CALVIN D AGER, Applicant

JAHN TRANSFER, Employer

ACUITY INSURANCE 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.

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

Dated and mailed August 19, 2008
agerca . wsd : 175:8 ND §5.50

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The applicant asserts in his petition for commission review the administrative law judge erred in determining the applicant suffered only a temporary aggravation of his preexisting condition, as a result of the work injury to his back on October 28, 2005, and his subsequent fusion surgery and treatment were not necessitated by the work injury. However, the applicant did not present any medical support for his contention that his fusion surgery in February 2006 was caused by his work-related back injury in October 2005. Dr. Rigden, the applicant's family physician, who he saw for medical support, did not provide an opinion the applicant's need for surgery in February 2006 was due to the work incident in October 2005. Further, the applicant did not get any medical support for his contention that his fusion surgery was caused by the work injury from Dr. Stevens, who performed his fusion surgery in February 2006.

The overwhelming evidence from Dr. Bowman, one of the applicant's treating physicians, and from Dr. Burgarino, who examined the applicant on behalf of the employer, was that the applicant had longstanding degenerative disc disease which was only temporarily exacerbated by his work incident in October 2005. The fact that Dr. Stevens recommended surgery for his back problems in February 2006, and Dr. Burgarino opined the applicant would reach a healing plateau from his work incident in April 2006, did not establish causation in this case. Although the applicant may have still been treating for pain symptoms due to his work injury until April 2006, the only medical evidence presented indicates Dr. Stevens performed the fusion surgery in February 2006 for the applicant's preexisting condition, and not due to his work injury.

The applicant contends in his petition for commission review, he believes that the doctrine enunciated in Spencer v. DILHR, 55 Wis. 2d 525 (1972), should apply in this case. In Spencer v. DILHR, the Wisconsin Supreme Court held that where an employee in good faith accepts a recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment including additional temporary disability, greater permanent disability, and medical expense, because it finds that treatment was unnecessary or unreasonable. However, in our current case, there was no disagreement among the treating physicians and Dr. Burgarino. All of the physicians who presented evidence in this case agreed that the applicant suffered only a temporary aggravation with no permanent disability or need for fusion surgery as a result of the work incident. The applicant did not present any evidence to support his claim that the need for surgery was caused by the work incident in October 2005. Therefore, the Spencer Doctrine would not apply in this case.

Given the reports of Dr. Burgarino, as well as Dr. Bowman and Dr. Rigden, and given the evidence of the applicant's preexisting back problems as illustrated in his testimony, and given the applicant's objective tests, which revealed significant and preexisting disc disease at multiple levels, the commission finds that the applicant suffered only a temporary aggravation of his preexisting condition due to the work incident on October 28, 2005 which did not result in the need for fusion surgery and subsequent treatment. Therefore, the administrative law judge appropriately dismissed the applicant's claim with prejudice.

cc: Attorney Daniel M. Pedriana

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