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

KIM MODROW, Applicant

PIGGLY WIGGLY , Employer

RELIANCE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96009261

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.

ORDER

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

Dated and mailed: May19, 1998
modroki.wsd : 175 : 8 ND § 3.39

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant's herniated disc and need for surgery were caused by his compensable work injury of January 24, 1996. The applicant testified that he was injured on January 24, 1996, while working in the freezer while he was moving frozen foods from one pallet to another, and lifting cases of vegetables weighing 20 to 30 pounds. The applicant testified that he was injured while turning and lifting when he felt a sharp pain in his lower back, leg and buttock. The applicant testified that he left work that night and did not continue working and he had a shooting pain through his body and his foot tingled and his leg hurt, and his calf muscle tightened up.

The employer contends that given the fact that the applicant was found to be considerably improved in April 1996 and was able to return to work and perform his normal duties prior to the golf incident on May 21, 1996, supports Dr. Gmeiner's assessment that the applicant suffered only a soft tissue injury in January 1996, and that the herniated disc resulted from the none work related golfing incident on May 21, 1996. Dr. Gmeiner, who examined the applicant's records on behalf of the employer, opined that based on the sequence of events the golfing incident was consistent with an acute tear of the annulus resulting in an acute disc disruption necessitating the need for surgery. Dr. Gmeiner opined that the work-related incident on January 24, 1996, was consistent with a soft tissue strain to the lumbar spine with the medical records indicating that the back symptoms exceeded the symptoms in the lower extremity. Dr. Gmeiner also noted that Dr. Dillard, the applicant's treating chiropractor, had indicated that there was a release for partial duty in March 1996 and the applicant was approximately 95 percent improved.

Dr. Rafiullah, the applicant's treating physician who performed the applicant's surgery, noted that the applicant had a herniated disc at the L4-5 level. Dr. Rafiullah opined in his initial WC-16-B dated September 25, 1996, that the applicant's back pain and herniated disc and need for surgery arose out of a traumatic incident at work on January 24, 1996. Dr. Rafiullah opined in his second WC-16-B dated June 19, 1997, that the applicant suffered six percent permanent partial disability as a result of his herniated disc and residual symptoms which were attributable to the work injury in January 1996.

The medical notes for the applicant's treatment following the injury in 1996, reflect that the applicant consistently reported low back pain with stiffness and decreased range of motion, as well as pain and numbness into his legs and buttock in February and March 1996. The treatment notes dated April 4, 1996, upon the applicant's return to full-time work, indicated that he was tired after eight hours of work and required treatment. The daily progress notes dated April 15, 1996, indicate that the applicant had very little pain with increased range of motion and decreased spasm. However, on April 22, 1996 the applicant was improved with some stiffness and tightness in his back.

The applicant testified that he was stiff and sore when he returned to work although his back was getting better and he was able to work. The applicant testified that he had pain in the buttock and his right leg when he woke up and he would still get stiff and have pain in his back. The applicant testified that he was not in any pain while playing golf after he felt the click in his back and he was able to finish playing the round of golf and he did not notice any difference. The applicant testified that his back was about the same that night after playing golf, but the next morning he had difficulty getting out of bed.

The commission consulted with the administrative law judge concerning his assessment of the witnesses' demeanor and testimony. The administrative law judge indicated that he found the applicant's testimony to be sincere and truthful that he suffered continuing back symptoms even after returning to work and following the last treatment in April 1996. Based upon an independent review of the evidence in the record, the commission has found nothing to warrant overturning the administrative law judge's credibility determination.

The applicant reported radicular symptoms into his feet and legs following the incident on January 24, 1996. The commission credits Dr. Rafiullah's assessment that the applicant's herniated disc and need for surgery arose out of the lifting injury at work on January 24, 1996. The applicant gave a consistent and credible history to his treating physician as well as a report to the employer of the nature and onset of the back pain while lifting cases of vegetables. Based on the applicant's testimony of the nature and onset of his back pain as well as the continuing nature of his back problems following the initial incident in January 1996 and based on Dr. Rafiullah's reports, the evidence was sufficient to establish that the applicant suffered a herniated disc and need for surgery as a result of his work injury. The administrative law judge appropriately awarded the applicant further temporary total disability benefits as well as six percent permanent partial disability and medical expenses as a result of his work injury.

cc: ATTORNEY MICHAEL C FROHMAN

ATTORNEY CHRIS G HALVERSON

Appealed to Circuit Court. Affirmed December 18, 1998.

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