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

CHARLES F MEYERS, Applicant

FORT JAMES, Employer

JAMES RIVER DIXIE NORTH, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998002628

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 December 8, 1999
meyersc.wsd : 101 : 5 ND § 3.4  § 3.42

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

1. Facts and expert medical opinion.

The applicant had worked for the employer for several years as a tinsmith. In June 1997, that position was eliminated, and he returned to production line work. After 3.5 days of work as a "box catcher" on the glue line from June 16 through 19, 1997, the applicant noted the onset of back pain. The applicant denied prior back pain, or previously seeking treatment for a back problem, and the commission's review of medical records for unrelated conditions going back several years supports this testimony. At any event, the applicant reported his June 1997 injury, and sought treatment.

An MRI of the applicant's lumbar spine showed stenosis at L4-5 and a small disc protrusion. In January, Thomas Wascher, M.D., performed a surgery, specifically an L4-5 laminectomy and foraminectomy, on the applicant's spine. During surgery, the doctor noted the nerve root was compressed by a hypertrophic process causing stenosis. During the surgery, Dr. Wascher thinned the hypertrophic process (which is a type of bony growth). The surgery helped the applicant's leg and back pain.

Treating surgeon Wascher relates the applicant's back condition to work exposure on June 16-19, 1997, marking the "Lewellyn 3" (1)   and occupational disease causation boxes. He explains:

"Although his x-rays suggests some element of congenital spinal stenosis, I feel that this work-related activity on the glue line caused an acute aggravation or is at least partially contributory to accelerated progression of his lumbar spondylosis. It would be unfair to state that his work-related activity is the sole cause of his back problems; however, it is well known that repeated bending and lifting, as well as physical activity can exacerbate and accelerate lumbar spondylosis and result in acute exacerbation and I believe this is the case with Mr. Meyers."

Exhibit A, attached "To whom it may concern letter" dated February 18, 1998. Finally, on May 11, 1998 (four months after surgery, Dr. Wascher opined that the applicant would not reach an end of healing until nine months after surgery.

Family doctor Knaus also opined that the applicant's condition was attributable to his work exposure on July 16 through 19, 1997. He marked all three causation boxes. In an attached narrative, Dr. Knaus explains that the applicant most likely had an underlying degenerative condition that was accelerated by his work. He estimated permanent partial disability would be 10-15 percent, but deferred to the ratings of surgeon Wascher and physiatrist Powley.

The applicant's consulting orthopedist, Jan Sarnecki, M.D., also weighs in. He, too, associated the applicant's condition with the work exposure on June 16 to 19, 1997, and like surgeon Wascher marked the "Lewellyn 3" and occupational disease causation boxes. His attached notes refer to a fair amount of bending and twisting on the job.

Against this, the respondent offers the opinion of its independent medical examiner, W.W. Schaefer, M.D. He diagnosed chronic lumbosacral strain and mild stenosis, L4-5, with left foraminal stenosis. He watched a videotape of product runs which the employer represented was similar to the work performed by the applicant. Dr. Schaefer described the work shown on the videotape as involving lifting less than 10 pounds, that there was no significant bending or twisting, and that the pace was "quite relaxed." He thought it highly unlikely that the applicant would have injured himself doing the work shown on the videotape. He stated the spine problem was a congential one, and that it was not aggravated or accelerated by his duties at Fort James.

Dr. Schaefer thought the applicant could return to the glue line job immediately, with a restriction against repetitive lifting of more than 20 pounds. He thought there was no need for surgery, and that the applicant had plateaued without permanency. Exhibit 1, report of January 5, 1998.

2. Discussion.

a. Application, ALJ order, and petition for review.

The applicant filed an application contending he sustained a compensable injury to his back; seeking temporary total disability from the date of his January 11, 1998 surgery to his April 7, 1998 return to work, from April 16, 1998 to his July 17, 1998 release to work, and from August 21, 1998 to his September 17 release to work; and seeking reimbursement of medical expense.

The ALJ found a compensable injury leading to the need for the surgery, ordered payment of the first two periods of temporary disability, and ordered payment of the medical expense. The ALJ explains his findings regarding causation on pages 7 and 8 of his decision. He found it more than coincidental that the applicant's symptoms started when he switched to the glue line, that the applicant was not physically conditioned for the machine-paced work, that his back was not healthy to start with but was predisposed to injury by the pre-existing stenosis, that the job required highly repetitive bending and twisting, and that the videotape upon which Dr. Schaefer relied was extremely misleading. (2)

On appeal, the employer argues that three days of work on the glue line was not "an appreciable period of workplace exposure" and so there can be no finding of causation by occupational disease. This is a legal argument, essentially inviting the commission to follow a per se rule that one may not sustain occupational disease, at least of the type allegedly sustained by the applicant, in only three days.

b. Appreciable period of workplace exposure.

At the outset, the commission emphasizes that it considers this aspect of the respondent's brief to deal with the legal standard that three days work is insufficient time develop an occupational disease as a matter of law. The respondent's independent medical examiner, Dr. Schaefer, does not say that the applicant had insufficient work exposure to cause permanent disability, at least not in a temporal sense. That is, IME Schaefer says the duties were not sufficiently physically demanding to cause an injury; he does not opine that the applicant performed the duties too briefly to cause injury. And the treating doctors, all three of them, say the three days of work exposure was causative.

In Kohler Co. v. ILHR Department, 42 Wis. 2d 396, 400 (1969), the court states:

"An occupational disease is a process usually extending over a considerable period of time. It has a beginning, relevant on the issue of causation. It has a progression, but this can vary in individual cases. There can be steady deterioration, swift or slow but uninterrupted.."

In Kohler, the court acknowledged that while occupational disease may usually take a long time to develop, this is not always the case. Indeed, the progression varies in individual cases. And it can be swift.

Beyond that, the usual temporal standard for occupational disease is "appreciable period of workplace exposure." "Appreciable" simply means "capable of being perceived"; the term is not synonymous with "substantial." Black's Law Dictionary (5th ed 1979). Thus, occupational disease is defined as "mental or physical harm that results from occupational exposure that is not so sudden or traumatic as to fit within the definition of an accident." Neal & Danas, Workers Compensation Handbook § 3.4 (4th ed., 1997). Finally, one of the reasons that the law recognizes the theory of occupational disease is to ensure that all injuries are covered, not to create a "gap" in coverage when the work activity causing injury is neither an accident nor long term exposure. (3)

In sum, the commission declines to conclude that the applicant's three days exposure is simply too short as a matter of law to constitute an appreciable period of workplace exposure causing disability by occupational disease.

c. Which medical opinion is more credible?

This legal issue resolved, there remains the medical issue: which doctor or doctors are more credible? The commission adopts the causation opinion of Drs. Wascher, Knaus and Sarnecki, for the reasons stated by the ALJ in his thorough discussion of the issue.

Finally, the commission acknowledges, as did the treating doctors, that the work did not cause the long-term underlying degenerative condition. However, in cases of occupational disease, work exposure does not have to cause the onset of the condition, but only constitute a material contributory factor in its progression. Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, notes (1978). An employer takes its workers as they are, pre-disposition to injuries and all. See E.F. Brewer Co. v. DILHR, 82 Wis. 2d 634 (1978).

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Schaefer's opinion to be convincing. The employe was moved to work on the glue line and after about three and a half days of work on the line reported a work injury to the employer. I watched the video of the employe's work which involved pushing packaging boxes down a line in an upright position and putting them into cardboard boxes and putting them on the conveyor belt. The employe complained that the videotape was not representative of his work because the Post Cereal boxes went much faster. I took that into account when I viewed the video. Dr. Schaefer found that the employe had a mild lumbosacral strain and mild spinal stenosis, L4-5, with left foramenal stenosis.

Dr. Schaefer said "In my opinion it is highly unlikely that this patient could have injured his spine performing the duties as visualized on this tape. The work that I visualized was non-stressful to the lumbar spine. It is certainly possible that he could have developed pain performing these activities, but I would not relate it to his job or duties on the glue line. The spinal stenosis problem is a congenital one. I do not believe that this condition has been accelerated or aggravated by his duties at the Fort James Paper Company."

I believe that his pain was probably caused because the spinal stenosis had reached the point where he would have pain.

For these reasons, I would reverse and dismiss.

_________________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY STUART J SPAUDE
BOLLENBECK ROWLAND SPAUDE & FYFE SC

ATTORNEY JOSEPH DANAS JR
BORGELT POWELL PETERSON & FRAUEN SC

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Footnotes:

(1)( Back ) Lewellyn v. DILHR, 38 Wis. 2d 43, 59 (1968).

(2)( Back ) The testimony of the employer's safety director establishes that the videotape upon which IME Schaefer based his opinion was not an accurate depiction of the Post Cereal jobs which the applicant did most of the 3.5 days at issue. The tape shows three different product runs, but did not include the Post Cereal job. The tape did include a Kool Aid run which the safety director described as slow-paced work; the Post Cereal job is one of the faster runs. Further, the IME assumed the applicant would only be lifting/moving under ten pounds of unfolded boxes; in fact the Post Cereal boxes were moved in 20-pound increments.

(3)( Back ) "Occupational diseases were brought under the compensation act . `so as to include, in addition to accidental injuries, all other injuries including occupational diseases, growing out and incidental to the employment." Employers Mutual v. McCormick, 195 Wis. 2d 410, 413-14 (1928).