GARY KANDZIORA, Applicant

P & H MINING EQUIPMENT INC, Employer

P & H MINING EQUIPMENT INC, 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 February 28, 2008
kandzig . wsd : 101 : 8 ND 3.4, 3.38

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant has worked for the employer, or its predecessor (Harnischfeger Industries), for 28 years. During much of his employment he has been a welder, specifically, a large weldment welder.

In performing this job, the applicant used overhead cranes to move the object he was working on, which in turn required the applicant to carry large chains to hook up the job. He describes crawling inside metal boxes to do his welding work, and working with an air supplied breathing helmet. He was required to work in various positions: kneeling, lying down, sitting cross legged, etc. He also used a pneumatic chipper to chip off flux. The equipment he worked with was heavy-- in the 60-pound range. The job is lighter than it was when he started his employment years ago, but it is still heavy work.

During this employment, the applicant suffered three back strains at work: in a lifting incident in 1993, in an incident with a plant vehicle and moving a metal horse in 1997, and while crawling under a railing on a scissor lift in March 2005. He lost two weeks of work for both the 1993 and 1997 injuries, and a couple of days for the 2005 injury.

On July 9, 2005, the applicant injured his back again, this time at home when he was bending over in the shower. He sought treatment from Thomas Perlewitz, M.D., whose July 21, 2005 treatment note states:

Gary presents today in self-referral for evaluation of chronic low back pain with recent exacerbation. He is a pleasant 50-year old white gentleman who works as a welder at Harnischfeger Industries. He has had multiple work-related injuries to his lumbar spine over the years. The first injury occurred approximately 12 to 14 years ago while working in shipping. He was lifting boxes weighing approximately 85 pounds repetitively. He developed a significant muscle spasm at that time and was off of work for approximately two weeks. Over the years, he has had multiple lower lumbar strains with associated stiffness and spasm. He recounts that all of these episodes were work related. In March 2004, he was on a scissors lift welding for an entire shift. He developed significant stiffness and pain in the low back. He was on light duty for several weeks following this episode. On July 09, 2005, he was at home and bent over in the shower and developed again a severe onset of low back pain and spasm

Dr. Perlewitz's diagnostic impression was "multilevel disc degeneration and spondylosis."

The applicant seeks compensation for the disability and medical expense he sustained after the July 9, 2005 event. The ALJ found in favor of the applicant, and awarded the compensation he sought.

On appeal, the employer and insurer (collectively, the respondent) suggest that the prior back strains in 1993, 1997 and 2005 were trivial events (and in one case not even conceded to be work-related). However, the commission cannot agree with the respondent. The applicant's work was heavy. In addition to the lifting and carrying of his welding tools, he had to work in awkward positions. He 50 years old in July 2005, and had worked for the employer for 25 years. Dr. Perlewitz's April 30, 2007 practitioner's report in conjunction with his treatment notes credibly establish that the applicant's work exposure or work activity, which includes the prior work related back strains, was a material contributory causative factor in the onset or progression of his multilevel disc degeneration and spondylosis in the lumbar spine. See Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, �� 10 et seq., 288 Wis. 2d 206.

The commission appreciates Dr. Weiss's point that one might expect increasing periods of greater disability if work exposure were the cause for the applicant's back disease. However, this is not a case where the applicant had previously had a trouble-free back and is now seeking substantial permanent disability after an off-duty event. Rather, the applicant had prior periods of temporary disability after back injuries at work, and is again seeking only temporary disability compensation. The facts in the case may reasonably be viewed being as consistent with the type of symptomatically progressive condition Dr. Weiss suggests is expected in cases of occupational back disease.

The respondent also cites Lange v. LIRC, 215 Wis. 2d 561, 567-68 (Ct. App., 1997), where the court of appeals stated:

...LIRC did not discuss in great detail the extent to which the work-related and non-work-related injuries must be connected before the first injury can be considered to be a substantial factor in the second injury. LIRC did note that a re-injury is compensable if it is caused by the weakened condition of a worker, Western Lime & Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304 (1928), or if the work-related injury made the worker more vulnerable to re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d 196, 200-01 (1969). LIRC also specifically concluded that Lange's second injury "alone was responsible for the dramatic change," thereby implying that if the first injury was related to the results caused by the second injury, the injury would be compensable.

We agree with this implicit conclusion. A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.

The respondent contends the standard set out in Lange has not been met. The commission does not agree. The applicant suffered a disabling injury to his back, simply bending over in the shower. While IME Weiss states the applicant's current condition would be the same regardless of the three prior strains, he also diagnoses an underlying degenerative disc disease and his report strongly implies that that condition is the cause of the applicant's disability in July 2005.

The commission cannot conclude that the applicant would have had the same the same injury, to the same extent, simply from bending over in the shower had he not have had degenerative disc disease. The Lange inquiry thus leads the commission back to the question of what caused the degenerative disc disease and spondylosis. Based on Dr. Perlewitz's opinion, the commission is satisfied that the applicant's 25-plus years of relatively heavy work as a welder for the employer, punctuated by the periodic strains or sprains caused by work activity, was at least a material contributory causative factor in the onset or progression of the applicant's disabling condition. It therefore affirms the ALJ's decision.

cc: Attorney Scott B. Taylor
Attorney Kristin S. Bruess

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