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

JACK B BENEDIK, Applicant

NIAGARA OF WISCONSIN PAPER CORPORATION, Employer

AETNA CASUALTY AND SURETY COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92024231

The administrative law judge issued his findings of fact and order in this case on November 7, 1994, following a hearing on October 5, 1994. The applicant has submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) submitted a brief in response to the petition.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $748.16, and a November 30, 1991 compensable injury. The respondent conceded and paid temporary total disability from March 24 though April 12, 1992 and from May 11 through June 21, 1992, in the total amount of $3,427.33. The respondent also conceded and paid about $4,000.00 in medical expenses.

The issues in this case are the nature and extent of disability beyond that conceded, and liability for additional medical expenses.

The commission has carefully reviewed the entire record in this case, including the petition and brief submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and order and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on September 4, 1955. He began working for the employer, a paper company, on September 24, 1990. The applicant's job included working with logs during the initial stages of processing the logs into paper. One of his main duties was to guide the logs through a "log pond" (where they were washed) onto a conveyor belt. The applicant used a 10-foot long gaff hook or harpoon to guide the logs.

The work required a lot of upper body strength, primarily in the right arm and shoulder. The applicant testified that the logs weighed between 700 and 800 pounds, and that when one pulled back on a log "it was like pulling your arm out of the socket." He described the pace as continuous, and sometimes frantic, as the workers tried to avoid a "plug-up." A plug-up occurred when wood got out of control, so that the process would have to be stopped while the logs were lined up and unjammed.

Indeed, the employer's own position description states that "much strength is needed to push, pull or lift ... wood" in the event of a "plug-up" and that the individual pieces of wood could weigh either 350 or 750 pounds depending on location of the jam. As much as an hour of work might be necessary to clear a jam. See "Woodroom Operator Duties," Exhibit D. The applicant testified without contradiction that there could be two or three "plug- ups" per shift.

The applicant experienced neck and shoulder pain on November 30, 1991, upon lunging with his gaff/harpoon while working on the log pond. The temperature was about 30 degrees that day, with ice and snow on the ground that day. The applicant described the pain as a burning, pressure type pain in the neck and shoulder. He reported the injury to his employer.

The applicant developed pain down into his arm within 2 days. He then saw Dr. Ziemba, who took the applicant off work, prescribed anti-inflammatories and referred him to Steven C. Slajus, D.O., for orthopedic treatment.

Dr. Slajus saw the applicant on December 30, 1991. His notes describe the work injury, and resulting pain in the scapula, radiating into the neck and down the right arm. He reported the applicant's statements that he had previously had tingling in his hand "about one year ago," and that an MRI of his neck and shoulder done at that time showed "disc disease." Dr. Slajus evidently never saw the earlier MRI report, however. In fact, an MRI report dated January 11, 1991 showed "minimal changes of spondylosis involving the C5-6 and C6-7 levels without evidence of focal enlargement or compression."

Dr. Slajus did order x-rays of the applicant's cervical spine and right shoulder, and they showed "significant degenerative disc disease with spurring involving the C5, 6 segment." He diagnosed "status-post strain of levator scapula and shoulder girdle musculature with probable cervical radiculopathy."

The applicant remained off work until February 18, 1992, apparently due to a seasonal layoff. During this time, the applicant's symptoms improved to the point that Dr. Slajus stated that the applicant was almost completely better, with very occasional aching or twinges in his back. See Slajus note for January 20, 1992.

When the applicant returned to work, however, the pain returned. He was evaluated for carpal tunnel syndrome, and the results were negative. Dr. Slajus suspected a herniated cervical disc, and referred the applicant to a Dr. Wannamaker for neurologic evaluation.

Dr. Wannamaker did an EMG showing some chronic denervation consistent with C7 radiculopathy. He also ordered a myelogram and CT scan of the cervical spine which showed moderate posterior spondylosis at C5-6 and hypertronic bone changes at C6-7, but no definite herniated disc. The applicant then saw Dr. Nishioka, a neurosurgeon, who did not believe the applicant's problems were caused by nerve root compression. Dr. Nishioka did not recommend surgery, but did recommend the applicant quit his job.

The applicant returned to work, but continued to experience pain. On May 12, 1992, Dr. Slajus set work restrictions against lifting more than 10 pounds, doing overhead work, or lifting or pulling with his right arm. The employer could not accommodate this, and discharged the applicant. The applicant saw Dr. Slajus for treatment on June 16, 1992, when the doctor reiterated his restrictions. The applicant failed to keep or reschedule his next appointment with Dr. Slajus.

The applicant was also examined by Frank S. Harris, M.D., apparently on referral by Dr. Slajus. He opined in a report dated June 9, 1992:

"that this patient probably has a right C7 radiculopathy. I base this primarily on the patient's subjective description of his discomfort, as well as on the basis of ... two electrical studies.... There is evidence on the postmyelographic CT scan of some subtle slight paucity of nerve root sleeve filling referable to the C7 root on the right side. I do not feel that this patient, however, is a candidate at this time for neurosurgical intervention. He has an objectively normal neurological examination and his foraminal closure test is negative today.

"I feel this patient should be able to return to gainful employment. It would probably be better if he could avoid lifting, pulling and pushing with respect to his neck and shoulder. It is possible that in the future the patient conceivably might need to have surgical intervention referable to this spondylitic problem, but I have told him that it is possible that by taking care of himself he may live a normal life span and never need intervention."

The respondent offers this opinion as its Exhibit 2.

At the time of the hearing, the applicant was working for a different employer as a "parts counterman." He testified that this work was within the restrictions imposed by Dr. Slajus. The applicant's symptoms have improved to the point that his neck and shoulder are just stiff and sore from time-to-time. He rated his pain at only 1-2 on a scale of ten, as compared to 8 or 9 after he returned to work for the employer in February 1992.

The respondent's independent medical examiner, J. Steven Moore, M.D., examined the applicant on August 26, 1991. He offered his expert medical opinion in a report dated September 21, 1992, which states:

"There are two distinct medical disorders in this case. One is an acute strain of the periscapular musculature that occurred as a result of work activities on November 30, 1991. While this injury was slow to heal, he eventually recovered completely. He remarked today that the periscapular and posterior shoulder regions no longer bother him and physical examination does not elicit any tenderness on palpation or pain with motion of the shoulder, neck or scapula.

"The other disorder is that of the right hand and arm pain. This problem is most consistent with a right C7 cervical radiculopathy secondary to cervical spondylosis. The cervical spondylosis was apparently identified on the MRI report form January 1990. This disease is a chronic progressive problem characterized by intermittent symptoms. None of Mr. Benedik's work activities are of a nature that would precipitate, aggravate, or accelerate this problem. In addition, there is no literature to support the notion that his type of work is a material contributory causative factor in his condition's onset or progression.

"In conclusion, the injury of November 30, 1991, was a levator scapular strain. The right arm pain that developed one or two weeks later is unrelated to this injury and represents the C7 radiculopathy--a manifestation of his chronic progressive cervical disc disease. There is no evidence that his levator scapula strain of November 30, 1991 was a temporary aggravation of any pre-existing condition. Mr. Benedik has reached a healing plateau for his levator scapula injury and has no permanent partial disability. The C7 radiculopathy on the right is still somewhat symptomatic and precluded me from sending him back to work without any restrictions. It appears that he is capable of performing more work than allowed in his most recent restrictions. As a result, I would recommend Mr. Benedik undergo a functional capacities evaluation."

Respondent's Exhibit 1. Evidently, no functional capacity report was done.

Treating doctor Slajus also completed a verified and certified practitioner's report giving his expert medical opinion. He assessed permanent disability caused by work at 3 percent compared to whole body disability and at 20 percent compared to amputation of the right arm at the shoulder. He further opined that the applicant had plateaued by June 16, 1992 with restrictions against work at or above shoulder level, against heavy lifting and pulling and against lifting over 25 pounds. He also opined that the applicant's work activity caused his disability directly and as an precipitation, aggravation, and acceleration of a pre-existing degenerative condition. He explains causation in an attached narrative as follows:

"It is my opinion that the patient has degenerative arthritis in his cervical spine and evidence of a chronic C7 radiculopathy. He has had evaluations by two neurosurgeons and neurologist who feel that he should be placed on permanent work restrictions and I agree with these. [Sets out restrictions stated above....] It is my opinion that the patient had a previously existing condition with regards to the degenerative changes in his cervical spine but that this was significantly aggravated due to his injury at work on 11-30-91, and that this aggravation resulted in a permanent disability which restricts the patient from pushing or pulling with the right upper extremity or performing activities at or above shoulder level and he should not be lifting over 25 pounds. Based upon the Wisconsin Worker's Compensation Division booklet on how to evaluate permanent disability, the patient has a permanent disability of active elevation and flexion and abduction to 90 degrees, but is otherwise normal and this constitutes a 20% disability. The patient also has permanent pain due to cervical spondylosis and the restrictions in his shoulder activity are specifically to protect his neck. His percentage of disability is estimated to be approximately 3% due to his cervical spine arthritis."

In sum, then, treating doctor Slajus opines the applicant has permanent partial disability at the arm, shoulder and the neck, all caused by precipitation, aggravation, and acceleration of a progressively degenerative pre-existing condition from the work injury. On the other hand, independent medical examiner Moore opines that the applicant has continuing symptoms only in his arm, and that these are not work-related but simply a manifestation of his pre-existing cervical condition. As far as the commission can tell, no one opines that the levator scapular condition caused any permanent disability.

The commission cannot credit the opinion of independent medical examiner Moore, particularly his unmodified statement that "[n]one of the applicant's duties are of a nature that would precipitate, aggravate or accelerate this problem [and] there is no literature to support the notion that his type of work is a material contributory factor in his condition's onset or progression." Dr. Moore does agree that applicant had pre-existing spondylosis and a degenerative disc condition. The applicant's work necessarily involved heavy pulling, twisting, lifting and bending. In addition, the applicant had to move rapidly while trying to maintain his balance in cold and often icy conditions.

Moreover, both Drs. Moore and Harris agree that the applicant now has permanent restrictions related to the cervical condition. Neither would release him back to his pre-injury duties. Dr. Moore states that it appears that the applicant may do more than he is allowed under Dr. Slajus's opinion. He recommended a functional capacity evaluation, but the respondent apparently never had one done. Dr. Harris specifically states that it would be better if the applicant could avoid lifting, pulling and pushing with respect to his neck and shoulder. Since this is exactly the type of work the applicant did before his injury, the commission has difficulty understanding how it may be dismissed as non-causative.

Instead, the commission accepts Dr. Slajus' more credible opinion on causation and extent of disability. His report better reconciles the applicant's continuing symptoms of post-injury neck and shoulder pain, his pre-injury duties, and his pre-existing condition. While the record indicates the applicant had some prior complaints of numbness in his hand and neck and shoulder stiffness associated with work in January 1991, that is merely indicative of his pre-existing condition. Dr. Slajus was aware of these complaints, as indicated in the first paragraph of his note of December 30, 1991. Further, the January 1991 complaints did not result in permanent work restrictions and the applicant was able to continue to do his physically-demanding work. Indeed, Dr. Moore noted that the applicant reported he was asymptomatic from these complaints by the end of January 1991.

The commission therefore finds that the applicant's work activity on November 30, 1991, caused disability by precipitation, aggravation, and acceleration of a pre-existing degenerative condition beyond normal progression. The commission further finds that the applicant reached a healing plateau with residual permanent disability on June 16, 1992, the date fixed by Dr. Slajus. As a result of the work-related injury, the applicant sustained permanent partial disability at 20 percent compared to amputation of the arm at the shoulder for the applicant's right arm disability, and 3 percent compared to permanent total disability to the body as a whole for his neck disability.

The respondent has conceded and paid temporary total disability to June 22, 1992. The respondent thus overpaid 5 days of temporary total disability, given the June 16, 1992 healing plateau fixed by Dr. Slajus. At the weekly rate of $388.00, this results in a total overpayment of temporary disability of $323.33.

However, the applicant is entitled to 132.4 weeks of permanent partial disability benefits, all of which is now accrued. This is determined by starting with the disability at the right arm, which is 20 percent of the 500 weeks awarded for loss of an arm at the shoulder, or 100 weeks of scheduled permanent partial disability. Section 102.52 (1), Stats. The 100-week figure, in turn, is subtracted from the 1,000-week base for unscheduled disability for the purposes of calculating the applicant's disability at the neck. Section Ind. 80.50 (2), Wis. Adm. Code, and sec. 102.44 (3), Stats. Three percent of the remaining nine hundred week base equals 27 weeks for unscheduled permanent partial disability. Because the injury in this case caused two permanent disabilities, the 27-week figure is increased by 20 percent under sec. 102.55 (3), Stats., yielding 32.4 weeks for unscheduled permanent disability.

Adding the 100 weeks for scheduled permanent disability to the 32.4 weeks for unscheduled permanent disability results in the 132.4-week total set out above. The entire amount has accrued as of the date of this decision, and is compensable at the statutory maximum for injuries occurring in 1991, $137 per week. This results in an award for permanent partial disability of $18,138.80. However, the amount of temporary disability overpaid ($323.33) must be subtracted, leaving the total sum of $17,815.47 to be awarded under this decision.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional benefits awarded under this decision. The total fee is thus $3,563.09 (20 percent of $17,815.47). No legal costs were established. The fee shall be deducted from the applicant's total award and paid to the attorney within 30 days. The remainder ($14,252.38) shall be paid to the applicant within 30 days.

The next issue is the compensation of medical expenses. The applicant testified that all of the items of expense in applicant's Exhibit C were for treatment related to his work injury. Only two bills are actually in dispute, the charges from Bay Area Medical Center and from Twin City Orthopedic Clinic. However, the commission cannot tell from the statement from Bay Area Medical Center what services were provided, much less whether they were related to the work injury. No payment is ordered on that bill.

On the other hand, the $40 charge from Twin City Orthopedic Clinic is for an office visit with a medical doctor concerning brachial neuritis on October 12, 1992. The commission concludes that the applicant obtained this treatment in good faith. Therefore, the respondent shall reimburse the applicant for the $16 he paid toward the bill and Employe Ben. Plan for the $24 it paid toward the bill.

The applicant claims compensation for medical mileage of 3,240 miles at the rate of $0.26 per mile for a total of $842.40. However, the compensation rate for medical mileage incurred from January 1, 1991 to December 31, 1993, is $0.24 per mile. Mileage expense incurred on or after January 1, 1994 is compensated at $0.26 per mile. In this case, only a small, indeterminate part of the applicant's mileage claim was incurred after January 1, 1994. As best as the commission can tell, the $788.52 that the insurer has already paid for medical mileage does not underpay the applicant.

The applicant seeks vocational rehabilitation benefits under sec. 102.43 (5) and 102.61, Stats., according to his application for hearing. The commission thus reserves jurisdiction on that issue, consistent with sec. 102.18 (4), Stats., as well as possible additional permanent disability on a vocational basis. As to functional disability and any other issues resolved in this decision, however, the commission's order in this case is final.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed. Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Jack B. Benedik, the sum of Fourteen thousand two hundred fifty-two dollars and thirty-eight cents ($14,252.38) for permanent partial disability.

(2) To the applicant's attorney, John T. Shomisch, Jr., the sum of Three thousand five hundred sixty-three dollars and nine cents ($3,563.09) as attorney fees.

(3) To the applicant, the sum of Sixteen dollars and no cents ($16.00) in reimbursement of medical expenses.

(4) To Employe Ben. Plan, the sum of Twenty-four dollars ($24.00) in reimbursement of medical expenses.

Jurisdiction is retained to issue such further orders as are warranted consistent with this decision.

Dated and mailed May 25, 1995
ND § 5.15

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge stated that he found the applicant to be an incredible witness since he denied experiencing neck and shoulder problems before the work injury, even though Exhibit B indicates he complained of neck and shoulder stiffness associated with hand numbness in January 1991. However, the applicant did testify at the hearing that he had had "hand problems" before the November 30, 1991 injury. He reported this problem, and the fact that he had an MRI to his neck and shoulder to Dr. Slajus. The commission therefore cannot conclude that the applicant provided anyone with an inaccurate history, or that his failure to mention the January 1991 shoulder and neck stiffness in his testimony changes the medical and legal conclusion on causation.

In his decision, the administrative law judge indicated that he rejected Dr. Slajus's opinion in part because the doctor relied on the applicant's statement that the pre-injury January 1991 MRI showed degenerative disc disease. Actually, William Hingtgen, M.D., who read the January 11, 1991 MRI reported "minimal changes of spondylosis involving the C5-6 and C6-7 levels without evidence of focal disc herniation or cord compression." Quoting the definition of "spondylosis" from Dorlands, Illustrated Medical Dictionary (27th ed. 1988), the administrative law judge indicated that the term "spondylosis" is limited to degenerative joint disease and does not include degenerative disc disease. The judge went on to state that the MRI would have shown degenerative disc disease if that condition existed when the MRI was performed, suggesting that Dr. Slajus's diagnosis is based on an erroneous history of preexisting degenerative disc disease.

Dorlands, Illustrated Medical Dictionary (27th ed., 1988), defines "spondylosis" as:

"ankylosis of a vertebral joint; also, a general term for degenerative changes due to osteoarthritis. Cervical s., degenerative joint disease affecting the cervical vertebra, intervertebral disks, and surrounding ligaments and connective tissue, sometimes with pain and paresthesia radiating down the arms as a result of pressure on the nerve roots. [Emphasis added.]"

In addition, Dr. Slajus did not base his diagnosis simply on the applicant's retelling of what the MRI showed, but also on his own x-rays showing degenerative disc disease of the cervical spine. Moreover, Dr. Moore opined that the applicant's right arm pain was C7 radiculopathy which he associated at one point with cervical spondylosis and at another point to the applicant's chronic progressive cervical disc disease. He did not distinguish between the two, and the commission's reading of his report indicates he uses the terms synonymously. Finally, the respondent conceded a pre-existing degenerative disc condition in its December 5, 1994 brief at pages 2 and 3. Thus, the commission is not persuaded that Dr. Slajus proceeded from an inaccurate history of degenerative disc disease.

The administrative law judge also notes that Dr. Slajus was "board eligible," but not "board certified," as an orthopedic surgeon and that his practitioner's report erroneously indicated that Iron Mountain is located in Wisconsin. However, the verified report of a physician who has examined or treated an applicant is prima facie evidence of the matter contained in the report, and is admissible evidence of diagnosis and cause and extent of disability, regardless of where the physician is licensed or whether he is board certified. In this case, Dr. Slajus' report was verified by a notary. Finally, the commission appreciates that the issue of board eligibility versus board certification goes to the weight of an expert's report. However, the commission cannot tell whether independent medical examiner Moore is board eligible, let alone board certified, in orthopedic surgery, neurology, or other area of medicine.

cc: ATTORNEY JOHN T SCHOMISCH JR
PREVIANT GOLDBERG UELMAN GRATZ MILLER & BRUEGGEMAN SC

ATTORNEY JOHN A GRINER IV
SPINDLER ROITBURD SCHWEMER & GRINER

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