Wis.LIRC WC Decision: Duden - February 22, 1991 - ND � 3.38 - Compensable re-injury - precipitation, aggravation, and acceleration beyond normal progression of a pre-existing, progressively deteriorating or degenerative condition

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAMES DUDEN, Applicant

MEYER INDUSTRIES, Employer

NATIONAL UNION FIRE INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 85-060783

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order as its own, except as herewith modified:

Delete the eighth paragraph of the FINDINGS OF FACT. Delete the last sentence of the ninth paragraph of the FINDINGS OF FACT. Delete the tenth paragraph of the FINDINGS OF FACT, and substitute therefor the following:

"The fee of the applicant's attorney is fixed at $ 892.97 by request made pursuant to section 102.26 of the statutes. This reflects a fee of 20 percent on the balance due of $ 4,464.84. The attorney's fee will be deducted from the amount due applicant."

Delete the Interlocutory Order and substitute all except the first sentence of the Commission's Modify Interlocutory Order set forth below.

NOW, THEREFORE, this

MODIFIED INTERLOCUTORY ORDER

The findings and order of the Administrative Law Judge are modified to conform with the foregoing, and as modified are affirmed. Within 30 days from this date, the respondent and insurance carrier shall pay as compensation to the applicant, James Duden, the sum of Three thousand five hundred seventy-one dollars and eighty-seven cents ($ 3,571.87); and to the applicant's attorney, L. J. Webster, the sum of Eight hundred ninety-two dollars and ninety-seven cents ($ 892.97) as attorney's fees. Jurisdiction is reserved on all issues for such further findings, orders, and awards as may be warranted.

Dated and mailed February 22, 1991
110 - CD8543 ND � 3.38

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The petitioner argues that the disability beginning on February 2, 1990 was the result of a new injury, so that applicant's benefit rate would be based on his average weekly earnings at that time, which would be computed based on his then part-time employment. The Commission agrees with the Administrative Law Judge's conclusion, that there was no new injury, so that the benefit rate would be computed on the basis of section 102.43 (7), Stats. using the original benefit rate which was based on full-time employment. The petitioner apparently relies on the theory that there was a new compensable injury under the third standard articulated in Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). However, in describing this standard in its brief, petitioner materially mistates it. It argues:

"It is well-settled that work activity which precipitates, aggravates, and accelerates a pre-existing condition is considered a compensable injury under the law (citing Lewellyn)." (Petition for review, page 2.)

However, what the third test of Lewellyn speaks of is a work activity which precipitates, aggravates, and accelerates beyond normal progression a pre-existing progressively deteriorating or degenerative condition. The Commission concludes, from the reports and opinions of Dr. Drawbert, that applicant in this case suffered from a progressively deteriorating or degenerative condition. On both WC-16-B forms completed by Dr. Drawbert, he answered the inquiry in box 17 concerning prognosis of the disability with the phrase, "guarded--he will continue to have deterioration of his knee." That he indicated that applicant would continue to have deterioration of the knee suggests that he believed that there had been deterioration of the knee prior to that time, which in turn reasonably suggests that it was his opinion that the condition was in fact a progressively deteriorating one. For petitioner to prevail on the position it now asserts, it would be necessary that the Commission be able to find evidence that Dr. Drawbert believed that applicant's work activities in 1988 through 1990 precipitated, aggravated, and accelerated the applicant's pre-existing condition beyond this normal progression. However, Dr. Drawbert's opinions do not support this conclusion. Rather, they are ambiguous on that point. In both WC-16-B forms, Drawbert gives November 19, 1985 as the "date of traumatic event" or "date of accident, or if illness, last day of work," and in both he completes box 11 by answering "yes" to the question of whether it is probable that the event described in item 4 caused the disability. In neither does he make any entry in box 12, the question inquiring whether it was probable that the event described in item 4 caused the disability by precipitation, aggravation, and acceleration of a pre- existing progressively deteriorating or degenerative condition beyond normal progression. It could be concluded from this that it was Drawbert's opinion that the recent problems were directly caused by the 1985 accident, with no issue of aggravation. Although in other reports, Drawbert has made statements suggesting a belief that subsequent work activity "aggravated" the condition, these statements are ambiguous and fall far short of satisfying the Lewellyn test. As noted, Lewellyn requires a finding that a work activity precipitated, aggravated, and accelerated a pre-existing condition beyond normal progression. "It is not anything 'in the nature of an aggravation,' however slight, that comes under the rule . . . the phrase 'in the nature of an aggravation' is not synonymous with the phrase aggravate beyond normal progression. The proof required is that the work activity did precipitate, aggravate, and accelerate beyond normal progression the pre-existing condition . . ." Joseph Schlitz Brewing Company v. ILHR Department, 67 Wis. 2d 185, 191 (1974). The Commission is not inclined to creatively interpret Dr. Drawbert's ambiguous statements in order to "stretch" them to try to fit the third Lewellyn standard.

With respect to the matter of the penalty for inexcusable delay, the Commission was not satisfied that there was an adequate showing to support the Administrative Law Judge's order. "Inexcusable delay means without a bona fide justification or motivation. This is not to be determined by hindsight but by a realistic appraisal of the facts at the time of the alleged delay." Milwaukee County v. DILHR, 48 Wis. 2d 392, 399 (1970). The opinions of Dr. Drawbert, particularly those contained in his letter of May 7, 1990, were ambiguous. Even though they have been found to be inadequate herein to satisfy the requirements of Lewellyn, the Commission recognizes that the opinions did make reference to "aggravation" of applicant's condition. In the particular circumstances of this case, the Commission is not persuaded that the petitioner did not have a bona fide motivation or justification for its belief that a new injury had occurred.

cc:
Richard J. Kelly, Attorney
Garvey, Anderson, Kelly & Ryberg, S.C.
L. J. Webster, Attorney
Detman & Webster, Ltd.

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