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


NORMAN BIRSCHBACH, Applicant

MIKE TIGHE ROOFING INC, Employer

TRANSPORTATION INSURANCE CO, Insurer

WAUSAU UNDERWRITERS INS CO

WORKER'S COMPENSATION DECISION
Claim Nos. 1986052029, 1995056755, 1995006965, 1996001469, 1997026265


Respondents Mike Tighe Roofing, Inc. and Wausau Underwriters Insurance Company submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 10, 1998. Briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to a conceded work injury which occurred on December 28, 1995; whether the applicant sustained an occupational back injury; and liability of the two respondent insurers.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the applicant's testimony at hearing, hereby reverses the administrative law judge's Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is January 19, 1957, began his employment with the employer in 1984. He worked as a crane operator and roofer. On June 2, 1986, he injured his back while lifting and rolling large rolls of roofing rubber. Dr. M. A. Letellier performed a semi-laminectomy and discectomy at L4-5 on September 19, 1986. The surgery alleviated the applicant's radicular leg pain and he was able to return to this job with the employer. However, shortly after returning to work his back symptoms increased. On May 23, 1988, Dr. K. S. Paul administered facet nerve blocks at L4-5 and S1. On December 13, 1988, Dr. Paul performed a radial frequency leading off (rhizotomy) of facet nerves at L5 and S1. Then on March 29, 1989, Dr. Paul performed another rhizotomy at L5. These had salutary results and on June 2, 1989, Dr. Paul gave permanent restrictions of a 32-hour workweek with no forward bending or lifting in a forward bending position.

The applicant then returned to work at 32 hours per week for approximately 16 months, before returning to 40 hours or more per week. On September 28, 1990, at Transportation Insurance Company's request, Dr. Stephen Robbins examined and evaluated the applicant. He diagnosed post laminectomy syndrome and assessed 10 percent permanent functional disability. He indicated that the applicant could work full time, but that he should be limited to a 25-pound lifting restriction, should avoid repetitive bending and lifting from floor to waist, and should be allowed to sit or stand as needed. The employer terminated the applicant's employment shortly after Dr. Robbins' report, but within one week rehired him for regular roofing work.

The applicant's roofing work exceeded his 25-pound lifting restriction. He ran a hot kettle which required up to 100 pounds of lifting, and he also manipulated LP gas cans weighing between 160 and 190 pounds. On January 20, 1995, he was lifting a water pump weighing 80 or 90 pounds when he reinjured his back. This required 10 days off work. He sustained another conceded work injury to his back on September 28, 1995, the details of which are not in the record and were not recalled by the applicant. On December 28, 1995, the applicant attempted to hold back a motorized cart when he sustained still another conceded work injury to his back. This resulted in a period of temporary total disability from the date of injury until April 13, 1996.

The applicant treated for this latest injury with a chiropractor, Dr. Jeffrey Walters, and also with an orthopedic physician, Dr. Kenneth Yuska. Dr. Yuska indicated in a medical summary dated June 18, 1996, that causation of the applicant's back troubles may go back to his 1986 injuries, but was clearly aggravated by his heavy work as a roofer. However, on January 15, 1997, Dr. Yuska wrote in a letter that he would not attribute any increase in the applicant's disability to his work as a roofer since 1986. On July 2, 1996, Dr. Yuska had given the applicant permanent restrictions of no lifting over 20 pounds, frequent lifting up to 10 pounds, and avoidance of bending and twisting of the back and neck. The employer must have received notice of these restrictions earlier, because on June 21, 1996, it wrote to the applicant that it had no work available which would allow avoidance of bending and twisting of the back and neck. The applicant was accordingly unable to return to employment with the employer.

On August 26, 1996, Dr. Walters completed a WC-16-B in which he listed a traumatic injury date of December 28, 1995, but diagnosed an occupational back syndrome based on the applicant's history of heavy work over a number of years, increasing frequency and severity of low back injuries, and increasing difficulty in recovery. He checked the causation box indicating aggravation and acceleration of a preexisting condition, and assessed 12 percent permanent partial disability based on the 1986 surgery, the rhizotomies, and chronic insult to the lumbar spine.

Dr. Robbins reevaluated the applicant on July 8, 1997, and submitted an updated report on July 16, 1997. In it he again diagnosed post-laminectomy syndrome, from which he believed the applicant had plateaued one year after the laminectomy. He did not feel the applicant's condition had appreciably changed over the years, even though there had been "temporary aggravations" of the condition. He once again assessed 10 percent permanent partial disability with a 25-pound lifting restriction, and also advised avoidance of repetitive bending, lifting, and twisting not to exceed 15 episodes per hour.

The applicant had also been examined and evaluated, by Dr. James Huffer on August 19, 1987. On August 31, 1987, Dr. Huffer had assessed 10 percent permanent partial disability and allowed 25-pound lifting, with the possibility of later lifting up to 50 pounds. Dr. Huffer reexamined the applicant on September 6, 1989, and opined that considering the necessity for rhizotomies, he had increased his permanent partial disability rating to 15 percent. He opined that the applicant was "reasonably functional" as long as he limited his work to four days per week and did not lift "anything approaching" 50 pounds.

Dr. Walters credibly opined in a letter dated August 13, 1996, and in his WC-16-B dated August 26, 1996, that the applicant's heavy labor at work over the years, his increasing frequency and severity of low back injuries, and his increasing difficulty in recovering from these injuries indicated that he suffered from an occupational back syndrome. Dr. Walters listed "12-28-95" in the WC-16-B box labeled "Date of Traumatic Event," and in describing the work exposure he wrote: "Lifting 100 pound LP cylinders." The argument has been made that since the traumatic injury of December 28, 1995, did not involve lifting LP cylinders, Dr. Walters' opinion of causation is rendered inconsistent and speculative.

The commission rejects this argument and infers from the evidence that Dr. Walters was fully aware of the circumstances surrounding the injury which occurred on December 28, 1995; in fact, it was on that date that Dr. Walters first began treating the applicant, and the applicant credibly indicated that such treatment was for the work injury of that date. Dr. Walters' description of lifting the heavy LP cylinders is inferred to be in reference to the "history of heavy labor" cited in his description of the applicant's medical history, and implicated in his diagnosis of an occupational back. It is quite evident from the medical practitioners' records, as well as from the applicant's unrebutted testimony, that he was exposed to heavy labor at work over extended periods between 1986 and 1995. Dr. Walters' opinion that this exposure, together with the cumulative effect of several traumatic work injuries resulted in an occupational back injury is credible. See Shelby Mutual Insurance Co. v. DILHR, 109 Wis. 2d 655, 327 N.W.2d 178 (Ct. of Appls. 1982). (1)

The argument has also been made that if the applicant has an occupational back injury, the date of such injury should be found to be in 1990. It is noted that the applicant missed work due to a back problem at that time, and that he agreed on cross- examination that his symptomology did not resolve any faster between 1990 and 1995, than it did subsequent to December 1995. However, the applicant also testified that he exceeded his work restrictions between 1990 and 1995, that he bent and twisted his back to run the hot kettle, and that during this period he sustained the traumatic injuries previously detailed. Dr. Walters' opinion also leads to the credible inference that the applicant's back had become increasingly less resilient to the repeated occupational exposure to which it was exposed up until December 28, 1995. Dr. Walters assigned a work injury date of December 28, 1995. Given his credible description of the injury as occupational in nature, together with the history of heavy industrial exposure up to that date, it is found that the applicant's back condition did not ripen into an occupational back disease until diagnosed as such by Dr. Walters effective December 28, 1995.

Dr. Walters' permanent partial disability assessment of 12 percent is also accepted as credible. He attributed this assessment to the applicant's 1986 injury and surgery, his 1988 and 1989 rhizotomies, and the chronic insult to his back due to the work exposure. Ten percent permanent partial disability was previously conceded and paid by Transportation Insurance Company as disability attributable to the 1986 work injury, in accordance with Dr. Robbins' opinion. The commission finds that the additional two percent permanent partial disability assessed by Dr. Walters is attributable to the occupational disease process which developed subsequent to the 1986 work injury, and ripened on December 28, 1995. Wausau Insurance Company, as the carrier on the risk on December 28, 1995, is liable for two percent permanent functional disability and the loss of earning capacity which the applicant sustained due to his occupational back disease. The two percent functional disability will be subsumed into the loss of earning capacity assessment.

The applicant is a high school graduate with work exposure as a general laborer, a railroad car repairman, construction laborer, dairy farm laborer, and roofer/crane operator for the employer. He was earning $13.60 per hour when he ceased his employment with the employer, but normally worked overtime. Since losing that employment he has worked at odd jobs for minimum wage, including at a sheltered workshop. Most recently, he has found employment as a security guard and as an apron sewer. The applicant's vocational expert, Timothy Greenya, estimated that the applicant would be earning $16 to $18 per hour as a roofer had he been able to continue that employment, but he is likely now to find employment in the range of $6.50 per hour. Mr. Greenya assessed loss of earning capacity at between 60 and 70 percent.

Transportation Insurance Company's vocational expert, Cynthia Engebose, estimated that the applicant would be earning $27,000 to $30,000 annually had he not been injured, and should be able to find work at $8 per hour. She suggested employment as a school bus driver, shipping and receiving clerk, or forklift operator. Her assessment of loss of earning capacity was between 40 and 45 percent. The commission has considered the factors enumerated in Wis. Admin. Code ch. DWD 80.34, and the opinions of the vocational experts, and finds that the applicant has sustained a 60 percent loss of earning capacity, 10 percent of which was accounted for in the permanent partial disability conceded and previously paid for the applicant's 1986 work injury. (2)

Wausau Underwriters Insurance is therefore liable for an additional 500 weeks of permanent partial disability which began to accrue at the end of healing on April 13, 1996. At the applicable rate of $164 per week this amounts to a total of $82,000. The applicant's attorney is entitled to a 20 percent fee, less an interest credit of $2,363.15, for a present value fee of $14,036.85. He is also entitled to $640.40 in costs. The net amount of unpaid permanent partial disability accrued to the applicant as of February 8, 1999, is $18,689.73. This leaves an unaccrued balance of $46,269.87 to be paid to the applicant in monthly installments of $710.67 beginning on March 8, 1999.

Reasonably required medical, medical mileage, and prescription expenses are due as enumerated below in the commission's order.

Dr. Robbins credibly opined that no further medical treatment is recommended, aside from the applicant's home exercise program, and Dr. Walters released the applicant from his care on August 13, 1996. Accordingly, this order will be final.

NOW, THEREFORE, this

ORDER

Within 30 days from this date, Mike Tighe Roofing, Inc. and Wausau Underwriters Insurance Company shall pay to the applicant accrued permanent partial disability in the amount of Eighteen thousand six hundred eighty-nine dollars and seventy-three cents ($18,689.73); to applicant's attorney, Anthony Welhouse, fees in the amount of Fourteen thousand thirty-six dollars and eighty-five cents ($14,036.85), and costs in the amount of Six hundred forty dollars and forty cents ($640.40); to the applicant as reimbursement for medical mileage and prescription expense the sum of Three hundred sixty dollars and forty-three cents ($360.43); to Blue Cross/Blue Shield as reimbursement the sum of Five hundred seventeen dollars and forty-three cents ($517.43); to Preferred Chiropractic of Fond du Lac the sum of One thousand three hundred forty-two dollars and thirty-seven cents ($1,342.37); to Bone and Joint Surgery Associates the sum of Eight hundred forty-one dollars and twenty cents ($841.20); to St. Agnes Hospital of Fond du Lac the sum of Seven hundred ten dollars and ninety-two cents ($710.92); to Walgreens Pharmacy of Fond du Lac the sum of Sixteen dollars and forty-four cents ($16.44); to Dr. Randall Schultz the sum of Three hundred thirty-five dollars ($335); to Dr. K. S. Paul the sum of Two hundred fifteen dollars ($215); to Dr. Ahmad Haffar of Valley Neurology Clinic in Oshkosh, the sum of One thousand three hundred twenty-nine dollars ($1,329); to Mercy Medical Center of Appleton the sum of Two thousand one hundred eight dollars and forty cents ($2,108.40); to Radiology Associates of Fox Valley the sum of Five hundred twelve dollars ($512); and to Anesthesia Associates, Ltd. of Appleton the sum of Six hundred fifteen dollars ($615).

Beginning March 8, 1999, and continuing monthly thereafter, Mike Tighe Roofing, Inc., and Wasuau Underwriters Insurance Company shall pay to the applicant the sum of Seven hundred ten dollars and sixty-seven cents ($710.67), until the unaccrued balance of permanent partial disability has been paid in the total amount of Forty-six thousand two hundred sixty-nine dollars and eighty-seven cents ($46,269.87).

Dated and mailed: 1/29/99
birscno.wrr : 185 : 5 ND � 5.27

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In consultation with the commission, the administrative law judge did not relate any credibility or demeanor impressions of the applicant which would be inconsistent with the commission's finding of an occupational back disease. In fact, the administrative law judge agreed that such a finding was reasonable. In his order he indicated that he did not feel there was medical support for finding an occupational back disease, but the commission found such support in Dr. Walters' opinion.

The commission's modification from 50 percent loss of earning capacity to 60 percent loss of earning capacity was based on analysis of the factors enumerated in Wis. Admin. Code DWD 80.34, and the vocational opinions. The administrative law judge did not relate any credibility/demeanor impressions of the applicant which would have influenced the decision to modify this award. Both the administrative law judge and the commission found the applicant to have been a credible witness. The commission found that in comparing the relatively high hourly wage the applicant could have expected to receive had he been able to continue his employment with the employer, with the wages he has been able to earn and is likely to earn subsequent to his healing date, a 60 percent loss of earning capacity assessment was credible.

The commission corrected the erroneous finding that the 1986 permanent partial disability award did not impact on the applicant's loss of earning capacity. Even though the applicant was able to continue working and received higher wages subsequent to the 1986 work injury, the permanent partial disability attributable to that injury did impact the applicant on a permanent basis, resulting in permanent restrictions. There was no loss of earning capacity assessment until the applicant's occupational disease ripened, and he subsequently became unable to return to his employment. But one necessary element of the loss of earning capacity assessment was the permanent residual which the applicant sustained from the 1986 injury and resulting surgeries. Compensation was previously paid for that element, in the form of a 10 percent permanent partial disability concession and payment by Transportation Insurance Company. It was therefore necessary to subtract that concession from the award for loss of earning capacity.

cc: ATTORNEY TONY WELHOUSE
WELHOUSE LAW OFFICE

ATTORNEY PETER M SILVER
MARK H MILLER LAW OFFICE

ATTORNEY DAVID TOPCZEWSKI
STILP & COTTON


Footnotes:

(1)( Back ) Even though Dr. Walters checked the box on his WC-16-B indicating that there had been a precipitation, aggravation, and acceleration of a preexisting condition beyond normal progression, his narrative descriptions clarify that he believed the applicant had sustained an occupational back disease. The commission notes that medical practitioners routinely confuse the "aggravated/accelerated" causation theory with the "occupational disease" causation theory, which is understandable, since in a particular case either or both of these legal causation theories may be applicable. Both theories of causation were found to have been applicable in Shelby, 109 Wis. 2d at 662-63.

(2)( Back ) Any award for permanent partial disability attributable to a nonscheduled injury must be based upon some kind of a prediction as to the impairment of earning capacity. Shelby, 109 Wis. 2d at 663.


birscno.wrr

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