Wis.LIRC WC Decision: Alverio - February 7, 2001 - ND � 3.4 - Occupational Disease; � 3.42 - Causation in Occupational Disease Case - applicant, not yet 26 and with no history of back problems, developed them after weeks of routinely lifting and carrying 70 pound blocks; � 5.3 - Generally - Temporary Disability -- temp. disability due during "healing period," the period before worker's condition becomes stationary and all improvement likely to occur from treatment and convalescence has occurred, unless employer offers him work within restrictions; disputed periods of temp. disability generally denied unless supported by expert medical opinion

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

WILLIAM ALVERIO, Applicant

MEGAL DEVELOPMENT CORP, Employer

SOCIETY INSURANCE A MUTUAL CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-027347

The applicant filed an application for hearing, claiming a compensable injury from occupational back disease with a May 5, 1999, date of injury. He seeks compensation for temporary disability as of August 18, 1999, permanent disability in an amount yet to be determined, and payment of related medical expense.

A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development who issued a decision in this matter. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage on the alleged date of injury that results in the maximum compensation rates. The respondent previously paid temporary disability from May 5, 1999 through August 17, 1999, as well as certain medical expenses, but now contends these payments were made under mistake of fact.

The primary issue before the ALJ, and now before the commission, is whether the applicant sustained a compensable injury. Assuming such an injury is established, ancillary issues include the nature and extent of the applicant's disability from the injury, as well as its liability for medical expenses. The ALJ issued his decision resolving these issues on August 10, 2000. Both parties filed timely petitions for review.

The commission has considered the petitions and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the presiding ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1973. He began a mason's apprenticeship in 1993. He evidently stopped union employment at some point, and worked as a non-union mason. Thereafter, when the applicant worked in union employment, he was not considered a mason, evidently because he had not completed his apprenticeship. Instead, the mason's union classifies him as an "improver" which is a middle status between a mason and a masonry laborer. Indeed, his pay was half-way between that of a journeyman mason and a laborer.

The applicant obtained employment with the employer (Megal) through a hiring hall on March 17, 1999. His last day of employment with Megal was May 5, 1999. His weekly hours are listed in Exhibit A; he worked between 24 and 39 hours per week.

While working for Megal, the applicant had two main duties: laying and sawing block. According to the applicant, he cut block for 4 to 6 hours per week, and laid block the rest of the time. The applicant's foreman, however, testified he sawed block half the time, and laid block half the time, and the block cutting was relatively lighter work. Both jobs, however, involved lifting and carrying block, either to lay or cut. In addition to the block cutting and block laying duties, the applicant did heavier work, including lifting and carrying three-quarters full five- gallon pails of grout. Transcript, pages 80-81.

Most of the block the applicant worked with was 12-inch insulated rock faced block. Insulated block of this type is 15 1/2 inches long, 7 1/2 inches wide, and 12 inches deep. The applicant "guestimated" the rock faced block to weigh 85 to 90 pounds (transcript, page 27), or perhaps 95 pounds (transcript, page 66). In a statement to the respondent's adjuster, the applicant claimed he lifted 95-pound block 225 times per day.

The applicant's foreman testified the blocks the applicant worked with weighed about 70 pounds. Transcript, page 89. He testified that Megal was using the 12- inch Best Stone Boss T-Gard, shown in respondent's Exhibit 7 to weigh 67 or 72 pounds depending on whether it is stretcher or flush block. The foreman testified both types were used. Transcript, pages 89-91.

The foreman also indicated the applicant would not lay 225 blocks per day. A good worker might lay 150, and the applicant was a slow worker. Transcript, pages 93-94. On cross examination, however, the foreman estimated that the applicant would cut 60 to 100 blocks in the four hours per day he spent on the saw.

The applicant admitted he only laid about a 100 blocks in an 8-hour day. Transcript, page 29. However, he testified that he estimated he moved the block 225 times because he might have to move an individual block more than once to cut it or lay it. Transcript, pages 65 and 67.

The applicant testified that, prior to beginning work with Megal, he had no back or leg problems. However, about 5 or 6 weeks into his employment with Megal, by mid-April 1999, the applicant claims, those symptoms began to appear. Specifically, the applicant contends he had pain in his right buttock, and upper thigh. The pain grew progressively worse over the next two weeks.

The applicant's last day of work for Megal was May 5, 1999. He was sent home because of rain that day, and the applicant did not work the next two days for the same reason. When the applicant still had pain the following Monday, he went to see a doctor.

The doctor whom the applicant saw was Manila Sodhi, M.D. Dr. Sodhi's initial treatment note is at Exhibit 6. It mentions cold symptoms and the one month of back complaints. Regarding the back complaints, Dr. Sodhi seems to have diagnosed sciatica or perhaps a prolapsed disc, prescribed medication and rest followed by back exercises, and requested the applicant to return in two weeks if still symptomatic.

Another note from Dr. Sodhi dated May 20, 1999, reports seeing the applicant a couple weeks earlier for the first time. She reported starting the applicant on pain medications then, and advised him to rest for a couple of days before starting back to work if the pain improved. Instead, Dr. Sodhi continued, the pain got progressively worse, and the applicant returned the next week when stronger medications were prescribed.

By May 20, 1999, the applicant was on Percocet for his pain. Dr. Sodhi's assessment at that time was that the applicant was a 25-year old male with no past medical history admitted with severe low back pain getting progressively worse. She hospitalized him for pain control, and ordered an MRI. The hospital notes are at Exhibit J.

The MRI showed disc space narrowing and desiccation of L5 and S1, with a compressive central disc extrusion which effaced the ventral thecal sac. The applicant also saw a neurosurgeon, Spencer J. Block, M.D., on May 20, 1999. Dr. Block noted a spontaneous onset of low back and right thigh pain approximately six weeks earlier. He recommended joint injections and physical therapy. If that failed, he thought a fusion might be necessary.

The applicant then saw an orthopedic surgeon, Nileskkumar Patel. He thought that the applicant's clinical presentation was of a large L5-S1 disc herniation. He agreed to do diagnostic joint injections. The applicant's pain was not relieved from the injections meaning, Dr. Patel reported on May 21, 1999, that that the pain was not emanating from the SI joint.

Then, on May 23, 1999, a myelographic CT scan was done, and it showed no evidence of protrusion or herniation. Dr. Patel did a discogram. An L5-S1 provocation test reproduced the applicant's usual low back pain.

Following the discogram, another CT scan was done. This showed an annular tear at L4-5 with a mild protrusion of disc, and at L5-S1 a wide full-thickness annular tear in a central and paracentral location, with findings consistent with a large downward disc protrusion. See Post Discogram CT Scan Lumbar Spine Report dated May 24, 1999 (third last page in Exhibit J.)

On May 25, 1999, the applicant was released from the hospital. Dr. Sodhi discussed treatment options, including conservative treatment with pain-control physical therapy versus intradiscal therapy were discussed. Dr. Sodhi did not consider the applicant to be a candidate for surgery at the time.

The applicant opted for the intradiscal therapy. Meanwhile, he was advised to rest and avoid work. Dr. Sodhi noted that while the applicant had no definite injury prior to the onset of his back pain, she considered that "part of his pain was secondary to the work he has been doing" because his job involved bricklaying. Exhibit J, Sodhi discharge note dated May 25, 1999, page 2.

The intradiscal electrothermal therapy (IDET) was done by Dr. Patel on May 26, 1999. His pre- and post-operative diagnosis was severe lumbosacral radiculopathy secondary to L5-S1 isolated, large central disc herniation, with thecal sac compression.

After the IDET procedure, the applicant was confined to his bed for about a week. Transcript, pages 36-37. He then underwent physical therapy.

Neither the IDET procedure nor the therapy helped much. The applicant was seen by Dr. Patel, apparently on an emergency basis, on June 8, 1999, following an epidural steroid injection. Then, on June 10, 1999, he returned to Dr. Block, whose note is at Exhibit M.

Dr. Block noted that after the "radio frequency discectomy" performed by Dr. Patel, the applicant had no sustained relief, and his pain worsened, with pain radiating down his knee especially on the right side. Dr. Block suggested an anterior lumbar interbody fusion. Even though the doctor could offer only a fifty-fifty chance for success, the applicant wanted to proceed.

After this, an MRI was done on June 11, 1999. The MRI showed a central disc herniation at L5-S1, extending into the epidural fat and appearing to cause lateral displacement and mild compression of the S1 nerve root sleeves. Exhibit L.

At this point, the insurer's nurse recommended that the applicant get a second opinion. She gave him the names of three Milwaukee-area doctors who specialized in back conditions, including Stephen Robbins, M.D. The insurer's nurse accompanied the applicant to his appointment with Dr. Robbins. Transcript, pages 39-40.

The applicant saw Dr. Robbins on July 13, 1999. Dr. Robbins reported that the applicant had worked at Megal laying block for approximately two months, and then experienced the acute onset of pain radiating into his right buttocks on May 4, 1999. The applicant testified he told Dr. Robbins he lifted 95-pound blocks 225 times per day. Transcript, page 97.

On examination, Dr. Robbins noted the applicant could forward flex to 40 degrees, had five degrees of extension, and 10 degrees of lateral bending. He had a negative straight leg raising test, but did experience pain with a rotation maneuver. The weight of the blocks, and the number of lifts, is not recorded by Dr. Robbins, however, in his notes at Exhibit G and H.

Dr. Robbins reported that the x-rays were normal, that a CT-myelogram showed a central disc herniation at L5-S1, and that an MRI scan showed a slight disc herniation with discogenic changes at L5-S1. He noted also that a discogram pain study demonstrated an annular tear at L5-S1.

Dr. Robbins's diagnostic impression was a discogenic low back pain with an annular tear at L5-S1, and slight disc herniation. He opined the applicant's two month history of symptoms was directly related to his industrial injury on May 4. He thought one treatment option would be physical therapy, an exercise program, and work hardening. The other option, Dr. Robbins felt, was to proceed with a fusion at L5-S1.

Given the applicant's age, and the duration of his symptoms, the doctor recommended conservative treatment, specifically, a three to four month exercise program. He wanted to wait until the applicant had six months of symptoms to re- evaluate the appropriateness of treatment.

The insurer then had the applicant travel to Neenah for evaluation by Gay R. Anderson on August 2, 1999. Dr. Anderson's report is discussed in detail below.

In September 1999, the applicant began a course of physical therapy. This was apparently done under the supervision of Scott Hardin, M.D., a physiatrist to whom the applicant was referred by Dr. Sodhi. See Exhibit L. The applicant testified he told Dr. Hardin that he lifted the concrete block weighing 95 pounds 150 to 225 times per day. Transcript, page 57. Dr. Hardin describes the applicant's injury as:

"[The applicant] began feeling discomfort in his low back in April of 1999. After a particularly heavy day at work, he noticed quite a bit [of] soreness when getting out of his car with pain extending into the right buttock. He felt he pulled a muscle at the time and tried some ice and heat but continued to work. However, the pain increased."

Exhibit L, note of Hardin dated September 20, 1999.

Dr. Hardin goes on to detail the applicant's treatment history, including "a June 11, 1999 MRI showing a fairly impressive L5-S1 disc herniation with S1 nerve impingement," for which Drs. Block and Robbins recommended surgical intervention.

Dr. Hardin expressly noted that the applicant did not Exhibit pain behaviors upon examination. Noting the "fairly impressive disc extrusion at L5-S1, with bilateral nerve root impingement," he was skeptical of the long-range benefit of conservative treatment, based on the applicant's job and the duration of his symptoms. He referred the applicant for physical therapy for about four weeks, and opined that if it were not curative, he would send the applicant back to Dr. Block.

In a follow-up visit on October 18, 1999, Dr. Hardin noted the applicant was doing a little better with therapy. However, Dr. Hardin continued to opine the applicant would need surgery for his "very large disc herniation with bilateral S1 nerve root impingement." Meanwhile, he thought the applicant should continue physical therapy to get some myofascial release.

However, the physical therapy was discontinued when the applicant returned to a hospital emergency room due to back pain. See Exhibit I, ER report dated October 19, 1999 from Dr. Tucker. The emergency room report mentions an initial injury while the applicant was lifting a cement block.

Dr. Tucker's report goes on to state that the applicant had been on all fours earlier that evening, looking for something on the floor, when he heard a "pop" and experienced severe pain in his right buttock, similar to his pain with the work injury in May. The applicant told the emergency room doctor the pain seemed to stop in the midback.

Dr. Tucker treated the applicant with pain medication, including intravenous pain medication. Evidently, the applicant became dissatisfied that "nothing was being done," and demanded the IV be removed so he could leave. The IV was removed, and he left.

The applicant apparently called Dr. Block, who advised the applicant to return to the emergency room. The applicant complied, and the return visit is documented by an October 20, 1999 note from Scott A. Seifert, M.D. Dr. Seifert reported the applicant presented with complaints of exacerbation of pain in the low back. The applicant was given morphine for the pain. Dr. Seifert's clinical impression was an acute exacerbation of low back pain and S1 radiculopathy. He admitted the applicant to the hospital for pain treatment.

The applicant was seen by Dr. Sodhi while hospitalized. She noted a past history of low back pain secondary to a herniated disc, admitted with an exacerbation of pain. She noted also that the applicant began having pain symptoms in May 1999, located in the lower back with radiation down the leg. She noted some improvement over the prior couple of months, though the recent aggressive physical therapy-according to the applicant-had not helped much.

Dr. Sodhi then noted the sudden onset of pain the prior night when the applicant was on his knees trying to pick something off the floor. The applicant had not urinated since admission, leading the doctor to become concerned about urinary retention. In addition to inserting a catheter to rule that out, Dr. Sodhi wanted to the explore the possibility of a repeat steroid injection, and follow with neurosurgeon Block.

The applicant had a urology consultation. The consulting urologist's impression was urinary retention due to acute back pain, possibly due also the narcotics the applicant was given for pain. The urologist thought he could be released with a catheter.

The applicant then saw neurologist Block, while still in the hospital on October 21, 1999. Dr. Block's October 21, 1999 note at Exhibit I includes a fairly long recitation of the applicant's history. Following examination, Dr. Block thought cauda equina syndrome unlikely, but wanted an MRI to definitively work the case up. If there was no change in the MRI, the doctor thought the applicant's urinary problem was probably due to the narcotic. If there were changes, and the disc were larger, a fusion procedure might be warranted. If surgery were contemplated, Dr. Block recommended a second opinion from either Dr. Robbins or James Stoll, M.D.

The MRI was done on October 22, 1999. At L5-S1, it showed marked diminished signal within the disc, indicating extensive degenerative changes. Also noted was a protrusion of the disc posteriorly, extending to the right and left of midline, and impressing on the subacromial space, as noted on prior studies. The MRI, however, showed no significant compromise of the exiting nerve roots, and no significant compromise of the subarachnoid space. The report described the scan as essentially unchanged from those done in May and June 1999.

It appears that the applicant was discharged on October 23, 1999 by Dr. Sodhi. See Sodhi report of October 23, 1999. The applicant still had a Foley catheter for his urinary problems. He was instructed to follow-up with Dr. Robbins or Stoll for a second opinion regarding Dr. Block's proposed neurosurgery.

The next day, October 24, 1999, the applicant returned to the emergency room, complaining of increasing pain. The emergency doctor gave the applicant Demerol intravenously, and remained concerned about the possibility of spinal cord compression. The applicant was released after assuring the emergency room doctor he would keep his follow-up appointments.

Thereafter, Dr. Patel did another epidural injection on October 29, 1999, on a diagnosis of right sided radiculopathy from L5-S1 disc herniation. The applicant was supposed to follow with Dr. Block. However, due to insurance problems with the applicant's HMO, the applicant could not treat with Dr. Block. Transcript, pages 45 et seq.

Consequently, the applicant visited, Mysore Shivarim, M.D., whom the applicant saw in consultation in early November 1999. (1 ) Dr. Shivarim indicates that he was seeing the applicant for a second opinion regarding a proposed fusion for the lumbosacral spine. After describing the applicant's treatment history, the doctor noted that the applicant has undergone extensive physical therapy, epidural steroid injections on four occasions, and the IDET procedure, but his condition did not improve. The applicant complained of almost constant pain, radiating along the posterior aspect of the right gluteal region, as well as the left gluteal region.

Dr. Shivarim's diagnosis was chronic lower back strain with protrusion of the disc between L5 and S1, with continued lower back pain. The doctor agreed with Dr. Block's opinion to perform lumbosacral fusion and obtain pain relief. The applicant testified that Dr. Shivarim was a neurologist, not a neurosurgeon, and that he "did not do backs." Transcript, pages 28-29

According to the applicant, between November 1999 and April 2000, he diligently tried to find a neurosurgeon who would see him, given his insurance situation.

Dr. Deckard saw the applicant in April 2000. Exhibit C. He noted that the applicant had been a bricklayer for 6 years, and began experiencing back pain and pain in the right gluteal area and right thigh in May 1999. The doctor noted no precipitating events though "he does obviously do lots of heavy lifting." The applicant told Dr. Deckard his pain increased gradually, and that he began noting left leg pain in October 1999.

When the applicant saw Dr. Deckard, in fact, his left leg bothered him more than the back pain. The doctor noted the treatment with the urologist, the applicant's use of a back brace which did not help much, and his four epidural injections which did not help much. Dr. Deckard also noted the MRI scan showing a disc bulge at L5-S1, and the myelogram and CT scan showing a central disc bulge at L5-S1, and a questionable, slight nerve indentation on the right at L5-S1. He noted as well the positive discogram at L5-S1.

Dr. Deckard described the applicant's leg pain on the right, and as slight on the left. Although Dr. Deckard desired to review the case more thoroughly, he did agree with the other physicians that the applicant would most likely require a lumbar discectomy and fusion. He thought it unlikely the applicant would be able to return to bricklaying.

The applicant had a follow-up appointment with Dr. Deckard in July 2000. Dr. Deckard's report to Dr. Sodhi from that visit are at Exhibit B. Dr. Deckard noted complaints of significant pain in the back and left leg, and some discomfort in the right leg. The applicant seemed in discomfort, and walked with a limp. Dr. Deckard also noted the applicant had decreased "jerk reflexes" at the right knee and ankle compared to the left, and a positive straight leg raising test at the left.

Noting that the applicant's work up was almost a year old, Dr. Deckard wanted to repeat the tests, and include an EMG. He reported that if the studies confirmed the previous findings, the applicant most likely would need surgical intervention.

By the time of the hearing in July 2000, the applicant was in the midst of a battery of testing ordered by the doctor. Transcript, page 50. The applicant believes Dr. Deckard is going to recommend surgery, unless the tests and scans showed something unexpected. He also testified he was willing to undergo surgery, or whatever the next step is. Transcript, pages 50-51.

At the time of hearing, the applicant complained of left leg pain down to his ankle, sharp pains in his left foot, patchy numbness on the right side, and low back pain. He takes medication. He testified that, prior to his employment with Megal, while he had occasional backaches, they never lasted.

The record also includes surveillance tapes from the respondent. They show the applicant getting in and out of his car and walking. It appears that at one point the applicant is shown limping, presumably while unaware he was being videotaped. See Exhibit 8, videotape reference April 10, 2000 at 2:31 p.m.

The record also contains expert medical opinion from several sources, both on causation and on appropriate treatment.

Dr. Block, the neurosurgeon who treated the applicant before Dr. Deckard, did not give a definitive statement on causation, or nature and extent of disability, but instead deferred on those issues to physiatrist Hardin. Dr. Block did opine that, as of September 1, 1999, the applicant should undergo physical therapy before surgical options should be considered. To that end, Dr. Block referred the applicant to Dr. Hardin who-as stated above-provided physical therapy. See Exhibit F, and attached letter to Sodhi dated September 1, 1999.

On June 21, 2000, Dr. Robbins (whom the applicant saw on the advice of the respondent), provided an opinion in response to a letter from the applicant's attorney. (2 ) Dr. Robbins states:

"[The applicant] gives a history of employment with Megal Development. The patient injured his back as a result of laying cement block. He had the gradual onset of symptoms at work. The patient's work-up has included an MRI scan documenting discogenic changes at L5-S1. He has also had a discogram pain study which documented pain at the L5-S1 level. The patient's condition is that of discogenic low back pain which has been aggravated and accelerated as a result of his employment at Megal Development performing masonry work. The patient should have been involved in physical therapy and an exercise program and in most instances this should have resulted in improvement of his condition. As a last resort surgical intervention is occasionally required."

Exhibit G.

The applicant also provides letters from physiatrist Hardin on causation and extent of disability. In his first letter to the insurer dated October 25, 1999, Dr. Hardin described the applicant as a 26 year old gentleman who has very large disc extrusion with effacement of the thecal sac at L5-S1 and bilateral S1 radiculopathies born out by his MRI scan. Based on the applicant's age and lack of prior radicular symptoms, Dr. Hardin thought it extremely unlikely his disability was caused by a pre-existing condition.

Dr. Hardin went to describe IME Anderson's opinion that the applicant's condition was not work-related, and his recommendation that the applicant return to work, as nonsense. He added:

"It is my opinion, the opinion of Dr. Spencer Block as well as Dr. Stephen Robbins that [the applicant] has a work related injury and, although I am not a neurosurgeon, it is evident to anybody that has half a brain that his problem is not going to improve without surgical intervention.[ (3 )] In addition, it is equally clear that this is a work related problem.."

Exhibit E.

In a follow-up report dated June 21, 2000, written in response to a letter from the applicant's attorney (4 ), Dr. Hardin wrote:

".I do believe that, after reading his description of his work history, where he's lifting items that way [sic] well over 200 pounds at times and repetitively lifting items lifting items that weigh up to 95 pounds 150 or 225 times per day. This is obviously excessive stress to be putting on the back and repeated activities such as this would have certainly contributed to Mr. Alverio herniating his L5 S1 disc.

"Therefore, it is to a reasonable degree of medical probability that the work that he was engaged in at the time that he developed his low back and bilateral lower extremity pain, was a significant contributory factor to causing his herniated L5 S1 disc."

Exhibit D.

The applicant also submits the reports of Dr. Deckard. Exhibit C. He does not actually give an opinion on causation. He does, however, state that the applicant will most likely require a lumbar fusion surgery.

The respondent offers the report of Gay Anderson, M.D. He issued his first report in August 1999, following his examination of the applicant. According to Dr. Anderson, the imaging testing to that point-including the May 24, 1999, post- discogram CT which the interpreting radiologist had read to show a large central disc protrusion-did not show anything but degenerative changes short of an actual disc herniation. At most, Dr. Anderson saw some bulging without any significant encroachment of the neurologic structures.

Dr. Anderson noted, too, that the applicant was taking more narcotics than he needed, and that his style of illness behavior was more consistent with abnormal illness behavior than with serious organ disease. During examination, Dr. Anderson noted that the applicant at times was nonchalant and in no distress and at other times "rather dramatically indexed symptoms." Dr. Anderson concluded:

"[The applicant] has a chronically degenerated lumbosacral disk, with secondary sunrise type degenerative ridging. This is not an acute injury process and certainly was present long before he hired on at Megal. His symptoms came on insidiously, and progressed and even changed in character during the time where he has been off work. In fact, his development of left leg pain occurred two months after he last worked at all, thus one would be hard pressed to relate his symptoms to work. Rather, the differential is between primarily abnormal illness behavior associated with an affective disturbance, and now complicated by iatrogenic[ (5 )] opoid prescription, which should be stopped, as there was not appropriate indication for this, particularly with this man's AODA background history and spinal stenosis. There is no evidence of any spinal instability, so considerations of fusion are not rational. If, in fact, this man has some degree of spinal stenosis, a simple posterior decompression laminectomy and foraminotomy would be the appropriate treatment, from which this patient should be able to rehab, within eight to ten weeks, back to normal activity, including his work. However, it should be noted it has not been established that this man actually has any radicular entrapment or radiculopathy. He should undergo EMG. If the EMG is normal, he should rapidly be mobilized back to work. If the EMG is abnormal, then a simple decompression laminectomy would be appropriate.

"With regard to liability, this condition is one of degenerative progressive spinal stenosis, which is following its natural history. The significant risk factors are genetic and nutritional, particularly with this man's long history of tobacco abuse and also significant alcohol abuse in the past. I see no evidence that this condition is work related, and, in any event, was present long before he hired on with his current employer. It should be kept in mind that there appears to be a large element of abnormal illness behavior complicating the clinical picture."

The applicant was re-examined by Dr. Anderson in June 2000. His report describes the applicant's duties, mainly in terms of the hours worked (on average less than 30) and the absence of a specific injury, but says nothing about the weight of the blocks, or the number of blocks lifted. Dr. Anderson went on to note the applicant's treatment history, including a new MRI done in October 1999 which was not appreciably different than the May 1999, and which did not show an impressively prominent L5-S1 disc. Dr. Anderson described the applicant as well muscled but moderately obese at 5'8" and 235 pounds.

Dr. Anderson apparently administered tests, including the McGill Pain Questionnaire, and the Oswestry Pain Function which showed extreme somatization in symptom presentation. Dr. Anderson again emphasized the importance in getting an EMG to establish whether he had radiculopathy one way or another, but stated it would not mean he had a work injury even if radiculopathy was shown. Dr. Anderson concluded:

"At most, [the applicant] has a very mild degree of bilateral lateral recess stenosis at L5-S1, on the basis of disc degeneration and congenital development factors in his spinal canal that may be causing subtle radicular irritation without actual neurological deficits. His work exposure as a brick layer between March and May 1999 . to a reasonable degree of medical certainty, is not a significant factor in the development and progression of his symptomology. This becomes quite obvious when one observes that his symptoms have largely shifted from the left to right at a time when he as been rather entirely vocationally inactive, at least according to his statements here and now.

"If he does have a clinically significant stenosis and early radiculitis, which can best be determined with an EMG at this point, definitive decompression might be considered which should render him asymptomatic and at normal functional capacity with [sic] three months. Naturally the underlying causes of such pathology, if they prove out on EMG testing, would also not relate to the work exposure in question for the same reasons already explained immediately above.

"Simply stated, there is no evidence that he sustained any significant injury in the course of his work for Megal Development Corporation and thus there is no evidence of any permanent disability or need for treatment as a result of that work exposure. On the other hand, if this man is developing degenerative lateral recess stenosis at L5-S1, definitive treatment in the form of simple decompression would be the appropriate method of treatment. It should be noted that there is no spinal instability and no indication whatever for spinal fusion in this case. In the meantime, this man's continuing daily use of opoids is quite troublesome, both considering his past history and continuing tendencies for chemical addiction, as well as from the standpoint of his obvious significant symptom magnification. At this time there is no evidence that he has a condition that would warrant ongoing narcotic prescription. This should be discontinued immediately as it is medically contraindicated.

"His continuing authorization off work during all this time is also inappropriate. Since I last saw him he could certainly be working at least at medium level work capacity with maximum exertions in the 50 to 60 pound range, until such time as definitive diagnostic studies are concluded. If his EMG is normal, he should then return to all normal activity and his therapeutic engagement should seize [sic]."

Exhibit 1, June 22, 2000 report of Anderson, pages 4-5.

The first issue is whether the applicant has sustained an injury from an accident or disease arising out the applicant's employment with Megal, while performing services growing out of and incidental to that employment. Wis. Stat. � 102.03 (1)(a), (c)1, and (e). The applicant has established such an injury in this case.

In reaching this conclusion, the commission adopts as credible the conclusions of Drs. Hardin and Robbins. The commission notes initially that the applicant saw Dr. Robbins on referral by the respondent. The commission does acknowledge that Dr. Robbins's July 1999 treatment note expressly refers to the acute onset of pain on May 4, 1999, which is directly in contrast with his later letter referring to the gradual onset of symptoms. However, the fact remains that, upon being provided with the correct history of a gradual onset of symptoms rather than an acute onset, Dr. Robbins nonetheless opined the applicant injured his back laying the cement block. (6 )

The ALJ rejected Dr. Hardin's opinion because a large herniated disc was not documented by objective testing. However, the May 1999 post-discogram CT was interpreted by a radiologist as showing a large downward disc protrusion, which Dr. Patel also described in his operative notes as a large central disc herniation.

The respondent also points out that Dr. Hardin and Dr. Robbins relied on a history of the applicant lifting 95-pound block, instead of block weighing approximately 70 pounds. The commission is constrained to observe that a seventy-pound lift is still heavy work. Moreover, no doctor, not even Dr. Anderson who does not even mention the weight of the blocks in opining work did not cause the injury, has indicated that the 95-pound versus 70-pound discrepancy would lead to a different result on causation. (7 )

Moreover, IME Anderson refused to conclude that the applicant has an L5-S1 disc herniation, while nearly all the other doctors, including numerous radiologists and Dr. Robbins (whom the applicant saw at the behest of the insurer), opine the imaging scans show at least a small disc herniation (and in some cases a large protrusion) at that level. Even Dr. Anderson, however, opines that further testing is necessary in the applicant's case.

In short, the commission also concludes that the opinions given by Dr. Hardin and Dr. Robbins, that the applicant's work exposure to heavy lifting over time caused his disability, best reconciles the facts in this case. The commission notes the applicant, who was not yet 26 on the date of disability, had no demonstrated history of back problems, and developed symptoms only after several weeks of work in which he routinely lifted and carried 70 pound blocks. The applicant's job duties at Megal constituted an appreciable period of work place exposure that was at least a material contributory causative factor in the onset or progression of the applicant's disabling condition. (8 )

The next issue is the extent of disability from the injury. In general, temporary disability is due during an injured worker's "healing period," GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 460 (1994), unless the employer offers the applicant work within any restrictions imposed as a result of the injury. Wis. Adm. Code � DWD 80.47. The "healing period" is the period prior to the time when the injured worker's condition becomes stationary, Knobbe v. Industrial Commission, 208 Wis. 2d 185, 189-90 (1932) and ends when there has occurred all of the improvement that is likely to occur as a result of treatment and convalescence, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960). Further, as the respondent points out, "the commission generally denies disputed periods of temporary disability unless supported by expert medical opinion," Clausing v. Water Services of America, et al., WC claim nos. 1994-031641 and 1998- 000785 (LIRC, September 24, 1999).

In this case, the applicant has established that he was temporarily and totally disabled through the date of the hearing. Dr. Hardin's report of October 25, 1999 provides a release from work until the surgery was done: he describes a return to work as of that date as "nonsense," and reported the applicant's problem would not improve without surgery. The applicant, as of the date of the hearing, had not had the surgery to which Drs. Hardin, Robbins and Deckard referred. Based on the applicant's testimony concerning his continuing symptoms, which the commission finds credible in light of the medical opinion and medical treatment (including the IDET procedure) described above, the commission concludes that the applicant remained totally disabled to the date of the hearing.

The ALJ found that the applicant's temporary disability ended on October 22, 1999. However, the commission could not find medical support for that conclusion. There was no actual release to work in IME Anderson's first report in 1999, at least not until an EMG was done. Even Dr. Anderson's second report did not release the applicant to return to medium duty work until June 22, 2000. Indeed, in his June 22, 2000 report, Dr. Anderson states the applicant became able to return to limited duty work "since I last saw [him]," implying, of course that the applicant could not work when Dr. Anderson saw him in August 1999. Moreover, IME Anderson opines that the applicant could only work subject to a restriction to lighter duty until further testing ruled out a surgical pathology. (9 )

The respondent and the ALJ point to the surveillance tapes to justify cutting off temporary disability on the conclusion the applicant lied to his doctors about his condition. However, after reviewing the videotapes, the commission cannot agree with that conclusion. The tapes, to the commission's view, show no activity inconsistent with statements the applicant gave to his doctors, and in fact appear to show the applicant limping at one point.

The commission therefore finds that the temporary disability previously paid by the respondent was not paid under mistake of fact. In addition, the applicant is entitled to temporary total disability from August 18, 1999 to the date of hearing on July 27, 2000. This is a period of 49 weeks and 1 day, payable at the weekly rate of $538, the maximum for injuries in 1999, for a total of $26,451.67.

The applicant agreed to an attorney fee set under Wis. Stat. � 102.26 at twenty percent of the additional amounts awarded, or $5,290.33 (0.20 times $26,451.67). That amount, plus costs of $372.72 shall be deducted from the applicant's award and paid to the applicant's attorney within 30 days. The amount remaining and due the applicant is $20,788.61.

In his decision, the ALJ ordered that the amount due the applicant be withheld until two support orders were ruled upon to set the amount of the child support lien on compensation due under Wis. Stat. � 102.27. Neither party objected to that aspect of the ALJ's order, so the commission likewise directs that the insurer withhold payment of the compensation due the applicant pending the resolution of support orders described in Exhibits P and Q. A copy of this order shall also be sent to the Milwaukee Child Support Enforcement Agency.

As a result of his work injury, the applicant incurred reasonable expenses for necessary treatment to cure and relieve the effect of his work injury as follows: from St. Luke's Medical Center, $26,329.04 in medical treatment expense, of which $19,285.90 was paid by Masons Local 8 Health Fund, $4,553.69 was adjusted from the bill, and $2,489.45 remains outstanding; from Dr. Scott Hardin, $335 in medical treatment expense, all of which remains outstanding; from Advanced Pain Management, $7,020 in medical treatment expense, all of which remains outstanding; from Milwaukee Neurological Institute, $970 medical treatment expense, of which $619.84 was paid by Masons Local 8 Health Fund, $281.30 was adjusted from the bill, and $68.86 remains outstanding; from ERMed SC, $290 in medical treatment expense, all of which remains outstanding; from Great Lakes Radiologists, $1,619 in medical treatment expense, all of which remains outstanding; from St. Michael's Hospital, $553.75 in medical treatment expense, all of which remains outstanding; from Neurological Surgery, $126 in medical treatment expense, of which $73.84 was paid by Humana and $52.16 was adjusted from the bill; from Walgreens, $1,201.44 in prescription expense, of which $168 was paid by the applicant, and $1,032.56 was paid by Title 19.

The medical records in this case suggest that the applicant will need further treatment for the work injury. In addition, the commission finds that the final extent of temporary and permanent disability cannot be determined on this record. Accordingly, jurisdiction is retained to permit future orders and awards as are appropriate, consistent with this decision.

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 and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant's attorney, David L. Weir, the sum of in Five thousand two hundred ninety dollars and thirty-three cents ($5,290.33) fees and Three hundred seventy-two dollars and seventy-two cents ($372.72) in costs.

2. To St. Luke's Medical Center, Two thousand four hundred eighty- nine dollars and forty-five cents ($2,489.45) in medical treatment expense.

3. To Dr. Scott Hardin, Three hundred thirty-five dollars and no cents ($355.00) in medical treatment expense.

4. To Advanced Pain Management, Seven thousand twenty dollars and no cent ($7,020.00) in medical treatment expense.

5. To Milwaukee Neurological Institute, Sixty-eight dollars and eighty-six cents ($68.86) in medical treatment expense.

6. To ERMed SC, Two hundred ninety dollars and no cents ($290.00) in medical treatment expense.

7. To Great Lakes Radiologists, One thousand six hundred nineteen dollars and no cents ($1,619.00) in medical treatment expense.

8. To St. Michael's Hospital, Five hundred fifty-three dollars and seventy-five cents ($553.75) in medical treatment expense.

9. To Masons Local 8 Health Fund, Nineteen thousand nine hundred five dollars and seventy-four cents ($19,905.74) in reimbursement of medical expense paid.

10. To Title 19, One thousand thirty-two dollars and fifty-six cents ($1,032.56) in reimbursement of medical expense paid.

11. To Humana, Seventy-three dollars and eighty-four cents ($73.84) in reimbursement of medical expense paid.

12. To the applicant, $168.88 in out-of-pocket treatment expense.

While the total of Twenty thousand seven hundred eighty-eight dollars and sixty-one cents ($20,788.61) is due the applicant in temporary disability as of the date of the hearing, that amount shall not be paid until child support is deducted at the direction of the Milwaukee Child Support Enforcement Agency.

Jurisdiction is reserved for such further orders and awards as are warranted, consistent with this decision.

Dated and mailed February 7, 2001
alverwi.wrr : 101 : 1 ND � 3.4 � 3.42 � 5.3

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. The ALJ could not specifically recall the applicant by the time of the credibility conference, but noted that his finding that the applicant exaggerated his complaints was supported by Dr. Anderson's report. The commission, however, notes that the applicant's treating doctors do not offer such an opinion, but instead, based on the numerous objective test results outlined above, have performed the invasive IDET procedure and uniformly posit the possibility of a future fusion surgery. The commission concluded that the applicant did not exaggerate his symptoms or inaccurately present his symptoms to his doctors, and declined to limit his temporary disability compensation on that basis.

cc: ATTORNEY DAVID L WEIR
ZUBRENSKY & WEIR

ATTORNEY JAN M SCHROEDER
PETERSON JOHNSON & MURRAY SC

MILWAUKEE COUNTY CHILD SUPPORT ENFORCEMENT AGENCY

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. The applicant told Dr. Robbins and Dr. Hardin the first time he saw them that he had a traumatic injury on May 4, 1999. Later the story changes to an occupational disease that came on gradually over time. The applicant worked 240 hours for the employer over 32 days. The applicant exaggerated the weight of the blocks he lifted, the number of blocks he lifted per day and the number of blocks he laid. The employee limped when he saw his doctors and when he was on surveillance tape there was only one occasion on Ex. 8, April 10, 2000 at 2:31 PM that could possibly be described as a limp. Both Dr. Robbins and Dr. Hardin's opinion are subject to doubt because they were not given the proper history. The applicant also got worse while he was off duty.

We talked to the administrative law judge prior to rendering a decision in this case and the administrative law judge had serious credibility questions about the applicant because of the applicant's frequent exaggerations. I also question whether this applicant really had an appreciable period of employment in which to establish an occupational disease.

For these reasons, I would dismiss the application.

_______________________________________
/s/ Pamela I. Anderson, Commissioner

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Footnotes:

(1)( Back ) While Dr. Shivarim's report at Exhibit I is undated, it does describe the October 1999 urinary problems as being "a week ago."

(2)( Back ) On June 2, 2000, the applicant's attorney sent a letter to Dr. Robbins, the consulting orthopedic surgeon to whom the applicant had been referred by the respondent. Exhibit 6. The letter describes the applicant's work exposure as including lifting masonry blocks weighing 95 pounds, 150-225 times per day. See Exhibit 5.

(3)( Back ) By this time, the course of physical therapy recommended by Dr. Block had been attempted, but the applicant had to be re-hospitalized for pain.

(4)( Back ) On June 2, 2000, the applicant's attorney sent a letter to Dr. Hardin, describing the applicant's work exposure as including lifting masonry blocks weighing 95 pounds, 150-225 times per day. See Exhibit 5.

(5)( Back ) Iatrogenic means caused by doctors or by medical treatment.

(6)( Back ) The dissent asserts: "The applicant told Dr. Robbins and Dr. Hardin the first time he saw them that he had a traumatic injury on May 4, 1999. Later the story changes to an occupational disease that came on gradually over time." In fact, as recited above, Dr. Hardin initially described the applicant's history as: "[The applicant] began feeling discomfort in his low back in April of 1999. After a particularly heavy day at work, he noticed quite a bit [of] soreness when getting out of his car with pain extending into the right buttock.." Exhibit L, note of Hardin dated September 20, 1999. In addition, the earliest treatment notes, those from Dr. Sodhi in early May 1999, refer to a one-month history of back pain without mention any specific traumatic injury. Dr. Sodhi's May 20, 1999 note refers to "severe low back pain getting progressive worse for the last six weeks," and Dr. Block's May 20, 1999, note refers to a "spontaneous" (meaning without outside or external force) onset of pain. Moreover, Dr. Robbins's initial report, while referring to an acute onset of pain at work on May 4 and opining that the applicant's condition was directly related to the injury on the date, does not mention a "traumatic injury"-such a lifting accident-on that date. Numerous other medical notes, including those of Dr. Deckard, indicate that there was no identifiable precipitating "event." Thus, the majority cannot agree with the dissent's suspicion that the applicant changed his story about a traumatic injury happening at work.

(7)( Back ) The underlying rationale for rejecting medical opinions based on an inaccurate history comes from the Pressed Steel line of cases. In Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959), the supreme court held that opinions based on assumed facts that are not proven must be disregarded. In both of those cases, the employers offered competent medical testimony to the effect that the actual facts would have led to a different conclusion; in other words, that the misapprehension of the facts was material. See, for example, Jack L. Math v. Stoughton Trailers, WC case no. 94005583 (LIRC, June 28, 1996), aff'd sub nom. Stoughton Trailers v. LIRC and Math, case no. 96CV001720 (Wis. Cir. Ct., April 30, 1997).

(8)( Back ) The commission acknowledges that the applicant worked for Megal for only two months. However, the question of whether employment exposure is "long enough" to cause disability by occupational disease is a medical question (see: Charles R. Meyers v. Fort James, WC claim no. 1998002628 (LIRC, December 8, 1999), and Drs. Hardin and Robbins have opined the exposure in this case was sufficient.

(9)( Back ) While the commission credits Dr. Hardin's competing opinion the applicant could not work at all, it nonetheless notes that it does not appear Megal has offered the applicant work within the temporary restrictions set by Dr. Anderson. See: Wis. Admin. Code, � DWD 80.47. Thus, assuming a work-related injury, even IME Anderson's opinion could be read to support a finding of continued temporary disability in that it contemplates further testing and a possible surgery to treat the applicant's symptoms.

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