LAURA MONSON, Applicant
HEYDE HEALTH SYSTEM INC, Employer
WEST BEND MUTUAL INSURANCE COMPANY, Insurer
In September 2006, the applicant filed a hearing application seeking compensation for temporary disability and medical expense related to a slip and fall at work on March 20, 2005, later amending the application to include a claim for permanent partial disability. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on August 13, 2007.
Prior to the hearing, the employer and its insurer (collectively, the respondent) stipulated that the applicant fell in the employer's parking lot on March 20, 2005. The respondent also conceded jurisdictional facts and an average weekly wage at the time of the fall at $394.21. In dispute was whether the applicant injured herself as she claims in the fall--that is, whether as a result of the fall she suffered an injury arising out of her employment while performing services growing out of and incidental to that employment. Also in dispute was the nature and extent of disability from any such injury, as well as the respondent's liability for medical expense.
On September 10, 2007, the ALJ issued her findings and order dismissing the application. The applicant filed a timely petition for commission review on September 24, 2007.
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 makes the following:
1. Injury and treatment.
The applicant was born in 1979 and works for the employer as a certified nursing assistant. On March 10, 2005, she slipped and fell in the employer's parking lot on the way in to work. Medical notes refer to the applicant slipping in snow or ice.(1) At the time of her fall, the applicant was unaware that she was pregnant.
Upon falling, the applicant landed on the ground on her buttocks. She experienced pain in her bottom, low back pain, and abdominal cramping after the fall. She reported the injury to the night nurse, who told her to go to work. The applicant began to work, and tried to assist a resident who refused her care. She felt dizzy and had continued cramping. She was taken by ambulance to a local hospital, River Falls Area Hospital.
The report from the River Falls emergency room notes that applicant had been walking to work when she slipped in the snow and fell. She seemed white and diaphoretic(2) at work, then became increasingly pale and seemed to pass out. At the emergency room, she was in a lot of pain and had difficulty focusing. She told the emergency room personnel her pain was "down low, especially in the mid." The doctor who examined her, Daniel W. Zimmerman, M.D., reported there was no bruising. His initial diagnosis was a pubic symphysis separation after a fall causing marked pain with some vasovagal episode.
While at the hospital, the applicant suddenly became more hypotensive. She was pale, slightly diaphoretic, and nauseated. A pregnancy test was ordered, and it was positive. The applicant was exquisitely tender in her abdomen and there was a concern about a ruptured organ. The decision was made to transfer the applicant to St. Croix Regional Hospital via ambulance.
The trauma team note from St. Croix again notes that the applicant fell onto her back and right hip and did not know she was pregnant before the positive pregnancy test. After the fall, the applicant tried to make it into work and then became dizzy, light headed, and nearly syncopal. The trauma team doctor noted no significant sign of trauma, but:
She has had some vaginal spotting over the last 21/2 week. Her last menstrual period was 2 1/2 weeks ago. She is unsure of the exact date. She is gravida 5, para 1,[(3)] with three spontaneous miscarriages.
The doctor's assessment was
Twenty-five year old female who sustained a fall, is hypotensive with acute abdomen with fluid in her abdomen as well. She has been heavily resuscitated, still having difficulty maintaining a blood pressure over 90 systolic. At this time, it was felt the best course would be operative intervention.
The record includes an operative report dated March 10, 2005, from staff surgeon, Bruce Bennett, M.D., who reported:
25-year-old female who had slipped while getting into a truck and fallen on the ice and then proceeded to drive to work. While at work the patient noticed that when she leaned over to pick up something heavy she felt a significant sharp penetrating episode of pain in her pelvic region on the right, followed by lightheadedness and near syncope....
In describing the procedure, the doctor noted:
The pelvis was packed with lap sponges as the suspected working diagnosis was that of a ruptured ectopic pregnancy as opposed to traumatic injury given the events and the patient's symptoms. Indeed, this was found as a ruptured ectopic pregnancy was found in the right fallopian tube near the uterus. There was a continuous stream of hemorrhage from the area, which was controllable with digital pressure.
At this point, Dr. Bennett notes that "Ob/Gyn intraoperative consultation was obtained and they scrubbed in."
The Ob/Gyn surgeon was Robert Hildebrandt, M.D. His operative findings were an approximately 3 cm. right ectopic pregnancy at the isthmic portion of the tube with a normal left tube, ovary and fimbria, and normal uterus. During the surgery, the area of the ectopic pregnancy was located and repaired.
When the applicant was admitted to the intensive care unit post surgery, the admitting doctor noted a chief complaint of abdominal pain post-fall and status post laparotomy for ruptured ectopic pregnancy, and added:
This is a 26-year-old female, G4, P2 who this morning slipped on the ice while coming into work. She said she hit her back against her car. The patient was able to get up from the fall. She did not injure her head or have any loss of consciousness. She works as a care assistant at a medical facility. The patient was starting to work and went to help someone lift a patient when she had a near synocopal episode and complained of significant low abdominal pain, some nausea, and weakness. ... The patient did complain of some abdominal pain and also some right hip pain in River Falls and en route to Regions Hospital. It was also discovered in River Falls that the patient was pregnant per urine pregnancy test. This was suspected to be very early pregnancy, however, because the patient had had a normal menses not too long ago.
The applicant left the hospital and apparently returned to work. She testified that after the first surgery, she was "bruised and crampy." In July 2005, she experienced the sudden onset of abdominal pain, though less severe than in March 2005. There was no fall or traumatic event in this case. She saw a doctor, Eileen Reardon, M.D., whose note is at exhibit H.
Dr. Reardon's July 22, 2005 note indicates that the applicant had presented at the hospital with the sudden onset of abdominal pain, and had been known to be about six weeks pregnant. Dr. Reardon diagnosed a probable left ruptured ectopic pregnancy and internal hemorrhage. During surgery, adhesion and scarring were noted, including scar tissue obscuring her left ovary. Dr. Reardon removed the left fallopian tube and the ectopic pregnancy, and did a dilation and curettage (D&C) procedure.
2. Expert medical opinion.
The applicant seek disability compensation and medical expense related to both the March 10 and July 22, 2005 surgical procedures. The employer denies any liability. Both parties submit reports from medical experts, specifically, Drs. Reardon and Hildebrandt, the two doctors who performed the surgeries.
Dr. Reardon, who performed the second surgery in July 2005, submitted a report at exhibit A. This describes the accidental event causing injury as
Patient was walking to work in the employee parking lot and fell. The fall caused her to suffer a ruptured fallopian tube since she had an ectopic pregnancy at the time. ... As a result, the patient had to undergo surgery on March 10, 2005, ... for the injury suffered to her right fallopian tube as a result of the fall. At the time of the surgeries on March 10, 2005, the left fallopian tube was found to be normal. Thereafter, due to the injury of March 10, 2005 and the treatment necessary for it, the employee developed scarring in the left tube which caused the ectopic pregnancy in the left tube for which the employee was treated by myself at Hudson Hospital....
Dr. Reardon marked the box indicating a direct causal link between the fall and the disability. Addressing the disability and diagnosis, she explained:
Ruptured ectopic pregnancy (right tube) on March 10, 2005, resulting scar tissue developing on left tube with resulting ectopic pregnancy (left tube) July 22, 2005. Patient is left with remaining pain caused by scar tissue as result of the original and resulting treatment.
Dr. Reardon went on to state that the applicant was temporarily totally disabled as a result of the first fallopian tube rupture on March 10, 2005 from that date until April 22, 2005, and again from July 22 to September 18, 2005. Dr. Reardon also noted debilitating "pain and discomfort caused by scar tissue," and rated permanent partial disability at five percent, explaining further:
The claimant gives a history of continuing and ongoing abdominal pain which I believe is related to scar tissue resulting from the injury and treatment made necessary by the work injury. She indicates that pain causes her to miss work at least once a month. Assuming that history to be correct, I would estimate the claimant's permanent disability to be 5% of the body as a whole.
The respondent, in turn, submits the report of Dr. Hildebrandt, the surgeon who did the first procedure on March 10, 2005. He reported that based the applicant's reported last menstrual period, she would have been 21/2 weeks pregnant, but that the pregnancy would not have been positive that soon after conceiving. Consequently, he put her pregnancy at 61/2 weeks on March 10, 2005, noting that ectopic pregnancies rarely if ever rupture before 5 weeks.
Dr. Hildebrandt continued:
Ms. Monson's fall could not have caused the ectopic pregnancy. Ectopic pregnancies occur in situations of prior tubal injury caused by infection which can cause narrowing of the fallopian tube or poor motility function. An ectopic pregnancy can occur as a result of expulsion of the pregnancy from the uterus back into the fallopian tube. For Ms. Monson to have had a ruptured ectopic pregnancy, the pregnancy had to have been established in the fallopian tubes for greater than 10 days. At this early a point in the pregnancy, the fallopian tube and uterus lie low in the pelvis protected by bony pelvis and surround soft tissue. X-rays obtained in the ER showed no evidence for a pelvic fracture and there was no evidence for a pelvic trauma at the time of her surgery. It is my professional opinion that Ms. Monson's fall did not cause, accelerate, or precipitate the rupture of her fallopian tube. This was only spatially timed, and an inevitable endpoint irregardless of her fall.
Regarding the second ectopic pregnancy, Dr. Hildebrandt opined that that would not have been due to the fall either. He allowed that the scar tissue may have been either from the normal post-operative healing process or an infection, but added that
It is my knowledge and experience that this kind of scar formation which occurs as a result of the normal healing processes is limited to the structures outside of the fallopian and that the internal structure and function of the fallopian would be unchanged. Any predisposing risk factors that Ms. Monson may have had that resulted in her first ectopic pregnancy would have put her at risk for a second ectopic pregnancy in her fallopian tube. The fall that occurred on 3/1/05 did not cause her ectopic pregnancy at that time nor was it responsible for her second ectopic pregnancy.
The doctor did note that the applicant would have been disabled for six weeks after each of her gynecological surgeries, and that as a result of the procedures she was now sterile. Still, he concluded neither of the ectopic pregnancies nor rupture of the fallopian tubes occurred as a result of the March 10, 2005 fall.
3. Discussion and award.
The applicant's ectopic pregnancy on March 10, 2005 pre-existed her work injury on that date. However, if a work accident causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). This principle is restated in Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971), where the supreme court wrote:
Furthermore, an employee's predisposition to injury does not relieve the present employer from liability for workmen's compensation. In
Green Bay Warehouse Operators, Inc. v. Industrial Comm. (1963), 19 Wis. 2d 11, 119 N. W. 2d 435, this court rejected a contention that a pre-existing tendency to instability of the shoulder joint, with a tendency to dislocate, relieved the employer of the consequence of liability for medical payments. The court quoted the following from
M. & M. Realty Co. v. Industrial Comm. [at 267 Wis. 63]:
'. . . . [A]n employer takes an employee `as is' and the fact that he may be susceptible to injury by reason of a pre-existing physical condition does not relieve the last employer from being held liable for workmen's compensation benefits if the employee becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual.'
Similarly, the court has stated:
The fact that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee 'as is' and if he is suffering from a disease predisposing to breakage and an exertion required by the employment causes the breakage at the moment of exertion, the employer is liable under the act."
Brown v. Industrial Commission, 9 Wis. 2d 555, 570 (1960).
Along the same lines, an injury which induces or triggers the earlier onset of a deteriorative or degenerative condition is compensable under the worker's compensation laws. Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191, 226 N.W.2d 492 (1975). Indeed, in a case involving heart disease, the supreme court noted:
[A doctor's] statement that the infarction could have occurred at any time and that work itself has little effect on the basic pathology, although the severe exertion could have played a part in precipitating the acute episode, is not necessarily inconsistent with a finding that the heart attack arose out of defendant's employment.
Theodore Fleisner, Inc., v. ILHR Dept., 65 Wis. 2d 317, 323 (1974). Thus, the commission has held respondents liable despite medical opinions that the worker would eventually need the same surgery to treat the pre-existing condition even if the work injury had not occurred. See: James Klemp v. United Parcel Rhinelander, WC Claim No. 940035163 (LIRC, November 7, 1996).
The commission concludes the fall caused the rupture of the applicant's right fallopian tube on March 10, 2005, as Dr. Reardon opined. The commission acknowledges that Dr. Hildebrandt saw no evidence of scar tissue or trauma during his March 10, 2005 surgery, and that the emergency room personnel at both hospitals reported no signs of trauma or at least no significant sign of trauma. However, the commission is not persuaded it would have been reasonable to expect to see scar tissue from the fall during a surgery on the very day the fall occurred. Nor can the commission credit the conclusion that a fall will aggravate, accelerate, and precipitate the course of a fallopian tube rupture in a woman with an ectopic pregnancy only if there is physical evidence of trauma (aside from the rupture), such as torn muscles, bruising, a bone fracture, etc. In short, the absence of bruising, pelvic fracture, or other evidence of trauma does not persuade the commission the fallopian tube rupture was simply coincidental with the slip and fall.
The commission also acknowledges that the slip and fall did not cause the applicant to have an ectopic pregnancy, that ectopic pregnancies must end with miscarriage, and that ectopic pregnancies result in a ruptured fallopian tube. However, that fact that the applicant would have had a miscarriage and could possibly have had a fallopian tube rupture without slipping and falling does not mean compensation may not be paid in this case.
Again, while the Jos. Schlitz court held that the Lewellyn formulation does not allow payment of compensation for "anything that is in the nature of an aggravation, however, slight," the court also noted that the "threefold requirement is that the work incident be such as induces or triggers an earlier onset of a deteriorative or degenerative condition." Id., at 67 Wis. 2d 191. Under Theodore Fleisner, Inc., the facts that the rupture could have occurred any time and that the March 10, 2005 fall did not cause the basic pathology leading to the formation of the ectopic pregnancy in March 2005 are not inconsistent with the finding that the March 10, 2005 fallopian tube rupture arose out of the applicant's employment.(4) In this case, the commission concludes the applicant's fall caused the fallopian tube rupture on March 10, 2005, as Dr. Reardon credibly opined, and that the applicant has established an accident causing an injury arising out of her employment with the employer, while performing services growing out of and incidental to that employment.
The next issue is the nature and extent of disability. Dr. Reardon credibly opined the applicant was temporarily totally disabled following the March 10, 2005 right fallopian tube rupture from March 10 to April 22, 2005, which coincides with Dr. Hildebrandt's opinion that the applicant would have been disabled for six weeks after her gynecological surgeries.
However, the commission is not persuaded that the applicant has established that the subsequent ectopic pregnancy involving the left fallopian tube in July 2005, or the need for the July 22, 2005 surgery, was caused by the March 2005 work injury. The applicant had had two or three miscarriages before the ectopic pregnancy that ended with the right ruptured fallopian tube caused by the fall on March 10, 2005. As Dr. Hildebrandt pointed out, whatever factors predisposed the applicant to the development of the ectopic pregnancy in March 2005 also predisposed her to the development of the ectopic pregnancy in July 2005. Given the prior miscarriages and the previous development of the ectopic pregnancy that ended in March 2005, all of which predated the fall at work on March 10, 2005, the commission cannot credit Dr. Reardon's opinion that the March 10, 2005 injury caused the July 2005 ectopic pregnancy and attendant disability.
Dr. Reardon credibly estimated permanent partial disability at five percent compared to disability to the body as a whole, based on continuing, debilitating abdominal pain symptoms and discomfort caused by scar tissue. The applicant testified that she was already crampy in the period between the first surgery in March 2005 and the second in July 2005. Consequently, the commission concludes that Dr. Reardon's assessment of permanent disability is based on the disabling symptoms from the scar tissue resulting from the compensable March 10, 2005 procedure.
The applicant is therefore entitled to temporary total disability for the first period she claims, from March 10 through April 21, 2005, a period of 6 weeks. At the weekly rate of $262.81 (two-thirds of the applicant's average weekly wage of $394.21), this amounts to $1,576.84 in temporary disability compensation. The applicant is further entitled to 50 weeks of permanent partial disability compensation at the weekly rate of $242 (the statutory maximum for injuries in 2005), for a total of $12,100, all of which has accrued.
In all, the amount awarded for temporary and permanent disability under this order equals $13,676.48. The applicant agreed to the payment of an attorney fee under Wis. Stat. § 102.26, set at 20 percent of the amounts awarded for disability compensation, or $2,735.37. The fee, together with costs of $338.34, shall be deducted from the award and paid to the applicant's attorney within 30 days. The remainder, $10,603.13, shall be paid to the applicant within 30 days.
Based on exhibit I (after eliminating charges related to the applicant's treatment for the ectopic pregnancy that ended in July 2005), the commission concludes the applicant incurred the following reasonable and necessary medical expenses (5) to cure and relieve the effects of her work injury causing the right fallopian tube rupture on March 10, 2005: from Regions Hospital, $36,709.87, of which the applicant has paid $500.00, and $36,209.87 remains outstanding; from River Falls Area Hospital, $4,173.04, of which the applicant has paid $200.00, and $3,973.04 remains outstanding; from St. Croix EMT $690.00, of which the applicant paid $325 and $365 remains outstanding; from River Falls Ambulance, $1,067.67, of which the applicant paid $365.00 and $702.67 remains outstanding; from Twin City Anesthesia, $915.00, of which the applicant paid $515 and $400.00 remains outstanding; from River Falls Hospitals & Clinics (identified as Allina Hospitals & Clinics on the bill), $248.00, all of which remains outstanding; and from Shopko Pharmacy, $17.99, all of which was paid by the applicant.
Dr. Reardon opined the applicant's prognosis was guarded, that her pain might increase, and that she would at minimum need ongoing treatment to deal with her pain. Therefore, this order shall be left interlocutory to permit orders and awards for additional temporary and permanent disability and medical expense as may arise in the future as a result of the March 10, 2005 injury and consequent right fallopian tube rupture.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Laura Monson, the sum of Ten thousand, six hundred three dollars and thirteen cents ($10,603.13) in disability compensation and One thousand, nine hundred twenty-two dollars and ninety-nine cents ($1,922.99 ) in out-of-pocket medical expense
2. To the applicant's attorney, Charles B. Harris, the sum of Two thousand, seven hundred thirty-five dollars and thirty-seven cents ($2,735.37) in fees and Three hundred thirty-eight dollars and thirty-four cents ($338.34) in costs.
3. To Regions Hospital, Thirty-six thousand two hundred nine dollars and eighty-seven cents ($36,209.87) in medical treatment expense.
4. To River Falls Area Hospital, Three thousand, nine hundred seventy-three dollars and four cents ($3,973.04) in medical treatment expense.
5. To St. Croix EMT Three hundred sixty-five dollars and no cents ($365.00) in medical treatment expense.
6. To River Falls Ambulance, Seven hundred and two dollars and sixty-seven cents ($702.67) in medical treatment expense.
7. To Twin City Anesthesia, Four hundred dollars and no cents ($400.00) in medical treatment expense.
8. To River Falls Hospitals & Clinics, Two hundred forty-eight dollars and no cents ($248.00) in medical treatment expense.
Jurisdiction is reserved for orders and awards as are warranted and consistent with this decision.
Dated and mailed June 18, 2008
monsola . wrr : 101 : 1
ND §§ 3.37, 5.46
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not consult with the presiding ALJ in this case because its decision is not based on a different impression of the credibility of the applicant's hearing testimony. Rather, the commission reversed because it credited a different medical expert in a case where neither expert testified before the ALJ. See Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998).
cc:
Attorney Charles Harris
Attorney David Topczewski
Appealed to Circuit Court.
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