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


TERRY KILLBERG, Applicant

BOSCH ROBERT CORP, Employer

ASSOCIATED INDEMNITY CORP, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-038452



The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on September 11, 2000. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether the applicant sustained compensable work injuries while employed by the employer on May 26, 1999, and/or on August 4, 1999. If a compensable injury or injuries are found, then also at issue are nature and extent of disability and liability for medical expense.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is August 6, 1947, has been employed as a hydraulic tester and repairman for the employer. On May 26, 1999, he slipped on a wet floor near a wash basin, and threw up his arms and hands to catch himself from falling. He has undergone bilateral knee replacements in the past, and wanted to protect his knees. He grabbed the wash basin with one hand and a dumpster with the other hand, and was able to keep from falling. This episode jarred his upper body but he experienced no pain at that time. He went back to work and mentioned to his supervisor later that day that he had slipped on a wet spot. The supervisor does not recall the applicant saying anything, but acknowledged that it was possible the applicant mentioned he had slipped. However, the supervisor further indicated that the applicant could not have mentioned being injured in any way, because if he had, the supervisor would have filled out an accident report.

The applicant was on vacation on Thursday and Friday, May 27 and 28, 1999. On Saturday, May 29, 1999, he was halfway through mowing his lawn when he began to experience soreness in his neck and tingling in his right arm. This eventually included numbness in the right arm. The applicant was off work until Tuesday, June 1, 1999. On that day, he was seen by the company nurse for a blood pressure check but did not mention any neck or shoulder problem. He saw her again on June 18, 1999, and again did not mention any such problem.

The applicant received treatment from his chiropractor, Dr. Daniel Daniels, on June 4, 7, and 10, 1999. Dr. Daniels had treated the applicant since 1989 for multiple complaints including neck pain, but primarily for low back trouble. The applicant had a lumbar fusion in 1971. Dr. Daniels' clinic note of June 4, 1999, records "insidious onset" of neck pain, with no reference to the work incident. In his WC-16-B completed on July 26, 2000, Dr. Daniels listed dates for two traumatic events, one on May 26, 1999, and the other on August 4, 1999. The applicant tripped over a pallet and fell at work on August 4, 1999, causing pain in his right shoulder. Dr. Daniels ultimately referred the applicant to Dr. Christopher Noonan, because he was not responding to chiropractic treatment as he had in the past. Dr. Daniels suspected a herniated cervical disc.

There is no record from Dr. Noonan, who appears to have referred the applicant to Dr. J. Byrne on June 21, 1999. Dr. Byrne took a history in which the applicant described the slip and near fall on May 26, 1999, and indicated that "shortly thereafter" he had left shoulder pain. The history goes on to note that "about a week after the incident" the applicant developed right arm numbness and pain. Finally, Dr. Byrne's clinic note describes right-sided neck pain. Dr. Byrne referred the applicant to Dr. Paul Durbin. Dr. Durbin saw the applicant on June 23, 1999, and took a history of the work injury which tracks with the applicant's description of the event. He ordered a cervical MRI on July 3, 1999, and it was read as showing disc herniations at C4-5 and C5-6, both of which impinged on the spinal cord. There was also osteophyte formation at C5-6. Dr. Durbin attempted conservative treatment and referred the applicant to Dr. Marshall Cushman.

Dr. Cushman first saw the applicant on July 13, 1999, and took the following history:

"On 5-26-99 this 51 year old man slipped on a wet floor at work. He did not fall but apparently there was some rather violent gyrations of the arms as he reached around to catch himself which he was able to do. He had prior to that been experiencing some aching in the back and shoulders but after the incident his discomfort was considerably worse than usual. He used heat and cold pads and so forth but then about 4 days later the pain became quite severe and he went to a chiropractor. . . . ."

Dr. Cushman diagnosed multiple level cervical spine stenosis and referred the applicant to Dr. Grant Shumaker for surgical consultation.

On July 16, 1999, Dr. Shumaker took the following history:

"The patient is a 51 year old white male with non-insulin dependent diabetes; status post lumbar fusion who presents status post accident at work. This was reported on 5/26/99 when the patient slipped on water by a wash basin and steadied himself with his arms snapping his neck. He has had persistent neck and right arm pain as well as paresthesias of the right arm since. He was managed by chiropractic care without benefit. . . ."

Dr. Shumaker diagnosed neck, right shoulder, and arm pain multifactorial in nature. Conservative treatment did not work and on September 27, 1999, Dr. Shumaker performed anterior cervical discectomies at C4-5 and C5-6, with fusion and insertion of a cervical plate. The applicant had a good result from the surgery and has returned to work.

In a letter dated July 21, 2000, Dr. Daniels opined that the applicant's symptom presentation and lack of response to chiropractic treatment were different after the work incident of May 26, 1999. He gave these as reasons for finding an acceleration beyond normal progression of the applicant's preexisting degenerative disc disease.

Dr. Shumaker completed a WC-16-B dated December 20, 1999, in which he checked the direct causation box and assessed 10 percent permanent partial disability. Dr. Shumaker also lists the second date of injury, August 4, 1999, when the applicant tripped over the pallet at work.

At the insurer's request, Dr. Stephen Robbins examined and evaluated the applicant on August 20, 1999. He diagnosed degenerative disc disease of the cervical spine with severe central spinal stenosis, and internal derangement of the right shoulder with an incomplete tear of the rotator cuff and positive impingement syndrome. Dr. Robbins opined that the work injury caused a temporary aggravation of the preexisting degenerative disc disease, which he believed would plateau without permanency by May 1999. He foresaw the possibility of cervical spine surgery, but opined that such surgery would be due to the preexisting degenerative condition. Finally, Dr. Robbins opined that the work injury did cause a right partial rotator cuff tear from which the applicant had not plateaued. On May 24, 2000, Dr. Robbins reviewed updated medical records and opined that consistent with his previous opinion, the cervical spine surgery was not work related.

In consultation with the commission, the administrative law judge indicated that he found the applicant to have been a credible witness, and the commission has no disagreement with this credibility assessment. It is credible that the work events occurred as described by the applicant on May 26, 1999, and on August 4, 1999. The histories of the May 1999 event, as related by Dr. Cushman and Dr. Shumaker, are not specific with regard to how long after that event the applicant's neck pain appeared. Dr. Shumaker's history could be read to say that there was immediate onset, but it could also be read as showing that Dr. Shumaker was unconcerned with the precise date of onset of such pain.

However, considering the applicant's own testimony that he experienced no neck pain during the work event of May 26, 1999, his testimony that the onset of this pain occurred while he was mowing his lawn three days after the work event, and the fact that he had a preexisting degenerative cervical condition for which he had received chiropractic treatment, the commission finds Dr. Robbins' opinion concerning the applicant's neck condition to be credible. Dr. Robbins' opinion is not entirely clear as to whether he believed only a right shoulder injury occurred on May 26, 1999, or whether he also believed that event contributed to a temporary aggravation of the applicant's preexisting degenerative neck condition. This ambiguity will be resolved in the applicant's favor, resulting in a finding of a temporary aggravation of the applicant's preexisting cervical condition, with a healing plateau from that temporary aggravation having been reached by September 1, 1999. This results in an award for temporary total disability for the three days beginning July 14, 1999, and ending July 16, 1999. At the applicable weekly rate of $489.12, this results in an award of $244.56, less a 20 percent attorney's fee.

It is inferred from the record that Dr. Robbins was never made aware of the applicant's fall at work on August 4, 1999. Dr. Robbins examined the applicant on August 17, 1999, which was almost two weeks after the fall, but never mentioned it in his reports. In their WC-16-B's, Drs. Cushman, Shumaker, and Daniels all listed the fall of August 4, 1999. Dr. Shumaker diagnosed a "minor right rotator injury" in conjunction with an orthopedic evaluation, but no practitioner ever indicated that any time was required off work due to the applicant's shoulder condition. Accordingly, it is found that the applicant sustained an incomplete right rotator cuff tear in the fall at work on August 4, 1999, but that as of the date of hearing, this injury had not resulted in any temporary disability. The order will be left interlocutory with respect to the possibility of future medical treatment and/or disability attributable to this right shoulder injury.

Medical expenses (including mileage and prescription drug expense) incurred up to September 1, 1999, are accepted as reasonably required by the effects of either the work injury of May 26, 1999, or the work injury of August 4, 1999. However, the applicant's medical claim (Applicant's Exhibit E) was understandably not arranged to compute the outstanding amounts due only for treatment up to September 1, 1999, and the commission finds it impossible to discern the exact amounts due under such a restriction. Accordingly, the applicant should immediately compute expenses due for medical treatment up to September 1, 1999, and submit this as a claim to respondents, who should then make immediate payment. The order will be left interlocutory with respect to this issue in case of disputes.

Applicant's attorney also claimed costs in the amount of $319.90, but it was not shown that any such costs were attributable to the award for temporary total disability made herein.

NOW, THEREFORE, this:

INTERLOCUTORY ORDER

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, the employer or its insurance carrier shall pay to the applicant as compensation for temporary total disability the sum of one hundred ninety-five dollars and sixty-five cents ($195.65); and to applicant's attorney, James A. Pitts, fees in the amount forty-eight dollars and ninety-one cents ($48.91).

Jurisdiction is reserved only with respect to the applicant's claimed medical expenses up to September 1, 1999, and with respect to the effects of the applicant's right shoulder injury, as noted in the commission's findings.

Dated and mailed February 28, 2001
killbte.wrr : 185 : 8  ND § 3.37

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

cc:
Attorney James A. Pitts
Attorney Joseph A. Danas, Jr.


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