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

ALAN J CONNELL, Applicant

LEAR SEATING CORP, Employer

ZURICH INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997007805

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: November 30, 1998
conneal.wsd : 101 : 7 ND § 3.4   § 5.45

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Background.

The applicant claims disability from a work injury from occupational disease/occupational exposure from his job putting together seats for cars and vans. Given the nature of the arguments on appeal, a brief recitation of the facts is warranted.

On January 23, 1996, before beginning work for the named employer (Lear Corporation), the applicant hurt his back when he slipped while carrying a 120-pound patio door for another employer. He treated with D. Sharma, M.D., who diagnosed low back pain secondary to muscular spasm and ligamentous strain, and imposed a one week restriction from lifting more than 20 pounds. See Exhibit 5. Although Dr. Sharma instructed the applicant to return for reevaluation, he did not. Indeed, he testified he had no restrictions when he returned to work, and had no problems thereafter.

On March 5, 1996, the applicant had a pre-employment physical with S. A. Lindahl, M.D., before starting work for the named employer (Lear Corporation.) The doctor's notes (Exhibit F) reported that he had had an examination for a back injury, with no time off work, and no problems since, in January 1996. The doctor also noted a normal range of motion in the back, with no tenderness, evidently paying specific attention because the applicant had mentioned his prior injury. The applicant testified that, at the time of his pre-employment physical, he did toe touches and sit-ups. Dr. Lindahl described the applicant as a healthy male.

The applicant began to experience the gradual onset of back pain during the summer of 1996 about three months after starting work for the employer. At the time, he was doing the "cushion job" or "seat stuffing job" which requires pulling and attaching leather or fabric seat covers over cushioned seats or seat backings for motor vehicles. At the time, the job was done manually, though since the applicant's injury the employer has begun to use machines which compress the cushioned seat while the cover is attached.

The applicant began to treat with a chiropractor, James Damrow. Dr. Damrow's first note is dated July 12, 1996, and lists a chief complaint of left leg sciatic-type pain of a couple of months duration. Dr. Damrow noted a history including the January 1996 back sprain carrying a patio door which the doctor reported "never got completely better."

An MRI was done on September 11, 1996. It showed a moderate left paracentral disc herniation at L4-5 which extends to the left lateral recess. It also showed a soft tissue fragment present posterior to the L1 vertebral body which might have been a free migrated disc fragment of uncertain clinical significance.

Dr. Warren, a medical doctor whom the applicant saw on referral from Dr. Damrow, reported the MRI showed an L4-5 bulging disc. His diagnostic impression was status post back pain due to bulging disc at L4-5. He recommended a course of treatment including physical therapy with traction, a TENS unit, and an epidural steroid injection.

The applicant remained off work into December. In January 1997, Dr. Damrow released the applicant to ten-hour day shifts, without restriction. The applicant continued to treat for left lower back and leg complaints with Dr. Damrow on several occasions to at least October 1997.

Several medical experts have offered opinions.

Dr. Sharma, of course, treated the applicant after the January 1996 patio door injury with a former employer. She writes that when she treated the applicant in January 1996, he denied any sharp shooting pains at the time of the examination (though he'd apparently had sharp pain earlier); that there were no numbness, tingling or bowel problems; that he had no problems in his lower extremities; and that he just had a muscle spasm with good range of motion. Accordingly, she thought he had low back pain, secondary to muscle spasm and ligamentous strain, for which she recommended heat, an anti-inflammatory, and a muscle relaxant. See Exhibit G, last page.

Treating chiropractor Damrow has written two reports. In his first report from February 1997, Dr. Damrow opined that repetitive reaching, standing, twisting and turning at work, while standing on a concrete floor, was at least a material contributory factor in the onset or progression of the applicant's condition which the doctor diagnosed as sciatic associated with sacro-iliac joint dysfunction related to lumbar strain, with possible disc involvement. In other words, Dr. Damrow opined the applicant had an occupational back caused by repetitive work activities.

Dr. Damrow went on to note that the applicant came to see him complaining of left hip and leg pain of gradually worsening intensity. Dr. Damrow noted that, after he referred the applicant to a medical doctor because of the disc involvement, an MRI showed moderate disc herniation at L4-5 with thecal sac effacement or pinching of the nerves. Dr. Damrow noted that physical therapy was ordered to reduce the herniation, and the applicant continued to receive chiropractic adjustment to correct the dysfunction.

Dr. Damrow reported he released the applicant to full duty at first for four hours per day (December 1996), then six hours per day (January 13, 1997), then ten hours per day (January 20, 1997). Thereafter, the applicant continued to improve, but had remnant stiffness and pain to the date of the February 1997 report. Indeed, the doctor did not think the applicant had even yet reached a healing plateau.

Dr. Damrow also explained that he did not believe the applicant's problems were related to the January 1996 patio door event. He stated he had previously expressed such a relation in error in his initial treatment note; that the applicant was later shown to have had a disc injury which was different than the muscle strain he had treated with Dr. Sharma for; and that Dr. Lindahl had examined the applicant after the January 1996 patio door event, found a normal range of motion with no tenderness and pronounced the applicant fit to work. Dr. Damrow concluded that work for the employer was the major factor contributing to the work injury.

In August 1997, Dr. Damrow provided an updated report. Exhibit B. He opined the applicant had reached a healing plateau. During a straight leg raising test, however, Dr. Damrow noted Neri's bowing sign, an indication of continuing disc pathology. The doctor also noted the applicant was able to do his work activities without pain, except upon resting, and had been able to do full duty for seven months. Dr. Damrow did not fix any definite restrictions, but did recommend the applicant lift no more than 100 pounds repetitively, and that he continue chiropractic treatment. He estimated a 2.5 percent permanent partial disability from the work injury.

The employer relies on the report of its independent medical examiner, Thomas J. O'Brien, M.D. His opinion in a nutshell is that the applicant had a pre-existing herniated disc, causing a three percent permanent partial disability with a December 1996 plateau date, but which was not caused by his work for the employer.

Dr. O'Brien also reports that he reviewed the videotape. He asserts "five positions were reviewed in the videotape." However, his report only describes the first work activity, which shows a worker attaching a seat cover with the stuffing machine. He does not describe the activities of a worker attempting to do the job manually, which of course was the applicant's job at the time of his injury.

At any rate, Dr. O'Brien explains that he believed the disc herniation was pre-existing because Dr. Damrow's initial treatment report in July 1996 states that the applicant never got completely better following the January 1996 patio door injury. The doctor goes on to explain that the January 1996 patio door injury caused a tear in the annulus fibrosis of his L4-5 disc. (1) Under such circumstances, a patient will first complain of nonradiating back pain, and later have waxing and waning symptoms. The annular tear then will naturally progress to the point that nucleus pulposus will herniate through the annulus and impinge on the nerve.

The doctor went on to explain that, in his opinion, none of the activities shown in the videotape were of sufficient magnitude to aggravate or accelerate this natural process (nor were they a material contributory causative factor in the development of his symptoms.) The doctor also pointed out that the applicant could not recall a specific accident or trauma which made the symptoms suddenly worse. Rather, the applicant told the doctor his symptoms simply got worse in the middle of the night.

IME O'Brien went on to opine that while epidural injections and physical therapy shortly after the injury might be some help, prolonged chiropractic treatment would not be medically indicated. He also reported that, when the applicant's symptoms flare up, he would be a candidate for an L4-5 discectomy, though he would not currently recommend surgery. IME O'Brien, again, set a December 1996 healing plateau date, with a three percent permanent partial disability and no work restrictions.

2. ALJ's decision, respondent's PCR.

The ALJ found work for the employer caused the herniated disc. She noted that the hip and leg pain did not start until July 1996, after the applicant was working for the employer. She noted also the applicant's testimony that he had no back pain after January 1996 until he started working for the employer, and that the medical records do not indicate any treatment from January to July 1996.

The ALJ also noted two problems with IME O'Brien's report. First, Dr. O'Brien explained that an annular tear will cause immediate non-radiating back pain, but the applicant complained to Dr. Sharma of gradual complaints of back pain with some sharp shooting pains. Second, she noted that the tape Dr. O'Brien relied upon was not a complete or accurate depiction of the applicant's duties.

The ALJ awarded temporary disability until the applicant returned to full time work in January 1997. She awarded permanent partial disability at 2.5 percent. She paid most of the medical expenses, but denied chiropractic treatment after IME O'Brien's May 27, 1997 report, based on Dr. O'Brien's representation that the chiropractic treatment was not necessary.
The respondent appeals. It asserts that the applicant's fifteen or so weeks of employment did not constitute a sufficiently appreciable period of workplace exposure to constitute an occupational disease. The respondent asserts that fifteen weeks may be long enough to cause some occupational diseases, but not an occupational back.

The respondent admitted that the relative incompleteness of the videotape came as a surprise at the hearing because the videographer did not understand the applicant's job prior to his injury. Respondent's September 25, 1998 reply brief, page 3. The respondent also pointed out that the videotape did briefly show the manual seat stuffing job (2) and that the record is complete because the applicant testified about the manual seat stuffing task.

The respondent also asserts that the applicant never fully recovered from the January 1996 patio door injury as the ALJ found. There is, of course, plenty of room for disagreement on this point. On the one hand, the applicant testified he fully recovered from the injury, and there are no records of further treatment until July 1996 after he had been working for the named employer for several months. On the other hand, Dr. Damrow's notes indicate that the applicant never fully recovered from the injury and that a course of anti-inflammatories did not help. On the third hand, Dr. Damrow seems to recant this statement (or at least indicates that he draws no conclusions from it) in his February 1997 report at Exhibit B.

The employer last argues that, even if the occupational disease is found, the date of injury was September 22, 1996 (the first day of lost work time), and so treatment expense before that date cannot be compensated. However, the employer also points out this very issue is on appeal to the court of appeals and is waiting decision.

3. Discussion.

The main issue, of course, is the question of causation or whether the applicant sustained an injury arising out of employment. The commission agrees with the ALJ's conclusion that the applicant has met his burden of proof on that issue.

First, although Dr. Damrow said in his notes the January 1996 injury had not resolved, the applicant testified that was wrong and the ALJ believed him. Dr. Damrow later recanted the statement, specifically stating he incorrectly related the January 1996 injury to the applicant's current problems. Moreover, the record does not contain notes from any intervening medical treatment, and the applicant was able to pass his pre- employment physical with Dr. Lindahl in March 1996. Indeed, the applicant told Dr. Lindahl about the injury, but related no symptoms at that time. On this record the commission, like the ALJ, credits the applicant's testimony that his back had recovered when he began working for the employer.

Second, IME O'Brien's report, while containing an excellent discussion on how an annular tear progresses, is flawed because it is based on an inaccurate view of the applicant's duties when he was injured. While the tape does show manual seat stuffing as discussed above, the commission cannot conclude from Dr. O'Brien's narrative description of the videotape that he even watched that portion of the tape, much less that the applicant never used the seat stuffing machine to attach the seat covers. The applicant may have been able to correctly explain what the duties were at the hearing, as the respondent acknowledges. However, the applicant's hearing testimony does not correct Dr. O'Brien's report.

Whether the duties could cause the injury is obviously quite relevant and material to this case. Dr. Damrow expressly stated the duties caused the injury. Thus, an inaccurate understanding of the duties cannot be viewed as an insignificant weakness in Dr. O'Brien's history. Finally, the commission observed the worker putting a cover on a seat without the "stuffer machine" at 4:42 on the video. From a lay view, one can easily visualize a back injury from that job. The ALJ properly credited Dr. Damrow's opinion on causation.

The commission must also reject the argument that fifteen weeks is not enough time to develop an occupational back. The law does require that a work injury caused by occupational disease be based on "an extended period of time." However, the reference to an extended period of time is meant to distinguish occupational disease from an accidental event occurring in an instant. Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655, 662 (Ct. App., 1982). The commission does not view the law to require that an occupational back injury must be preceded by any minimum period of employment. Id. Rather, whether occupational exposure is of sufficient duration to cause an occupational back injury is a medical question that will vary from case to case.

In this case, IME O'Brien did state that the nature and duration of exposure was insufficient to cause the work injury, but it is clear he regarded the nature and duration of the exposure as inter-related concepts. That is, Dr. O'Brien's report acknowledges that the duration of exposure necessary to cause an occupational back depends on the type of exposure. Since IME O'Brien did not have an accurate idea of the work exposure, he could not accurately opine about causation.

Finally, the commission turns to the respondent's assertion that the ALJ erroneously awarded chiropractic expenses for treatment incurred prior to the date of injury. However, as the respondent acknowledges, the ALJ's decision is in accord with prior commission decisions on this point. See Carla Vaquera v. Wisconsin Porcelain Co., Inc., WC claim no. 94047791 (LIRC, December 4, 1996), affirmed sub nom. United Wisconsin Insurance Company and Wisconsin Porcelain Co., Inc., v. LIRC and Carla Vaquera, case no. 96-CV-009721 (Wis. Cir. Ct. Milwaukee County, September 24, 1997). See also International Paper Company, et. al. v. Adrian VanRoy, et. al., case no. 97CV532 (Wis. Cir. Ct. Outagamie County, January 8, 1998). Although the Vaquera case is now on review, the commission is not inclined to hold its review in abeyance, particularly as the circuit court in Vaquera accepted the commission's interpretation.

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Footnotes:

(1)( Back ) The annulus is a fibrosis outer layer which contains the nucleus pulposus of a vertebral disc.

(2)( Back ) This, to the commission's viewing, appeared at about 4:40 on the videotape.