STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MAPLEWOOD NURSING HOME, Applicant
CONNECTICUT INDEMNITY CO, Applicant
JACKIE MCKENZIE, Employe
EVANGELICAL LUTHERAN GOOD SAMARITAN, Employe
TRAVELERS INSURANCE CO, Insurer
WORKER'S COMPENSATION DECISION
Claim Nos. 1995046225 & 1996013441
Jackie McKenzie (the employe) underwent shoulder surgery in April 1996. She relates the need for surgery, and associated disability, with shoulder injuries at work in August 1995, in October 1995, and in February 1996. When the 1995 injuries occurred, she was working at Evangelical Lutheran Good Samaritan (Evangelical). When the February 1996 injury occurred, she was working at Maplewood Nursing Home (Maplewood.)
Maplewood and its insurer, The Connecticut Indemnity Co. (Connecticut Indemnity EBI), filed an application to determine the respective liabilities of the employers and their insurers for the April 1996 surgery and for the disability arising from it. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development held a hearing on this issue on July 23, 1998. No testimony was taken at the hearing, though both insurers submitted exhibits which constitute the record in this case.
The ALJ issued a decision on March 15, 1999, holding Evangelical and its insurer, Travelers Insurance Company (Travelers-Constitution) liable. Evangelical filed a timely petition for review. 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
1. Facts.
The employe was born in 1950. She started working as a certified nursing assistant for Evangelical in about 1992. She had no shoulder complaints before August 1995.
a. Employment at Evangelical.
On or about August 1, 1995, (1) the employe injured her right shoulder at Evangelical as she was turning a resident, which she did by pulling on a "draw sheet." She felt a "pop" and the onset of pain. The employe sought treatment from her family doctor, Christopher Cervantes, M.D., on August 2, 1995.
Dr. Cervantes noted an injury three and one-half weeks earlier (2) while rolling a patient towards herself on a bed, causing a sharp pain in the right anterior shoulder. The employe took some Ibuprofen which provided some relief, and continued to work. However, she noted a sharp pain when using a Hoyer lift at work or shifting the gears in her motor vehicle. She could not lift her arm above shoulder level without pain.
Dr. Cervantes gave a differential diagnosis of glenoid labrum tear versus rotator cuff injury. He increased her Ibuprofen dosage. He noted that if she did not improve within two weeks, he would order a CT arthrogram, and refer her to orthopedics. He also took her off work and ordered physical therapy.
The file also contains notes from the physical therapist, K. Hutter, on August 8, 1995. Exhibit EBI 6. Ms. Hutter noted the onset of symptoms, including feeling a pop, when the employe was rolling a patient towards herself. The employe told Ms. Hutter she had continuing symptoms of a dull ache in her shoulder, which turned into sharp pain and popping with movement.
By August 15, 1995, Ms. Hutter reported the employe's shoulder "felt great" with only a twinge a couple of times a day for a couple of seconds. On August 21, 1995, Dr. Cervantes noted a very minimal amount of pain while abducting at 180 degrees, and that she no longer had any popping, catching, weakness, etc. The doctor noted left shoulder crepitance, and none in the injured right shoulder. She felt she was doing quite well and wanted to return to light duty work. See EBI exhibit 6.
Handwritten notes from Dr. Cervantes's office indicate that the employe subsequently was released for normal duties on August 30, 1995. A September 22, 1995 office visit for sinusitis does not mention any shoulder problems.
The employe then sustained a second injury on October 2, 1995. Neither of the employe's recorded statements taken by the two insurers in this case mention this injury. See Constitution SS exhibit 2 and EBI exhibit 1. Nonetheless, the injury is documented in an October 4, 1995 note from Dr. Cervantes.
On that date, Dr. Cervantes noted that the employe reinjured her shoulder about a month and a half after being discharged from therapy following the August 1995 injury; the nurse's note puts the date at October 2, 1995. CSS exhibit 10. The October 1995 injury, too, involved a "pop" while trying to move a patient. She first saw a physician's assistant, who put her in a sling.
Dr. Cervantes himself heard an audible pop on examination when he moved the employe's shoulder. He noted tenderness over the anterior portion of the glenohumeral joint. His diagnosis was recurrent rotator cuff injury/glenoid labrum tear. He put her on light duty, recommended she use Tylenol for pain, and referred her to orthopedics for further testing.
The employe then saw Arnold Rosenthal, M.D., on October 10, 1995. See EBI exhibit 7. Dr. Rosenthal's note describes the August 1995 injury while transferring the patient; that the employe was doing well after conservative treatment and had completely improved until a second injury in October 1995; that the October 1995 injury occurred when she was turning a patient; and that she again noted a pop and crunch in her right shoulder.
The employe complained of pain over the superior aspect of the right shoulder. On examination, the doctor noted positive impingement testing with crepitus noted upon range of motion testing. He also noted pain over the subacromial bursa. His impression was right shoulder subacromial bursitis secondary to the work injuries of August 1995 and October 1995.
For treatment, the doctor recommended a cortisone injection. The employe reported improvement in her symptoms immediately after the injection. He put her on light duty for two weeks, and scheduled follow-up in one month.
It does not appear that appointment was kept.
b. Employment at Maplewood.
In December 1995, the employe switched jobs and began working at Maplewood as a certified nursing assistant. She completed a health questionnaire for Maplewood which denied a history of injuries, and specifically denied any defect, deformity, or disease which may interfere with work. CSS exhibit 5. She also underwent a pre- employment physical for this job on December 12, 1995. In another required questionnaire required by the examining doctor she reported bursitis in June 1995. However, during her physical examination, she denied joint or back pain and, on examination, her extremities were described as normal. CSS exhibit 7.
On February 26, 1996, while working at Maplewood, the employe experienced a third work injury. She again experienced a "pop" and extreme pain while turning a nursing home resident where she worked. She sought treatment at the Sauk Prairie Memorial Hospital emergency room that day. The emergency room nurse's note describes right shoulder pain following the work injury. It notes the prior medical history of bursitis. CSS exhibit 8.
The emergency room doctor, Haakon Carlson, M.D., described an injury occurring when the employe and another worker were rolling a patient. Dr. Carlson reported that while she had her elbows at her sides and her hands in front of her chest pushing, the employe experienced a sudden snap or painful popping sensation in her right shoulder. She felt immediate discomfort and pain in the anterior aspect of the right shoulder.
On examination, emergency room doctor Carlson noted the employe had difficulty raising her arm forward more than 15 degrees from her body, and more than 15- 20 degrees in abduction caused pain. She was unable to bring her hand back to the top of her head. Dr. Carlson diagnosed right shoulder strain, and a possible right rotator cuff tear. CSS exhibit 9. The doctor's instructions were to avoid painful use of the shoulder for the next day or two, and to follow-up with her doctor if not progressively improving in the next week. He also recommended cold packs.
The employe then saw Dr. Cervantes on February 29, 1996. He, too, noted the painful pop upon turning a patient. He also noted that she was lifting properly with another person to help. She had considerable pain, and difficulty abducting or flexing her shoulder. His assessment was current subacromial bursitis versus glenoid labrum tear. He thought she should again be seen by orthopedics, either for imaging or reinjection. CSS exhibit 10.
Accordingly, the employe returned to Dr. Rosenthal for follow-up on her right shoulder on March 4, 1996. Exhibit EBI 7. He noted that she was initially seen in October 1995, after the August 1995 injury transferring a patient at work. He noted a re-injury to her shoulder while moving a patient on February 26, 1996. He also noted that her shoulder never improved after the injection in October 1995.
Dr. Rosenthal reported that x-rays from the emergency room showed a bony spur off the distal clavicle. The employe had a full range of motion, but pain upon palpation at the distal rotator cuff. Impingement testing was positive. He opined that the employe had a right rotator cuff impingement related to the initial work injury of August 1995. He wanted to do an MRI.
The MRI report is at exhibit CSS 9. The MRI was negative for a complete rotator cuff tear, but was suspicious for impingement secondary to a subacromial spur which raised the possibility of a partial tear.
c. The surgery and recovery.
The MRI findings evidently led Dr. Rosenthal to recommend surgery. The employe then saw Dr. Cervantes for a pre-operative physical on April 11, 1996. Exhibit CSS 8. He noted two rotator cuffs tears related to work at Evangelical. Dr. Cervantes went on to opine that the employe recovered nicely from these, following physical therapy and steroid injection. He went on to report that the employe experienced a sudden painful pop in her right shoulder when she attempted to turn another patient in February 1996. He noted the MRI showing impingement and the spur, and a repeat cortisone injection. His diagnostic assessment was right supraspinatus impingement requiring a Neer Mumford procedure.
Dr. Rosenthal performed the right Neer Mumford shoulder decompression procedure on April 17, 1996, based on a diagnosis of right shoulder impingement syndrome. His operative report states that the subacromial space was quite tight with a large bursa present. The doctor performed a bursectomy and thinned the anterior and inferior aspect of the acromion with a power bur. He also examined the rotator cuff, but found no evidence of a tear.
The employe's recovery was normal. According to an IME's report of Dr. Rosenthal's records, Dr. Rosenthal released her to return to work on July 8, 1996. See CCS exhibit 1, December 1997 report of Becker, page 2. He released her to work without restriction on July 26, 1996. CSS exhibit 3.
The employe saw Dr. Cervantes again on September 5, 1996, this time complaining of pain in her left shoulder, which she did not associate with any specific work injury. Dr. Cervantes diagnosed subacromial bursitis, took the employe off work for a day, and set restrictions.
Finally, Dr. Rosenthal saw the employe in follow-up for her Neer Mumford decompression on March 6, 1997. He reported that the employe did quite nicely following surgery. She had a good range of motion and complained only of a mild lack of endurance. He released her to return for treatment as needed, and rated permanent partial disability at five percent compared to amputation of the arm at the shoulder.
2. Expert medical opinion.
As noted above, this case involves only a dispute between insurers as to which injury or injuries caused the need for the April 1996 surgery and resulting disability. The record contains a substantial amount of conflicting expert medical testimony on that issue.
a. Treating surgeon Rosenthal.
In his treatment note for March 6, 1996, Dr. Rosenthal opined that the very first injury--the one in August 1995--caused the need for the eventual surgery in April 1996. On June 6, 1996, Dr. Rosenthal also responded to a series of interrogatories submitted by the adjuster for Maplewood's insurer (EBI Companies). In that response, the doctor indicated
EBI exhibit 5.
On November 21, 1997, Dr. Rosenthal gave a similar opinion when he agreed with the statement:
"all of Ms. McKenzie's time off work following the February 26, 1996 injury and the April 17, 1996 surgery, and the five percent permanent partial disability (are) all related to the August, 1995 work injury at [Evangelical]."
EBI exhibit 3.
These reports from Dr. Rosenthal all seem to place responsibility for the disability squarely on Evangelical, who was on the risk at the time of the August 1995 and October 1995 injuries. However, Evangelical also offers reports from Dr. Rosenthal to establish that Maplewood, who was on the risk at the time of the April 1996 injury, is instead responsible.
The first is Dr. Rosenthal's March 26, 1996 response to a letter from the insurer for Evangelical (Constitution State). The insurer's adjuster noted the August 1995 injury, the cortisone injection, and the employe's return to work. The adjuster also noted that the employe had passed her pre-employment physical with Maplewood, and then on February 26, 1996 had an incident causing pain so severe she had to seek medical attention at the local hospital ER. With that as background, Dr. Rosenthal explained:
Then, on the date of his final post-operative examination of the employe, March 6, 1997, Dr. Rosenthal signed a medical report on industrial injury. CSS exhibit 3. He reported a history of a re-injury to the employe's right shoulder while moving a patient on February 26, 1996, and a diagnosis of right rotator cuff impingement. He opined that "surgery was performed as a result of [the] accident" and that permanent partial disability resulted which he rated at five percent.
And, of course, while Dr. Rosenthal subsequently attributed the employe's need for surgery and her disability to the August 1995 injury, at the time of her October 1995 injury he noted a complete recovery from the August 1995 injury. Exhibit EBI 7, Rosenthal note of October 10, 1995.
b. The IMEs
The record also contains reports from two independent medical examiners retained by the employers.
Evangelical offers the opinion of Thomas O'Brien, M.D. CSS exhibit 1. He opined that the employe had degenerative changes in her rotator cuff even before the August 1995 work injury. He thought the August 1995 and October 1995 incidents were temporary aggravations of that condition, or flare-ups, which resolved with the cortisteroid injection given by Dr. Rosenthal in October 1995. He believed she reached a healing plateau, evidently without additional permanent disability, when she returned to work on October 24, 1995.
IME O'Brien also suggested that the statement in Dr. Rosenthal's March 4, 1996 note that the employe never completely recovered is belied by the fact that she did not complain of pain to Dr. Cervantes in appointments between November 1995 and February 1996, by the fact she passed her pre-employment physical with Maplewood, and by the fact that she worked both at Evangelical and Maplewood without restriction until the February 1996 injury.
Maplewood retained Douglas Becker, M.D., who performed a file review. EBI exhibit 4. Dr. Becker diagnosed temporary aggravation of chronic pre-existing right shoulder rotator cuff tendinitis and impingement syndrome. He specifically opined that prior to February 26, 1996, the employe had a long-standing history of right rotator cuff tendinitis and impingement syndrome shown by x-ray and ongoing symptoms. He opined the February 26, 1996 incident caused a temporary aggravation of the pre-existing condition that caused no permanent disability, and from which the employe returned to baseline by March 10, 1996. He also opined that the employe fully recovered from the August 1995 injury, but never fully recovered from the October 1995 incident (based on Dr. Rosenthal's note that the employe underwent a cortisone injection without improvement in October). Noting that the employe did not return to baseline after the October 1995 injury, he concluded the October 1995 incident appears to represent a "permanent aggravation injury," leading to the need for the April 1996 surgery.
3. Discussion and award.
Evangelical contends that the more credible evidence in the record indicates that the employe recovered fully from the August and October 1995 injuries, with no residual disability or need for treatment. In support of this contention, Evangelical points out that:
However, the commission is persuaded that the employe in fact never fully recovered from the 1995 injuries. She told Dr. Rosenthal on March 4, 1996 that the October 1995 steroid injection provided no relief. EBI exhibit 7. While she told the adjuster for Evangelical's insurer that she was able to work without restriction for Evangelical and Maplewood after the October 1995 injury, he never specifically asked if she made a "complete recovery." CSS exhibit 2. Indeed, she told the adjuster for Maplewood's insurer on March 6, 1996 that she never fully recovered from the August and October 1995 injuries at Evangelical, though her arm was getting better. EBI exhibit 1, page 4.
True, the employe's condition improved after the 1995 injuries. She "recovered nicely" and was able to return to normal duties. However, the record does not prove that she got all the way better or returned to a baseline painless condition, except perhaps the pre-employment physical. And a prospective employe's statements in a pre-employment physical are probably not as reliable as those an employe makes to his own treating doctor in the regular course of medical examination. Even the employe's initial report of immediate relief with the October cortisteroid injection is not necessarily inconsistent with her subsequent report in March 1996 that the injection provided no long-term relief. Indeed, the fact that she experienced two traumatic re-injuries to her previously non-symptomatic shoulder two and four months after the August 1995 injury suggests the employe really never made a full recovery.
IME O'Brien's opinion does not rest on a finding that the employe just recovered enough from the August 1995 and October 1995 injuries that she could work in normal duty. Rather his opinion seems to be that she fully recovered from those injuries, and that the injuries were only "temporary aggravations" of the underlying degenerative condition. The commission cannot find that the record supports that conclusion.
The commission acknowledges the apparent inconsistencies in Dr. Rosenthal's reports as set out above. Despite those inconsistencies, however, the commission adopts the opinion expressed in Dr. Rosenthal's various reports and letters that the August 1995 injury while the employe was working for Evangelical caused the employe's temporary disability in 1996, the need for medical treatment including the April 1996 surgery, and the eventual permanent partial disability rated at five percent compared to amputation at the shoulder.
The employe was temporarily and totally disabled from the August 1995 injury from April 17, 1996 through July 26, 1996, a period of 14 weeks and one day. At the weekly rate of $216.75 (two-thirds of her average weekly wage of $325.13), the total for temporary total disability beyond that previously conceded and paid for disability in 1995 is $3,070.63.
The employe also sustained permanent partial disability at five percent compared to amputation of the right arm at the shoulder as a result of the August 1995 work injury. This results in an award of 25 weeks of permanent disability compensation at the rate of $164 per week totaling $4,100, all of which has accrued. In sum, the additional compensation due the employe under this order is $7,170.63.
As a further result of the work injury, the employe incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury as follows: $1,616.50 from Sauk Prairie Memorial Hospital, of which $1,588.29 was paid by Connecticut Indemnity-EBI, and the rest of which was apparently written off; $279.00 from Madison Radiologist, of which $270.40 was paid by Connecticut Indemnity-EBI, and the rest of which was apparently written off; and $3,112.88 from Orthopedic Associates, of which $44.25 was paid by the employe, $66.12 was paid by Connecticut Indemnity-EBI. A substantial portion of the Orthopedic Associates bill was paid by a health insurer for whom no claim for reimbursement is made. Travelers-Constitution shall reimburse Connecticut Indemnity-EBI and the employe for the amounts they paid. (3)
This decision simply determines the respective liabilities of the insurers, and attempts to set out some of the amount Travelers-Constitution is required to reimburse Connecticut Indemnity-EBI. The ALJ's decision states that it is impossible to determine the exact amounts of reimbursement of indemnity that may be required. Accordingly, the commission reserves jurisdiction on the application of Maplewood and Constitution Indemnity-EBI to permit adjustment of the reimbursement amounts.
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, Evangelical Lutheran Good Samaritan and its insurer Travelers Insurance Company, care of Constitution State Service, shall pay all of the following:
1. To the employe, Seven thousand one hundred seventy dollars and sixty- three cents ($7,170.63) in disability compensation.
2. To The Connecticut Indemnity Company, One thousand nine hundred twenty-nine dollars and eighty-one cents ($1,929.81) in medical expense reimbursement.
3. To the employe Forty-four dollars and twenty-five cents ($44.25) in out- of-pocket medical expense.
Jurisdiction is reserved for such orders and awards as are consistent with this decision.
Dated and mailed March 3, 2000
mckenzi.wrr : 101 : 5 ND § 3.37
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
On appeal, Evangelical asserts that permanent partial disability award was miscalculated, and that no temporary disability should have been awarded to the employe based on the prior payments made by Maplewood's insurer (Connecticut Indemnity-EBI) as shown by a form WC-13C submitted by Maplewood's attorney. The commission corrected the permanent disability award. However, neither exhibits submitted at the hearing, nor the file prepared for commission review included Maplewood's WC-13. Nor did Maplewood's attorney, despite seeking adjustment of the medical expense reimbursement order, seeks reimbursement for the temporary disability during the period from April 17 to July 26, 1996. Consequently, the commission awarded temporary disability for the period in question. If that amount was in fact already paid by Connecticut Indemnity-EBI, Evangelical and Travelers Constitution should pay the amount to Connecticut Indemnity-EBI rather than the employe.
The commission also notes that the ALJ relied on Lange v. LIRC, 215 Wis. 2d 558 (Ct. App., 1997) in reaching his conclusion that Evangelical is liable. Evangelical asserts that Lange v. LIRC is inapplicable in this case. The commission agrees with Evangelical on this point. The commission has previously held that the Lange v. LIRC analysis does not apply in cases involving successive work injuries. The commission explained:
"An employer takes its workers as they are, subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968) and E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, it does not matter whether the June 6 injury [while Regent Insurance was on the risk] would have caused the problems it did had the applicant not already suffered the injury on January 30, 1997. Regent Insurance is still liable despite the applicant's prior back condition, provided the June 6 injury either resulted in "breakage" which directly caused the additional disability or caused the additional disability by aggravating, accelerating and precipitating the applicant's pre-existing degenerative condition beyond its normal progression. Lewellyn, supra. In this case, Dr. Robbins credibly opined that the June 6, 1997 injury directly caused the additional disability.
"This leads to the discussion of Lange v. LIRC [215 Wis. 2d 561 (Ct. App. 1997)] in Regent Insurance's reply brief. In that case, the court of appeals held that if an initial work-related injury plays any part in the second, nonwork related injury, the condition following the second injury is compensable. (Lange, at 215 Wis. 2d 565; (Footnote omitted).
".Regent Insurance asserts Lange applies even though this case involves two work injuries. It is unimportant, Regent Insurance argues, whether the second injury is work-related. What is important is whether the first injury played any part in the disability after the second injury; i.e., whether the applicant would have had the same injury to the same extent after the second incident even if the first injury had not occurred.
"However, the commission concludes that the court of appeals' holding in Lange does not apply to this case. First, while Regent Insurance dismisses the fact that Lange involved a work injury followed by an off-duty injury, the court of appeals specifically limited its holding to that situation. Since the case now before the commission involves two separate work injuries, Lange is not applicable by its terms.
Harmon v. Behrens Moving Co., WC case no. 1997033480 (LIRC, June 25, 1998). In this case, the commission finds Evangelical liable, based simply on the more credible medical opinion of Dr. Rosenthal, rather than on the legal rule announced in Lange v. LIRC.
cc: ATTORNEY LESLIE A EVEN
QUARTARO CASTAGNA EVEN & CAFARO
ATTORNEY MARK P MC GILLIS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC
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Footnotes:
(1)( Back ) Although this injury evidently actually occurred in mid-July 1995, the parties call this the August 1995 injury.
(3)( Back ) The commission calculates the sum of Connecticut Indemnity-EBI payment as shown on EBI to be $1,924.81