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

STEPHEN L PESOLA, Applicant

MARINETTE CASTING CORP, Employer

WAUSAU BUSINESS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2004-008851


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.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 31, 2008
pesolas . wsd : 101 : 1 ND §§ 8.24, 3.38

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The applicant was born in 1958. Prior to the injury at issue here, the applicant hurt his back at work in 1995. He underwent a series of epidural injections followed by discectomy in October 1996. Exhibit 5 documents continuing back pain thereafter in 1999 and 2000.

The employer concedes the applicant injured his back at work on February 24, 2004. Following this injury, the applicant treated with Dr. Simpson for about a month through March 25, 2004. He resumed treatment in late April 2004, after experiencing a popping sensation as he got out of the shower at home on April 25, 2004.

At issue in this case is how much disability the February 24, 2004 injury caused. The parties have submitted expert medical opinion on this point.

The report of Dr. Simpson, who treated the applicant shortly after his injury, is at exhibit AA. It lists the accidental event to which the applicant attributed his disability as:

On 2/24/04, Mr. Pesola was lifting a part onto a machining table and felt an acute onset of low back pain with numbness radiating down the back of left leg into the heel and foot. While lifting the part, Mr. Pesola was also bent over and in a twisting position.

Dr. Simpson opined that event probably directly caused disability, but added

Low back strain [and] sacral torsion only

Dr. Simpson stated he would defer to the applicant's current treating physician regarding permanent partial disability, but noted that there were no elements constituting permanent disability and that the applicant's prognosis was "good" adding:

Asymptomatic 3/25/04 released to full duty. Did not return dr. directed [??] if had further problems.

Dr. Ots, who treated the applicant after Dr. Simpson and ultimately performed surgery, wrote two reports. The first, dated December 18, 2005 (exhibit AB), recites the same description of the accident to which the applicant attributed his disability as given in Dr. Simpson's report. Dr. Ots opined the accident directly caused the applicant's disability, which he estimated at 20 percent (the administrative code minimum for a two-level laminectomy/fusion procedure(1)). He gave a fair prognosis and declined to set work restrictions.

Dr. Ots' second report (exhibit AC, April 8, 2006) refers to his first report for a description of the accident, and describes the disability/diagnosis as "herniated disc, back dsrg lumbago, and lumbar radiculopathy." Dr. Ots estimated permanent partial disability at 20 percent above any prior rating for the two-level fusion surgery and pronounced the applicant's prognosis to be "much improved."

The employer and its insurer (collectively, the respondent) relies on the reports of James G. Gmeiner, M.D., who examined the applicant on its behalf. His first report is dated June 1, 2004, or shortly after the applicant began treating with Dr. Elias, the pain clinician. Based on his examination, he thought the applicant was exaggerating his symptoms. He felt the applicant had suffered a lumbosacral strain/sprain from the February 24, 2004 work injury, with an end of healing on March 18, 2004. He did not think the applicant needed treatment for his injury. He also opined no permanent partial disability had resulted.

Dr. Gmeiner adhered to this opinion a year later after reexamining the applicant in May 2005. His review of the record, which by now included treatment through the IDET with Dr. Ots, did not change his mind. Dr. Gmeiner did one more examination on January 12, 2007 (exhibit 12). In his reporting following this examination, the doctor stated the objective tests the applicant underwent after the February 24, 2004 injury, including the MRIs, did not reveal any structural changes resulting from the injury. Concerning the applicant's current condition post-surgery--regardless of causation--Dr. Gmeiner estimated permanent partial disability at 20 percent.

The ALJ concluded, as did Dr. Gmeiner and Dr. Simpson, that the applicant suffered only a strain from the work accident of February 24, 2005 which healed without disability by March 25, 2005. Thus, he made no additional award and issued a final order. He noted the continuing complaints after the original 1995 injury but before the February 2004 work injury at issue here, the release and return to full duty following the February 2004 injury in March 2004, the subsequent reinjury with the "pop" while in the shower in April 2004, the resumption of treatment thereafter, and the fact that it does not appear Dr. Ots was even aware of the April 2004 incident in the shower after which treatment resumed but seems to think there was only one traumatic injury occurring at work.

On appeal, the applicant asserts that the ALJ put too much weight on Dr. Simpson's note of March 25, 2004, which reports:

This patient had a history of a low back strain with a right sacral torsion. This was recurrent. He has no pain essentially. At this time he has a little twinge occasionally in the right lower back over the sacral iliac joint. There is a little stiffness there. Pain is 0/10.

In the March 25, 2004 note, Dr. Simpson also assesses low back strain with recurrent right sacral torsion, essentially resolved.

However, the resolution of the applicant's symptoms from the February 24, 2004 injury by March 25, 2004 is supported by more than that one note. Dr. Simpson's prior treatment note reports the applicant's condition had improved and his pain decreased nicely. Physical therapist Conley, too, reported decreased pain and that the applicant felt so improved to the point he cancelled his remaining appointment or appointments. In his final treatment note, Dr. Simpson told the applicant to return in ten days (or early April 2004) if he was not 100 percent; the applicant did not resume treatment until the incident in the shower about April 25, 2004. Dr. Simpson's subsequent practitioner's report stated there were no elements constituting permanent disability, that his prognosis was "good," and that he was asymptomatic and released to full duty as of March 25, 2004.

The commission carefully considered the report of treating doctor Ots. His initial treatment note of December 20, 2004 states this history:

The patient is a 46-year old male. He underwent surgery for a herniated disc at L5 at Froedtert Hospital in 1995. He did well until April of this year when he was involved in a work related lifting injury....

There is no evidence that Dr. Ots actually knew the precise order of events: a February 24 injury, a March 2005 full release to work, a one-month hiatus treatment, an April 2004 off-duty reinjury followed by the resumption of treatment. While non-material omissions in a treating doctor's history may not require reversal under the Pressed Steel line of cases,(2) the commission finds Dr. Ots' opinion less credible than that of Dr. Simpson, another treating doctor, and Dr. Gmeiner.

Finally, the commission observes that the nature of the applicant's treatment was substantially different following the April 2004 off-duty injury than after the February 2004 injury at work. Osteopath Simpson noted good results following his osteopathic maneuvers in March 2004. After the April 2004 event, there is a history of ongoing pain requiring ongoing treatment. The commission is satisfied that the conceded work injury of February 2004 caused only a strain, not the disc injury later treated by Dr. Ots.(3)

cc:
Attorney Steven Hitzeman
Attorney Peter Farb



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Footnotes:

(1)( Back ) Wis. Admin. Code § DWD 80.32(11).

(2)( Back ) Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959). See: Hernandez v. E & B Insulation, WC claim no. 2004-034423 (LIRC, October 29, 2007), citing Jack L. Math v. Stoughton Trailers, WC case no. 94005583 (LIRC, June 28, 1996), aff'd sub nom. Stoughton Trailers v. LIRC and Math, case no. 96CV001720 (Wis. Cir. Ct., April 30, 1997).

(3)( Back ) Thus, the commission cannot conclude the February 2004 and April 2004 injuries were related injuries, as where a worker's weakened condition following an injury at work is a factor in an off-duty reinjury. See: Lange v. LIRC, 215 Wis. 2d 561, 567-68 (Ct. App. 1997) (involving a focal disc herniation with nerve impingement from a work-related injury that was aggravated into a larger more symptomatic herniation after an off-duty fall).

 


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