Wis.LIRC WC Decision: Salerno - May 5, 1999 - ND � 3.34 - Idiopathic Fall - applicant experienced onset of pain with abrupt head turn in response to exploding machine - involuntary movement the result of a force external to the applicant

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

GENISE SALERNO, Applicant

MACWHYTE WIRE ROPE CO, Employer
AMSTED IND

MACWHYTE WIRE ROPE CO, Insurer
AMSTED IND

WORKER'S COMPENSATION DECISION
Claim No. 1997044384

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 May 5, 1999
salerno.wsd : 101 : 7 ND � 3.34

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant injured her neck in an off-duty automobile accident in May 1995. She required considerable treatment and had residual symptoms. An MRI done in June 1996 did not disclose a herniated cervical disc. The applicant was able to return to work.

The applicant testified, credibly according to the ALJ, that on August 2 , 1996, she turned her head sharply at work in response to a machine which began making a funny noise and began spewing out parts. Her neck pain was greatly exacerbated thereafter. An MRI done shortly after the August 1996 work incident disclosed a herniated cervical disc which was surgically repaired. The question here, essentially, is whether the employer and its insurer are liable for medical expense and disability benefits arising from the herniated disc.

The ALJ found for the applicant. The employer and insurer (collectively, the respondent) appeals, argues that the problem arising in August 1996 was simply a manifestation of the May 1995 injury, and that the neck turn was simply an "idiopathic event" not occurring in a "special zone of danger" posed by work. Because the ALJ failed to consider the idiopathic nature of the injury, the respondent contends, he erred in finding the injury arose out of employment. The respondent also asserts that the ALJ also failed to consider the evidence of the applicant's condition after the car accident, and that he erroneously considered Dr. Cusick's opinion credible.

a. Idiopathic injury?

For analytic purposes, the commission starts with the employer's assertion that the injury was idiopathic in nature. "Idiopathic" in this context means some force or thing peculiar to an individual. In worker's compensation, an injury is idiopathic when it arises from a force or source solely personal to the individual.

The term is best understood in its most common usage -- an idiopathic fall. An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work. The fall did not occur because of any special danger posed by work, such as a slippery floor, stairs, an incline or unlevel surface, or clutter. Rather, the person fell for some unknown reason, or because of an idiopathic weakness. In such cases, the employer is not liable for injuries caused by the fall. However, where the fall occurs because of an object on the floor, or while the applicant is in a zone of special danger, it "arises out of employment" and is compensable. See, generally, Kraynick v. Industrial Comm., 34 Wis. 2d 107 (1967) and Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969).

The employer's brief cites the example of a person's back going out when he arises from a seated position at work. Witkowski v. Arps Mfg., WC Claim No. 86- 387831 (LIRC 1988). Arising from a chair usually does not pose a special danger; thus, the commission found a compensable work injury did not occur in Witkowski. An injury occurring with a sneeze at work from a head cold could also be viewed as idiopathic, as could an injury occurring when someone simply turns his head.

However, the applicant is not claiming an injury from simply turning her head. She is claiming an injury from a sharp head turn caused in response to a strange noise occurring when parts began spewing out of her machine after it blew its top. This type of involuntary movement would be the result of a force external to the applicant, and would not be idiopathic. A sharp turn in response to an "exploding machine" simply is not the same as turning one's head in conversation with a co- worker, or to look at the clock.

Thus, the question is whether such a sharp turn occurred. The commission must conclude it did, noting little evidence to the contrary.

The applicant told Ms. Zahn on the date of injury that she turned her head sharply in response to the "exploding" machine on the date of injury (Exhibit 11 and testimony of Ms. Zahn); she told Dr. Tsuchiya she turned her head when parts started to fly around (Exhibit 3); she told Dr. Larson the pain started when she twisted her head abruptly (Exhibit 3, report of Dr. Larson dated August 19, 1996); and she testified she turned her head sharply as she heard the parts coming out of the machine. The commission conferred with the presiding ALJ, and he reported he regarded the applicant as a very credible witness. Against this, the employer offers Exhibit 11 to the effect that Simmons told a supervisor whose name began with "F" that the applicant said her pain started when she turned her head to talk about coffee, and F wrote it down on the supervisor's report. Exhibit 12. Neither Simmons nor F testified at the hearing.

On this record, the commission concludes the applicant experienced the onset of pain with the abrupt head turn in response to the exploding machine on the date of injury. The commission further concludes the applicant's injury was not idiopathic. The next question, then, is whether the abrupt head turn in response to the noisy or "exploding" machine caused the herniated disc.

b. Expert medical opinion.

The respondent asserts on appeal that the report of its independent medical examiner, Thomas Grossman, M.D., credibly opined the applicant's problems were due to the May 1995 car accident. Dr. Grossman notes both the applicant's description of pain occurring with a rapid turn due to machine problems and the supervisory accident investigation form describing a turn to see a fellow employe in a conversation about coffee; Dr. Grossman also reports these descriptions are in conflict. Exhibit 1, report of Dr. Grossman, page 12. However, Dr. Grossman apparently accepted the version recorded in the supervisory accident investigation form, as he reports:

"The workplace event as described is to my opinion low velocity, low energy and as such it would not be expect[ed] to have imparted significant energy to the cervical spine. If significant energy is not imparted to the cervical spine it is unlikely that significant injury occurred. I believe that the August 2, 1996 event is a manifestation of a pre-existing degenerative condition."

Exhibit 1, page 12. Dr. Grossman elsewhere described the work incident as "responding to the co-worker's inquiry." Exhibit 1, page 13, point 3.

As noted above, however, the commission concludes that the applicant felt the onset of pain with a sharp turn in response to machine problems, not a conversational head turn. Consequently, the work incident on August 2, 1996 was not the "low level, low energy event" assumed by Dr. Grossman. (1 )

The report of Dr. Cusick, upon whom the ALJ relied, is subject to a similar criticism. His opinion does not rest on a history of an abrupt head turn occasioned by the exploding machine, but on repetitive pulling and pushing activities at work. See Exhibit B, and notes dated August 27, 1996 and March 17, 1997.

Dr. Tsuchiya gives conflicting opinions. In an October 1996 letter to the attorney representing the applicant in the matter of the May 1995 off-duty car accident, Dr. Tsuchiya opines to a reasonable degree of medical certainty that the cervical disc herniation is most likely due solely to the car accident. Exhibit 2.

In a subsequent letter to another attorney, Dr. Tsuchiya wrote that following the May 1995 car accident, the applicant had permanent disability in the neck and back. He continued:

"With treatment the patient was able to go back to work with limited conditions. This was quite stressful in the beginning but she was encouraged to return to work which she did until August 2, 1996 when she was involved in an industrial injury. At that time she turned her head to the right and suddenly had a very sharp pain from the neck to the shoulder. She was examined. An MRI was done and disclosed a rather large disc herniation at C5-6. The patient was sent to Dr. Sanford Larson who referred her to Dr. Joseph Cusick. Surgery was done for the disc herniation at C5-6 by Dr. Cusick.
"...
"Despite the fact that her condition improved with treatment after the automobile accident, she was disposed and vulnerable to another neck injury, even a minor injury to the neck. So that with the relatively minor industrial accident she encountered a large disc herniation."

Dr. Tsuchiya, report of June 11, 1998, Exhibit E.

The commission accepts Dr. Tsuchiya's opinion regarding causation in the June 11, 1998 report. The commisssion therefore concludes the applicant's cervical disc finally gave way due to the force of the abrupt turn in response to the noisy or exploding machine on August 2, 1996. Even though the applicant's cervical spine was also affected by a preexisting degenerative condition, the injury remains compensable. See Lewellyn v. DILHR, 38 Wis. 2d 43, 59-60 (1968).

In deciding which expert medical opinion to credit, the commission noted the applicant's credible description of her symptoms. Bilateral neck pain or shoulder pain might well be expected following the neck injury from the car accident in May 1995. However, the applicant credibly testified to dramatically increased pain, including continuing radicular pain in her right arm and chest, with the sharp head turn on August 2. While Dr. Grossman's notes indicated that the applicant's neck pain symptoms continued after the car accident, an MRI done as late as June or July 1996 showed no herniation. Exhibit 1, pages 5 and 6. Four days after the applicant experienced the onset of increased symptoms with the sharp head turn on August 2, 1996, however, an MRI showed a very large herniation at C5-6. Exhibit 3. On this record, Dr. Tsuchiya's opinion that the disc herniation (or breakage or letting go) occurred with the work incident is most credible.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The applicant has the burden of proof in a worker's compensation case. I would disregard the idiopathic issue and assume for this case that the employe sharply turned her head on August 2, 1996. The employe had a previous car accident in May of 1995.

Dr. Tsuchiya was her treating doctor. Dr. Tsuchiya's records indicate he wrote a letter to Attorney Daniel J. Cook on October 21, 1996 (this is after the work incident) wherein he answered a question as to whether the injuries he treated were caused by the May 8, 1995 accident. He wrote "Most likely the cervical disc herniation is due solely to the car accident. She has a lumbar disc herniation which we are continuing to observe."

In a letter of July 7, 1995, Dr. Tsuchiya wrote "She knows that she moved forward first and then when the front of her car hit, her neck snapped back; she had her seat belt on luckily. Immediately she noticed numbness in the left side of her cheek to the neck. .She noticed left side headaches from the back of the neck to behind the ear, sometimes continuously and sometimes quite a problem. .She has a numb, tingling sensation in both hands especially in the morning when she wakes up; she doesn't feel pain going down the arm however."

Dr. Tsuchiya's office notes contain the following: On October 23, 1995, "Right biceps and brachial radialis is almost absent; the left side I can get a good response. On initial examination she had a pretty reflex and now today I cannot find it." March 28, 1996, "Since Sunday she cannot move her neck because the pain has become worse. Not much we can find except muscle spasms in the neck." August 2 , 1996 (after the incident) "Apparently for two weeks she has noted pain in the neck and shoulder." This would put the start of the pain prior to the work incident of August 2, 1996.

Dr. Cusick found that the work caused the injury but his opinion is not based on a history of the applicant turning sharply to look at the machine. Dr. Cusick based his opinion on repetitive pulling and pushing activities at work.

Dr. Grossman found that "the claimant's difficulties with regard to the cervical spine appear to have arose in May of 1995 following a motor vehicle accident." He goes on "It is my opinion that the most unifying diagnosis for the claimant's cervical complaints is degenerative disc disease at the C5-6 level. It is my impression that the degenerative disc disease was accelerated, exacerbated or precipitated beyond its normal course by the motor vehicle accident in May 1995."

Dr. Grossman reported "I believe it extremely important to note that following the motor vehicle accident the claimant reported immediate onset of numbness and that Dr. Tsuchiya elicited absence of biceps and brachioradilis reflexes on the right on October 23, 1995. This, to my mind, establishes that there were radicular events on the rights side following the motor vehicle accident but preceding the August 1996 event at MacWhyte Wire. Further, the fact that facet injections relieved some of her pain indicates that she incurred a traumatic injury to the cervical spine and was not simply suffering the effects of her degenerative condition on the cervical spine. The injuries suffered as a result of the motor vehicle accident are: cervical spine sprain or strain and right sided cervical radiculopathy."

Dr. Grossman goes on to say "If the August 1996 event were an acute herniation I would have expected to see evidence of inflammation. Additionally, radiography taken August 9, 1996 show disc space narrowing and osteophytes. These changes could not have occurred in the seven days following the workplace event - they are pre-existing and are radiographic indicators for degenerative disc disease of the cervical spine." . "As the records presented for review prior to the August 1996 event but following the May 1995 event indicate both left and right sided complaints and objective findings, it is my opinion that the MRI study is more consistent with disc pathology that pre-dates the August 1996 event."

I find Dr. Grossman the most credible in explaining the injuries. I agree with him and would find that the August 1996 did not cause the herniation and the need for surgery. I would reverse on those findings.

__________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY JULIE J DARNIEDER
DARNIEDER WEST DAVIS & GERAGHTY

ATTORNEY ALAN E SENECZKO
SENCZKO LAW OFFICES SC

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Footnotes:

(1)( Back ) For this reason, the majority cannot agree with the dissenting commissioner, who acknowledges that the applicant turned her head sharply, but still credits Dr. Grossman's opinion.