JOSEPH M CEFALU, Applicant

AVENUE INC, Employer

WIS UNINSURED EMPLOYER FUND, 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.

The findings and order of the administrative law judge are affirmed.

Dated and mailed
May 31, 2012
cefaluj . wsd : 101 : 9 ND6 ND6 3.38; 9.28

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The Uninsured Employer's Fund (the fund) concedes that the applicant suffered a minor back injury on June 6, 2002, while doing construction work for the employer. At the time of injury, the applicant was moving a prefabricated wall while walking backwards. He estimated the prefabricated wall weighed possibly 600 pounds and he carried it with two other men. He apparently slipped and the wall fell against him and he experienced pain in his lower back and stomach.

Attached to Exhibit B is a note dated June 10, 2002, indicating that the applicant was hurt at work picking up plywood earlier that day. He was prescribed a Medrol medication as well as Tylenol. He was seen in follow-up on June 14, 2002, and the doctor reported the back pain had decreased and was almost gone. See Exhibit F.

However, on June 15, 2002, the applicant was seen in an emergency room for epigastric discomfort that started at 4:00 that afternoon. He described severe abdominal pain, at 10 of 10, the worst pain he has ever had. The emergency room doctor noted he was taking methylprednisolone which is a steroidal medication used in Medrol. A CT of the abdomen showed a perforated duodenum.

The emergency room doctor's diagnosis was peritoneal ulcer, duodenal; peritonitis; and pneumoperitoneum. The doctor described the applicant's condition as very serious and he was admitted to the hospital for surgery. An exploratory laparotomy was done that day. The treating surgeon, Nicholas Armstrong, M.D., noted the indications for surgery as follows:

The patient is a 42-year-old gentleman with a history of persistent back pain that has been treated most recently with Methylprednisolone. As this persisted he has developed acute abdominal pain.... He now presents for exploratory laparotomy for suspected perforated duodenal ulcer.

The post-surgery diagnosis was a perforated duodenal ulcer.

The applicant thereafter has undergone other stomach surgeries, including umbilical hernia repairs. He now claims he is totally disabled. He currently receives social security disability.

At the hearing, the applicant testified that he complained to his doctor during a check-up in 1992 that he had been having heartburn, nothing major, but the doctor ordered a gastric x-ray which showed mild irregularity to the duodenum secondary to old peptic ulcer disease but no definite acute ulceration. Similar symptoms in 1999 led to another x-ray which showed no change.

The applicant also testified that he occasionally took Mylanta or Tums for heartburn symptoms if he ate spicy foods. He testified he would take that medication once a month. Asked whether he took nonsteroidal anti-inflammatory medications specifically, he stated "not that I remember, no." (T. 34). He didn't know where Dr. Hanson (one of the respondent's medical examiners) got the idea he took such medications. The applicant added that he did not take aspirin for headaches, though he does take baby aspirin for heart disease.

The main issue in this case is whether taking the Medrol medication caused the applicant's stomach ulcer that resulted in the June 15 surgery and subsequent disability. The parties' medical experts offer divergent opinions on this issue.

The applicant's expert medical opinion comes from several treating doctors. One doctor, John Brusky, M.D., declined to opine that the applicant's current chronic abdominal pain is related to a work injury. He states, frankly, that while he assumes the applicant's perforated ulcer and subsequent surgery started his chronic abdominal pain, he did not know what caused the ulcer. Exhibit A.

Nicholas Armstrong, M.D., the doctor who did the original June 15 surgery stated his opinion in a practitioner's report dated October 25, 2006. Exhibit B. He states that the applicant's complaints started with a work-related back injury that caused multiple abdominal problems requiring five abdominal surgeries (and even one heart surgery). He opines that the applicant is 100 percent disabled due to his chronic stomach pain, chronic back pain and fatigue. Attached to his report is a medical note suggesting that adhesions from the first surgery are responsible for the applicant's continuing disabling stomach problems.

Dr. Armstrong wrote a second practitioner's report (Exhibit D, dated May 27, 2011) in which he states:

Patient injured his back at work on 6/06/02 and was prescribed Methylprednisolone for pain. Steroids caused acute onset of perforated duodenal ulcer, requiring emergency surgery on 6/15/02. Patient subsequently developed chronic abdominal pain, adhesions and problems with hernias requiring multiple surgeries.

Dr. Armstrong also stated the applicant was unable to work due to his chronic abdominal pain which he related to the work injury both as a direct cause and an aggravation of a pre-existing condition beyond its normal progression and opined that the applicant's disability was 100 percent.

An opinion from a treating psychologist, Douglas Lyman, Ph.D., (a practitioner's report dated October 4, 2008 at exhibit C) states the applicant is unable to return to work due to his psychological condition for which he needs ongoing supportive psychotherapy for depression. Dr. Lyman relates the phychological condition to the work injury and subsequent surgery, adding that it caused a reactive depression. The doctor also notes daily headache pain.

Kristen Reynolds, M.D., offers another opinion offered on behalf of the applicant, a practitioner's report at exhibit E dated June 6, 2011. She states the applicant injured his back while working as a carpenter and that his physicians prescribed oral prednisone for the pain which caused a duodenal perforation and necessitated emergency abdominal surgery in June 2002. She adds that since then the applicant had chronic abdominal pain, and multiple surgeries for adhesions, meshomas, resultant hernias, etc. She adds that the tension from his chronic back and abdominal pain also triggered chronic headaches. She concluded that he was permanently disabled due to those conditions and that his disability was directly caused by the work injury. She, too, rated him permanently totally disabled on a functional basis for limited range of motion in the back, chronic back pain, abdomen pain and headaches.

The employer and insurer (collectively, the respondent) rely on the opinions of two doctors. Randal F. Wojciehoski, D.P.M., D.O., examined the applicant on June 2, 2008. His report dated June 11, 2008, is at exhibit 10. Dr. Wojciehoski noted prior medical records indicating a longstanding history of esophageal reflux disease and documentation provided back to December 1992, revealing history of old peptic ulcer disease. He adds that "numerous pre-existing evaluations for peptic ulcer disease were noted in the charts."

Dr. Wojciehoski opined that the treatment on June 15, 2002, and thereafter, was not related to a work-related injury but due to the applicant's pre-existing medical condition which included pre-existing peptic ulcer disease. He noted the applicant "went on to have numerous surgeries related to his peptic ulcer disease, and subsequently developed chronic back pain." He believed the applicant sustained a musculoskeletal low back injury on June 6, but that he was capable of returning to work within one week of that injury. Regarding the peptic ulcer disease, Dr. Wojciehoski stated:

It is my opinion to a reasonable degree of medical probability that according to medical records back in 1992, Mr. Cefalu had evidence of acute and chronic peptic ulcer disease. This is clearly documented in 1992. It is my opinion that four days of a corticosteroid would not lead to the acute perforation of peptic ulcer disease. It has been shown that chronic use of steroids can lead to development of peptic ulcer disease. It should be noted Mr. Cefalu had positive cultures for helicobater pylori, which is a personal health condition, and a significant material contributory causative factor in the development of peptic ulcer disease. It is my opinion the perforation was not related to the original work-related incident, and I disagree with Mr. Cefalu's allegations.

The respondent also offers a medical record review done by Jerome Hanson, M.D., a gastroenterologist. Exhibit 11. He gave a diagnosis of perforated duodenal ulcer due to nonsteroidal anti-inflammatory drug use and Helicobacter pylori infection. His opinion may be summarized as follows:

My opinion concerning diagnosis is that the claimant had a perforated duodenal ulcer caused by nonsteroidal anti-inflammatory drugs and Helicobacter pylori infection. The duodenal disease is not permanent. In itself, it does not involve work restrictions. However, the claimant is clearly limited by his chronic pain and multiple repeated operations.

This claimant has documentation in the medical records of a history of duodenal ulcers long preceding his perforation. This is first mentioned in April of 1992 as a 'past history of ulcers.' An upper GI x-ray performed in December of 1992 revealed scarring of the duodenal bulb due to old ulcer disease. He has documented use of oral analgesics and anti-inflammatory drugs from his orthopedic complaints which are varied dating back to the early 1990s. Furthermore, in July of 2003 he underwent an esophagogastroduodenoscopy with gastric biopsies. This was the first investigation regarding possible Helicobacter pylori that I located in his medical records. He was positive for Helicobacter pylori and treated with appropriate antibiotic therapy. However, I did not find documentation of any follow-up testing concerning the success of the antibiotic therapy. That is to say, he may have drug-resistant Helicobacter pylori and continue to have infection, although the lack of recurrent duodenal ulcer would indirectly suggest he has been cured by the Helicobacter.

The role of corticosteroids in pathogenesis of ulcer disease has been controversial for decades. The most widely accepted status of this presently is the corticosteroids do not cause ulcer disease. However, there is some suggestion that it may increase risk of ulcers in patients who are exposed to nonsteroidal anti-inflammatory agents. In this case, the brief course of corticosteroids begun only four days prior to his perforation would be an unreasonable explanation for his ulcer, given his long prior history of ulcer disease, epigastric complaints, nonsteroidal anti-inflammatory drug use, and Helicobacter pylori infection.

In response to specific interrogatories, Dr. Hanson stated that Helicobacter pylori and nonsteroidal anti-inflammatory medications were responsible for 90 percent or more of ulcer cases generally. He noted, again, that the applicant had been using Zantac, an antacid, for epigastric distress since early 1992. He thought the applicant's ulcer was related to his pre-existing conditions. He did allow that the surgery done in June 2002 was a reasonable treatment of the perforated ulcer, though he stated it was successful since there was no recurrence of ulcer disease.

On appeal, the applicant points out that the applicant's prior history of peptic ulcer disease is not all that significant and that there is little or no support for the conclusion that he took nonsteroidal anti-inflammatory drugs, much less that he took them often enough to cause an ulcer. He contends that Dr. Hanson's report, which assumes that he took such medications regularly, is therefore flawed.

The commission agrees with the ALJ that the respondent's experts--Dr. Wojciehoski and particularly Dr. Hanson--gave more fully explained and more credible reasonable opinions in this case. Dr. Wojciehoski opines that the chronic use of steroids can cause ulcers, while Dr. Hanson flatly states that the use of steroidal drugs in-and-of-itself does not cause ulcers. Dr. Hanson suggested it might be a cause in connection with nonsteroidal anti-inflammatory medication or Helicobacter pylori, but that the applicant did not take enough steroidal drugs in this case to cause the problem. That is, four or five days' use of the Medrol medication falls far short of the chronic use that Dr. Wojciehoski suggests might be causative.

The commission is not persuaded that the evidence, or lack of evidence, regarding the applicant's use of nonsteroidal anti-inflammatory medication undercuts the credibility of the opinions of Drs. Hanson and Wojciehoski. First, of course, the ALJ observed the applicant as he testified, and the ALJ did not credit the applicant's testimony that he could not remember talking Ibuprofen or over-the-counter nonsteroidal anti-inflammatory medications. Second, an applicant has

the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation. ...It is LIRC's duty to deny benefits if it finds that a legitimate doubt exists regarding the facts necessary to establish a claim.

Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). If a medical report offered by a respondent raises a credible legitimate doubt as to whether work caused disability, it is not necessary for the respondent to go further and prove that the disability is instead caused by an off duty accident or exposure. Molinaro v. Industrial Comm., 273 Wis. 129, 133 (1956). Obviously, such proof in many cases will enhance the credibility of the respondent's report, but it is not necessary. However, the respondent does not have the burden of proving that the applicant's disability was caused by nonsteroidal anti-inflammatory medication for the commission to find that the reports of Drs. Hanson and Wojciehoski raise legitimate doubt.

Third, in addition to nonsteroidal anti-inflammatory medication, Dr. Hanson persuasively suggested that Helicobacter pylori caused the applicant's stomach ulcers. His opinion on this point was not rebutted by the applicant's medical experts. While, again, the respondent need not prove that Helicobacter pylori caused the applicant's stomach ulcers, Dr. Hanson's observation on this point undercuts the credibility of the opinions of the applicant's doctors who place the blame for the ulcers on a few days of Medrol medication use.

The commission appreciates that under Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968), the applicant's condition would remain compensable, despite evidence of a prior peptic ulcer condition, if use of the Medrol medication precipitated, aggravated and accelerated that condition beyond its normal progression. In this case, however, the applicant not only had prior peptic ulcer disease, but also a Helicobacter pylori infection which appears to be a cause unrelated to the medication that is solely personal to him. Given this record and the credible opinions of the respondent's experts, the conclusion that four or five days' use of Medrol medication caused the applicant's disability is simply too speculative.

The applicant also argued that he wanted to introduce some documentation regarding the Medrol medication indicating that the medication should be used with caution if a patient had gastrointestinal disease, including the possibility of ulcerative colitis or perforation abscess or other pyogenic infection. See Exhibits P and Q. The ALJ would not allow these documents in finding that they were hearsay and had not been offered far enough in advance of the hearing.

The commission examined the documents and considered amending the ALJ's decision to make them part of the record, as hearsay offered for merely corroborative purposes. See Wis. Admin. Code § DWD 80.12(1)(c). While an ALJ is not necessarily bound by the technical rules of evidence, the commission is satisfied that the ALJ properly denied the admission of exhibits P and Q, given the lack of foundation and notice. See Wis. Stat. § 908.03(18) and Superior v. Department of Industry, Labor & Human Relations, 84 Wis. 2d 663, 672, note 6 (1978). In any event, any persuasive force of the documents offered in exhibits P and Q was rebutted by the opinions of Drs. Wojciehoski and Hanson.

cc: Attorney Steven G. Kmiec
Attorney Joseph P. Danas, Jr.

Appealed to circuit court.  Affirmed February 15, 2013.  Appealed to court of appeals.  Affirmed sub nom. Cefalu v. LIRC et al., Appeal no. 2013AP745 (Wis. Ct. App. Dec. 17, 2013).

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