JOSEPH S TOUFAR, Applicant
HARLEY DAVIDSON
MOTOR CO OPERATIONS, Employer
TRANSPORTATION INSURANCE CO, Insurer
The applicant filed a hearing application in July 2009, seeking compensation for an injury occurring while doing repetitive work on March 30, 2009. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 22, 2010.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage at statutory maximums for the purposes of disability compensation. The respondent made a single payment of disability compensation in the amount of $767.60 for which it seeks a credit. At issue was whether the applicant sustained an injury caused by an accident or disease arising out of his 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 disability, and the respondent's liability for medical expenses.
On December 14, 2010, the ALJ issued his decision dismissing the hearing application. The applicant filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, consulted with the presiding ALJ concerning witness credibility, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
The applicant was born in 1960. Prior to the date of injury now at issue, he underwent two cervical surgeries: a C6-7 anterior cervical decompression and fusion in 1995 and a C4-C7 posterior cervical decompression and fusion in 2005. After the second procedure in June 2005, the applicant continued to have some left arm and forearm pain, leading to a consultation with a physiatrist, Andrew Nelson, M.D., in July 2005. Exhibit 6. The applicant followed with Dr. Nelson until November 2005. He complained of a "knot" in his levator/upper trapezius area during a physical therapy visit in January 2006, but he had no problems at work and was released from physical therapy in that month. Exhibit 5.
The applicant began working for the employer in 2000. He was a machinist. Although he had the two prior neck surgeries, and the continuing symptoms after the second surgery as outlined above, he was experiencing no significant neck symptoms as of March 30, 2009. He now seeks compensation for a third procedure, a C3-4 fixation and foraminotomy procedure, which he contends was made necessary by work exposure on March 30, 2009.
On that day, the applicant switched from a job he had done for nine years, which was approximately 75 percent automated, to a job that was 100 percent manual. The applicant's new job involved inspecting power train cylinders for motorcycles. Specifically, the cylinders would come down a conveyor line after machining, at which point the applicant would shine a light down the cylinder and look for a pattern, then remove the cylinder and inspect it for nicks, paint chip stains, etc. Each part weighed 9.2 pounds. The employer wanted him to inspect 100 parts per hour.
The applicant began noticing physical problems, specifically in his neck, from bending and looking down the cylinders on the very first day he did this new cylinder inspection job. Specifically, he testified, he had a shooting, throbbing pain in his neck.
The applicant testified he reported the pain to his work group advisor, Kevin Rousch, and his union steward. Mr. Rousch told him he should continue to do the job and hope he became accustomed to it, describing his neck pain as a "learning pain." At home that evening, the applicant experienced neck and shoulder pain into his arm. He returned to work the next day, March 31, and did his inspecting jobs as directed, but he had problems meeting the expected production rate because he was in pain. He again told Mr. Rousch and his union steward he was having pain doing the work, and Mr. Rousch told him to try to make the rate as best he could and again suggested that the pain would go away after the applicant had been doing the job for a while.
Later that morning the applicant saw the employer's nurse and was given an ointment called Biofreeze to put on his neck. That helped relieve the pain. He worked again on April 1 and 2 and his pain increased. On April 2, he told Mr. Rousch and the union steward he felt like his neck was getting worse. Mr. Rousch apparently told him to take it easy and assured him he would have help with his job. Still, he had pain in his neck. The applicant continued to work over the next few days and apparently a trainer was assigned to his station who tried to improve the ergonomics.
On April 6, the applicant saw his family doctor, James Clemence, M.D., who took him off work for a week and suggested he used ibuprofen. There is a work release sheet from Dr. Clemence dated April 6, 2009, at Exhibit D. It does restrict the applicant from work for one week but says very little else.
However, Dr. Clemence did, apparently, refer the applicant to Dennis J. Maiman, M.D., the surgeon who had done the posterior cervical fusion in 2005.
Dr. Maiman recorded this history in an April 17, 2009 note to Dr. Clemence:
[The applicant] came in today after considerable delay. As you know, I had done a posterior cervical fusion on him several years ago with excellent results. He was back to living a normal life, and doing his exercise program faithfully and working at Harley-Davidson. He recently, several weeks ago, had a change in his employment. They have put him on a machine that required repetitive lifting and twisting of a part while moving his neck. He had the immediate onset of neck pain and over the next couple of days had evidence of painful paresthesias going into his right arm and now into his right leg. This has been associated with clumsiness in his right hand as well.
He describes the problem as worsening since its onset. He denies any left arm symptomatology....
Dr. Maiman went on to describe the applicant as in obvious distress with a limited cervical range of motion and profound weakness in the C8 radicular distribution. Noting signs of significant neurological deficit, Dr. Maiman ordered an MRI of the cervical spine and prescribed medication. He released him to restricted light duty with no repetitive lifting or twisting of his neck with an instruction to follow up after the MRI had been completed.
An MRI was done on April 20, 2009 (Exhibit F). The interpreting radiologist reported the following conclusion:
1. No interval change in the anterior cervical discectomy and fusion at C6-7. There is solid fusion across the disc space. The left paracentral osteophyte just below the level of the C6-7 foramina with slight deformity of the cord is stable from the prior myelogram.
2. Interval posterior cervical decompression from C4 to C6...the canal is widely decompressed at these levels.
3. Probable calcified disc in a left paracentral location at C7-T1.
4. Moderate to severe canal stenosis at C3-4 due to ventral ridging with cord deformity and effacement of the CSF surrounding the cord. The canal narrowing at this level has significantly from the prior study.
5. Left lateralizing disc bulge and shallow central herniation at T1-2.
The applicant next saw a physical therapist, Charmaine M. Singletary, P.T., on April 27, 2009 (Exhibit C). She described the method of injury as:
Changed jobs to inspecting cylinders which included frequent, repetitive lifting and twisting resulting in (approximately) 15,000# per night. Onset of right neck pain, railroad spike in right shoulder, numbness/tingling right forearm and fingers 4-5.
Ms. Singletary's note indicates a date of onset of March 30, 2009.
After a few more visits, the applicant returned to Dr. Maiman on May 28, 2009. On that date, Dr. Maiman wrote to Dr. Clemence, stating:
[The applicant] came in today for follow-up of his new cervical spine injury. As you know, he had undergone previous cervical spine procedures, and had an exacerbation after a change in work assignment. I have sent him back to physical therapy for reconditioning in hopes of avoiding a surgical procedure. He has also been on antiinflammatories and on steroids.
Unfortunately, he has not improved. He continues to have significant neck, shoulder, and arm pain. He states that he drops things fairly regularly with his right hand, presumably related to the weakness that we had observed previously. He denies any new neurological abnormalities.
...
That he requires surgical treatment is clear. He has not improved with nonoperative care and has clear-cut and objective neurological deficit. The only consideration is whether we simply need to extend the posterior cervical fusion or whether the disk at C7-T1 needs to be dealt with as well.
To a reasonable degree of medical probability, this is continuing treatment for his work-related injury. He is going to contact worker's compensation about that.
Dr. Maiman also scheduled a CT scan (see Exhibit C). The CT scan is at Exhibit F. The interpreting radiologist stated the following conclusion:
C4-7 are solidly fused. Canal narrowing is most notable at C3-4, and foraminal narrowing is most severe on the right at C3-4. Severe facet arthropathy is also seen at T1-2.
The applicant stopped working on June 1, 2009, when the employer stopped providing him work within the light duty restriction set by Dr. Maiman. Transcript, page 32.
On June 22, 2009, the applicant underwent surgery performed by Dr. Maiman. In essence, the applicant underwent C3-4 and C7 laminectomies, foraminotomies at C5-6 and C6-7, and a fusion at C3-4.
On August 7, 2009, the applicant was seen by Dr. Maiman, who reported he was doing well neurologically, but having problems with depression. He referred the applicant to John Skantz, M.D., who saw the applicant on August 14, 2009. Dr. Skantz described the applicant as a 49-year-old with a history of multi-level cervical degenerative joint disease with surgical myelopathy who had recently undergone his third cervical fusion. Dr. Skantz's impression was:
Neck and thoracic pain following cervical fusion redo with moderate improvement in his symptomatology already but residual myelopathy findings on examination for which nonoperative care will proceed at this point to include avoidance of bedrest, maintenance of normal activities, development of the spinal strengthening program with attention to his posture...
In August 2009, the applicant underwent physical therapy. His therapist noted improvement during the course of treatment. In September 2009, the applicant returned to Dr. Maiman who noted he continued to do well following his posterior cervical fusion. He did have trouble with numbness in his leg, which affected his walking slightly. Dr. Maiman noted the applicant had been released to light duty by Dr. Skantz, whom he hoped would release the applicant to full duty within
six weeks or so.
On November 6, 2009, the applicant returned to Dr. Skantz with "markedly improved neck pain following fusion and therapy." He told the doctor he was able to participate in normal activities of daily living and had no complaint on review of neurological symptoms. The applicant asked the doctor to remove his work restrictions. Accordingly, Dr. Skantz agreed to release him to work without restrictions and told him he could return for treatment as needed.
Dr. Maiman similarly noted the applicant was continuing to improve as of December 31, 2009. Dr. Maiman noted the applicant was increasingly functional and that he denied neurological problems. Dr. Maiman scheduled follow-up for six months. Dr. Maiman noted, too, the applicant was returning to work the following Monday.
Although he had been released to work on November 6, 2009, the applicant did not actually return to work until January 4, 2010, because of his seniority and a plant layoff. As of the date of the hearing, he was still working full time for the employer. Transcript, pages 33-34.
The applicant returned to Dr. Maiman on June 25, 2010. The doctor noted the applicant was doing reasonably well although he had a fair amount of neck and shoulder pain. He added he felt the applicant was likely to "do okay" as long as he maintains his exercise program.
Both parties submitted expert medical evidence regarding the cause, nature and extent of disability. The applicant relies on the expert medical opinion of
Dr. Maiman, stated in a practitioner's report at Exhibit B dated July 6, 2010. Regarding the accidental event or work exposure to which the applicant attributed his condition, Dr. Maiman's report lists a March 30, 2009 "date of traumatic event" and refers to his treatment notes for a description. The treatment notes, of course, include Dr. Maiman's April 17, 2009 note which states:
He recently, several weeks ago, had a change in his employment. They have put him on the machine that required repetitive lifting and twisting of a part while moving his neck. He had the immediate onset of neck pain and over the next couple of days had evidence of painful paresthesias going into his right arm and now into his right leg.
On the form practitioner's report itself, Dr. Maiman marked the box indicating that the event described above caused the applicant's disability by precipitation, aggravation and acceleration of a preexisting progressively deteriorating or degenerative condition beyond normal progression. In addition, Dr. Maiman's notes include his May 28, 2009 observation that the applicant's need for surgery was due to his work injury.
Dr. Maiman's practitioner's report also estimates permanent partial disability at 15 percent due to surgery and a decreased range of motion. He added that further treatment, possibly rehabilitation in the future, might be necessary.
The respondent relies on the expert medical opinions of David Rolnick, M.D., stated at Exhibits 1, 2 and 3, the most recent of which is dated August 30, 2010. Regarding causation, Dr. Rolnick states in his third report:
Mr. Toufar is a gentleman who very unfortunately has developed significant degenerative cervical spondylosis with cervical myelopathy. The condition of cervical spondylosis is not a traumatic condition. As such, I agree with the opinion of Mr. Toufar's treating physician, Dr. Maiman, who clearly notes in his WKC-16-B that Mr. Toufar's cervical spondylosis is degenerative in nature. Where I completely disagree with Dr. Maiman is in regard to what part, if any,
Mr. Toufar's work at Harley Davidson Motor Co. plays in his cervical spine condition. Mr. Toufar was clearly unhappy with my original independent medical evaluation and told me he did not agree with the history I obtained and recorded. I, therefore, gave him another opportunity to state his history of the events that occurred at the time his symptoms developed on March 30, 2009. He told me, again, that symptoms developed over a period of four hours, and then progressed over a four day time frame. I do not believe that it is possible to develop a full blown cervical myelopathy in four hours simply from positioning your head as is alleged by Mr. Toufar. I do not believe that Mr. Toufar's cervical myelopathy was precipitated, aggravated, or accelerated by any work event or activities on March 30, 2009. Rather, it is much more likely, to a reasonable degree of medical certainty, that Mr. Toufar experienced a manifestation of his
long-standing, progressive, degenerative cervical spondylosis with spinal stenosis and myelopathy, unrelated to his work activities and unrelated to his workplace exposure at Harley Davidson Motor Co.
Mr. Toufar has undergone numerous surgical procedures. On December 31, 2009, Dr. Maiman indicated that Mr. Toufar had normal motor and sensory examinations. When I examined Mr. Toufar today, he had no significant sensory deficit. However, he did demonstrate significant motor findings indicative of cervical myelopathy. It appears that Mr. Toufar's condition has progressed since December 2009. I believe that this progression occurred due to a progression of his spinal stenosis, and this progression would have occurred even if Mr. Toufar was not working. Since there is no allegation of any injury after December 2009, this progression is unrelated to his employment.
Dr. Rolnick did opine that the applicant had reached a healing plateau from his cervical spine surgery on June 22, 2010, and that he had 15 percent permanent partial disability. He also opined that the surgery Dr. Maiman performed on June 22, 2009, was necessary, though again, not related to his work injury.
2. Discussion.
Dr. Maiman's opinion is that the applicant's work precipitated, aggravated and accelerated a pre-existing degenerative condition beyond normal progression See Lewellyn v. ILHR Dept., 38 Wis. 2d 43, 59 (1968). The form practitioner's report refers to a traumatic event as precipitating, aggravating, or accelerating the degenerative condition beyond its normal progression. In this case, however, there is no specific accident, but rather one day's work exposure.
The Lewellyn court itself, however, did not refer simply to an accident or traumatic event but also to "employment activity" or "work activity." Specifically, the court stated:
From the preceding cases and others dealing with preexisting degenerative conditions, the following we feel represent an accurate appraisal of the factual situations which should determine whether or not the particular condition is recoverable:
(1) If there is a definite "breakage" (a letting go, a structural change etc., as described by Professor Larson), while the employee is engaged in usual or normal activity on the job, and there is a relationship between the breakage and the effort exerted or motion involved, the injury is compensable regardless of whether or not the employee's condition was preexisting and regardless of whether or not there is evidence of prior trouble.
(2) If the employee is engaged in normal exertive activity but there is no definite "breakage" or demonstrable physical change occurring at that time but only a manifestation of a definitely preexisting condition of a progressively deteriorating nature, recovery should be denied even if the manifestation or symptomization of the condition became apparent during normal employment activity.
(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."
Lewellyn v. ILHR Dept., at 38 Wis. 2d 58-59 (citations and footnotes omitted).
While it could be argued that Dr. Maiman's opinion that a day's work caused the applicant's disabling injury might technically better fit the legal theory of causation for occupational disease(1), 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).
Regarding a single day of work exposure as an "appreciable period" under the occupational disease theory of causation, Neal & Danas, Worker's Compensation Handbook 3.4 (6th ed., 2010) states:
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. A work exposure as short as one day has been held legally sufficient.
Citing Employers Mutual v. McCormick, 195 Wis. 410, 413-14 (1928), the commission has similarly stated:
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...
Gumieny v. County Concrete, WC claim no. 2004-017501 (LIRC, July 11, 2006), (affirmed in unpublished per curiam decision, sub nom. County Concrete v. LIRC, No. 2007AP864 (Wis. Ct. App. Oct. 15, 2008.)
Further, the applicant claims his work duties on March 30, 2009 caused the new onset of neck pain and disability. Both Dr. Rolnick and Dr. Maiman addressed that claim in their expert medical opinions. Regardless of the most appropriate legal theory of causation, both medical experts have given full and complete opinions on the issue of medical causation based on the applicant's description of the onset of disabling neck pain with the performance of his work duties on March 20, 2009.
The main issue in this case, then, is which medical expert is more credible on causation. This case raises the question of
The respondent argues this is a textbook case of a mere manifestation of a pre-existing degenerative condition while the applicant was engaged in normal employment activity, which is noncompensable under Lewellyn v. ILHR Dept., supra.
The commission cannot agree. The applicant performed a job that required him to move his head and neck repetitively while carrying or holding a 9.2 pound object. The applicant may never have attained the 100-piece-per-hour inspection rate the employer set. Still, the commission is persuaded that this activity, even though brief in duration, caused a permanent change to the applicant's cervical spine which was already compromised by the two surgeries.
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He informed the commission that he believed the applicant had accurately described the job duties. He added that while the medical record indicated the applicant had had some symptoms after the second cervical surgery in June 2005, he credited the applicant's testimony that he was not experiencing symptoms, at least significant symptoms, on March 30, 2009.
This is not a case where the applicant experienced a brief flare-up of pain on March 30, 2009, which resolved when he stopped doing the inspection work. Rather, the applicant credibly testified that he experienced continuing neck pain from March 30, 2009 onward. Indeed, the medical record indicates that the applicant sought treatment for his cervical complaints on April 6, 2009, and continued to treat an ongoing basis thereafter, leading ultimately to the third surgery in June 2009. Given that the applicant had apparently not treated for his pre-existing cervical condition between January 2006 and March 2009, and had been able to work during that time, the commission cannot credit the opinion of Dr. Rolnick that this was a case of manifestation of symptoms from his pre-existing cervical condition during normal employment activity.
Rather, the commission adopts the more credible opinion of Dr. Maiman. The commission concludes that the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of an incidental to that employment on March 30, 2009. It further finds that the applicant's March 30, 2009 work injury resulted in the need for treatment, including the June 22, 2009 surgery performed by Dr. Maiman.
3. Award.
The applicant is entitled to temporary total disability for the period he claimed, from June 2, 2009 (when the employer stopped providing him work within his restrictions) through November 6, 2009 (when Dr. Skantz released him to work without restrictions). This is a period of 22 weeks and 4 days, payable at the weekly rate of $808.00 (the statutory maximum for injuries in 2009), totaling $18,314.67. From this must be deducted the non-industrial disability payments made by The Standard for the period from June 1 through October 9, 2009 in the amount of $8,889.293(3), for which The Standard shall be reimbursed under Wis. Stat. § 102.30(7). In addition, the respondent is entitled to a credit for its one-time payment of $767.60. The net amount of temporary total disability compensation awarded under this order, then, is $8,657.78.
Based on Dr. Maiman's estimate and Wis. Admin. Code § DWD 80.32(11), the applicant has sustained additional permanent partial disability at 15 percent compared to disability to the body as a whole. He is thus entitled to 150 weeks of permanent partial disability compensation at the weekly rate of $282 (the statutory maximum for injuries in 2009), totaling $42,300. As of November 10, 2011, 109.5 weeks of permanent partial disability totaling $30,879 have accrued; 40.5 weeks totaling $11,421 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 amount awarded under this order. The future value of the fee is thus $10,191.56 {0.20 times ($8,657.78 plus $42,300.00)}. However, the portion of the fee attributable to the unaccrued portion of the award is subject to an interest credit of $44.96 for advance payment of the unaccrued portion of the award, leaving a present value fee of $10,146.60. That amount shall be paid to the applicant's attorney in 30 days.
The amount due to the applicant within 30 days is $31,629.42, which equals the sum of the temporary total disability ($8,657.78) plus accrued permanent partial disability ($30,879), less the fee thereon ($7,907.36). The amount remaining to be paid to the applicant as it accrues after November 10, 2011 is $9,136.80, which equals the unaccrued permanent partial disability ($11,421) less the fees thereon ($2,284.20). The remaining amount shall be paid in monthly installments of $1,222.00 beginning December 10, 2011.
The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury documented in Exhibit A as follows: $118,639.00 from Medical College of Wisconsin, of which $78,818.32 remains unpaid; $2,699.00 from Center for Diagnostic, of which $478.09 was paid by United Health, and $255.67 remains outstanding; and $40,874.71 from Froedtert Hospital, of which $27,555.50 was paid by United Health, and $603.00 remains outstanding. The respondent is liable for the outstanding treatment expenses under Wis. Stat. § 102.42 and to United Health for the medical expense it paid under Wis. Stat. § 102.30(7). In addition, it is liable to the applicant for $99.91 in medical mileage.
Dr. Maiman credibly opined that the applicant might require treatment in the future. Accordingly, this order shall be left interlocutory to permit further orders and awards for additional disability and medical expense claims that may arise in the future.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
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, the sum of Thirty-one thousand six hundred
twenty-nine dollars and forty-two cents ($31,629.42) in disability compensation and Ninety-nine dollars and ninety-one cents ($99.91) in medical mileage.
2. To the applicant's attorney, Ten thousand one hundred
forty-six dollars and sixty cents ($10,146.60) in fees.
3. To Medical College of Wisconsin, Seventy-eight thousand
eight hundred eighteen dollars and thirty-two cents ($78,818.32) in medical treatment expense.
4. To Center for Diagnostic, Two hundred fifty-five dollars and
sixty-seven cents ($255.67) in medical treatment expense.
5. To Froedtert Hospital, Six hundred three dollars and no cents ($603.00) in medical treatment expense.
6. To United Health, Twenty-eight thousand thirty-three dollars and fifty-nine cents ($28,033.59) in reimbursement of medical expenses paid.
7. To The Standard, Eight thousand eight hundred eighty-nine dollars and twenty-nine cents ($8,889.29) in reimbursement of nonindustrial disability payments made.
Beginning on December 10, 2011, and continuing on the tenth day of each month thereafter, the employer and its insurer shall pay the applicant the sum of One thousand two hundred twenty-two dollars and no cents ($1,222.00) per month, until the additional amount of Nine thousand one hundred thirty-six dollars and eighty cents ($9,136.80) in permanent disability compensation has been paid.
Jurisdiction is retained for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
October 31, 2011
toufajo . wrr : 101 : 5 ND6 3.4
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. As set out above, the ALJ found the applicant credible about his work duties and his lack of significant symptoms as of March 30, 2009. In essence, the commission reversed the ALJ's decision because it reached a different conclusion regarding 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).
cc:
Attorney Alan Derzon
Attorney Joseph Danas
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