STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MICHAEL MOSER, Applicant

DORMAN ROTH FOODS INC, Employer

RELIANCE NATIONAL INDEMNITY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95009049

Two administrative law judges (the ALJs) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter on July 24, 1997. (1) 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 ALJs. Based on its review, the commission agrees with the decision of the ALJs, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. Delete the first paragraph beginning on page 10 of the ALJs' decision, and substitute:

"With respect to permanent partial disability, Dr. Zdeblick opined that Moser sustained 10 percent permanent partial disability as a functional whole as a result of the August 19, 1993 injury and eventual surgical intervention. Although Dr. O'Brien did not agree that a work injury caused the applicant's permanent disability, he concurred with Dr. Zdeblick's post surgical assessment. However, the May 24, 1995 surgical intervention was a three-level discectomy at the L3-4, L4-5 and L5-S1 levels, and included laminotomies at each of those three lumbar levels. Because the administrative code provides a minimum of a five percent rating per level for laminotomy procedures, the applicant is found to have sustained a permanent partial disability on a functional basis at fifteen percent compared to permanent total disability as a result of the August 19, 1993 work injury."

2. Delete the first paragraph on page 11 of the ALJs' decision and substitute:

"The applicant also sustained 15 percent permanent partial disability of the body as a whole as a result of the injury of August 19, 1993. He is therefore entitled to another 150 weeks of compensation at the weekly rate of $152 for a total of $22,800 in permanent disability compensation, all of which has accrued. (2) With credit for the $1,520 that the respondent previously paid, the remaining balance of $21,280 is now due and payable as permanent disability compensation. Including the award for temporary disablity, the total amount of $36,546.87 is due for additional disability compensation."

3. Delete the third paragraph on page 11 of the ALJs' decision and substitute:

"Pursuant to a request made under Wis. Stat. § 102.26 (3), the fee for the applicant's attorney is set at $7,309.37. This amount reflects a 20 percent fee on the $36,546.87 disputed compensation herein found payable to the applicant."

4. Delete the first paragraph of the Interlocutory Order and substitute:

"Within 30 days, the respondent employer and its insurer shall pay to the applicant, Michael W. Moser, the sum of Twenty-nine thousand two hundred thirty- seven dollars and fifty cents ($29,237.50) as compensation plus One thousand seven hundred thirty- three dollars and fifty-two cents ($1,733.52) as reimbursement for mileage and travel expenses; and to the applicant's attorney, Dan D. Gartzke, Seven thousand three hundred nine dollars and thirty-seven cents ($7,309.37)."

ORDER

The findings and order of the administrative law judges, as modified, are affirmed.

Dated and mailed: February 27, 1998
mosermi . wmd : 101 : 5  ND § 5.24

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant claims disability from an August 1993 lifting injury at work. The employer and its insurer (collectively the respondent) concede a traumatic injury, but argues that it did not cause the need for the applicant's surgery and resulting disability. The respondent blames a pre-existing degenerative condition. Alternatively, the respondent argues that if the surgery was made necessary by a work injury, the injury was from a subsequent occupational disease while its successor-corporation was the employer. The applicant also petitions for review, contending the permanent partial disability awarded was below the code-mandated minimum for his surgery.

Dr. O'Brien, the respondent's independent medical examiner (IME), first opined that, while the August 1993 injury caused a one percent permanent partial disability with a March 22, 1994 plateau date, it did not cause the progression of the applicant's condition to the point that surgery was necessary. Exhibit 2. IME O'Brien's opinion was that the work injury caused ongoing complaints of back pain, but not the radicular symptoms which made surgery necessary. He acknowledged that the applicant had radicular symptoms at the time of the injury, but opined these had completely resolved before the onset of the radicular pain that led to the surgery. Exhibit 2.

In a subsequent opinion, IME O'Brien withdrew his opinion that the work injury caused any permanent disability, referring to a traumatic episode of low back pain in 1989. This 1989 instance, he concluded, established that the 1993 work injury could not cause permanent disability. He noted that the applicant had in fact specifically denied any prior work injury to his back. The doctor evidently concluded that the 1989 injury remained symptomatic, so that the applicant's continuing low back pain after the 1993 injury was from the 1989 injury. Exhibit 6.

However, the applicant's June 1989 injury was treated only to August 1989, at which time his then-treating doctor noted an almost complete resolution of low back pain. Exhibit 5. The applicant also denied having radicular symptoms in 1989 (and indeed the 1989 medical notes are not consistent on this), but said he may have had very light symptoms which resolved quickly. August 1996 synopsis, page 3.

Dr. Zdeblick, the applicant's treating doctor, prepared a number of practitioner's reports giving expert medical opinion. In each, he marked the direct causation box. He eventually assessed permanent partial disability at 10 percent compared to permanent total disability from the surgery caused by the work injury. Exhibits D, E and F. IME O'Brien subsequently agreed with the disability rating and that the surgery was necessary, but opined neither the disability nor the surgery were causally related to the work injury.

Regarding causation, the presiding ALJs were troubled by the treating doctor Zdeblick's complete failure to explain the relationship between the work injury, the applicant's pre- existing degenerative condition, and the ultimate need for surgery. However, they also noted IME O'Brien had initially opined that the work injury was a material contributory causative factor in the onset or progression of the applicant's underlying degenerative condition, and that IME O'Brien's decision to rescind that opinion because of seven weeks of back pain four years before the injury was incredible. Therefore, the ALJs found the August 1993 work injury precipitated, aggravated, and accelerated the applicant's pre-existing degenerative condition beyond its normal progression.

The ALJs went on to conclude that the work injury ultimately caused lost time from work, necessitated surgical intervention, and resulted in temporary and permanent disability. On this point, they noted Dr. Zdeblick's opinion to that effect; that the applicant never completely recovered from his August 1993 work injury but continued to experience waxing and waning pain continuously requiring medication thereafter; that the IME O'Brien erroneously believed the treating doctor recommended against surgery in March 1994 when the opposite was true; and that IME O'Brien did not recognize that Dr. Zdeblick was still recommending light duty and a wait-and-see approach in March 1994.

Accordingly, the ALJs awarded temporary disability and medical expense associated with the three-level fusion. The ALJs also awarded permanent partial disability at 10 percent, noting that both Dr. Zdeblick and IME O'Brien rated it at that level following the three-level discectomy and laminotomy surgery. The ALJs noted that the "new" version of the administrative code would provide for 15 percent. However, because the "new" provisions took effect after the date of injury, the ALJs declined to apply it to this case. See Wis. Stat. § 102.03 (4).

On appeal, the respondent argues that the need for surgery was not caused by the August 1993 lifting injury at work. They contend the work injury only temporarily aggravated his condition, and that the need for surgery was due to a pre- existing degenerative condition. They point to the treating doctor's note indicating that the applicant was "comparatively symptom free" by March 1994, and that the applicant missed relatively little work initially. The respondent also cites the ALJs' criticism of the Dr. Zdeblick's bare-bones opinion on causation. As noted above, the respondent's alternatively assert that any disability in this case is the result of occupational disease for which the employer's successor corporation is liable.

On the issue of whether the August 1993 lifting incident caused the need for the surgery, the commission notes the applicant's credible testimony that he had ongoing pain from the time of the injury, though the radicular symptoms waxed and waned. He took analgesic medication on a regular basis through the time of his surgery. Treating doctor Zdeblick repeatedly suggested light duty. Moreover, despite finding a plateau of healing in March 1994, Dr. Zdeblick was unsure whether the applicant could tolerate his ongoing level of symptoms. Indeed, the applicant's symptoms continued, and worsened.

On this record, the commission declines to attribute the applicant's condition to a pre-existing degenerative condition. Like the ALJs, the commission rejects IME O'Brien's association of the May 1995 surgery with the back injury of 1989. The injury in 1989 required only a few weeks of treatment, and thereafter the applicant was able to work at full duty without symptoms until the August 1993 work injury. The commission is satisfied the work injury disabled the applicant in March 1995, and caused the applicant to need the three-level discectomy performed in May 1995 and associated temporary and permanent disability.

As noted above, the respondent also contends that, if causation is found, the employer's successor corporation should be held liable under an occupational disease theory. However, the commission does not agree. The occupational disease theory depends on the conclusion the disability was caused by an appreciable period of work exposure, rather than an accidental event. In this case, however, the ALJs properly concluded that the need for surgery and resulting disability were the result of the accidental injury that occurred when the lifting incident of August 1993 aggravated the applicant's pre-existing degenerative condition beyond normal progression.

This leaves the applicant's argument that he should have received permanent partial disability at 15 percent for his three-level fusion surgery, not 10 percent as awarded by the ALJs based on the reports of the medical experts. The version of the code in effect at the date of injury provides a five percent permanent disability rating for "laminectomy, no undue symptomatic complaints or objective findings." Wis. Admin. Code § IND 80.32 (11) (1986). The version of the code in effect on the date of surgery, and the date which the applicant reached a healing plateau, provides for a five percent rating for "removal of disc material, no undue symptomatic complaints or any objective findings." The newer version of the code contains a note providing specifically that each disc treated will qualify for a five percent rating. Wis. Adm. Code § DWD 80.32 (11) (1994).

The respondent argues persuasively that the "old" code should apply in this case. See Wis. Stat. § 102.03 (4). However, regardless of which version applies, the most reasonable construction is that an injured worker ordinarily is entitled to a five percent rating for each level treated surgically. While the advisory committee added a "Note" to the newer version of the code to explain its intent, that does not mean the "Note" changed the meaning of the code, particularly when the actual text in both versions of the code use the same language (except to substitute "removal of disc material" for "laminectomy.")

The commission acknowledges that it has occasionally departed from this "sum-of-all levels" approach and awarded disability at a below-the-minimum level under the old code. However, those cases generally involved situations where a medical expert's opinion demonstrated a substantial basis for a below-the-minimum award. In this case, the applicant has post- surgical complaints of pain in his back and buttocks, as reported by Dr. Zdeblick on June 14, 1996 (exhibit 11), and tingling into his feet as recorded by IME O'Brien in April 1996 (exhibit 6). These continuing symptoms, while mild, suggest that this is not a case where a below-the-minimum rating is appropriate, the ratings of Drs. Zdeblick and O'Brien notwithstanding.

cc: ATTORNEY ROBERT P OCHOWICZ
KASDORF LEWIS & SWIETLIK SC

ATTORNEY DAN D GARTZKE
DUXTAD VALE BESTUL & GARTZKE SC

Appealed to Circuit Court. Appeal dismissed by stipulation February 24, 1999.

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Footnotes:

(1)( Back ) The July 24, 1996, date on the decision was a typographical error.

(2)( Back ) Fewer than 150 weeks have passed from the applicant's plateau from the surgery on December 31, 1995. However, the applicant received no payments for disability from August 30, 1993 to March 6, 1995, despite continuing symptoms that, by October 1994, were becoming increasingly severe. Consequently, following what is believed to be the policy of the Workers Compensation Division in such cases, the accrual period for PPD shall include the period from August 1993 to March 6, 1995. As of the date of this amended order, then, all 150 weeks of PPD have accrued.