P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID MCKEE, Applicant



Claim No. 96010861

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 28, 1998
mckeeda.wsd : 101 : 7  ND � 3.37 � 5.8

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


The applicant alleges disability from a compensable work injury occurring after a fall at work. The applicant's claim, essentially, is that the fall aggravated, accelerated and precipitated a tumor beyond its normal progression, causing neurological symptoms resulting in disability and the need for surgery. The ALJ found that a work injury caused disability, and awarded temporary disability and a 50 percent loss of earning capacity. She found Dr. Fuiks' opinion on causation more credible than Dr. Delheimer's, noting that Dr. Delheimer's attempt to distinguish between the tumor and tumor bed was not meaningful and that Dr. Delheimer himself admitted the work injury caused the previously non-symptomatic condition to become symptomatic. She found vocational expert Greenya more credible than vocational expert Crawford, noting that Crawford's opinion essentially assumed more training, both pre- and post-injury, than the applicant actually had.

The employer and insurer (collectively, the respondent) appealed.

a. Causation.

With respect to causation, the respondent emphasizes particularly that treating doctor Fuiks opined that he did not know whether the fall accelerated the growth of the tumor, and that consulting doctor Toutant specifically reported that the pathology shown in the MRI (which was later determined to be a tumor), was not in any way related to the accident. The employer goes on to point out that Jos. Schlitz Brewing (1) specifically requires that, for the so-called Lewellyn 3 (2) theory of causation to apply, there must be an aggravation, acceleration and precipitation of a pre-existing condition beyond normal progression, not merely an aggravation alone.

However, while Dr. Fuiks reports that he could not say the fall accelerated the growth of the tumor in response to a specific question, that is not the dispositive issue here. The applicant's claim does not depend on an increase in the tumor's rate of growth as a basis for his disability. Rather, the applicant's claim is for the disability leading to, and remaining after, the surgery necessary to cure his neurologic symptoms. Stated another way, the applicant claims the work injury caused a permanent change to his condition by making a previously unknown and non-symptomatic tumor progress to the point that surgery was required.

Dr. Fuiks opined that the work injury, indeed, did cause the applicant's condition from his pre-existing tumor to progress to the point that surgery was required. Moreover, Dr. Toutant's focus was on nature of the abnormal object shown in the MRI, a pre-existing tumor vs. post-injury blood clot or bruising. Dr. Toutant simply concluded that the pathology was tumor, not a blood clot, bruising or other condition caused directly by the fall. He gives no real opinion on the effect the fall had on the tumor.

The conclusion that the work injury caused the need for the tumor removal surgery is, if anything, strengthened by the report of the respondent's independent medical examiner, Dr. Delheimer. The doctor frankly admits the fall caused a change in the tumor or tumor bed, leading to the onset of the disabling condition which made surgery necessary. True, he opined the fall did not aggravate, accelerate or precipitate the tumor beyond normal progression. But again, the focus is not simply on the tumor as growth separate from its effects on the applicant's surrounding tissue. And while IME Delheimer opines the tumor may have eventually become symptomatic on its own, that supports the conclusion that the fall aggravated, accelerated and precipitated the applicant's condition beyond its normal progression so that it became symptomatic before it would have otherwise.

It is, of course, true that the applicant was predisposed to develop neurological symptoms easily from a fall because of the tumor. However, an employer remains liable for a work injury even if a worker is predisposed to injury or disability. Semons Department Store v. ILHR Department, 50 Wis. 2d 518 (1971). Thus, if a work accident precipitates disability, even though that disability may not have been caused in the absence of a pre- existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). This, of course, is the "as is" rule that is the basis of the Lewellyn 3 theory of causation. Along the same lines, the commission has consistently held respondents liable despite medical opinions, such as the one offered by Dr. Delheimer here, that the worker might have eventually needed the same surgery to treat the pre-existing condition even if the work injury had not occurred. See: Ken Runde v. Brodbeck Enterprises, WC Claim no. 91041473 (LIRC, June 23, 1995) and James Klemp v. United Parcel Rhinelander, WC claim no. 940035163 (LIRC, November 7, 1996).

b. Extent of permanent disability.

The respondent next questions the extent of disability found by the ALJ, both for loss of earning capacity and temporary disability.

Regarding loss of earning capacity, the ALJ criticizes the assumption of the employer's vocational expert (Crawford) that the applicant could be, or would be, retrained to use computers. However, as the employer points out, the calculation of earning capacity is by rule supposed to give some weight to additional vocational training. Wis. Admin. Code � DWD 80.34(1)(j). On the other hand, the ALJ reasonably declined to put much weight in speculation about future training which might be undertaken or offered by some third party in the future.

An additional problem with the report of respondent's expert Crawford is that she assumes the applicant will be able to work overtime after the injury to the same extent he could work it before the injury. However, given the applicant's work restrictions (which include limitations on duration of sitting, standing and walking), it is reasonable to infer his tolerance for overtime is diminished. Second, the commission infers the opportunities for overtime work in the selective, light and sedentary occupations the applicant may now perform after his injury will be more limited than the opportunities that were available to him (and actually secured by him) when he could work without restriction.

The commission concludes that the applicant's diminished prospects of securing over-time work will have a significant effect on his earning capacity. The applicant's $10.00 per hour wage at 40 hour weeks results in annual earnings of about $21,000. The applicant in fact earned close to $30,000 annually. Loss of his ability to perform the job where he earned that much overtime poses a significant loss in earning capacity. The fact he is now limited to work which on average pays less (and according to his expert, far less) creates an even greater loss. Between the 15 to 20 percent range offered by the respondent's expert, and the 45 to 55 percent loss offered by the applicant's expert, the commission finds the latter more credible.

c. Extent of TTD.

Prior to the hearing, the respondent paid temporary disability from February 14, 1996 (the date of injury) to July 2, 1996. The ALJ found the respondent was also liable from July 2, 1996 until June 27, 1997 (the date on which Dr. Fuiks first opined the applicant reached a healing plateau.) The respondent argues that, since the applicant did not treat between December 9, 1996 and May 27, 1997, the commission should end temporary disability on December 9, 1996. However, neither Dr. Fuiks nor IME Delheimer set so early a healing plateau date. Nor, generally, should a healing plateau be set retroactively. Neal & Danas, Workers Compensation Handbook, � 5.8 (4th ed., 1997).



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(1)( Back ) Jos. Schlitz Brewing Company v. ILHR, 67 Wis. 2d 185 (1975). Of course, the Jos. Schlitz case does not require LIRC to reject automatically an expert medical opinion that which fails to use consistently the conjunctive "aggravation, acceleration, and precipitation" formulation. In that case, a worker's widow claimed his death was due directly to asphyxiation by carbon dioxide. The commission concluded instead, that the level of carbon dioxide at the worker's jobsite, itself not sufficient to cause asphyxiation, caused injury "in the nature of an aggravation of the worker's pre-existing heart condition. However, there was no medical opinion to that effect, or even any real evidence of a pre-existing heart condition. The court, quite justifiably, criticized the commission for changing horses in mid-stream from the causal theory advocated by the applicant, for finding a pre-existing condition in the absence of sufficient medical evidence, and for basing an award on its own conclusion that the work incident was "in the nature of an aggravation." The court's focus in Jos. Schlitz was on the adequacy of the commission's conclusion. The court did not set out a rote formulation for medical experts to recite in every case without variation. Indeed, since Jos. Schlitz, the courts have held that "magic words" are not required from a doctor for the commission to find that the doctor's report supports the conclusion that a work injury aggravated, accelerated and precipitated a pre-existing degenerative condition beyond normal progression. Johnson Welding & Manufacturing Co. v. LIRC and Skogstad, Eau Claire County circuit court case no. 94CV704 (July 3, 1995); Harnischfeger v. LIRC and Dzenzeol, case no. 95- 0212 (Wis. Ct. App., August 8, 1995); and Anderson v. LIRC and Quad Graphics, case no. 95-1023-FT (Wis. Ct. App., November 7, 1995.)

(2)( Back ) Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).