008.

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Footnotes:

(1)( Back ) See page 15 of Ms. Engebose's report at Respondents' Exhibit 5.

(2)( Back ) See Beecher v. LIRC, 2004 WI 88, 54, 273 Wis. 2d 136, 682 N.W.2d 29.

(3)( Back ) Blue Cross Insurance and Unity Health Care Insurance.

 


uploaded 2008/02/04