ADAM O'LOUGHLIN, Applicant
TORO COMPANY, Employer
TORO COMPANY, 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 April 28, 2008
olougha . wsd : 101 : 1 ND
§ 8.24
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Facts and posture.
The applicant was born in 1975. He is diabetic, and as ALJ Ezalarab stated in his decision, has been essentially non-compliant with his treatment regimen. The applicant began working as a welder for the employer in November 2006. He slipped and fell on ice in the employer's parking lot on February 7, 2007. Subsequently, he developed an infection--necrotizing fasciitis--in his hip, requiring substantial treatment. At issue is whether the slip-and-fall caused the infection.
Regarding causation, the applicant submits the opinion of Michael Roskos, M.D., a surgeon who treated the applicant at Franciscan Skemp Healthcare with Dr. Nolte, and who tried the unsuccessful skin graft in May 2007. Describing the accidental event or work exposure that caused disability, Dr. Roskos wrote:
Pt had ? cyst in his back --? Infected this was followed by a fall at work on his left hip. -- several days later he developed a progressively [and?] serious infection of [L] hip /leg requiring multiple operating room visits [and] prolonged [follow up.]
Regarding the diagnosis or disability, Dr. Roskos wrote:
Necrotizing fasciitis -- diagnosis required multiple debridement in the operating room. Discharged for subacute 3-16-07 Still has open wound [L] leg that will require skin grafting.
The doctor noted there was no plan to return the applicant to work, and that the applicant still had an open wound that required skin grafting. Regarding causation, the doctor wrote:
Without the fall Pt wouldn't have developed the infection in his hip.
He felt the applicant would need further treatment from skin grafting, and estimated permanent partial disability at 50 percent.
In a letter to the applicant's attorney, Dr. Roskos added:
...in reviewing his case prior to hospitalization I have noted in documentation that he had what appeared to be an infection possibly an abscess in his back. Based on prior descriptions of his treatment and evaluation done before I was involved with the patient's care it was determined to be likely to be the result of cyst on his back. This ultimately required incision and drainage. The exact timeframe from the time he had a cyst until I saw him is unknown. However, several days had passed. Patient, while dealing with his infection of his back, did sustain fall at work, which was well documented per the patient. Several days after his fall he developed pain and a subsequent infection as noted above.
It is my opinion that the abscess on his back ultimately played a role in the development of his necrotizing fasciitis of his left leg and hip area. However, it is my opinion that without the fall, which he sustained at work, that he would never have developed fasciitis in his left leg. The mechanism by which this occurred is likely development to the localized hematoma as a result of this fall, which served as a source and/or nidus(1) for the infection. Another possible explanation is that as part of the fall he had microabrasions that led to bacteria in the skin in the location to infect the underlying subcutaneous tissue.
As far as the incubation period, it certainly seems consistent with the timeframe as described to me.
To summarize my thoughts, there is no question in my mind that the above-mentioned infection in his left hip would not have occurred without the fall that would have occurred as the patient has described. The infection resulted either from direct infection from the skin flora at the site of the fall or resulted from the abscess in the patient's back that seeded a subsequent hematoma.
The employer provides the opinion of David K. Wagner, M.D., who did a record review. He opines that the applicant's alleged fall resulting in a contusion to the hip did not cause the necrotizing fasciitis, either directly or under a Lewellyn 3 rationale.
At pages 6 and 7 of his report, Dr. Wagner quotes extensively from article entitled "Necrotizing Infections of the Skin and Fascia." The article states in part:
Two clinical types [of necrotizing fasciitis] exist: Type 1 necrotizing fasciitis is a mixed infection caused by aerobic and anaerobic bacteria and occurs most commonly after surgical procedures and in patients with diabetes and patients with diabetes and peripheral vascular disease. Type 2 necrotizing fasciitis refers to a mono-microbal infection caused by group A streptococcus (GAS, Streptococcus pyogenes) However, necrotizing fasciitis caused by methicillin resistant Straphylococcus aureus (MRSA) as a mono-mircobal infection has been described.... In contrast to type 1 necrotizing fasciitis, which primarily occurs in patients who are immunocompromised or have certain chronic diseases, such as diabetes, type 2 can occur in any age group and among patients who do not have complicated medical illnesses. Predisposing factors include a history of blunt trauma, varicella (chickenpox), injection drug use, a penetrating injury, such as laceration, surgical procedures, childbirth, exposure to "case," burns and perhaps non-steroidal anti-inflammatory drugs. ... The skin is the portal of entry in GAS infections following trauma and surgery. In comparison, among patients without a defined portal of entry, hematogenous[(2)] translocation of GAS from the throat (asymptomatic or symptomatic pharyngitis) to the site of blunt trauma or muscle strain is probably responsible for the development of necrotizing fasciitis and associated myonecrosis. An alternative hypothesis, which is highly controversial, is that GAS resides in a dormant state in the deep tissues and is then reactivated by episodes of trauma. ... Erythema[(3)] may be present diffusely or locally, but in some patients excruciating pain in the absence of any cutaneous findings is the only clue to infection. Within 24 to 48 hours, erythema may develop or darken to reddish purple color, frequently with associated blisters or bullae[(4)]....
In discussing causation in this case, Dr. Wagner opined that the time frame between the alleged fall on February 7, 2007 and the diagnosis of necrotizing fasciitis on February 14, 2007 was too long and that it "falls outside the usual incubation time" as referenced in the article quoted above. He concluded:
Therefore I opine that the more proximal diagnosed infection (the infected sebaceous cyst) led to a bacteremic[(5)] event and spread of the Staphylococcus aureus to the hip area. (Although a bacteremic event was not documented in the records provided, it appears from the records provided that blood cultures were not drawn.)
2. Discussion.
The ALJ found for the applicant. He found the 24-48 hour incubation argument was not credible because the applicant had symptoms within a maximum 72 hours of the fall on February 7, 2007. The ALJ also noted that Dr. Wagner failed to state why the infection occurred in the same part of the applicant's body as injured in the fall.
The respondent appeals. Its argument is that the article quoted by Dr. Wagner says the normal incubation period for development of infection after trauma is at most 48 hours, and that the applicant did not have a fever or any other symptoms of infection within 48 hours from the fall. The applicant's temperature, the respondent notes was 98.6° on February 9 and 98.3° degrees on February 12. A temperature over 100° was not reported until February 14 when a temperature of 100.6° was recorded. The respondent adds that Dr. Roskos's opinion is tainted by the applicant's incredible assertion of a 104ø fever shortly before the February 12 hospitalization.
The respondent also suggests that Dr. Roskos is speculating, as he described alternative routes of infection either "direct infection from the skin flora at the site of the fall" or from "the abscess in the patient's back that seeded the subsequent hematoma." It argues, too, that Dr. Wagner, as an infectious disease specialist is more qualified than Dr. Roskos, and suggests the commission therefore adopt Dr. Wagner's opinion on that basis.
However, the commission agrees with the ALJ's decision in this case. First, while a doctor's qualifications are often relevant to gauging the credibility of his or her opinion, the commission declines to resolve this based solely on the relative qualifications of the medical experts. By statute, any physician is qualified or competent to give an opinion on diagnosis and cause of disability in a worker's compensation case. Wis. Stat. § 102.18(1)(d)1. It would run contrary to the intent of that statute if the commission decided cases based on its view of the relative qualifications of the medical experts rather than the content of their opinions and the rationale supporting their conclusions.
The parties agree that, as the ALJ found, the infectious agent in this case is the bacteria Straphylococcus aureus. See respondent's letter brief to ALJ Ezalarab dated November 8, 2007, page 2. Based on the article cited in Dr. Wagner's report, the commission concludes that Dr. Wagner felt the applicant likely had Type 2 necrotizing fasciitis involving a mono-microbal(6)--or one type of bacteria--infection from Straphylococcus aureus. Given the medical history above, this case does not seem to pose the kind of post-surgical "mixed infection"--the commission assumes means an infection involving more than one type of bacteria--that occurs in Type 1 necrotizing fasciitis.
The article cited by Dr. Wagner also suggests that in Type 2 necrotizing fasciitis without a defined port of entry, hematogenous translocation of the GAS (group A streptococcus) bacteria from the throat (asymptomatic or symptomatic pharyngitis) to the site of blunt trauma or muscle strain is probably responsible for the development of necrotizing fasciitis. The current case evidently does not involve a GAS bacteria infection that would come from the throat. But the article and Dr. Wagner's opinion both suggest the transmission of the bacteria (whether GAS or Straphylococcus aureus) to the applicant's hip occurred via the applicant's blood stream--the article using the term "hematogenous translocation" and Dr. Wagner using the term "bacteremic event."
The commission notes that the article cited in Dr. Wagner's report states in part:
...among patients without a defined portal of entry, hematogenous translocation of GAS from the throat (asymptomatic or symptomatic pharyngitis) to the site of blunt trauma or muscle strain is probably responsible for the development of necrotizing fasciitis and associated myonecrosis. [Emphasis supplied]
The article may reasonably be read, then, to state that an area of blunt trauma or muscle strain is more predisposed to infection by the GAS bacteria from a throat infection that is circulating in the blood stream. It is at least arguable that a traumatized area such as the applicant's hip in this case is also prone to bacteremic--or blood stream--infection from Straphylococcus aureus bacteria originating in his sebaceous cyst.
If the commission were to base an award solely on this reading of the article cited by Dr. Wagner (without reliance on the opinion of Dr. Roskos), it could be argued it was acting upon "cultivated intuition." Leist v. LIRC, 183 Wis. 2d 450, 461-62 (1994). However, the commission instead points to the article as a basis for crediting Dr. Roskos's opinion over Dr. Wagner's. The article may reasonably be read to support Dr. Roskos' conclusion that the infection from the cyst in the applicant's back "seeded" a localized hematoma caused by the trauma to the applicant's hip from the fall, thus providing the necessary causative link between the slip and fall at work and the development of the necrotizing fasciitis in the hip.
In the commission's view, the article also brings home the point succinctly made by ALJ Ezalarab: that Dr. Wagner failed to explain why the necrotizing fasciitis infection occurred in the very part of the body (the left hip and upper thigh) that the applicant injured in his fall. Dr. Wagner states that the infection in the cyst "led to a bacteremic event and spread of the Staphylococcus aureus to the hip area." However, that explanation is insufficient where the doctor also cites an article stating that development of necrotizing fasciitis may be caused in an area of blunt trauma by hematogenous translocation of the bacteria from another area of the body. More explanation is needed from Dr. Wagner to counter the reasonable inference of a causal connection, and in its absence the commission, like ALJ Ezalarab, finds Dr. Roskos's opinion more credible.
Of course, Dr. Wagner also suggests the infection in the hip simply developed too long after the traumatic event to the hip, for "blunt trauma" theory of infection to apply. Supporting this, of course, is that the notation indicating a developing redness or erythema is Dr. Heaney's note of February 14, 2007, which was a week after the February 7 fall.
However, the portion of the "Necrotizing Infections of the Skin and Fascia" article that Dr. Wagner cites which relies upon on this point states that erythema or redness may develop in the infected site within 24 to 48 hours, but also states that erythema may never develop at all. The article does not say the underlying infection, or redness or other signs of infection, must develop within 24 to 48 hours of the traumatic event itself. Nor does it say that--as the respondent's argument implies--a fever must develop within 24 to 48 hours after the fall. In fact, the article says "in some patients excruciating pain in the absence of any cutaneous findings is the only clue to infection."
Stated bluntly, it is far from clear that the reference to the 24- to 48-hour time period in the article actually sets an absolute incubation period for the necrotizing fasciitis from the time of the trauma, so much as a time period during which a particular symptom, redness, may or may not occur. Indeed, the article suggests that there are cases of necrotizing fasciitis with no fever and no redness, or at least that some cases do not immediately present with those symptoms. Finally, the medical record and the applicant's testimony indicate he had significant hip pain within 24 to 48 hours after the fall.
cc:
Attorney Mark Siefert
Attorney David Piehler
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