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

TIMOTHY HARMON, Applicant

BEHRENS MOVING CO, Employer

REGENT INSURANCE CO, Insurer

NORTHBROOK INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997033480

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: June 25, 1998
harmoti.wsd : 101 : 6  ND § 3.37  § 3.38

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant sustained a conceded back injury on January 30, 1997 (while Northbrook Insurance Company was on the risk) when he slipped and fell on a hospital floor. He claims he sustained a second compensable injury on June 6, 1997 (while Regent Insurance Company was on the risk) when he was moving a CT-scanning system with a co-worker. The issue in this case is whether the applicant's disability and medical treatment expense after June 6, 1997 was caused by the January 30, 1997 injury or the alleged June 6, 1997 injury.

In a note written on July 21, 1997 (the date of second surgery), treating surgeon Robbins states that the applicant suffered an injury on January 30, 1997 which caused permanent disability at five percent compared to disability to the whole body, and that he was able to work at full duty as of June 9, 1997. Dr. Robbins went on to note that after moving a CT scanner upon returning to work the applicant experienced the prompt onset of pain with the gradual development of radicular symptoms and associated numbness and tingling; that an MRI scan showed a recurrent herniated disc; and that recurrent herniated discs are not uncommon. Dr. Robbins concluded that the applicant sustained a second injury on June 6, 1997, and that the applicant's condition at the time of his report on July 21 was the result of the June 6 injury.

Regent Insurance submits the opinion of R.C. Rudy, M.D., an orthopedic surgeon who reviewed the applicant's medical records on November 17, 1997. Dr. Rudy did note the opinion of Dr. Robbins stated above, but did not review the actual report of the second surgery performed on July 21, 1997, or any of the reports after the post-surgical reports. He opined:

"Based on a review of the records it would be my opinion to a reasonable degree of medical probability that the symptoms which occurred on or about June 6, 1997 were merely a manifestation of the claimant's prior back problems and condition which were caused by the accidental injury of January 30, 1997 and the subsequent surgery of March 8, 1997. Recurrent disc herniations are not uncommon and we often see them in cases were there is no additional trauma. This claimant was still having some pain before June 6, 1997, he was still icing his back after the workday, he was still on medication, he had not returned to work for eight hours a day, and in my opinion was not fully recovered from the January 30, 1997 injury and the operation of March 8, 1997. He was only a little more than two months post surgery when he returned to work on or about May 19, 1997. He stated that he did have some pain after May 19, 1997 and, in my opinion, he probably was not ready to return to full-time work at that time.

"It is my opinion to a reasonable degree of medical probability that the work the claimant was performing on June 6, 1997 was not the cause, either directly or by aggravation, of his continued back problems in June, 1997, and certainly was not the cause, either directly or by aggravation, of his operation on July 21, 1997 and the disability thereafter. If anything, the work the claimant was performing on June 6, 1997 merely called his attention to an already pre-existing condition....

"It is further my opinion that if it had not been for the injury of January 30, 1997 and the surgery of March 8, 1997, the claimant probably would not have had the problem he did on or about June 6, 1997."

Regent exhibit 1, Rudy report pages 3-4.

The ALJ found Dr. Robbins' opinion more credible. The ALJ found that the applicant sustained a new injury on June 6, 1997, and held Regent Insurance Company (Regent Insurance) liable for the additional disability and medical expense. He noted the applicant had recovered from the January work injury to the point of release to full duty by June 9, that the applicant was involved in strenuous duty moving a heavy CAT-scanning machine at the time of the injury, and that the applicant felt the twinge or pain in his low back when he moved the equipment on June 6. The ALJ also noted that Dr. Robbins had many contacts with the applicant during treatment, which gave him an advantage over IME Rudy who never examined the applicant.

Regent Insurance appeals. In its main brief, Regent Insurance argues the applicant had not completely recovered from the initial injury, but was still experiencing periodic symptoms, when his symptoms dramatically increased on and after June 6. Regent Insurance also argues that the applicant did not sustain a severe June 6 injury, evidenced by his failure to report the injury or mention to colleagues, his description of the injury as a twitch, and Bearden's June 10 note referring to "nothing specific." In conclusion, Regent Insurance asserts that the free fragment removed surgically by Dr. Robbins in the July 1997 surgery did not occur from some new trauma on June 6, but was simply a continuation of his prior condition following the January 1997 injury. In its reply brief, Regent Insurance also cites the recently-decided case of Lange v. LIRC, 215 Wis. 2d 558 (Ct. App., 1997), petition to review denied (March 17, 1998).

After reviewing the record, the commission concludes the ALJ's decision must be affirmed. It is true that the applicant had only recently been released back to work when he was injured on June 6, and that Dr. Bearden's June 10 treatment note does not list a trauma while moving the CT-scanning device on June 6 as the cause of the applicant's renewed radicular symptoms. However, the subsequent reports consistently referred to the onset of dramatically increased pain with moving the CT-scanning system, and the applicant credibly testified he felt a twinge moving the system with the onset of increased symptoms thereafter. Moreover, the commission can easily understand how the applicant could have injured his back moving the equipment.

Further, the doctors agree that the applicant has a recurrent herniated disc. The commission acknowledges that Dr. Rudy believed that the January 30, 1997 injury caused the applicant's recurrent herniated disc. However, the commission also notes Dr. Rudy's statement that, had it not been for the injury of January 30, 1997 and March 1997 surgery to treat that injury, the applicant probably would not have had the problem he did on June 6, 1997.

This type of "but for" test (that the June 1996 symptoms would not have occurred but for the January 1997 injury) does not prove the January 1997 injury caused the applicant's disability. An employer takes its workers as they are, subject to pre- existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968) and E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, it does not matter whether the June 6 injury would have caused the problems it did had the applicant not already suffered the injury on January 30, 1997. Regent Insurance is still liable despite the applicant's prior back condition, provided the June 6 injury either resulted in "breakage" which directly caused the additional disability or caused the additional disability by aggravating, accelerating and precipitating the applicant's pre-existing degenerative condition beyond its normal progression. Lewellyn, supra. In this case, Dr. Robbins' credibly opined that the June 6, 1997 injury directly caused the additional disability.

This leads to the discussion of Lange v. LIRC in Regent Insurance's reply brief. In that case, the court of appeals held that if an initial work-related injury plays any part in the second, nonwork related injury, the condition following the second injury is compensable. (1)

In the case now before the commission, Regent Insurance asserts Lange applies even though this case involves two work injuries. It is unimportant, Regent Insurance argues, whether the second injury is work-related. What is important is whether the first injury played any part in the disability after the second injury; i.e., whether the applicant would have had the same injury to the same extent after the second incident even if the first injury had not occurred.

However, the commission concludes that the court of appeals' holding in Lange does not apply to this case. First, while Regent Insurance dismisses the fact that Lange involved a work injury followed by an off-duty injury, the court of appeals specifically limited its holding to that situation. Since the case now before the commission involves two separate work injuries, Lange is not applicable by its terms.

Nor would it be even if the court of appeals had used less precise language. As explained above, Wisconsin workers compensation law follows an "as is" rule with respect to pre- existing conditions. To read Lange as Regent Insurance suggests would eliminate or curtail the "as is" rule, and shift liability for re-injuries at work back to whomever was liable for the pre- existing condition. The commission cannot conclude the court of appeals intended this result. Instead, Lange merely clarified the test for determining whether an increase in disability after an off-duty event may be compensable by relation back to a prior work injury. Stated another way, even prior to Lange, off-duty reinjuries were consistently held to be compensable under some circumstances, while subsequent insurers or subsequent employers were consistently held liable for re-injuries. Lange should not be read as announcing some new causal rule superseding the "as is" rule and Lewellyn in cases of two or more work injuries.

Finally, in correspondence during the briefing, the applicant asserts that Regent Insurance unreasonably delayed payments both of disability and attorney fees during the pendency of appeal. (2)   It appears from subsequent correspondence that Regent Insurance paid the fees and brought its disability payments up-to-date. Nonetheless, the applicant still desires a penalty. However, a late payment/bad faith penalty claim was not at issue before the ALJ, so the commission cannot consider the issue at this point.

cc: ATTORNEY PETER A STANFORD
STANFORD LAW OFFICES SC

ATTORNEY WALTER D THUROW
LAW OFFICES OF WALTER D THUROW

ATTORNEY JOHN S MINIX
HOGAN RITTER MINIX & PASHOLK

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Footnotes:

(1)( Back ) Mr. Lange suffered a conceded focal disc herniation at work. Over a year later, after reaching a healing plateau, Mr. Lange fell on ice at a friend's home after drinking beer, and sustained a frank herniation at the same intervertebral level. LIRC found the injury noncompensable concluding that the fall on the ice alone was responsible for Mr. Lange's dramatic increase in symptoms, and that the initial work injury was not a substantial factor in the onset or progression of Mr. Lange's condition. The court of appeals held that: "A work-related injury that plays any part in a second, nonwork- related injury is properly considered a substantial factor in the re-injury. It will not be a substantial factor, however, where the second injury alone would have caused the damages. For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work injury. In all other cases where the two injuries are related, however, the re-injury will be compensable." Lange, at 21 Wis. 2d 565. Concluding that the record was insufficient to prove that the second injury alone caused the damage, the court of appeals held the employer at risk for the work injury was liable for disability and medical expense arising after the off-duty slip and fall.

(2)( Back ) The applicant's entitlement to TTD, and ultimately PPD, for his second surgery is not in question. The question is which insurer has to pay it. Consequently, the department ordered the insurers to pay equally during the pendency of the appeal under Wis. Stat. § 102.175, with the losing insurer to reimburse the prevailing one. The applicant's allegation is that the insurer failed to pay its share timely in compliance with DILHR's order.