STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
GERRY W CHRISTIAN, Applicant
WU-DODGE OSCAR BOLDT CONSTRUCTION, Respondent
EMPLOYERS INSURANCE OF WAUSAU, Carrier
WORKER'S COMPENSATION DECISION
Claim Nos. 1994049972, 1991004703
The applicant filed an application for hearing seeking compensation for temporary disability, permanent disability and medical expenses from an injury on August 26, 1994. Accordingly, on March 16, 2000, a hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter.
Prior to the hearing in this case, the employer and its insurer (collectively, the respondent) had conceded jurisdictional facts, an average weekly wage exceeding the statutory maximums for the purposes of determining the compensation rates, and the occurrence of a compensable injury on August 26, 1994. The issues remaining for the hearing were the nature and extent of the applicant's disability from the August 26, 1994 injury and the respondent's liability for medical expenses.
On May 1, 2000, the ALJ issued her decision. A timely petition for review was filed. (1) 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
The applicant was born in 1957. He is an ironworker, and has worked for various employers in that capacity for 12 years. Indeed, at the time of the hearing he was back at work in that capacity. As noted above, the applicant claims disability from a work injury on August 26, 1994.
a. Prior back problems.
The applicant is no stranger to back problems, having spondylolisthesis (a condition of forward displacement of one vertebra over another) at L5-S1 and spondylolysis (dissolution of a vertebra). He had some complaints of back pain in his teens. Indeed, in January 1991, a treating doctor noted a "long history of low back pain" since his teenage years, that he often would experience his back "going out," requiring him to seek chiropractic care. Exhibit 2, note from Medical Associates Clinic, dated January 2, 1991.
Nonetheless, the applicant testified his back was all right-indeed he was able to work as an ironworker-until an injury at work on November 5, 1990. On that date, he sneezed and coughed while wearing a 65-pound structural belt. The doctor whom he saw after this 1990 injury suspected recurrent back strain, and arranged for an orthopedic consultation with Diana Kruse, M.D., whom the applicant had previously seen for a knee and shoulder problem.
Thus, on January 25, 1991, the applicant was examined by Dr. Kruse. She noted an October 1990 work injury causing back pain which had not then resolved. In addition to complaints of low back pain, the applicant complained of numbness, tingling, a burning sensation, and sharp pain in his legs to calf level.
Dr. Kruse indicated that x-rays taken by another clinic showed no abnormalities, but that the x-rays ordered by her clinic showed a questionable pars defect at L5. Dr. Kruse ordered an MRI.
The MRI showed a disc protrusion at L5-S1. Dr. Kruse noted continuing pain on February 5, 1991, and she recommended continued time off work, continued anti- inflammatory use, and an epidural injection.
The epidural injection provided a significant reduction in the paresthesisas and radicular symptoms in his leg, as well as overall less intense back pain. The doctor wanted to try a second epidural injection.
By March 18, 1991, improvement was again noted. Dr. Kruse continued to prescribe Naprosyn, an analgesic anti-inflammatory, and referred him for physical therapy. In April 1991, the applicant was doing strenuous exercise in therapy to prepare for a return to work. At his request, Dr. Kruse returned the applicant to work in May 1991.
In June 1991, Dr. Kruse noted the applicant had in fact returned to his job as an ironworker on May 3. Despite working full time, indeed overtime, in his strenuous profession, he was experiencing only stiffness and muscle discomfort. Similar symptoms were noted in September 1991.
On February 1, 1992, the applicant returned to Dr. Kruse. She noted symptoms of stiffness in the low back, without radicular symptoms. She noted the applicant's problems were affecting his endurance. She concluded he had plateaued from his healing.
On February 29, 1992, then, Dr. Kruse completed a medical report, listing a November 10, 1990 injury with the immediate onset of back and leg pain. She diagnosed back and radicular leg pain, with a central disc protrusion at L5-S1. She concluded a 2 percent permanent partial disability had developed, for residual pain and loss of strength and endurance. She described his prognosis as good, but noted that further treatment, including medication, therapy, injection and surgery might be necessary.
In December 1992, the applicant returned to Dr. Kruse, complaining of increased low back pain. She noted that x-rays showed spondylolysis at L5-S1 and grade I spondylolisthesis, unchanged from prior x-rays. She noted the MRI showing the central disc protrusion in 1990, and she opined the applicant was experiencing a temporary aggravation of that condition. She recommended he stay on Motrin and avoid activities that cause increased discomfort.
The applicant did not return to Dr. Kruse until one year later, on December 8, 1993, when he complained of increased back pain, with pain radiating into his legs. He described lightening-like shocks, and popping sounds. He had fallen at least once because his legs went numb at work, and he was off work the week preceding the visit because of his pain.
Dr. Kruse noted the previously-diagnosed disc protrusion and spondylolysis. The applicant had a reduced range of motion due to pain, and complained of sharp stabbing pain in the low back, with burning discomfort over the sacral area, and pins and needles sensation down the legs to the ankles. The doctor again noted the spondylolysis and spondylolisthesis on x-ray, and wanted a repeat MRI.
On December 23, 1993, Dr. Kruse reported that the MRI showed a slightly increased prominence of the central L5, S1 disc herniation, probably related to inflammation. The doctor ordered an epidural injection on January 5, 1994, and kept the applicant off work until reassessment on January 25, 1994.
On follow-up, the applicant reported excellent benefit from the epidural injection with some residual low back swelling. The doctor thought the applicant would benefit from a second epidural, and kept him off work.
Noting quite a bit of improvement, Dr. Kruse sent him to physical therapy for rehabilitation and reconditioning. She suspected the applicant would be able to return to work by April 11, 1994 if he progressed in therapy.
The applicant in fact progressed, and improved to the point he could return to work without restriction. Accordingly, on April 11, Dr. Kruse released him to return to work without restriction, and scheduled follow-up on July 2, 1994.
On July 1, 1994, Dr. Kruse noted that after returning to work on April 11, the applicant experienced some increasing pain, for which medication was prescribed. The applicant had achiness, and muscle spasms, but no significant radicular discomfort. She scheduled him for recheck on October 7, 1994.
Meanwhile, the applicant underwent an independent medical examination, conducted by Allan Kagen, M.D., on June 28, 1994. Dr. Kagen examined the applicant for USF&G, the insurer on the risk for the 1990 injury. He noted the 1990 structural belt injury, his return to work, the apparent plateau in February 1992 with a two percent permanent partial disability, and an exacerbation in pain in September 1993 when he bent over to tie his shoes at work.
Dr. Kagen reported that the applicant was back to plateau with stiffness in his low back and some exacerbations, notably one in May 1994, resulting in an observable bruise though the applicant remembered no trauma.
In response to specific interrogatories, Dr. Kagen noted that the applicant's history given in 1994 was consistent with his old medical records. His diagnosis was a specific new aggravation of the pre-existing problem of a herniated L5-S1 disc that presumably occurred with the work injury in 1990.
Dr. Kagen also noted that while the applicant had pre-existing spondylolysis and spondylolisthesis, he had had no symptoms of back disease until the November 1990 injury. He noted also that that type of injury was susceptible to remission and exacerbation with new trauma or spontaneously. He thought the applicant's late 1993 early 1994 symptoms were from a severe, but temporary, aggravation. Noting that the applicant had returned to work, the doctor nonetheless thought he had not yet plateaued from the aggravation. He expected a plateau by August 1, 1994, but did not think further treatment would be necessary in the interim.
b. August 1994 injury at issue.
Then, on August 26, 1994, the applicant suffered the conceded work injury at issue here, which occurred on a construction site. On that date, he was placing rods and tying rods. His foreman instructed him to place a "chair," a 2 inch by three foot by four foot metal rod. In order to get to where the chair was to be placed, the applicant had to walk across planking suspended between a dirt bank and scaffold. While he was on the planking, it gave way, and the applicant fell four feet. He landed "very hard" with his buttocks striking a 12-inch diameter rock and his back striking the dirt in the bank. He experienced pain in his left buttocks and lower back, and went to the hospital emergency room.
The August 26, 1994 emergency room report is included with the certified medical reports filed as part of exhibit 2. It describes the work injury pretty much as set out above, noting the fall landing with his buttock on the rock, complaints of low back and buttock pain, and a history of herniated disc. A lump and slight redness were observed on the bump. The emergency room doctor's diagnosis was a contusion on the left buttock.
The applicant returned to the emergency room for a recheck on August 30, 1994. He told the emergency room personnel he had lower back pain, radiating down the right buttock, with complaints of numbness when sitting. The emergency room doctor kept him off work through September 1, recommending, however, that he see an orthopod that day.
Indeed, the applicant returned to Dr. Kruse on September 2, 1994. She noted the August 26 injury, with a fall in which the applicant twisted his back and struck a rock, She noted constant low back pain ever since, radiating into both legs, with numbness and tingling in his right leg and lot of discomfort with sitting.
Dr. Kruse also noted the applicant's prior back pain including a known disk protrusion at L5-S1 and spondylolysis bilaterally. She noted, however, that when seen in July 1994 he was working with intermittent muscle spasm in the back, but without significant leg pain. Based on what she described as a different pattern in his lower extremities, she ordered him sent for an MRI, ordered an ESI (epidural steroid injection), and kept him off work.
The MRI was done on September 12, 1994, and it showed very mild grade I spondylolisthesis at L5-S1, associated with bilateral pars defects. The MRI report also mentioned the L5-S1 disc herniation which appeared little changed from previous scans. The other disc levels were normal.
When the applicant returned to Dr. Kruse on October 26, 1994, he told her the epidural steroid injection did not help. She recommended a CT scan.
This was done on November 1, 1994, and showed grade 1 spondylolisthesis of L5 on S1, with an associated bilateral pars interarticularis defect. There was also evidence of a central and bilateral disc herniation, but without nerve root amputation.
When the applicant next saw Dr. Kruse on November 25, 1994, he told her he continued to have back pain, and that his symptoms were not improving and resolving as had previous injuries. Noting the disc protrusion and the spondylolisthesis at L5-S1, she recommended a Gill procedure with bilateral fusion of L5 to S1. She told him he might possibly be able to return to work if he had a good outcome with no disc involvement.
On January 9, 1995, then, Dr. Kruse went ahead and did a bilateral lateral fusion at L5-S1, with pedicle screw rod fixation, and a Gill procedure. The Gill procedure was done by elevating the ligamentum flavum from the under side of the L5 lamina, and the area of the spondylolisthesis was further decompressed by using a Kerrison rongeur. (2) The nerve roots were inspected and free, and since there was no pressure form the disc on the nerve, no discectomy was done.
In post-operative follow-up on February 22, 1995, the applicant told Dr. Kruse he was doing pretty well. He had a fair amount of back pain, but thought that this was progressing nicely, and that when he was at rest he had minimal pain. He denied any radicular problems, though he complained of achiness in the leg which he associated with a return to exercise.
Dr. Kruse told the applicant not to push himself too hard, but to continue with walking-type exercise. Dr. Kruse noted the applicant was doing reasonably well on May 8, 1995, with no radicular symptoms, but some back soreness with increased activity (beyond walking 12 blocks per day) or sitting too long. Reporting that the applicant felt he was coming along very well for this point in time, she set him up for physical therapy. His condition improved over the summer, and he took decreasing doses of medication. By September 1995, he was ready for work hardening.
On November 28, 1995, Dr. Kruse noted the applicant had been making good progress in work hardening, though he tended to push himself too hard. This caused increased stress and discomfort across his low back. He lost enough weight to approach the ideal weight for his height, and experienced some soreness in the mornings upon arising, which went away after he limbered up. Accordingly, Dr. Kruse released the applicant to return to work with a restriction against not lifting more than 50 pounds. She allowed bending and stooping up to 33 percent of the time.
The applicant had difficulty finding work within those restrictions, and mentioned this to Dr. Kruse in his next visit in February 1996. Noting that x-rays showed a satisfactory appearance of his fusion, only noting complaints of buttock discomfort for which he took anti-inflammatory medication, she allowed him to return to work without restriction on a trial basis.
When the applicant returned for his next regular visit in June 1996, Dr. Kruse noted he had returned to work in the interval, but was able to avoid the more strenuous activities of his job as an ironworker. He complained of a lot of soreness aggravated by work activities, sometimes interrupting his sleep. He was not taking Naprosyn, and the doctor recommended he resume it. She allowed him continue working under the same restrictions, until a follow-up visit in fall, and noted she did not believe he had maximized his return to work potential.
When the applicant returned in November 1996, he told the doctor his back was about the same, and that he used Naprosyn and Vicodin as needed. His range of motion was good, and the appearance of his fusion and the instrumentation was good.
When the applicant returned again on June 27, 1997 , he told the doctor his back was still the same, though he was avoiding the rigging or structural work that is most strenuous for an ironworker. He used Vicodin sparingly, but took eight to ten anti-inflammatories per week. With intense work for a few days, he develops enough discomfort to interfere with his sleep. Another note from the same day indicates the applicant had daily pain, problems with pain keeping him awake, and pain with prolonged sitting. The doctor also completed a functional capacity evaluation.
Dr. Kruse examined the applicant yet again on January 9, 1998. He was still working full time, though he had had an increase in back pain since June. He also had some intermittent radicular pain, and was mildly restricted in his range of motion. His fusion continued to look solid. She allowed him to continue on the current routine.
In July 1998, the applicant told Dr. Kruse his back pain symptoms were about the same, that he had some sleepless nights depending on work activity, and that recently he had been doing less strenuous work so his discomfort had decreased. She allowed him to continue his current routine. She scheduled a follow-up appointment to go over his WC-related paperwork. Noting, however, that it had been a number of years since he had gone back to work, she did not anticipate a lot of change in symptomatology in the future. Specifically, she suspected he would continue to need to take Vicodin and an over-the-counter analgesic as well.
At the hearing in March 2000, the applicant testified that he has missed four days of work since returning February 1996; apparently the lost time was for back pain in 1997. He has been employed fairly steadily through a hiring hall, has worked overtime, and is able to perform the basic range of duties of an ironworker.
The applicant testified he had no pain radiating to his legs at the time of the hearing. His pain no longer affects his sleep, though he still gets pain, off and on, with lifting. He tries to limit his lifting, and does not take risks.
The applicant testified, too, that his symptoms before the August 26, 1994 work injury were different than after, and that prior to the 1994 injury he had no symptoms of numbness, tingling or burning. This is belied, however, by the medical notes from before August 1994 (see particularly Dr. Kruse's notes for January 25, 1991 and December 8, 1993), as well as the applicant's own testimony that numbness in his legs caused him to fall in December 1993.
c. Expert medical opinion.
The record also contains expert medical opinion concerning the cause of the applicant's disability, and its nature and extent.
The applicant submits the July 1994 opinion of Dr. Kagen (exhibit C) which of course pre-dates the August 1994 injury at issue in this case. Dr. Kagen essentially opined that the 1990 injury while wearing a utility belt caused a herniated disc, noting that his underlying or congenital spondylolysis and spondylolisthesis were not symptomatic until the 1990 work injury. He went on to note an increase in back pain late 1993 and early 1994 after the applicant bent over off duty to tie his shoes. He described the off duty bending as an exacerbation of the 1990 disc injury occurring while the applicant wore a utility belt. He thought the off-duty bending, however, caused only a temporary aggravation, and that there was no reason to believe that his employment generally caused his condition to be aggravated beyond normal progression. Significantly, he described the disc injury caused by the 1990 work injury as subjection to remissions and exacerbations either spontaneously or with a new specific trauma.
The applicant also submits a WC-16B form practitioner's report signed by Dr. Kruse in August 1998. Exhibit A. She lists the August 26, 1994 fall-from-the- plank even as the "date of traumatic event," and referred to her initial treatment note after the fall for a description of the injury. She diagnosed traumatic aggravation of L5-S1 spondylolisthesis and L5-S1 disc protrusion, which she described as permanent. She went on:
"Patient had prior temporary aggravations of an injury occurring on 11-10- 90 from time of his plateau from that injury, 2-29-92 through the date of injury 8-26-94. The injury of 9-26-94 caused a permanent aggravation of the pre-existing condition resulting in surgery on 1-9-95 - a bilateral lateral fusion L5-S1 and Gill procedure with right iliac bone graft and pedicle screw fixation."
Dr. Kruse also opined that the work injury directly caused the disability; noted that she had released the applicant to return to work without restrictions on February 7, 1996; and rated functional permanent partial disability at 13 percent (10 percent for the fusion and three percent for his continuing periodic back pain) in addition the 2 percent awarded for the 1990 injury. Dr. Kruse expected continuing treatment in the form of follow-up visits, x-ray, and prescription medication.
Dr. Kruse provided more explanation in a letter dated February 29, 2000. She states:
"Mr. Christian had a condition called a spondylolisthesis at L5-S1. Up until an injury on 08/26/94, he had been able to do his job as an ironworker, despite this condition.
"Following the injury, he had significant back and radicular pain, which increased with physical activity and did not return to his pre-injury physical status.
"This necessitated surgery in January of 1995, consisting of a bilateral lateral fusion and removal of the spondylitic fragment (Gill procedure) . To explain further, a spondylolysis is often a congenital condition in which there is a ligamentous bridge between the back part of the vertebra and the front part of the vertebra. Because this is a ligamentous bridge and not as strong, one vertebra may slip forward to a certain degree on the other, a condition called a spondylolisthesis. The spine often stabilizes at that point and the condition may or may not be painful. Sometimes an injury occurs in which the ligament bridge gets stretched or torn (like a severe ankle sprain). This can result in increased mobility of the spondylitic fragment and cause nerve irritation to the spinal nerves nearby resulting in back and radicular pain. This can be corrected by removing the spondylitic fragment and fusing the involved level. This is what happened in Mr. Christian's case. Mr. Christian had an excellent outcome and is now back to work as an ironworker."
The initial independent medical examination was done by Gerald Gredler, M.D. Exhibit 3. He examined the applicant in October 1994, or a month or so after the fall at work. Dr. Gredler's diagnostic impression was spondylolisthesis, L5 on S1 with modest disc protrusion at L5-S1. He explained the relationship between the August 1994 fall and the applicant's condition by stating his belief that the applicant was suffering from a temporary aggravation of a pre-existing spondylolisthesis with minor disc bulging at L5-S1. In response to specific interrogatories on the question of causation, the doctor opined that the work injury aggravated, accelerated and precipitated a pre-existing degenerative condition beyond its normal progression, but caused only a temporary aggravation.
The doctor recommended only symptomatic treatment (wearing a lumbar belt, losing weight, working on abdominal musculature). He thought the applicant might eventually need a fusion, but that that would not be related to the August 1994 work injury.
Dr. Gredler did set 60-day restrictions against lifting more than 30 pounds, and recommended he avoid constant stooping and twisting. While he thought the applicant would ultimately recover from his temporary aggravation, he noted again that a lumbosacral fusion might be necessary to stabilize the pre-existing spondylolisthesis.
On December 16, 1994, Dr. Gredler wrote a note about the applicant's imminent surgery. He stated that-even though he did not know what the surgery was-it would not be related to his work injury. He thought a laminectomy would be useless, and that a fusion would be necessary only to treat the pre-existing spondylolisthesis. Exhibit 4.
Finally, the respondent submits an IME report from Stephen Weiss, M.D., dated November 16, 1999. Exhibit 1. At the time he wrote the report, Dr. Weiss had not yet actually examined the applicant. Rather, his report was based on a medical records review.
Dr. Weiss's diagnosis was status post Gill procedure and fusion at L5-S1 for spondylolisthesis with degenerative disc disease at L5-S1 and small herniated disc. Dr. Weiss's impression is that
"[The applicant] clearly has a long history of low back pain dating back to his teenage years. The most pertinent diagnostic studies were the MRIs performed before the work injury of August 26, 1994 and after that same injury. As there was no significant change, I believe it is obvious that he did not suffer any significant injury as a result of the August 1994 work-related incident. Instead, it appears that his ongoing symptomology, which was essentially unchanged from before represented the normal progression of his previous difficulties. In my opinion, the surgery done in January of 1995, was obviously done for the pre-existing underlying condition."
Dr. Weiss went on to say, in response to specific interrogatories, that the work injury resulted in some minor soft tissue injuries which, in turn, produced a temporary aggravation of the applicant's pre-existing condition. In support of this conclusion, the doctor noted that the post-injury September 1994 MRI did not show any changes in comparison with the pre-injury December 1994 MRI. He noted also the negative straight leg raising test and normal neurological testing in the emergency room, which indicated any injury on the date would be minor in nature.
Dr. Weiss went on to opine that the applicant would have recovered from the temporary effect of the August 1994 work injury within 12 weeks. He opined no further treatment would be necessary for that injury.
Dr. Weiss also thought that the applicant had plateaued from the January 1995 fusion surgery (which did not think was work-related) by February 1996. He anticipated a 7 percent permanent partial disability from the fusion surgery. He also anticipated permanent work restrictions after the January 1995 fusion surgery to include a restriction to light or medium lifting, with additional restrictions against prolonged, deep or frequent bending.
IME Weiss then actually examined the applicant on February 8, 2000, after which he issued a report dated February 15, 2000. He opined the applicant could have returned to sedentary work 12 weeks after surgery, and light duty after six months. He opined the applicant probably plateaued about a year after the surgery, and certainly had plateaued when examined on February 7, 1996.
Dr. Weiss downgraded his disability rating to 5 percent, because only a fusion and no discectomy was performed. He also modified his anticipated return to light to medium duty work, to permit instead a work allowing an 80-pound maximum lift and a 55-pound repetitive lift. He modified the restrictions based on his exam findings, and the fact the applicant in fact was working with those restrictions.
While Dr. Weiss did not change his opinion regarding causation, Dr. Weiss also agreed the fusion surgery was reasonable and necessary treatment for the applicant's condition. He reiterated his opinion that he work injury only caused minor soft tissue injury and no change in the status of his underlying condition. He held this despite the fact the applicant told him he had only had back pain beginning with the 1990 injury, and not back to his teenage years.
d. Discussion; award
In essence, this case presents the question of whether a clear, conceded, traumatic work injury aggravated a pre-existing condition beyond its normal progression to the point that surgery was required, or whether the work injury caused only a temporary muscle strain which resolved coincidentally with the normal progression of the applicant's underlying condition to the point of making surgery necessary. To support his opinion that work injury did not cause the applicant's disability, IME Weiss points to the clear underlying degenerative condition; the prior complaints, including similar complaints; and the lack of objective evidence of traumatic change from the fall observable in MRI scan. To support her opinion that the work injury aggravated, accelerated and precipitated the applicant's pre- existing degenerative condition beyond its normal progression, treating doctor Kruse explains that a spine with spondylolisthesis may stabilize at a point where the condition is not be painful. However, if an injury occurs thereafter, the ligament bridge may be stretched or torn, resulting in increased mobility of the spondylitic fragment and causing nerve irritation to the spinal nerves nearby resulting in back and radicular pain. That is what Dr. Kruse feels happened here.
Based on the record before it, the commission, like the ALJ, finds Dr. Kruse's expert medical opinion most credible on this point. The commission therefore concludes that the applicant's August 26, 1994 work injury precipitated, aggravated, and accelerated the applicant's pre-existing progressively deteriorating or degenerative condition beyond its normal progression. The commission concludes further that the work injury caused the need for the fusion surgery and Gill procedure performed by Dr. Kruse on January 9, 1995, and that the respondent is therefore liable for the resulting disability and medical expense.
As the ALJ pointed out, Dr. Kruse's opinion regarding causation is supported analytically by several factors inlcuding: (a) Dr. Kagen's opinion that, just before the August 1994 work injury, the applicant had plateaued with no additional disability from the September 1993 re-aggravation of the 1990 injury; (b) the applicant's testimony about the change in the status of his medical condition and symptoms after the August 1994 work injury; (c) the applicant's ability to return to work after the 1990 structural belt injury and the 1993 reaggravation of that injury, but not after the August 1994 fall from the plank injury; and (d) the fact that the August 1994 four foot fall from the plank to a rock seems likely to cause permanent change to the applicant's already degenerative back, rather than simply a muscle strain.
On appeal, the respondent's argument against Dr. Kruse's opinion on causation depends to a large degree on the respondent's assertion that the applicant concealed prior symptomology from Dr. Kruse and the other doctors, by implying that his back problems began only in 1990. In fact, in January 1991, the applicant reported a long history since his teenage years of his back going out.
However, there is no evidence from any expert that it makes a difference whether the applicant's problems began in 1990 with the structural belt injury, or in the 1970s during the applicant's teenage years. Indeed, the only expert to weigh in on the point is Dr. Weiss, and he says essentially that it makes no difference; he would not find causation either way. Beyond that, all the doctors, including especially Kruse, generally appreciated the applicant's pre-existing condition, and that it was often symptomatic before the 1994 injury.
In short, absent a statement from a medical expert that it is material whether the applicant's substantial back problems started in the 1970s or in 1990, the commission declines to reject Dr. Kruse's report on that basis. The commission notes also that there are few treatment records for a back problem prior to 1990, even though the includes notes from orthopedist Kruse for other conditions going back to the early 1980s. In addition, whatever the applicant's pre-1990 complaints, moreover, they did not prevent him from doing his indisputably heavy job as an ironworker for several years.
The commission acknowledges that it was concerned with the applicant's testimony to the effect that his pre-August 1994 pain was qualitatively different than his post-August 1994 pain. Specifically, the applicant initially suggested that it was only after August 1994 that he began experience radicular symptoms of pain, numbness, and burning in his legs. However, Dr. Kruse's notes from 1991- 1993 amply demonstrate that the applicant in fact experienced those symptoms prior to the August 1994 injury. Dr. Kruse's notes, however, suggest that before the August 1994 injury those symptoms resolved by themselves, while after the August 1994 injury they did not. See Kruse's note for November 25, 1994. In any event, however, Dr. Kruse certainly had an accurate perception of the applicant's symptoms between 1990 and August 1994; they are documented in her notes. Nonetheless, she found a work-related injury.
In sum, the evidence about the prior symptoms mainly goes to the fact that the applicant had a pre-existing condition. The fact remains that, despite that condition and those symptoms, he always recovered to the point he could return to his strenuous job - at least until the August 1994 injury at issue here. It seems reasonable to conclude that the August 1994 worked some kind of permanent change to the applicant's back that advanced his spondylolisthesis to the point that corrective surgery was required. True there is no clear breakage shown in the MRI (and thus no objective change as Dr. Weiss points out), but breakage is not necessary for Lewellyn 3 causation. (3) The applicant was able to work, and work at a heavy job, until the August 1994 injury. He did fall four feet from a plank, an injury which it is reasonable to conclude could cause the stretched or torn ligamentous bridge which Dr. Kruse describes.
The applicant thus is entitled to temporary total disability from December 27, 1994 to February 7, 1996, a period of 58 weeks and one day. At the weekly rate of $466, the applicant's total award for temporary disability equals $27,105.67.
The applicant is also entitled to permanent partial disability. He has clearly had a good result from the bilateral lateral fusion at L5-S1 and Gill procedure performed by Dr. Kruse. The minimum award for a spinal fusion, with good results, is 5 percent per level under the administrative code. Wis. Admin. Code § DWD 80.32(11).
Under the Wisconsin Administrative Code, a separate minimum five percent rating is allowed for every surgical procedure done to relieve the effects of a disc lesion or spinal cord pressure. Thus, since normally a laminectomy or discectomy procedure is done at the same time as a fusion procedure, the two procedures combined result in a ten percent rating. See: Wis. Admin. Code § DWD 80.32(11), Note.
However, in this case no laminectomy was done. Under the record before it, the commission cannot conclude that the Gill procedure, which was done by elevating the ligamentum flavum from the underside of the L5 lamina, was done to relieve the effects of disc lesion or spinal cord pressure. In short, the commission adopts Dr. Weiss's rating of permanent partial disability at five percent compared to disability to the whole body.
The applicant is therefore entitled to fifty weeks of permanent partial disability compensation. At $158 per week, the applicant's permanent disability award equals $7,900, all of which is accrued.
The applicant approved payment of an attorney fee under Wis. Stat. § 102.26, which is set at twenty percent of the amounts awarded hereunder. The fee is $7,001.13 {0.20 times ($27,105.67 plus $7,900)} and shall, together with costs of $386.35, shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The amount remaining, $27,618.19, shall be paid to the applicant within 30 days.
The applicant also incurred the following reasonable and necessary medical expenses to cure and relieve the effects of the work injury. Physical Therapy Services, the sum of $3,456, of which Ironworkers Local 383 Health Care Plan paid $3,007.23, and the applicant paid $448.80; Home Health Care, the sum of $425, of which Local 383 paid $382.50 and $42.50 is unpaid; Madison Radiologists, the sum of $82, all of which was paid by Local 383; Prairie Clinic, the sum of $288, all of which was paid by Local 383; Orthopedic Associates, the sum of $20,273, of which $11,686 was paid by Local 383, the applicant paid $1,600.00, and $6,986.95 remains unpaid; Sauk Prairie Memorial Hospital, the sum of $15,392.17, of which Local 383 paid $15,343.77, the applicant paid $3.35 and $45.05 remains unpaid; to St. Clare Hospital, the sum of $106.60, all of which was paid by Local 383; to Walgreens Pharmacy, the sum of $585.47, of which Local 383 paid $444.38 and the applicant paid $141.09. The applicant also incurred $121.72 in mileage.
Because Dr. Kruse reports that further treatment, including periodic x-rays (presumably to check the condition of the fusion), will be necessary, this order shall be left interlocutory to permit additional awards for temporary disability, permanent disability, and medical expense.
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 in part.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Gerry W. Christian, Twenty Seven thousand six hundred eighteen dollars and nineteen cents ($27,618.19) in disability compensation.
2. To the applicant's attorney, Dale E. Hughes, the sum of Seven thousand one dollar and thirteen cents ($7,001.13) in attorney fees and Three hundred eighty-six dollars and thirty-five cents ($386.35) in costs.
3. To Home Health Care, Forty-two dollars and fifty cents ($42.50).
4. Orthopedic Asssociates, Six thousand nine hundred and eighty-six dollars and ninety-five cents ($6,986.95).
5. Sauk Prairie Memorial Hospital, Forty-five dollars and five cents ($45.05).
6. Ironworkers Local 383 Health Care Plan, the sum of Thirty-one thousand three hundred and forty dollars and forty-eight cents ($31,340.48).
7. To the applicant, the sum of Two thousand one hundred ninety-three dollars and twenty-four cents ($2,193.24) in out of pocket medical expense, and One hundred twenty-one dollars and seventy-two cents ($121.72) in medical mileage.
Jurisdiction is reserved for further orders and awards as may be warranted consistent with this decision.
Dated and mailed December 19, 2000
christi.wrr : 101 : 3 ND § 3.37
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
Because the commission's decision to reduce the award for functional permanent partial disability was based on its reading of the applicable provisions of the administrative code and the medical reports, rather than the testimony of a witness who testified before the ALJ, no credibility conference was conducted.
PAMELA I. ANDERSON, COMMISSIONER (Dissenting):
I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Weiss to be more credible when he opinions "it is my opinion the August 26, 1994 work injury resulted in some minor soft tissue injuries which, in turn, produced a temporary aggravation of Mr. Christian's pre-existing condition. My conclusion is supported by the MRI studies performed in December 1993 (before the work injury of August 26, 1994) and September 1994 (after the same injury), which did not demonstrate any significant changes. Furthermore, the emergency room record dated August 26, 1994, indicated Mr. Christian had negative straight leg raising and normal neurological findings when examined, when leads me to believe any injury sustained on that date was relatively minor in nature.With respect to Mr. Christian's current condition, I believe the diagnosis is status post Gill procedure and fusion at L5-S1 for spondylolisthesis with degenerative disc disease at L5-S1 and a small herniated disc." I should note that the herniated disc was present prior to the August 26, 1994 work injury.
For these reasons, I would find that the applicant had a temporary aggravation of his long-standing pre-existing back condition and dismiss this application.
__________________________________________
Pamela I. Anderson, Commissioner
cc: ATTORNEY DALE E HIGHES
ATTORNEY H ELIZABETH SEVERSON
STILP & COTTON
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Footnotes:
(1)( Back ) The file forwarded to the commission for review did not include the petition. The respondent's attorney has provided an affidavit, establishing that the the petition was hand-delivered to the Workers Compensation Division on May 22, 2000, which the applicant's attorney does not contest.
(2)( Back ) A rongeur is an instrument used to cut tough tissue, particularly bone.
(3)( Back ) "If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing disability or disease and the employee should recover even if there is no definite `'breakage'." Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).
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