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

JOAN CALKINS, Applicant

PENDA CORPORATION, Employer

EMPLOYERS INS OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1991050282

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 employer and insurer concede jurisdiction. The issues before the ALJ, and now before the commission, include whether August 5, 1991, or some other date, is the appropriate date of applicant's occupational injury; whether a compromise dated March 31, 1997, bars the instant application; and if not, the nature and extent of disability including loss of earning capacity. The applicant claims that the medical records support a claim for an August 5, 1991 date of injury based upon occupational disease but in the alternative claims a traumatic injury on August 5, 1991. The insurer paid temporary total disability benefits from August 5, 1991 to November 15, 1991, but is not conceding that it is liable for any temporary total or permanent partial disability.

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 makes the following :

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer makes plastic. The applicant (Calkins), who was born in 1942, began working for the employer in 1979. She was a finisher, a job which involved several different processes requiring work on different machines.

The medical records and testimony indicate that Calkins' work required lifting a maximum of forty pounds, and a substantial amount of carrying, reaching, twisting while lifting, and walking. Her normal work activities as described in the medical records are fairly strenuous in nature. Moreover, it should be noted that she worked in this capacity for respondent Penda Corporation from 1979 to 1992, a period of at least 13 years.

Calkins suffered her first traumatic back injury on December 7, 1986. Prior to that time she had no lower back problems. As Calkins was carrying a truck-bed liner, it started to fall and she twisted her body so that it would not fall to the floor. Calkins was off of work for six months but returned without restrictions. She testified that she felt fine after this injury.

On June 2, 1987, she reinjured her back at work and went to a chiropractor, Dr. Vastola, and to Drs. Campbell and Bonebrake, physicians. Dr. Bonebrake kept her off of work until July 9, 1987. Thereafter, Calkins continued to complain of mid-to-lower thoracic pain and lumbar pain. Dr. Campbell referred her to Dr. Berry, who noted on July 25, 1987 "a lot of spasm at T5 in the left immediate paraspinal area." Dr. Berry, In August of 1987, felt that Calkins suffered from a facet joint problem and injected the L5 area at that time. He returned her to work on September 11, 1987 without restrictions, although he continued to treat her with epidural injections throughout the fall of 1987. According to Calkins, although she returned to work, her lower back was still bothering her. She stated that it got better after she had resumed work.

On January 22, 1989, Calkins suffered another injury to her lower back. While making J-mak trays, she wrenched her back when lifting a part from a machine to put it on a table. She treated with Drs. Hansell and Huffer for about six months and was released to return to work on June 26, 1989 without restrictions.

On May 25, 1990, Calkins suffered another twisting injury to the lower left side of her back as she was putting aluminum in a sleeve pack and taking parts off a skid. The part came off and dropped down and she twisted her back. According to Calkins, she was off approximately three months in 1990 as a result of this injury. There is no evidence that Calkins was placed under restrictions upon her return at that time.

On August 5, 1991, Calkins was once again injured. She was putting a finished Synergy tank on a skid and strained her lower back trying to put the part on with one hand and to hold a piece of cardboard that lines the skid out of the way with the other. She sought treatment at Divine Hospital initially under the care of Dr. Budi and Dr. Boyd. X-rays of the lumbar spine taken on August 5, 1991, showed "Grade I spondylolisthesis of L5 to S1 which seems to be degenerative in origin. Degenerative disc disease at the levels L5-5-S1 with osteophytosis. Muscle spasm. Partially healed old chip fractures, tip of the osterior spinous processes of T11 and 12."

Dr. Boyd referred Calkins to Dr. Agre. Dr. Agre felt that she had sustained a strain injury of the right quadratus lumborum and right gluteus maximus muscles. He kept her off of work for about two and a half months and prescribed physical therapy. He released her to return on November 15, 1991 without restrictions. According to Calkins, her pain was not completely gone when she returned. She still had pains down her right leg and in her lower back.

After returning, Calkins worked a four-day, twelve-hour shift. Calkins testified that after four days off, she felt capable of handling her job, but as the days working increased, she experienced more and more pain so that by the time her last shift ended, she was experiencing quite a bit of lower back pain. After four days off, she could resume work again and the cycle would start all over.

Calkins worked from November 19, 1991 until September 1, 1992. During this period, her condition got progressively worse.

On September 1, 1992, Calkins was cutting out sheets of plastic on a punch press, cutting 10 sheets at a time. The individual sheets were 3 or 4 feet by 5 or 6 feet, and Calkins could not accurately guess the weight. Calkins' back was sore when she started work, and as the day progressed her pain increased substantially, affecting both her back and leg. She recalled no specific injury, though did testify to a significant increase in pain while reaching up and turning to put a sheet of plastic in the machine. She informed a supervisor, either that day or the next, that she could no longer work and asked permission to seek treatment.

Calkins sought treatment from Dr. Felicjan, a chiropractor. Dr. Felicjan referred her to Dr. Plooster. In October of 1992, Dr. Plooster felt that Calkins' symptoms were most characteristic of a degenerative lumbar spine condition with possible spinal instability. MRI showed significant degenerative disc disease in the lumbar spine without focal disc herniation. He did not feel that there was any surgical treatment indicated at that time. Dr. Plooster in November noted that Calkins' main problem was symptomatic degenerative disease at L4-5 which was aggravated by her work injury.

Calkins was hospitalized for lower back pain in December of 1992. In January of 1993, Dr. Plooster observed that the work incident last fall (referring to the September 1992 activities) undoubtedly "precipitated a symptomatic period, but was not the origination (sic) of the condition. The incident did accelerate beyond normal a pre-existing condition."

Dr. Plooster indicated in a letter dated September 25, 1995, that Calkins continued to be totally disabled from working due to chronic pain and that it is a permanent condition. In April of 1996, Dr. Plooster assessed twenty percent functional permanent partial disability impairment causally related to the combined effects of the six injuries which applicant sustained at Penda Corporation. Since he was not the treating physician for any of Calkins' injuries prior to September 2, 1992, he indicated that he would not be able to apportion any permanent partial disability prior to that date. He did not believe that Calkins could work, even in a sedentary capacity, due to the severity of her chronic pain and the need for significant analgesics.

Calkins was also examined by Dr. Sparks, an osteopath, in October of 1993 for a disability determination report. Dr. Sparks' impressions at that time were obesity; lumbar strain :  no evidence of lumbar disc disease, i.e., herniation of disc; and possible osteoarthritis.

Calkins underwent an independent medical examination at the request of Twin City Insurance Company (1) on January 31, 1996, by Dr. Clark, an orthopedic surgeon. With respect to causation, Dr. Clark opined as follows :  

Specific injuries in this case took place in December 1986, June 1987, January 1989, May 1990 and August 1991. Each required prolonged temporary disability and conservative treatment. Each left her with residual symptoms which were present prior to her last date of employment, September 1, 1992. She states that on that morning low back pain was already present before attending work. While at work during her normal fairly strenuous activities, she noted an increase in low back pain with no specific incident. Since then she has undergone adequate conservative treatment and symptoms have subsided to their present level, which in my opinion does not exceed the level of symptoms present prior to September 1, 1992. Therefore, the incident of September 1, 1992, represents a temporary aggravation of a preexisting underlying condition which resolved back to pre-incident status by March 31, 1993.

Dr. Clark felt that Calkins' present condition was related to the previous specific injuries sustained from December 1986 to August 1991. He felt that the events of September 1, 1992 represented a temporary aggravation of this preexisting condition and that based upon Calkins' description of symptoms prior to September 1, 1992, and symptoms present on that day, she had reverted back to a pre-September status by March 31, 1993. He opined that although studies following the August 5, 1991 incident were reported as negative, these studies in fact reveal degenerative changes. Pointing to an MRI study done after September 1, 1992, he felt that it revealed degenerative disc disease with no herniated disc and that it indicated that there was no pathologic evidence of permanent aggravation in this case. Rather he felt that the aggregate of the five specific injuries gradually led to the development of degenerative disc disease in the low back and is responsible for five percent permanent partial disability as a result thereof. Dr. Clark would restrict Calkins from lifting objects weighing greater than 25 pounds and from work requiring prolonged sitting, standing, stooping or bending. These restrictions were based upon the aggregate of five specific injuries occurring from December 7, 1986 through August 5, 1991.

At the request of Employers Insurance of Wausau (2), Calkins was examined by Dr. Weiss. Dr. Weiss believed that all of the traumatic episodes pre-dating September of 1992 were temporary aggravations of her underlying severe degenerative disc disease. He opined that the September 1992 episode showed right sided low back pain without evidence of herniation on the MRI and normal EMGs with discogram showing abnormal morphology, but no concordance of pain. Because Calkins continues to complain of constant low back pain running down her right lower extremity, he concluded that she sustained a permanent aggravation with 2 percent permanent partial disability to the body as a whole as related to the September 1992 permanent aggravation. Dr. Weiss felt that Calkins had reached a healing plateau by January of 1993, and that the medical treatment was appropriate and related to the 1992 aggravation. While he found that Calkins had severe muscle spasm and some restriction of motion, he felt that there were definite signs of symptom magnification. Dr. Weiss concluded that Calkins should be able to perform light work with the following restrictions :  no lifting more than 15 pounds occasionally or more than 10 pounds repetitively; no prolonged or frequent bending; and occasional alternating of standing and sitting throughout the work day.

The commission is satisfied that the combined effect of the traumatic work injuries, and Calkins' work exposure, caused Calkins' disability by occupational disease. In that respect, this case closely resembles Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982) where compensation has been paid for disability from occupational disease after a series of traumatic back injuries. The closer question, as the ALJ observed, is the date of injury.

Wisconsin Statute § 102.01(2)(g) provides : 

"102.01(2)(g) Except as provided in s. 102.555 with respect to occupational deafness, `time of injury', `occurrence of injury', or `date of injury' means : 
"...
"2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability."

In General Casualty Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 178 (Ct. App., 1991), the applicant suffered a series of back injuries and underwent back surgery in 1972. In explaining its choice of a 1978 date of disability for the applicant's occupational back, the commission stated it consistently interpreted Wis. Stat. § 102.01(2)(g)2 as setting the date of disability or injury at the point when the symptoms of the occupational disease result in lost work time. The court of appeals affirmed the commission's interpretation, citing to Kohler Co. v. DILHR, 42 Wis. 2d 396, 400 (1969), where the court stated the most important question was "When did the occupational disease ripen into a disabling affliction?" The General Casualty court went on to explain that earlier cases created a conclusive presumption that that point is reached when the applicant first suffers a wage loss due to the occupational disease. General Casualty, at 165 Wis. 2d 174.

This inquiry as to the date of disability thus cuts two ways. The date of disability is not the first time an occupational disease is diagnosed; there must be lost work time as well. By the same token, the date of disability does not occur the first time a worker misses work due to any disability to the affected body part. Rather, the disability must be due to occupational disease itself, separate from disability from any one of the series of early accidental injuries causing a condition which later ripens into occupational disease. Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655 (Ct. App., 1982); and George Hoppe v. Ampco Metal, WC case no. 92027782 (August 31, 1995). Moreover, the commission has consistently held that there may be multiple dates of injury in cases of continuing work exposure, so that if additional exposure causes additional disability, a new date of injury is tied to the later exposure. See Zurich General Accident & Liability v. Industrial Commission, 203 Wis. 135 (1930); Eisner v. Wis.-Pak, WC Claim no. 87-044815 (LIRC, February 14, 1991); and Neal & Danas, Workers Compensation Handbook, § 3.4 (4th ed., 1997).

The date of injury for Calkins' disability from occupational disease resulting in her loss of earning capacity claim is September 1, 1992. Calkins was able to work without restriction until that date. Further, her condition was not static or unchanging with the prior incident in August 1991. Indeed, she was able to return to work at full duty after that incident, though she had some residual symptomology. Thereafter, her condition continued to worsen with continued work exposure until she was unable to continue work after the incident on September 1, 1992.

On this point, the commission credits the opinion of Dr. Plooster, who opined that all six injuries (including the September 1992 event) contributed to Calkins' impairment. Dr. Weiss pointblank finds the September 1, 1992 event to be causative, though he incredibly finds all the other events caused only temporary aggravations. And while IME Clarke reports that Calkins reverted to her pre- September 1, 1992 baseline (indicating that any increased disability from that injury was only temporary), he did not opine she returned to her condition as of August 1991. Further, Drs. Plooster, Clark and Weiss all set significant work restrictions after the September 1992 injury; however, Calkins had been released without any restrictions by treating doctor Agre in November 1991.

Because Employers Insurance of Wausau was not on the risk on the date of injury (September 1, 1992), the application must be dismissed.

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

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed August 31, 1999
calkins.wrr : 101 : 5 ND § 3.4 , 3.42, 10.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, 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 found the applicant, the only witness to testify at the hearing, quite credible. The commission does not dispute the ALJ's credibility assessment. Moreover, the commission largely accepts the ALJ's fact findings, and incorporates them with few modifications into its own decision.

However, as explained above, the commission disagrees with the ALJ regarding the date of injury. That issue does not depend on the credibility or demeanor of the applicant, but rather on the credibility of the medical experts, none of whom testified before the ALJ.

A final issue, argued before the ALJ (and discussed in briefs to the commission) is whether the applicant's compromise with another insurer for the September 1, 1992 date of injury estops or bars the claim against Employer's Insurance of Wausau based on an earlier date of injury. The commission considered and rejected that argument, for the same reasons set out by the ALJ in her carefully-reasoned discussion of the point. Because the commission has concluded that the appropriate date of injury was September 1, 1992, however, this issue is largely moot.

cc :  ATTORNEY JOHN D NEAL
STAFFORD & NEAL SC

ATTORNEY RAYMOND G CLAUSEN
STILP & COTTON

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Footnotes :

(1)( Back ) Twin City Insurance Company was on the risk on September 1, 1992.

(2)( Back ) Employers Insurance of Wausau was on the risk on August 5, 1991.