CHRIS H WERDIN, Applicant
ABRA AUTO BODY & GLASS, Employer
GREENFIELD PONTIAC-BUICK INC, Employer
CONNECTICUT INDEMNITY CO, Insurer
FEDERATED MUTUAL INS CO, Insurer
Greenfield Pontiac-Buick, Inc. and Federated Mutual Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 16, 2007. The applicant, as well as ABRA Auto Body and Glass and Connecticut Indemnity Company/Royal Indemnity, submitted answers to the petition, and briefs were submitted by the parties. ABRA and its insurer conceded a traumatic work injury occurring on July 27, 1998, as well as liability for the resulting fusion surgery performed on April 4, 2000. The applicant claimed another work injury allegedly occurring while employed by Greenfield on January 22, 2003, which Greenfield denies. Also at issue is liability between and among the employers/insurers for the applicant's low back condition dating from January 22, 2003.
The commission has carefully reviewed the entire record in this matter, and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
It is conceded that the applicant sustained a traumatic injury while employed as an auto body repairman by ABRA Auto Body and Glass (Connecticut Indemnity/Royal Indemnity) on July 27, 1998, and that this injury resulted in an anterior/posterior fusion with laminectomy, foraminotomy, and hardware insertion at L5-S1, performed by Dr. Thomas Zdeblick on April 4, 2000. Dr. Zdeblick noted that the applicant had spondylolisthesis at L5-S1 with a bilateral pars defect at L5, and opined that the work incident had definitely exacerbated this condition and caused the surgery. The applicant was injured when his supervisor directed him to climb over an eight-foot wall and jump down into a parts room that had no ceiling, in order to unlock the door.
The result of the fusion surgery was mixed, with the applicant continuing to have intermittent low back and leg pain, although not as bad as it was before the surgery. Dr. Zdeblick released the applicant effective December 22, 2000, with a 10 percent permanent partial disability rating. Post-surgically, the applicant underwent physical therapy with work hardening, and Dr. Kris Chan performed a Functional Capacity Evaluation in March 2001. Dr. Chan indicated on March 21, 2001, that the applicant was released for half-days of light duty for one week beginning April 2, 2001, and then light duty for eight-hour days. Then beginning on April 16, 2001, he was released for medium work with maximum 50-lb. lifting on an occasional basis. The applicant worked for two weeks for another auto body business in June of 2001, but quit because the work bothered his back too much.
On August 6, 2001, the applicant began working as an auto body repairman for Greenfield Pontiac-Buick (Federated Mutual). He wore a back brace and did not tell Greenfield about his preexisting back problems. On January 22, 2003, he was "doing a lot of bending" while riveting nails into a quarter panel on a mini-van, when he felt "something tear loose" in his low back. He credibly testified:
"A I was doing a lot of bending. I was spot riveting these steel nails onto the right quarter panel to make a repair . . .
Q And what did you feel when it tore loose?
A Like my tailbone was wagging all of a sudden.
Q What do you mean it was wagging?
A It was loose.
Q You actually felt something moving?
A Something tore loose back there.
Q Had anything been tearing loose like that before?
A No.
Q Had you had any of that wagging before that?
A No.
Q When you mean wagging, you mean something going side to side?
A Yes . . .
Q So did you ever tell your boss at Greenfield regarding the wagging of your back that had occurred, was it the day before?
A It was the day before.
Q And why didn't you tell him?
A Because I have had something moving and rocking and clicking in my back prior, ever since the first surgery.
Q Was there a difference between the rocking and clicking that you had since the first surgery and the rocking and clicking you had when this happened at Greenfield?
A Yes.
Q What's the difference?
A This one was really moving and I was in a great deal of pain.
Q And that's more pain than you had been in before?
A Oh, yes.
Q More rocking and clicking?
A Oh, yes."
The applicant did not tell the employer about the incident. The next day, January 23, 2003, he was "in a great deal of pain" at work, and he was performing spot welding when he accidentally started a fire in a van. This resulted in the employer discharging him that same day. Within a couple of days, the applicant contacted a representative of Connecticut Indemnity and began requesting renewed medical care for his back. He did not know what was causing his problem at that time, but he noted that "something wasn't right all along" with the result of the April 2000 fusion surgery.
Connecticut Indemnity eventually authorized the applicant to see Dr. Chan, and he went to that physician on June 6, 2003. He had tried to work as a painter at another auto body business in February 2003, but because of his back symptoms he could not meet production quotas and was terminated after about 11 days. When he saw Dr. Chan on June 6, 2003, he complained of "something coming loose" in his back six months previously, causing low back pain radiating into his legs bilaterally. Dr. Chan ordered x-rays which showed stable alignment of the L5-S1 fusion, but non-union of the anterior portion of the fusion. Dr. Chan suggested that there could have been a "micro movement from non-union of the bone graft." He prescribed medication.
From June 2, 2003 until December 5, 2003, the applicant worked as a production manager for Macco Collision Repair and Painting. He was terminated due to a slowdown in business. He next worked as a repairman at a Ford dealership from January 5, 2004 to May 7, 2004, but due to his back problem he had difficulty performing the job, and finally could not continue it.
On October 26, 2004, the applicant went to the emergency room with complaints of back pain and left-hand numbness. On November 3, 2004, and again on July 12, 2005, he saw his family physician, Dr. Donald Bates, for low back pain. Dr. Bates diagnosed chronic low back pain with a failed fusion at L5-S1. On September 19, 2005, the applicant saw Dr. Robert Zoeller for low back/leg pain and recounted the 1998 injury, but nothing was recorded concerning the January 2003 incident. Dr. Zoeller ordered x-rays and a bone scan. From these, Dr. Zoeller opined that he did not believe there was a "frank fusion failure," but that there might be a loosening of the fusion hardware. He referred the applicant to Dr. Dennis Maiman on October 6, 2005.
Dr. Maiman reviewed x-rays and opined that there was a non-union of the fusion. He recommended an anterior/posterior, three-level fusion at L3 through S1, and advised the applicant that he would have to stop smoking to have this surgery. Dr. Maiman performed the surgery on November 8, 2005. On November 14, 2005, Dr. Maiman wrote in a letter to the applicant's attorney:
"Considering the fact that his initial fusion never healed, I would argue that the substance of his problem is related to the original surgery. There is definitely a consideration of the abnormal instability at L4, 5, which is commonly seen in patients who have undergone previous fusion. In my professional opinion, this is a common consequence of lumbar fusion which is recognized by worker's compensation law. However it may well be aggravated by his episodes in 2003."
On October 19, 2006, Dr. Maiman wrote in a preoperative letter to Dr. Bates:
"The question of work relatedness has again come up; this surgery is designed to redo a failed L5-S1 fusion. Therefore, this is clearly related to his previous procedure. In addition, adjacent segment degeneration has been shown to be related to lumbar fusion on a fairly regular basis. Therefore, I am surprised that there is a continuing question, but we are going to get him admitted to the hospital and do this surgery in spite of the presumed controversy."
On November 3, 2005, Dr. Maiman wrote in a preoperative letter to Dr. Zoeller:
"In my opinion, this is clearly related to his original surgery. I have defined that to him in the office, and will put it in writing as well, at his request. Regardless, he has intractable pain, which is having a significant effect on his life, and further fusion is appropriate."
In an undated WKC-16-B, Dr. Maiman checked the direct causation box and wrote: "Yes, 7/27/1998 episode." He partially completed another WKC-16-B dated 11/7/?, in which he checked the direct causation box and referred the reader to his "notes."
In response to a letter from the applicant's attorney dated March 7, 2007, Dr. Maiman completed the first page of an undated WKC-16-B, checked the aggravated/accelerated causation box, and wrote:
"Both traumatic events contributed to injury for which patient underwent surgery. Suspect latter injury 2/3; former injury 1/3, in need for surgery."
Dr. Bates completed a WKC-16-B dated January 25, 2006, in which he checked direct causation and described the July 1998 work incident, without mentioning what happened on January 22, 2003.
At ABRA/Connecticut Indemnity's request, Dr. Stephen Weiss examined the applicant on July 7, 2006, and submitted a report dated July 17, 2006. Dr. Weiss had examined the applicant at Connecticut Indemnity's request after the July 1998 work injury, and had found work causation. In his July 2006 report, Dr. Weiss diagnosed a permanent aggravation of the L5-S1 fusion secondary to the work incident of January 22, 2003, with possible pseudoarthrosis. He wrote that the applicant was stable for about two years after the April 2000 fusion, and then developed significant pain "as a result of doing some heavy lifting" at Greenfield. He also noted that the applicant described one incident in January 2003, when his back "seemed to let loose." He opined that the "employment" at Greenfield was a material contributory factor in the need for additional surgery. Dr. Weiss went on to opine:
"Response: I think the work he did at John Paul's Greenfield Pontiac was a material contributory causative factor in the progression of his back condition, as he had healed from his previous fusion. I also want to point out that the heavy lifting he did at John Paul's could cause the problems now being seen, and there also was a specific incident in January of 2003, when he felt his back loosen."
At Greenfield/Federated's request, Dr. Mark Aschliman examined the applicant on June 20, 2006, and submitted a report dated June 21, 2006. Dr. Aschliman diagnosed L5-S1 spondylolisthesis that was aggravated by the July 1998 work incident, resulting in the L5-S1 fusion. Dr. Aschliman noted that the applicant had not reported any injury to Greenfield on January 22, 2003, and had not sought medical attention until June 6, 2003. Dr. Aschliman opined that there was no causal connection to the January 2003 incident, citing the failure of the fusion at L5-S1, and the lack of a reported injury on a timely basis. Dr. Aschliman further opined that the work exposure at Greenfield had not been causative of the applicant's current back condition.
Out of this complicated and conflicting set of medical opinions the administrative law judge accepted Dr. Weiss' opinion, which she interpreted as allocating 100 percent liability for the applicant's current back condition to the January 2003 incident. When asked to comment on whether the 1998 injury and/or the 2003 incident were causative of the applicant's low back condition, Dr. Weiss wrote that the 2003 incident was a material contributory causative factor "as he had healed from his previous fusion." Dr. Weiss did not directly state whether or not he believed the 1998 injury was also causative, unless it is inferred from his comment regarding the healed fusion that he believed it was not causative.
The commission will not draw this inference given the weight of the evidence against it. The credible medical evidence, particularly Dr. Maiman's opinion of a non-fusion rendered subsequent to the surgery he performed on November 8, 2005, demonstrates that there was a failed fusion from the April 2000 surgery at L5-S1. Even Dr. Weiss acknowledged that there was a "possible pseudoarthrosis." The applicant credibly testified that he "had something moving and rocking and clicking" in his back ever since the April 2000 surgery, and that he had intermittent low back and radicular leg pain continuing after that surgery. These facts support the inference that at least a substantial portion of the low back problem the applicant continued to experience on January 22, 2003, was attributable to the July 1998 work injury and resulting failed fusion.
At the same time, Dr. Aschliman's opinion that there was no work injury on January 22, 2003, is rejected. The applicant credibly testified that "something tore loose" in his back while performing his work duties for Greenfield on that date, and that this incident caused a substantial change in his low back symptoms. His credible testimony and the record of his medical treatment support the inference that the January 2003 work incident constituted a causative, traumatic work injury in the form of a precipitation, aggravation, and acceleration of the applicant's preexisting back condition beyond normal progression.
Greenfield/Federated Insurance assert that assuming a work injury on January 22, 2003, the applicant's claim for that injury must be dismissed pursuant to Wis. Stat. § 102.12, because he did not report an injury to the employer until June 29, 2005. Wis. Stat. § 102.12 requires notice to the employer within two years "from the date the employee ... knew or ought to have known the nature of the disability and its relation to the employment." The applicant was understandably confused as to the cause or causes of his low back/leg pain as of January 22, 2003. He is not a physician, and it was never his responsibility to fix medical causation for his condition. He initially guessed that his symptoms were attributable to a recurrence of problems stemming from the 1998 injury, as evidenced by his contact made to a representative of Connecticut Indemnity almost immediately subsequent to January 23, 2003. Since nobody at the hearing asked the applicant why he waited until June of 2005 to notify Greenfield that he believed he had sustained a work injury on January 23, 2003, the record does not reveal precisely what it was that prompted him to conclude at that time that the January 2003 incident had been causative. However, the reasonable inference is that after seeking medical care and considering the matter, in June of 2005 the applicant reached this conclusion. Given the complicated nature of the causation issue, as evidenced by the ongoing controversy before the commission, it is inferred that the applicant delayed so long in reporting a work injury to Greenfield because he was simply uncertain as to what had been and had not been causative. It would be unreasonable to arbitrarily fix an earlier date when the applicant "ought to have known" that the January 2003 work incident had been causative. Accordingly, the commission finds that the applicant satisfied the notification requirement as set forth in Wis. Stat. § 102.12.
Both Dr. Maiman and Dr. Weiss credibly opined that the January 2003 work incident at Greenfield was causative of the applicant's low back problem and surgery of November 8, 2005. While Dr. Weiss' opinion is found to be ambiguous with regard to whether or not the July 1998 work injury was also causative, Dr. Maiman credibly opined that it was, and credibly apportioned liability at two-thirds attributable to the January 2003 injury, and one-third attributable to the July 1998 injury.
The medical evidence indicates that the applicant was temporarily totally disabled from May 7, 2004, through the date of hearing on April 18, 2007, a period of 153 weeks and 3 days. One-third of this period is the responsibility ABRA/Connecticut Indemnity, to be paid at the renewed rate of the 2003 maximum temporary total disability rate ($669.00 per week), because the applicant was receiving the maximum wage at the time of the 1998 injury.(1) This amounts to 51 weeks and 1 day at the rate of $669.00 per week, for a total of $34,230.50.
Two-thirds of the temporary total disability period is the responsibility of Greenfield Pontiac-Buick/Federated Mutual, to be paid at the rate of $440.00 per week, based on the average weekly wage at Greenfield of $660.00. This amounts to 102 weeks and 2 days at the rate of $440.00 per week, for a total of $45,026.67.
The applicant's attorney is entitled to a 20 percent fee against the awards, plus 483.38 in costs.
Reasonably required medical expenses are due as set forth below, to be paid in the applicable proportions.
Now, therefore, this
The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, ABRA Auto Body and Glass and Connecticut Indemnity Company/Royal Indemnity Company shall pay to the applicant compensation for temporary total disability in the amount of Twenty-seven thousand two hundred twenty-three dollars and twenty-seven cents ($27,223.27); and to applicant's attorney, Robert Kay, fees in the amount of Six thousand eight hundred forty-six dollars and ten cents ($6,846.10), and costs in the amount of One hundred sixty-one dollars and thirteen cents ($161.13).
Within 30 days from this date, Greenfield Pontiac-Buick, Inc. and Federated Mutual Insurance Company shall pay to the applicant compensation for temporary total disability in the amount of Thirty-five thousand six hundred ninety-nine dollars and nine cents ($35,699.09); and to applicant's attorney, Robert Kay, fees in the amount of Nine thousand five dollars and thirty-three cents ($9,005.33), and costs in the amount of Three hundred twenty-two dollars and twenty-five cents ($322.25).
Also within 30 days from this date, respondents shall pay the following medical expenses in the respective proportions found by the commission to be applicable (ABRA and its insurer shall pay one-third, while Greenfield and its insurer shall pay two-thirds): to Froedtert Hospital, the sum of Eighty-eight thousand eight hundred seventy-nine dollars and seventy-two cents ($88,879.72); to Medical College Physicians, the sum of One hundred six thousand four hundred fifty-one dollars ($106,451.00); to Dynacore Laboratories, the sum of Two hundred ninety-seven dollars ($297.00); to Radiology Waukesha, the sum of Three hundred thirty-one dollars ($331.00); to Fort Atkinson Emergency Physicians, the sum of One hundred thirty-five dollars ($135.00); to Sacred Heart Hospital, the sum of Two hundred eighty dollars ($280.00); to Fort Health Care, the sum of Four hundred fifty-one dollars and fifty cents ($451.50); to Watertown Memorial Hospital, the sum of One hundred nineteen dollars and forty cents ($119.40); Home Care Medical, the sum of One hundred eighty-five dollars ($185.00); and to the applicant, the sum of Four thousand six dollars and fifty-five cents ($4,006.55) as out of pocket expenses.
Jurisdiction is reserved for such further findings and orders as may be necessary.
Liability for additional compensation, including medical expense, shall be shared between the respondents in the same one-third/two thirds proportions as found herein.
Dated and mailed March 6, 2008
werdich.wrr : 185 : 9 ND 3.43, 8.47
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission's partial reversal of the administrative law judge's decision was based on analysis of the written medical opinions and undisputed facts of record. The commission agreed with the administrative law judge's credibility impressions of the hearing witnesses.
cc:
Attorney Robert A. Kay
Attorney David N. Larson
Attorney Lisa F. Kinney
Appealed to Circuit Court. Affirmed December 12, 2008. Appealed to the Court of Appeals. Affirmed October 14, 2009.
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