JERRY K VAN PATTEN, Applicant
CONTRACT CONVERTING LLC, Employer
OSHKOSH DOOR CO, Employer
EMPLOYERS ASSURANCE CORP, Insurer
UNITED WISCONSIN, Insurer
Respondents Contract Converting, LLC and Employers Assurance Corporation submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 14, 2010. The applicant and respondents Oshkosh Door Company and United Wisconsin/Heartland Insurance submitted answers to the petition, and briefs have been submitted by the parties. Low back injuries were conceded as having occurred during employment at Contract Converting on June 16, 2005, and at Oshkosh Door on July 31, 2008. At issue are whether either of these conceded injuries was causally related to the applicant's new low back injury and disability occurring on March 9, 2009, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter and hereby modifies and affirms the administrative law judge's Findings and Interlocutory Order. The commission makes the following:
The applicant, whose birth date is January 6, 1972, sustained a conceded low back lifting injury while working for Contract Converting (Employers Assurance-insurer) on June 16, 2005. He was initially treated by Dr. Don Furhman and Dr. Randall Schultz. Dr. Schultz's clinic note of July 5, 2005, recounts the applicant's symptoms of "...sharp back pain traveling to the left buttock and left posterior thigh immediately." A lumbar MRI was performed on July 7, 2005, and at L4-5 it was read by the radiologist as showing: "Mild broad-based posterior disc bulging which slightly flattens the anterior surface of the thecal sac. A tiny focus of increased signal intensity is seen centrally at the posterior L4-5 margin consistent with an annular tear." At L5-S1 it was read as showing: "There is a large central and left paracentral posterior disc protrusion which compresses the anterior aspect of the thecal sac, particularly on the left, and is in position to contact the exiting left S1 nerve root. The left L1 nerve is probably posteriorly displaced near where it exits the thecal sac."
The applicant was referred to Dr. Peter Ullrich, who performed an L5-S1 microsurgical discectomy with medial facetectomy and foraminotomy on
August 22, 2005. This had a good result until a dural leak developed and caused a pseudomeningocele
at the surgery site.(1) On February 27, 2006, Dr. Ullrich performed an L5-S1 laminectomy and repair of the lesion. The applicant's back and left leg symptoms were improved but not eliminated, and Dr. Schultz performed piriformis injections in April and May of 2006. On June 1, 2006, Dr. Ullrich assessed maximum medical improvement together with five percent permanent partial disability. However, in accordance with the administrative code, Employers Assurance paid the minimum ten percent permanent partial disability that was due for the two surgeries. With his release, Dr. Ullrich indicated the applicant was 75-80 percent better than he had been prior to surgery. The applicant had been terminated from Contract Converting in October 2005 because he could not perform up to required physical standards.
The applicant began working for Oshkosh Door (United Heartland-insurer) in January 2007, and on July 31, 2008, sustained a low back injury there. He began treating again with Dr. Schultz, who ordered another lumbar MRI on August 6, 2008. The radiologist read this as showing mild diffuse disc bulge and small left paracentral focal disc protrusion at L4-5, but that this protrusion "...has decreased in size since the previous study and results in minimal deformity of the thecal sac." The radiologist read L5-S1 as showing a left intraforaminal broad-based disc protrusion "...very similar to the previous study...mild to moderate right sided neural foraminal narrowing without obvious impingement on exiting nerve root."
The applicant underwent physical therapy and two injections (one at L4-5 and the other in the sacroiliac area), but Dr. Schultz released him without restriction on November 10, 2008. He was laid off from Oshkosh Door in January 2009.
On March 9, 2009, the applicant was carrying his young daughter at home when he sneezed and felt pain down his left leg, similar to the kind of pain he had experienced at the time of the June 2005 work injury. He returned to Dr. Schultz and another lumbar MRI was performed on March 18, 2009. The radiologist read this at L4-5 as showing: "Posterior disk bulge with superimposed left paracentral focal disc protrusion mildly indents the anterior thecal sac ...the annular tear seen at the posterior aspect of the disc space on prior examination is not seen on today's study. The disc bulge/protrusion has slightly increased since the prior exam--contacts @ L5 nerve root. The narrowing of the left neural foramen has slightly progressed since the prior exam." There was no significant change seen at L5-S1. The applicant returned to Dr. Schultz and received another course of epidural injections. Dr. Schultz has continued to recommend follow-up treatment.
Dr. Schultz has given inconsistent and inconclusive opinions regarding the issue of causation. On March 13, 2009, he opined that the applicant's left leg radicular pain was "more likely than not" arising from the L5-S1 disc space, and that the applicant had been having recurrent back and leg pain since the June 2005 work injury. On March 23, 2009, Dr. Schultz indicated in an Informational Note that if the pathology is at L4-5, the applicant's symptoms likely relate back to the June (sic) 2008 work injury, and that the recent MRI confirmed the disc pathology to be mainly at L4-5. Based on this MRI result, Dr. Schultz related the applicant's symptoms to the 2008 work injury. On April 8, 2009, Dr. Schultz indicated that he had reviewed the March 2009 MRI with Dr. Ullrich, and Dr. Ullrich believed it was more likely that the applicant's symptoms were from foraminal narrowing on the left at L5-S1 more so than nerve root irritation at L4-5. On April 21, 2009, Dr. Schultz expressed uncertainty as to whether the L5 nerve root irritation stemmed from L4-5 or L5-S1 pathology, and questioned whether the symptoms might be attributable to sacroiliac joint dysfunction. On August 19, 2009, Dr. Schultz expressly deferred to Dr. Ullrich regarding the L4-5/L5-S1 causation question. However, he indicated the March 2009 sneezing incident "could have aggravated beyond the natural progression" the applicant's problems at L4-5 or L5-S1, "...probably related to the L4-5 motion segment, but by no means can I state this with certainty." Finally, on October 12, 2009, Dr. Schultz opined that the March 2009 sneezing incident likely aggravated beyond natural progression the applicant's condition from either the 2005 or the 2008 work injury, but he could not state with a reasonable degree of probability which work injury was implicated.
In a questionnaire submitted to Dr. Ullrich by respondents Oshkosh Door and United Wisconsin/Heartland dated October 29, 2009, that physician checked "yes" to each of three questions which asked: (1) Whether the June 2005 work injury played a part in the onset of the applicant's symptoms and/or disability after the sneezing incident; (2) Whether the applicant sustained a temporary back injury at Oshkosh Door on July 31, 2008; and (3) Whether the applicant reached an end of healing from the July 2008 injury by November 10, 2008. Dr. Ullrich indicated in a letter to the applicant's attorney dated January 22, 2010, that he had not seen the applicant since June 1, 2006, and noted the applicant had no insurance coverage. Dr. Ullrich added that he would have to examine the applicant again in order to determine whether or not he would be a valid candidate for additional spine surgery.
At the applicant's request, Don R. Zilisch, D.C. performed a chiropractic evaluation of the applicant on January 7, 2010, and submitted a written report dated
January 28, 2010. Dr. Zilisch opined that assuming the March 2009 sneezing incident constituted a new injury, he believed the June 2005 work injury "predisposed" the new injury and "played a most probable part" in it. He further opined that the July 2008 work injury "further weakened" the applicant's lumbar spine, but he indicated he was unable to apportion percentages of causation between the 2005 and 2008 work injuries. He indicated the applicant required further treatment for his back.
At United Wisconsin/Healthcare's request, Dr. William McDevitt submitted an opinion dated May 20, 2009, that was based on a review of the applicant's medical records. Dr. McDevitt opined that the work injury of July 31, 2008, consisted of a low back strain superimposed upon preexisting degenerative conditions at L4-5 and L5-S1. He further opined that the applicant had completely recovered from this 2008 work injury by November 10, 2008, without permanent disability. Finally, he opined that the March 2009 sneezing incident constituted a new incident unrelated to the July 2008 work injury. He did not offer an opinion regarding the relationship between the June 2005 work injury and the applicant's difficulties beginning on March 9, 2009.
At the request of Contract Converting and Employers Assurance, Dr. Thomas A. Lyons examined the applicant on October 19, 2009, and submitted a report dated November 10, 2009. Dr. Lyons diagnosed an L5-S1 disc herniation resulting from the June 2005 work injury, a resolved lumbar strain resulting from the July 2008 work injury, and degenerative lumbar disc disease not work-related. He opined that the March 2009 sneezing incident was consistent with a continuation of the preexisting degenerative disc disease, and in no way related to either the 2005 or the 2008 work injuries.
At the request of United Wisconsin/Heartland, Dr. Gorden Clark examined the applicant on October 27, 2009, and submitted a report on that same date. He diagnosed degenerative disc disease, a large L5-S1 disc herniation properly addressed by surgery, temporary aggravation of the degenerative disc disease by the work injury of July 31, 2008, and aggravation of the degenerative disc disease as a result of the sneezing incident on March 9, 2009. Dr. Clark further opined that the applicant's ongoing symptoms and disability are "...a manifestation of the original injury and resultant surgeries occurring in 2005, and an aggravation of that condition occurring with the sneezing incident." He fixed the healing plateau for the July 2008 work injury as having occurred on November 10, 2008, without permanency. He additionally opined:
"The spinal forces produced at the time of the March 9, 2009 sneezing incident have played upon pathology pre-existent to the July 31, 2008 incident and in fact acted upon the pathology stemming from the original 2005 injury and subsequent surgeries."
Finally, Dr. Clark opined that the applicant had not reached a healing plateau from the March 2009 sneezing incident, that additional medical treatment was recommended, and that it was premature to address the issue of additional permanent partial disability.
After careful review of all the evidence, Dr. Clark's opinion concerning causation is found to be credible. The applicant sustained permanent injury to his lumbar spine attributable to the June 2005 work injury and resulting surgeries. He thereafter continued to experience intermittent symptoms, and it is credible that the symptom onset occurring with the sneezing incident on March 9, 2009, "...acted upon the pathology stemming from the 2005 injury and subsequent surgeries" (Dr. Clark's opinion). As noted by the administrative law judge, it is not credible that the March 2009 sneezing incident would have caused the symptoms and disability the applicant experienced thereafter, absent the permanent pathology resulting from the June 2005 work injury. The 2005 work injury has been a substantial factor in causing the applicant's ongoing symptoms and disability beginning on March 9, 2009.(2)
The only practitioners who arguably implicated the July 2008 work injury in the symptoms and disability arising on March 9, 2009, were Dr. Schultz and Dr. Zilisch. All the other physicians credibly opined that the July 2008 work incident resulted in a temporary injury with no permanent residual and no causative effect attributable to what occurred on March 9, 2009. Dr. Schultz ultimately opined that he could not to any reasonable degree of medical probability attribute any effects from the July 2008 work injury to the applicant's back problems beginning on March 9, 2009. Dr. Zilisch was the only practitioner who to a reasonable degree of probability, assigned any causative effect for the March 2009 onset to the July 2008 work injury, and he indicated he was unable to apportion his opinion of causative effect between the 2005 and 2008 work injuries.
Dr. Ullrich also opined in October 2009 that the effects of the 2005 work injury, but not the 2008 work injury, played a causative role in the symptom and disability onset of March 9, 2009. Contract Converting and Employers Assurance assert that because Dr. Ullrich last saw the applicant on June 1, 2006, his causation opinion should be rejected. The fact that Dr. Ullrich last saw the applicant in 2006 does go to the weight to be accorded his opinion, but does not require that the opinion be rejected.
Accordingly, it is found that the applicant sustained a compensable re-injury to his low back on March 9, 2009, attributable in substantial part to the effects of the work injury of June 16, 2005. Contract Converting and Employers Assurance are responsible for temporary total disability for the period between March 9, 2009, and the hearing date of February 18, 2010 (both dates inclusive), a period of 49 weeks and four days. At the applicable rate of $364.67 per week, which includes escalation pursuant to Wis. Stat. 102.34(7), the total due for temporary total disability is $17,150.24. A 20 percent attorney's fee shall be subtracted and paid to the applicant's attorney in the amount of $3,430.05.
The credible medical opinions of Dr. Clark and Dr. Ullrich indicate that additional medical treatment is required as a result of the March 2009 re-injury, and the applicant has not been found to have reached a healing plateau from that injury. Accordingly, jurisdiction will be reserved with respect to the issues of additional disability and/or medical treatment expense.
There are discrepancies between certain of the medical expenses ordered paid by the administrative law judge, and the WC-3 (applicant's Exhibit B) and WKC-3 (United Exhibit 6). There is agreement that United Heartland is due reimbursement in the amount of $2,294.00 for payment it made to Theda Clark Medical Center. There is disagreement over other claimed medical expenses, and reimbursement may be due to a nonindustrial insurer. Accordingly, reimbursement to United Heartland for the payment made to Theda Clark Medical Center shall be ordered, but the order will be left interlocutory with respect to the other claimed medical expenses. The applicant should submit an updated WKC-3 to respondents Contract Conversion and Employer's Assurance, and if disagreement remains, opportunity for additional hearing shall be given to address the issue.
Accordingly, the commission will order payment of the $2,294.00 due Theda Clark Medical Center, and leave the issue of the remaining medical expenses interlocutory. The applicant should submit an updated WC-3 to respondents Contract Converting and Employers Assurance, and if disagreement remains, opportunity for additional hearing shall be given to address the issue.
NOW, THEREFORE, this
Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed December 8, 2010 (amended December 15, 2010)
vanpaje : 185 : 5 ND6 § 3.39
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney Stuart J. Spaude
Attorney Thomas Niemiec
Attorney Sean M. Spencer
This decision is shown as amended by order dated December 15, 2010.
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