STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
JAMES L DERR, Applicant
L H SOWLES CO, Employer
DUWE METAL PRODUCTS INC, Employer
AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurer
EMPLOYERS INSURANCE OF WAUSAU, Insurer
WORKER'S COMPENSATION DECISION
Claim Nos. 1985003268, 1999040070
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The applicant, who was born in 1955, is an iron-worker. He is a thin and well-developed man who weighs 163 pounds at nearly 6 feet tall. He needed a hip replacement in 1997, when he was not yet 42 years old.
At issue is whether this condition is related to his work, and if so, how. Both employers concede jurisdictional facts. L.H. Sowles and its insurer (American Mutual Liability Insurance Co., care of Wisconsin Security Insurance Fund) concede an average weekly wage of $366.03 for a November 16, 1984 date of injury. Duwe Metal and its insurer (Employers Insurance of Wausau) concede an average weekly wage above the maximum for compensation purposes for a February 21, 1997 date of injury. In addition to whether and when the applicant sustained an injury arising out of employment while performing service growing out of and incidental to employment, contingent issues include the nature and extent of disability and liability for medical expense.
The applicant began working as an ironworker, obtaining work out of a union hiring hall, in 1977. His job is heavy, requiring a maximum lift of over 100 pounds and frequent lifting in the 40 to 60-pound range. His duties also involve a lot of walking up and down temporary stairs (1) or scaffolding, while carrying a 40-50 pound tool belt with bolts, wrenches and an 8-pound sledge. In addition to actual construction, the applicant sometimes spends whole days unloading railings and other materials from trucks to be used in construction. This work involves hopping on and off flatbed trucks to get at the material, and then walking through the worksites in the mud or snow. The applicant was normally on his feet all day, except for a 30- minute and 15-minute break.
The applicant suffered a traumatic injury on November 16, 1984 while on a building for L.H. Sowles. It was a windy day, and the applicant was walking along a ten-inch I-beam when he was blown off. He fell 18 feet to a concrete surface, landing on his feet. As a result of the injury, the applicant broke his left leg, hurt both shoulders, and broke some teeth. He eventually needed right shoulder surgery. He was off work until July 1985.
Thereafter, the applicant noted the onset and progression of right hip pain. Nonetheless, he was able to continue to work. Since 1990, he has been employed continuously by Duwe Metal Products, Inc. (Duwe) He testified that in this employment, he noted problems with his right hip while working on a five-story building in Milwaukee in 1993-94, and he complained to his supervisor. Other than that, he evidently did not complain to Duwe about the problem until February 1997.
Indeed, his medical records refer to his hip only two or three times from 1985 to 1997. A physical therapy note in March 1988 (when the applicant treated for an unrelated back injury) mentions minor hip pain. Exhibit B. Arthritis was evident in the right hip on x-ray in July 1996, when the applicant saw a doctor for another back injury. This note does not mention hip pain, however. (2) Exhibit E. One of the independent medical examiners refers to a similar showing on x-ray in 1991.
Otherwise, the medical notes do not mention hip complaints despite considerable treatment for a crushed foot in 1986; back pain in 1987, 1989, 1991 and 1996; his knees and shoulder following another fall at the workplace in 1994; a cut thumb in 1995; and a neck injury in 1995. See Wausau exhibit 3.
The applicant testified that the hip pain got much worse while he was working for Duwe on a state building project, the Kohl Center in Madison. The applicant worked on the Kohl Center project from November 1996 to November 1997.
The applicant explains that his job at the Kohl Center involved putting the stairs in. He did a lot of climbing on scaffolding and temporary stairs. The applicant was foreman on this job, but he testified he was a working foreman doing normal ironworker duties. He did the lighter paperwork the job entailed before or after work or on break. Transcript, pages 57 and 80.
At any rate, the applicant's hip pain became terrible, and would not go away. He describes the pain as increasing from climbing up and down scaffolding or temporary stairs in the seating area of the Kohl Center before the permanent stairs were put in, a job which he began in January 1997. Transcript, pages 43-44, 46- 47, 58, 75. He also mentioned falling on his buttocks on ice about this time, disrupting the pain in his hip. Transcript, page 61.
The applicant went to see David Mellencamp, M.D., on February 21, 1997, with whom he had treated for many of the injuries described above. Dr. Mellencamp's February 21, 1997 note describes the applicant as complaining that the right hip pain "was killing him." Dr. Mellencamp noted that the applicant was working on a stadium construction in Madison, and that the applicant had to walk up relatively large steps "where the chairs are going to be and it's killing his hip." Exhibit F. The applicant had significant limitation of motion in his right hip; his other hip was normal. X-rays showed the slow progression of the osteoarthritis in his hip; the doctor prescribed Relafen (an anti-inflammatory.)
According to the applicant, Dr. Mellencamp also told him during this visit that he eventually would need a new hip, but left the decision up to the applicant. Accordingly, the applicant began treating with Ernest Pellegrino, M.D., in March 1997. He testified he began treating with Dr. Pellegrino because the doctor practices in Madison, near the Kohl Center work site, and because fellow ironworkers had recommended him.
In his note for March 19, 1997, Dr. Pellegrino noted that the applicant thought he might have been injured at work on February 17, 1997 while simply walking up some steps. The doctor also noted the fall in 1984, and the applicant's complaint that over the ensuing years he experienced stiffness in his hip causing, for example, the applicant to have difficulty putting his right shoe on. The doctor noted that the applicant had been complaining of hip pain for two months, associated with mounting scaffolding and temporary steps. Exhibit G.
According to Dr. Pellegrino, x-rays showed severe traumatic arthritis in the left hip, and a normal right hip. His diagnostic impression was severe traumatic arthritis, aggravated recently by increased physical activity. The doctor wanted the applicant to treat with anti-inflammatories until he could no longer stand the pain before considering surgery.
The applicant returned to Dr. Pellegrino on August 21, 1997, complaining of increasing disability. The applicant told the doctor he wanted to go ahead with a total hip arthroplasty in November. The doctor explained the risks, and told him to call in the future to schedule the procedure.
Dr. Pellegrino performed the total hip replacement arthroplasty surgery, on a diagnosis of traumatic arthritis, right hip, on December 3, 1997. Thereafter, the applicant treated with a colleague of Dr. Pellegrino's, David A. Wolff, M.D., who released him to clerical work in April 1998, and his regular job on October 29, 1998. See exhibit I. Dr. Wolff's October "physician's statement" at the end of exhibit I refers to a work injury on February 17, 1997 occurring when the applicant fell on some steps.
As stated above, the main issue in this case is whether work caused the applicant's disability from the hip replacement surgery. The record provides expert medical opinion from three sources on that point.
Treating doctor Pellegrino opined the applicant suffered from traumatic arthritis from the October 1984 fall, which was aggravated by work at the Kohl Center thereafter. He explains this opinion in more detail in a January 27, 1998 letter to one of the insurer's adjusters, Julie A. Nuesse. Dr. Pellegrino writes:
"Firstly, severe degenerative arthritis does not occur in a young person (a 41-year old) unrelated to trauma without there having been a history to indicate some childhood disorder such as a slipped capital femoral epiphysis, congenital dislocation or dysphasia, avascular necrosis, etc. In the absence of such a history, and with the history of having had a significant fall in 1984 in which he apparently fell about 18 feet from a scaffolding fracturing his ankle and shoulder, it is very likely that articular damage to his right hip was initiated at the time of this fall without his necessarily having significant symptoms, particularly in the face of the multiple trauma that invariably occurs with a fall from such a height.
"It was apparent from his history that he was developing mechanical problems with the hip, i.e., some difficulty putting his right shoe on because of decreased range of motion in the hip since the original fall, but it was not until his February 1997 incident in which he had to climb long flights of stairs repeatedly carrying and lifting weights in the neighborhood of 40-50 pounds and on occasion even more that this condition worsened to the extent that it became necessary to require total hip arthroplasty to get him relief of his symptoms.
"I do not believe activities of daily living would have accelerated the degeneration to make it necessary to perform this surgery at the time it was done. The work-aggravated deterioration of his hip had caused a significant degradation in the quality of his life making correction of the problem better for him now rather than at some later date."
See letter at exhibit D.
Employer's Insurance of Wausau, the insurer on the risk while the applicant was working at the Kohl Center, offers the opinion of James B. Stiehl, M.D. Dr. Stiehl describes an injury occurring on February 17, 1997 when the applicant was climbing up and down a seating area and injured his right hip. In a report following an examination on December 1, 1997 (a few days before the applicant's surgery), Dr. Stiehl states:
"This individual has advanced degenerative arthritis of the right hip. In my view he could be a candidate for a right total hip replacement in the near future. Because his Harris hip score is not low enough at this point, I would advise that he could wait one or two years before seeking a hip replacement.
"It is apparent that the injury of 02/17/97 is not the cause of hip arthritis. He has reached a healing plateau from whatever aggravation he may have experienced on 02/17/97. Clearly, the type of work that he had done at that point aggravated his hip to some degree to where he sustained a temporary aggravation. Nevertheless, it is apparent that he did not sustain a permanent injury in and of that specific injury itself. It is likely that he will be capable of returning to work following a hip replacement, should that be done."
Exhibit Wausau 1, December 4, 1997 report of Stiehl, page 3.
Dr. Stiehl re-examined the applicant in March 1999, following his recovery from the hip replacement surgery. He opined that the applicant's hip replacement surgery was not caused by his employment with Duwe Metal Products in February 1997 while working at the Kohl Center. He did rate permanent partial disability at 40 percent compared to amputation of the leg at the hip (the administrative rule minimum for a hip replacement), and set out significant permanent work restrictions, which he reiterated were due to the long-standing problem of arthritis in his hip. The restriction prohibited the applicant from being on his feet more than 4 hours per day, lifting more than 30-35 pounds, and "repetitive leading steps with his right hip including walking ladders, stairs, etc." See exhibit Wausau 2, Stiehl report of March 9, 1999, at page 3.
American Mutual (the insurer on the risk for the 1984 fall) offers the report of Kurt J. Ehlert M.D. His report dated March 1, 1999 is at Exhibit Amer Mut 4. Dr. Ehlert opines that the applicant has osteoarthritis of both hips, much more severe on the right than the left. He found no evidence the condition was related to the 1984 work injury, noting the lack of complaints from 1984 to 1997, as well as the evidence of mild osteoarthritis in the x-rays in 1987 and 1991, both of which he said indicated against a single traumatic cause of the osteoarthritis. He states that the progression of the osteoarthritis is evident and that by the July 1996 and February 1997 x-rays of the applicant's hip, there is essentially no cartilage in the superior aspect of the right hip. He agreed that significant osteoarthritis was unusual in a man as young as the applicant, but is not unheard of.
Dr. Ehlert rated permanent partial disability at fifty percent compared to amputation at the leg, and set out restrictions against lifting, pushing or pulling more than 50 pounds on other than an occasional basis.
The commission concludes, based on Dr. Pellegrino's opinion, that the applicant's employment while working at the Kohl Center in January and February 1997 when he was working in the seating area and using the temporary stairs, was a material contributory factor in the progression of the underlying arthritic condition in his hip, and made the arthroplasty surgery necessary. The commission believes Dr. Pellegrino correctly concluded that the applicant suffered traumatic arthritis to his right hip beginning with the 1984 fall. The arthritis is essentially one-sided, not bilateral as one might expect from an underlying systemic problem. In addition, even IME Ehlert agrees that non-traumatic osteoarthritis in the hip is rare in men as young as 41. And there is absolutely no evidence of hip complaints before the 1984 fall.
If an appreciable period of workplace exposure causes the progression of an underlying disease process, that exposure is causally-related to the additional disability under a theory of occupational disease. In other words, despite a pre-existing condition, even a work-related pre-existing condition, a subsequent employer may be held liable for additional disability caused by subsequent work exposure that makes the pre-existing condition worse. Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (1978); E.F. Brewer Co. v. DILHR, 82 Wis. 2d 634 (1978).
The commission concludes from Dr. Pellegrino's notes and reports that that is precisely what happened here. Dr. Pellegrino emphasizes the causative role of the repeated stair-climbing while carrying weights in the neighborhood of 40 to 50 pounds. While the doctor referred to this activity as an "incident" both his notes and the applicant's testimony document complaints of pain over time associated with mounting scaffolding and temporary steps.
The commission also notes that IME Stiehl restricts the applicant from the very activities he has engaged in from his return to work after the 1984 fall to his 1997 hip replacement surgery, attributing the restrictions to the applicant's long term osteoarthritis. If in fact the applicant should not stand for more than four hours or lift more than 35 pounds because of the underlying osteoarthritis, one may reasonably infer working in excess of those restrictions while going up and down temporary stairing at the Kohl Center caused the progression of his condition.
The commission acknowledges Dr. Ehlert's report that the cartilage in part of the applicant's hip was essentially gone by the time of the July 1996 x-ray, which was before the work at the Kohl Center began. However, IME Ehlert also noted that the applicant was not symptomatic according to the September 1996 note of Dr. Mellencamp. Exhibit Amer Mut 4, pages 2 and 3. Indeed, Dr. Mellencamp's note indicates the applicant was in fact treating for another condition at the time, specifically, a back injury.
Beyond that, the entire progression of the condition need not be attributable to one employer let alone one insurer, in order to hold the date of injury insurer and employer liable. It is enough that the work exposure with the liable employer and insurer be a material contributory causative factor. See Universal Foundry, supra. Indeed, in Travelers Ins. Co. v. ILHR Department, 85 Wis. 2d 776, 782 (Ct. App., 1978), the court of appeals states:
"Judicial construction of [Wis. Stat. § 102.01(2)(f), the definition of `date of injury' in cases of occupational disease] has imposed the entire liability upon the last employer whose employment caused the disability resulting from the disease, without contribution from prior employers whose employment also caused the disease. The liability of each employer's insurer is determined in the same manner. If a single employer has successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred."
In this case, it was only after three months work at the Kohl Center, and about a month
in the seating area with the temporary stairs, that the applicant's hip condition led him
to seek treatment specifically for the hip.
The next question is the date of injury. In occupational disease cases, the date of injury
is now defined as the last day of work for the last contributing employer or the
date of disability, whichever is first. Wis. Stat. § 102.01(2)(g). The date of disability
is the first day of lost work time due to the occupational disease, and can include time
lost to see a doctor.
As Employer's Insurance of Wausau points out, there is no evidence of lost work time until the applicant stopped working on November 28, 1997, just before his December 3, 1997 hip replacement surgery. If the applicant lost work time to see Dr. Mellencamp in February 1997 and Dr. Pellegrino in March and August 1997, it has not been proven. Thus the date of disability, and the date of injury, is November 28, 1997.
The applicant testified he worked at the Kohl Center until November 28, 1997 when he stopped working to undergo his hip replacement surgery. The commission assumes that Employer's Insurance of Wausau was still on the risk in November 1997. The commission also notes that the November 28, 1997 date of injury does not affect liability for prior medical expense related to the hip, because medical expenses incurred to treat an occupational disease before the technical date of injury are compensable. United Wisconsin Ins. Co. v. LIRC, 229 Wis. 2d 416, 430 (Ct. App. 1999).
The applicant was temporarily and totally disabled from November 28, 1997 until his release by Dr. Wolff on October 29, 1998 (both dates exclusive), a period of 47 weeks and four days. At the weekly rate of $509 (the statutory maximum for injuries sustained in 1998), the applicant is entitled to $24,262.33 in temporary disability compensation.
The applicant has also sustained permanent partial disability at 40 percent compared to amputation at the hip, the minimum rating for a total hip prosthesis under Wis. Admin. Code § DWD 80.32(3). This amounts to 200 weeks of permanent partial disability at the weekly rate of $174 per week (the statutory maximum for injuries occurring in 1998), totaling $34,380. As of February 11, 2000, 67.333 weeks of permanent partial disability totaling $11,716.00 have accrued, 132.667 weeks totaling $23,084 remain unaccrued.
Including the temporary total disability compensation, the total amount of disability compensation awarded under this order is $59,062.33, of which $35,978.33 has accrued as of February 11, 2000.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded under this order. The future value of the fee is thus $11,812.47 (0.20 multiplied by $59,062.33). However, as of February 11, 2000, only the part of the fee attributable to the temporary disability and the first 67.333 weeks of permanent partial disability ($7,195.67) has accrued; the fee attributable to the remaining 132.667 weeks of permanent partial disability compensation ($4,616.80) remains unaccrued and is subject to an interest credit of $391.37 to obtain its present value ($4,225.43.) The present value of the entire fee, then, is $11,421.10 and that amount, plus costs of $303.24 shall be paid to the applicant's attorney within 30 days.
The amount due the applicant within 30 days is $28,479.43. This equals the sum of the temporary disability compensation ($24,262.33) plus the permanent partial disability compensation accrued through February 11, 2000 ($11,716.00), less the attorney fee on the accrued compensation ($7,195.67), and less costs ($303.24).
The amount remaining to be paid to the applicant as it accrues after February 11, 2000 is $18,467.20. This equals the unaccrued compensation ($23,084.00), less the fee thereon ($4,616.80) without deducting the interest credit. This remaining amount shall be paid to the applicant in monthly installments of $754.00, beginning on March 11, 2000.
The applicant also incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury much of which, as set out in exhibit C, has been paid by the applicant and other insurers. According to that exhibit, Dean Medical Center is entitled $152.85 in outstanding medical expense, Iron Workers Local 8 Welfare Fund is entitled to reimbursement for medical expenses paid in the amount of $22,436.13, CNA is entitled to reimbursement for medical expenses paid in the amount of $160.92, and the applicant is entitled to out-of-pocket medical expenses totaling $1,152.27.
The applicant continues to have pain, as documented by Dr. Wolff's treatment notes. Dr. Wolff's note for October 29, 1998 also indicates that, while the implants appear to be well-fixed and aligned, some aspects of the applicant's total hip replacement surgery are less than ideal. Because the applicant may sustain additional treatment expense, temporary disability, and permanent disability, this order shall be left interlocutory on those issues.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
INTERLOCUTORY ORDER
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 30 days, Duwe Metal Products, Inc. and Employers Insurance of Wausau shall pay all of the following:
1. To the applicant, James L. Derr, Twenty-eight thousand four hundred seventy-nine dollars and forty-three ($28,479.43) in disability compensation.
2. 3. To the applicant's attorney, Steve Kluender, the sum of Eleven thousand four hundred twenty-one dollars and ten cents ($11,421.10) in fees and Three hundred three dollars and twenty-four cents ($303.24) in costs.
4. 3. To Dean Medical Center, One hundred fifty-two dollars and eighty-five cents ($152.85) in medical treatment expense.
4. 5. To Iron Workers Local 8 Welfare Fund, Twenty-two thousand four hundred thirty-six dollars and thirteen cents ($22,436.13) in reimbursement of medical expense.
6. 7. To CNA, Two hundred ninety-four dollars and thirty cents ($294.30) in reimbursement of medical treatment expense.
8. 6. To the applicant, One thousand one hundred fifty-two dollars and twenty seven cents ($1,152.27) in out-of pocket medical expense.
Beginning on March 11, 2000, and continuing on the eleventh day of each month thereafter, Duwe Metal Products, Inc. and Employers Insurance of Wausau shall pay the applicant Seven hundred fifty four dollars and no cents ($754.00) per month until the additional amount of Eighteen thousand four hundred sixty-seven dollars and twenty cents ($18,467.20) has been paid.
Jurisdiction is reserved against Duwe Metal Products, Inc. and Employers Insurance of Wausau for such further findings, orders and awards as may be warranted.
Dated and mailed February 10, 2000
derrja.wrr : 101 : 5 § 3.4
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. The employe had a major injury in 1984 when he fell from a ten inch I-beam eighteen feet to a concrete surface and landed on his feet. After that injury the employe had hip pain which continued to progress. The employe testified he experienced problems with his right hip after he returned to work in July 1985. He described it by saying "I was just getting tremendous pain in my hip and just keeps getting worse and worse, and it kept getting worse and worse." He continued to experience pain in his right hip walking around, climbing ladders and scaffolding, and jumping off flatbed trailers. He indicated the pain became more severe and more frequent.
The medical reports show that the applicant reported right hip pain March 17, 1988 which having physical therapy for a low back strain. In 1987, Dr. Mellencamp took x-rays which showed the beginnings of traumatic arthritis. On May 21, 1991, x-rays showed progressive narrowing and irregularity in the superior aspect of the right hip, as well as peripheral femoral head and neck osteophytes in the right hip as well. On July 26, 1996, x-rays showed a traumatic arthritic condition such there was no cartilage left in the superior aspect of the right hip joint. Dr. Elhert reported that he did not notice any difference in the x- rays taken on February 21, 1997 from those taken July 26, 1996.
For these reasons, I agree with Dr. Stiehl that the applicant's condition was the normal progression of his degenerative condition and that the applicant's experience at the Kohl Center was at most a temporary aggravation of his underlying condition. The employe would have had the hip surgery earlier based on the x-rays but doctors would have delayed his surgery as long as they could because of his age because hip replacements have a limited life span. I would find that his need for the hip replacement was caused by the natural progression of the arthritis from his 1984 injury.
_________________________________________
Pamela I. Anderson, Commissioner
cc: ATTORNEY STEVEN G KLUENDER
PREVIANT GOLDBERG UELMEN GRATZ MILLER & BRUEGGEMAN SC
ATTORNEY GARY S STANISLAWSKI
ZILSKE LAW FIRM SC
ATTORNEY PEGGY E VAN HORN
STILP & COTTON
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Footnotes:
(1)( Back ) The applicant describes temporary stairs as having a really steep rise, 12-15 inches instead of the normal 7. Transcript page 29.
(2)( Back ) Nor was any course of treatment recommended or delayed, contrary to the dissent's hypothetical suggestion.