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

JEFFREY M DUNDON, Applicant

KLEIN DICKERT MILWAUKEE, Employer

DAVCO DEVELOPMENT CORP, Employer

ST PAUL FIRE & CASUALTY INSURANCE CO, Insurer

AETNA CASUALTY AND SURETY CO, Insurer

EMPLOYERS INS OF WAUSAU, Insurer

HERITAGE MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1988009423

The applicant, who is not represented by an attorney, filed a hearing application with the Division of Worker's Compensation in the Department of Workforce Development. His application lists a January 26, 1988 date of injury with Klein-Dickert Milwaukee (Klein-Dickert) and a December 26, 1996 last day of work with Davco Development Corporation (Davco).

A pre-hearing conference was held before ALJ Randall Kaiser. Three of the insurers named in the caption of this order were present at the pre-hearing conference. The fourth insurer, Employers Insurance of Wausau, was subsequently made a party to this claim by ALJ Kaiser. ALJ Kaiser also ordered St. Paul Fire and Casualty Insurance (1) to continue to pay the applicant's benefits, including temporary disability and medical expenses, under Wis. Stat. § 102.175 pending a formal hearing and decision on the application.

That hearing was held before ALJ Thomas McSweeney on January 22, 1998. On February 13, 1998, ALJ McSweeney issued his decision concluding that St. Paul Fire and Casualty Insurance was in fact the liable insurer, based on the January 1988 date of injury at Klein-Dickert. Thereafter, Klein-Dickert and St. Paul Fire and Casualty Company filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1959. He worked for Klein-Dickert Milwaukee (Klein-Dickert) from 1979 to October 1996. He began working for Davco Development Corporation (Davco) in October 1996 and worked there until his back condition prevented him from continuing in late December 1996.

The applicant worked as a "glazier." Essentially, he built and installed glass windows, doors, mirrors and storefronts. This is heavy work, requiring lifting and considerable bending while working with the glass.

The applicant suffered a number of work-related back injuries while working at Klein-Dickert. After the applicant's back prevented him from working, he underwent an MRI examination in early 1997. This showed a disc herniation at L5-S1 and disc degeneration at L5-S1. He had a L5-S1 laminectomy surgery in July 1997, with a possible post-surgery complication of post- laminectomy syndrome. The main issue in this case is which of the insurers is liable for the applicant's work injury. (2)

The commission notes that the medical histories in the reports of the independent medical examiners are quite similar. See report of Dennis Brown, M.D. (St. Paul Exhibit 1) and Richard Karr, M.D. (Heritage Exhibit 2). In a nutshell, the applicant reported injuries at work on April 22, 1982 (lifting), October 12, 1984 (lifting), July 1, 1986 (slip-and-fall), April 13, 1987 (lifting), January 29, 1988 (moving scaffolding), August 14, 1989 (falling from a ladder), March 30, 1990 (twisting back while lifting), October 15, 1991 (lifting), May 20, 1992 (reaching above head), June 25, 1993 (lifting), the spring of 1995 (twisting, lifting), and January 19, 1996 (slip-and-fall hurting shoulder.) All injuries were sustained at Klein-Dickert; none were sustained at Davco.

The applicant did not actually seek treatment for the first three injuries listed above; at least the medical record does not show it. The first injury for which he sought treatment was the January 29, 1988, scaffolding moving injury. The applicant saw James E. Minikel, M.D., for this injury; Dr. Minikel diagnosed low back pain with no radicular component and kept the applicant off work for 7 to 10 days.

The applicant had a couple of weeks of therapy after the January 1988 injury, then returned to work with no restrictions. A treatment note from that injury shows Dr. Minikel's diagnosis of low back pain with a negative straight leg raising test. See Aetna Exhibit 3. The applicant testified he had continuing pain, but not enough to require him to seek treatment. The applicant also viewed his condition as generally deteriorating after the January 1988 injury; he had more frequent and more troublesome back problems; he began having symptoms of pain in his hip and leg; and he felt the January 1988 injury was the first in the series of back injuries that led to his disability.

The medical records show that hip pain was mentioned as the result of the January 1988 injury, and in doctors' visits in 1993. However, the first mention of pain down into the leg (specifically, the left leg) was February 20, 1995. The applicant's complaints on February 20, 1995 also indicate a greater degree of disability than prior complaints-- the applicant could not get out of his chair and had to crawl to the bathroom. The earliest indication of radicular symptoms, indicating a neurological involvement initially diagnosed as sciatica, as opposed to a muscular strain, occurred in February 1995. See notes of Dr. Edson, at Aetna Exhibit 1.

Further, it was a neurological problem that ultimately disabled the applicant from work in December 1996. On or about December 26, 1996, two months after he started working at Davco Development, the applicant experienced the onset of pain at home which was so bad he could not get out bed. He treated initially with Dr. Edson, and then saw Dr. Minikel in January 1997 on a neurological consultation. Dr. Minikel ordered an MRI, which showed a disc herniation touching the thecal sac at L5-S1.

The applicant eventually underwent an L5-S1 laminectomy at L5-S1 on July 15, 1997. The medical experts opined that at the time of the January 1998 hearing, the applicant remained temporarily disabled from the July 1997 surgery. The medical experts also agreed the applicant eventually have a permanent partial disability of at least five percent to the body as a whole.

The file contains four expert medical opinions on the question of the date of injury, which in turn determines which insurer is liable. Treating orthopedist James E. Minikel, M.D., opines the applicant's condition was directly caused by the January 26, 1988, injury while moving the scaffolding. His opinion seems to rule out causation by occupational disease. As the ALJ points out in his decision, Dr. Minikel reiterates this opinion that the January 1988 injury directly caused the applicant's disability at various points in his 1997 medical notes at St. Paul Exhibit 2 and Aetna Exhibit 2.

Treating Dr. Allan C. Edson opines a March 1990 injury directly caused disability. The commission concludes that Dr. Edson refers to the March 1990 injury mainly because it was the first time he treated the applicant. However, Dr. Edson also refers to the applicant's multiple back injuries and marked the "occupational disease" causation box, as well as the "direct cause" box, on the practitioner's report form.

IME Brown issued a report on behalf of St. Paul (the insurer on risk in 1988.) St. Paul Exhibit 1. Dr. Brown diagnosed low back pain with an L5-S1 herniated disc. He opined the applicant had an occupational back, and that the need for surgery did not relate to the January 26, 1988 injury at Klein-Dickert. Dr. Brown pointed out that the January 1988 incident was relatively insignificant, that it produced a diagnosis of low back pain with no radicular component, that the applicant was off work for two weeks, that he subsequently resumed his heavy work again without restriction and had several more injuries, and that he eventually was diagnosed with a disc herniation which was not evident in January 1988.

Dr. Brown concluded that:

"The few months that [the applicant] worked at Davco Development was the proverbial straw that broke the camel's back. This work activity was a material contributory causative factor in the onset or progression of the this condition and necessity of the back surgery and resulted in the related disability."

IME Richard Karr submitted an IME report on behalf of Heritage (the insurer on the risk for Davco Development.) He notes the history of multiple lumbar strain/sprain injuries at Klein-Dickert. He opined that the disc herniation pre-dated employment at Davco, and most likely was the result of the applicant's multiple lumbar strain/sprain injuries between January 1988 and 1996. He believed the series of injuries at Klein-Dickert aggravated the applicant's pre-existing degenerative disc disease beyond normal progression and directly resulted in the L5-S1 disc herniation.

Dr. Karr ruled out employment at Davco as a cause of disability. He noted there was no traumatic injury while the applicant worked at Davco, and that the applicant's two month tenure there was too short a time to be a material contributory factor in the progression of the back pathology.

The commission must first determine whether the applicant's disability was directly caused by the 1988 injury (as Dr. Minikel opines); or directly caused by the 1990 injury (as Dr. Edson seems to opine); or caused by "occupational disease" from a series of lifting accidents at work or from exposure to heavy work generally (as Drs. Brown and Karr opine.) The commission has recognized that back problems may be caused by occupational disease, either from the cumulative effect of heavy lifting over time, or from the cumulative effect of a series of work-related lifting accidents. See Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982).

In this case, the commission is persuaded that the applicant's disability was the result of occupational disease from the course of employment at Klein-Dickert between 1988 and 1996, rather than a single traumatic event in either 1988 or 1990. As Drs. Karr and Brown pointed out, the applicant recovered from the 1988 injury and was able to return to work without restriction. The 1988 injury was diagnosed and treated as a strain, not the neurologic condition for which the applicant ultimately received surgery. The earliest indication of radicular symptoms, indicating a neurological involvement initially diagnosed as sciatica as opposed to a muscular strain, occurred in February 1995. See notes of Dr. Edson, at Aetna Exhibit 1.

The next question is the date of injury. In cases of occupational disease, the date of injury is the date of disability or the last day of work in employment contributing to the disability, whichever is first. Wis. Stat. § 102.01(2)(g). In either situation, the date of injury depends on when the occupational disease ripened into a disabling condition. See General Casualty Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 187 (Ct. App., 1991).

Thus, determining the date of injury has two parts: (a) when did the condition become an "occupational disease" as opposed to just one in a series of back injuries, and (b) when did that condition become disabling? In other words, the commission does not simply look for the first time an occupational disease is diagnosed; there must be lost work time or other evidence of disability as well. By the same token, the commission cannot simply look for the first time a worker misses work due to a back problem, the missed work must be due to occupational disease not just one of early accidental injuries causing a condition which later ripens into occupational disease. George Hoppe v. Ampco Metal, WC case no. 92027782 (August 31, 1995).

In this case, the commission concludes that the applicant's condition had already ripened into an occupational disease when he started Davco in October 1996. The applicant did not suffer any traumatic injuries at Davco. The onset of symptoms in December 1996 closely parallels the symptoms previously noted by Dr. Edson in February 1995. Finally, the applicant only worked at Davco for two months.

The commission also notes that Dr. Karr opined that the entire course of employment with Klein-Dickert caused the disability that prevented the applicant from working after December 1996. The commission finds Dr. Karr's expert medical opinion to be most credible among those in the record. Accordingly, the commission concludes the date of disability was the applicant's last day of work with Klein-Dickert, October 10, 1996.

The commission therefore finds that the applicant sustained an injury arising out of his employment with Klein-Dickert while performing services growing out of and incidental to that employment on October 10, 1996. Accordingly, the insurer on the risk for Klein-Dickert on that date, Employers Insurance of Wausau, is liable to reimburse St. Paul Fire and Casualty Insurance for the temporary disability benefits and medical expenses at issue. As of the date of hearing, this amounted to $20,150 in temporary disability, and $21,475 in medical expenses; Employers Insurance of Wausau of course remains liable for additional amounts paid by St. Paul Fire and Casualty Insurance Company on this claim since the date of hearing. In addition, Employers Insurance of Wausau is liable to reimburse the nonindustrial entity which paid accident and sickness plan or program.

Because the commission concludes that the record does not justify the imposition of liability on Davco, St. Paul Fire and Casualty Insurance Company, Aetna Casualty and Surety Company, or Heritage Mutual Insurance Company, the application is dismissed as to them. Because the record indicates the applicant will sustain additional periods of disability, and could incur additional medical expenses, this order shall remain interlocutory with respect to Klein-Dickert and Employers Insurance of Wausau.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform with the foregoing.

Within 30 days from the date of this decision, Employers Insurance of Wausau shall reimburse St. Paul Fire and Casualty Company and the unnamed non-industrial entity for amounts paid on this claim.

The application is dismissed with respect to Davco Development Corporation, St. Paul Fire and Casualty Insurance Company, Aetna Casualty and Surety Company, and Heritage Mutual Insurance Company. Jurisdiction with respect to Klein-Dickert and Employers Insurance of Wausau is reserved for further orders consistent with this decision.

Dated and mailed: November 30, 1998
dundoje.wrr : 101 : 7  ND § 3.4

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge stated he accepted the report of Dr. Minikel because he had treated the applicant all along. The ALJ's decision to credit Dr. Minikel was not based on the demeanor of the applicant during his hearing testimony.

The commission acknowledges that, in many cases, a treating doctor's greater familiarity with a case will enhance the credibility of his expert medical opinion. In this case, however, for the reasons explained above, the commission finds more credible the expert medical opinion of Dr. Karr.

Appealed to Circuit Court.

[ Search WC Decisions ] -  [ WC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) Also known as St. Paul Fire & Marine Insurance Company.

(2)( Back ) ALJ Randall Kaiser ordered St. Paul (the insurer on risk in 1988) to pay on the applicant's claim, pending resolution of the question of which insurer actually is liable. See last page of St. Paul Exhibit 1.