MICHAEL GLASS, Applicant

MARSDEN BUILDING MAINTENANCE LLC, Employer

LUMBERMENS MUTUAL CAS CO, 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, except that it makes the following modifications:

1. Delete the first sentence of the last paragraph of the ALJ's Findings of Fact, and substitute:

"After a review of the testimony and record, it is determined that neither the applicant's left hip problem nor his lower back problem was caused by or worsened by his employment at the respondent.".

2. Delete the fifth sentence of the last paragraph of the ALJ's Findings of Fact.

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

Dated and mailed June 30, 2008
glassmi . wmd : 101 : 1 ND § 3.4, 3.37, 3.42

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant was born in 1953. He is claiming that his employment for the named employer, where he worked from September 1998 to January 2001, was a material contributory causative factor in the progression of his disabling left hip condition.

Prior to starting work for the named employer, the applicant played semi-pro basketball in the former CBA, in the 1970s, and refereed games in the CBA and summer leagues from 1981 to 1994. While working as a referee in 1994, the applicant suffered a left hip injury. One of the applicant's treating doctors, Vance Masci, M.D., describes the 1994 injury as follows:

... He states that he was involved in a work injury in 1994 in which he fell while running while he was refereeing a basketball game for the CBA. He states that his left hip popped. He was able to keep reffing. He finished the game and afterwards iced his hip. From then on, he would always apply heat to his hip before games and ice afterwards because he had significant symptoms. He finished about 15 games to end the season and then was unable to return the following fall. During the 1995 NBA lockout, he was able to return and reffed for about 10-20 games, suffering severe left hip pain that markedly worsened during the course of that activity. Following these games he never refereed again.

His hip symptoms have progressed over the course of the next five years

The applicant testified on cross examination that he had been icing his hip since 1994. Exhibit 3 includes treatment notes documenting hip treatment going back to February 1998. On February 1998, he was seen at a hospital ER where he was noted as complaining of left hip pain for 4 months. He was noted to have pain in internal and external rotation. An x-ray showed moderately advanced osteoarthritis of the left hip.

The applicant began working for the named employer, an armored truck courier service, in September 1998. He started as an armored truck driver, and did loading and unloading of boxes and bags containing money. The bags weighed 40 to 50 pounds if filled with coins. He worked an eight to then hour day, five days a week. After a year on the job, the applicant was promoted to supervisor, though he still would drive if a worker was absent, and filled in on a truck for parts of most days. He also still did loading and unloading. He worked more hours, up to ten to twelve hours a day.

In early June 2000, the applicant saw John Kroner, M.D., and told the doctor he had severe pain he felt he could no longer tolerate. Dr. Kroner noted a several-year history of problems. On July 3, 2000, Dr. Kroner performed a left total hip arthroplasty on a diagnosis of degenerative joint disease. A discharge summary dated July 8, 2000 includes a diagnosis of severe degenerative joint disease in the left hip. A handwritten discharge sheet at exhibit 3 documents hip pain for 4 years prior to surgery.

Regarding the cause and extent of disability, the applicant submits a report from N.M. Reddy, M.D., a physical medicine specialist who examined the applicant on referral from his attorney on October 30, 2005. Dr. Reddy noted the development of hip pain in 1994 after the applicant fell while running when working as a referee, after which the applicant changed jobs but had ongoing symptoms including lower back pain as well as hip pain. The doctor added:

...He developed further aggravation of back and hip pain in June 2000 while he was employed at American Security Corporation. He got out of a truck while unloading it. Suddenly he felt a snap in his back and burning sensation in the groin. After this incident pain radiated to the lower back and the groin pain also worsened. He felt that this pain was acute and new and at least 50% (fifty percent) worse than before. He feels that overall his pain has been at least 50% (fifty percent) worse on a constant basis since the injury of June 2000.

Dr. Reddy's diagnostic impression was

1. Chronic low back pain with L5/S1 herniated nucleolus pulposus and L5 radiculopathy per electromyography and nerve conduction studies. This appears to be a significant exacerbation from prior low back pain.

2. Chronic piriformis syndrome

3. Total hip arthroplasty in 1994 and 2003 with first injury and second injury respectively as described above.

4. Chronic pain syndrome, anxiety, depression

Dr. Reddy's opinion on causation was

...initially injured in 1994 as an NBA coach. After completing the season, he changed to a different job and was working as head of security patrolling and doing a lot of walking between 1995 and 1997. At that time he was employed at the Milwaukee Yacht Club. In order to make more money, he moved on to a job at American Security Company, as a supervisor on armored trucks. He, in his job, was performing high amount of repetitive and strenuous physical tasks as described in the history. He experienced acute onset of symptoms in the left hip region and lower back on a day in June 2000. This has been reported to the employer and he sustained the injury on a Saturday. On the Monday following the injury, he reported it officially.

...It is my professional opinion that he has both hip and lower back pathology which is likely to be from the injury in 1994. However, the onset of worsening of back pain in the left hip and lower back in 2000 precipitated the current episode of severe pathology in both the hip and lower back regions.

...In conclusion, Mr. Glass has sustained work related injuries. His hip as well as lower back conditions are substantial and the disability contributed by both 1994 and subsequent injuries including the one at American Security in the year 2000.

The employer and its insurer (collectively, the respondent) retained Michal Orth, M.D., as its medical examiner. He did not think work for the employer was a material contributory causative factor in the onset or progression of either the left hip or low back disability. He explained:

...First of all, in regard to the left hip, quite clearly this is due to an injury he sustained while refereeing and, prior to his employment, he was having significant difficulty. The type of work he did was varied. He was already having severe difficulty when he was employed and the surgery that was required was due to the pre-existing problem. There is nothing to indicate it was in way aggravated by the work at ASC. As indicated, he had severe problems and it was following its normal progression in my opinion. In regard to the low back, this developed at a much later time when he was not employed at ASC, and therefore there is nothing in the records that would cause one to be of the opinion that it was related to his work. In addition, the type of work he did was varied and he had no complaints in regard to his back in that regard. Based on all the information available to me, it is my opinion that his employment at ASC was not a material contributory causative effect in either the onset or progression of either left hip or low back difficulty.

The ALJ denied compensation. Crediting Dr. Orth's report, the ALJ found no work injury occurred while the applicant was employed with American Security, the named employer, and dismissed the application. The applicant appeals asserting that Dr. Reddy explains his expert opinion, while Dr. Orth simply draws a conclusion. The applicant also makes the point that the applicant's pre-existing condition made him more likely to be injured when subjected to repetitive strain at work.

If a work injury 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); Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971). Further, in the context of occupational disease specifically, a worker's employment exposure need not be the sole cause or the main factor in the applicant's disabling disease. City of Superior v. ILHR Department, 84 Wis. 2d 663, 668 note 2 (1978); Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88 note 5. It is sufficient to show that work exposure was a material factor in the development or progress of the disabling disease. Id; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).

Still, the commission concludes the ALJ properly concluded the applicant's left hip and low back problems were not caused or worsened by his employment exposure with the employer. On this point the commission notes the relative seriousness of the 1994 injury while refereeing. Indeed, the applicant initially reported that to Dr. Masci as the cause of his condition. While the applicant himself is not a medical doctor, in his first report, Dr. Masci stated that the fall while referring caused the hip injury, perhaps aggravated by the walking the applicant did as a security guard for the Milwaukee Yacht Club. Indeed, he stated this opinion despite being aware of the work the applicant did for the named employer, American Security. Nonetheless, Dr. Masci initially did not assign a causal role to the work with American Security, but stated that, following the 1994 injury,

His hip symptoms have progressed over the course of the next five years such that he needed surgery for a total hip replacement on 5 July 2000, and unfortunately had to have it redone on 23 April 2003....

The commission also notes that Dr. Kroner's notes refer to pain for four years or "several years" before the July 2000 hip replacement surgery, which would pre-date the start of the applicant's employment in 1998.

Finally, while his report implicates the work exposure with American Security over time generally as a cause of the applicant's disabling hip and back conditions, Dr. Reddy also relies on a specific June 2000 injury in which the applicant was hurt getting out of a truck. However, the commission's review of the treatment notes do not disclose mention of such an injury in June 2000; rather the medical records seem to point back in time to the 1994 refereeing injury as the source of the applicant's disability. In sum, the commission, like the ALJ, finds the medical opinion of Dr. Orth more credible on this record.

cc: Mr. Michael Gillick
Mr. Roland Cafaro

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