JEFFREY A WALCZAK, Applicant

CONSOLIDATED PAPERS INC, Employer

CONSOLIDATED PAPERS 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.

Dated and mailed February 19, 2008
walczje . wsd : 185 : 8 ND § 3.37; 3.42

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

None of the employer witnesses gave a credible explanation for why the applicant, an injured employee, was discharged by the letter sent to him on October 15, 2003. The letter's reference to his FMLA leave running out does not explain why FMLA leave expiration should result in a sudden discharge, and in fact, the letter itself did not make it clear that the applicant was being discharged. The applicant had to telephone the employer's warehouse supervisor, Frank Raikowski, to ask the meaning of the letter. Raikowski's testimony failed to explain the reason for the discharge. He merely referred again to the applicant's FMLA leave running out, without any explanation of why that event should have resulted in a summary discharge. This is particularly true when it is clear from the applicant's credible testimony that the employer knew the applicant was dealing with a work-related medical problem as of July 7, 2003. The interoffice memo (Hearing Exhibit N) ostensibly converting "occupational illness[es]/injur[ies]" into FMLA matters is a form memo created by the employer, the purpose of which was not explained. The commission infers that the only reasonable explanation for such a form memo would be to attempt to avoid worker's compensation liability, consistent with the applicant's testimony concerning how Raikowski told him to handle his work injury.

Respondents cite the fact that the medical treatment notes from Dr. Ferk did not identify the applicant's low back problem as being work-related. However, Dr. Ferk's intake nurse wrote on July 7, 2003, that the applicant's back pain was made worse by lifting at work. The applicant's work activities were recounted by Physician's Assistant Mahoney in his first examination of the applicant on August 19, 2003, and Dr. Ferk had referred the applicant to P. A. Mahoney. It is inferred from this evidence that Dr. Ferk was aware of the connection between the applicant's symptoms and his work activities on July 7, 2003. Furthermore, it is evident that the applicant was performing heavy, repetitive work when he experienced symptom onset on that date, and the credible inference from Dr. Vo's opinion is that this work activity did precipitate, aggravate, and accelerate the applicant's preexisting degenerative lumbar back condition beyond normal progression.

Dr. Vo's WKC-16-B indicated that there had been a precipitation, aggravation, and acceleration of the applicant's preexisting condition beyond normal progression, but respondents assert that because there was no specific incident that caused the disability on July 7, 2003, the applicant's claim should have been brought as an occupational back disease claim. The argument continues that since Dr. Vo technically gave no support for an occupational back disease in his WKC-16-B, the applicant's claim should be dismissed. However, as noted by the administrative law judge at the hearing prior to the taking of testimony, the issues included whether or not the applicant ". . . suffered an injury by accident or occupational disease . . ." (emphasis added). In a case such as the applicant's, there is no useful distinction between the causation theories of participation/aggravation/acceleration, and occupational disease. Obviously, the applicant's work activities dating from his hiring in November 2001, would have affected his preexisting low back condition. However, in accordance with Dr. Vo's opinion, the commission infers that it was the particular work activity of July 7, 2003, that tipped the scale and caused the disabling, compensable condition. Dr. Vo chose one legal theory of causation in his WKC-16-B, but he could just as easily have chosen the alternative legal theory of occupational disease. Either one would be credible in this case. The important questions are the credibility of the applicant's testimony, the nature of his work activity on July 7, 2003, and the medical connection Dr. Vo credibly drew between that work activity and the applicant's low back disability. The commission found the applicant and Dr. Vo to be credible.

cc: Attorney James Moermond
Attorney Bradley Myska
Attorney Richard Ceman

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/03/03