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

TIMOTHY H BARTEL, Applicant

UNITED PARCEL OAK CREEK, Employer

LIBERTY MUTUAL INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93041749

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Industry, Labor and Human Relations 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 3, 1996
barteti.wsd : 101 :  ND  � 3.4  � 3.42

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

a. Work related injury.

In his report dated February 4, 1994, Dr. Bauwens diagnosed the applicant's condition as degenerative disc disease on the basis of occupational exposure. He went on to assess permanent partial disability at 7.5 percent compared to permanent total disability, and set certain work restrictions.

The commission is satisfied that the administrative law judge's properly concluded that the applicant suffered a compensable work injury caused by an appreciable period of work place exposure. With respect to legal causation, an "occupational disease" is acquired as a result and an incident of working in an industry over an extended period of time. Rathjen v. Industrial Commission, 233 Wis. 452, 460 (1940); Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App., 1982). However, the applicant need not show that the work exposure was the only, or even the main, cause of his disability. All he needs to show is that the work exposure was a "material causative factor." Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (Ct. App., 1978).

This leaves the medical question of whether the applicant's bending and lifting over time was at least a material causative or contributory factor in the onset or progression of his disability. Dr. Bauwens, of course, answered that question "yes" in his note dated February 4, 1994, and no doctor specifically disputed work as the cause of the applicant's degenerative disc disease. Further, Dr. Bauwens' opinion is supported in medical literature which states that while disc degeneration is a natural consequence of aging, heavy work may also be a material causative factor in its onset and certainly its progression. The mechanical cause is the cumulative effect of years of "microtrauma" caused by repetitive bending and heavy lifting, even though the individual instances of "microtrauma" themselves are not painful. 1B Attorneys Textbook of Medicine, secs. 15.07 and 15.10 (1994).

Nonetheless, the respondent contends that inconsistencies in the applicant's testimony and medical history raise legitimate doubt concerning Dr. Bauwens' opinion. It first points out that the applicant did not complain of back pain when he saw first saw Dr. Bonner on June 1. Instead, he complained of pain in his right knee and "a sense of pulling from his right posterior thigh down into the calf, though he denies back pain." (1) Pain in the back of the right thigh, essentially from the buttocks to the back of the knee, was also noted in the June 2, 1993 report of physical therapist Meruer.

Although the knee pain improved, Dr. Bonner later noted continuing pain in the right thigh, particularly on June 11, 1993, when his treatment note show that he inquired again about past back pain. His note also contains the notation "SLR" which the commission assumes refers to the straight leg raising test, a common orthopedic test for intervertebral disc problems. (2) The straight leg test was negative and the applicant denied a history of back pain. However, the commission must conclude that early on Dr. Bonner appreciated that the applicant's lumbar spine might be involved in the persistent pain in the right thigh.

Dr. Bearden examined the applicant on July 7, 1993, and his notes mention "insidious onset of pain in gluteal region/right knee" and it appears he reviewed Dr. Bonner's history.

Dr. Bearden went on to diagnose "LS spine- moderately severe DJD/DDD," which the commission interprets to mean moderately severe degenerative joint disease or degenerative disc disease in the lumbar spine. Dr. Bearden recommended a CT scan to be certain.

It was also the pain in the right buttocks area to the calf that Dr. Frazin concentrated on when he examined the applicant in August 1993. By this time, the knee pain had resolved, although the applicant had reported back pain to his physical therapist. Dr. Frazin noted that the imaging tests showed degenerative changes in the back, which "might indeed be related" to the applicant's problem. When asked to give a diagnosis on a "Medical Report on Industrial Injury," Dr. Bonner eventually changed his diagnosis from right knee tendonitis to lumbar disc disease.

In short, after examining the medical reports offered by the respondent, the commission finds considerable support for Dr. Bauwens' diagnosis. Certainly, Drs. Bearden, Frazin and Bonner believed the applicant had degenerative disc disease in his lumbar spine. The fact that the applicant did not immediately suffer back pain did not prevent Drs. Bearden or Frazin from making that diagnosis.

The respondent goes on to question Dr. Bauwens' conclusion that the applicant's condition was in fact work-related. It argues that Dr. Bauwens did not have an accurate history, since his notes fail to reflect the fact the applicant only had leg symptoms when he stopped working and did not experience back symptoms until later. The respondent also pointed out that Dr. Bauwens inaccurately reported the applicant had no previous back pain, when in fact he suffered a low back pull sometime before July 1983 which resolved without physical therapy. Exhibit 3, page 27. The respondent also pointed out the physical therapists' concerns about the applicant's motivation.

However, none of these points gives rise to a legitimate doubt about causation. True, Dr. Bauwens' notes do not go in to detail as when which symptom arose. However, the applicant began experiencing leg pain extending from the knee to the buttocks at work; he nonetheless continued to work for some time; and he later developed back pain after stopping work. This history is not inconsistent with Dr. Bauwens' notes. Even if it were, the respondent offers no expert opinion to the effect that the occurrence of leg pain before the back pain, or the first occurrence of back pain after work ended, is significant on the issue of causation.

The pulled back muscle of more than ten years past also seems an unlikely basis for reversal. Again, the respondent asks the commission to speculate that that is somehow significant. No doctor has said it is. While the commission award compensation solely on a doctor's opinion based on a materially inaccurate history, it also must not use "cultivated intuition" to conclude that a history is materially inaccurate. Compare Pressed Steel Tank v. Industrial Commission, 255 Wis. 333, 335 (1949); Theisen v. Industrial Commission, 8 Wis. 2d 144, 153-56 (1959) and Leist v. LIRC, 183 Wis. 2d 450, 457-58 and 461-62 (1993).

Moreover, given that the applicant's physical therapists believed the applicant had tendonitis of the knee rather than degenerative disc disease, the commission does not wonder that he was not enthusiastic about his physical therapy. This point is best made by reference to the therapist's August 16 note that the applicant "dwelled on the concept that if he performs any task quickly his back bothered him if performed tasks quickly, esp. twisting motion." Exhibit 3, page 16. In fact, the x-rays and CT scan showing degenerative disc disease provided some basis for this "concept."

b. Extent of loss of earning capacity.

The respondent next argues that the commission should accept Dr. Bonner's opinion that the applicant could return to work without permanent disability as more credible than Dr. Bauwens' opinion fixing permanent restrictions. However, the commission cannot agree. First, Dr. Bonner's opinion is undercut somewhat by the fact that he originally diagnosed tendonitis in the right knee when he opined there was no permanent disability, but later changed his diagnosis to lumbar disc disease. Beyond that, Dr. Bonner's opinion that the applicant had no permanent disability is inconsistent not only with the applicant's credible testimony about continuing symptoms, but also with Dr. Frazin's reports indicating that the applicant in fact was left with continuing back pain even after receiving some relief from cortisone injections.

Finally, the respondent takes issue with the 50 percent rating for loss of earning capacity based on the opinion of its own expert, Rebecca Shane. The respondent asserts that the applicant is currently underemployed as a janitor, and that he could possibly find work paying more than the average post-injury wage estimated by Ms. Shane.

Ms. Shane based her opinion on a comparison of the applicant's pre-injury earning capacity with his estimated post- injury earning capacity, together with the factors set out in sec. 80.34, Wis. Adm. Code. She did not estimate loss of earning capacity based on the applicant's current wage as janitor, nor would her opinion have been credible if she considered only the wages at the high end of her range. The administrative law judge properly relied on Ms. Shane's opinion in determining the extent of loss of earning capacity.

cc: ATTORNEY JAMES C GALLANIS
AIKEN & SCOPTUR SC

ATTORNEY DAVID L STYER
KASDORF LEWIS & SWIETLIK SC

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Footnotes:

(1)( Back ) The commission assumes the history reported by the respondent is accurate. The earliest treatment note from Dr. Bonner in exhibit 3, the records of the Medical-Surgical Clinic is dated June 7, 1993.

(2)( Back ) 1B Attorney Textbook of Medicine, sec 15.24 (1) (1994).