CYNTHIA A SKELLY, Applicant

KMART CORPORATION, Employer

INDEMNITY INSURANCE CO OF NORTH AMER, 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 May 29, 2008
skellyc . wsd : 101 : 1 ND §3.4, 3.42

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The applicant was born in 1948. In late 2003, she suffered a non-work related duty back injury apparently while moving her residence. Specifically she suffered an L4-5 disc herniation, with symptoms of severe low back pain and right leg radiculopathy. In December 2003, the applicant underwent an L4-5 laminectomy/discectomy procedure to treat a herniated disc. After a couple of months, she testified, she was back to normal functions.

The applicant claims disability from an injury sustained while working for the employer part-time as a cashier, a job which involved moving merchandise over a scanner on a checkout counter and using a hand scanner for larger items. After starting work for the employer, she began getting pain down her right leg and low back, and it kept getting worse and worse. She sought treatment and eventually underwent a right L4 nerve root decompression preformed by Dr. Yazbak on September 12, 2006.

The ALJ found for the applicant, noting that the applicant's problems had been quiescent for two years before beginning to work at the employer, then markedly worsened after starting work and remained bad until corrective surgery. He added that he believed she was unusually susceptible to disc injury because of her pre-existing condition and prior surgery.

The respondent appeals. It notes the brief period of occupational exposure and the fact the applicant did not report an injury to the employer before April 17, 2006. The employer argues also that the applicant testified she did not injure herself until Easter Sunday, throwing her whole claim into question. Finally, the employer points out that the applicant admitted on cross examination she only lifted 25 pounds, that K-Mart did not sell soda in cases (as she initially testified) but only 12-packs, that the ALJ found she used a handheld scanner to check bigger items without removing them from a cart, and that she lied in her testimony about removing items from customer carts.

The commission does not read the applicant's testimony to suggest that she first injured herself at church on Easter Sunday. In advancing this argument, the respondent relies on a portion of the applicant's testimony stating:

I wasn't injured until April -- until Easter when the pain was gradually getting worse, that the pain was radiating down my right leg. At first it was a radiating down my right leg. I would have low back pains.

Transcript, page 30. However, this testimony read in isolation, does not convey the applicant's meaning as is evident when the entire colloquy is read in full.(1) The most reasonable reading of the colloquy between the applicant and the respondent's attorney on this point, and the reading supported by the rest of her testimony, is that the applicant's symptoms had started before Easter Sunday, that she thought they would resolve themselves, but that the symptoms in fact gradually worsened to the point that the applicant was disabled by them on Easter Sunday leading her finally to report the injury and the symptoms to the employer.

Indeed, this reading is supported by the first treatment note following the applicant's work exposure. On April 17, 2006, the Monday after Easter, the applicant saw William Reynders, M.D., who reported:

Cynthia injured her back the other day. She indicates this happened about a week and a half ago accompanied with low back pain and soreness in the left leg. Yesterday while at church on Easter Sunday she left church crying in severe pain. Her right leg was hurting quite a bit....

The commission also acknowledges that the applicant testified on direct examination that she lifted 24-can cases of soda, but admitted on cross examination that the employer only sold soda in 12 packs. It is also true that she said she never lifted over 25 pounds on cross-examination. However, that is not inconsistent with her testimony on direct, when she referred to the heavier items as weighing over 10 pounds. See transcript, page 15. Further, while the applicant testified she did use the hand scanner on items over 25 pounds, she stated she still had to bend over the counter to reach them.

The commission concludes that the applicant reasonably relayed her job duties with the employer to Dr. Yazbak and that his opinion on causation is well-founded. He may have referred to her employment as being for about a month, but he certainly was aware it was of a relatively short duration. Further, the bending and twisting, not simply the weights she lifted in her cashiering duties, provided the basis for his opinion on causation.(2)

The commission acknowledges that the applicant worked for the employer for only a short while. While there is no legal minimum period of time necessary to have
causation by occupational disease(3), it may of course be a reasonable medical conclusion where a worker simply has not had enough work exposure to cause the claimed disease or injury. In this case, however, the applicant had had prior back injury treated surgically which had remained quiescent for two years. After her work exposure symptoms developed, the surgery performed by Dr. Yazbak disclosed disc material under the nerve root. The more credible opinion is that the applicant's work exposure, albeit short in duration, injured the applicant's lumbar disc, or underlying nerve, or both, causing the disability at issue here.

cc: Attorney William B. Kulkoski
Attorney Ronald S. Aplin

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(1)( Back ) The applicant testified as follows: A. I wasn't injured until April -- until Easter when the pain was gradually getting worse, that the pain was radiating down my right leg. At first it was a radiating down my right leg. I would have low back pains. Q. So through April 15 of 2006, you weren't injured? A. No. Q. And on April 16, 2006, that was Easter Sunday, you were in church when you had your onset of these symptoms, is that right? A. It was gradually working up to that time. Q. But you weren't disabled until you were in Church on Sunday? A. Well, I wasn't completely disabled. But the pain was bad I couldn't stand it. I worked a Saturday shift, remember? Q. You worked your whole shift on Saturday? A. Yes, in pain. Q. Did you report any injury? A. No, I didn't report it because I thought it would get better.

(2)( Back ) In addition, Dr. Frazin's characterization of her job as involving "little or no lifting" understates her cashiering duties, even if she never lifted objects over 25 pounds.

(3)( Back ) On this point, the commission wrote in Gumieny v. County Concrete Corp., WC claim no. 2004-017501 (LIRC, July 11, 2006):

"Neal & Danas, Worker's Compensation Handbook § 3.4 (5th ed., 2006) states flatly:

 'Broadly defined, occupational disease is mental or physical harm that results from occupational exposure but that is not so sudden or traumatic as to fit within the definition of an accident.'

"Thus, the commission has noted:

 'That injuries caused by short-term repetitive strain may not fit neatly into the analytical categories of accident and occupational disease, but that does not mean they are not compensable as a matter of law. See for example, Charles F. Meyers v. Fort James, WC Claim No. 1998002628 (LIRC, December 8, 1999). On this point, the commission notes that 'occupational diseases were brought under the compensation act ... "so as to include, in addition to accidental injuries, all other injuries including occupational diseases, growing out of and incidental to the employment. [Italics supplied.]"' Employers Mutual v. McCormick, 195 Wis. 410, 413-14 (1928).

Delaney v. Waupaca Foundry, WC Claim No. 2000030373 (LIRC, September 29, 2003).

"In short, the Worker's Compensation Act is intended to cover all injuries growing out of and incidental to employment. The law does not require some minimum period of employment exposure or work activity as a matter of law before the exposure may become compensable."

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