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

PETER A BURKELAND, Applicant

MADISON FREIGHT SYSTEMS, Employer

TRANSPORTATION INSURANCE COMPANY, Insurer 

WEST BEND MUTUAL INSURANCE COMPANY, Insurer

WORKERS COMPENSATION DECISION
Claim Nos. 93011953, 94038061

The administrative law judge issued his findings of fact and interlocutory order in this case on July 15, 1994, following a hearing on June 20, 1994. This file involves two claim numbers: 93-011953 for an alleged accidental injury on December 6, 1991 while Transportation Insurance Company (Transportation) was on risk, and 94-038061 for an alleged occupational disease with a date of injury of February 5, 1993 while West Bend Mutual Insurance Company (West Bend) was on risk.

The employer and Transportation filed a petition for commission review of the administrative law judge's findings and order, alleging that the administrative law judge improperly apportioned liability in this case. The applicant also filed a petition, alleging a computational error and that the order was ambiguous with respect to reserved jurisdiction. Thereafter, the parties filed various answers and memoranda.

The parties stipulated to jurisdictional facts; an average weekly wage resulting in the maximum compensation rate for both temporary total and permanent partial disability; an accidental injury on December 6, 1991 affecting the applicant's right chest, right elbow and right wrist; and an occupational disease injury affecting the applicant's back with a date of injury of February 5, 1993.

At the hearing, West Bend conceded that the applicant was temporarily totally disabled from February 5 to May 1, 1993, but that it was liable for only half the compensation for that disability. It also conceded liability for permanent partial disability at 2.5 percent compared to permanent total disability to the body as a whole. West Bend apparently made some payments on these concessions at some point prior to the date of the hearing.

The issues are the nature and extent of disability (beyond that conceded), liability for medical expenses, and whether an interlocutory order is appropriate. Also at issue is whether liability may be apportioned between the two insurers.

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, conclusions of law and interlocutory order, and substitutes the following therefor:

FINDINGS OF FACT and CONCLUSIONS OF LAW

The applicant was born in 1940. He began working for the employer as a truck driver in 1983. He loaded and unloaded the trucks, mostly by moving pallets by using a pallet jack which he had to push and pull. Occasionally, he broke down individual pallets. He testified he moved weights up to 200 pounds, either by lifting or carrying them. The applicant himself is 5' 10" and weighed about 170 pounds when he was working.

The applicant hurt his back in July 1990 while moving a 150- pound barrel. He did not experience any radicular pain from this injury. The injury was diagnosed as a low back strain with a contusion, and he was kept off work for a couple of weeks. By September 1990, his doctor (Robert Alt, M.D.) noted resolution of back pain and full range of motion. The applicant testified that the 1990 injury cleared up without a problem.

The applicant was also injured at work on December 6, 1991. This injury occurred when the applicant was attempting to release a fifth wheel on his truck which was held in place by a pin. He attached a dock hook to the pin and pulled, but the hook slipped and the applicant flew backwards. He struck his elbow or shoulder on a trailer behind him and landed on his tailbone. He testified that the accident caused him to "hurt all over."

The accident occurred on a Friday. On Monday, December 9, 1991, the applicant first reported the injury to his employer and saw Dr. Alt about it. Dr. Alt's notes mention injuries to the chest, right hand and right elbow. The accident report mentions injury to those areas and the back as well. Dr. Alt allowed the applicant to return to work on December 9. The applicant saw Dr. Alt once more on December 16, 1991, at which time the doctor noted general improvement and residual tenderness. Significantly, Dr. Alt notes do not mention back complaint, even in the part of the notes that requests the applicant to describe the accident in his own words.

Although Dr. Alt saw the applicant on a few occasions in 1992, his notes do not mention back complaints at all until January 18, 1993. On that date, the applicant reported lower back pain and pain in the left knee, which he attributed to the December 1991 accident. Dr. Alt was skeptical about the work injury as a cause, though, noting that over a year had passed without any complaints except an offhand reference to knee pain in July 1992. Dr. Alt referred the applicant to an orthopedic specialist, Jeff Stitgen, M.D.

Dr. Stitgen first saw the applicant on February 1, 1993. The applicant related a history of swelling and pain in the left knee "since twisting it a year ago." The applicant also complained to Dr. Stitgen of lower back pain for about one year, since hitting it on a trailer while bending over. Dr. Stitgen diagnosed a back problem with pain referred to the knee. He noted that "straight leg raising" (1) was "positive at 30 degrees" and caused extreme pain in the leg. He ordered an MRI and physical therapy. He also stated that he "believe[d] that this back pain is related to an industrial injury which occurred a year ago."

The MRI showed a significant disc herniation at L4-5 and a smaller one at L5-S1. See Exhibit A, February 12, 1993 MRI examination report. Dr. Stitgen recommended trying steroid injections first, followed by percutaneous discectomy if that was possible given the size of the herniations. However, the injections gave only temporary relief, and the applicant's disc herniations were too large for a percutaneous discectomy. In a note dated August 13, 1993, Dr. Stitgen recommended an L4-5, L5-1 discectomy.

The applicant's last day of work was Friday, February 5, 1993. The applicant saw Dr. Alt the following Monday, February 8, and was taken off work for one week. The next week Dr. Stitgen took the applicant off work until April 1, 1993, which was two weeks after the last steroid injection. On March 31, 1993, Dr. Stitgen excused the applicant from work until his next appointment. The applicant remained off work to the date of the hearing.

The applicant saw Clifford Tribus, M.D., on February 3, 1994, for a second opinion about surgery. When Dr. Tribus first saw the applicant, the doctor noted the disc herniation. However, he held out hope that the applicant's symptoms might resolve with continued conservative treatment. When he re- examined the applicant in May 1994, Dr. Tribus still wanted to continue conservative treatment, noting gradually decreasing symptoms. However, he ordered another MRI which again showed herniations at L4-5 and L5-S1. Exhibit C.

The applicant had not yet had surgery as of the date of the hearing.

The primary issue in this case is whether the applicant's disability was caused by the December 1991 work injury, by occupational disease with an injury date in February 1993, or by both. The second, related issue is the amount each insurer is liable. In deciding these issues, the opinions of the medical experts are highly relevant.

In his treatment note from August 13, 1993, Dr. Stitgen stated that the applicant hurt his back at work while working on a trailer, and aggravated his condition with long distance driving and bouncing around in a cab. He concluded therefore that the applicant's condition was work-related. When asked subsequently to reconcile his history with Dr. Alt's (which did not mention back pain at the time of the injury), Dr. Stitgen responded that he had no reason to doubt the history given by the applicant.

In a letter dated December 15, 1993, Dr. Stitgen noted that the applicant had worked for the employer for nine years, and that his duties required heavy lifting, bending and riding in a truck. Dr. Stitgen opined that these factors, together with an injury at work, contributed to the applicant's back problem. He also offered the following opinion in Exhibit C, a letter dated April 19, 1994:

"Peter Burkeland is a patient of mine, who has a large bulge of his disc at L4-5 and L5-S1. This is confirmed with an MRI. I feel that this is work related. He works as a truck driver and injured his back at work on December 6, 1991. In addition to this, his job involves a lot of bouncing around in the cab as he drives over the road. Both of these problems are related to his back. I believe that 50% is due to the injury of December 6, 1991 and the other 50% is due to his work exposure."

The applicant was also evaluated by independent medical examiners for both insurers. The examiner for Transportation (who is on risk for the December 1991 accidental injury) was Gerald Gredler, M.D. He examined the applicant on May 17, 1993.

Dr. Gredler diagnosed herniated nucleus pulposus causing pain in the left buttock and leg. He stated that the applicant was unable to work at the time of the examination, that he anticipated a healing plateau within four months, and that a discectomy surgery could probably be delayed.

However, Dr. Gredler gave two opinions with respect to causation. He first indicated that the applicant suffered a herniation as a result of the December 1991 injury. He went on to opine that the applicant's symptoms were compatible with the diagnosis of disc herniation. He then stated:

"Given the patient's version of the injury and ongoing symptoms, it would be my opinion that the current problem is related to the work injury in question.

"However, it is hard to believe that someone with as significant disc protrusion as this patient had would not have sought out medical treatment and could have continued working without apparent problem. Considering only the medical records and the absence of treatment, I cannot state to a reasonable degree of certainty that the injury in question is responsible for the subsequently identified herniated disc."

Dr. Gredler then offered a supplemental report dated April 6, 1994, in which he opined that "heavy lifting, bending and riding in a truck could be an occupational aggravation and acceleration beyond normal progression."

The final opinion is given by Mark Aschliman, M.D., on behalf of West Bend (who was on risk when the applicant stopped working on February 5, 1993). Dr. Aschliman stated that the applicant's back pain is caused by the herniated discs at L4-5 and L5-S1. He also stated that the osteopenia (2) and the applicant's leukemia condition contributed to his back pain. He could not say it was probable that work caused the disc herniation. Rather, he opined that the discs herniated spontaneously, without any specific accident. He also opined that herniated discs "are a manifestation of [the applicant's] general decline physiologically." He did opine that the applicant's heavy lifting, bending and truck driving would have caused the spontaneous disc herniations to become symptomatic.

Dr. Aschliman estimated a plateau of healing on May 1, 1993, if there was no surgery. He stated the applicant was a poor surgical risk, but that if he had surgery, L4-5 and L5-S1 discectomies were the way to go. He also rated permanent partial disability at 5 percent, of which he attributed 2.5 percent to the applicant's pre-existing condition and 2.5 percent to his industrial activities. Dr. Aschliman went on to state that he would apportion 50 percent of the cause to the applicant's pre-existing condition and 50 percent to his industrial activities.

An occupational disease has been defined as being acquired as the 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 Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App., 1982). The supreme court has also found that an employer may be liable based on work activity which precipitates, aggravates and accelerates a preexisting degenerative condition beyond its normal progression. Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1968). On the other hand, the court of appeals has recognized that the distinction between these two theories of liability (and the contrast between accidents and disease) is not always precise, particularly in cases involving back injuries. Shelby, at 109 Wis. 2d 659-63. Further, the court recognized that occupational disease could be caused by a series of accidental back injuries. Shelby, at 109 Wis. 2d 663.

The commission concludes that the applicant's disability beginning with the first day of missed work on February 5, 1993 was caused by occupational disease. The commission reaches this conclusion for several reasons. First, while the applicant's testimony and the accident report (Exhibit G) support the finding that the applicant injured his back in December 1991, the fact remains that he did not mention back complaints to his doctor at the time, or in any subsequent visit until over a year later. The commission cannot conclude that the applicant would have continued to work, without complaint or medical treatment, for over a year if he had in fact herniated a spinal disc or discs in December 1991.

Rather, the commission views any December 1991 back injury as part of the occupational exposure that led to the development of the applicant's disabling occupational disease. This is consistent with the holding of the court of appeals in Shelby. In addition, Drs. Stitgen, Gredler and Aschliman attributed at least a part of the applicant's condition to occupational exposure or activities over time, in one way or another. Although none of the doctor's opinions contain the precise wording set out in Rathjen, the commission is satisfied that the record here establishes that the elements of an occupational disease are present.

The commission further concludes that this record does not support apportionment between the occupational disease manifesting itself on February 5, 1993, and the earlier traumatic injury. While the commission does not completely discount the applicant's testimony that his back hurt to some extent after the December 1991 injury, any injury then would have been part of the progression of the occupational disease. In addition, because the applicant did not report back symptoms to Dr. Alt immediately after the December 1991 injury, the record supports neither the conclusion that injury caused half of the disc herniation nor Dr. Stitgen's assignment of one-half of the applicant's disability to it.

Consequently, the commission places the entire liability for the disability and medical treatment after the applicant's last day of work upon the insurer at risk for the occupational disease manifesting itself at that time, West Bend. Transportation is not liable for amounts awarded under this decision.

The next issue is the extent of temporary total disability. The period of temporary total disability in this case began on February 5, 1993, his last day of work before Dr. Alt released him from work on February 8, 1993. The applicant contended at the hearing that he was still temporarily and totally disabled. However, the administrative law judge rejected this contention. He noted that the applicant had accepted 25 weeks of permanent partial disability paid by West Bend under Dr. Aschliman's opinion. Dr. Aschliman's permanent partial disability rating implies a healing plateau at least by the date the rating was made, May 3, 1994. The fact that Dr. Stitgen felt able to apportion disability by April 1994 also suggests that the applicant's condition had stabilized or was stabilizing by about that time. The commission finds the administrative law judge's reasoning persuasive on this point, and adopts May 4, 1994, as the end of the healing period.

The commission therefore finds that the applicant was temporarily and totally disabled during the period between February 5, 1993 and May 4, 1994, a total of 64 weeks and 3 days. The award shall be paid at the maximum rate for temporary total disability from injuries occurring in 1993, $450 per week. This results in a total award for temporary total disability of $29,025.

The next issue is the extent of permanent partial disability. As the administrative law judge pointed out, the only doctor to give a permanency rating was Dr. Aschliman, and he rated permanent disability at five percent compared to permanent total disability to the body as a whole. The commission accepts this rating. The permanent partial disability award began to accrue as of May 4, 1994, the end of the healing period.

The commission therefore finds that the applicant has a permanent partial disability on a functional basis of five percent compared to permanent total disability to the body as a whole. The award for permanent partial disability amounts to 50 weeks of disability at the statutory maximum for permanent total disability from an injury occurring in 1993, $152 per week. The total award for permanent partial disability under this order amounts to $7,600. As of February 1, 1995, 39 weeks of permanent partial disability have accrued amounting to $5,928.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the disputed temporary total and permanent partial benefits awarded. Although West Bend conceded certain amounts of disability at hearing, the amounts were in dispute prior to that point. As a result, the applicant's attorney is entitled to a 20 percent fee on the total amount of disability awarded in this decision. Section IND 80.43 (4), Wis. Adm. Code. The gross fee is thus $7,325 {20 percent of ($29,025 plus $7,600)}. Of that amount, only the fee attributable to temporary total disability and the first 39 weeks of permanent partial disability have accrued by February 1, 1995. As a result, the fee is subject to an interest credit of $2.69, leaving a net fee which reflects its present value of $7,322.31. In addition, the applicant's attorney is entitled to costs of $216.87. The fees and costs shall be deducted from the applicant's award and paid to his attorney within 30 days.

The amount payable to the applicant within 30 days is $27,745.53. This is determined by adding the temporary total disability benefits of $29,025 to the permanent partial disability benefits of $5,928 accrued as of February 1, 1995. From this total ($34,953) must be subtracted legal costs of $216.87 and the accrued fees of $6,990.60, leaving the sum of $27,745.53.

The amount remaining to be paid to the applicant as it accrues beginning on February 1, 1995 is $1,337.60. This is determined by starting with the total award for permanent partial disability ($7,600) and subtracting the amount of permanent partial disability accrued to February 1, 1995 ($5,928), to obtain the unaccrued permanent partial disability ($1,672). From this must be subtracted the unaccrued attorney fee without deducting the interest credit ($334.40), leaving $1,337.60. This amount shall be paid to the applicant in monthly installments of $658.67, beginning March 1, 1995.

The next issue is medical expenses. The applicant incurred medical treatment expenses from Dean Clinic of $2,114.00; of that amount, $2,046.70 was paid by Wisconsin Physicians Service (WPS), $62.00 was written off, and $5.30 remains unpaid. The applicant incurred $895 in medical treatment expenses from Turville Bay MRI, all of which was paid by WPS. The applicant also incurred $605 in medical expenses from Affiliated UW Physicians; of that amount $261.67 was paid by WPS, $45.64 was written off, and $297.69 remains unpaid. The applicant incurred $1,791.80 in medical expenses from UW Hospital & Clinics; of that amount $828.30 was paid by WPS and $963.50 remains unpaid. The applicant also incurred $177.00 in medical treatment expenses from Madison Radiologists, all of which was paid by WPS.

The final issue is the extent of retained jurisdiction under an interlocutory order. Drs. Stitgen and Gredler indicated that further treatment, including surgery, would likely be required. Jurisdiction is retained to issue additional orders for future medical expense and possible additional permanent and temporary disability as a result. Finally, jurisdiction is retained for possible vocational rehabilitation and loss of earning capacity claims.

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 in part and reversed in part.

Within 30 days from the date of the decision, the employer and West Bend Mutual Insurance Company shall pay all of the following:

(1) To the applicant, Peter A. Burkeland, the sum of Twenty-seven thousand seven hundred forty-five dollars and fifty-three cents ($27,745.53) for disability.

(2) To the applicant's attorney, Gregory Meyer, the sum of Seven thousand three hundred twenty-two dollars and thirty-one cents ($7,322.31) as attorney fees, and Two hundred sixteen dollars and eighty-seven cents ($216.87) in legal costs.

(3) To Dean Clinic, the sum of Five dollars and thirty cents ($5.30) for medical expenses.

(4) To Affiliated UW Physicians, the sum of Two hundred ninety-seven dollars and sixty-nine cents ($297.69) for medical expenses.

(5) To UW Hospitals and Clinics, the sum of Nine hundred sixty-three dollars and fifty cents ($963.50) for medical expenses.

(6) To Wisconsin Physicians Service, the sum of Four thousand two hundred eight dollars and sixty-seven cents ($4,208.67) for reimbursement of medical expenses paid.

Beginning on March 1, 1995, and continuing on the first day of each month thereafter, the employer and insurer West Bend Mutual Insurance Company shall pay the applicant Six hundred fifty-eight dollars and sixty-seven cents ($658.67) each month until the sum of One thousand three hundred thirty-seven dollars and sixty cents ($1,337.60) has been paid.

West Bend Mutual Insurance Company is entitled to a credit for any amounts it has already paid towards its liability under this decision.

Jurisdiction is retained to issue such further orders as may be warranted, consistent with this decision.

Dated and mailed February 26, 1995
burkepe3.wrr : 101 : 8 ND § 3.43

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge explained that he did not credit Dr. Gredler's opinion submitted by Transportation because he found that Dr. Gredler had changed his mind, first opining that the applicant's disability was related to the December 1991 injury and then opining it was not. The administrative law judge based this finding on an admission from Transportation's attorney that Dr. Gredler had changed his mind, when the attorney was confronted at the hearing with the apparent inconsistency between the two paragraphs of the CAUSATION section in the SUMMARY of Dr. Gredler's May 17, 1993 report.

The commission is not certain, however, that Dr. Gredler's opinion is necessarily inconsistent, or that he changed his mind. Rather, his opinion could be read as giving two medical opinions, depending on whether the applicant's history of pain between December 1991 and January 1993 is accepted as credible. The credibility of the applicant's history is not necessarily an expert medical opinion.

However, even accepting the admission of Transportation's attorney that Dr. Gredler "changed his mind", that does not mean his opinion must completely be disregarded. The fact remains that the initial reports from Dr. Alt following the December 1991 injury do not mention back pain. Nor is the back mentioned at all until over one year later in January 18, 1993, at which time Dr. Alt's notes indicate some reluctance to associate the January 1993 complaints with the December 1991 injury.

The commission appreciates that the accident report filed shortly after the accident mentions back pain, and that the applicant testified that the December 1991 injury left the him with back pain. However, the commission cannot conclude that the injury caused permanent disability or permanent changes to his back, given the record in this case. Finally, the commission declines to apportion in this case, noting that the statute and reported cases dealing with apportionment do not cover the situation where a condition affected to some extent by an accidental injury later develops into an occupational disease after additional occupational exposure.

Finally, the applicant's petition cites two drafting errors in the administrative law judge's decision. The applicant's attorney requested some modifications, to which neither insurer objected. In his synopsis of the hearing testimony, the administrative law judge states that the assertions in the applicant's petition were correct, and that the problems identified were caused inadvertently. After reviewing the record, the commission agrees, and its order incorporates the changes requested by the applicant.

cc: ATTORNEY JOHN H SCHMID JR
AXLEY BRYNELSON

ATTORNEY GREGORY MEYER
STAFFORD & NEAL SC

ATTORNEY MARK H MILLER
LAW OFFICES OF MARK H MILLER

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Footnotes:

(1)( Back ) An orthopedic test for disc disease.

(2)( Back ) Reduced bone mass that Dr. Aschliman noted on the MRI.