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

JOHN A SCHMITZ, Applicant

HELMUTS HOME IMPROVEMENT, Employer

JAHN & SONS INC, Employer

CINCINNATI INSURANCE CO, Insurer

UNITED WISCONSIN, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-031968


The applicant filed an application for hearing in September 2009, seeking compensation related to injury dates of June 19, 2000 and May 14, 2009. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on May 13, 2010, with a close of record on May 14, 2010.

Regarding an accidental cervical injury of June 19, 2000, Helmut's Home Improvement/Cincinnati Insurance Company concede the following: jurisdictional facts; an average weekly wage of $520.00; a compensable cervical injury on June 19, 2000 which necessitated a surgical anterior cervical discectomy and fusion at C5-6 by Dennis Maiman, M.D., Ph.D., on August 4, 2000; payment of temporary total disability benefits for the period June 19, 2000 to December 5, 2000, in the amount of $8,319.84; payment of 10 percent permanent disability as compared to permanent total disability on a functional basis, in the amount of $18,400.00; and payment of medical expenses incurred prior to June 2001.

Regarding an alleged occupational cervical injury with a date of injury of May 14, 2009, Jahn & Sons, Inc.,/United Wisconsin concede jurisdictional facts and an average weekly wage of $1,220.80. No compensation or medical expenses have been paid by Jahn & Sons, Inc./United Wisconsin.

Issues in dispute before the ALJ were: whether the applicant sustained an occupational cervical injury arising out of his employment at Jahn & Sons, Inc., while performing services growing out of and incidental to that employment with a date of injury of a last day of work of May 14, 2009; whether the surgical procedure of June 10, 2009 (posterior decompressions at C4-5 and C6-7 and a posterior instrumented fusion from C4-7) was necessitated by either the accidental cervical injury of June 19, 2000 or the alleged occupational cervical injury of May 14, 2009 or neither; and if deemed work related, the nature and extent of disability and liability for medical expenses.

On June 22, 2009, the ALJ issued her decision in this matter. Helmut's Home Improvement/Cincinnati Insurance Company filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:


FINDINGS OF FACT AND CONCLUSIONS OF LAW

On June 19, 2000, the applicant injured his neck when he was working for Helmut's Home Improvement as a carpenter's helper. Specifically, he was lifting shingles on a roofing job when he felt a pop in his neck with stinging going down his arm.

The applicant treated with a chiropractor, Gregory Whitcomb, D.C., who referred him to a neurosurgeon, Dennis J. Maiman, M.D. Dr. Maiman eventually performed an anterior cervical decompression and fusion at C5-6 on August 4, 2000. The applicant's recovery was fairly uneventful. After treatment with Diane Braza, M.D., at the Spine Care Clinic, he was released without restriction by both Dr. Maiman and Dr. Braza on January 5, 2001. Permanent partial disability at 10 percent, the administrative code minimum for a cervical decompression and fusion, was assigned on that date.

Dr. Maiman saw the applicant again on follow-up on May 13, 2001. At that point, Dr. Maiman indicated the applicant was doing quite well with no neck pain, radicular complaints, or paresthesias. Dr. Maiman noted that the applicant was back at work and engaging in normal recreational activities. The doctor released the applicant to work as needed and emphasized the importance of continuing to do his exercise program.

The applicant had no significant treatment for neck problems for the next several years. He had chronic neck pain after May 2001, which he associated with his job duties, but he worked through it and took Ibuprofen. Meanwhile, the applicant left the employ of Helmut's Homes and entered a carpenter apprenticeship program in which he performed a variety of carpentry functions. After becoming a journeyman carpenter, he worked for a number of companies, primarily doing drywall work.

In March 2008, the applicant began working as a journeyman carpenter for Jahn & Sons, Inc. doing steel stud and drywall work. This work involved putting up steel framing, steel stud walls, and hanging drywall and insulation. The steel studs weighed a couple of pounds, although structural studs might weigh up to 40 pounds. The drywall sheets, according to the employer's witness, weighed 88 to 105 pounds. He would sometimes lift individual sheets of drywall by himself. In addition to carrying the heavy sheets of drywall, he would hang them, which would require looking up while he screwed them into the steel studs.

About two weeks after he started working for Jahn & Sons, the applicant complained of neck and arm pain to the employer's field superintendent, William Schultz, explaining that he had had an injury with a prior employer, but that he would work through it. Mr. Schultz was not aware that the applicant had any restrictions, but still pointed the applicant toward lighter work. For example, the applicant "screwed off" drywall, put in corner beads, and insulated the walls. Still, the applicant, whom Mr. Schultz described as honest and a hard worker with a good ethic, would occasionally lift drywall, sometimes by himself.

Mr. Schultz also directed the applicant toward work putting up steel framing, which was lighter work, but still physical work. He also testified that the applicant would have to reach above shoulder height or overhead to install drywall on soffits. This involved pressing and screwing the drywall to studs, with the applicant's neck in a bent position to look up as he worked overhead.

The applicant continued to work for Jahn & Sons until a seasonal lay off on December 24, 2008. He was recalled to work on April 1, 2009, and laid off again due to lack of work on May 14, 2009.

Meanwhile, the applicant began treating again with a chiropractor in May 2008. While this treatment was mostly for low back pain, the chiropractor did note upper back and shoulder pain beginning in June of 2008. Arm pain was noted in July 2008; by this time the lower back was doing quite well.

On March 4, 2009, the applicant saw his family doctor, Laure DeMattia, D.O., complaining of muscle weakness in his right arm and forearm. Dr. DeMattia's diagnosis was cervical disc disease with myelopathy. She ordered an MRI and recommended he return to Dr. Maiman.

The MRI was done on April 1, 2009, which showed a shallow small paracentral disc herniation extended into the neuroforamen at C4-C5; a small right paracentral disc herniation with associated annular tear at C6-C7; and mild facet joint degeneration at the upper and lower cervical levels.

On May 1, 2009, the applicant saw Dr. Maiman. An initial visit information form that the applicant completed before seeing Dr. Maiman gave this reason for visit:

Had numbness and tingling in right arm and fingers last July and August didn't have insurance so didn't do anything pain and numbness went away. He reported some loss of feeling in his fingertips and pain in his upper and mid back and neck.

In his May 1, 2009 treatment note, Dr. Maiman noted that he had done an anterior cervical fusion at C5-6 for a disc herniation eight years earlier. Dr. Maiman reported, too, that the applicant had done quite well after that and returned to construction work. Dr. Maiman continued:

Over the last several months he has been noticing progressive painful paresthesias in his right arm, largely in the C6 and more in the C7 distribution. These have recently gotten better but instead he has noticed progressive weakness in his right arm. This has been largely in the triceps and brachioradialis muscles. He has noted the effect of his at work. He finds it difficult to lift drywall sheets and recently has been noticing atrophy that is directly visible.

He denies any left arm symptomatology of any consequence....

On examination today, he presents as a pleasant young middle-aged male in no obvious distress. Cervical range of motion is full; however, he does have some radicular changes with forced right lateral motion. He has moderate paravertebral tenderness. Motor examination reveals very definite weakness of his right triceps and brachioradialis. He may have some interosseous weakness as well.

An MRI done earlier this month demonstrates a bulging disc at C4-5 to the left, but more importantly at C6-7 he has a large disc bulge which is significantly compressing the nerve root.

Dr. Maiman ordered x-rays which showed abnormal motion at C4-5. The doctor indicated he felt the applicant's motor weakness was unacceptable and he therefore recommended a cervical laminectomy and posterior cervical fusion possibly from C4 through T1.

The applicant went ahead with the procedure proposed by Dr. Maiman, which ended up being a C4 to C7 fusion with instrumentation, on June 10, 2009. He had postoperative pain for which he again treated with Dr. Braza. By July 30, 2009, Dr. Maiman noted he was doing well and was off his medications. In September, he returned to Dr. Maiman for a three-month follow-up of his fusion and told the doctor he was doing better. Dr. Maiman indicated that from his perspective the applicant probably could return to normal activity but he would refer to Dr. Braza. On September 15, 2009, Dr. Braza issued a "To Whom it May Concern" letter stating:

Because of the nature of this patient's condition I recommend that he return to work on 9/15/09 with the following temporary restrictions: lifting 20 lbs, alternate pushing, pulling.

In a treatment note from the same day, Dr. Braza indicated these restrictions would be advanced as the applicant became more functional. In October 2009,
Dr. Braza noted the applicant reported overall improvement but still had residual limitation in his neck mobility. She noted anticipated permanent restrictions of "light-medium work with limited neck extension/overhead activities."

On December 9, 2009, Dr. Maiman noted the applicant had decreased cervical range of motion but a definite improvement. He noted the applicant was showing evidence of improvement in his functionality and could be expected to improve as he continued his rehabilitation program but remain on light duty work.

On February 25, 2010, Dr. Braza wrote a note recommending the applicant return to work with the following restrictions: light medium work with an avoidance of lifting more than 35 pounds, or repetitive and prolonged overhead lifting and reaching.

The main issues in this case are the cause of the applicant's need for the surgery in 2009 and his current condition, and the nature and extent of his disability. There is considerable expert medical opinion on this point.

Dr. Maiman, the applicant's treating doctor, states:

As you know, I performed a C5-6 anterior cervical fusion in 2000 as a work related injury. He has been working as a carpenter with bending, twisting and neck extension.

My understanding of workman's compensation law is that adjacent segment pathology is related to the original fusion. This certainly is enough in terms of work relatedness; however, certainly, the work activities he engaged in significantly increased the risk of development as such adjacent changes. Thus I think that is a qualifying factor.

I doubt that it is likely that had he not had the original fusion further surgery would not have been necessary. However, certainly the physical activity aggravated and precipitated the degeneration well beyond the expected.

It is difficult to separate the two in terms of percentage of causation; suffice it to say that both represent important factors.

The applicant's attorney then sent Dr. Maiman a letter on May 10, 2010 reciting:

You have indicated that his work over the years has been a contributing factor to your surgical intervention. For your information, his last employer was Jahn & Sons where he worked for approximately a year. This work was as a drywall installer and required lifting weights up to 124 pounds. I'm assuming that this year with Jahn & Sons would be a contribution to his cervical condition. If you agree with this statement simply date and sign this letter and return it to me.

Dr. Maiman signed and dated the letter on May 13.

Helmut's Home, the applicant's employer at the time of his June 19, 2000 injury, offered the opinion of Michael Orth, M.D. Dr. Orth did two reports both of which indicate that the June 19, 2000 incident directly caused a disc herniation at C5-C6, but that he reached an end of healing from that condition as of January 5, 2001, and required no further treatment thereafter. Dr. Orth did diagnose:

Multilevel degenerative disc disease of the cervical spine with neural foraminal stenosis at C4-5 and C6-7, status post laminectomy and foraminotomy at the above noted areas with a posterior fusion from C4-7. This is a non work related condition. No pathology was noted and C5-6, which is the area he injured in 2000. This is clearly a non work related condition. I will point out in an answer to a later question disparities that are related to this condition. They are clearly, non work related.

Dr. Orth added the following:

It should be noted first of all that he sought no medical treatment from 2001 to 2009. He did seek chiropractic treatment in July 2008 for six visits, but he had no more treatment. When he sought treatment in March 2009 with his family physician on a routine examination he mentioned weakness in his right arm. He had no significant neck pain because that had resolved. Subsequently, he had testing done and underwent the surgery. The records indicate that he was having no continuing problem from 2001 on and due to the location of the findings they are clearly not related to this injury. It should further be noted that as he told me in the history after he left Helmut's Home Improvement he became a carpenter and that has been his occupation for the last several years.

Dr. Orth continued by noting that he did not believe the applicant actually needed the surgery he underwent with Dr. Maiman in 2009. Dr. Orth felt the applicant really had no pain because whatever he had experienced with the chiropractic treatment in 2008 had resolved and he noted only muscle weakness to Dr. DeMattia in March 2009. She reported atrophy, but Dr. Orth felt there actually was no any atrophy either. He also noted that while the MRI showed herniated discs, no herniated discs were found at surgery.

In his second report, Dr. Orth added that the June 2009 procedure resulted in permanent partial disability at 35 percent for a four-level fusion.

Jahn & Sons, who employed the applicant beginning in May 2008, retained Richard K. Karr, M.D. for its expert medical opinion. Dr. Karr examined the applicant on March 31, 2010. The bottom line from Dr. Karr is that the 2000 injury alone caused the applicant's need for surgery and additional disability in 2009.

In reaching that conclusion Dr. Karr noted that it is "orthopedic dogma that a C5-6 instrumented fusion will foster accelerated degeneration of the adjacent C4-5 and C6-7 levels via a mechanism that is stress shifting." He interpreted Dr. Maiman's August 26, 2009, letter to understand this. Nonetheless, Dr. Maiman returned the applicant to work without restrictions, which Dr. Karr opined meant that Dr. Maiman believed that carpentry work would not be injurious to the cervical spine. Dr. Karr also noted the applicant began experiencing cervical spine symptoms in July 2008 without any new traumatic event or recognizable cause. Dr. Karr stated flatly:

"Work exposure as a carpenter spanning June 2001 through 5/14/09 was not a causative factor. Again, I respectfully disagree withy Dr. Maiman's opinion regarding global carpentry exposure."

Exhibit United 2, page 15.

Dr. Karr did believe the 2009 surgery was necessary, and he specifically stated that the applicant did not exhibit pain behaviors. He stated in summary:

I believe the 6/19/00 injury, via a mechanism of stress shifting caused by the 8/4/00 C5-6 fusion, is the sole causative factor regarding progressive C4-5 and C6-7 degenerative spondylosis and symptomatic expression thereof in July 2008 and April 2009, ultimately necessitating the 6/10/09 operation. Global work exposure as a carpenter is not a causative factor. Regardless of cause, MMI is currently reached regarding the 6/10/09 operation, with an additional 25 percent PPD to the body; requiring permanent light-medium category lifting restrictions and positional restrictions.

The commission, like the ALJ cannot credit Dr. Orth's opinion. Dr. Karr stated, and Dr. Maiman recognized, the stress shifting mechanism after a cervical fusion is recognized orthopedic dogma. The issue, then, is whether the applicant's current disability and the need for the June 2009 surgery were caused by the progression of his condition following the accidental injury of June 19, 2000, or whether they were caused by an occupational injury from the applicant's work exposure thereafter--including specifically work with Jahn & Sons--as a material contributory causative factor in the progression of his condition.

Regarding disability caused by occupation exposure, the court of appeals has recently explained that

10 Worker's compensation cases involve two types of compensable injuries: those caused by accidents, and those caused by occupational diseases. ... An accidental injury is one that "results from a definite mishap; a fortuitous event, unexpected and unforeseen by the injured person." ... An occupational disease injury is an injury that is "acquired as the result and an incident of working in an industry over an extended period of time." ...

Wisconsin Insurance Security Fund v. LIRC, 2005 WI App 242, 288 Wis. 2d 206. In Wisconsin Insurance Security Fund, the court of appeals also noted that:

... In Shelby Mutual ... we also recognized that a compensable occupational disease injury may occur in the absence of identifiable traumatic events. In particular, we observed that a compensable occupational disease injury may be "'acquired as the result ... of working in an industry over an extended period of time.'" Id. at 661 (quoting Rathjen v. Industrial Comm'n, 233 Wis. 452, 460, 289 N.W. 618 (1940)).... Thus, in Shelby Mutual we recognized what is simple common sense: repetitive work activities may cause a compensable occupational disease injury even though the disease causing the injury is not caused by identifiable traumatic events.

Wisconsin Insurance Security Fund v. LIRC, 288 Wis. 2d 206, 12.

If a work injury causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-29 (1968); Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971). Further, in the context of occupational disease specifically, a worker's employment exposure need not be the sole cause or the main factor in the applicant's disabling disease. 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. Id.; Milwaukee M. & G.I. Works v. Industrial Commission, 239 Wis. 610, 615-16 (1942).

Further, under Wis. Stat. § 102.01(2)(g):

"in cases of occupational disease the time of injury is 'the last day of work for the last employer whose employment caused the disability . . . .' Judicial construction of this provision has imposed the entire liability for an occupational disease 'upon the last employer whose employment caused the disability resulting from the disease, without contribution from prior employers whose employment also caused the disease.' [Citing Travelers Insurance Company v. DILHR, 85 Wis. 2d 776, 782.]

Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 664-65 (Ct. App. 1982).(1)  In addition, Jahn & Sons points to White v. LIRC, 2000 WI App. 244, 239, Wis. 2d 505. There, the court of appeals held that work exposure with the employer whom the injured worker asserts it wishes to hold liable must have contributed to the worker's disability.(2)

Between the competing medical opinions of Dr. Maiman and Dr. Karr, the commission finds that of treating doctor Maiman, who performed both the August 4, 2000 cervical surgery and the June 10, 2009 surgery, more credible.   The applicants occupational exposure as a journeyman carpenter for several years after leaving Helmuts Homes was strenuous, and involved duties that particularly stressed the cervical spine. 

The commission appreciates that Jahn & Sons put the applicant on lighter duty about two weeks after he started working for them in March 2008, and that applicant was complaining of neck pain at that time.  However, the applicant had had neck pain to some degree on an ongoing basis since 2001 as residual of his 2000 surgery.  The medical record indicates that the applicants condition progressed to the point that he sought chiropractic treatment for upper back and shoulder pain in June 2008 and arm pain in July 2008, three or four months after he started working for Jahn & Sons, and that he began treating for these symptoms with Dr. DeMattia in earnest in March 2009.  Further, Dr. Maimans May 1, 2009 note refers to numbness and tingling in right arm and fingers since the prior July and August, which was getting progressively worse.

Further, while Jahn & Sons commendably did try to accommodate the applicant, he still did physically-demanding work for them, including overhead work installing drywall. Moreover, in Exhibit B, Dr. Maiman affirmatively stated that the year of employment with Jahn & Sons contributed to his cervical condition. The commission is therefore satisfied that the standard in White has been satisfied and that employment at Jahn & Sons was a material contributory causative factor--albeit together with his prior employment as a carpenter's apprentice and journeyman carpenter--in the progression of his disabling cervical condition.(3)

The commission therefore concludes that Jahn & Sons and its insurer United Wisconsin are liable for any disability compensation and expense that are due, based on a cervical injury due to occupational exposure with a date of injury of May 14, 2009. Because neither party disputes the periods of temporary disability, the amount of permanent disability, and the amount of medical expenses, awarded by the ALJ (as opposed to who is liable for it), the commission sets it out here in substantially the same form after adjusting the award to reflect a different average weekly wage and year of injury.

The applicant claims temporary total disability benefits beginning on May 14, 2009 when he was laid off by Jahn & Sons. However, no medical evidence was submitted to support that claim. Rather, the record supports a renewed period of temporary total disability commencing on June 10, 2009, the date of the surgery. Dr. Karr's credible opinion as to the end of healing, March 31, 2010, is hereby adopted.

As a result of the applicant's injury from occupational exposure through May 14, 2009, the applicant is entitled to temporary disability benefits as follows:

The total due for temporary disability is $33,608.75.

As a result of the applicant's injury from occupational exposure through May 14, 2009 and the necessary surgery of June 10, 2009, the applicant sustained additional functional permanency of 25 percent as compared to permanent total disability. The applicant is thereby entitled to 250 weeks of permanent partial disability benefits at the rate of $282.00 per week (the statutory maximum for an injury in 2009), for a total of $70,500. As of April 13, 2011, 57.8333 weeks of permanent partial disability totaling $16,309 have accrued; 192.1667 weeks totaling $54,191 remain unaccrued.

The applicant agreed to the direct payment of an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded. The future value of the fee is $20,836.15 {.020 times ($33,608.76 plus $70,500.00). The fee is subject to an interest credit of $946.72 to reflect advance payment of the portion of the fee attributed to unaccrued portion of the award, yielding a present value fee of $19,889.43. That amount, plus costs of $29.58 shall be paid to the applicant's attorney within 20 days.

The amount due the applicant in disability compensation as of April 13, 2011, is $39,962.22 , which is the sum of temporary disability award ($33,680.75) plus the accrued portion of the permanent partial disability award ($16,309), less the accrued fees thereon ($9,997.95), and less costs ($29.58). That amount shall be paid within 30 days.

The amount due as it accrues after April 13, 2011 is $43,352.80, which is the sum of unaccrued portion of the permanent partial disability award ($54,191.00) less the fees thereon ($10,838.20). That amount shall be paid to the applicant in monthly installments of $1,222.00 beginning on May 13, 2011.

As a result of the applicant's injury from occupational exposure through May 14, 2009, Jahn & Sons/United Wisconsin are liable for all reasonable and necessary medical expenses incurred for treatment of the applicant's cervical spine including, but not limited to, the expenses incurred as a result of the surgery of June 10, 2009 and the post-operative rehabilitation. However, the WKC-3 form and supporting documents are not clear as to what amounts are owed to whom. Consequently, the applicant and United Wisconsin are hereby instructed to communicate with each other to accurately determine the amounts due and to whom. As soon as that is determined, United Wisconsin is to make prompt payment of same. In the event no agreement can be reached, jurisdiction shall be reserved regarding past medical expenses.

The application, as it relates to an accidental injury of June 19, 2000 (WC Claim No. 2000-031968), shall be dismissed.

Because the applicant may have additional claims under Chapter 102, Wis. Stats., regarding the May 14, 2009 date of injury, jurisdiction shall be reserved for such further findings and awards as may be warranted regarding WC Claim No. 2009-024208.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:

INTERLOCUTORY ORDER


The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are reversed in part and affirmed in part.

Within thirty days, Jahn & Sons, Inc., and Wausau Insurance shall pay all of the following:

1. To the applicant, John A. Schmitz, Thirty-nine thousand nine hundred sixty-two dollars and twenty-two cents ($39,982.22) in accrued disability compensation.
2. To the applicant's attorney, Dennis H. Wicht, the sum of sum of Nineteen thousand eight hundred eighty-nine dollars and forty-three cents ($19,889.43) in fees and Twenty nine dollars and fifty eight cents ($29.58) as reimbursement for costs.

Beginning on May 14, 2011, and continuing on the fourteenth day of each month thereafter, Jahn & Sons, Inc., and Wausau Insurance shall pay the applicant One thousand two hundred twenty-two dollars and no cents ($1,222.00) per month until the additional amount of Forty-three thousand three hundred fifty-two dollars and eighty cents ($43,352.80) has been paid.

Jurisdiction is reserved regarding past medical expenses along with any further findings and award as may be warranted regarding WC Claim No. 2009-024208.

The application, as it relates to Helmuts Home Improvement and Cincinnati Insurance Company and an accidental injury of June 19, 2000 (WC Claim No. 2000-031968) is dismissed.


April 21, 2011 (amended April 28, 2011)
schmitz.wrr:101:9 ND6 3.41, 3.44

 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ, who opined that she thought the applicant exaggerated the lifting involved. She added that while she did not doubt the applicant did physical work, he was active otherwise.

The commission agrees that the applicant overstated the weight of the drywall he worked with: he stated it weighed 120 pounds while Mr. Schultz more credibly testified it weighed 88 to 105 pounds. Yet even under Mr. Schultz's description of the applicant's job, he at times lifted heavy materials and had work overhead or above shoulder level with his neck extended. Moreover, this case ultimately came down to the credibility of the medical experts, neither of whom testified before the ALJ. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617-18 (Ct. App. 1998). The commission found Dr. Maiman more credible on the issue of causation, for the reasons discussed above.

cc: Attorney Dennis H. Wicht
Attorney Andrew J. Quartaro
Attorney Joseph P. Danas, Jr.


Shown as amended per commission order dated April 28, 2011.

Appealed to circuit court. 

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Footnotes:

(1)( Back ) The court of appeals has observed: While this may seem unfair, it all evens out: "The company that had insured the compensation liability at the time disability occurred is the one that must pay the compensation awarded. This rule will work no injustice to any individual carrier or employer because the law of averages will equalize burdens imposed by this act among the employers and the compensation insurers of this state." [Citation omitted.] Virginia Surety Co., Inc. v. LIRC, 2002 WI App 277, 20, 258 Wis. 2d 665.

(2)( Back ) In White, the court of appeals held that a medical opinion that work as a drywaller generally caused the applicant's disability was insufficient to establish that his work as a drywaller during the last eight months of 33 years of employment itself contributed to his occupational disease.

(3)( Back ) Nor may there be apportionment between the 2000 accidental injury at Helmut's Home and injury caused by the work exposure through 2009. The commission has previously held that the law does not permit apportionment between an earlier traumatic injury and a subsequent worsening due to occupational exposure. Kenar v. Great Lakes Dart Mfg., Inc., WC Claim Nos. 1999-026162 and 2002-036061 (LIRC, December 23, 2003). See also Socha v. Cemstone Ready Mix, WC Claim No. 2006-020938 (LIRC, September 29, 2008).

(4)( Back ) The applicant earned $148 in these weeks. Subtracting that amount from the applicant's stipulated average weekly wage ($1,220.80) leaves $1,072.80. Dividing that amount by the average weekly wage yields actual wage loss proportion of 0.878768, which when applied to the TTD ($808) yields a TPD rate of $710.04.

 


uploaded 2011/05/31