GABRIEL GALVAN, Applicant
CARVER BOAT CORP, Employer
SENTRY INSURANCE A MUTUAL CO, Insurer
The applicant filed an application for hearing in February 2006 alleging disability from injuries in November 2004 and May 2005. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on March 26, 2007 and August 29, 2007. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, the occurrence of a compensable low back injury on or about November 12, 2004, and an average weekly wage of $534.99. The respondent also paid temporary disability from July 29 to December 3, 2005.
At issue is the nature and extent of disability in this case and the insurer's liability for medical expenses. The applicant seeks additional temporary disability from December 12, 2005 to March 28, 2006, permanent partial disability at five percent to the body as a whole, and $16,601.44 in medical expense. The respondent asserts that the applicant ended healing from the work injury without permanent disability by February 18, 2005.
On September 25, 2007, the ALJ issued his decision in the applicant's favor. The respondent filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and conferred with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:
The applicant was born in 1973 and has worked for the employer, a boat maker, since 1999. He had a minor back injury at work in 2003, and another in early 2004, but had no back pain or work restrictions at the time of the conceded injury in November 2004.
On Thursday, November 12, 2004, the applicant hurt his back while "flipping" a 114-pound wood plug that he was sanding. He reported the injury to the plant nurse, complaining of back pain, but not radicular pain, and tried to return to work. When he still had pain the following Monday, the plant nurse set a lifting restriction at 30 pounds, and later sent him to the plant doctor, Dr. Cantagallo. The doctor reduced the lifting restriction to 20 pounds, but noted on November 22, 2004 that since the applicant had been pain free for two days, he could return to full duty.
The applicant suffered a gradual return of his back pain in the last week of December 2004. On December 30, 2004, he reported the pain to the plant nurse, who noted back pain in the same area as before. He also went to see his family doctor, Dr. Spika, whose December 30, 2004 note documents radiation of pain from the right lower back, through the right hip, almost to the right knee. The doctor also noted radiation of pain occasionally to the left buttock. The doctor noted it was hard for the applicant to straighten his legs because of the pain in his upper back and legs, and that palpation in the area of the lower lumbar muscles reproduced radiation down into the right buttock and over the right lower leg.
Dr. Spika diagnosed a back strain with some radicular components. He prescribed a Medrol dosepak, limited the applicant to light lifting, and referred him to a chiropractor. During the course of 12 visits, the chiropractor, Dr. Nystrom, noted the applicant had returned to normal duties on January 28, 2005, and released him from treatment on February 18, 2005.
The applicant experienced the return of disabling pain in May 2005. He told his employers and doctors, and he testified at the hearing, that the increased pain was due to work duties--mostly buffing boat hulls, but also wet sanding and working his regular job. He testified that from January to May 10, 2005, his back had felt better but there was increased pain day by day. Then on May 10, he reported an injury because he was having more problems with the buffing and sanding, so that he felt pain all the time. The applicant testified on cross-examination that he had been working without restriction from the time of chiropractor Nystrom's release in February 2005 until May 10, 2005, then had a worsening of low back pain in May 2005 with the pain increasing day by day from the beginning of May.
However, three of the applicant's coworkers testified that the applicant told them in early May 2005 that he had hurt his back playing soccer. One of the coworkers, Katie Guerts, whose employment with the employer was terminated, testified that the applicant told her in May 2005 that he hurt his back playing soccer and thereafter appeared hunched over and had trouble performing his work. Merlin Crowe testified the applicant told him about a back injury on a Monday in May 2005 in which the applicant had been playing soccer and been kicked in the back after a collision. Mr. Crowe stated that the applicant asked him not to tell anyone that he had hurt his back playing soccer. A third worker, Kevin McDonough, testified the applicant told him on a Monday in May 2005 he had hurt his back in a collision with another player, after which the applicant walked with noticeable soreness.
The applicant testified he never played soccer after November 2004, though he did help coach and run demonstrations, but that he did not even do that the weekend before May 10 because it was too cold. He denied telling his three coworkers he had hurt himself playing, and said that he had no idea what they were talking about.
Beginning on May 12, 2005, the applicant resumed chiropractic treatment, underwent physical therapy. He came under the treatment of Dr. Sherrill, whose July 12, 2005 treatment note mentions the November 2004 injury working with the large wooden plug, as well as the prior back injuries that resolved uneventfully. There is no mention of a subsequent injury in May 2005--whether buffing boats, playing soccer, or otherwise--only that "over the next several months [following the November 2004 injury] he has had several other episodes of flare-up with this discomfort."
Dr. Sherrill ordered an MRI, which was done on July 22, 2005. This showed a large disk herniation at L4-5 to the left causing severe left L1 root compression. Dr. Sherrill referred the applicant to a surgeon, Richard Harrison, M.D. In August, Dr. Harrison performed a left L4-5 microdiscectomy in which the doctor removed a large amount of fragmented disc material.
When the applicant continued to experience pain following post-operative treatment into November 2005, another MRI was done. It was unremarkable, and Dr. Sherrill released the applicant to work in late November 2005, subject to work restrictions. Over the ensuing months, Dr. Sherrill noted improvement in symptoms, and periodically adjusted his work restrictions. In November 2006, Dr. Sherrill released the applicant from active care.
Meanwhile, after an internal investigation, the employer discharged the applicant in January 2006 for filing a false worker's compensation claim. See Exhibit H. (Despite testifying that he received the letter firing him for filing a false worker's compensation claim, the applicant told a treating doctor, he was fired because he could not return to work without restrictions. Exhibit M, January 19, 2006 note of Dervish.)
Both parties offer expert medical opinion concerning the cause, nature and extent of the applicant's disability. Dr. Sherrill's opinion on causation is as follows:
I have been providing medical care for Gabriel Galvan since 07/12/05 for injuries received in the course of his employment at Carver Yacht on or about November 2004. History provided in the enclosed chart will indicate that Mr. Galvan was at work and bent over a heavy piece that he was sanding when he had sudden onset of pain in the low back, which persisted for months despite chiropractic care and conservative measures. Diagnostic evaluation eventually revealed a large herniated disk at L5-S1... He underwent surgical repair by Dr. Richard Harrison of Neurological Surgeons Limited and is currently being treated by me for low back pain status post laminectomy.
I have no history to suggest a mechanism of injury other than the one described above. My opinion based on the history provided and the diagnostic testing performed, I believe Mr. Galvan's disk disease is the result of his work related injury.
In a subsequent letter dated March 6, 2007, at exhibit L, Dr. Sherrill stated that he believed the applicant had reached an end of healing as of November 10, 2006, with permanent partial disability at five percent. He stated, too, that the restrictions he had set in September 2006--avoiding painful positions such as work requiring continuous bending, twisting, flexion and extension of the lower back--were permanent.
The respondent retained Richard Karr, M.D., who did a record review on September 7, 2005. His initial report is at exhibit 1, and is based on a history of the applicant twisting and injuring his back while "removing a plug;" that the applicant continued to have back pain with activity, especially repetitive activity. He observed, too, that Dr. Nystrom's May 12, 2005, note stated the pain got worse with repetitive activities. Dr. Karr opined that the applicant had degenerative disc disease from the normal progression of degenerative factors that likely pre-dated the November 2004 work injury. He added:
...[the applicant] incurred a workplace lumbar strain on November 11, 2004, causing aggravation of this condition, in turn, causing an L4-5 disk herniation. This had been the underpinning of the acute onset of low back pain symptoms in November, 2004, mandating medical and chiropractic management through approximately February 18, 2005. Although [the applicant] had been noted to be doing well clinically as of February 18, 2005, a subsequent re-flare of lumbar spine symptoms in May, 2005, suggests that full-recovery had not been achieved.
In my opinion, the reflare of low back pain on or about May 10, 2005, and the subsequent emergence of left-sided sciatica, had been continued clinical manifestations of the November 11, 2004, injury/L4-5 disk herniation. I do not believe that a new structural low back injury/breakage had occurred on May 10, 2005. [Emphasis in original.]
Based on the available records, it appears that L4-5 microdiscectomy surgery would comprise reasonable and necessary management, relative of the L4-5 disc herniation. The November 11, 2004, injury will be a material contributory causative factor....
Dr. Karr added that, barring complications, it would be reasonable to expect the surgery to be followed by six months of temporary disability, followed by permanent partial disability at five percent.
Dr. Karr issued a second opinion on September 10, 2006, after reviewing the notes of interviews with three of the applicant's coworkers, each of whom stated the applicant had told them in May 2005 that he had hurt his back playing soccer. One of the coworkers, Merlin Crowe, thought the injury might have happened when a group of people came together and the applicant was kicked in the back.
This information caused Dr. Karr to change his causation opinions set forth in the earlier report. In his second report dated September 10, 2006 (exhibit 2), he stated:
Subsequent to a November 11, 2004, workplace low back injury, Mr. Galvan continued to work full duty with no restrictions. He began a course of chiropractic treatment which included approximately 11 treatment sessions. As of February 18, 2005, Mr. Galvan was released from chiropractic care; was noted to be working at full duty. Mr. Galvan apparently returned to recreational soccer activities after February 18, 2005.
The recorded interviews noted above all attest that Mr. Galvan had stated he had injured his low back while playing soccer on or about the May 10, 2005 time frame. Mr. Galvan subsequently, however, claimed to be suffering from a work-related low back injury when he sought renewed chiropractic treatment on May 12, 2005, physical therapy treatment on May 18, 2005, and treatment from Dr. Harrison on July 29, 2005. The office notes from these treatments are absent of any documentation of a soccer injury. Mr. Galvan had apparently not told any of these health care providers of having injured his back while playing soccer. Stated another way, Mr. Galvan told his healthcare providers, and his employer, a different story compared to what he told his coworkers.
In my view, at most, Gabriel Galvan incurred a workplace lumbar strain on November 11, 2004, which had not caused any structural spine injury. A healing plateau had been reached no later than February 18, 2005, with 0% PPD; no alteration in working capacity.
In my view, Mr. Galvan incurred a non-industrial low back injury while playing soccer on or about May 10, 2005, which caused an L4-5 disc herniation; which in turn caused the emergence of lumbar spine symptoms with a new onset of left-sided sciatica. The November 11, 2004 lumbar strain had not been a causative factor.
In response to a specific interrogatory, Dr. Karr added that the non-work related soccer injury causing the disc herniation on or about May 10, 2005 would have occurred to the same extent even if the work related lumbar strain on November 11, 2004 had not occurred.
The commission concludes the applicant's back and leg complaints in May 2005 were caused by a soccer injury resulting in a disc herniation in that month, and were not caused by the November 2004 injury, by buffing, wet sanding, or by other work activities. The commission further concludes that the applicant experienced only a muscle sprain or strain with the November 2004 injury, not a disc injury. While Dr. Spika did report radiating pain in November 2004, he did not diagnose a disc injury, but "rather a lumbar strain with some radicular components." Dr. Spika then referred the applicant to a chiropractor, Dr. Nystrom, for further treatment. Dr. Nystrom in turn reported that the applicant had fully returned to normal duties on January 28, 2005 and released him from treatment on February 18, 2005.
Of course, Dr. Sherrill and Dr. Karr initially did opine that the November 2004 incident caused a disc injury rather than that any May 2005 work exposure or event at work had done so. Dr. Sherrill's expert opinion describes the November 2004 injury sanding the large wooden plug followed by continuing pain despite chiropractic treatment leading eventually to the discovery of the disc herniation by MRI in July 2005. Dr. Karr also implicates the November 2004 injury as causing the disc injury, relying on the history of pain that "does get worse with the repetitive nature of his work duties"(1) and worsened with work activity doing buffing and wet sanding in May 2005. Again, however, there are no medical notes documenting symptoms of back pain between his release to full duty on February 19, 2005 and May 9, 2005. Indeed, the applicant did not treat again until May 2005 when he experienced back pain and radiating symptoms after the soccer injury.
Stated bluntly, neither Dr. Sherrill's opinion nor Dr. Karr's initial opinion were based on a complete history that included the May 2005 soccer injury. The supreme court has held that opinions based on assumed facts that are not proven must be disregarded. Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959). The commission has, of course, observed that the misapprehension of the facts by the doctor must be material to his or her opinion. 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) and Hernandez v. E & B Insulation, WC claim no. 2004-034423 (LIRC, October 29, 2007). Here, the occurrence of the soccer injury was material. Not only did Dr. Karr change his mind upon learning of it, but Dr. Sherrill's opinion also emphasized the importance of an accurate history which recited any possible alternative source of injury.(2) It is reasonable to infer that given the passage of time between the injury of November 2004 and May 2005, punctuated by the return to full duty in February 2005, the doctors were willing to assign the relatively remote event of November 2004 a causative role in the applicant's disc herniation only in the absence of another, more recent event to account for the disc herniation.
The commission is not persuaded otherwise by Lange v. LIRC, 215 Wis. 2d 561, 567-68 (Ct. App. 1997), where the court of appeals held:
...A work-related injury that plays any part in a second, non-work-related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases where the two injuries are related, however, the re-injury will be compensable.
The rules stated in Lange apply when the work injury and off-duty injury are related.(3) In Lange, for example, the work injury caused a small focal disc herniation, which was caused to protrude and fragment by the off-duty slip and fall. Lange, at 215 Wis. 2d 565. The original focal disc herniation with the work injury in Lange was not disputed. Lange did not involve a worker who had a muscular strain which resolved but then suffered a disc injury. Again, while Dr. Sherrill opines that the herniation shown in the July 2005 MRI occurred with the November 2004 lifting injury, that opinion is based on a misrepresented history which omits the reference to the soccer injury. Stated more directly, the commission adopts Dr. Karr's ultimate conclusion that the November 11, 2004 injury caused a lumbar strain but was not a causative factor in the applicant's L4-5 disc herniation. Based on Dr. Karr's opinion the commission also concludes that the applicant would have suffered the same injury from the May 2005 off-duty soccer injury, to the same extent, despite the existence of the November 2004 work-related injury and any subsequent work activity or exposure.
Based on the foregoing, the application must be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed. The application for hearing is dismissed.
Dated and mailed June 30, 2008
galvga . wrr : 101 : 1 ND � 3,38, 8.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He informed the commission that, other than lying about the injury while playing soccer in May 2005, the applicant's testimony was straightforward and not exaggerated. The ALJ credited the applicant's testimony that his back pain remained, and in fact increased, between February and May 2005. He added that while he found Katie Guerts' testimony about the conversation concerning the May 2005 soccer injury quite credible, he had the impression that Merlin Crowe was reaching or stretching in his testimony about the details--the collision followed by a kick in the back--of the soccer injury. The ALJ added that he had believed the applicant had at most a minor injury while fooling around before a game in May 2005 that exacerbated the applicant's pain from the November 2004 work injury, which the ALJ believed was consistent with the applicant's history of prior back injuries at work.
The commission appreciates that if the Lange case and related prior court holdings apply to an off-duty reinjury following a compensable work injury, it may not matter whether the worker minimizes or even outright denies the occurrence of the off-duty reinjury. In this case, the medical reports that tie the cause of the herniated disc to the November 2004 work injury do so based on the assumption of persistent pain following the November 2004 injury to May 2005 without--as Dr. Sherrill puts it--any other mechanism of injury. However, the applicant prevented Dr. Sherrill from learning of the May 2005 soccer injury as another mechanism of injury. Further, the commission cannot conclude the applicant in fact had persistent or continuing pain after February 2005, based on the applicant's misrepresentations concerning the soccer injury and the absence of medical notes documenting continuing complaints for the nearly three-month period following his release by Dr. Nystrom mid-February 2005 to his resumption of treatment in mid-May 2005.
cc:
Attorney Tony Welhouse
Attorney Daniel Zitzer
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