JAY M WILLIAMS, Applicant

COUNTY OF ROCK, Employer

COUNTY OF ROCK, Insurer
c/o CAMBRIDGE INTEGRATED SERVICES GROUP

The employer submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order dated January 6, 2004. Briefs were submitted by both parties. At issue is whether the applicant sustained a compensable accidental neck injury in an automobile accident on November 17, 2000, resulting in temporary disability and need for medical expense and whether the applicant suffered an occupational neck injury on November 21, 2001, resulting in temporary disability, permanent disability and medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the Findings and Interlocutory Order of the administrative law judge. The commission makes the following:

Delete the last paragraph of the administrative law judge's Findings of Fact and substitute therefor:

The temporary and functional permanency benefits claimed are ordered paid based on an occupational injury date of November 21, 2001. The temporary total disability claim is from November 21, 2001 to December 26, 2001. The temporary partial disability claim from December 27, 2001 to January 21, 2002. The applicant's out-of-pocket expense is documented as $370.13. The award for temporary total disability is four weeks and three days at the rate of $533.48 for a total of $2,400.66. The award for temporary partial disability is based on four weeks at the rate of $266.74 for a total of $1,066.96. The award for ten percent permanent partial disability on a functional basis is $18,400.00 for a total due the applicant of $ 21,867.62 less attorney's fees of $4,373.52 for a total due the applicant of $17,494.10. Jurisdiction is reserved for any and all possible future claims in both claim numbers meaning regarding the accidental injury of November 17, 2000, and also the gradual occupational disease injury of November 21, 2001.

NOW, THEREFOR, this

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part in accordance with the above findings. Within 30 days from the date of this order the employer shall pay to the applicant, Jay Williams, the sum of $17,864.23 (seventeen thousand eight hundred sixty-four dollars and twenty-three cents), which includes the sum of $370.13 (three hundred seventy dollars and thirteen cents) in medical expense personally paid; and to the applicant's attorney, James A. Meier, the sum of $4,373.52 (four thousand three hundred seventy-three dollars and fifty-two cents) as an attorney's fee plus reimbursement of costs of $1,551.00 (one thousand five hundred fifty-one dollars). Jurisdiction is reserved..

Dated and mailed December 22, 2004
willija . wpr : 175 : 8  ND § 3.43

James T. Flynn, Chairperson

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer asserts in its petition for commission review that the administrative law judge erred in determining that the applicant suffered both a traumatic neck injury on November 17, 2000, as a result of an automobile accident while driving for the employer on November 17, 2000, and an occupational neck injury due to his work activities with an injury date of November 21, 2001. The employer contends the administrative law judge should have credited the opinion of Dr. Weiss who examined the applicant on behalf of the employer. Dr. Weiss stated in his initial report dated December 4, 2001, that he did not believe the disc herniation found in October 2001 at the C6-7 level with an extruded fragment could be considered the direct result of the motor vehicle accident in November 2000. Dr. Weiss stated he believed that the six month gap between the accident and the reported onset of radicular symptoms, and the fact that there was a definite change in the MRI findings from April 2001 to October 2001, did not support the conclusion that the applicant's car accident led to his need for cervical fusion in November 2001.

In a subsequent report dated March 28, 2003, Dr. Weiss stated that he did not believe there was any medical evidence to support the applicant's claim that his injury was an occupational injury caused by the repetitive nature of his work activities. Dr. Weiss stated that when he interviewed the applicant in November 2001 the applicant advised him his neck difficulties began with a motor vehicle accident that occurred in November 2000. Dr. Weiss stated that for the applicant's work activities to be considered a material causative factor he would have had to have been involved with heavy lifting of greater than 75 pounds on a regular basis, or overhead lifting of 40 pounds.

In addition, the employer contends that Dr. Bogdanowicz, the applicant's treating physician, submitted opinions which were inadequate as a matter of law. The employer states that Dr. Bogdanowicz did not have an adequate history of the nature and onset of the applicant's neck problems to render a sufficient medical determination on causation. However, the evidence indicates that Dr. Bogdanowicz, who began treating the applicant in the fall 2001, was familiar with the applicant's treatment and was his treating surgeon. Dr. Bogdanowicz credibly testified in his deposition that the applicant's work activities following the traumatic neck injury on November 17, 2000, were at least a material contributory causative factor in the nature and onset of the need for surgery, and a herniated disc at the C6-7 level. The applicant's earlier MRI had not documented any disc herniation in April 2001.

Dr. Bogdanowicz gave a credible rendition of the progression of the applicant's neck problems, due not only to the car accident in November 2000, but also to his subsequent work activities. Notably, Dr. Weiss did not give any explanation in his reports as to why the applicant had a need for surgery to repair a herniated disc in November 2001. Dr. Weiss initially opined the applicant had resolved his complaints from his car injury by April 2001, and denied that the herniated disc was due to the car accident. There was no evidence the applicant, who was 30 years old at the time, had any prior neck complaints or need for treatment. Dr. Weiss did not assess that the applicant's need for surgery was due to some preexisting degenerative condition. Dr. Weiss also failed to assess the applicant's neck problems were caused by subsequent work activities with the employer.

The commission credited the applicant's testimony of his duties as a sheriff's deputy, including the self-defense tactics course which involved a great deal of stress and strain on the neck and other parts of the body. The administrative law judge appropriately noted that Deputy Pyner verified the applicant's testimony regarding the gradual injury theory, and he thought that the applicant had under emphasized the difficulty of the boat patrol activities because of the very large lake that the deputies patrolled. In addition, as was pointed out in the introduction to the transcript in this case, which occurred after Dr. Bogdanowicz' deposition, Dr. Bogdanowicz had no choice but to testify as to a hypothetical situation since the applicant's testimony had not yet occurred. Although it would have been more helpful if Dr. Bogdanowicz had based his assessment on actual firsthand knowledge from the applicant describing his work activities, he relied upon the hypothetical activities as listed by the applicant's attorney in the deposition, which were consistent with the applicant's work activities listed in the WC-16-B, and were consistent with the applicant's testimony of his duties with the employer. The commission does not agree with the employer's assertion that Dr. Bogdanowicz opinion is incredible as a matter of law.

Dr. Bogdanowicz prepared a WC-16-B dated July 9, 2002, and stated the applicant has an occupational neck injury due to years of activities as a deputy sheriff which involves self-defense training, duties as a firearms instructor, extended periods of time operating motor vehicles, and periodic accidents and activities apprehending criminals. Dr. Bogdanowicz checked the box for an occupational injury and indicated the applicant suffered ten percent permanent partial disability to the body as a whole. Dr. Bogdanowicz explained in his deposition that what happened with the applicant's situation were two separate events. Dr. Bogdanowicz explained that when the applicant had the injury on November 17, 2000, he had a flexion/extension injury similar to whiplash which disorganized the internal structure of his disc. Dr. Bogdanowicz stated that that as often happens the applicant's subsequent work activities caused further deterioration and resulted in the need for surgery. Dr. Bogdanowicz stated he would assign 30 percent to the applicant's work-related activities as a cause of his need for surgery and 70 percent related to the car accident in November 2000. Dr. Bogdanowicz explained that the applicant's automobile accident started the process of injury and whatever was happening between the original injury and the date of the positive MRI in October 2001 had a contributory component, but the main problem was the accident on November 17, 2000, when he ripped the ligament and caused the bulging of the disc as shown on the first MRI. The commission credits Dr. Bogdanowicz assessment that the applicant suffered not only a traumatic neck injury in November 2000, but also an occupational neck injury as a result of his subsequent work activities resulting in an injury with a date of November 21, 2001, leading to the need for surgery.

However, the commission finds that the administrative law judge erred in apportioning temporary and permanent disability in this matter. The state statutes do not provide for such an apportionment. Under Wis. Stat. § 102.175 if it is established at the hearing that two or more accidental injuries, for each of which a party to the proceedings is liable under the act, have each contributed to a physical or mental condition for which benefits would otherwise be due, liability for such benefits shall be apportioned according to proof of the relative contribution to disability resulting from the injury. However, in this case we do not have an instance where the applicant suffered two or more accidental injuries. Rather we have a traumatic accidental injury on November 17, 2000, followed by an occupational neck injury on November 21, 2001.

There is no evidence the applicant was assessed any permanent disability following the initial automobile accident in November 2000 prior to his occupational injury in November 2001. The evidence indicates the applicant returned and performed his normal duties without any restrictions following the initial automobile accident on November 17, 2000. The applicant's treating chiropractor, Dr. Priske, stated in a letter dated July 13, 2001, that based on his last evaluation of the applicant it did not appear he would have any measurable musculoskeletal deficit as a result of the work incident on November 17, 2000. Dr. Joseph, the applicant's treating neurologist, stated on April 23, 2001, that the applicant reported that his subscapular pain had resolved. The applicant testified that he was able to perform his normal work despite his ongoing neck pain after November 17, 2000.

In Kretschmer v. General Stamping Company, Commission Decision dated August 30, 2000, the commission noted that Wis. Stat. § 102.175 permits apportionment of liability, but only between accidental injuries. In the Kretschmer case the applicant had a history of low back problems, including three surgeries following a traumatic injury in November 1997, and an occupational exposure-type injury in 1999. The commission stated that if the subsequent occupational exposure is the cause of increased disability from an accidental injury, the occupational exposure alone is responsible. The commission stated that the 1997 injury provided the preexisting condition and the 1999 exposure materially contributed to its progression, and found the insurer on the risk for the 1999 work exposure liable.

Also, in Kenar v. Great Lakes Dart Manufacturing, Commission Decision dated December 23, 2003, the commission found that Wis. Stat. § 102.175 provides for apportionment of liability between two or more accidental injuries which each contributed to a disability, but under Wisconsin law there is no apportionment between an occupational disease and a traumatic injury. In our current case, the applicant suffered a work-related traumatic neck injury on November 17, 2000, and returned to work and it appears that most of his symptoms were resolved by April 2000, and he was not assessed any permanent disability as a result of that injury. The applicant continued to work at his normal strenuous duties and his subsequent occupational exposure led to the need for surgery on November 21, 2001. All of the permanent disability shall be paid with an injury date of November 21, 2001, with no apportionment to an earlier date of injury, since there is no statutory basis to apportion the temporary or permanent disability. Therefore, the commission has amended the administrative law judge's order to reflect the proper payment of permanent disability, temporary total disability, and temporary partial disability for an injury date of November 21, 2001.

cc:
Attorney James A. Meier
Attorney Jerome A. Long

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