DONALD A SOCHA, Applicant
CEMSTONE READY MIX, Employer
ST PAUL MERCURY INSURANCE COMPANY, Insurer
In June 2006, the applicant filed an application for hearing seeking compensation for an injury in June 2005 from occupational disease causing aggravation of a lumbar condition. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the claim on September 5, 2007. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $724.40.
In dispute was whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment, the nature and extent of any such disability, and the respondent's liability for medical expenses. By order dated November 16, 2007, the ALJ found for the respondent, dismissing the application with prejudice. The applicant filed a timely petition for review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility and demeanor, and
reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The applicant was born in 1963. In June 1990, he hurt his back while employed as a construction worker for another employer. As a result, he underwent a laminectomy in August 1990 followed by a two-level fusion in the lumbar spine in June 1991.(1) His doctors subsequently imposed light duty restrictions of twenty to thirty-five pounds occasional lifting and ten pounds frequent lifting. The applicant sought compensation for disability and vocational retraining for his 1990 injury which were eventually settled.
The applicant continued to have back pain symptoms after surgery, and underwent chiropractic treatment. He found work with another employer, Hopkins Sand and Gravel, where he drove a cement truck. In 1997, while employed by Hopkins, the applicant had an injury to his shoulder and neck. That claim was compromised.
The applicant worked for the employer, Cemstone Redi Mix, Inc., as a cement truck driver from June 2003 to July 2005. He gave a pre-employment history in which he denied having had a prior spinal injury, and mentioned neither his prior surgeries nor his work restrictions. Prior to beginning work with the employer, however, he underwent a physical examination, which the applicant described as being a series of short physical tests. Transcript, pages 19, 114.
During the first part of his employment with the employer, the applicant drove a rear discharge cement truck. In this job, the applicant would have to climb up steps on the vehicle to add calcium chloride to the cement which involved carrying a forty pound bag to the top of the truck and pouring it in perhaps four to seven times per day. The applicant later began using a front pouring truck which involved climbing fewer steps.
Drivers also were required to spray out their trucks with a hose to clean out the concrete. Once in a while, a worker would have to chip out the concrete using a jackhammer. During the earlier part of his employment, the applicant's truck was a manual, nine-speed transmission which required him to operate a clutch and shift up and down through the gears as he drove. There was some jarring and bouncing in the truck on construction sites, particularly when the truck was empty.
At times, the applicant had to put chutes on the cement truck when pouring out the concrete. If the concrete was pumped out, the driver would not have to add chutes. Otherwise, the driver would install up to three chutes depending on how far the concrete had to be moved to be poured. The individual chutes weighed at least 30 to 40 pounds. They had to be lifted from where they were stowed on the fender of the truck (about waist height), and attached to the rear of the truck.
The applicant testified that from 1997 to 2004, he saw a chiropractor a couple of times a month. Nonetheless, he was able to work and do his job for the employer which, again, he began in 2003. Eventually, climbing the ladders on the truck to get in and out became more difficult for the applicant. He noted difficulty bending and squatting. He noted pain especially with bouncing around. He had difficulty chipping cement from the inside of the truck, and taking the chutes on and off the truck. Consequently, in the fall of 2004, the applicant began treating with a medical doctor again.
Specifically, the applicant began seeing Daniel Erickson, M.D., who ordered physical therapy. A CT scan showed some degenerative change in the lumbosacral spine along the facet joints. On March 22, 2005, Dr Erickson referred the applicant to Mark Weber, M.D., an anesthesiologist at a pain clinic, who noted symptoms of headache and low back pain. The applicant described the pain as particularly involving the sacroiliac joint on the left side, and told Dr. Weber that he could not think of any precipitating cause, but that bending did aggravate his pain. Dr. Weber noted the applicant's prior laminectomy and fusion to treat a herniated disc with right leg radiculopathy. His diagnostic impression was a long history of low back pain status post laminectomy and fusion, with persistent pain in his sacroiliac joint.
On March 31, 2005, the applicant underwent an injection of anesthetic using a fluoroscopy for needle placement. The surgeon, Mark Schlimgen, M.D, thought the applicant had a multifactorial problem, with a myofascial component and facet joint component to his pain. Another injection was done on April 14, 2005. A radiofrequency rhizotomy was done on May 12, 2005.
After this, the applicant was prescribed medication, including oxycodone, for pain control. His prescriptions were periodically renewed. He eventually saw a neurosurgeon, Kamal Thapar, M.D., on May 30, 2006. Dr. Thapar noted the applicant's problems had begun in 1989 with the onset of low back pain and left-sided radicular pain, followed by a 1989 laminectomy that reduced his leg pain, but that left him with back pain. He then had a fusion which
"did not result in any improvement in the patient's back pain. Over the past 17 years, however the patient has had persistent back pain. The pain that he has had gotten progressively worse over the years. ... Interestingly the onset of pain prior to his original procedure occurred when he was working in a labor job. He was pulling on a ratchet with his hands and pushing with his feet and he had an acute onset of back pain at that time. That was the initial cause of the pain. In any case after his lumbar fusion he had persistent back pain which persisted over the ensuing 17 years."
Dr. Thapar's plan was for a discogram.
A discogram was done on August 1, 2006, and it produced concordant pain at L2-3, L3-4, and L4-5. Thereafter, the applicant returned to Dr. Thapar who noted a possible circumferential fusion involving L2-3, L3-4, and L4-5. Noting the applicant's 16-year history of pain, the fact that a multilevel fusion had been performed, and the fact the surgery would be done for discogenic pain without any compressive pathology, the doctor noted that surgery was a difficult choice but that few others remained. Dr. Thapar's subsequent note of October 5, 2006 stated directly that the risk of failure was sufficiently high to potentially contradict surgery. Dr. Thapar, instead referred the applicant back to the pain clinic. The doctor added, though, "that is not to say others would not perform surgery..."
On November 10, 2006, the applicant saw another surgeon, Thomas V. Rieser, M.D. His history notes a laminectomy in 1989 and a fusion in 1990. Dr. Rieser noted that the applicant returned to work in 1994, when he did logging, worked in real estate, did light duty for an earlier employer, was self employed, and then began working for the named employer. He added that the applicant
...drove a Redi-Mix Cement truck from 2003 to 2005. He states that climbing up and own and in and out of the truck was difficult for him. He had to carry ladders and items up to 50 pounds while climbing ladders. He had a fair amount of sitting and bouncing and jolting in a truck and he fell more than once trying to get into the truck. He states that by 2005 he was feeling significant low back pain etiology. He states that in May 2005 he sought medical care with his family physician, Daniel Erickson...
Dr. Rieser's diagnosis was chronic lower back pain stemming from a work injury back in the early 90s that has recently gotten worse with multiple level degenerative changes. A discogram was done again in November 2006, and was completely negative at L2-3, at L3-4 there was a slight tear but no pain, at L4-5 there was pain at 6/10, and L5-S1 was not tested. Another surgeon, David Polly, M.D., recommended against further fusion surgery in December 2006. More injections were done that same month and in January 2007.
The applicant's supervisor and friend, Steve Johnson, testified that the applicant--like Johnson himself--periodically mentioned back problems throughout his employment. Mr. Johnson declined to say whether the applicant complained of, or appeared to have, more back pain towards the end of his employment than at the beginning. He testified, however, that the applicant was able to do his job, which included overtime, and did not decline assignments or avoid work because of back pain.
On or about July 12, 2005, the applicant told Scott Stodola, the employer's safety director, that his back was getting bad and needed a replacement driver. The applicant stopped working for the employer at that point. He qualified for social security disability in August 2006. He has worked sporadically since March 2007, estimating jobs for a tree service, and towing camper vehicles to motor vehicle dealers in other states. He continues to take narcotic pain medication.
The applicant provides expert medical opinion from Drs. Thapar and Rieser. In his practitioner's report dated July 13, 2006, Dr. Thapar noted that the applicant's work exposure included driving trucks, lifting heavy tanks of chloride, climbing, and heavy labor. Dr. Thapar opined that the applicant suffered from chronic incapacitation from low back and left side radicular pain. He opined further that the condition caused by an appreciable period of work place exposure that was a material contributory causative factor in the onset or progression of his condition.
Dr. Thapar noted a poor prognosis because the applicant was not a surgical candidate. He rated permanent partial disability at 25 percent compared to disability to the body as whole on a functional basis. However, he declined to set permanent restrictions under which the applicant could return to work, opining instead that the applicant was unable to return to work.
The applicant also submits a report from Dr. Rieser dated August 17, 2007, who refers to his November 10, 2006 note (quoted above) for a description of the work exposure causing disability. His diagnosis was disc disease, L4-5, prior L5-S1 fusion with subjective elements of low back and left leg pain and with objective signs of an antalgic gait on the left and degeneration shown by x-ray and MRI.
Dr. Rieser reported the applicant could work subject to permanent restrictions as of August 1, 2007 with restrictions to light duty, including a ten-pound lifting limit, with no repetitive bending, lifting and twisting. He attached a "functional capacities evaluation" limiting bending, squatting, stooping, crawling, etc., to "occasional." In both the practitioner's report form and the functional capacities evaluation, he limited the applicant to four hours per day of work.
Like Dr. Thapar, Dr. Rieser indicated that the applicant's condition was caused by an appreciable period of work place exposure that was a material contributory causative factor in the onset or progression of his condition, with a June 2005 date of disability. Dr. Rieser also apparently apportioned half of the applicant's disabling condition to work "culminating in 6-05," and half to a pre-existing condition. Rating permanent partial disability Dr. Rieser estimated permanent partial disability at five percent to the body as a whole, referring back to the 50-50 apportionment, and adding that the rating was for persistent pain and permanent limits.
The respondent retained Stephen Barron, M.D., to perform a medical examination. Dr. Barron stated in his January 15, 2007 report that:
..[the applicant's] low back condition is not materially related to the work activities during the two years he worked at Cemstone. He had chronic lower back pain for years prior to his employment at Cemstone. In my opinion, there has not been a significant objective change in his condition during the course of his time at Cemstone. In my opinion, the ongoing and increasing subjective complaints are totally related to the natural progression of [the applicant's] preexisting multilevel degenerative disc disease in his lumbar spine. He has no radicular symptoms in his legs. The MRI scans do no show any significant nerve root compression. Based on the above, in my opinion, his low back condition is not materially related to the work activities during the two years he worked at Cemstone.
The parties also submit expert vocational opinion. The applicant's expert, Francis Maslowski, opined the applicant was permanently totally disabled under Dr. Rieser's restriction to a four-hour day, with positional limitations, and a 10-pound occasional lifting limit. Mr. Maslowski noted the restriction to part-time work would cause an automatic 50 percent reduction, and the applicant was otherwise limited to very light work.
The employer's expert is L. David Russell, who noted the applicant at age 43 was a mature worker with transferrable skills including supervision, driving vehicles, operating equipment, using hand and power tools, evaluating timber land, and maintaining records. He thought the applicant could obtain work as a construction supervisor, light driver, retail salesperson, assembler, inside sales person, and security guard. He anticipated a loss of earning capacity at 0-40 percent under Dr. Rieser's restrictions, and permanent total disability under Dr. Thapar's opinion the applicant can no longer work.
Mr. Russell also provides a labor market survey at exhibit 13. This identifies current or recent job openings including van driver supervisor, regional truck driver, contractor sales representative, small product assembler, customer service representative, school bus driver, inside sale representative, part-time UPS supervisor (27.5 hours per week) and part-time retail sales person.
At the hearing, Mr. Russell testified that restrictions that the applicant's doctors had set following the 1990 injury would have precluded the applicant from working as a ready mix driver for the employer had he abided by them. He noted, too, that restrictions set by Dr. Rieser in the 1990s--before the applicant had begun working for the employer--were very close to those set by Dr. Barron assigned in January 2007. He opined, therefore, that the applicant would have no loss of earning capacity based on Dr. Barron's restrictions.
Mr. Russell did testify that, if one took into account the applicant's actual earnings with the employer, and his restrictions as set by Dr. Rieser, he estimated a zero to forty percent loss of earning capacity, assuming the applicant could work full time. He estimated that if one took into account the half time restriction, the loss of earning capacity would increase to 40 to 80 percent, though he added that since Dr. Rieser attributed half of the cause of disability to the injury at Cemstone, he was back to a 20 to 40 percent loss of earning capacity.
Mr. Russell went to opine the applicant had transferrable skills that included scheduling, supervision, timberland evaluation and negotiation. He thought the applicant could work as a school bus driver, which was part-time work that was generally available. He opined the other jobs he identified in exhibit 7--except for the assembly and construction supervisor--would be available on a selective basis.
The first issue is whether the applicant has sustained an injury arising out of his employment with the employer. On this point, the commission does not overlook the fact that the applicant did not report his 1990 injury or subsequent work restrictions to the employer. Nor does the commission overlook the fact that work restrictions which had been set for that injury would likely have precluded him from his job as a cement truck driver. Unquestionably, the applicant had a serious work injury back in 1990 resulting in a two-level fusion surgery at that time that, even according to his treating doctors, provided little pain relief. See Thapar note dated May 30, 2006.
However, for several years after the 1990 injury, but before starting work with the employer, the applicant was able to perform relatively heavy employment for the employer and for other employers. During this time, he required only a minor amount of chiropractic treatment. He was able to pass the employer's pre-employment physical examination prior to starting employment.
After working for the employer for two years, the applicant's symptoms increased to the point of disability. While Mr. Johnson testified that the applicant--like Johnson himself--complained of back pain throughout his employment with the employer, it was not until 2005 that the applicant informed the employer it should find a replacement because of his back pain. Following his employment with the employer, the applicant underwent increased medical treatment, including fluoroscopically-guided injections and discography. Dr. Rieser, who treated the applicant both before and after his employment exposure with the employer, set significantly more limiting work restrictions following his employment exposure with the employer.
A causal connection between the continuing exposure to heavy work is reasonable on this record, despite the lack of clear structural change or breakage shown in MRIs or the scans. "Breakage" or an objectively-verifiable change on imaging scan is not necessary to establish causation where work activity precipitates,
aggravates, or accelerates beyond normal progression.(2) Similarly, an appreciable period of work place exposure need only be a material contributory causative factor in the progression of the disabling condition. An injured worker's employment exposure need not be the sole cause or the main factor in his or her disability for the exposure to be compensable.
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. Ibid;
Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).
The fact the applicant did not initially associate his increasing back pain with his job with the employer specifically is not necessarily damaging to his claim, since as a lay person he can not be expected to know whether his increasing symptoms were due to his prior injury, his more recent work exposure, or some combination.3(3) Nor does the fact that the applicant was not forthright with his employer about his prior lumbar injury and resulting work restrictions require an automatic rejection of his claim where, as here, the additional work exposure with the employer caused the applicant's inability to work. See Tews Lime & Cement Company v. ILHR Department, 38 Wis. 2d 665, 673-74, 158 N.W.2d 377 (1968) (noting in part that "[t]he legislature has not provided generally for denial of compensation to an injured employee whose injuries arise out of a disability or handicap which he has misrepresented or concealed.")
Nonetheless, that applicant's conduct regarding his prior injury may be relevant in judging his credibility. Thus, the commission discussed witness credibility with the presiding ALJ. She informed the commission she decided the case based solely on the medical record, and did not address the credibility of the testifying witnesses because she did not think it was relevant,(4) adding that she did not recall much about the demeanor of the witnesses. She did suggest, however, that the applicant's concealment in his job application of his prior lumbar condition undercut his credibility. The ALJ also stated that she found the testimony of Mr. Johnson--who remains an employee of the employer and who testified under subpoena--to be credible. The commission therefore based its findings regarding the applicant's job duties largely on the description of the employer's witness and Mr. Johnson.
In sum, the commission is persuaded that the applicant sustained an injury arising out of his employment with the employer while performing services growing out of or incidental to his employment. Specifically, the applicant's employment exposure in the performance of his work duties was a material contributory causative factor in the progression of his disabling lumbar spine condition. The date of injury is June 1, 2005.(5)
The next issue is the extent of disability. The applicant has established he was temporarily totally disabled from July 13, 2005 (the day he stopped working for the employer) through July 12, 2006 (the day before Dr. Thapar opined he was permanently disabled from work), a period of 52 weeks. At the weekly rate of $482.94 (two-thirds the applicant's average weekly wage of $724.40), the amount due in temporary total disability compensation is $25,112.88.
Turning to permanent disability on a functional basis, the commission credits Dr. Rieser's estimate of five percent to the body as a whole. The commission also finds the work restrictions set by Dr. Rieser--including the restriction to a 4-hour day--to be credible. The applicant is 45 years old now, and was 42 at the time of injury. He has a GED, and his employment has been mainly as a logger, a construction worker, and a truck driver. He worked two years as a subforeman in the construction industry, and tried to operate his own subflooring business. Vocational retraining was tried in the past, and apparently unsuccessful; no one argues for it now.
On this record, the commission finds the opinion of the applicant's expert, Mr. Maslowski, more realistic and persuasive on this point than the opinion of Mr. Russell who testified to a 40 to 80 percent loss based on Dr. Rieser's restrictions. In particular, the commission concludes that Mr. Russell downplays the significance of the restriction to part-time work, which does not simply result in doubling the decreased earnings, but also significantly limits the type and number of jobs the applicant can do. The commission concludes that the applicant has established that he has been injured in an industrial accident and, because of his or her injury, age, education, and capacity, is unable to secure any continuing and gainful employment.
The applicant has therefore made a prima facie case of permanent total disability under the odd lot doctrine. Balczewski v. ILHR Dept., 76 Wis. 2d 487, 495 (1977); Beecher v. LIRC, 2004 WI 88, ¶¶ 54-59, 273 Wis. 2d 136. The applicant's sporadic, temporary employment since his injury does not prove otherwise--indeed, the possibility that an injured worker might be able to locate such "odd lot" employment is reason for the odd-lot rule. Balczewski, at 76 Wis. 2d 494 et seq. (discussing the application of the rule to an injured street car flagman who obtained post-injury employment for short periods as a conductor, income tax worker, house-to-house canvasser, and detective).
Because the applicant has made his prima facie case, the burden of showing that the applicant is in fact employable and that jobs do exist for him shifts to the respondent. In other words, "it is up to the employer ... to demonstrate that the injured employee is actually employable and that there are actual jobs available to him." Beecher v. LIRC, 273 Wis. 2d 136, ¶ 44. The commission cannot conclude the respondent has met that burden in this case. Most of the jobs Mr. Russell identified at exhibit 13 are full time. One is for a minimum of 27.5 hours per week, which still exceeds Dr. Rieser's four-hour a day restriction. This leaves two openings--part time retail sales person and possibly school bus driver. One of the bus driver jobs does not list hours, and the other refers only to an "anticipated" opening. While Mr. Russell did testify that some of the jobs he identified would be available on a "selective" basis, the employer has not credibly established that the applicant "is actually employable and that there are actual jobs available to him."
Dr. Rieser, as set out above, apportions the applicant's disability between his employment with the named employer and the injury leading to the original surgery back in 1990. However, since the disability is due to occupational disease rather than a new traumatic injury, the commission may not apportion the disability and medical expense liability.(6)
Accordingly, the applicant is entitled to permanent total disability beginning as of July 13, 2006 (the day that Dr. Thapar opined he was permanently disabled from work). As of October 1, 2008, 115 weeks and 5 days of permanent total disability compensation has accrued at the weekly rate of $482.94 (two-thirds the average weekly wage of $742.40), totaling $55,940.55.
The total in compensation now due for temporary total disability ($25,112.88) and accrued permanent total disability ($55,940.55) equals $81,053.43. The applicant agreed to allow the direct payment of an attorney fee, fixed at twenty percent but subject to the 500-week limit for attorney fees on permanent total disability under Wis. Admin. Code § DWD 80.43(3), paid from the disability compensation awarded. The amount currently due in an attorney fee on the temporary total disability compensation and accrued permanent total disability compensation equals $16,210.69 (0.20 times $81,053.43). That amount, plus costs of $1,824.04, shall be deducted from the disability compensation now due, and paid to the applicant's attorney within 30 days. The remainder, $63,018.70, shall be paid to the applicant within 30 days.
The amount in permanent disability accruing after October 1, 2008 shall be paid in monthly installments beginning on November 1, 2008 for as long as the applicant lives. Until 500 weeks of permanent total disability compensation has accrued on February 11, 2016, the monthly amount due to the applicant is $1,674.19 and the monthly amount due to his attorney is $418.55. Thereafter, the applicant is entitled to the full monthly payment of $2,094.74.
The applicant has undergone substantial reasonable and necessary treatment to cure and relieve the effects of the work injury, documented in a Medical Treatment Statement at exhibit M. According to that document, medical expenses remain outstanding to Lakeview Medical Center, in the amount of $28.00, to Marshfield Clinic in the amount of $474.00, and to Midwest Spine Institute in the amount of $9,506.91. The Medical Treatment Statement also documents the following non-industrial insurers have made payments towards the applicant's medical expenses and are entitled to reimbursement under Wis. Stat § 102.30(7): by Group Health Cooperative, $4,869.10; by Blue Cross/Blue Shield, $2,018.25; and by BadgerCare/MedicaidCompCare, $1025.32.
This order shall be left interlocutory.
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, Donald Socha, Sixty-three thousand eighteen dollars and seventy cents ($63,018.70) in disability compensation.
2. To the applicant's attorney, David M. Erspamer, the sum of Sixteen thousand two hundred ten dollars and sixty-nine cents $ ($16,210.69) in fees and One thousand eight hundred twenty-four dollars and four cents ($1,824.04) in costs.
3. To Lakeview Medical Center, Twenty-eight dollars and no cents ($28.00) in medical treatment expense.
4. To Marshfield Clinic, Four hundred forty-seven dollars and no cents ($474.00) in medical treatment expense.
5. To Midwest Spine Institute Nine thousand five hundred six dollars and ninety-one cents ($9,506.91) in medical treatment expense.
6. To Group Health Cooperative, Four thousand eight hundred sixty-nine dollars and ten cents ($4,869.10) in reimbursement of medical treatment expense.
7. To Blue Cross/Blue Shield, Two thousand eighteen dollars and twenty-five cents ($2,018.25) in reimbursement of medical treatment expense.
8. To BadgerCare/MedicaidCompCare, One thousand twenty-five dollars and thirty-two cents ($1,025.32) in reimbursement of medical treatment expense.
Beginning on November 1, 20008, and continuing on the first day of each month until February 11, 2016, the employer and its insurer shall pay:
1. To the applicant, One thousand six hundred seventy-four dollars and nineteen cents ($1,674.19) per month while he remains living.
2. To the applicant's attorney, Four hundred eighteen dollars and fifty-five cents ($418.54) per month during the applicant's life.
After February 11, 2016, the employer and the insurer shall pay the applicant Two thousand ninety-two dollars and seventy-four cents ($2,092.74) per month for life.
Jurisdiction is reversed for further orders and awards as are warranted and consistent with this decision.
Dated and mailed September 29, 2008
sochado . wrr : 101 : 1 ND §§3.37, 3/43 , 5.29, 9.2
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission conferred with the presiding ALJ about witness credibility and demeanor, as discussed in the body of this decision. See Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 283-84 (1972).
cc:
Attorney David Erspamer
Attorney David Larson
Appealed to Circuit Court. Remanded for consideration of compromise November 10, 2008.
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