SHARON A SLEETH, Applicant

AURORA HEALTH CARE METRO INC, Employer

SENTRY CASUALTY CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

Delete the paragraph that begins at the bottom of page 5 of the administrative law judge's decision and continues onto page 6 of that decision, and substitute the following paragraphs therefor:

"The applicant's medical records clearly detail her preexisting degenerative low back condition. That condition included a prior 'work-related injury' identified by Dr. Edwards in his clinic note of January 18, 2010, the date he first saw the applicant after the work incident of January 14, 2010. Dr. Edwards recounted in that clinic note that the applicant had been '. . . doing extremely well and had returned to work,' but then she sustained severe pain and disability across her low back after twisting her back while lifting the food tray on January 14, 2010. Dr. Edwards and Dr. Perlewitz thereafter continued treatment for the applicant's low back, which ultimately led to the three-level fusion surgery performed on September 7, 2010. Dr. Perlewitz credibly opined that the January 2010 work-related incident precipitated, aggravated, and accelerated the applicant's preexisting low back condition beyond normal progression.

"Dr. O'Brien opined that the applicant's preexisting, 'multilevel degenerative disc condition' was causally related to the normal aging process and the applicant's history of smoking. This part of his opinion is credible. However, his opinion that the applicant's '...work activities have played no causative role in either the onset or progression of her degenerative, non-work-related condition' is not credible.

"While this case illustrates recurring difficulties that may arise in distinguishing between the causation theories of precipitation, aggravation, and acceleration of a preexisting condition beyond normal progression (Lewellyn 3 theory)(1), and occupational disease, the credible evidence submitted in this case demonstrates that the applicant's work for the employer resulted in a compensable low back injury occurring on January 14, 2010. Dr. Perlewitz identified this as a Lewellyn 3 injury, but he could just as easily have checked the occupational disease causation box, because as applied to the facts of this case there is little practical difference between the Lewellyn 3 injury theory and the occupational disease injury theory.(2) Regardless, there was a particular, work-related traumatic event that occurred on January 14, 2010. Dr. Perlewitz credibly opined that this event permanently changed the applicant's low back condition by precipitating, aggravating, and accelerating her preexisting low back condition beyond its normal progression. Dr. O'Brien's reluctance to view that particular work event as causative could be seen as credible if the event were viewed in isolation; however, the event is not credibly divorced from the applicant's preexisting condition, or from the effect the event had on her condition and on her ability to continue working."

The rest and remainder of the administrative law judge's FINDINGS OF FACT AND CONCLUSIONS OF LAW are affirmed and reiterated as if set forth herein.

Now, therefore, this

The Findings and Interlocutory Order of the administrative law judge are modified to conform to the foregoing, and as modified are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed
March 27, 2012
sleetsh . wmd:185:6 ND6 §§ 3.4;  3.38

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Attorney Robert Menard
Attorney Daniel Zitzer

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(1)( Back ) See Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59, 155 N.W.2d 678 (1968).

(2)( Back ) See Jeffrey Walczak v. Consolidated Papers, Inc., WC Decision No. 1996-030935 (LIRC, Feb. 19, 2008); John A. Hanson v. Nekoosa Papers, WC Decision No. 1997-022633 (LIRC, Jan. 30, 2003). These are examples of cases in which the commission has discussed the conflation of the Lewellyn 3 and occupational disease causation theories.

See also, Arthur Larson, Lex Larson, Larson's Workers' Compensation Law, Vol. 3, 52.03, wherein the authors state:

"With the expansion of occupational disease legislation, this contrast between accident and occupational disease is gradually losing its importance . . ."

"Again, occupational disease might be transformed to accidental by the presence of some untoward little incident or breakage or abnormality . . ."  Id. at pages 52-5 and 55-6.

uploaded 2012/05/08