STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
KELLIE PALLAMOLLA, Applicant
AMETEK LAMB ELECTRIC INC, Employer
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer
WORKER'S COMPENSATION DECISION
Claim No. 1997-067422
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.
ORDER
The findings and order of the administrative law judge are affirmed.
Dated and mailed December 12, 2000
pallamk.wsd : 101 : 2 ND § 3.38
/s/ David B. Falstad, Chairman
Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
MEMORANDUM OPINION
1. Posture
The applicant was born in September 1968. The applicant began working for the employer, a manufacturer of small electric motors weighing from two to 13 pounds, in March 1994. She had primarily one job during her employment with the employer, heat run operator. That job involves test running the motors engines before they are packed.
On June 22, 1998, when she was not yet 30, she hurt her back at home bending over a bed to straighten it. She contends her off-duty injury was the result of a weakened back from work exposure; exposure which had already resulted in a painful back and lost work time in 1997. Ultimately, the applicant underwent a fusion surgery in her lumbar spine, specifically, an "L4-5 and L5-S1 bilateral BAK cage implants," on December 14, 1998. The employer and its insurer (collectively, the respondent) contend her condition is entirely unrelated to work.
The main issue in this case is whether the applicant's work exposure caused her disability occurring after the home bed-straightening incident. On that issue, the parties submitted written expert medical opinions from three sources.
Treating surgeon Shumaker provides his opinion at Exhibit A. This includes a December 1998 practitioner's report on form WC-16-B that lists the date of traumatic event as "July 13, 1998; occupational." He goes on to describe the work exposure to which the applicant attributed her condition as
"The patient's work activities aggravated and accelerated the patient's pre-existing lumbar disease beyond its normal rate of progress."
He completed the form by marking the "direct causation" and "event causing disability by precipitation, aggravation, and acceleration . of pre-existing condition beyond normal progression" boxes, and reported that the applicant has been totally disabled since July 13, 1998.
Attached to his practitioner's report, Dr. Shumaker included a letter dated November 28, 1998. This gives a diagnosis of discogenic lumbar mechanical back pain at the L4-5 and L5-S1 levels. Regarding the causal relationship, Dr. Shumaker added:
"It would be difficult to ascribe the mechanical back pain as a direct consequence of her work activities as there is no history of a specific work related trauma; however, I believe that her work is clearly an indirect causal relationship to her back pain in that it clearly aggravated and accelerated her pre-existing lumbar disease."
Dr. Shumaker essentially reiterated this opinion in his letter to the respondent's attorney in October 1999. See Exhibit 4.
The applicant also submits a report from Dr. Bharat at Exhibit B. In a letter dated October 5, 1999, Dr. Bharat gave a diagnosis of intervertebral disc disorder. He stated that, with patients who have that condition, anything that can put pressure on the disc is going to be harmful for the short range as well as the long range. He frankly admitted he was not sure what kind of activities the applicant was involved in at work, but noted that if they involved repetitive bending at work, the activities certainly would be making the condition worse.
Dr. Bharat concluded by noting that the applicant had remained in a healing plateau as of the last time he had seen her (August 3, 1999), and that she might require more surgical care and more pain management treatment.
The respondent's IME is Douglas Zeman, M.D. He examined the applicant on April 15, 1999. He noted the June 22, 1998 injury when the applicant was making the bed at home, and that she first began to have trouble with her back in 1997, causing her to miss a few days from work. She told the doctor she thought the bending and lifting she did at work contributed to the development of her back pain.
After doing an exam and reviewing the record, Dr. Zeman stated his diagnosis as degenerative disc disease with midline bulging at L3-4, L4-5, and L5-S1, not status post fusion. Regarding causation, he stated his impression was:
"Ms. Pallamolla has not described work activities of significant magnitude and duration to represent a material contributory causative factor in the onset or progression of her degenerative lumbar disc disease with bulging at L3-4, L4-5 and L5-S1. Records provided indicated an onset of symptoms on June 22, 1998. There was no record currently available that suggests any ongoing difficulty from November 17, 1997, up until June 22, 1998."
Exhibit 1, April 24, 1999 report of Zeman, page 10.
Dr. Zeman concluded then that her work exposure was unrelated to her back condition, and that the June 22, 1998 work injury directly caused her acute nonspecific low back pain associated with degenerative disc disease. He could not independently confirm that the L4 to the sacrum fusion was necessary. He indicated it was too early to rate permanent restrictions, but stated she could return to work subject to permanent restrictions against bending, lifting, pushing, or pulling and allow sitting or standing as desired.
Also of note, is at Exhibit 8, which was the applicant's application for non- industrial insurance following the June 1998 injury, which she filed in July 1998. S. Johnson, M.D., who describes himself or herself as "on call for T. Foley, M.D.," indicated the applicant's condition did not arise out of employment.
The presiding ALJ credited Dr. Shumaker's opinion. Consequently, she found a compensable work injury. Specifically, she found an occupational back injury as a result of the applicant's work exposure. She concluded that, under the standard set out in Lange v. LIRC, 215 Wis. 2d 561 (Ct. App., 1997), the applicant's condition was compensable, despite the bed-changing incident occurring off-duty. She ordered payment of the claimed medical expense, and temporary total disability to the date of the second hearing. (1)
The ALJ offers the following explanation for her conclusion on causation: (1) there was no evidence of any pre-employment back difficulties; (2) the applicant's job as a heat run operator was a very physical, fast paced job; (3) the applicant began experiencing back symptoms at work in November 1995 leading to a request for a back brace in that month; (4) her symptoms continued after getting the back brace; (5) she treated for her back in July 1997, and she was taken off work; (6) she treated for a back injury occurring in November 1997 when she turned "wrong" and was again taken off work; and (7) the applicant complained to lead worker Beard at least ten times of back problems.
The respondent appeals. It argues that the applicant's job was not a very physical, fast-paced job; that it was only after the June 1998 bed-changing incident that any surgery was needed-in contrast to the 1997 work exposure which resolved with only a few days off work; that Dr. Shumaker's WC-16-B did not contain the correctly marked box for occupational disease; that Dr. Shumaker admitted all he knew at the time of the injury was that the applicant had a lifting-type job with repetitive bending; that he outrageously issued an opinion without more information; and that his subsequent ex post facto opinion based on more information is not credible. The respondent also argues that the applicant's injury is not a compensable re-injury under Lange, even if the applicant's work exposure did weaken her back, because no one has opined that the disc injury while changing the bed would not have occurred but for occupational exposure.
2. Discussion.
The commission believes the respondent's objections to the ALJ's decisions cannot be sustained.
a. Pace of job.
As noted above, the applicant's job involved test running the motors before they are packed. The employer uses three different heat run machines to test the motors. Although the heat run machines are differently configured, their basic function is the same: a motor is removed from a conveyor put in the heat run machine, the motors leads are connected, the motor is energized and is test-run at various speeds while revolving in a circle on the heat run machine, and the motor is removed and put on another conveyor line. The applicant's job is to put the motors on and off the heat run machine.
Of course, this is a manufacturing process, so the actual job is fairly routinized in a process that allows many motors to be tested at once. A fair picture of the applicant's job may be obtained by viewing the videotape exhibit of the applicant's job duties-particularly the part showing the first two machines-and reading the applicant's testimony at pages 15 to 22 of the November 1999 transcript, and the testimony of the employer's shift supervisor, Paul Jacob, at pages 114 to 119 of the February 2000 transcript. It appears from the testimony of Mr. Jacob that the applicant worked extensively on the first machine shown in the videotape, as 90 percent of the motors were tested that way. Only the largest motors are tested on the second machine shown in the videotape.
The videotape exhibit shows a worker on the first heat run machine grabbing motors, two at a time, from a waist-high conveyor line. The worker then puts the motors into compartments in the heat run machine. The heat run machines revolve like a merry-go-round, and the first one shown in the videotape-the main one-has compartments at four levels or rows, in twenty-six columns, for a total of 104 compartments.
At any rate, while the worker is putting the motors in the compartments, and connecting the electric leads, the heat run machine slowly revolves. A worker has to twist and turn about 180 degrees, while holding the two motors, to move them from the conveyor to the heat run machine. A worker also has to do a considerable amount of bending to get the machines to the lowest, knee-high, row of compartments and connect the leads. The shift supervisor testified that not all the rows are necessarily used for every run of testing due to production limitations. Indeed, in the job shown on the videotape, the highest compartments were not used; the worker was putting the machines in the bottom three rows of compartments.
The applicant testified that she tested as many as 400 to 500 motors per hour in this job. Shift supervisor Jacobs testified a worker on the second machine could test about 3500 in an eight hour shift, which of course works out to about 450 to 500 per hour. February 2000 transcript, page 123-125.
The second heat run machine shown in the videotape, on which relatively fewer, but larger motors are tested also involves putting motors in the machine, connecting leads, and removing them when the cycle ends. There is only one level on this "merry-go-round" and it is at approximately waist height.
The videotape does not show an activity called "skidding." February 2000 Transcript, page 120. Skidding means the worker removes the motors to be tested from a skid to put on the heat run machine. According to the supervisor Jacob, skidding is not done very often, usually when there was some problem with the production process that resulted in the motors being put on skids. Supervisor Jacob agreed, however, that skidding required more bending and twisting than the normal work shown in the videotape. February 2000 Transcript, page 120- 21.
Tammy Beard, the employer's former lead worker who testified for the applicant, described the heat run job as physical and fast-paced. February 2000 Transcript, page 89-92. Indeed, Ms. Beard testified she lost 8 pounds doing the job for three weeks.
The respondent's attorney disputes the characterization of the applicant's job as physical and fast paced, however, and says the applicant is working at a relaxed and regular pace. With all due respect to the respondent's attorney, the commission cannot agree that the pace is relaxed, especially given the amount of bending involved and the requirement of attaching leads which requires at least some dexterity. Indeed, the worker doing the job on the tape appears to be working about as fast as she may reasonably be expected to work for any length of time without performance lapses. The ALJ reasonably characterized the job as fast paced and physical.
b. Dr. Shumaker's knowledge of the job and "ex post facto" opinion
Dr. Shumaker testified at the second hearing, as an adverse witness called by the
respondent. He acknowledged the fusion surgery he performed on the applicant was not
successful. February 2000 Transcript, page 11.
Regarding the practitioner's report of form WC-16-B which he completed (Exhibit A), Dr. Shumaker testified that the form came with the words "7/13/98; occupational" already supplied as the date of traumatic event. He testified that he did, however, dictate the words "the patient's work activities aggravated and accelerated the patient's pre-existing lumbar disease beyond its normal rate of progress." February 2000 Transcript, page 13. He testified he did not mark the "occupational disease" causation box because, when he filled out the form, he was unaware of the extent of her occupational activities; the details of her work. February 2000 Transcript, page 14-15.
Dr. Shumaker went on to explain this statement by clarifying:
"At that point I had not received her full job description. I had only received her verbal description of it."
Transcript, page 15. He described the description of job duties that he had from the applicant herself as sketchy. Transcript, page 19. He specifically testified that when he wrote the November 24, 1998 report attached to his WC-16-B, he knew who the applicant worked for, and that she worked in a lifting-type job with repetitive bending. February 2000 Transcript, page 34.
Dr. Shumaker also testified that his expert opinion in the practitioner's report of form WC-16B and attached report was also based on the description of the applicant's job duties in a November 10, 1998 letter from the applicant's attorney, Richard Fortune. Transcript, pages 18 and 25-25. Indeed, Dr. Shumaker's November 24, 1998 report expressly refers to Attorney Fortune's November 10 letter. Attorney Fortune's letter describes the applicant's job duties as
"Firstly, you should be aware that the patient has been employed at Ametek Lamb for approximately five years. Her work activity involves constant and repetitive bending and twisting at the waist while handling weights ranging from less than one pound to as many as twelve to fifteen pounds. The activity is constant during the course of an eight hour shift.
"The patient first began developing symptoms sometime in 1997. The symptoms occurred at work in the course of the patient's work activities. The employer provided her at that time with a back brace and she missed time form work. The patient observes to me that her back really bothered her when she was particularly aggressive at work, i.e., producing a greater `motor count' than normal. The back symptoms were worse at the end of the day than at the beginning and worse at the end of the week than at the beginning of the week."
Exhibit 11, Fortune letter to Shumaker dated November 10, 1998.
Finally, Dr. Shumaker testified he also considered Dr. Bharat's history of August 26, 1998 (set out above) in reaching his opinion expressed on Exhibit A. February 2000 Transcript, page 52.
Dr. Shumaker went on say that at the time he originally saw the applicant, he did not think her injury was work related, so he did not take a detailed report of her job activities. He explained that she initially presented with a history of the June 22, 1998 injury while bending over a bed, and that that seemed like a plausible explanation of her back problems, given the initial CT scan. February 2000 Transcript, page 21.
However, Dr. Shumaker continued, when he got the results of the subsequent scans, an MRI and the CT discogram, he began to suspect some other force came into play. February 2000 Transcript, page 21. Specifically, the initial CT scan showed only single disc involvement, while the later scans showed herniations at two, possibly three, levels.
Turning back to his opinion in the November 24, 1998 report attached to his practitioner's report on form WC-16-B, Dr. Shumaker stated that it would be difficult to ascribe the applicant's condition directly to work exposure, given the onset of pain associated with her injury at home on June 22, 1998. However, he regarded the work exposure before-and three or four days after-the June 22, 1998 event as the underlying etiology of the applicant's condition. The June 22, 1998 bed-making event was merely the last straw. February 2000 Transcript, page 24. Stated another way, the work exposure weakened the applicant's back, and the bed-making incident directly caused the applicant's problem. February 2000 Transcript, page 27.
Dr. Shumaker later admitted that he could not say with certainty whether the three or four days the applicant worked after the June 22, 1998 work injury aggravated the applicant's back condition beyond normal progression or simply caused a manifestation of symptoms. February 2000 Transcript, page 28-29. Asked to describe what he needed to know to give an opinion that work exposure somehow weakened her back, the doctor stated it would be the amount she was lifting and the number of bends she performed. February 2000 Transcript, page 34. The length of employment would not be relevant, so long as it was at least six weeks. February 2000 Transcript, pages 34-35.
Dr. Shumaker also explained that it was unusual to see multilevel disc degeneration caused by the normal wear and tear of the aging process in someone under 40. He explained also that a single spontaneous event (such as the bed- changing incident) would cause single level disc degeneration, but was unlikely to cause multilevel degeneration. He explained multilevel degeneration was usually a prolonged process, and usually associated with repetitive motion. February 2000 Transcript, pages 49, 54-55.
On direct examination by the applicant's attorney, Dr. Shumaker added that bending over to make a bed would be unlikely to cause a two-level disc herniation in a 31-year old woman. Transcript, page 58. He added that the applicant's work activities caused the degenerative condition itself, and did not simply aggravate existing degenerative changes beyond normal progression. February 2000 Transcript, page 60.
On this record, the respondent's assertions that Dr. Shumaker outrageously issued an opinion on a scant description of the work exposure are somewhat overstated. Dr. Shumaker had the description of the applicant's job from the applicant's attorney, the admittedly sketchy description from the applicant, and the description from Dr. Bharat. Dr. Shumaker explained that he did not go into more detail as to the work history from the applicant in the first place because- until he saw multilevel degeneration on imaging scans-he assumed the June 1998 bed changing incident was in fact causative.
The job description in the November 10, 1998 letter from applicant's attorney Fortune is reasonably detailed. As long as it is accurate -- and there is no evidence Mr. Fortune's description was inaccurate in any material sense (2) -- the commission believes Dr. Shumaker could rely on it. In short, the commission is satisfied that the doctor had an adequate understanding of the applicant's job duties to support his opinion. Dr. Shumaker's subsequent re-affirmance of his opinion at the hearing was not simply an arbitrary, after-the-fact attempt to shore up an unsupportable position. Rather, based on the record here, including Dr. Shumaker's hearing testimony, the ALJ reasonably concluded that the applicant's disability was caused by an appreciable period of workplace exposure that was at least a material contributory factor in the onset or progression of a progressively deteriorating condition.
The commission realizes that Dr. Shumaker did not mark the "occupational disease box" on the practitioner's report. However, the narratives in his written opinion, together with hearing testimony, amply support the ALJ's conclusion that the applicant's injury was caused by occupational disease. In other words, while Dr. Shumaker may not have marked the appropriate box on the practitioner's report form, the most reasonable view of the record supports the ALJ's finding of causation sufficient to support an award. In reaching that conclusion, ALJ and the commission are permitted to elevate the substance of hearing testimony and narrrative explanations provided by medical experts over the marked box on the report. (3)
c. The Lange case
Finally, the respondent asserts that the applicant's off-duty injury while straightening the bed is not a compensable re-injury under Lange, even if the applicant's work exposure did weaken her back, because no one has opined that the disc injury while changing the bed would not have occurred but for occupational exposure. However, the respondent's argument turns the Lange holding somewhat around. Dr. Shumaker is not required to opine that the disc herniation would not have occurred "but for" the work injury to make the applicant's case compensable; rather if the applicant shows the work exposure was a substantial factor in the off-duty injury, the respondent must prove the injury would have happened the same way had the work exposure not occurred to prevail on the theory the injury was caused the bed-straightening event alone was causative. Lange, at 215 Wis. 2d 565. The record does not support that finding in this case.
cc: ATTORNEY RICHARD A FORTUNE
RICHARD A FORTUNE & ASSOCIATES SC
ATTORNEY DOUGLAS M FELDMAN
LINDNER & MARSACK SC
Appealed to Circuit Court.
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Footnotes:
(1)( Back ) Dr. Shumaker testified at the second hearing that the applicant was still healing at that point.
(2)( Back ) It does appear the applicant worked for the employer for less than the five years postulated by the applicant's attorney. However, Dr. Shumaker testified it did not matter if the applicant worked for the employer for four years rather than five.
(3)( Back ) Johnson Welding & Manufacturing Co. v. LIRC and Skogstad, Eau Claire County Circuit Court Case No. 94CV704 (July 3, 1995); Harnischfeger v. LIRC and Dzenzeol, Court of Appeals Case No. 95- 0212, unpublished District I decision dated August 8, 1995; and Anderson v. LIRC and Quad Graphics, Court of Appeals Case No. 95-1023-FT, unpublished District I decision dated November 7, 1995 (where LIRC was reversed after denying based on the treating doctor having marked two causation boxes.)
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