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

DARRELL PAULUS, Applicant

CERAC INC, Employer

TRAVELERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996026974

On April 7, 1998, a hearing was held in this matter before an administrative law judge (ALJ) for the Department of Workforce Development, Worker's Compensation Division. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $390, and a March 20, 1996 compensable injury. The respondent also conceded and paid temporary disability benefits from March 26 to May 1, 1996 in the amount of $1,300.05.

The administrative law judge issued her findings of fact and order in this case on May 7, 1998. The applicant filed a timely petition for commission review. Thereafter, both the respondent and the applicant submitted briefs.

The issues at the hearing, and now before the commission, are the nature and extent of disability beyond that conceded. Specifically, the applicant sought temporary disability to March 25, 1997, and permanent partial disability at seven percent compared to disability to the body as a whole. Liability for a single additional medical expense was also at issue.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, who was born in 1964, worked for the employer as a machinist. The applicant's medical history is significant for some prior occasions of short-term back problems. The applicant is a weight-lifter, and concedes he may have overdone his work-outs in prior years. Nonetheless, the applicant was able to do relatively heavy work until the date of the injury.

On March 20, 1996, the applicant was cleaning grease around a machine on his hands and knees. As he picked up his rags and rose to his knees, he experienced pain shooting into his leg. The pain, though acutely intense at first, "simmered down." The applicant felt able to work the next day, but then took the next day off and rested over the weekend. After attempting to work the following Monday, the applicant sought medical treatment.

Specifically, the applicant saw B. Zietlow, M.D., at an occupational medicine clinic on March 26 on referral by the employer. The applicant reported symptoms of severe pain from his hip to his toes beginning while he was cleaning up grease around a machine on March 20, 1996. Dr. Zietlow noted spondylolisthesis (1) and opined the applicant's symptoms were simply the result of the coincidental manifestation of symptoms from the spondylolisthesis at work.

Thereafter, the applicant then saw his family doctor, John Obudzinski, D.O. Dr. Obudzinski diagnosed probable lumbar disc disease with radiculopathy, and referred the applicant to Donald Yoder, D.O.

Dr. Yoder obtained a CT scan and an MRI in April 1996, which showed, in addition to the spondylolisthesis and pseudoherniation with transitional vertebra, disc bulges at L3-4, and a disc herniation at L4-5. The CT scan indicated the herniation might encroach the foramina, but not displace the nerve roots or the thecal sac. The MRI (and a repeat MRI done in March 1998) also indicated the applicant had a disc herniation, but that it did not encroach on the foramina.

The applicant underwent treatment, specifically epidural injection, in 1997. This was complicated somewhat by his psychological fear of needles. The epidural injections helped somewhat, but his complaints of left leg (and later right leg) pain continued. Also because of the fear of needles, the applicant has evidently never undergone EMG nerve testing.

The applicant also began a sexual relationship in 1997-98 which caused him to notice a sexual dysfunction that a urologist traced to the disc herniation. Howard An, M.D., a surgeon recommended by Dr. Yoder, opined that the most reasonable surgery would be an L3-5 laminectomy and fusion. However, Dr. An also stated the surgery would not be necessary if the applicant could live with the pain, and switch jobs.

At the time of the hearing, no surgery had yet been done. The applicant testified he remained symptomatic, and the record indicates he was getting social security disability benefits.

Both sides have offered expert medical opinions.

Treating Dr. Yoder diagnosed spondylolisthesis and disc herniation. In a practitioner's report dated March 25, 1997, he opined the work injury directly caused the applicant's disability. He rated permanent partial disability, based on his most recent examination of March 18, 1997, at seven percent for the disc herniation and an additional seven percent for the underlying spondylolisthesis. Exhibit A.

Dr. Yoder's opinion is explained in greater detail in his August 20, 1996 letter to the applicant's attorney (last page of Exhibit H.) Dr. Yoder diagnosed "spondylolisthesis of lumbar herniated disc." Dr. Yoder explains that the applicant had a pre-existing condition (spondylolisthesis) which would predispose the applicant for lumbar instability, but not necessarily for a herniated lumbar disc. He went on to explain that work and work exposure directly caused the applicant's disability, that work exposure has caused an acceleration of a pre-existing deterioration of the applicant's body, and that work effect and exposure was at least a material, contributory factor of his present condition.

Dr. Yoder also opined in a letter dated March 17, 1998, that the applicant was not able to be gainfully employed. He thought he could only carry 20 pounds, and would have a maximum limit of any activity (sitting, standing, walking, carrying, lifting) of two hours. See Exhibit B. These restrictions were more limiting than those imposed only a few months earlier in an August 1997 functional capacity evaluation in which Dr. Yoder opined the applicant could work half time, subject to a 35-pound lifting limit.

In a note dated April 3, 1998, Surgeon An opined that the applicant has significant discogenic back pain, as well as left- sided radiculopathy, probably based on a herniated disc at L4-5. He concluded the symptoms were related to his back injury as he did not have problems before the injury.

Dr. Zietlow who, as noted above, initially treated the applicant at the clinic recommended by the employer, opined the applicant's condition was entirely due to the pre-existing spondylolisthesis which only coincidentally manifested itself at work. Under this theory, of course, the applicant has no compensable injury.

The employer's independent medical examiner (IME), James Guhl, M.D. concluded that the work activity on March 20, 1996 (bending and stooping to clean the machine) did not directly cause, but did aggravate, an injury or pre-existing condition. Interestingly, Dr. Guhl indicates the applicant did not seem to have the shifting or development defect indicative of spondylolisthesis, but the doctor did opine the applicant had spondylolysis which is the dissolution of a vertebra.

At any rate, Dr. Guhl opined the applicant's condition was not the result of coincidental symptom manifestation, but rather a temporary aggravation caused by work. In other words, he found the applicant suffered an injury caused by work, but opined the effect of the injury was only temporary and left no permanent residuals.

Dr. Guhl diagnosed a lumbosacral sprain/strain which should have healed without residual disability by May 29, 1996. He did think, however, that surgery might be necessary for the underlying spondylolysis, and that the amount of permanent partial disability would depend on whether a laminectomy and a fusion were done, and on how many vertebral levels were involved.

Upon re-examination in December 1997, Dr. Guhl adhered to this opinion. Dr. Guhl remained of the opinion that any work restrictions, permanent disability or further surgical treatment would be solely related to the underlying conditions. Exhibit 1. Dr. Guhl specifically stated that he agreed with Dr. Yoder's restrictions, but emphasized that they were for a non-work condition. He suggested symptom magnification was involved.

The commission finds the opinions of Drs. Yoder and An most credible. While the applicant had a serious pre-existing degenerative condition, he was able to work until March 20, 1996. At that point, the applicant experienced the onset of disabling pain in his back after working on his hands and knees. Subsequently, a herniated disc was discovered.

Given this history, the commission cannot credit the opinion of Dr. Zietlow that the applicant's underlying condition had progressed to the point of being symptomatic, and those symptoms coincidentally became manifest while the applicant was working on his hands and knees. Nor can the commission credit Dr. Guhl's similar theory that the work injury caused only a temporary back strain, but that while healing from the sprain his pre-existing degenerative back condition independently progressed to the point of necessitating significant permanent work restrictions.

In sum, the commission concludes that the applicant's work duties on March 20, 1996, caused the applicant's herniated disc either directly or by aggravating, accelerating and precipitating a pre-existing degenerative condition beyond its normal progression. The commission also concludes that the work injury caused the applicant to be temporarily disabled through March 19, 1997 when Dr. Yoder rated permanent disability. Finally, the commission concludes, based on Dr. Yoder's practitioner's report, that the work injury caused permanent disability.

Dr. Yoder rates permanent disability at 14 percent, seven percent for the herniated disc and an additional seven percent for the underlying spondylolisthesis without radiculopathy. The commission interprets Dr. Yoder's report to mean that the applicant's underlying condition, prior to the onset of the disabling radicular symptoms from the herniated disc, caused permanent partial disability at seven percent, while the remaining seven percent is attributed to the work injury. The commission finds this rating to be reasonable in light of the applicant's condition.

The applicant is considering surgery. If the applicant were to have a surgery, Dr. An recommended a laminectomy, discectomy and fusion at two levels. Such a procedure would result in at least 20 percent permanent partial disability as compared to permanent total disability. Wis. Admin. Code § DWD 80.32(11). Thus, even if the applicant undergoes surgery, the respondent would be obligated to pay at least the seven percent permanent partial disability rated by Dr. Yoder. Consequently, permanent partial disability at seven percent shall be awarded at this time under Wis. Stat. § 102.44(6)(h).

The commission therefore finds that the applicant was temporarily and totally disabled from March 26, 1996 to March 19, 1997, a period of 51 weeks and one day. At the weekly rate of $260 (two-thirds of his average weekly wage of $390), the total award for temporary total disability equals $13,303.33, from which the respondent is entitled a credit of $1,300.05 for amounts previously paid, leaving an additional award for temporary disability in the amount of $12,003.28.

The applicant is also entitled to 70 weeks of compensation for permanent partial disability at $169 per week (the statutory maximum rate for an injury in 1996) totaling $11,830, all of which is accrued.

The total additional amount awarded for disability compensation thus equals $23,833.28. The applicant agreed to an attorney fee of 20 percent on additional amounts awarded. The fee thus equals $4,766.66 and together with costs of $739.50, shall be deducted from the applicant's award and paid within 30 days. The amount remaining to be paid the applicant within 30 days equals $18,327.13.

The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effects of the work injury in the amount of $51 from Aspen Orthopaedic.

Because the applicant is considering surgical treatment, and because the treatment may affect the applicant's permanent work restrictions and correspondingly his potential permanent disability on a vocational basis for loss of earning capacity, no award for loss of earning capacity is appropriate at this time. In addition, because the applicant may incur additional disability and medical expenses, the commission's order is left interlocutory on those issues.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this order, the employer and its insurer shall pay all of the following:

1. To the applicant, Darrell J. Paulus, the sum of Eighteen thousand three hundred twenty-seven dollars and thirteen cents ($18,327.13) in disability compensation.

2. To the applicant's attorney, Paul Christensen, the sum of Four thousand seven hundred sixty-six dollars and sixty- six cents ($4,766.66) in fees and Seven hundred thirty- nine dollars and fifty cents ($739.50) in costs.

3. To Aspen Orthopaedic, the sum of Fifty dollars ($50) for medical treatment expense.

Jurisdiction is reserved for further orders and awards as are consistent with this decision.

Dated and mailed: December 23, 1998
paulusd.wrr : 101 : 7  ND § 5.27

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ regarding witness credibility and demeanor. She acknowledged the "as is" rule that applies in worker's compensation cases, but concluded that, since the applicant's symptoms seemed to get worse well after the work injury (referring in part to the sexual dysfunction), it seemed likely the permanent problems were due to the underlying condition rather than work injury. She did state that the applicant was credible when he testified his symptoms began with the work injury on March 20, 1996.

The commission, for the reasons explained above, cannot agree with the ALJ's conclusion that the applicant did not sustain permanent disability from the work injury. Specifically, while the applicant's symptoms were not static over the course of his treatment, he has consistently reported leg pain and radicular symptoms, beginning with the work incident on March 20, 1996. A herniated disc was later discovered, and the commission credits the treating doctors' opinions that the work incident caused the herniated disc, which in turn caused the applicant's symptoms.

In response to the applicant's appeal, the respondent points to the applicant's post-injury activity, and portrays the applicant as a malingerer and exaggerator of symptoms. The employer also points out that the applicant, as well as initial treating Doctors Zietlow and Obudzinski, did not think the applicant's problems were work related.

However, despite these points, the commission still believes an award of permanent disability is warranted. First, most of the applicant's post-injury activities, including the cardiovascular activity and weight lifting, were done upon the advice of his treating doctors. See Exhibit H, May 28, 1996 note of Dr. Yoder and [April?] 27, 1997 note of Dr. Yoder. No medical doctor, including the IME who agreed with Dr. Yoder's permanent restrictions, has ever said the ability to do the bench press weight lifting suggested he did not have a symptomatic herniated disc.

Second, whatever the applicant thought caused his back problems, he is a layman. Treating Drs. Obudzinski, Yoder and An, and IME Guhl, all opined he had a work-related injury. That leaves only Dr. Zietlow, whose opinion that his symptoms were solely a manifestation at work was, of course, rendered before the CT and MRI showed a disc herniation.

Finally, the employer's assertion that Dr. Obudzinski initially did not believe the applicant's condition was work- related is simply not supported by the record. True, IME Guhl does seem to attribute such a remark to Dr. Obudzinski, hence the employer's citation to page 6 of Guhl's report at Exhibit 1. However, Dr. Obudzinski's actual reports show that he has consistently related the applicant's problems to a twisting injury at work. This is evident from an initial treatment note (Exhibit 4, Dr. Obudzinski note of March 28, 1996), as well as a report to a non-industrial disability insurer (Exhibit 5, report dated April 16, 1996). (2)

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I would accept the opinion of Dr. Guhl and find that the employe had a temporary aggravation of his underlying spondylolysis and degenerative joint disease by a strain/sprain injury.

Dr. Guhl found that surgery would not be indicated for the work injury but any surgery would be due to the pre-existing condition. The MRI showed that there were bulging discs at L3-4 and L4-5 with probable herniation at L4-5 but the sac and nerve roots appeared to be intact with no encroachment on the intervertebral foramina noted. Dr. Guhl would find the end of the healing period to be May 29, 1996. Dr. Guhl also found some symptom magnification.

I do not believe that Dr. An had an accurate history of the applicant's back problems. The sexual dysfunction that the applicant had was well over a year after the incident at work and I do not believe that it was related to the work injury.

For these reasons, I would modify and affirm the administrative law judge's decision.

Pamela I. Anderson, Commissioner

cc: ATTORNEY PAUL CHRISTENSEN
POULOS SENGSTOCK & BUDNY SC

ATTORNEY LOIS A MONEFELDT
SPINDLER ROITBURD SCHWEMER & MUNSON

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Footnotes:

(1)( Back ) Slippage of one vertebra over another as a result of developmental deformity.

(2)( Back ) Indeed, based on Dr. Obudzinski's report that the applicant's disability was from a work injury, the non-industrial insurer denied the applicant's claim. Exhibit F.