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

KAREN L BLOCK, Applicant

MILWAUKEE TRANSPORT SERVICE, Employer

MILWAUKEE TRANSPORT SERVICE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 90006475

The applicant and the employer/insurer each submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on November 23, 1994. Briefs were submitted by the parties. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of December 5, 1989.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby affirms in part and reverses in part his Findings and Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is June 10, 1952, was employed as a Milwaukee County bus driver when her bus was struck by an automobile on December 5, 1989. She was jolted and jarred and struck her head on the fare box. Thereafter she developed neck and back pain. She was treated and examined by a number of chiropractors and physicians.

The administrative law judge accepted the opinion of Dr. Salvatore Spicuzza, the physician who first examined the applicant on March 7, 1990. He diagnosed chronic cervical, upper thoracic and shoulder strains, as well as headaches attributable to the work incident, and treated her conservatively. On January 9, 1991, Dr. Spicuzza released the applicant from his care with the recommendations that she continue to use her TENS unit, apply heat as needed and do prescribed exercises. On May 14, 1991, Dr. Spicuzza wrote a letter in which he assessed 5 percent permanent partial disabilility to the applicant's chronic cervical, upper thoracic and shoulder girdle strains.

At the employer's request, the applicant was examined by Dr. Gerald Zupnik on February 7, 1990. He diagnosed chronic low grade recurrent back discomfort with a preexisting, first-degree spondylolisthesis at L5-S1, a residual cervical strain and slight C5-6 disc space narrowing. He opined that trapezius muscle discomfort was the result of the work incident, but that chiropractic treatment was not appropriate. He recommended steroid injections and/or physical therapy, and anticipated no likelihood of permanent disability. Dr. Zupnik again examined the applicant on February 4, 1991, and the applicant complained of continuing upper back and neck symptoms, as well as the onset of headaches with any strenuous effort. She made no significant complaints with regard to her low back. Dr. Zupnik examined the applicant for a third time on July 16, 1991. He noted complaints of pain between the shoulder blades, over the left shoulder and left side of the chest, and in the left upper arm. Dr. Zupnik opined that the applicant demonstrated considerable magnification of symptoms, but giving her the benefit of the doubt, assessed two percent permanent partial disability, one percent attributable to her preexisting condition. He found her subjective complaints to be consistent with a diagnosis of myofascial pain syndrome on a systemic basis. In July 1991, he recommended that the applicant seek treatment from a pain clinic, but specified that such treatment would be attributable to the applicant's systemic disease rather than any work injury. In February 1991, he recommended no further medical treatment, but condoned the continued use of a TENS unit, more for psychological than physical benefit.

On February 2, 1993, also at the employer's request, Dr. Charles Klein, an orthopedic surgeon, examined the applicant. He found the applicant's subjective complaints were out of proportion to the objective findings, but consistent with a myofascial pain syndrome. He did not consider her current complaints to be related to the work incident. He opined that her intermittent, lumbar-spine symptoms were related to her underlying L5 spondylolisthesis, and not the work injury. He found no permanent disability.

In his consultation with the commission, the administrative law judge indicated that he had no strong credibility/demeanor impressions of the applicant, who was the only witness at the hearing. He explained that he believed the applicant had sustained some degree of permanent residual as a result of the work incident, and chose to accept the assessment of the treating physician. The commission disagreed with Dr. Spicuzza's assessment for the reasons indicated below.

The medical records demonstrate that the applicant had preexisting upper and lower back symptomatology prior to the work incident of December 5, 1989. In March 1987, Dr. C. R. Raj, noted that the applicant had undergone chiropractic manipulation and "shock therapy" by a chiropractor "in the last few years" due to low back pain and disc disease in her neck. The applicant conceded that prior to 1987, she had intermittent low back pain, and further conceded that she had a "preexisting two percent back," and that she had neck and back pain when she saw a chiropractor on March 30, 1987. Dr. Raj treated the applicant for cervical pain in December 1988, and for low back pain in the summer of 1989. Lumbar spine x-rays taken in 1978 revealed mild L5-S1 spondylolisthesis, which was again noted at the Grade I level in 1992 lumbar spine x-rays.

Where a preexisting condition is aggravated beyond normal progression by industrial injury the employer is liable for the full disability so caused. Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968); City of Seymour v. Industrial Commission, 25 Wis. 2d 482, 490-91, 131 N.W.2d 323 (1964). However, an applicant will not be compensated for that element of a preexisting disability which can be separated from the effects of the industrial injury. Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 524, 184 N.W.2d 871 (1971). Dr. Zupnik credibly opined that the effects of the December 1989 work injury were separable from the applicant's preexisting disability. Dr. T. J. Flatley, who evaluated the applicant in August 1991, also opined that the applicant had preexisting lower and upper back problems, but that the December 1989 injury had resulted in an increase in symptomatology to the degree of two percent. Dr. Zupnik found one percent permanency attributable to the preexisting condition and one percent to the sequelae of the work injury. Also, the applicant's treating chiropractor, Dr. Michael Szatalowicz, opined that the applicant had been suffering from a chronic cervical/lumbar spine condition prior to the work injury of December 5, 1989, and that such injury had "complicated" her condition. Notably, Dr. Spicuzza's treatment records and opinions contain no mention of the applicant's preexisting symptomatology, indicating that he either did not know anything about it or failed to address its significance.

Given all this medical evidence, the commission accepts Dr. Flatley's assessment of two percent permenant partial disability to the applicant's back as a result of the work injury of December 5, 1989.

Dr. Spicuzza ceased treatment of the applicant on January 9, 1991, and noted that the applicant would "probably have to live with these residuals" from the work injury. The commission infers from this opinion that the applicant had reached a healing plateau from the effects of the work injury by that date.

The applicant has submitted claims for outstanding medical expense in the form of invoices from various providers. Payment of these claims is denied because there is no credible evidence that these invoices represent treatment attributable to the effects of the December 1989 work injury, as opposed to treatment for preexisting or other conditions.

The applicant is therefore entitled to 20 weeks of compensation for permanent partial disability at the applicable rate of $125 per week for a total of $2,500. The applicant's attorney is entitled to a 20 percent fee plus $343.36 in costs.

NOW, THEREFORE, this

ORDER

Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant compensation for permanent partial disability in the amount of One thousand six hundred fifty-six dollars and sixty-four cents ($1,656.64); and to applicant's attorney, Marjan R. Kmiec, fees in the amount of Five hundred dollars ($500) and costs in the amount of Three hundred forty-three dollars and thirty-six cents ($343.36).

Dated and mailed May 23, 1995
§ 5.27

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

Appealed to Circuit Court. Affirmed September 4, 1996.

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