KAREN K BITTNER, Applicant

FULTON PERFORMANCE, Employer

ACE AMERICAN INSURANCE CO, Insurer

The applicant filed a hearing application describing an injury on February 6, 2008, in which she aggravated a pre-existing work-related neck injury due to repetitive lifting and bending. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 3 and December 13, 2010, with a close of record on December 24, 2010.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, and an average weekly wage of $700.80 on the alleged February 6, 2008 date of injury. At issue was whether the applicant suffered an injury caused by accident or disease arising from her employment with the employer, while performing services growing out of or incidental to her employment; that is, whether the applicant sustained an occupational injury on February 6, 2008. Also at issue were the nature and extent of disability from any such injury, as well as the respondent's liability for medical expenses.

On March 15, 2011, 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, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The applicant was born in 1957. She began working for the employer in 1996. She initially worked as a production employee, working first on the winch assembly line and later as a riveter.

Before the February 2008 injury now at issue, the applicant suffered a compensable neck injury in 2002, which her doctors associated with repetitive motion at work. She eventually underwent a discectomy and fusion at C6-7 in June 2002, but testified she was told at the time that she had problems at C5-6 as well. September 2010 Transcript, page 17.

Following the surgery for her 2002 injury, the applicant was released to return to work subject to work restrictions set out at Exhibit C. That document, dated May 1, 2003, sets permanent restrictions as follows: Lifting 35 pounds maximum with frequent lifting and/or carrying of objects weighing up to 10 pounds; occasional bending, twisting, climbing, and body twisting; and five days per week as tolerated.

Upon returning to work, the applicant worked in the employer's office, eventually becoming a production coordinator. She testified that she had no neck complaints, and indeed her neck felt good, while she was working as production coordinator. She did not seek treatment for her neck during this period.

In February 2008, the employer--apparently for economic reasons--asked its non-production workers to work at least eight hours a month on the floor running a machine. Thus, for two days (February 5 and 6, 2008), the applicant worked three hours per day running a "groover" and then returned to her production coordinating work. On a third day, February 8, she ran the groover machine for about an hour and then operated a "metal muncher."

The applicant testified that on the second day she did production work,
February 6, her neck became a little tight and tense and began bothering her. It got progressively worse during the week and she began to experience "zingers" down her left arm. She testified she told her supervisor, Tim Ellenbecker, about her symptoms on February 6, 2008.

The applicant's testimony relates the onset of pain to operating the groover machine. September 2010 Transcript, page 28. In doing so, she had to push a button 1,800 times on one of the days she operated the groover and 2,000 on the other day. The employer's supervisor, Tim Ellenbecker, testified that in operating the groover machine, a worker simply moved a plate that weighed less than one pound of weight on an automated slide and placed his or her fingers on sensors rather than pushing a button. However, Mr. Ellenbecker testified if he had been aware the applicant had work restrictions, he would not have assigned her to a production job during February 2008.

Mr. Ellenbecker acknowledges that she told him she was stiff and sore about this time. December 2010 Transcript, page 48. Although the applicant testified she began experiencing symptoms on February 6, 2008, she did not seek treatment immediately. She explained that she believed her neck pain would go away after she got more used to production work.

On February 14, 2008, the applicant saw her family doctor, Richard D. Nash, M.D., for a recheck regarding her anxiety medication. During this visit, the doctor noted she was feeling calmer with the medication. Regarding the applicant's neck complaints, the doctor noted:

She notes recently she has developed some right neck pain that she thinks is secondary to a pinched nerve. She is using symptomatic treatments for that and seems to be doing a little bit better. She otherwise denies any particular problems or concerns since our full evaluation and review. She does note her situation for her son down in Georgia is stable and really unchanged, and that continues to be a source of stress for her as well as some work related stress. She does continue to smoke.

The doctor's diagnostic assessment on February 14 included a diagnosis of "myofascial pain." His treatment plan did not include any specific action to be taken regarding the applicant's neck pain complaints.

On May 5, 2008, the applicant completed a statement of work-related injury describing the type of injury she was experiencing as sharp pain in neck, shoulder, and right arm with a tingling sensation in the index finger and thumb, right arm and shoulder. Exhibit 4. She stated that:

I believe it was from using muscles I'm not used to using. Thought this would go away in time. Still having tingling in right 2 finger[s], arm and shoulder.

The employer did an accident investigation report (exhibit 5) that same day which stated that the "team member's description of how accident happened" was as follows:

Was working on groover/metal muncher when she felt a sharp pain in her neck & shoulder and right arm.

The applicant next saw Dr. Nash on May 6, 2008. On that occasion, the doctor noted:

Mrs. Bittner reports that she has been noticing worsening symptoms of right sided neck to shoulder to thumb and index finger paresthesias almost like electric shock sensations over the last two months. She is hoping that it would slowly get better, but now seems to be worsening. She notes that it seems to be worse with extension. She says that it is very reminiscent when she had her cervical fusion and diskectomy at 3-4/5 back in 2002 and 2003 by Dr. Hugus or Dr. Jensen. She does note some loss of pinch and grip strength on the right but does not seem to be positional. The main thing that she notes is when she tucks her chin and extends her head that she starts getting the paresthesia sensation and this has definitely worsened with neck extension over the last month or so. She is nervous that things are going to get worse. Now she is even noticing some occasional pins and needles sensations down the medial thigh on the right but nothing on the left upper lower extremity.

On examination, the doctor noted the applicant had pain which he described as an electric shock sensation to the C5 distribution on the right with neck extension. His assessment was paresthesia at C5 and "possible recurrent disc disease." His plan was to schedule a cervical MRI to reassess for recurrent disc disease.

The MRI was done on May 9, 2008. The interpreting radiologist noted that he did a comparison to an MRI done on November 26, 2003. He went on to state the following impression:

There is evidence for an anterior fusion at C6-7. There does appear to be a left paracentral disc extrusion at 5-6 producing cord compression similar to the prior exam. There is some foraminal narrowing at 5-6 and there may possibly be nerve root impingement, but certainly there doesn't appear to be definitive root compression at C5-6.

On May 9, 2008, Dr. Nash wrote the applicant a letter saying that her MRI scan showed

a left paracentral disc extrusion at C5-6, which really should not be there. This is the same area you had an extruded disc before your spine surgery and suggests that you have had a recurrence of disease at the same site.

Dr. Nash referred the applicant to a neurologist.

On May 29, 2008, the applicant then saw a neurologist, Brian E. Bunch, M.D. He noted a neurosurgical consultation to evaluate neck pain and right arm pain. He took the following history:

This is a very nice 51-year-old lady who has had a history of cervical spine problems. Back in the early 2000s she had a problem with a C6-7 disc herniation and associated left C7 radiculopathy. She had an ACD/F at C6-7 with a bone graft and plate with Dr. Jensen in 2002. This did not give her immediate help, but over the years with doing her physical therapy exercises she gradually developed improvement in her left arm symptoms. Currently her problem is neck pain, and this extends into her right upper extremity. She complains of pain that goes from her right neck to her right shoulder and down into her forearm and then down into her right thumb and index finger. This has been pretty significant for about four months. She is still working, but it is difficult for her because of the pain. She mostly does computer work at her workplace. She has no problems with her left arm. She feels that she has been dropping objects out of her right hand at times because she has some numbness in her right arm and lateral aspect of her hand. Extending her neck exacerbates her pain. She tried wearing her cervical collar at home, but this did not really help too much. She says that her physical therapy exercises she does at home help cool down her neck pain and arm pain for a while, but then it comes back.

On examination, Dr. Bunch noted that the applicant had a limited range of motion with extension causing her pain. He noted, too, some "junctional changes at the C5-6 level with spondylitic degenerative disc changes with posterior disc bulging causing spinal canal and bilateral foraminal narrowing." The doctor's assessment was:

This is a very nice 51-year-old female with neck pain and right upper extremity C6 radiculopathy. She had a previous ACD/F at C6-7, and now she is having problems with the C5-6 level. She has some spondylitic disc changes at C5-6 with associated right C6 radiculopathy.

We talked about different treatment options. We talked about surgery versus no surgery. We are going to try some conservative treatment options first. I will get her set up for a right C5-6 epidural steroid injection. She is going to continue doing her home physical therapy exercises for her neck....

The doctor hoped the applicant would do well with these conservative measures. If surgery was necessary, though, he thought it would be an anterior cervical discectomy fusion at the C5-6 level.

The applicant saw Mazin Ellias, M.D., a pain clinician, for an epidural steroid injection at C5-6 on June 12, 2008. In his note for that day, Dr. Ellias noted:

This is a 51-year-old lady with a very long complicated history. This lady was referred to me by Dr. Bunch because of neck pain. However, the neck pain has been longstanding.

Her history and present complaint: The whole issue started almost around 2002 when she had the neck pain following her work related injury and then she had a fusion. Following that she was doing relatively well until more recently, some time in the past 4-5 months, where she started to have increasing pain again, which was probably work related, so that is her main concern. She rates her pain as 8-9/10....

She said neck movement especially actively bending, stooping and lifting seem to increase the pain.

Follow-up notes from Dr. Ellias indicated that the epidural steroid injection did not provide substantial relief, but that a facet joint injection to the C4-5 and C5-6 helped significantly with the pain.

In September 2008, Dr. Bunch noted that a C-6 nerve root injection by Dr. Ellias had completely eliminated her right upper extremity pain and so surgery was not an option at the time. In November 2008, however, the applicant's symptoms returned and the doctor ordered a repeat MRI. This was done on December 1, 2008, and the interpreting radiologist indicated an impression of "interval increase in size of a moderate to large left paracentral junctional disc protrusion at C5-C6."

A subsequent note from Dr. Ellias on December 23, 2008, indicated that the applicant had undergone a nerve root block and that he was going to try another epidural steroid injection on that date. There was some discussion between Dr. Bunch and Dr. Ellias about radiofrequency ablation in January 2009.

On January 22, 2009, the applicant returned to Dr. Bunch who noted that the applicant had done well with the cervical discectomy and fusion done in 2002, but "as time has gone by she had developed significant pain in her neck that goes into her bilateral upper extremities." Dr. Bunch recommended proceeding with a second anterior cervical discectomy fusion at the C5-6 level. Thus, on April 28, 2009, Dr. Bunch performed a surgery involving:

1. Removal of C6-7 anterior cervical plate.
2. ACDF (at the C5-6 level....

The applicant had some improvement, but not complete improvement, and underwent physical therapy after the surgery.

When the applicant underwent post-surgery occupational therapy on October 29, 2009, the occupational therapist reported this history:

Female pt stating in February 2008 she was on the floor at her job in the production department completing very repetitive tasks. The result is cervical pain which has resulted in the aforementioned surgery. She has since been recovering.

The applicant was seen by Dr. Bunch on April 7, 2010 (Exhibit A). He noted the applicant was one year out from the anterior cervical discectomy fusion he performed in April 2009. He reported she had some improvement of her symptoms from the surgery but still complained of some posterior neck pain and occasional bilateral paresthesias. He stated she was at an end of healing regarding her neck surgery and set final work restrictions on that date and also estimated permanent partial disability.

The applicant offers the expert medical opinion of treating surgeon Bunch regarding the cause, nature and extent of disability. Dr. Bunch refers to his treatment notes for a description of the accidental event or work exposure to which the applicant attributed her condition. He also refers to his notes for a description of the applicant's disability and diagnosis.

While Dr. Bunch's treatment notes do include a diagnosis of C6 radiculopathy and neck pain, which he treated surgically with a fusion in April 2009, his notes do not provide much description of the applicant's work duties or work exposure. Rather, they refer to the surgery done in 2002 with the development of significant pain in the neck and bilateral symptoms as time went by. See, for example, Dr. Bunch's treatment note of January 22, 2009. Dr. Ellias did give somewhat of a more complete history, which included increasing pain in the four or five months before he began treating her in June 2008, which was "probably work-related." However, Dr. Ellias' note does not describe how the condition is work related either.

The applicant also offers a narrative report signed by Dr. Bunch at Exhibit D, which indicates the date of injury was February 12, 2008, and that her work injury on that date was a precipitation, aggravation and acceleration of her preexisting progressively degenerative condition beyond its normal progression. Again, however, this note describes neither the applicant's work duties nor how they could cause her condition to be aggravated beyond its normal progression.

Still, the doctor opined that the applicant's work exposure caused her disability by precipitation, aggravation and acceleration of her preexisting degenerative condition beyond its normal progression. He rated permanent disability at ten percent for the surgical event and described her condition as stable. Included with this practitioner's report, is a note dated April 7, 2010, which sets work restrictions to light work lifting 30 pounds maximum with frequent lifting or carrying of over up to 5 pounds. A separate sheet with return to work restrictions also set a restriction permitting only occasional climbing and rare squatting.

The respondent relies on the expert medical opinion of Thomas A. Lyons, M.D. His diagnostic impression was:

1. Degenerative cervical spondylosis.
2. Degenerative cervical disc disease.

He gives the following opinion regarding causation:

The history and work exposure provided by Ms. Bittner and by the medical records, in my opinion, based on a reasonable degree of medical probability is not a sufficient force, magnitude or duration to be a causative factor or a factor to aggravate, accelerate or precipitate her clearly preexisting degenerative cervical disc disease beyond its normal progression.

I feel the onset of her symptoms is the mere appearance of symptoms consistent with the natural history or progression of her preexisting disease.

There clearly was C5-6 degenerative disc disease seen on the 2002 MRI report.

There is some literature to suggest there are accelerated changes above or below a level of fusion, but it can equally be argued that this is natural progression of her previous disc disease.

In my opinion, it is more likely than not that the appearance of her now C5-6 disc disease is not related to her work exposure for reasons opined above.

In other words, Dr. Lyons apparently opines that the cervical discectomy and fusion done by Dr. Bunch in April 2009 was made necessary by an underlying degenerative condition rather than the prior cervical fusion done in 2002 or the work exposure in February 2008.

The first issue is whether the applicant has established an injury caused by an accident or disease arising from her employment with the employer, while performing services growing out of or incidental to that employment. The commission must conclude she has not. The commission's review of the medical records does not persuade it that Dr. Bunch has an adequate understanding of the work activities the applicant was performing when her pain began in February 2009.

Dr. Bunch's treatment notes do not refer to the work with the groover machine, or any floor work. Instead, his notes refer to a gradual onset of pain as time went by in the years after the 2002 discectomy-fusion surgery done for the earlier injury. Dr. Ellias offers a little more detail, but he also does not refer to the applicant's work duties with respect to the onset of pain. He simply refers to the recurrent pain four or five months before he saw her in June 2009 and recites it is "probably
work-related."

A treatment note by an occupational therapist on October 29, 2009, refers to repetitive tasks in the production department at work in February 2008 as causing cervical pain. However, while it appears Dr. Bunch did sign that report in November 2009, that is a very slender basis for finding that the doctor had an adequate understanding of the applicant's work duties. This seems especially true since Dr. Bunch's own note dated January 22, 2009, refers to the applicant doing well after the 2002 fusion surgery with the development of significant pain in her neck and bilateral upper extremities "as time has gone by."

Dr. Lyons states that it is possible that the applicant's disability is a consequence of the 2002 surgery, but his ultimate opinion apparently is that her current condition is the result of preexisting degenerative disease. However, because the commission does not credit Dr. Bunch's report, it is not necessary for the respondents to show that some other accident or work exposure caused the injury, Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). Like the ALJ, the commission believes the applicant should be permitted to bring a claim for additional disability based on her earlier date of injury. Consequently, the commission declines to comment on the credibility of Dr. Lyons' opinion at this time.

Based on the foregoing, the commission cannot conclude that the applicant has established an injury on or about February 6, 2008 caused by an accident or disease arising out of her employment with the employer, while performing services growing out of and incidental to that employment. Consequently, her hearing application must be dismissed.

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

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

The application is dismissed.

Dated and mailed
November 9, 2011
bittnka . wrr : 101 : 5 ND6 3.33 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Attorney Benjamin Welch
Attorney Richard Ceman

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