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

STANLEY J PROFFITT, Applicant

OSHKOSH TRUCK CORPORATION, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKERS COMPENSATION DECISION
Claim No. 93023873

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on September 9, 1994, following a hearing on September 2, 1994. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the respondent and the applicant submitted letters indicating further briefing was unnecessary.

Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $541.60, and an accident occurring on March 16, 1992.

Although the respondent concedes an accident on March 16, 1992, it contends that the accident did not give rise to any compensable disability. The first issue is whether the applicant suffered an injury arising out of his employment with the employer. If a compensable injury is established, the issues also include the nature and extent of disability. The administrative law judge did not hear the applicant's claim for medical treatment expenses.

The commission has carefully reviewed the entire record in this case. 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 20, 1955. He began working for the employer as a welder in February 1984. He is 6 feet tall and weighs about 220 pounds. He claims disability from a work-related neck and upper back injury.

In order to do his job as a welder, the applicant had to wear a helmet with a three-pound plastic hood, which he flipped up and down with his head only. He also had to keep his head down in one position for as long as three minutes to do a weld, and he made hundreds of welds a day. He testified that the employer recently got a new type of helmet that he does not need to flip up and down, as well as robotic welding equipment that eliminated some of the welding he did.

The applicant denied he had neck or upper back problems before working for the employer. He began experiencing neck pain in about 1986, after a year and one-half or two years on the job. His pain was mainly in his neck, although he also experienced pain in his mid and upper back. He testified his neck muscles would spasm and lock up. He also described the pain as shooting down his arm.

The applicant began treating with a chiropractor, Michael Fletcher at Hendrickson Clinic. He saw Dr. Fletcher at least every other week and as often as three times per week between 1986 and 1992. He testified he may have missed a day of work here and there because of pain, but he did not seek worker's compensation for this condition.

The pain grew much worse when the applicant moved a table on March 16, 1992. The table weighed 1500 pounds and the applicant moved it while it was hoisted in the air. He described the resulting neck pain as a sharp hot pain he had never felt before.

The applicant reported the injury to his employer. He also sought treatment from chiropractor Fletcher who provided steam packs and did adjustments similar to those he received before the March 1992 injury. The applicant missed one day of work because of the injury and returned to his regular job.

Chiropractor Fletcher eventually referred the applicant to a medical doctor, Randall Schultz. Dr. Schultz then referred the applicant to a physical therapist. On December 11, 1992, the therapist, Tim Kakuschke, noted that the applicant had been seen twice since September 1992, most recently on December 4. The applicant told Mr. Kakuschke that his condition was improving day-to-day, but had recently been exacerbated, apparently by hockey-playing. Noting the applicant's irregular attendance of physical therapy, Mr. Kakuschke stated that the applicant seemed only partially motivated and described him as a "chiropractic junkie."

The applicant admitted playing hockey before and after the March 1992 accident. In December 1992, while receiving physical therapy for his work injury, he related to his physical therapist an incident in which he tripped while playing hockey, causing him to play "with a vengeance" thereafter. Exhibit 2, page 2. He also testified that he swims, plays softball, hikes and enjoys sexual intercourse.

The applicant also admitted that he had been in a car accident in February 1992. He contends that the cars merely slid into one another and that the accident did not make his neck or back worse. He received no medical treatment for the accident. In one of his treatment notes, Dr. Schultz refers to the accident as a head on collision at 45 MPH. This seems extremely unlikely, however, since the applicant did not receive medical treatment after the accident.

The applicant testified at the hearing that, with the new helmet and robotic equipment, his neck actually feels better than it did before the March 1992 injury. However, his neck still has good and bad days. Dr. Fletcher has told him only to use common sense at work and not do activities that hurt him.

The file contains two practitioner's reports. The applicant submitted chiropractor Fletcher's report and the respondent submitted a report from the medical doctor to whom Dr. Fletcher referred the applicant, Dr. Schultz.

Chiropractor Fletcher's practitioner's report is dated September 9, 1993 (Exhibit A). He diagnosed chronic cervical pain, decreased range of motion, segmental dysfunction of spinal levels C5-T2, thoraco-cervical muscle spasms and chronic mysofascial pain. He referred to his notes for a description of the accident or work exposure that caused the condition. It is clear from the notes and a letter in the record as Exhibit B that he believed the repeated "microtrauma" of the applicant flipping his helmet up and down caused the applicant's condition. He opined that this activity caused the applicant's disability, either by precipitation, aggravation or acceleration of a pre- existing degenerative condition, or that the disability was caused by an appreciable period of workplace exposure that was either the sole cause of applicant's condition or a material contributory factor to its onset or progression. He assessed a three percent whole body permanent partial disability due to pain, deceased movement and difficulty with work.

Dr. Schultz's practitioner's report is dated September 27, 1993. He states both that the applicant has no permanent partial disability as a result of the March 16, 1992 incident, and that continuing treatment is unnecessary. He attached to the report a letter to the employer's insurer dated January 12, 1992. The letter states that the applicant has had pain since the early 1980s and that post-injury x-rays were normal. Dr. Schultz opined in the January 12 letter that the applicant had a segmental dysfunction which caused recurrent pain; that this condition and pain was occurring before the March 16, 1992 traumatic injury; that the March 1992 injury only aggravated the pre-existing condition temporarily; and that the applicant had plateaued from the injury, citing the return to strenuous physical activities like hockey.

The opinions of both Drs. Fletcher and Schultz may be reconciled by finding that the applicant's segmental dysfunction at C5-T2 was caused by approximately eight years of the applicant flipping his helmet. Dr. Schultz agrees that the applicant had segmental dysfunction before the March 1992 injury; he opines only that the March 16, 1992 injury while moving the table did not cause permanent disability. The commission also notes that the applicant testified at the hearing that, while he continues to have neck pain, he now feels better than before the traumatic injury on March 16, 1992. Significantly, he attributes that improvement to a new helmet and new welding equipment. In addition, the commission notes the applicant's credible testimony that his neck did not hurt before he began working for the employer.

Based on this testimony and expert medical opinion in this case, the commission concludes that the applicant has established an injury. The commission also concludes that the applicant has established an appreciable period of workplace exposure, specifically the head-flipping motion from welding for at least eight years, was either the sole cause of his segmental dysfunction condition, or at least a material contributory factor in its onset or progression. (1) The commission further concludes that date of injury for this condition is the date of disability. The date of disability, in turn, is most reasonably fixed at March 16, 1992, the date the applicant first missed work because of his condition. Section 102.01 (2)(g), Stats.

The next issue is the nature and extent of disability. The applicant missed only one day of work after the March 16, 1992, table-moving injury. He returned to work thereafter, but continued to receive treatment and experience pain.

While Dr. Schultz did not offer a permanent disability rating, he did note the applicant's recurrent pain as of January 1993 and related the pain to the applicant's segmental dysfunction. Dr. Fletcher, on the other hand, rated the applicant's disability at 3 percent compared to permanent disability to the body as a whole. However, the commission frequently assigns that degree of disability to individuals with pain that gives rise to objective lifting restrictions (or other work restrictions) beyond the "common sense" restriction given by Dr. Fletcher in this case. In view of the applicant's active life style, including hockey playing and other physical activities, the commission concludes the one percent rating given by the administrative law judge is more appropriate.

The commission therefore finds that the applicant was entitled to one day of temporary total disability from the March 16, 1992 injury. Given his conceded average weekly wage of $541.60, his weekly compensation rate for temporary total disability is $361.67. He is entitled to one-sixth of that amount for one day of temporary total disability, or $60.18.

The commission further finds that the applicant has sustained permanent partial disability at one percent compared to disability to the body as a whole. This amounts to ten weeks of benefits at the maximum compensation rate for permanent partial disability from injuries occurring in 1992, $144 per week. This amounts to a total award for permanent partial disability of $1,440, all of which has accrued.

Finally, the applicant, who was not represented by an attorney, did not itemize his medical expenses at the time of the September 2, 1994 hearing in this matter. The presiding administrative law judge stated in his decision that, if the applicant wanted further hearing on his medical expenses he should file another application with his itemized medical treatment expenses attached thereto. The applicant has submitted another application for hearing dated September 16, 1994, which the Worker's Compensation Division received on September 19, 1994. The commission remands this case to the department to take appropriate action on the September 16, 1994 application for hearing, assuming it has not already done so. With respect to the award for disability, however, the commission's Order is final.

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

ORDER

The decision of the administrative law judge is modified to conform to the foregoing and, as modified, is affirmed.

Within 30 days from the date of this decision, the employer and its insurer shall to the applicant, Stanley Proffit, the sum of One thousand five hundred dollars and eighteen cents ($1,500.18) as compensation for temporary total and permanent partial disability.

This case is remanded to the Worker's Compensation Division in the Department of Industry, Labor and Human Relations for action, if appropriate, on Mr. Proffitt's September 16, 1994 application for hearing on his itemized medical expenses. With respect to the disability issues decided hereunder, this order is final.

Dated and mailed April 5, 1995
proffst.wrr : 101 : 8  § 5.5

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the respondent first asserts that the applicant should not have been awarded temporary total disability since the applicant did not miss three days of work. Section 102.43 (intro.), Stats. However, that section also states that the three-day period is effectively waived if the applicant still has any disability 7 days after the injury. The applicant asserts that the reference to disability in sec. 102.43 (intro.) is limited to temporary disability. However, the term "disability" under that statute is modified only by the article "the." The department (like the administrative law judge) has consistently construed the term "disability" in this context to mean any disability, including permanent partial disability. See, for example: Neal & Danas, Worker's Compensation Handbook, sec. 5.4 (3d ed. 1990).

The respondent also contends that the commission should dismiss the application with prejudice based on Dr. Schultz's expert medical opinion. However, the commission declines to do so, based on the reasoning set out in the body of this decision.

Finally, as part of its review, 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 found the applicant to be a credible witness. The commission does not dispute this, and modified and affirmed the administrative law judge's decision on essentially the same underlying facts as found by him.

cc: ATTORNEY JENNIFER LEE EDMONDSON
STILP & WELLS

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Footnotes:

(1)( Back ) See: Rathjen v. Industrial Commission, 233 Wis. 452, 460 (1940) and Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487, note 5 (1978). The commission notes that Dr. Schultz's report and the causal mechanism mentioned by Dr. Fletcher, microtrauma, might seem to fit under the theory of causation by work activity which precipitates, aggravates or accelerates a pre-existing condition beyond normal progression. Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59 (1968). However, the commission and the courts have recognized the blending of the occupational disease and "Lewellyn 3" theories causation theories in cases where repeated traumatic injuries give rise to occupational disease. Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 661-663 (Ct. App., 1982). The applicant's disability is compensable under either theory, and Dr. Fletcher's failure to choose one or the other does not discredit his opinion.