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

RENAE BELKNAP, Applicant

WISCONSIN TISSUE MILLS, Employer

PACIFIC EMPLOYERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1989069201, 1998029690, 1995052832

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: January 29, 1999
belknre.wsd : 101 : 7   ND § 8.22 ;  § 8.30

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In their brief, the employer and insurer (collectively the respondent) raise three issues: (a) whether the ALJ properly ordered a third day of hearing, (b) whether the record supports a finding of a compensable work injury arising from occupational disease, and (c) whether certain medical expenses should be ordered paid.

The ALJ held the hearing over three days in this case. The second day of hearing was necessary because the parties did not have sufficient time to present their cases on the first day. After the parties rested, the ALJ ordered a third day of hearing, evidently to get a better sense of whether all of the alleged accidental work injuries actually happened. The ALJ concluded only two of the accidental events occurred, but awarded benefits on the applicant's alternative theory (1) of occupational disease theory (which contemplates injury from work exposure or activity over time rather than an accidental event on a specific date.)

a. Third day of hearing.

The respondent contends that the ALJ had no authority to order the third day of hearing. The respondent asserts that the ALJ should have just dismissed the case on legitimate doubt, rather than allowing the applicant what amounts to a second chance to prove her case.

However, the commission is not persuaded for several reasons. First, worker's compensation hearings simply are not civil trials in circuit court. Worker's compensation ALJs do not sit as trial judges, but as examiners who hear and decide disputed claims and assist in the effective administration of Wis. Stat. ch. 102. Wis. Stat. § 102.18(2). Further, while the statutes do not specifically allow an ALJ to order further hearing, as ALJ Landowski points out, he does have the authority to appoint a tie-breaker doctor after hearing under Wis. Stat. § 102.17(1)(g). In other words, an ALJ is not necessarily limited to the record before him when the parties rest their cases.

Second, the commission notes its own authority to order the taking of additional evidence on its motion upon review. Wis. Stat. § 102.18(3). Though the commission finds it necessary to exercise that authority only infrequently, it has done so in exactly this type of case where there is some question about whether the alleged accident did occur. (2) Of course, the commission does not assert that its authority to order further hearing establishes that ALJs have such authority. Rather, the commission points to that authority as indicative what may reasonably be done "such as to secure the facts in as direct and simple a manner as possible" (3) or "assist in the effective administration" of Wis. Stat. ch 102.

Third, the commission has traditionally accorded ALJs a great deal of deference in deciding how they want to control their calendar. Neala Winchel v. Fransciscan Sisters, WC Claim No. 93066564 (LIRC, October 31, 1994); Cerny v. Stoughton Trailers, WC Claim No. 95017166 (LIRC, 1997). If the ALJ concludes he needed an additional day of hearing to obtain the facts to reach a decision, the commission is not inclined to substitute its judgment on that point. (4)

b. Causation.

This leaves the substantive issues. The applicant has spondylolisthesis, which of course is the forward displacement of one vertebra over the other. The condition may occur as the result of a congenital defect in the vertebral structure of the spine. It may also occur traumatically, but usually requires great force to be placed on the spine.

In this case, the ALJ specifically found that no such trauma occurred. He concluded that the genesis of the spondylolisthesis was indeed congenital. However, he found that occupational exposure caused the progression of the underlying spondylolisthesis pathology or condition.

The commission concurs with the ALJ's conclusion. The applicant worked with heavy paper rolls; indeed, the conceded accidental injury in 1990 occurred when the applicant was pushing a 300-pound paper roll. She also did considerable bending. Even IME Mlsna concedes the applicant's duties required a great deal of pushing and pulling of what appears to be somewhat heavy equipment, and that there was a lot of bending and lifting only some of which was light. (5)

Thomas Wascher, M.D., one of the applicant's treating doctors, found work causation by occupational disease; that is, that work exposure was at least a material contributory factor in the progression of the applicant's condition. He noted the conceded 1990 injury, as well as the applicant's duties of handling heavy paper cores and significant bending. Exhibit B, report of October 26, 1994. The applicant's job duties, of course, are relevant to a finding of disability by occupational disease which does not depend on any one accidental event, but on stress and strains over the entire course of employment.

Dr. Wascher's opinion is supported indirectly by IME Mlsna's opinion. While she concludes that there was no specific accidental event at work with sufficient force to cause the vertebral slippage or spondylolisthesis to occur, she did not rule out the possibility that work made the disability from that pathology or condition permanently worse. Dr. Mlsna, in fact, opined that the applicant's work could cause the applicant's condition to become more symptomatic. (6) Exhibit 1, page 6.

Against this, the respondent points out that the applicant, during treatment for her spondylolisthesis, began alleging an August 1994 work injury which the ALJ found did not actually happen. Indeed, two of her doctors (Julie Wilson, M.D., and James Rouse, D.C.) seem to base their opinions of causation on this injury. See Exhibits S and F (Wilson) and A (Rouse.)

However, the ALJ relied primarily on the opinion of Dr. Wascher, the treating surgeon. Dr. Wascher's report indicates he did not base his opinion on the disputed August 1994 injury, but also that he was not told about it. Indeed, the fact the applicant did not tell Dr. Wascher about the injury was one of the reasons the ALJ found it did not occur.

The respondent argues that Dr. Wascher did base his opinion on the disputed August 1994 injury because his practitioner's report contains a reference to the hearing application which mentions that date of injury. However, a fair reading of the doctor's attached narrative report of October 26, 1994, which he incorporates by reference, supports a finding of causation based on work activities over the entire course of employment. Again, Dr. Wascher's notes do not mention the August 1994 injury date. See Exhibit B, O, and 4.

c. Treatment of the 1986 injury.

The last, and most minor issue, is whether some work injury in 1986 made approximately $2,000 in chiropractic treatment in 1988-89 necessary. While the employer contends that the 1986 injury did not happen, medical treatment notes and the testimony of witnesses suggest otherwise. See April 15 transcript, pages 29 and 52. The commission affirms this aspect of the award as well.

cc: ATTORNEY STUART J SPAUDE

ATTORNEY GARY S STANISLAWSKI
ZILSKE LAW FIRM SC

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Footnotes:

(1)( Back ) See January 8, 1997 transcript, pages 3-4.

(2)( Back ) Metcalf v. Del Monte Corp., WC case no. 93057507 (LIRC, October 22, 1996).

(3)( Back ) Wis. Admin. Code § DWD 80.12(1)(a).

(4)( Back ) It appears the ALJ resolved the issues that led to the third day of hearing against the applicant by finding the two accidental injuries that were disputed did not occur. (Of the two accidental events the ALJ found did occur, the 1990 injury was conceded and the employer's witnesses admit the 1986 injury could have occurred.) One might conclude that the end effect of the third day of hearing was a finding more-or-less against the applicant.

(5)( Back ) Exhibit 1, report of IME Mlsna, page 5.

(6)( Back ) The commission recognizes that the doctor's statement may be construed to express the situation discussed in Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1971), which held that work activity does not cause disability if a pre-existing condition becomes manifested during normal exertive activity. However, the commission reads Dr. Mlsna's opinion to suggest that the work activity in fact caused the symptoms to progress rather than simply became manifest.