BEVERLY BUSSEY, Applicant
MEMORIAL COMMUNITY HOSPITAL, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
The applicant filed an application for hearing in September 2006, seeking compensation for an occupational injury due to repetitive stress at work with a September 19, 2005 date of injury. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 20 and November 29, 2007.
Before the hearings, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $1,018.80 on the date of injury. At issue was whether the applicant sustained an injury arising out of her employment with the employer while performing services growing out of and incidental to that employment, as well as the nature and extent of disability from any such injury.
On December 27, 2007, the ALJ issued his decision dismissing the application in this matter. The applicant filed a timely petition for review.
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:
The applicant was born in 1956. She began working for the employer(1) as a certified nursing assistant (CNA) in 1975 at age 18, passing the employer's pre-employment physical before beginning work. After a year, the applicant became a licensed practical nurse, and worked for the employer in that capacity from 1976 to 1996. In 1996, she became a registered nurse and continued to work for the employer in that capacity until the date of injury on or about September 19, 2005.
As a CNA, the applicant worked 12-hour shifts. She moved patients in and out of bed or chairs, to the toilet, etc. Some of the patients weighed 200 pounds. Some patients were ambulatory, others required complete assistance. Some might be combative, or would move or jerk themselves the "wrong way" when the applicant tried to help them.
The applicant might have a coworker help her when she moved patients while working as a CNA, but there were no mechanical lifts. She sometimes lifted while bent over or trying to twist at the waist. Bending and twisting was also required when she would change linens, sometimes while the patients remained in bed.
As an LPN and RN, the applicant's duties changed somewhat, with more paperwork, but she continued to do some bathing, toileting and lifting of patients. She estimated that as an LPN, she did duties similar to those of a CNA perhaps 75 percent of the time. As an RN, it was closer to 66 percent. At the end of her shift, she would have a sore or achy back.
Beginning in about 1992, she began experiencing chronic recurrent back pain in the sciatic notch, more in the right side than the left. The pain was triggered by activity like bending, twisting or lifting. Sometimes the pain caused her to miss work.
The applicant's chronic pain was exacerbated by household duties such as cleaning, or helping her husband, a tobacco farmer, plant, harvest, and string tobacco. The farm work involved lifting tobacco plants weighing perhaps 5 to 10 pounds; she described the duties not as physical as her job with the employer. She also tripped and fell carrying groceries off duty in June 2004, aggravating her back in the process, though her pain returned to baseline in a few days.
Over the years the applicant's chronic back pain became more common. An MRI of the lower back done in February 2002 showed a disc bulge at L4-5 and a herniation compressing a nerve root at L5-S1. In July 2005, the applicant had another MRI which showed a bulging disc at L4-5 and a moderately protruding disc at L5-S1. She underwent injections for back pain and underwent physical therapy.
During the weekend of September 17-18, 2005, the applicant felt a sharp stabbing pain--the medical records mention a "pop"--in her back radiating to her leg while moving a computer monitor at home. The computer monitor was an older model, not the newer LED variety, but the applicant described the size and weight as minimal compared to moving a patient. The applicant described the pain as quite debilitating.
The applicant was unable to work following this incident, and sought treatment. Another MRI was done in September 2005. It showed a new finding probably indicative of a sequestered disc fragment serving to partially compromise the right subarticular portion of the S1 nerve root. After trying another injection, Jeffery Masciopinto, M.D., performed a microdiscectomy at L5-S1 and L4-5 fusion. An L4-5 laminotomy was performed as part of this procedure. See exhibit 7, operative report of Masciopinto dated October 25, 2005.
The applicant returned to work at her normal duty on February 20, 2006, but had more pain in May 2006 upon awaking the morning after quickly moving a patient on a gurney at the cath lab at work. She was hospitalized on May 15, 2006. Another MRI was done that month, which showed a disc herniation at L5-S1 on the right, described as significantly different than the one shown in the September 2005 MRI. On June 13, 2006, Dr. Masciopinto performed another surgery, which included a "reexploration for discectomy lumbar 5 sacral 1 right with microdissection technique," and extending the fusion from L4 to S1. During this procedure, the doctor described the prior L4-5 fusion as "totally stable." He removed part of the L5 lamina, and performed an L5-S1 fusion. He added that "an allograft was then placed over the transverse region 4-5 and L5-S1 on the right. See exhibit 7, June 13, 2006 operative report of Masciopinto; exhibit C, report of Midthun.
After the second surgery, the employer had no work for the applicant. She returned to work on October 23, 2006, with another employer, Dean, as a float nurse at a hospital. She earns about the same wages with Dean as she made while working for the employer.
The applicant submits expert medical reports from Dr. Masciopinto and David B. Gattuso, M.D., who opined the applicant's repetitive bending, lifting, reaching, twisting, and turning activities, including moving patients as a CNA, LPN, and RN, were a material contributory causative factor in her disability leading to the October 2005 lumbar fusion surgery, and that her work duties and the October 2005 surgery were material contributory causative factors in the need for the second surgery in June 2006. These reports listed the October 19, 2005 last day of work as the date of disability.
A third treating doctor, Thomas T. Midthun, M.D., concurred. Dr. Masciopinto eventually set work restrictions to 25 pound maximum lift, with an 8 to 10 hour day, as of October 2006. He rated permanent partial disability at 15 percent. Exhibit D, report dated August 24, 2007.
The respondent's medical examiner, Stephen Robbins, M.D., opined in September 2007 that applicant had degenerative spondylolisthesis of L4 on L5, status post lumbar laminectomy, fusion, and repair of pseudoarosiss, noting as well the L5-S1 disc herniation followed by an L5-S1 laminectomy and fusion. Dr. Robbins did not think these conditions were work related, noting the onset of symptoms at home after moving the computer monitor and the absence of traumatic injuries at work. He noted her job as a nurse did involve repetitive bending, lifting and twisting, but opined these are normal activities, noting again "the absence of significant episodes of back pain at the workplace that required medical evaluation would be reflective of occupational exposure." He did not feel the simple fact she did bending, lifting and twisting at work meant she had a work injury. Instead, he felt she developed degenerative spondylolisthesis as a result of normal activities. Dr. Robbins did rate permanent partial disability at 20 percent for what he concluded was a non-work related condition.
From a legal standpoint, there is no requirement of repeated traumatic back injuries to prove a back injury from occupational disease, that is, from occupational exposure over time. Wis. Ins. Sec. Fund & Eau Galle Cheese Co v. LIRC, 2005 WI App 242, 288 Wis. 2d 206, 707 N.W.2d 293. Further, work exposure or activity need not be the sole or even the main factor in the progression of the disabling condition, simply a materially contributory one. 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; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).
Further, the fact that the applicant suffered an off-duty aggravation to her back condition does not preclude an award in her favor. In Lange v. Ideal Door Company, WC claim no. 91003958 (LIRC, September 29, 1994), reversed and remanded sub nom. Todd E. Lange v. LIRC, 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App., 1997), the commission noted:
... a reinjury may be compensable if it is caused by the weakened condition of a worker, or where the work-related injury made the worker more vulnerable to reinjury, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 608-09 (1929) and Burton v. ILHR Department, 43 Wis. 2d 218, 228-228a (1969). In Burton, for example, a fireman who injured himself when he slid down a firepole was found to have so weakened the disc structure so that a disc protrusion caused by a sneezing attack nearly a year later was held to be compensable.
Likewise, Professor Larson states that an off-duty reinjury is compensable when "the episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury." 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993).[(2)] In Wisconsin, if medical proof establishes that the residual effects of a compensable injury cause a subsequent off the job reinjury, the employer is liable for the subsequent reinjury. In such cases, courts will examine whether the work injury is a "substantial factor" in the off-duty reinjury.
In Lange, the court of appeals did not accept the commission's ultimate conclusion denying compensation following a subsequent, off-duty slip-and-fall. In finding instead that the disability from the off-duty injury was compensable, the court of appeals observed:
In its decision, LIRC ... did note that a re-injury is compensable if it is caused by the weakened condition of a worker, Western Lime & Cement Co. v. Boll, 194 Wis. 606, 608-09, 217 N.W. 303, 304 (1928), or if the work-related injury made the worker more vulnerable to re-injury, Burton v. DILHR, 43 Wis.2d 218, 228-28a, 168 N.W.2d 196, 200-01 (1969). LIRC also specifically concluded that Lange's second injury "alone was responsible for the dramatic change," thereby implying that if the first injury was related to the results caused by the second injury, the injury would be compensable.
We agree with this implicit conclusion. 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.
Lange v. LIRC, 215 Wis. 2d at 567-68.
In this case, the applicant has a 30-year history of relatively heavy work duties, sometimes performed in awkward positions. She has a history of progressively worsening pain during her employment, and her back has been bothering her on a regular basis since 1992. She testified her back was sore at the end of a work day, something that is quite easy to believe given her duties. She testified, too, that her work activities providing patient care were more strenuous than those of everyday living, notwithstanding the tobacco farming chores. Given the nature of her job, this testimony is credible.
The commission therefore finds the opinions of Drs. Gattuso, Masciopinto, and Midthun credible, and concludes the applicant sustained an injury arising out of her employment, while performing services growing out and incidental to her employment. Specifically, her disabling injury resulted from an appreciable period of workplace exposure to bending, lifting, reaching, twisting, and turning activities, performed while moving patients and doing other patient care duties, that was at least a material contributory causative factor in the onset or progression of her disabling condition. The date of disability setting the date of injury in this case is September 19, 2005.(3)
The next issue is the extent of disability. The applicant seeks temporary total disability from September 19, 2005 to February 20, 2006 for the first surgery following the computer-monitor-moving incident, and again from May 15 to October 23, 2006, for the second surgery performed after the gurney-moving incident. Based on the record established, the commission is satisfied that she was temporarily disabled from work during these periods.(4)
The applicant is therefore entitled to temporary total disability benefits from September 19, 2005 to February 20, 2006, a period of 22 weeks. At the weekly rate of $679.20 (two-thirds her average weekly wage of $1,018.80), she is entitled to $14,942.20 in temporary total disability benefits for this period. She is also entitled to temporary total disability benefits from May 15 to October 23, 2006, a period of 23 weeks. At the weekly rate of $679.40, she is entitled to $15,621.60 in temporary total disability benefits for this period. The total in temporary total benefits due under this order equals $30,564.
The applicant also seeks permanent partial disability at 35 percent to the body as a whole, fifteen percent for the October 2005 surgery and 20 percent for the June 2006 surgery. The applicant's disability claim appears to be based on minimum ratings at Wis. Admin. Code § DWD 80.32(11). Dr. Masciopinto estimated permanent partial disability at a functional basis as only 15 percent to the body as a whole in his practitioner report, while Dr. Robbins' estimate is 20 percent. The commission declines to adopt either doctor's estimate, which are both lower than the minimum required by the administrative code. See
DaimlerChrysler v. LIRC, 2007 WI 15, ?? 35
et seq., 299 Wis. 2d 1.
After examining the operative reports, the commission believes an award of permanent partial disability at 25 percent compared to permanent total disability is warranted under Wis. Admin. Code § DWD 80.32(11) and accompanying interpretative note. The commission agrees with the applicant that a fifteen percent rating is appropriate under the code for the first surgery which included an L5-S1 discectomy, an L4 laminectomy, and an L4-5 fusion. However, the commission concludes only an additional ten percent is warranted for the second surgery, based on Dr. Masciopinto's operative report detailing an L5 laminectomy and an L5-S1 fusion. The commission does not read the doctor's operative report to establish the performance of an actual "refusion" at L4-5, as the operative note described the prior L4-5 fusion as "totally stable."
The applicant is therefore entitled to 250 weeks of compensation for permanent partial disability. At the weekly rate of $242 (the statutory maximum for injuries in 2005), this totals $60,500. As of September 12, 2008, 110 weeks and 4 days (110.6667 weeks) amounting to $26,781.33 have accrued; 139 weeks and 2 days (139.3333) amounting to $33,718.67 remains unaccrued.
The applicant approved the withholding of an attorney fee, set under Wis. Stat. ? 102.26 at 20 percent of the amount awarded for disability under this order. The future value of the fee equals $18,212.80 {0.20 times ($60,500 plus $30,564)}. However, the fee is subject to an interest credit of $435.06(5) to reflect the advance payment of fee attributed to unaccrued permanent disability as of September 12, 2008. The present value fee is $17,777.74, which equals the accrued fee ($11,469.07)(6) plus the future value of the unaccrued fee ($6,743.73)(7), less the interest credit ($435.06). The present value fee shall be paid the applicant's attorney within 30 days.
The amount due the applicant within 30 days for accrued disability compensation to September 12, 2008, is $45,876.27, which equals the sum of the temporary total disability ($30,564.00) plus the accrued permanent partial disability ($26,781.33), less the fee thereon ($11,469.07). The amount remaining to be paid to the applicant as it accrues after September 12, 2008, 2007, is $26,974.93, which equals the unaccrued portion of the award ($33,718.67), less the future value of fee ($6,743.73) thereon. That amount shall be paid to the applicant in monthly installments of $1,048.67 per month, beginning on October 12, 2008.
The applicant's attorney also requested an order under Wis. Stat. § 102.13(2)(b) requiring Dean Health System to pay $193 in costs and fees under Wis. Stat. § 102.13(2)(b) incurred in enforcing the applicant's right to duplicate medical records. As an allowance, recovery, or liability under Wis. Stat., ch. 102, the commission is satisfied that it and the department have the authority to make orders requiring payments under Wis. Stat. ? 102.13(2)(b).(8) The hearing record establishes that a representative of Dean Health System appeared at the hearing at the request of its legal department. It appears from her testimony and the representations of the applicant's attorney that: (1) an order under Wis. Stat. § 102.13(2)(b) is warranted in this case (assuming the department has not already issued such an order) and (2) Dean Health System's representative was put on notice of the ALJ's intent to issue such an order. See September 20, 2007 transcript, pages 6 et seq. and exhibits E and F.
It does not appear that medical expenses were litigated at the hearing in this case. Further, the applicant may have a claim for permanent partial disability on a vocational basis for loss of earning capacity. While Dr. Masciopinto stated he does not anticipate further treatment in his August 24, 2007 report, the applicant has undergone extensive surgery including two levels of lumbar fusion. This order shall therefore be left interlocutory to permit a claim for medical expenses and for permanent partial disability on a vocational basis, as well as claims for future disability and medical expense that might occur after the date of hearing.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:
1. To the applicant, Beverly Bussey, Forty five thousand, eight hundred seventy-six dollars and twenty-seven cents ($45,876.27) in disability compensation.
2. To the applicant's attorney, James A. Meier, Seventeen thousand, seven hundred seventy-seven dollars and seventy-four cents ($17,777.74) in fees.
Beginning on October 12, 2008, and continuing on the twelfth day of each month thereafter, the employer and its insurer shall pay the applicant One thousand forty-eight dollars and sixty-seven cents ($1,048.67) per month, until the additional amount of Twenty-six thousand nine hundred seventy-four dollars and ninety-three cents ($26,974.93) has been paid.
Within 30 days from the date of this order, Dean Health System shall pay the applicant's attorney, James A. Meier, One hundred ninety-three dollars and no cents ($193.00) in costs and fees under Wis. Stat. § 102.13(2)(b).
Jurisdiction is reserved for further orders and awards as are necessary and consistent with this decision.
Dated and mailed September 9, 2008
busseyb . wrr : 101 : 1
ND ?? 1.5, 3.4, 3.38, 3.42, 5.24, 8.21, 8.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not confer with the presiding ALJ. It was evident he credited applicant's testimony about her job duties, which included lifting and moving patients weighing up to 200 pounds. Indeed, no witnesses testified to contradict the applicant's description of her job duties. However, the ALJ credited Dr. Robbins' expert medical opinion in part because the applicant felt severe low back pain and popping while moving the computer monitor at home, another fact not in dispute. In short, this is a case where the commission reversed the ALJ based on a different conclusion as to the relative credibility of the opinions of the medical experts, none of whom testified, on undisputed facts. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611 (Ct. App. 1998).
cc:
Attorney James A. Meier
Attorney Laura L. Salerno
Dean Health System
ATTN Allison Mooney
Appealed to Circuit Court.
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