STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CORINA MCCRAINE, Applicant

SHOPKO STORES INC, Employer

SENTRY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2006-036085


In April 2007, the applicant filed an application for hearing listing an August 13, 2006 date of injury and seeking compensation for an injured back due to lifting. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on January 30, 2008.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $270. Although it paid some temporary disability compensation and medical expenses as outlined below, the respondent did not concede the occurrence of a compensable injury. Accordingly, the primary issue in dispute is whether the applicant suffered an injury arising out her employment with the employer while performing services growing out of and incidental to that employment. If such an injury is established, ancillary issues include the nature and extent of the applicant's disability and the respondent's liability for medical expenses.

On February 7, 2007, the ALJ issued his decision dismissing the application. 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1971. She testified that she could not remember having low back problems before beginning work with the employer. However, medical records introduced by the respondent document an acute low back strain without radicular symptoms in February 2004 that was resolving nicely by April 2004. In September 2004, she did have a C5 to C7 fusion done in her cervical spine.

The applicant began working for the named employer, Shopko Stores, Inc., on April 21, 2006. She worked as a as a salesperson on the floor, 20 to 40 hours a week. Her job involved stocking shelves, answering the phone, and doing carry-out for customers. The lifting aspect of her job involved moving items such as beds, wardrobes, chairs and computer desks.

The applicant was able to do her job for the employer without physical problems before the August 13, 2006 work injury at issue here. On August 14, 2006, however, the applicant awoke with significant back pain which she attributed to her work the prior day.

The prior day at work (August 13) had been a particularly heavy one at work. She was the only salesperson on the floor in her area and there had been a furniture sale--specifically bunk beds. She had worked an eight-hour shift, and carried out six bunk beds for the employer's customers and maybe one or two wardrobes. Specifically, the applicant would go to the back room; find the box with the furniture which was usually in a stack on the floor; pull, bend and twist to move the box onto a flatbed cart; push the loaded flatbed out of the store to the customer's car; and then lift the box off the flatbed and put it in the customer's car or truck.

The applicant did not notice pain at work that day. There was no "popping" or pulling sensation or sudden onset of pain. She had no back problems when she left work. She did nothing strenuous at home that evening. The applicant did begin noticing some stiffness throughout the night. Then, the next morning, the applicant woke with low back pain and numbness through the top half of her legs which was so bad that she could not get out of bed.

On August 14, 2006, the applicant saw Sanjay Suthar, M.D., at the Aurora Sheboygan Walk-In Clinic, with a complaint of bilateral low back pain which she
described as dull and occasionally radiating to her legs with walking. She told the doctor:

She was lifting at work last night, and she noticed the pain this morning. She feels it is related to work. She denies specific injury.

Dr. Suthar diagnosed a low back strain, and released her to work with restrictions. The restriction form identifies the injury as a "work related" low back strain, and prohibited twisting, squatting, bending and kneeling, and limited lifting to 15 pounds.

The applicant was rechecked by Linden Engleman,, P.A., on August 16, 2006. Mr. Engleman recorded the history of the applicant doing carryout lifting at Shopko on August 13, 2006, followed by waking with low back pain the next morning. Mr. Engleman prescribed Flexeril, and continued her work restrictions, again diagnosing work related low back pain. The applicant was to follow up in two weeks.

The applicant worked with these restrictions--she was put on cashier work--though this still involved some lifting and twisting.

On August 30, 2006, two after her visit with Mr. Engleman, the applicant saw D. Scott Sellinger, M.D., an orthopedic surgeon. He noted:

Patient is seen regarding an injury which allegedly occurred at work. She was doing carry outs for ShopKo on 8-13. She doesn't remember any specific injury, but the next day her back was extremely sore. She was doing this alone because evidently they are short handed. The pain is in her low back, radiates down her legs into her feet.... Had some neck surgery two years ago. History form was completed and I have reviewed.

Dr. Sellinger thought she had a back strain, and recommended conservative treatment. This included work restrictions, physical therapy, a bone scan was "normal," and an MRI. In ordering the MRI, Dr. Sellinger noted:

I don't think this is anything other than degenerating discs and facets, but because of her persistent pain we probably should do an MRI.

The MRI showed a spinal stenosis secondary to a disc bulge at L4-5. He wanted to try an epidural. After two epidurals, her pain continued. Dr. Sellinger noted again the stenosis at L4-5 shown on the MRI and stated

Certainly her degenerative disc and stenosis are developmental. The bulging disc could have been a work related aggravation that pushed this into becoming symptomatic.

The applicant subsequently underwent a discogram, which was positive for concordant pain at L3-4 and L4-5. Thereafter, Dr. Sellinger recommended surgery.

Subsequently, on January 27, 2007, Dr. Sellinger did a decompressive lamincectomy L4 and L5, discectomy at L4-5, and a bilateral fusion from L4 to the sacrum with placement of fusion hardware at L4-5. A few days later, Dr. Sellinger noted relief from the applicant's leg pains and numbness.

Dr. Sellinger kept the applicant off work until July 22, 2007, when he issued work restrictions against repetitive bending and twisting, and allowing a four hour day for a week, followed by a six-hour day, followed by an eight-hour day. See exhibit C, Sellinger practitoner's report dated August 13, 2007.

On August 29, 2007, Dr. Sellinger reported that the applicant was doing pretty well, with a little achiness in her back but nothing like pre-surgery. His note suggests the employer had some problem with his earlier work release. At any rate, the doctor released the applicant to work on August 30, 2007, and completed a work release slip, setting temporary work restrictions allowing work on light duty for a week, light-medium duty for a week, and medium duty for two weeks, followed by re-evaluation.

The applicant's next few appointments with Dr. Sellinger were cancelled because the medical bills were not paid. The applicant's condition has improved since the surgery; her pain is gone except on cold days, and she has resumed most of her normal activities.

The applicant did not return to work at Shopko after her surgery. From August 17 to December 2007,(1) she worked full-time for another employer that rents appliances.

Regarding cause, nature and extent of disability, the applicant relies on the expert medical opinion of her treating surgeon Dr. Sellinger. His initial practitioner's report dated February 7, 2007 (exhibit B) states:

Patient was doing carryouts for Shopko, repeatedly during 8/13/06. Back became extremely sore.

Dr. Sellinger's diagnosis was spinal stenosis L4-5 with degenerative moderately herniated disc L4-5 and degenerative facets L5-S1. His practitioner's report states that the repeated carryout work on August 13, 2006 precipitated, aggravated and accelerated beyond normal progression a pre-existing degenerative condition. He noted in this report that it was too soon to set temporary work restrictions or estimate permanent disability.

In a subsequent practitioner's report dated August 13, 2007 (exhibit C), Dr. Sellinger reiterated his diagnosis of spinal stenosis L4-5 with degenerative moderately herniated disc L4-5 and degenerative facets L5-S1. He again stated that the repeated carryout work on August 13, 2006 had precipitated, aggravated and accelerated a pre-existing degenerative condition beyond its normal progression. He noted, too, that he had released the applicant to work with restrictions on July 23, 2007 (as set out above). He again stated it was too soon to rate permanent partial disability, but anticipated a minimum permanent partial disability of 20 percent.

The respondents retained Richard Karr, M.D., to perform a medical records review. His report, dated December 30, 2006 (exhibit 1), lists a diagnostic impression of

1. L4-5 degenerative lumbar disk disease and degenerative facet arthritis, causing mild-moderate spinal stenosis, secondary to the normal progression of degenerative factors, aggravated by physical deconditioning and cigarette smoking. These are personal health conditions which are causally unrelated to work-exposure at Shopko. [Emphasis in original.]

2. The flare of low back pain on August 14, 2006 (at [the applicant's] home( had solely been due to the normal progression of #1. Work-exposure on August 12, 2006 had not been a causative factor.

In the discussion portion of his opinion, Dr. Karr stated that the imaging scans all showed degenerative findings; that the applicant was 5'4" and weighed 200 pounds and smoked cigarettes; that physical deconditioning and smoking were aggravating factors in the degenerative lumbar spine condition; and that there was no specific injury or "breakage" occurring on August 13. He added in summary:

In my opinion, work exposure on or about August 13, 2006 did not cause a structural spinal injury; did not cause a degenerative lumbar spine condition resulting in L4-5 stenosis; has not been a material contributory causative factor in this onset or progression of this condition; has not resulted in PPD, temporary total disability, nor permanent alteration in working capacity.

Dr. Karr subsequently examined the applicant on July 17, 2007. He stated all of his prior opinions on causation remained accurate. Regarding disability without regard to causation, he opined the applicant had not yet reached maximum medical improvement regarding the surgery done on January 25, 2007, and was temporarily totally disabled as of the date of the report, though he did opine she would have permanent partial disability at 20 percent to the body as a whole due to the scope of the operation.

Regarding causation, the commission finds the opinion of Dr. Sellinger more credible. The commission acknowledges that the imaging scans showed degenerative changes in the applicant's spine. However, before her work activities on August 13, 2006, there is little evidence of any significant back problem in the treatment notes in the record or in Dr. Karr's reports other than the sprain in February 2004 that was resolving nicely two months later. Moreover, during her employment with the employer from April to August 2006, of course, the applicant was able to engage in relatively strenuous activity moving furniture in boxes as part of her daily job activities.

The commission also realizes that the medical record does not document a traumatic injury, such as a herniated disc that became acutely painful during a particular event or incident, at work on August 13, 2006. However, work activity may be the basis of a compensable injury, even without breakage, if the activity precipitates, accelerates, and aggravates a progressively degenerative condition beyond normal progression.(2) Further, under the occupational disease theory of causation, an appreciable work exposure that is a material contributory causative factor in the onset or progression of a disabling condition constitutes a compensable injury under the worker's compensation act.(3) Recently, the court of appeals has observed that a compensable occupational disease injury to the back may occur in the absence of identifiable traumatic events. Wis. Ins. Sec. Fund & Eau Galle Cheese Co v. LIRC & Kallstrom 2005 WI App 242, 12, 288 Wis. 2d 206.

In his treatment notes, of course, Dr. Sellinger opined:

Certainly her degenerative disc and stenosis are developmental. The bulging disc could have been a work related aggravation that pushed this into becoming symptomatic.

While he stated in terms of "could have" rather than medical probability in this note, Dr. Sellinger subsequently marked the "causation box" in the form practitioner's report to state an unqualified "yes." In other words, Dr. Sellinger stated his opinion--to the required degree of medical certainty or probability--that the activity doing carry-outs for the employer repeatedly on August 13, 2006 caused the applicant's disabling back condition.

The commission realizes, too, that the applicant is obese and smoked cigarettes, which may have been aggravating factors. However, work activity does not have to be the sole factor for a condition to be compensable due to occupational exposure, just a material factor.(4) Given the undisputedly heavy nature of the applicant's work doing repeated carry-outs on August 13, 2006, the commission concludes that that work activity was an appreciable period of work place exposure(5) that was a material contributory causative factor in the onset or progression of her condition. The applicant has established that she has sustained an injury arising out of her employment, while performing services growing out of and incidental to that employment.

The next issue is the extent of disability. The applicant claims temporary total disability from January 25, 2007 (when Dr. Sellinger took her off work prior to her surgery) though August 29, 2007 (when she last saw Dr. Sellinger). However, department records indicate the respondent paid temporary total disability for the first two weeks of that period (January 25 through February 8, 2007).(6) Further, the applicant testified she began full time employment with another employer on August 17, 2007. Consequently, the applicant is entitled to additional temporary total disability from February 9, 2007 to August 17, 2007, a period of 28 weeks and 4 days. At the weekly rate of $180 (two-thirds the average weekly wage of $270), the amount in additional temporary total disability equals $5,160.

Dr. Sellinger and Dr. Karr both opined the applicant had not yet reached an end of healing at the time of their reports. Nonetheless, Dr. Karr estimated permanent partial disability upon an end of healing of 20 percent to the body as a whole, while Dr. Sellinger estimated permanent partial disability would be at least 20 percent. Twenty percent is the minimum permanent partial disability rating under the administrative code for two-level laminectomy and fusion procedures such as the applicant underwent. Wis. Admin. Code § DWD 80.34(11). Accordingly, the commission awards the applicant compensation for permanent partial disability on a functional basis at 20 percent compared to the body as a whole, but she may seek additional compensation based on competent estimates of the applicant's permanent disability after reaching an end of healing.

The applicant is now entitled to 200 weeks of permanent partial disability compensation at the weekly rate of $180 (two-thirds the average weekly wage of $270), or $36,000. Consistent with department practice and Wis. Stat. § 102.32(6)(e), the award for permanent partial disability accrues during
periods after the date of injury when temporary disability is not paid.(7) As of October 7, 2008, 72 weeks and four days of permanent partial disability totaling $13,080 has accrued, while 127 weeks and two days totaling $22,920 remains unaccrued.

The applicant approved a fee of 20 percent to be withheld under Wis. Stat. 102.26 from the additional temporary and permanent disability compensation awarded by this order. The future value of the fee is thus $8,232 {0.20 times ($5,160 plus $36,000)}. However, the fee is subject to an interest credit of $271.46 for the advance payment of the fee on the unaccrued portion of the permanent partial disability award. The present value of the fee is thus $7,960.54. That amount, plus costs of $100.49, shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days.

The amount due the applicant within 30 days is $14,491.51. This equals the amount due in temporary disability compensation ($5,160) plus the accrued permanent partial disability compensation ($13,080) accrued to October 7, 2008, less the fees ($3,648.00) and less costs ($100.49).

The amount remaining to be paid as it accrues after October 7, 2008 is $18,336, which equals the unaccrued portion of the award ($22,920), less the fees thereon ($4,584). That amount shall be paid in monthly installments of $780 beginning on November 7, 2008.

The applicant has incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury, documented in exhibit A as follows: from Aurora Sheboygan Clinic, $2,206.00, of which the worker's compensation insurer paid $260.89, Managed Health paid $30.00, $77.11 was adjusted from the bill, and $1,838.00 remains outstanding; from Sheboygan Orthopedic Associates, $39,675, of which the worker's compensation insurer paid $1,614.89, $67.39 was adjusted from the bill, and $37,992.72 remains outstanding; from St. Nicholas Hospital, $37,068.92, all of which remains outstanding; from Anesthesia Associates, $5,891.00, of which the worker's compensation insurer paid $2,311.39, $103.61 was adjusted from the bill, and $3,476.00 remains outstanding; from Sheboygan Medical Center, $8,245.00, all of which remains outstanding.

The applicant had not yet reached an end of healing when the doctors rendered their opinions on extent of disability. In addition, the applicant has undergone an extensive surgery and further treatment can reasonably be expected. Accordingly, this order shall be left interlocutory to permit the applicant to bring a claim for additional permanent partial disability on a functional basis or on a vocational basis for loss of earning capacity as may be supported by medical opinions based on his condition upon reaching an end of healing. Jurisdiction is also retained for claims for additional disability or medical expenses that may arise in the future.

INTERLOCUTORY ORDER

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, Corina McCraine, Fourteen thousand four hundred ninety-one dollars and fifty-one cents ($14,491.51) in disability compensation.
2. To the applicant's attorney, Abed Barakat, the sum of Seven thousand nine hundred sixty dollars and fifty-four cents ($7,960.54) in fees and One hundred dollars and forty-nine cents ($100.49) in costs.
3. To Aurora Sheboygan Clinic, One thousand eight hundred thirty-eight dollars and no cents ($1,838.00) in medical expense.
4. To Sheboygan Orthopedic Associates, Thirty-seven thousand nine hundred ninety-two dollars and seventy-two cents ($37,992.72) in medical expense.
5. To St. Nicholas Hospital, Thirty-seven thousand sixty-eight dollars and ninety-two cents ($37,068.92) in medical expense.
6. To Anesthesia Associates, Three thousand four hundred seventy-six dollars and no cents ($3,476.00) in medical expense.
7. To Sheboygan Medial Center, Eight thousand two hundred forty-five dollars and no cents ($8,245.00) in medical expense.
8. To Managed Health, Thirty dollars and no cents ($30.00) in reimbursement of medical expenses paid.

Beginning on November 7, 2008, and continuing on the seventh day of each month thereafter, the employer and its insurer shall pay the applicant the amount of Seven hundred eighty dollars and no cents ($780.00) per month, until the additional amount of Eighteen thousand three hundred thirty-six dollars and no cents ($18,336.00) has been paid.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed September 29, 2008
mccrain . wrr : 101 : 1 ND 3.4, 3.37, 3.42, 8.24

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the presiding ALJ. He stated he found the applicant's testimony about her work activity on August 23, 2006 to be credible, though he noted that getting a furniture box onto a dolly or flatbed cart would involve more sliding than actual lifting and that the applicant likely would have had help from a customer in getting the furniture box into the customer's vehicle. The ALJ did suggest that the applicant testimony about stiffness was a detail never mentioned to the doctors. However, he recalled her saying the stiffness occurred at work, when in fact the applicant consistently testified she had no problems or pain when she left work on August 13, 2006, and the stiffness came on "throughout the night". On the main, however, it appears the ALJ's decision was based in large part on his view of the credibility of the medical experts, neither of whom testified before him, rather than the credibility of the applicant in describing her work activity or symptoms. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998)


cc: Attorney Abed Barakat
Attorney Daniel Zitzer


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) The applicant testified she began working for this other employer, Get-It-Now, on August 17. 2007. The commission believes that date is reasonable, as the applicant had been released to light duty work in July by Dr. Sellinger, as indicated in his August 13, 2007 practitioner's report (exhibit C).

(2)( Back ) In Lewellyn v. ILHR Dept., 38 Wis. 2d 43, 59 (1968), the court stated:

(3) If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing injury or disease and the employee should recover even if there is no definite "breakage."

(3)( Back ) Dr. Sellinger, of course, affirmatively marked the box on the form practitioner's report indicating a work "event" or accident--which he described as the repeated activity of carrying out furniture--precipitated, aggravated, and accelerated her pre-existing condition beyond normal progression. While the doctor's opinion might technically better fit the legal theory of causation for occupational disease, the court of appeals has observed:

As Professor Larson notes, however, "this contrast between accident and occupational disease is gradually losing its importance, and awards are frequently made without specifying which category the injury falls in." 1B A. Larson, The Law of Workmen's Compensation 41.31, at 7-357 (J. Duke ed. 1980).

Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655, 661, (Ct. App. 1982).

(4)( Back ) 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)

(5)( Back ) Regarding a single day of work exposure as an "appreciable period" under the occupational disease theory of causation, the commission has stated:

"...Neal & Danas, Worker's Compensation Handbook 3.4 (5th ed., 2006) states flatly:

Broadly defined, occupational disease is mental or physical harm that results from occupational exposure but that is not so sudden or traumatic as to fit within the definition of an accident.

"Thus, the commission has noted:

That injuries caused by short-term repetitive strain may not fit neatly into the analytical categories of accident and occupational disease, but that does not mean they are not compensable as a matter of law. See for example, Charles F. Meyers v. Fort James, WC Claim No. 1998002628 (LIRC, December 8, 1999). On this point, the commission notes that 'occupational diseases were brought under the compensation act ... 'so as to include, in addition to accidental injuries, all other injuries including occupational diseases, growing out of and incidental to the employment. [Italics supplied.]'" Employers Mutual v. McCormick, 195 Wis. 410, 413-14 (1928).

Delaney v. Waupaca Foundry, WC Claim No. 2000030373 (LIRC, September 29, 2003).

"In short, the Worker's Compensation Act is intended to cover all injuries growing out of and incidental to employment. The law does not require some minimum period of employment exposure or work activity as a matter of law before the exposure may become compensable. Rather, the question is whether the work exposure was a material contributory causative factor in the onset or progression of the disability under the 'occupational disease' formulation, or the work activity precipitated, accelerated or aggravated beyond normal progression a pre-existing degenerative condition in the 'Lewellyn 3' formulation. Shelby Mut., at 109 Wis. 2d 663."

Gumieny v. County Concrete, WC claim no. 2004-017501 (LIRC, July 11, 2006).

(6)( Back ) Department records also indicate temporary partial disability was paid for the nine-week period from August 13 to October 15, 2006.

(7)( Back ) The commission has held that when a person has had a surgery for which the administrative code sets a minimum permanent disability rating, an ALJ may award the minimum even before the end of healing for payment during periods when TTD is not accruing. See Parris v. Walker Stainless Equipment, WC claim no. Claim No. 2000-039499 (LIRC, November 6, 2007, citing King v. Department of Transportation, WC claim Nos. 2001-007515 & 2003-012619 (LIRC, April 27, 2005).

In this case, the applicant agreed at the outset of the hearing that her claim was for temporary disability for the period discussed above and for permanent partial disability at a minimum of 20 percent on a functional basis. Transcript, pages 3 and 4. In calculating the award, the commission therefore assumes there is no claim for additional temporary disability--total or partial--accruing after August 2007, either because the applicant has reached an end of healing or because any temporary disability award would be completely offset under Wis. Stat. 102.43(2) and (6) by wages from a job obtained after the work injury.

 


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