JIMMIE ANDERSON, Applicant
SUPERVALU INC, Employer
OLD REPUBLIC INS 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 12th paragraph of the ALJ's Findings of Fact and Conclusions of Law (the first full paragraph on page 6 of the ALJ's decision).
The findings and order of the administrative law judge, as modified, are affirmed.
Dated and mailed November 6, 2008
anderso . wmd : 101 : 9 ND
3.37
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
1. Injury, treatment, expert medical opinion.
The applicant was born in 1978. He began working for the employer as an order selector in 2003. The applicant's job involved assembling different products together on pallets for shipping from the employer's warehouse. It is fast-paced work, performed while standing, and requiring lifting from 2 to 198 pounds.
The applicant broke his right ankle playing softball in May 2004, and underwent two ankle surgeries as a result that year. He was back working full duty by October 2004.
On August 17, 2005, the applicant testified, he rolled his right ankle inward as he stepped off a motorized pallet jack onto the floor. This was a 9-inch step down. He heard a pop and experienced bad pain on the inside of his foot.
The applicant eventually came under the care of Robert C. Seipel, M.D. Describing the accidental event to which the applicant attributed his condition, Dr. Seipel states:
Patient initially injured his right ankle while playing soft ball on 5/18/04. He underwent a right ankle ORIF with syndesmosis fixation in September, 2004, and returned to work full duties in October 2004. Following his return to work, Mr. Anderson re-injured his right ankle on 8/17/05, while in the process of stepping off a pallet at work. This work injury aggravated and exacerbated his pre-existing ankle injury. Further surgery[(1)] has been recommended as a result of the work injury.
Dr. Seipel went on to diagnose an osteochondral lesion. He opined the work event on August 17, 2005 caused the applicant's disability by precipitation, aggravation, and acceleration beyond normal progression of a progressively degenerative condition. The doctor noted the applicant was able to return to work subject to restrictions on September 12, 2005, but had not reached an end of healing because the employer refused to provide treatment.
The employer and its insurer (collectively, the respondent) offers expert opinion from Nolan Segal, M.D., who did a record evaluation on October 27, 2005. His diagnostic impression was that the applicant had a small area of osteochrondritis dissecans in the medial talar dome and residuals of the May 2004 fracture dislocation of the right ankle.
Based on my review, the osteochondral lesion in the talar dome is not related to the August 17, 2005 work injury. The reason for this is that there was a suggestion of this same lesion in the October 6, 2004, x-rays. Also the MRI scan done on October 11, 2005, not only showed evidence of a medial talar dome lesion, but showed some associated cystic changes. These changes suggest chronic longstanding problem. In addition, his right ankle findings in August and early September of 2005 would not be consistent with the talar dome lesion, as he "rolled" his ankle, which would result in a lateral ligament injury and not an injury to the talar dome. In addition to this, his October 2005 MRI did not show any evidence of a significant ligament injury occurring as a result of the August 17, 2005, incident. Also, when Mr. Anderson was seen on August 24, 2005, just a week after the incident, there was no swelling, ecchymosis, or evidence of an effusion in the tibiotalar joint. Clearly, with these findings, it is not within the realm of medical probability that the talar dome lesion note on the October 11, 2005, MRI scan would have had anything to do with the August 17, 2005 work injury. It is therefore, my opinion that the work injury of August 17, 2005 is not a substantial contributing cause to the need for the proposed surgery.
Dr. Segal felt that while the applicant might need arthroscopic evaluation of his ankle, it would not be related to his August 17, 2005 injury.
In a follow up report on October 31, 2005, Dr. Segal opined the applicant sustained at most a mild ankle sprain on August 17, 2005, from which he finished healing--without permanent partial disability or the need for restrictions--by September 17, 2005,
On June 27, 2006, Dr. Seipel wrote to the applicant's attorney explaining his opinion regarding causation, responding in part to Dr. Segal's opinion. After going through the history regarding the May 18, 2004 softball injury, Dr. Seipel states:
I subsequently had seen the patient again on September 12, 2005 after a work- related incident on 08/17/05 when he stepped off a pallet and rolled his ankle.
Per the patient, he was pain-free and back to work at full duties in the interim.
It is my opinion that this injury from 08/17/05 could be considered an exacerbation of a preexistent injury.
I am in agreement that I commented on a possible lucency on the talar dome from October 6, 2004 during follow up x-rays for the patient's initial right ankle fracture/dislocation. However, at that time, the patient was pain-free and there was no indication to pursue imaging or treatment for that x-ray finding.
In regard to your specific inquiries, I do not agree with the statement from Dr. Segal regarding that someone who "rolls his ankle would have sustained a lateral ligament injury and not an injury to the talar dome."
An osteochondral lesion to the talar dome is a well established associated injury of an ankle sprain. In addition, however, the injury could likely been initially sustained during the ankle fracture/dislocation.
Regarding the differences noted on the x-ray films from October 6, 2004 and the subsequent MRI films obtained during the workup for the patient's work-related injury, I think that it is difficult to determine whether there was any specific change during the interim time period.
We did not get MRI films in 2004 and I would agree that the MRI films could have shown a similar finding if we ha[d] obtained those in 2004. However, the MRI films clearly show an osteochondral lesion with either an unstable fragment or a small subchondral cyst.
I am in agreement that the similar or same findings may have been seen if we had obtained MRI imaging in 2004 after the patient's ankle fracture/dislocation. Mr. Anderson was, however, reported to be pain-free at that time and he had been back to his regular activities and sustained another injury.
For the above reasons, I feel that the findings of both the patient's subjective complaints, his physical exam findings, and the findings on the MRI could be considered an aggravation or a precipitation of a preexisting injury.
Finally, the respondent offers the report of Mark Aschliman, M.D., who examined the applicant on November 29, 2008. He opined that the applicant had osteochondritis dissecans of the talus of the right ankle, a condition predating his August 17, 2005 injury. He felt this was unquestionably a pre-existing condition, as noted on x-rays from before the August 17, 2005 injury, adding that the MRI scan findings were consistent with a longstanding osteochondral defect as opposed to an acute defect.
Dr. Aschliman opined that the August 17, 2005 injury was a simple right ankle strain, and that he may have had a transient symptomatic aggravation of his preexisting ankle condition. He added that there were no structural breaks that could be reasonably attributed to the occurrence in question, noting the MRI scan did not show free fragments, but rather loss of articular cartilage and pre-existing cystic change in the talus.
Dr. Aschliman described the work injury as a temporary aggravation of the applicant's pre-existing right ankle condition, with no structural injury of a permanent nature. He thought the applicant returned to pre-aggravation status within 3 months, and added that the applicant symptoms were due to a pre-existing and clearly progressive process which could not rationally be related to the work injury.
Provided with additional imaging studies, Dr. Aschliman opined on December 13, 2006 that the studies fully supported his opinion.
2. Discussion.
The ALJ found a compensable injury. He noted the experts agreed that the osteochondral lesion present on the x-rays was due to the earlier ankle fracture while playing softball in 2004. Still he noted the applicant was able to return to work after the fracture, and even resume his career as a semi-pro football player, until the August 17, 2005 injury. The ALJ was persuaded the applicant made a good recovery from the non-industrial ankle injury in May 2004, the existence of the osteochondral lesion notwithstanding. Noting the applicant was able to function at a high level regarding his ankle, and that it was only after he rolled his ankle in August 2007 that his symptoms returned and remained, he opined the applicant sustained a compensable work injury. On this point, the ALJ noted the holding in Lewellyn v. ILHR Department, 38 Wis. 2d 43, 58-59 (1968) that a work injury that precipitates, aggravates and accelerates a pre-existing degenerative condition beyond normal progression is compensable.
The respondent appeals. It argues that the applicant's injury did not happen at work, evidently because he did not immediately leave work on August 17, 2005. However, the respondent did not offer testimony contradicting the applicant's testimony that he reported the injury to a supervisor. His medical treatment notes, beginning August 18, consistently relay a history of an injury at work. On this record, the commission declines to question the applicant's credibility because he finished his shift after his injury. Like the ALJ, the commission concludes the injury happened at work as the applicant testified.
The respondent also points out that, in his June 27, 2006 letter, Dr. Seipel only stated his opinion on causation in terms of "could be." "Could be," of course, states a possibility and does not satisfy the reasonable degree of medical probability standard.(2) However, the context of Dr. Seipel's use of "could be" is important here. In his June 2006 letter, Dr. Seipel was responding to Dr. Segal's opinion that the work injury could not cause the applicant's condition. In stating his opinion on causation in the earlier practitioner's report, Dr. Seipel states with certainty:
[After the surgery to treat the April 2004 softball injury, the applicant] returned to full duty work in October 2004. Following his return to work, Mr. Anderson re-injured his right ankle on 8/17/05, while in the process of stepping off a pallet at work. This work injury aggravated and exacerbated his pre-existing ankle injury. Further surgery has been recommended as a result of the work injury.
In other words, it is reasonable to conclude that Dr. Seipel used the "could be" language as a semantic device in response to Dr. Segal's opinion that an ankle-rolling could not cause an injury to the talar dome as a matter of objective medical fact. That is, when Dr. Segal opined the applicant's injury could not aggravate the applicant's talar dome injury, Dr. Seipel responded "yes, it could." The commission does not read Dr. Seipel's June 27, 2006 letter is meant to "downgrade" his prior opinion on causation to a possibility.
The respondent also argues that the ALJ, in criticizing Dr. Aschliman's expert medical opinion, held that if there is no definite breakage, an injury must be compensable under the Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). Under Lewellyn, a claim may not be denied as a matter of law simply because there is no breakage if in fact the injury precipitated, aggravated and accelerated a pre-existing condition beyond normal progression. However, Lewellyn does not mean that a doctor cannot state as a matter of medical fact that a certain type of injury in a particular case may precipitate, aggravate, or accelerate a particular type of pre-existing condition only if there is evidence of breakage.
The commission is not persuaded that the respondent accurately characterized the ALJ's holding on this point. However, even assuming the ALJ's decision did not precisely characterize the Lewellyn holding, the commission does a de novo review of the record. Thus, to avoid further controversy, it amended the ALJ's decision to eliminate the language at issue. Based on its review, the commission regards Dr. Seipel's opinion that the ankle-rolling injury precipitated, aggravated, and accelerated the applicant's preexisting degenerative ankle condition beyond normal progression as more credible than the contrary opinions of Drs. Segal and Aschliman. That is, the commission finds it credible that in rolling his previously-injured ankle, the applicant probably caused further injury as Dr. Seipel opined, given the applicant's strong recovery from the May 2004 ankle injury before the work event of August 17, 2005, and the continuing problems thereafter.
cc:
Attorney Mark P. McGillis
Attorney Paul R. Riegel
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