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

TODD E LANGE, Applicant

IDEAL DOOR COMPANY, Employer

FIREMANS FUND INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 91003958

The administrative law judge issued his findings of fact and interlocutory order in this case on September 29, 1993, following a hearing on July 13 and 14, 1993. The applicant submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $296 as of the date of injury, and a December 12, 1990 compensable injury. The respondent conceded and paid $6,550 for a permanent partial disability at five percent compared to permanent total disability, as well as medical expenses through January 1, 1992.

The issues are the nature and extent of disability beyond that conceded, liability for medical expenses beyond those conceded and indemnity for vocational rehabilitation under secs. 102.61 and 102.43 (5), Stats.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT

The applicant was born on July 18, 1967, and began working for the employer in August of 1990. He suffered a conceded work injury on December 12, 1990, when he hurt to his back while loading a garage door weighing about 150 pounds. At the time of the injury, the applicant was 23 years old and earned $7.40. The employer referred him to Ramsey Clinic-Baldwin where he was treated first by Charles Folkestadt, M.D., and then by Gregory Estlund, M.D. Dr. Folkestadt released the applicant to return to light duty on December 17, 1990.

Following the December 1990 injury, the applicant complained of lower back pain when he bent at the waist. He improved and stabilized in January and February of 1991. However, an MRI done on January 9, 1991 showed "degenerative disc disease at L4-5, L5, S1 with small focal disc herniation on the right at L4-5 with impingement in vertical [s]egment of the right L5 nerve." See Ramsey Clinic-Baldwin notes for January 14, 1991. Dr. Estlund noted that the applicant was stable and in no acute distress, but "existing conditions precludes [sic] his return to his usual activities." Dr. Estlund also noted that the applicant's work activities, even on light duty, exacerbated his condition. He imposed restrictions against lifting over 20 pounds, any repetitive twisting, turning or bending. See Ramsey Clinic notes for February 6, 1991.

The next reference to the applicant's back in his medical records from Ramsey Clinic followed a visit on Monday, August 5, 1991, when he complained of acute pain after cutting cable on the preceding Thursday and Friday, as well as chopping wood and golfing on the intervening weekend. Dr. Estlund advised him to take care of his back, avoid strenuous activities and take care in sporting activities such as golf. The doctor also noted that the applicant was on light duty at work. No further treatment was sought for this episode of pain.

The applicant next saw Dr. Estlund about his back for an "F/U on back" [follow-up visit?] on January 8, 1992. Dr. Estlund reported that the applicant believed he was "able to do more in terms of work as his back has had no further symptoms," except occasional twinges in the lower right lumbar region of his back with bending and lifting. Dr. Estlund loosened the applicant's lifting restriction to 50 pounds, but continued the restriction against repetitive flexion and twisting. The applicant testified he sought the fifty-pound lifting restriction so he could get a different assignment from the employer.

The applicant testified that his pain began again shortly thereafter. As an alternative to treatment by Dr. Estlund, the applicant saw a chiropractor, Douglas E. Jacot, on January 16, 18, 21, 23, 25, 28 and 30, 1992. Dr. Jacot noted the applicant's history of a recent flare-up at work of the applicant's December 1990 injury. He diagnosed mild lumbar pain and did manipulations. On January 18, 1992, Dr. Jacot completed a return to work recommendation report diagnosing an L4-5 disc herniation and restricting the applicant to light work (lifting a maximum of 20 pounds with frequent lifting or carrying of objects weighing 20 pounds.) He restricted the employe to occasional twisting, climbing, bending and squatting. He opined that his treatment was made necessary by the recent work exacerbation of the December 1990 injury. He also noted progressively decreasing pain through January 30, 1992.

On January 31, 1992, the applicant slipped and fell on some ice outside his friend's house while off duty. He re-injured his back and sought treatment at a hospital emergency room. The hospital discharge summary prepared by Dr. Debra Strodhoff on February 2 states that the slip and fall occurred after the applicant had drunk beer.

The applicant, however, denied drinking beer before falling in his testimony. He testified that he fell on the ice after helping a friend do auto repairs, experienced pain, and then lay down and drank beer to ease the pain. Significantly, the applicant told one of the respondent's independent medical examiners, David B. Ketroser, M.D., that he slipped on the ice after drinking beer at a friend's house. See Exhibit 2, page 2.

Following the off-duty fall, the applicant was hospitalized from January 31 to February 2, 1992. He experienced an immediate increase in pain as well as symptoms of radiculopathy and "foot drop" causing a limp. Although the file apparently does not contain the actual records, the applicant returned to Dr. Estlund in February 1992. He ordered a second MRI which showed significant changes from the January 1991 MRI. Specifically, the February 1992 MRI showed a large disc herniation at L4-5 with an extruded fragment.

The applicant then began treating with Rolf Bjornson, M.D., apparently because he moved, in March of 1992. Dr. Bjornson referred the applicant to a neurosurgeon, William Ganz, M.D., and an orthopedic surgeon Thomas Rieser, M.D. Although the applicant testified that he was referred to Dr. Rieser by Dr. Estlund, this evidently was not the case. Both doctors addressed or copied their initial opinion letters to Dr. Bjornson, not Dr. Estlund. Drs. Rieser and Ganz both noted the large disc herniation and raised the possibility of surgery.

Several practitioners have provided reports dealing with the applicant's condition. Chiropractor Jacot noted the applicant's December 1990 injury, the January 15, 1992 aggravation, and the January 31, 1992 fall at work. He stated that the January 1992 fall caused an exacerbation of the earlier injury, and that residual effects from the December 1990 injury caused the extruded fragment and right leg radiculopathy noted after the January 1992 fall. He assessed permanent partial disability at 30 percent compared to disability to the body as a whole. Applicant's Exhibit A.

At the hearing, Dr. Jacot testified that he had recently examined the applicant. He reiterated his opinion that the applicant did not suffer a new injury on January 31, but merely an exacerbation of or residual effects from December 1990 injury. He based this opinion on the similarity in symptoms, although the applicant did not have "foot drop" prior to the January 31 fall, or the same degree of radiculopathy into his right extremity. Dr. Jacot also testified that he did not believe the applicant would have herniated a disc from slipping on the ice if he had not had the small herniation at work earlier, especially given his age at the time of the fall. He also stated that it was unlikely that the fall aggravated some independent pre-existing degenerative disease since the degenerative changes were only at the level affected by the December 1990 work injury.

The file also contains a practitioner's report from Dr. Rieser. He states that the December 1990 injury "was significantly aggravated in January 1992 when [the applicant] fell on some ice at a friend's home." He assessed a 14.5 percent disability to the body as a whole, which he apportioned 65 percent to the December 1992 injury and 35 percent to the aggravation in 1992. He set a 20 pound lifting restriction with further restrictions against repetitive bending, lifting and stretching, and totally prohibiting twisting. He also raised the possibility of surgical decompression. Applicant's Exhibit B.

Dr. Ganz also submitted a practitioner's report, Exhibit C. He stated that the applicant experienced pain on December 12, 1990, while unloading trucks and a disc herniation with nerve root impingement was ultimately diagnosed. He described the applicant's condition as chronic back and right leg pain since the December 1990 lifting injury (even though Dr. Estlund's notes do not mention pain below the buttock prior to January 31, 1992). Dr. Ganz described the January 1992 fall as an exacerbation. He went on to opine that the applicant's "large herniated nucleus pulposus on right side at L4-5 with compression of right L5 nerve root with chronic back and right leg pain and weakness of right foot" were directly attributable to the December 1990 lifting injury. He estimated a 30 percent whole body disability, which might be significantly reduced by a hemilaminectomy and discectomy.

The applicant also submitted a letter from his original treating physician, Dr. Estlund, dated February 6, 1992. Dr. Estlund writes:

Please be advised that [the applicant] has aggravated his low back injury of last year by recent fall. He has marked discomfort, similar pattern to previous illness. Have kept him off of work with this because of marked spasm, pain, pain radiating through the right leg. This injury of minor significance, complicated by the patient's pre-existing disc condition, has left him with severe disability.

Applicant's Exhibit I.

The respondent submitted two reports from independent medical examiners. The first, authored by Richard F. Galbraith, M.D., states that the applicant had an initial injury at work on December 12 and 13, 1990, which was aggravated in January 1991, August 1992, January 16, 1992, and January 31, 1992. He recommended surgery and did not fix permanent disability. He described the January 1992 fall as a "secondary aggravation of the pre-existing condition" which:

"hastened the fact that he had (by MRI scan of January 9, 1991) a small herniated disc at L4-5 and then the second MRI carried out on 3/2/92, following his fall, showed a large herniated disc and I suspect that the disc was popped out significantly on the January 31, 1992, fall as he had low back and right leg pain and had hospitalization on that occasion... He also developed a right foot drop on that occasion....

Exhibit 1. The doctor went on to state:

This patient's current disability and restrictions are primarily related to the original injury sustained on December 12, 1990. But there was a definite exacerbation of his symptoms when he fell in January 31, 1992. He already had a herniated disc present at that level, and the fall simply aggravated and popped it out completely.... I think he was predestined to have further problems with his back on the basis of medical history and frequent flare-ups over the year-and-one half plus preceding that 01/31/92 fall.

Dr. Galbraith subsequently issued a letter dated June 30, 1993, which stated that he believed the applicant's January 1992 fall caused a nonwork-related injury that caused an aggravation, acceleration and precipitation of a pre-existing progressively degenerative condition under the Lewellyn case. The administrative law judge did not allow the report into evidence because it was submitted fewer than fifteen days before the hearing.

The final medical opinion is from Dr. David B. Ketroser who stated that the applicant had a mild L4-5 disc herniation after the December 12, 1990 injury "which was significantly worsened by the fall on January 31, 1992, such that the applicant currently has a free fragment disc herniation at that level, with more significant nerve root compression at L5-S1." He described causation as follows:

"By history, the cause of the patient's initial right L4-5 disc herniation with right L5 nerve root impingement was the incident described at work on December 12, 1990. The clinically significant worsening of that condition, which led to additional treatment and testing, was the fall on January 31, 1992."

Dr. Ketroser assessed a 3 percent disability due to the original disc herniation and an 8 percent rating, assuming no injury, after the January 31, 1992 fall. He assessed a 50 pound maximum lifting restriction, with not more than 30 pounds on a frequent basis, and no frequent low back flexion. Exhibit 2.

The main dispute in this case involves the respondent's liability for the off-duty fall. This issue, in turn, depends on whether the commission believes the injury and disability after the January 31, 1992 fall was the result of an "intervening cause," or was causally related to the December 1990 injury at work.

If the commission were to treat the slip and fall as an "intervening cause" of continued disability, any additional disability attributable to the fall would not be compensable. The supreme court has applied the "intervening cause" doctrine to deny compensation for reinjury caused by a worker's voluntary act, entered into with knowledge, that places him or her in a situation in which reinjury is foreseeable. Kill v. Industrial Commission, 160 Wis. 549, 553 (1915). See also: Neal & Danas, Worker's Compensation Handbook, section 3.37 (1992); 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). Thus, additional compensation upon reinjury may be denied in cases where the activity that triggers the reinjury is "rash" or negligent in light of the applicant's knowledge of his condition. Larson, at sections 13.11 (a) and 13.22 (a). In Kill, for example, the applicant engaged in a prize fight that tore open and infected a wound from an earlier work-related injury.

On the other hand, a reinjury may be compensable if it is caused by the weakened condition of a worker, or where the work-related injury made the worker more vulnerable to reinjury, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 608-09 (1929) and Burton v. ILHR Department, 43 Wis. 2d 218, 228-228a (1969). In Burton, for example, a fireman who injured himself when he slid down a firepole was found to have so weakened the disc structure so that a disc protrusion caused by sneezing attack nearly a year later was held to be compensable.

Likewise, Professor Larson states that an off-duty reinjury is compensable when "the episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury." 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). In Wisconsin, if medical proof establishes that the residual effects of a compensable injury cause a subsequent off the job reinjury, the employer is liable for the subsequent reinjury. In such cases, courts will examine whether the work injury is a "substantial factor" in the off-duty reinjury. Neal and Danas, at section 3.37.

In this case, the commission accepts Dr. Ketroser's report as most credible. On this point, the commission notes the fact that the applicant's back condition was relatively stable, if not improving, prior to January 31, 1992. This is shown Dr. Estlund's January 8, 1992 report of decreasing symptoms and the fact that the doctor loosened the applicant's lifting restrictions on that date. Moreover, the applicant had seen Dr. Estlund on only one other occasion between March 1991 and January 1992. Dr. Ketroser's opinion is also supported by the fact that the applicant experienced a number of new symptoms after the January 31 fall, including foot drop and radiation of pain to the right leg. True, the applicant suffered an exacerbation in mid-January 1992, for which he was treated by Dr. Jacot, but that was resolving quickly before the January 31 fall. The commission concludes that the January 31 fall alone was responsible for the dramatic change in the spine shown on the February 1992 MRI.

Further, the commission concludes that the applicant in fact drank beer on January 31 before falling, rather than afterward. The commission is unwilling to conclude that the notes of both Drs. Strodhoff and Ketroser are wrong on this point. The commission also asked the presiding administrative law judge about his impression of the credibility of the witness on this point, and the administrative law judge indicated he believed the applicant was drinking before the fall. The commission does not deny compensation solely because drinking beer and walking on the ice were voluntary acts causally related to the slip and fall that caused the January 31 injury. However, the commission concludes that the applicant should have known that those acts placed him at a greater risk of reinjury.

Under the circumstances, the commission concludes that the slip and fall on January 31, 1992, was an intervening cause barring compensation for treatment and increased disability after that date. The December 12, 1990 conceded work injury was not a substantial factor in the increased disability or progression of the applicant's condition after the off-duty fall.

The next issue is the extent of permanent partial disability attributable to the December 12, 1990 injury. Only Drs. Rieser and Ketroser gave admissible opinions on permanent partial disability before the January 31 injury. Dr. Ketroser assessed a 14.5 percent rating altogether, of which he attributed 65 percent to the December 1990 work injury and 35 percent to the January 1992 aggravation. This would work out to 9.425 rating for the applicant's condition before fall on the January 31, 1992. Dr. Ketroser, as noted above, assessed 3 percent. The respondent conceded and paid for a five percent permanent partial disability.

The commission concludes the applicant suffered not more than a five percent permanent partial disability by virtue of the December 1990 work injury. Surgery had not been recommended prior to January 31; the applicant's symptoms were mild, according to the January 8, 1992 note of Dr. Estlund and the January 25 and 28 notes of Dr. Jacot; and Dr. Estlund's work restrictions suggest impairment at a level closer to that given by Dr. Ketroser than Dr. Rieser. Five percent is the minimum rate paid for a successful laminectomy and seems an appropriate measure in this case.

The next issue is the extent of loss of earning capacity. The administrative law judge did not reach the issue, but left his order interlocutory to allow the applicant to raise this claim at a later point. He noted that a vocational rehabilitation claim was pending, and noted that the employer had offered the applicant reemployment at a wage within 85 percent of his pre-injury wage.

The applicant concedes that while the wage offered, $6.32 per hour, was within 85 percent of the $7.40 per hour that the applicant earned at the time of his original injury in December 1990. However, he argues the wage was less than 85 percent of the $8.77 per hour he earned around the time of his reinjury in January 1992 or the $9.81 per hour he earned at the time of his separation from the employer in November 1992. However, the statute clearly requires a computation of wage loss based on actual earnings at the time of the injury, sec. 102.44 (6)(a), Stats. At the time of the compensable injury in this case, the applicant was earning $7.40 per hour.

Finally, the applicant argues that the employer's offer was not in good faith, pointing out that the offered wage of $6.32 per hour was made at the hearing and represented a considerable reduction from his most recent wage with the same employer. While it is true that sec. 102.44 (6)(g), Stats., requires that a job offer be made in good faith, the commission cannot find that the employer acted in bad faith on the record before it.

The remaining issue is medical expenses. None are awarded for treatment of the noncompensable January 31, 1992, injury. Becuase all the bills for treatment after that date involve treatment of the noncompensable injury, the respondent is not liable for them.

However, the applicant submits a bill of $511.89 from Baldwin Chiropractic Health Center, s. c., for treatment by Dr. Jacot from January 18 to 30, 1992. The bill has been paid by the applicant's health insurer, Blue Cross Blue Shield. Dr. Jacot was the applicant's second choice under sec. 102.42 (2), Stats., not the first as the applicant argues. The fact that the employer referred the applicant to the Ramsey Clinic did make the applicant's treatment there involuntary or not chosen (especially since he treated there in August 1991 for bronchitis unrelated to his work injury.) However, even though his treatment with Dr. Jacot was a second choice, the applicant needed only to provide notice to the employer of that choice under sec. 102.42 (2), Stats., and the commission has consistently held that advance notice is not required. Moreover, the respondent does not specifically contest payment for the treatment rendered by Dr. Jacot in its brief. The commission concludes the treatment was reasonable and necessary, and that Blue Cross Blue Shield is thus entitled to reimbursement for it.

Exhibit E also indicates that the applicant paid $48.60 for drugs prescribed by Dr. Folkestadt in December 1990. He is entitled to reimbursement for this expense. The only other bill for service rendered before January 31, 1992 is from the Ramsey Clinic in the amount of $70.00. However, the commission cannot tell what services this bill is associated with, so reimbursement of it is not ordered.

In sum, no benefits for additional permanent partial disability beyond that conceded are awarded. Medical expenses are awarded consistent with this decision. An interlocutory order is appropriate to preserve future claims with respect to indemnity under the vocational rehabilitation law, her loss of earning capacity claim, and future medical expenses.

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

INTERLOCUTORY ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed.

Within 30 days from the date of this decision, the employer and insurer shall pay, as reimbursement for medical treatment expenses, Forty-eight dollars and sixty cents ($48.60) to the applicant and Five hundred eleven dollars and sixty-nine cents ($511.69) to Blue Cross Blue Shield.

Jurisdiction is reserved to permit further hearings, findings and orders with respect to: indemnity during vocational rehabilitation under secs. 102.61 and 102.43 (5), Stats.; permanent partial partial disability for loss of earning capacity during the statute of limitations under sec. 102.44 (6), Stats.; and future medical treatment expenses under sec. 102.42, Stats.

Dated and mailed at Madison, WI, September 29, 1994
ND § 3.38

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

cc: ATTORNEY THOMAS J NIEMIEC
BASSFORD HECKT LOCKHART TRUESDELL & BRIGGS PA

ATTORNEY MICHAEL P WAGNER
MICHAEL P WAGNER & ASSOCIATES

Appealed to Circuit Court, which affirmed.  Appealed to Court of Appeals; reversed and remanded sub nom. Todd E. Lange v.  LIRC, Ideal Door Company and Fireman's Fund Ins. Co. 215 Wis. 2d 561, 573 N.W.2d 856 (Ct. App., 1997).

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