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

DARRYL A OELKE, Applicant

IMPERIAL INDUSTRIES INC, Employer

WAUSAU INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999026076

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, except that it makes the following modifications:

In the second sentence of the first paragraph on page 5 of the Decision, delete the number "5%" and substitute therefor "10%."

Delete the first paragraph of the Order and substitute therefor:

Within 30 days from the date of this decision, respondent and insurance carrier shall pay to the applicant, Darryl A. Oelke, the sum of Fourteen thousand two hundred sixty-nine dollars and twenty cents ($14,269.20); and to the applicant's attorney, Matthew E. Yde, the sum of Three thousand five hundred sixty-seven dollars and thirty cents ($3,567.30) as attorney's fees. Then, on the 26th day of each month beginning on November 26, 2000, the respondent shall pay to the applicant the sum of Seven hundred seventy-five dollars and sixty-seven cents ($775.67) until the additional amount of Two thousand four hundred fifty-eight dollars and twenty-seven cents ($2,458.27) is paid.

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed November 2, 2000
oelkeda.wmd : 145 : 5   ND § 8.24

when both fusion and disc removal are performed at the same time, minimum rating is 10% (combination of 5% for each)

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the respondent asserts that the chiropractic notes of Dr. Draeger indicate that applicant was at times engaged in non-work related activity including helping a friend erect a garage and his neck would become stiff and sore. The respondent gives several examples of this. While this argument does have a certain logical appeal, the fact is that the respondent's own medical expert, Dr. James Gmeiner noted in his report that he had reviewed the very notes of Dr. Draeger cited by the respondent's attorney. However, Dr. Gmeiner opined that the applicant's neck problems were merely the result of the natural manifestation of cervical disc disease. Dr. Gmeiner never opined that there were any outside activities that caused his disc disease. The commission cannot find that applicant's disc disease was caused by his non-work activities in the absence of medical opinion supporting that conclusion.

The respondent further asserts that applicant's problems were insidious in onset, and that applicant's own doctor, Dr. Weissman, was initially uncertain as to whether applicant did in fact sustain a work related injury. The respondent further asserts that it believes Dr. Weissman checked an incorrect box on his WC-16-B. However, in this case, the applicant suffered a cervical herniation as the result of flexing his neck forward in awkward positions while welding. The applicant testified as to his job duties and the practitioner's report signed by Dr. Weissman expressly refer to that activity when describing the causative work exposure. The commission notes that applicant was a welder for the employer for about ten years and would wear a helmet that weighed two or three pounds. The applicant testified that he had long-standing neck pain but it began to get worse early in December of 1998. He had sharp pain in his right arm. On December 28, 1998 he was under a tank and was in such pain that he sought medical treatment right after work. Given the nature of applicant's work, the commission finds Dr. Weissman's opinion that this caused applicant's neck injury to be credible. Dr. Shebuski also opined applicant suffered a work injury from his welding activities over the years. The commission and the courts generally elevate the substance of a narrative report describing causation over the check marks on the practitioner's report form. Johnson Welding & Manufacturing Co. v. LIRC and Skogstad, case no. 94CV704 (Wis. Cir. Ct. Eau Claire County, July 3, 1995); Harnischfeger v. LIRC and Dzenzeol, case no. 95-0212 (Wis. Ct. App. August 8, 1995); and Anderson v. LIRC and Quad Graphics, case no. 95- 1023-FT (Wis. Ct. App. November 7, 1995 (where LIRC was reversed after denying based on the treating doctor having marked two causation boxes.)

The commission has modified the administrative law judge's order to award an additional 5 percent disability as required under the administrative code, because Dr. Weissman performed an anterior cervical discectomy and fusion. Wisconsin Administrative Code § DWD 80.32(11), by its terms, by the note attached to that section, and by the examples provided in the note make it clear that 5 percent is the minimum rating for a fusion or for removal of disc material. Further, when both occur at one time the minimum rating is 10 percent.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. If I had found causation, I would agree with the majority that the award should be 10% rather than 5% PPD. While Dr. Weissman found that the carpal tunnel problem was a work related problem, he also wrote "The cervical condition, however, is less obvious as far as etiology is concerned." Dr. Weissman did not check the occupational disease box but the aggravation beyond the normal progression of the disease box. The applicant did not report specific problems at work with his neck. Dr. Weissman's note of January 28, 1999 about an appointment on January 22, 1999 reports "There is a bit of concern with his working situation, as this was not a workman's comp issue and his employer does not appear to be the most compassionate individual." That statement appeared two weeks after his surgery. Later Dr. Weissman changes his mind but does not give any explanation for the change.

I found Dr. Gmeiner to be most credible. He found that the applicant's problem was the natural progression of his underlying degenerative process. The applicant's neck problem came on over time and he did not report work related incidents which contributed to his problem.

For these reasons, I would reverse and find that the neck problem was not work related and dismiss the application.

____________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY MATTHEW E YDE
STRASSER & YDE SC

ATTORNEY MARK W PARMAN
STILP & COTTON

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