MICHELE L SAWDY, Applicant

MILWAUKEE AREA TECH
COLLEGE DISTRICT, Employer

DISTRICT MUTUAL INS, 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
September 24, 2013
sawdymi_wsd.doc:101:ND6 3.38

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The applicant claims disability and treatment expense for a slip-and-fall injury in the employer's parking lot on February 21, 2011.

The applicant had significant back problems even before the work injury. Specifically, the applicant underwent two lumbar laminectomy procedures before undergoing an L2-L5 anterior decompression and instrumented fusion as a result of severe multi-level disc degeneration and spondylosis in March 2010. Following the surgery, her surgeon, Thomas Perlewitz, M.D., released her to return to work subject to restrictions but recommended she see a chiropractor for her right SI joint dysfunction. She stopped chiropractic treatment in November 2010 because she was no longer having pain in the SI joint region. (T. 30.) The applicant was able to wean herself from all medication over the next few months (T. 31, 47-48) and returned to work full time performing all of her job functions. The applicant testified that she occasionally had some soreness or occasional muscle spasms in her lower back, but no numbness, radicular symptoms or pain going down her legs. Overall, the applicant testified, she felt pretty well before the work injury on February 21, 2011.

Then, on February 21, 2011, the applicant slipped and fell on snow-covered ice in the employer's parking lot. She immediately noted pain in her lower back and reported the accident to her supervisor. As the day went on, her pain increased and started to radiate down into her butt area, hips, and into her leg.

The applicant saw Dr. Perlewitz the following day. On June 15, 2011, after several months of conservative treatment, including injections and physical therapy, Dr. Perlewitz recommended an MRI scan and CT scan to determine whether to perform an "add-on lumbar fusion at the L5-S1 level" as "we have reached the point of failure of conservative care." After undergoing the MRI and CT scans, the applicant returned to Dr. Perlewitz who noted that the applicant had undergone multiple conservative modalities, including physical therapy with minimal-to-no-relief. He believed she would likely respond to an add-on lumbar antibody fusion at L5-S1. However, the insurer has denied payment for the proposed surgery.

In a practitioner's report on form WKC-16-B (Exhibit B), Dr. Perlewitz describes the event to which the applicant attributed her disability as "injured back after slipping and falling on ice while walking into work." He stated that that incident resulted in a

lumbar musculigamentous strain with superimposed aggravation of L5-S1 disc degeneration and spondylosis secondary to work-related injury. Recommend add-on interbody fusion at L5-S1 level.

He added that the work event caused the applicant's disability by precipitation, aggravation, and acceleration of a preexisting progressively deteriorating or degenerative condition beyond its normal progression. He declined to rate permanent disability until after the surgery and noted that her prognosis was fair.

The employer and its insurer (collectively, the respondent) rely on the expert medical opinion of Richard Karr, M.D., who opined:

In my view, Ms. Sawdy sustained a low back strain due to the February 21, 2011 workplace slip-and-fall incident, without incurring any structural spinal or neurological injuries. At most this temporarily aggravated her recovery from the March 19, 2010 operation. MMI was reached within three months (i.e., May 21, 2011), with 0% PPD; no alteration in working capability.

In my view, Ms. Sawdy's lumbar complaints and disability claims after May 21, 2011 are best diagnosed as a lumbar post-fusion syndrome, which in turn is a sequel of the March 19, 2010 operation. Underpinnings include: Postoperative scarring; chronic myofascial pain; probable L5-S1 adjacent segment pain; behavioral factors; possibly other factors not recognizable via this IME (i.e., occult pseudoarthrosis). The February 21, 2011 slip-and-fall incident is not a causative factor. [Emphasis in original.]

Dr. Karr did set work restrictions necessitated by the "February 21, 2011 operation" [sic] including a maximum 20-pound lifting restriction. In explaining his findings, the doctor noted that the March 5, 2011 x-rays showed a normal spine. He described the March 23, 2011 MRI as showing no significant change at L5-S1, adding:

To whatever extent the radiologist noted that a previously diagnosed L5-S1 disc protrusion might be slightly more conspicuous, there was no evidence of nerve displacement or other neurological compression. [Emphasis in original.]

Dr. Karr noted further that a lumbar CT scan done in June 2011 showed only minimal L5-S1 disc bulging with no real change from one done in August 2009, while the June 2011 MRI did not show any remarkable L5-S1 pathology. He also felt the applicant's complaints on the examination were disproportionate to the MRI and CT standing findings. He felt that the applicant's subjective complaints were fully explained by "the normal progression of her pre-2011 spinal condition, plus personal behavioral issues."

The commission does not read Dr. Karr's report to state that the L5-S1 fusion add-on surgery proposed by Dr. Perlewitz is unwarranted per se. Exhibit 1, page 13, paragraphs 2 and 3. See also Exhibit 1, page 15, interrogatory 5. The commission does infer, however, that Dr. Karr believes the February 2011 work injury made the surgery necessary.

Like the ALJ, the commission finds Dr. Perlewitz's opinion more credible than Dr. Karr's in this case. The ALJ could observe the applicant testify and he believed her testimony that her symptoms decreased after the surgery done in March 2010 to the point that she was off all pain medication, that she was able to stop treating with her chiropractor, that she felt pretty well other than occasionally had some soreness or occasional muscle spasms in her lower back, and that she was only seeing Dr. Perlewitz for scheduled appointments. The applicant's testimony on these points is consistent with the medical records offered at the hearing.

Then, on February 2011, the applicant slipped and fell at work. She has since experienced and reported persistent low back symptoms, including radicular symptoms. The ALJ reasonably credited the applicant's testimony regarding the immediate onset of continuing symptoms with the work injury in February 2011. Certainly, that testimony is credible from a lay view, given a slip-and-fall injury and a spine already subject to surgeries including a multiple-level fusion.

Based on this record, the commission cannot accept Dr. Karr's opinion that the applicant's symptoms are due to the natural progression of her underlying condition for which she previously underwent surgery. Nor can the commission accept Dr. Karr's suggestion that the applicant's continuing symptoms after the slip and fall were the result of "personal behavioral issues." The medical record--in particular her recovery from the March 2010 surgery--indicates that the applicant seeks treatment appropriately.

The respondent asserts that the record contains no conclusive, objective proof of "breakage" in the applicant's spine following the work injury. However, that proof is not required. While the respondent states in its reply brief that "the case law ... requires an anatomical change of the structure of the back (i.e., a breakage) in order to establish an injury to a preexisting degenerative condition," the supreme court has held:

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." [Emphasis added.]

Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1968). Based on Dr. Perlewitz's credible opinion, the commission is satisfied that the applicant's injury meets that standard.

The respondent's attorney also argued that Dr. Perlewitz opined that the work injury caused the need for the L5-S1 add-on fusion because the doctor wanted to perform the surgery earlier but the employer's health insurer would not pay for it. However, Dr. Perlewitz did not rush headlong into a surgical recommendation after the February 2011 work injury. Rather, he tried several months of conservative care, including physical therapy and three injections, before recommending the L5-S1 add-on fusion. The commission declines to conclude that Dr. Perlewitz offered a medical opinion that he does not actually believe is true in order to obtain payment for the surgery.

cc: Attorney Jason R. Oldenburg
Attorney Paul R. Riegel

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