JEFFREY PAYMENT, Applicant
OLYMPIC WALL SYSTEMS INC, Employer
TRAVELERS PROPERTY CAS CO OF AMERICA, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed May 14, 2009
payment . wsd : 101 : 1 ND 5.40; 8.23; 8.24
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
There are two issues on appeal, (1) whether the applicant's work exposure was a material contributory causative factor in the onset or progression of his disabling condition, and (2) whether the commission should require the applicant to seek vocational retraining before awarding him compensation for loss of earning capacity.
1. Causation.
The applicant was born in 1963. He is a drywall installer, hiring out of the carpenter's union, since 1986. He worked with exterior drywall sheets weighing maybe 100 pounds a sheet, and interior sheets weighing 125 to 150 pounds per sheet. He usually worked with one or two other men. The men would lift, position and fasten the drywall, sometimes working overhead.
The applicant had two work-related back injuries causing lost time in 1994 and 2003, with an intervening off duty back injury in 1999. He testified that he fairly regularly would suffer a strain at work which might cause him to miss a day or so. His back gradually became more and more painful. On July 19, 2005, while working hanging drywall at a hospital, he began experiencing back pain radiating into both legs. It became so severe he left work in the middle of the day, and sought treatment.
The applicant treated with his family doctor, Dr. Hughes, who ordered an MRI and referred him to Dr. Ahuja.
Dr. Ahuja noted:
He has had pain over the years and claims with Worker's Compensation in regards to his back pain. This pain has progressively gotten worse over the years with the type of carpentry work that he does. He reports, however, that his pain was so severe that he could not take it any longer that he left work at 1:30 in the afternoon on July 19, 2005.
When the applicant continued to have significant pain despite conservative treatment, Dr. Ahuja proposed three-level fusion procedure in December 2005. Dr. Ahuja in fact performed the procedure on January 17, 2006.
Shortly before the surgery, on January 5, 2006, the applicant saw Michael D. Ritter, M.D., on referral from Dr. Ahuja. After reviewing the medical records, he concluded that the applicant had a history of low back pain dating back to 1994, which he aggravated at work in 2003. However, he reported that the MRI showed degenerative changes that were advanced, and consistent with the natural progression of the underlying degenerative condition. Dr. Ritter concluded:
...There are no clear findings to suggest he aggravated or accelerated the preexisting degenerative condition beyond its natural course as a result of the 2003 work place exposure. The severely increased pain that prompted further revaluation and treatment in July of 2005, almost two years after the 2003 work place exposure, was more likely a result of natural progression of the preexisting condition. Thus, it is my opinion that further evaluation and treatment of his condition should be pursued through his primary insurance and not worker's compensation.
Respondent's exhibit 4, Ritter letter to Ahuja dated January 18, 2006.
Dr. Ahuja, however, opined otherwise. In response to a questionnaire from the applicant's attorney dated April 28, 2006 (Exhibit A), he was asked and answered:
1. ...do you believe that this employment exposure was a material contributing causative factor in the onset and progression of his back disability?
...Yes, I do feel that it has had significant contributing factor to his symptoms and disabilities.
2. Please provide your diagnosis for Mr. Payment's disability?
... Low back with radiculopathy.
Dr. Ahuja went on to outline his treatment plan, which included the surgery recommendation.
In addition, Dr. Ahuja opined in a practitioner's report dated April 27, 2007 (exhibit D) that the applicant's work exposure was a material contributory causative factor in the onset or progression of his condition, for which he rated permanent partial disability at 33 percent (which would be the code minimum plus 3 percent.) He added that the applicant could return to work subject to permanent restrictions--a 15-25 pound lifting limit and various positional restrictions--as of October 3, 2006.
The employer and its insurer (collectively, the respondent) had the applicant examined by Richard K. Karr, M.D.,(1) whose May 3, 2007 report is at exhibit 2. Dr. Karr's diagnostic impression was multilevel degenerative lumbar disc disease and facet arthritis, associated with variable degrees of disc bulging and stenosis, which he regarded as a personal health condition unrelated to either a single injury or global work exposure as a carpenter.
Dr. Karr also noted the three lumbar strains in June 1994, July 1998, and August 2003. However, he reiterated that neither these 3 injuries, nor the global exposure as a carpenter, were responsible for the applicant's current condition. He, too, rated permanent partial disability at 33 percent compared to permanent total disability, but stated it was not due to occupational spine disease.
In explaining his opinion, Dr. Karr noted that the medical records did not support the conclusion that the applicant had had multiple prior back injuries at work. He noted, too, that there was no workplace injury or event associated with the escalation of symptoms leading the applicant to stop working on July 19, 2005. He said that just because the applicant worked in a physically strenuous occupation was not evidence that the work caused his degenerative condition or aggravated it beyond normal progression, noting that other individuals in less strenuous occupations had the same condition and degree of disability. Dr. Karr also noted, and summarized, Dr. Ritter's report set out above.
The applicant also offered a report from David Coran, M.D., whose June 16, 2007 report (exhibit K) noted a job description outlined in Dr. Karr's report and opined that, in his opinion,
this type of employment can lead to lower back injuries. This is consistent with the patient's history of progressive pain over the years of his employment.
Based on my understanding of Mr. Payment's medical history as well as the requirements of his occupation, I believe that Mr. Payment's employment activities were a material contributory causative factor in the onset or progression of his lumbar disability.
Mr. Payment's occupational activities as outlined above were a substantial factor in necessitating the lumbar fusion surgery.
The applicant also saw Charles A. Klein, M.D., at the request of his attorney. Dr. Klein's diagnostic assessment was L3-S1 multilevel lumbar degenerative disc and facet disease with spinal stenosis. Regarding causation, the doctor noted:
The causes of this type of arthritis are multifactorial including probably genetic predisposition as well as the natural effects of aging. I think that medical science also acknowledges the contribution of repetitive trauma to the progression of arthritic conditions. Mr. Payment was occupied in a profession that would be considered very heavy work and the installation of drywall involves very repetitive bending, lifting and twisting to the lumbar spine. Thus it is my opinion that his occupational exposure while working for Olympic Wall Systems does represent a material contributory causative factor in the progression of his lumbar spine degenerative condition. It is certainly not the sole responsible factor, but one would have to consider it at least a material contributory causative factor.
If one has totally normal joints, then these joints are quite resilient and are capable of repetitive cyclical loading with significant force. These normal joints actually hold up quite well. However, if one has other factors, which cause degeneration of the same joints, then these joints are already predisposed to degeneration and are less able to stand up to highly repetitive stresses and strains. Thus, in Mr. Payment's case, if you combine his underlying tendency towards degeneration of his lower lumbar spine and put him in an occupational situation which requires repetitive heavy stresses and strains to the lumbar spine will get the progression of the arthritis more so than if he was in a more sedentary occupation.
It is also my opinion that Mr. Payment's workplace exposure was a contributory factor in the progression of his lumbar spine degenerative condition and as such was a contributory factor in necessitating the need for the lumbar fusion performed in January of 2006.
See exhibit L, September 28, 2007 report of Klein.
The ALJ found a compensable injury, based on the opinions of Drs. Ahuja, Coran and Klein. The respondent appeals, arguing:
The commission gave careful consideration to the opinion of Dr. Ritter's report, as well as that of Dr. Karr. However, given the nature of the applicant's work, the commission agrees with the ALJ's conclusion that the reports of Drs. Coran, Klein and Ahuja are more persuasive.
The commission is satisfied that Drs. Coran, Klein and Ahuja had accurate understandings of the applicant' s duties. Dr. Ahuja described the applicant as a carpenter, and Drs. Coran and Klein referred to him more specifically as a drywall installer. Dr. Klein said the work was very heavy and that he handled weights up to 150 pounds. While he did not say the applicant worked as part of team, he did not say the applicant worked alone, or that he handled 150 pound weights exclusively or repetitively. Dr. Coran's description was similar. Moreover, Dr. Karr concedes the applicant worked in a "physically strenuous occupation" and he does not suggest that Drs. Coran and Dr. Ahuja had a material misunderstanding of his job duties.
It is also true the record only shows three instances of prior injuries requiring back treatment, which is not precisely the same as multiple injuries as Dr. Ahuja reported. But the reports of Dr. Coran and Dr. Klein do not appear to rely on the occurrence of multiple injuries as opposed to episodic flares of low back pain. This squares with the applicant's testimony--which seems credible given the nature of his strenuous duties--that he had strains he worked through in addition to prior injuries that led him to seek treatment. Transcript page 25.
Finally, the commission reads Dr. Coran's use of the word "can" in stating his opinion as semantic. He did not merely say that the applicant's work exposure "can" or could cause an injury, and leave it that. Dr. Coran went on to say it "did" cause the applicant's disability. This kind of "can and did" opinion is sufficient to state an opinion to a reasonable degree of medical probability.
2. DVR retraining.
The next issue is whether to order the applicant to undergo vocational retraining before awarding compensation for permanent disability based on loss of earning capacity. The Supreme Court has held that:
"The ILHR Department would be warranted in, at the least, postponing the determination of permanent disability for a reasonable period of time until after claimant completes a competent and reasonable course of physical therapy or vocational rehabilitation as an essential part of the treatment required for full recovery and minimization of damages."
Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 278 (1972). Indeed, the commission has postponed an award of loss of earning capacity in prior cases to require retraining. See for example Luthra Cole v. Modern Products Inc., WC claim no. 91024321 (LIRC, August 31, 1994).
The ALJ did not order retraining here, but simply went ahead and awarded compensation for loss of earning capacity. The commission agrees with that decision.
The commission acknowledges that Dr. Ahuja did recommend retraining, and that the applicant contacted DVR where he discussed retraining in mechanical design technology and computer drafting. Testing done by the respondent's vocational expert indicated an exceptional rating for mechanical reasoning as well as above average spatial relations and language scores. The respondent's expert recommends retraining, though it would take 80 weeks when required remedial work is factored in. Exhibit 1.
On the other hand, the applicant's vocational expert opined that it was highly unlikely the applicant would be successful in formal retraining. Exhibit E, March 4, 2007 report of Schuyler, page 4. The applicant required special education classes in high school. The testing done by the respondent's vocational expert, the applicant's scores in an achievement test put him at the lower one percent in reading and the lower three percent in math. Even given additional time to take the math test, he remained in the lower 25th percentile.
The applicant himself has indicated some interest at the hearing in pursuing retraining eventually. Transcript, page 47. However, he told his vocational expert he needed to get his life back together first, and both he and his wife felt it would be difficult for him to function at MATC due to his math and reading scores. The applicant also told his doctor he had difficulty remembering events and his wife had to organize his schedule. On this record, the commission declines to require vocational retraining as a precondition to addressing his loss of capacity.
cc:
Attorney Robert T. Ward
Attorney Michael McFarlane
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