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


JOEL H FLASCHNER, Applicant

CITY OF WAUWATOSA POLICE, Employer

CITY OF WAUWATOSA, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1983-004074


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 July 12, 1999
flascjo.wsd : 132 : 1 ND § 3.39

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The respondent has petitioned for commission review of the adverse findings and order of the administrative law judge. There is no question but that the 1983 accident caused injury, and permanent injury, to the applicant's neck. The IME concedes this much. The IME states that applicant already received a permanency rating for his minimal ongoing symptoms. The IME assumes that the permanency rating at least in part was for ongoing cervical/neck problems. The record does not support such assumption and indeed the respondent's brief indicates respondent's position that the award was for the low back. Further, Dr.Bragg's WC-16 dated April 8, 1985, indicates that he awarded permanency, although at one percent, for the low back. Accepting that applicant had a degenerative cervical condition that pre-dated the injury, that condition was permanently aggravated by the 1983 accident according to the IME and the Drs. Hemmy and Slade. Radiology tests at the time of the injury showed evidence of injury to the fifth and sixth vertebrae, the same levels ultimately determined to be causing the applicant pain and operated on in 1996 and 1997.

The IME also states that other than the permanent cervical aggravation caused by the 1983 accident, the applicant's cervical problems which caused the need for the surgery were due to a May of 1996 fall on the golf course. The treatment notes however show increased treatment and pain complaints before May of 1996. The applicant did have a 1995 fall on the golf course. In addition, the fall that the applicant had in 1996, was a fall in March of 1996, when applicant's knee gave way at work while he was chasing a subject. The IME does not claim that the slip and fall alone was responsible for the applicant's cervical injury, but that the applicant was already compensated for the prior disability. The IME based his causation opinion on the increase of symptoms, particularly left arm symptoms, occurring after the non-industrial fall. That is insufficient to render the claim non-compensable under Lange v. LIRC, 215 Wis. 2d 558 (Ct. App. 1997), in which the court stated:

New symptoms arising from a re-injury, standing alone, do not suggest whether a relationship exists between the two injuries. If an earlier accident renders a worker's back more vulnerable to re-injury, a second injury in the same location almost certainly will cause new symptoms. We therefore reject that new symptoms alone can permit such an inference. . . .

Lange at 567.

Respondent also argues that the fact applicant was active and engaged in biking, jogging and the like show he was pain-free. Of course, applicant reported doing such things to basically all the doctors, and usually was seeing those doctors because he was not pain free. The claim is not that the applicant was in debilitating pain since 1983, but that he experienced neck problems as a result of the 1983 accident and his later increased problems relate back to the original injury. Finally, the record contains no medical opinion that applicant could not jog or bike or do police work with the cervical injuries attributable to the original 1983 incident. See Leist v. LIRC, 183 Wis. 2d 450, 458-59 (1994).

For the above reasons, and for the reasons set forth in the findings and order of the administrative law judge, the commission affirms such findings and order.

cc:
ATTORNEY JAMES P BURNS
ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC


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