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

DARLENE A SCHEUERMAN, Applicant

LAND O LAKES INC, Employer

LAND O LAKES INC, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995-009716

In June 1996, the applicant filed an application for hearing claiming disability from work caused by a lot of heavy lifting, pushing, and pulling, with a January 1995 date of injury. Prior to hearing the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $392.80.

Hearings were held before two administrative law judges (ALJs) for the Worker's Compensation Division of the Department of Workforce Development on September 4, 1997, and February 17 and May 18, 1999, with a closure of the record on May 2, 2000. At issue before the ALJs was whether the applicant sustained a back injury arising out of her employment while performing services incidental to or growing from that employment; the nature and extent of disability from such an injury if established; and the respondent's liability for medical expense (including the issue of whether the applicant exceeded the permitted choices under Wis. Stat. § 102.42(2).)

The ALJs issued their decision in this matter on July 31, 2000. The ALJs found the applicant had suffered a compensable injury. They awarded disability compensation and all claimed medical expenses. The respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Facts.

a. Work duties and medical treatment.

The applicant was born in 1967, and was 24 when she started working for the employer in March 1991. She is five feet six, and weighs between 125 and 135 pounds. She testified, and a pre-employment health questionnaire she completed before starting work for the employer indicates, that she had no back problems before working for the employer. Exhibit G.

The applicant first job for the employer was as a general laborer, working "on the track." This job involved moving barrels on a stainless steel conveyor track. The barrels were 55-gallon drums, which empty weighed about 60 pounds. The applicant would lift 10 or 15 of these empty barrels, individually of course, to put them on a track that was a foot and a half off the floor. Getting the barrels on the track required a maximum three-foot vertical lift.

The barrels would then be filled with cheese from a vat. According to the applicant, a filled barrel weighed 650 pounds. The applicant would, while standing on a grated walkway alongside the conveyor track, pull a filled barrel along the track about 10 or 15 yards to a chamber where the barrel sat for some time. Then the applicant would go into chamber to pull out the barrel, which she says involved crawling and working in a bent-over fashion.

The applicant testified she would handle 20 barrels in an hour on this job. Transcript, page 18. Her supervisor, Vern Kind, estimated she would have to lift about 10 barrels an hour. Transcript, page 239. He agreed though, that the empty barrels weighed 60 pounds, and the applicant had to lift them a foot and a half to the track. Transcript, page 239. Indeed, it was he who testified getting the barrels on the track required a maximum 3-foot vertical lift. Transcript, page 222. His testimony indicates that the barrels full weighed only 500 pounds, but he acknowledged "they were difficult to work with" because the filled barrels could get hung up on corners of the conveyor track. Transcript, page 242. Getting the dead weight moving, even on the conveyor track, required a worker to lean into them. Transcript, pages 242-45.

The applicant's duties while on the "track" job also included stacking filled barrels of cheese on pallets. Each pallet held four barrels. The pallets were then stacked one on top of each other.

Pallets of barrels were stacked two or three levels high. One method of stacking would be to load two pallets with barrels while on the floor, then stack one loaded pallet on top of the other with a forklift. However, the applicant would load the first pallet with barrels on the floor, then lift an empty pallet on top of the first row by hand, then load the barrels on the second pallet individually with a forklift, then put another pallet by hand on top of the second row, then load more barrels. As a result, the applicant testified, she would lift the wooden pallets, weighing 50 to 60 pounds, first to waist height for the second row of barrels, then over her head for the third row of barrels.

Mr. Kind's testimony indicated it was a worker's choice about how to stack the pallets. Transcript, page 223. However, he testified the pallets were stacked only two levels high, there was no over-the-head lift to get a pallet for the third row. Transcript, pages 222-23. He acknowledged the wooden pallets weighed about 50 pounds. Transcript, page 238.

The applicant testified her work "on the track" bothered her back, causing her pain, especially when she moved the barrels out of the chamber. Transcript, page 110-112. She described the pain as between her shoulder blades and in her low back. Transcript, page 39. The pain was not unusual enough to cause her to report anything, however. Transcript, page 40.

The applicant's job changed in January 1992. She testified she to split her day between the "track" work described above, and work on the "finishing vats." Transcript, page 113. However, she also testified she only worked once where her duties were split between the two jobs. Transcript, page 118. About this time, after about a year of employment, the applicant also switched from five eight-hour days per week to three and half 12-hour days. Transcript, pages 114, 117-18.

In the finishing vat job, in addition to pushing buttons to run the automated aspects of the cheese making process, the applicant would also do relatively heavy lifting. She testified that, once an hour, she had to pour 110 pounds of salt into a salter vat. To do this, the applicant would lift and pour an 80-pound bag of salt approximately chest high to pour into a funnel. Transcript, page 115. She then took another 80-pound bag, poured 30 pounds of that into a bucket, and poured that in the funnel as well. (1) Transcript, page 123.

Mr. Kind testified that the applicant could have poured the 80-pound bag into the bucket, effectively breaking lift to the funnel into smaller parts to pour into the funnel. However, this of course required lifting an 80-pound bag to pour it into the bucket. Mr. Kind testified that one could probably lift the 80-pound bag to waist height to pour it in the bucket (transcript, page 250), which was lower than the funnel which was chest high. He admitted that it was up to a worker as to how to pour the salt. Transcript, page 240.

After the applicant did the finishing vat job for a month or two, the employer had the legs cut off the funnel. The applicant and Mr. Kind agreed this was done to make the applicant's job easier; she would not have to lift the salt so high. Mr. Kind also said the legs were cut off because the applicant had complained that it was hard for her do the lifting aspects of her job. Transcript, page 244. She did not however, complain to him that she hurt her back doing the work. Transcript, page 248.

While doing the vat job, the applicant also had to periodically climb a ladder to connect and reconnect piping. Tightening and loosening the piping was particularly difficult.

The applicant testified she experienced back pain, specifically low back pain, while doing the finishing vat work.

The applicant worked on the finishing vats for several months, until October 1992. At that time, she became a lab worker. She held this job until the end of her employment in June 1995. In this job, she ran the lab room and the starter room. The lab room work, milk testing, was physically easy.

The work in the starter room required pouring six 50-pound bags of starter into a funnel leading to a pipe or tube conveyed the starter into a vat. This job is shown in the videotape exhibit 14. (2) The applicant would first lift six 50-pound bags of starter from a stack (which varied in height from head height to ground level) and put them on a cart. She would wheel the cart with 6 fifty-pound bags into the starter room. As shown on the videotape, the bags were then carried to an upright position on the floor where the outer paper bag is removed. The inner, plastic bag containing the starter is then lifted and poured into the funnel in one motion. The worker is then free to do other work while the starter material passes through the funnel. When enough material has passed through, the next bag is poured in. The applicant performed the process twice a day. (3)

The applicant also testified she had to move 55-gallon drums of ammonia off a pallet, and then haul it maybe three yards. She said she did this once a day. Transcript, page 128-29. According to Mr. Kind, this job was actually done only about once a week, and then with two workers using a forklift. Transcript, page 225-26.

Finally, the applicant testified that there was work with piping in the lab worker job, too. The pipes were about a foot off the ground, and she had to periodically uncouple and recouple them, which was difficult. Transcript, page 130.

According to the applicant, these duties, lifting the fifty-pound bags of starter, moving the ammonia drums, and recoupling the piping, also caused her back pain.

While working in the starting room, the applicant began experiencing back pain on a daily basis, and it became worse in 1994. In March 1994, the applicant began treating with a physical medicine specialist, Danna Varia, M.D., at the Marshfield Clinic. She complained to Dr. Varia about low back pain without a traumatic injury. The doctor diagnosed mechanical low back pain. He prescribed Darvocet, and exercises and a prevention program were discussed.

The applicant's pain became more severe in 1995. Transcript, page 160. She says she complained to coworkers that her back hurt, and was very sore by the end of the day. She recalled talking to a supervisor, Tom Kingsbury, at some point before January 1995, wondering if she could have somehow hurt her back at work. Kingsbury did not want to talk about it. Transcript, page 135-36.

The applicant testified, particularly, about experiencing stabbing pain in the mid and lower back with dumping the fifty-pound bags of starter in January 1995. Transcript, page 41. The pain went from her neck all the way down to her leg. Transcript, page 44. She would lie on the floor until the pain passed. Transcript, page 44.

The applicant then saw a chiropractor, Joel Gartner, D.C., of Allied Health of Wisconsin on January 24, 1995. In a questionnaire she completed for his office that day, she reported back pain, beginning three or four years earlier. A diagram shows left mid and low back pain, and left thigh pain. In narrative form she described pain on her left side from her neck to her left foot. Asked to list accidents or illness, she listed heavy lifting at cheese factory.

Chiropractor Gartner's treatment note for January 24, 1995 mentions a chronic four year history of pain, which had been achiness, but then had recently become severe with burning achiness in the neck and upper back, with in the lower back and into the left foot. He noted her job involved lifting 50-pound bags. He "advised on change she could make in her work site that would decrease the stress on her body."

About this time, the applicant reported her problem to Mr. Kind. Transcript, page 45. Mr. Kind testified several times that the applicant never complained to him about work hurting her back before January 1995. According to the applicant, when she finally did complain to Mr. Kind in January 1995, she said she had a lot of pain doing her work, and he had her fill out an accident report. Transcript, page 45. The accident report is at exhibit H, and it is dated January 27, 1995.

In describing the nature of the injury on the accident report, the applicant listed "muscle spasms in my back mostly on my left side." In the description of the injury, she wrote "lifting always with one side/it seemed easier." She also reported that she had told Tom Kingsbury about her back hurting, perhaps two years earlier, but he thought it was not work related. To describe the cause she wrote:

"From lifting off to one side (doctor said) (lifting 50lbs bags chest high) into funnel since I've been in starter room."

Exhibit H.

The applicant continued to treat with Dr. Gartner. He set work restrictions against lifting.

The applicant also began treating at the Wausau Medical Center on March 13, 1995. She testified that she asked supervisor Kind where he would go, and he mentioned that clinic. Transcript, page 54. There she saw a neurologist, Timothy Schoonover, M.D. He took her off work to do tests.

Specifically, Dr. Schoonover ordered cervical and lumbar MRIs. While the cervical MRI was normal, the lumbar MRI done on March 23, 1995 showed a desiccated disc at L4-5, and mild bulges at L4-5 and L5-S1 with no evidence of neural impingement. An EMG and nerve conduction tests showed some left neuropathy at the left ulnar and medial nerves affecting the wrist, and of the left peroneal nerve affecting the left lower extremity. An MRI of the thoracic spine was not done at this time. Dr. Schoonover released her to return to work, but with the lifting restrictions imposed by chiropractor Gartner still in place. Transcript, page 56.

The applicant continued at the Wausau Medical Center with Andrew Saterbak, M.D. His note from April 5, 1995 notes that the applicant desired a second opinion regarding her back, and was dissatisfied with her treatment with Dr. Shoonover. She described the heavy lifting and pushing work activities she performed for the employer.

Dr. Saterbak diagnosed chronic lumbosacral strain. He discussed the role her work played in her condition, stating that it had not yet caused a permanent injury, but if she could not do her work without pain, she should ask for light work "before some injury is incurred." Dr. Saterbak thought her work-up to date was sufficient, and he recommended no further testing, though he suggested she should see her gynecologist, as "visceral problems" could also be the source of her pain.

The applicant also returned to the Marshfield Clinic where she saw Loren A. Rolak, M.D., a neurologist. Dr. Rolak's note from April 13, 1995, states he was seeing the applicant on referral for evaluation of a workers compensation claim. (4) Specifically, she complained to the doctor of a variety of symptoms beginning after she did quite strenuous physical activity for the employer. Dr. Rolak could not find any significant neurological abnormality, and did not believe she had a neurological problem. His diagnostic assessment was multiple somatic complaints.

Meanwhile, the applicant continued to treat with chiropractor Gartner. On April 15, 1995, the applicant told the Dr. Gartner she had seen a medical doctor who advised her to stop the chiropractic treatment. As of April 15, 1995, Dr. Gartner's notes do not contain a specific opinion on causation. The applicant testified, though, that Dr. Gartner told her she had a work-related injury. Transcript, page 50.

Dissatisfied with the Wausau Medical Center, the applicant self-referred to the Mayo Clinic in Rochester, Minnesota. Transcript, page 58. She apparently talked to the workers compensation insurer in advance of this treatment, and was informed they would not pay for the treatment at the Mayo Clinic. Transcript, pages 59-60. Nonetheless, the applicant was evaluated at the Mayo Clinic from May 4 to May 30, 1995.

On May 11, 1995, while the applicant was in the midst of evaluation at the Mayo Clinic, she saw the respondent's independent medical examiner, Richard Kokemoor, M.D. As a result of Dr. Kokemoor's examination, the applicant's spine hurt, so she also saw her family doctor, Ana Capati, M.D., that same day.

Dr. Capati's May 11, 1995 note reports complaints of left shoulder pain following the examination by Dr. Kokemoor. Dr. Capati also noted his prior treatment of the applicant, mainly for gynecological matters. He ordered an x-ray, gave the applicant a muscle relaxant, and suggested she find a different kind of work that did not require as much lifting.

Evaluation at the Mayo Clinic continued. The Mayo Clinic diagnosis was a chronic myofascial pain involving the lumbar and thoracic spine, mechanical low back pain, and pelvic floor tension myalgia. See Terrell note for June 12, 1995. Christine Terrell, M.D., who was apparently the primary doctor treating the applicant at the Mayo Clinic noted wedging of the T6 vertebral body on x-ray, and minimal findings on a lumbar MRI. Otherwise, the test results were normal. Terrell note of June 12, 1995 and Beaumier note of June 22, 1995. At the conclusion of her consultation, Dr. Terrell recommended physical therapy; indeed an extensive program was developed for the applicant to take to her local physical therapist. See "To Whom it May Concern note" of June 12, 1995, from Terrell. Dr. Terrell, noting that the applicant had a physically heavy job, recommended the applicant not work while she underwent therapy. The applicant stopped working in June 1995, and has not worked since.

On June 19, 1995, Dr. Capati suggested a thoracic MRI, noting the applicant's complaints of mid-thoracic pain dating back to his initial treatment of her back problems in May. The MRI was done locally, in Wisconsin, on June 22, 1995. The interpreting radiologist, Demetrio Maguigad, M.D., had the impression of a prolapsed disc with displacement of the subarachnoid space at T7. Dr. Maguigad recommended a neurological consultation for a more precise evaluation.

Dr. Capati reported the results of the MRI to the applicant June 28, 1995; his note from that date mentions a prolapsing disc with displacement at T7, and he recommended she see a neurologist at the Mayo Clinic about the condition. Handwritten notes from the Mayo Clinic dated July 19, 1995, mention that the applicant asked for neurological consultation, but that the Clinic wanted clarification from her doctor to save the applicant an unneeded trip. It does not appear the applicant treated again at the Mayo Clinic in Rochester, Minnesota.

Instead, the applicant began treating at the Midelfort Clinic (5) on referral by Dr. Capati. At the Midelfort Clinic, the applicant initially saw E.J. Lewit, M.D., on August 15, 1995. He noted the referral from Dr. Capati and wondered about a pyschogenic etiology. Noting the recent MRI showing a bulging thoracic disc, however, he wondered also whether the disc could be symptomatic, so he referred her to A. Murrle, M.D., a neurosurgeon at the Midelfort Clinic.

Dr. Murrle saw the applicant on August 24, 1995. He first described a recent MRI showing a bulge in a thoracic disc, but later on states "radiographic may show evidence of a herniated thoracic disc." In any event Dr. Murrle he did not think the thoracic disc was causing the applicant's symptoms. The applicant was referred to Midelfort Clinic's rheumatology department.

The applicant then saw Dr. Capati again on September 11, 1995 complaining of low back pain radiating into her lower leg, and seeking guidance. He noted her treatment at the Marshfield Clinic, Wausau Medical Center, Midelfort Clinic, and her chiropractor. He thought the best idea was for her stay with one institution and get a good work-up, rather having treatment fragmented among several providers. Noting that the upcoming rheumatology appointment, he told her she should continue treatment at the Midelfort Clinic if that was where she felt most comfortable.

After the rheumatology appointment, the applicant saw Dr. Zondag in the musculoskeletal department of the Midelfort Clinic on December 1, 1995. Dr. Zondag noted that the applicant was well beyond the six months one normally sees with work injuries. He wondered whether the applicant should have more testing or move into a "chronic pain mode." His December 1, 1995, treatment note states also that he needed to get the prior treatment notes to determine whether this was or was not work-related.

Dr. Zondag eventually ordered another MRI of her thoracic spine. The December 20, 1995, MRI report signed by Alon Coppens, M.D., discloses a small left paracentral disc protrusion at T7-8 with slight effacement of the cord.

Dr. Zondag then referred the applicant to spine surgeon J.W. Manz, M.D. Dr. Manz ordered a post-myelographic CT scan. The January 18, 1996, post- myelogram CT report signed by David Winter, M.D., shows a left-sided herniation at T7-8 with indentation of the thecal sac causing minimal flattening of the thoracic cord.

Dr. Manz reported that the MRI and CT scans showed a protrusion at T7-T8, which abutted (according to the MRI) and indented (according to the CT) the thoracic spinal cord. See Exhibit 9, Manz note of January 23, 1996. Noting persistent and at times incapacitating mid thoracic and intercostal pain, Dr. Manz suggested the applicant's symptoms might in fact be due to internal disruption and discal protrusion at T7-T8.

Dr. Manz wanted a discogram; this was done at the Twin Cities in February 1996. The discogram disclosed significant multi-level positivity, particularly at T7-8, indicative of multilevel Scheuermann's type (6) changes in the thoracic spine. Dr. Manz began to consider reconstructive surgery. See Exhibit 9, Manz note of February 13, 1996.

In his February 15, 1996, note, Dr. Zondag discussed the MRI findings. He concluded that "this is a significantly aggravated disease caused by her lifting and bending at work that is part of Scheuermann's type of disease process."

Consulting neurosurgeon Narotzky (another Midelfort practitioner) had the impression of multiple complaints of pain, most problematic being the thoracic pain related to the thoracic degenerative disc disease. However, he did not think that condition explained her arm pain and headaches. He did agree that consideration of a thoracic discectomy and fusion was reasonable.

Accordingly, the applicant was sent to Luther Hospital for a pain status evaluation and an evaluation by W.J. Weggel, M.D., a behavioral medicine specialist. This (and review of the Mayo records) evidently led the Midelfort doctors to wonder whether, in addition to a thoracic spine problem, the applicant had a somatization disorder. Exhibit 9, Zondag note of May 24, 1996.

The Midelfort doctors thought the question of somatization could be resolved by referral for an independent opinion from the Minnesota Spine Center. There the applicant was seen by a Dr. Perra, on or about July 11, 1996. His diagnosis was thoracic discogenic disease. He thought surgery was an option, and recommended an extensive fusion from T2 to L12 or L1.

Dr. Weggel then re-examined the applicant. He concluded the applicant's complaints of pain were real, and cleared her for surgery. He explained that the thoracic surgical procedure would not be a be-all-and-end-all, and noted the applicant understood.

The first part of the surgery was done on November 7, 1996, by Drs. Manz and Narotzky at Luther Hospital. The surgical notes describe it as a right sixth rib thoracotomy, a T7-8 discectomy and decompression, T5-6, T6-7, T7-8 and T8-9 discectomies, and a T5-6, T6-7, T7-8 and T8-T9 fusion. The fusion aspect of the procedure was completed with a second surgery resulting at fusion procedures at additional levels on November 13, 1996. In all, she underwent fusions with instrumentation at 9 levels from T2-3 to T11-12.

At the hearing, the applicant testified her post-surgery condition is better than it was, but with a little bit of pain in between the shoulder blades, in the center of her back, and a little into her left leg. Transcript, pages 72-74. Indeed, she testified that a variety of other problems, headache, bladder control, constipation, sore throat, that no doctor has actually related to her back problem also improved. Transcript, pages 186-87. She acknowledged that this could be coincidental.

The applicant's testimony about her recovery is borne out to a large degree by the post-surgery treatment notes from the Midelfort Clinic in exhibit S. While surgeon Manz noted the applicant was "doing reasonably well" by May 1998, Dr. Zondag (who saw her more frequently) noted considerable improvement when compared to her preoperative condition.

The worker's compensation insurer paid the bills submitted by Allied Health of Wisconsin (where chiropractor Gartner practices) and by the Wausau Medical Center, or at least portions of those bills. Exhibit 10. Indeed, the applicant conceded in her brief that these entities did submit bills to the respondent for payment. However, the applicant testified that if she had her choice, she would have the Wausau Medical Center and Midelfort Clinic bills paid. She testified, too, that as of June 1995 (when the applicant was treating with Dr. Schoonover), no one had really diagnosed her condition.

b. Expert medical opinion.

Both parties have also submitted expert medical opinion regarding the cause of the applicant's condition, and the nature and extent of her disability.

The applicant's medical expert is Dr. Zondag, who treated her at the Midelfort Clinic. His practitioner's report on form WKC-16B is at exhibit F. On the form, he marked both the "direct injury" and "Lewellyn  3" (7)  (precipitation, aggravation and acceleration of a pre- existing degenerative condition beyond normal progression) causation boxes.

Attached to Dr. Zondag's form report is his initial December 1, 1995, treatment note. In that note, Dr. Zondag described the applicant's job duties, as they were developed at the hearing, with reasonable accuracy. Although Dr. Zondag's initial note was uncertain about causation pending further evaluation, his final attached note from February 16, 1996 stated "this is a significantly aggravated disease caused by her lifting and bending at work that is part of a Scheuermann's type process."

In a follow-up report in July 1997 after the applicant's November 1996 surgery (exhibit C), Dr. Zondag allowed an August 4, 1997, return to work with restrictions including lifting limited to ten pounds occasionally. He also temporarily restricted her to occasional bending, twisting, turning, reaching below knee level, standing, walking, and sitting. He thought she would reach a healing plateau by September 29, 1997, with permanent partial disability at twenty-five percent compared to permanent total disability.

In a follow-up note on November 27, 1997, Dr. Zondag opined the applicant had indeed reached a healing plateau. Exhibit P. He stated her permanent restrictions to be lifting up to 30-35 pounds ten percent of the time (seldom), 20-25 pounds occasionally, 15 pounds more frequently, and 10 pounds constantly.

In a final report dated March 22, 1999 (exhibit BB), Dr. Zondag again described the applicant's work duties. After describing the "track job" that involved lifting and moving barrels, he described the starter room job that sometimes required lifting 68-pound salt packs. He went on to report that, in January 1995, the applicant suffered the onset of pain "while lifting one of these carts." (8)

Dr. Zondag went on to note the finding of the herniated thoracic disc and the Scheuermann's disease. He opined the applicant's major difficulty appeared to be centered from the injury (disc herniation) at T7-8, but that she also had multi-level pain and the disc herniation was due to the injury and aggravation to the Scheuermann's disease from her job.

Dr. Zondag also increased her permanent partial disability rating to 50 percent, based on four levels of discectomy and six levels of fusion. Finally, the doctor reiterated his November 1997 work restrictions.

The respondent relies on Richard Kokemoor, M.D., and Allan Levin, M.D.

Dr. Kokemoor's original report of May 31, 1995, is at exhibit 1. Describing the applicant's symptoms as bizarre and not readily explainable, and in the absence of a traumatic injury or radiographic findings, Dr. Kokemoor concluded there was no work injury. It does not appear that Dr. Kokemoor had the applicant's medical records, including the various x-rays and MRIs, when he wrote this report.

Dr. Kokemoor's second report was written in April 1996, also without the benefit of the applicant's treatment notes. See Exhibit 2, page 6. By that time, of course, the applicant had undergone an MRI, a post-myelographic CT scan and a discogram all documenting the T7-8 disc herniation. Dr. Kokemoor frankly began the "diagnostic impression" part of his report by stating:

"Without access to the medical records, I cannot categorically state that there is not objective evidence of any physical disorder, but I suspect that most of symptomology is psychogenic."

Exhibit 2, page 7. Nonetheless, he concluded that in all probability there seems to be very little or no likelihood that her complaints have anything to do with work exposure, noting that the heavy work lifting the barrels on to the track had ended several years before the increase in pain in January 1995. He also thought that if work were a factor, she would have improved when she stopped working, but she did not. He recommended against surgery, opining it would have no value, or make her worse.

The respondent then retained Dr. Levin, whose report is dated July 31, 1997. His report, too, indicates that he did not have all the medical records. By the time of Dr. Levin's report, of course, the applicant had undergone her surgery. Dr. Levin did not think the June 1995 MRI showed a herniated disc. At this point, however, he did seem to agree that the January 1996 CT scan showed a herniated disc which indented the thecal sac and minimally displaced the thoracic cord, or at least that there was a report to that effect. Exhibit 3, page 4.

Nonetheless, Dr. Levin agreed with the Mayo Clinic diagnosis of myofascial pain syndrome, mechanical low back pain, pelvic floor tension myalgias, and adjustment disorder with depressive mood. He did opine that the thoracic discectomy was a viable treatment option given the imaging study. Asked if he thought her condition was work-related he simply said "no," and does not offer any explanation, other than to state that he does not believe that either her thoracic disc or obvious degenerative disc disease was work-related.

Dr. Levin weighs in one last time, on January 8, 1999. On this occasion, he actually reviewed the December 1995 MRI and January 1996 CT scan. He thought the December MRI showed a bulge at T7-8, but not any canal or cord compromise. The January 1996 CT scan, he opined also showed T7-8 disc bulge
without any cord compromise. Based on his reading of these scans, he withdrew his opinion that the thoracic discectomy was necessary.

2. Discussion.

a. Causation, and extent of disability.

The first issue, analytically, is causation, or whether the applicant sustained an injury arising out of employment. On this question, the commission credits Dr. Zondag's opinion.

The respondent argues that the applicant's treating doctors thought the applicant's work was heavier than it was, or at least that she did more lifting than she did. However, after reading Dr. Zondag's December 1, 1995 note, the commission concludes he had a reasonably accurate understanding of her duties. Contrary to the respondent's assertion that the Midelfort Clinic doctors had the inaccurate impression the applicant lifted 80-pound bags all day long, Dr. Zondag described the finishing vat job as "mostly pushing buttons," and observed she had to lift 50-pound bags in the starter room saying nothing about frequency.

The respondent also contends that finding the applicant sustained a work-related injury relies on post hoc, ergo propter hoc (9) reasoning. The respondent asserts it is fallacious to conclude that, because the applicant's back hurt after working, the work caused her back pain.

However, the commission, like the presiding ALJs, does not base its opinion on its own view of cause and effect. Instead, the commission relies on Dr. Zondag's expert medical opinion that the applicant's thoracic disc herniation and degenerative thoracic disc disease were work-related. The commission does not, in the absence of proof in the form of expert medical opinion, rely on its own intuition to conclude that the injury had to be caused by work because it occurred after work. While that type of lay conclusion may be subject to criticism as being post hoc, ergo propter hoc, the commission is not certain that the opinion of a medical expert may be validly criticized -- by a layperson anyway -- on that basis. (10)

The commission is aware, however, that several treating doctors along the way seemed to doubt the applicant's complaints were indicative of a permanent work injury. None of these doctors, however, have provided expert opinion on causation in a certified report. Wis. Stat. § 102.17(1)(d). More importantly, these doctors (Rolak at the Marshfield Clinic, Schoonover at the Wausau Medical Center, or Terrell at the Mayo Clinic) treated the applicant before the thoracic MRI was done. Even Dr. Murrle, who thought the June 1995 thoracic MRI showed only a bulge which would not account for the symptoms, was unaware of the later CT scan and MRI showing (at least to the interpreting radiologists), a herniated thoracic disc indenting or abutting the spinal cord.

Dr. Kokemoor's reports are subject to the same criticism. He never examined any medical reports, including the December 1995 MRI and January 1996 CT scans which had been performed by the time of his second report.

Dr. Levin concludes that there was no herniated thoracic disc, and so that there is no objective basis for the complaints or the November 1996 multilevel fusion. He does this based on his personal reading of the December 1995 MRI and January 1996 CT scan, which he sees as showing only a bulge. However, numerous other medical practitioners, including the interpreting radiologists, saw a herniation at L7-8 with at least minimal neural impingement. The disc herniation was corroborated by the discogram done at the Minnesota Spine Center. Dr. Levin also does not discusses diagnosis of Scheuermann's disease or Scheuermann's type changes, either to say the applicant did not have the condition or to say the applicant's work exposure was not a material contributory causative factor in the progression of the condition.

In short, the commission finds most credible Dr. Zondag's opinion that the applicant's lifting and bending at work significantly aggravated her Scheuermann's condition, while an injury in January 1995 actually caused the thoracic disc herniation in a region of her spine already affected by the work exposure and the Sheuermann's condition. Although the doctor did not mark the "occupational disease" box on the practitioner's report form, the commission is persuaded that his narrative opinions, read together, establish causation under that legal theory. See: Shelby Mutual Ins. Co. v. DILHR, 109 Wis. 2d 655, 661-63 (Ct. App., 1982).

The commission therefore concludes that the applicant suffers from a condition caused by an appreciable period of work place exposure, including the repeated relatively heavy lifting on a daily basis, that was at least a material contributory causative factor in the onset or progression of her condition. The applicant has established disability from an injury arising out of her employment with the employer, sustained while performing service growing out of and incidental to that employment.

The extent of disability, assuming a work-related injury is found, is not contested on appeal. In short, in addition to certain periods of temporary disability, the applicant has sustained permanent partial disability on a functional basis at 65 percent, as calculated under Wis. Adm. Code DWD 80.32(11) for discectomies at four levels and fusions at nine levels. The findings regarding the amount of the compensation awarded are set out below.

b. Medical treatment expense.

The last issue is whether the respondent is liable for the claimed medical expense. Generally, an employer is liable for medical expenses that are reasonably required to cure or relieve the effect of the work injury under Wis. Stat. § 102.42 (1). However, this liability is limited by Wis. Stat. § 102.42 (2)(a), which provides that an injured worker is permitted two choices of practitioner, after which the employer or its insurer must approve any choice. Moreover, an injured worker may not choose a practitioner not licensed in Wisconsin without the approval of the employer or its insurer. (11)  Treatment with a practitioner's colleague or within the practitioner's clinic, or on referral, is all considered part of the same choice.

Recently, the court of appeals has held that an injured worker "chooses" by seeking treatment from a practitioner, and then submitting his bill for payment. Hermax Carpet Marts v. LIRC, 220 Wis., 2d 611 (Ct. App., 1998). As the applicant points out, though, the choice restrictions under Wis. Stat. § 102.42 (2) do not apply to "treatment expense incurred by the employe for necessary treatment to cure and relieve the employe from the effects of occupational disease prior to the time that the employe knew or should have known the nature of his or her disability and its relation to employment." Wis. Stat. § 102.42 (1).

As stated above, the workers compensation insurer paid the bills submitted by Allied Health of Wisconsin (where chiropractor Gartner practices) and the Wausau Medical Center, or at least portions of those bills. The respondent therefore argues that Dr. Gartner (and Allied Health of Wisconsin) was the applicant's first choice of practitioner. Dr. Gartner did not refer the applicant to Wausau Medical Center, so the Wausau Medical Center was the second choice. Since the applicant likewise had no referral to the next place she treated for her back complaints, the Mayo Clinic, that treatment was beyond her second choice. Treatment with Dr. Capati, too, was beyond the second choice. Necessarily, the applicant's treatment on referral by Dr. Capati to the Midelfort Clinic, where the applicant has received most of her treatment, was beyond the second choice. (12) In short, the respondent contends no bills for treatment after the Wausau Medical Center should be paid.

The applicant's position is that none of her treatment is beyond the second choice, as the applicant neither knew nor should have known that she was suffering from the effects of occupational disease until she started treating at the Midelfort Clinic. The applicant further argues that, even if she should have known she was suffering from an occupational disease when she treated with chiropractor Gartner, under the rules set out in the Hermax case, treatment at Wausau Medical Center and Midelfort Clinic is still compensable.

The first question is when the applicant "knew or should have known the nature of her disability and its relation to employment." The commission previously dealt with this issue in Ruby Rodgers v. WA Krueger Co, WC claim no. 94036726 (LIRC, December 4, 1996). There the commission observed that the "knew or should have known" exception in Wis. Stat. § 102.42(1) is analogous to limitations statutes that begin to run when a plaintiff "knew or should have known" that he was injured by the defendant. The commission also observed that one statute applying this kind of "discovery rule" is Wis. Stat. § 893.55 dealing with medical malpractice.

The commission went to state:

"In a case decided under [Wis. Stat. § 893.55], the supreme court construed `knew or should have known' to require more than a mere `subjective belief by a layman as to ... cause,' but to require a `reasonable likelihood for an objective belief.' Clark v. Erdman, 161 Wis. 2d 428, 446-47 (1991). Thus, the statute of limitations does not begin to run the instant the injured layperson suspects malpractice. The court went on to explain that some objective basis for a plaintiff to believe her injury was the result of malpractice, not simply her subjective lay belief, was necessary to trigger the statute of limitations.

"On the other hand, the court specifically stated that discovery of an injury is not `put on hold' until an expert officially confirms the injury and the fact that the actor was negligent.' Clark, supra, at 161 Wis. 2d 446-47 (1991). The court went on to hold [at Clark, 161 Wis. 2d 448]:

`While an unsubstantiated lay belief is not sufficient for discovery to occur, the existence of a reasonable likelihood for an objective belief as to an injury and its cause does not require any sort of formalistic approach as is suggested by Clark. If a plaintiff has information that would constitute the basis for an objective belief of her injury and its cause, she has discovered her injury and its cause. It does not matter whether her objective belief resulted from information `officially' obtained from an expert witness. Nor, as [prior court of appeals cases] suggest, does it necessarily always matter whether the objective belief resulted at all from information obtained from any `expert' person.'"

In Rodgers, the injured worker had been told by her first doctor and second doctors that she had carpal tunnel syndrome, an occupational disease, caused at least in part by work. A third doctor was unsure and wanted to do further testing. The worker ultimately was treated surgically by a fourth doctor. The commission held that the worker had an objective basis to know that her disability was from an occupational disease related to work, even if the third doctor put the question in issue.

In this case, of course, it is true the applicant did not learn of her herniated thoracic disc, and the precise role it played in her condition, until her treatment at the Midelfort Clinic. However, the applicant had been told by Dr. Gartner that heavy lifting at work caused an uneven loading of her back, resulting in her back pain. At this point, she had the objective evidence which satisfied the "should have known" standard. It is not necessary that the applicant have a conclusive diagnosis, or that there be unanimity of diagnosis among all examining doctors, for the "knew or should have known" test to be met.

Moreover, DWD's explanatory footnote to Wis. Stat. § 102.42(1) states:

"137 Medical treatment when necessary is to be provided regardless of whether or not indemnity is payable or whether indemnity disability has ceased. There is provision for payment of expense for treatment procured by an employe who does not learn until later of the nature of his or her disability, or its relation to employment. Formerly, no liability would have existed unless and until notice of injury had been given. In such cases as tuberculosis following silicosis, this worked hardship on an employe who, although reasonably diligent, could not give notice of necessity for treatment because the employe had not yet learned the nature of his or her disability and its relation to employment. . [Emphasis supplied.]"

DWD Workers Compensation Act, WKC-1-P(R.04/2000). (13)

The footnote suggests that the intent of the "known or should have known exception" is to pick up treatment expense incurred before the notice of injury is given. In this case, the applicant gave her notice of injury upon filing the accident report on January 27, 1995, shortly after Dr. Gartner told her she had a work- related injury from repetitive lifting, and well before her treatment at Wausau Medical Center. Indeed, the accident report itself discloses the applicant was aware of the occupational disease nature of her complaints, as she described the source of her muscle spasms as "lifting off to one side (doctor said.)" See exhibit H.

In short, the commission concludes that the applicant "knew or should have known" about the nature of her disability and its relation to employment by January 1995.

Other things being equal, this would end the insurer's liability with the Wausau Medical Center bill, and leave the majority of the applicant's claimed medical expenses, including all the expense with the Midelfort Clinic, unpaid. However, the applicant asserts that, under the Hermax rules, she never "chose" any practitioner by personally seeking payment of its bill, so her ability to choose at this point is unimpaired.

Hermax, of course, dealt with the question of whether an injured worker simply "chooses" the treating practitioners by seeking treatment (so that only treatment by the first and second doctors in the sequence of choices may be compensated), or whether a worker chooses a doctor by submitting his bill regardless of where the doctor was in the treatment sequence. The court of appeals stated that, according to the commission's interpretation:

"[T]the employee `chooses' a practitioner by seeking reimbursement from the employer for the medical expenses related to that practitioner."

Hermax, at 220 Wis. 2d 621. Noting that the purpose of Wis. Stat. § 102.42(2) is not to prevent applicants from seeking treatment from more than two doctors, but to limit reimbursement to two doctors, the court of appeals concluded:

"LIRC's liberal interpretation of the statute will most clearly effectuate the purpose of the Worker's Compensation Act, and will not lead to `unlimited doctor shopping' or `unnecessarily duplicative treatment.' Under LIRC's interpretation, although employees may seek treatment from any number of physicians, they may only be reimbursed for two practitioner's expenses. If employees choose to seek treatment from more than two practitioners, the employees will be required to bear the cost of that additional treatment themselves. As a result employees will have a strong economic incentive to minimize unnecessary medical costs, and will be unlikely to pursue unneeded treatment. Employees will, however, have the right to seek treatment from as many practitioners as they desire, without forfeiting the right to be reimbursed for the expense related to any two of those practitioners.

".For the purposes of § 102.42, an employee `chooses' a practitioner by seeking treatment from that practitioner and by seeking reimbursement for that practitioner's expenses from the employee's employer or its insurance carrier.. [Emphasis in original.]"

Hermax, 220 Wis. 2d 622-23.

Both parties suggest this language supports their case. The respondent, pointing out that it paid for the treatment bills submitted by chiropractor Gartner and by the Wausau Medical Center, asserts that those two practitioners were chosen. The applicant claims she herself did not ask the bills of those practitioners be paid, so she did not choose them.

The commission concludes, however, if the practitioner or provider submits a bill for treatment to the workers compensation carrier, the employee is "seeking reimbursement." Of course, exceptions may be recognized for treatment that is not for a work injury, or for expenses sought in violation of a worker's instruction to the provider or practitioner to send the bill elsewhere. However, those situations are not present here.

The underlying rationale in Hermax is that only two doctors be paid. The commission decline to extend the holding to cover the situation where, once a doctor submits a bill and is paid without specific instruction by the employee, the employee may elect to "unpay" him. Nor does the commission read Hermax to hold that an employee can demand payment of the bills of any treating practitioner, even after two have already been paid.

In sum, then, the applicant knew or should have known of the nature of her disability and its relation to employment in January 1995. Consequently, the respondent is liable for the treatment expense at the Marshfield Clinic, which was rendered before the applicant knew or should have known about the nature of her disability and its relationship to her employment. The respondent is also liable for the applicant's treatment with her first choice, Allied Health of Wisconsin where she treated with chiropractor Gartner, and her second choice, the Wausau Medical Center. The amounts for which the respondent is liable are set out below.

3. Award.

The respondent does not challenge the ALJs' findings regarding the amount of compensation awarded in terms of the number of weeks of disability compensation. However, the respondent did request the commission recalculate the award to account for the social security reverse offset under Wis. Stat. 102.44(5).

The commission therefore finds that applicant was temporarily and totally disabled from June 4, 1995 to September 29, 1997 (both dates exclusive), a period of 121 weeks. However, the applicant began receiving social security disability payments as of December 1, 1995. Consequently, her award for temporary total disability from that date is subject to the social security reverse offset, and may not exceed $149.62 per week.

The applicant is therefore entitled to temporary total disability from June 5 to November 30, 1995, a period of 25 weeks 4 days, at the weekly rate of $261.87 (two-thirds of her average weekly wage of $392.80), or $6,721.33. This portion of the temporary disability is subject to a deduction for the applicant's attorney fees, set at 20 percent under Wis. Stat. 102.26, or $1,344.27, leaving the applicant $5,377.06 in temporary disability compensation for this period.

The applicant is also entitled to temporary total disability from December 1, 1995 to September 29, 1997, a period of 95 weeks 2 days. This portion of the award is subject to the social security reverse offset and is payable to the applicant at the weekly rate of $148.61, for a total of $14,167.49. This award, however, is not subject to a deduction for attorney fee; instead a twenty-percent fee, calculated at the weekly rate of $29.73, for a total of $2,834.26 shall be paid in addition to the award for this period under Wis. Stat. 102.44(5).

In addition, the applicant has sustained permanent partial disability on a functional basis at 65 percent, as calculated under Wis. Adm. Code DWD 80.32(11) for discectomies at four levels and fusions at nine levels. The applicant is therefore entitled to 650 weeks of permanent partial disability, at $164 per week, or $106,600. No social security reverse offset may be taken against social security as the sum of the weekly offset payment ($149.62) plus the additional twenty percent fee thereon ($29.92) exceeds the applicant's normal permanent partial disability rate of $164 per week.

As of April 7, 2001, however, only 183 weeks, 4 days of the permanent partial disability award totaling $30,121.33 has accrued, 466 weeks and two days totaling $76,478.66 remains unaccrued. The portion of the accrued award attributable to the attorney fee is $6,024.27, leaving $24,097.06 in accrued permanent disability immediately due the applicant as permanent partial disability. The portion of the unaccrued award attributable to the fee is $15,295.73, leaving $61,182.93 due the applicant in permanent partial disability as it accrues. The unaccrued portion of the fee is subject to an interest credit of $3,934.71 for advance payment, reflecting a present value for unaccrued fee of $11,361.02. The present value for the entire fee for permanent partial disability equals $17,385.29. In addition, the applicant's attorney incurred costs of $1,353.36, which shall be deducted from the sum currently due the applicant.

In all, then, the amount due the applicant within 30 days is $42,288.25 ($5,377.06 in "straight TTD", plus $14,167.49 in SSA/TTD, plus $24,097.06 in accrued PPD, minus $1,353.36 in costs.) The fee of the applicant's attorney is $21,563.82 ($1,344.27 on "straight TTD," $2,834.26 on TTD/SSA, and $17,385.29 in the present value of the fee on PPD) and it, together with costs of $1,356.36, is due the applicant's attorney within 30 days. Finally, the amount remaining to be paid the applicant as it accrues after March 19, 2001 is $61,182.93; this shall be paid in monthly installments of $710.67 beginning on May 7, 2001.

The commission further concludes that the applicant incurred reasonable and necessary treatment to cure and relieve the effects of the work injury, according to exhibit E as follows: from Allied Health, $1,523.00, all of which Meridian paid; from Marshfield Clinic, $7,727.37, of which the applicant paid $155.00, and Meridian (14) or Benefit Plan paid the rest; and from Wausau Medical Center, $3,323.30, of which Meridian paid $924.40, and $2,398.90 remains outstanding. According to Exhibit 10, the insurer has paid some amounts to Allied Health and Wausau Medical Center, and shall be entitled to the appropriate credit.

Because of the nature of the applicant's condition, further treatment may be necessary. Accordingly, this order shall be left interlocutory on all issues, to permit further awards for medical expense and additional disability compensation.

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

INTERLOCUTORY ORDER

The findings and order of the administrative law judges are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days from the date of this order the employer and its insurer shall pay all of the following:

1. To the applicant, Darlene A. Scheuerman, the sum of Forty-two thousand two hundred eighty-eight dollars and twenty-five cents ($42,288.25) in disability compensation.

2. To the applicant's attorney, Steve M. Jackson, the amount of Twenty- one thousand five hundred sixty-three dollars and eighty-two cents ($21,563.82) in fees and One thousand three hundred fifty-three dollars and thirty-six cents ($1,353.36) in costs.

3. To Wausau Medical Center, Two thousand three hundred ninety-eight dollars and ninety cents ($2,398.90) in medical treatment expense.

4. To Meridian, Ten thousand nineteen dollars and seventy-seven cents ($10,019.77) as reimbursement for medical expense paid.

5. To the applicant, One hundred fifty-five dollars and no cents in ($155.00) in out-of-pocket medical treatment expense.

Beginning on May 7, 2001 and continuing on the seventh day of each month thereafter, the employer and its insurer shall pay the applicant Seven hundred ten dollars and sixty-seven cents ($710.67) until the additional amount of Sixty-one thousand one hundred eighty-two dollars and ninety-three cents ($61,182.93) is paid.

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

Dated and mailed March 20, 2001
scheuem . wrr : 101 : 1  ND § 3.4  5.48 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the presiding ALJs concerning witness credibility and demeanor. While the commission reversed portions of the ALJ's medical expense award, the commission's action was taken on a different application objective "knew or should have known" standard based on the undisputed facts developed at the hearing, not on a different impression of the applicant's subjective understanding or her credibility at the hearing.

The ALJ also found that the applicant's permanent restrictions were as noted by Dr. Zondag in a form completed on July 22, 1997 (exhibit C). However, these were temporary restrictions in effect from August 4 to September 2, 1997. Dr. Zondag subsequently set less limiting, permanent work restrictions on November 27, 1997 and reiterated them on March 22, 1999 (exhibits P and BB). Because work restrictions are not technically necessary to support an award for functional disability, but are relevant to permanent disability for loss of earning capacity, the commission makes no findings the applicable work restrictions at this time.

cc:
Attorney Steve M. Jackson
Attorney David A. Piehler

[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/03/23

Footnotes:

(1)( Back ) It is unclear what happened to the remaining 50 pounds of salt.

(2)( Back ) The video shows a male worker, who appears to be rather larger than the applicant, performing the job. He poured in more than six bags; this is because the process changed after the applicant worked in the starter room.

(3)( Back ) The applicant testified she did this once or twice a day; Kind, however, testified it was done twice a day. Transcript, page 206.

(4)( Back ) The bill from Marshfield Clinic at exhibit E refers to this visit as an "independent medical examination."

(5)( Back ) The Midelfort Clinic, while located in Eau Claire Wisconsin, is part of the Mayo Health System according to the document certifying its medical records at exhibit 9.

(6)( Back ) Scheuermann's disease, as defined by Dorland's Illustrated Medical Dictionary (29th e. 2000), is osteochondrosis of the vertebra, named after the Danish surgeon who treated it.

(7)( Back ) Lewellyn v. DILHR, 38 Wis. 2d 43, 59-69 (1968).

(8)( Back ) In fact, the applicant experienced the onset of increased pain in January 1995 while lifting a 50-pound bag of starter.

(9)( Back ) After this, therefore because of this.

(10)( Back ) In support of its argument on this point, the respondent cites Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir., 2000). Mr. Huskey, a former city attorney, filed a 42 USC § 1983 action against his superiors claiming that his superior began to review his performance much more harshly as a result of comments Mr. Huskey had made to the City Attorney about the superior. Mr. Huskey had no proof that that the City Attorney had relayed Mr. Huskey's comments to the superior. Instead, Mr. Huskey asserted since the superior's attitude changed after Mr. Huskey made the comments to the City Attorney, the comments must have been the reason for change in attitude. The court rejected Mr. Huskey's reasoning as post hoc, ergo propter hoc. Huskey does not involve expert medical opinion. The commission therefore finds the case distinguishable.

(11)( Back ) The temporary statutory change limiting out-of-state referrals was not in effect at the time of the applicant's injury, or her treatment in 1996 at the Mayo Clinic in Minnesota, which was not by referral in any event. See 1998 Wis. Act 38 §§ 43, 44, and 48(5)(a) and (b), and Wis. Stat. § 102.03(4).

(12)( Back ) Because treatment with Dr. Capati was beyond the second choice, it does not matter that treatment at Midelfort was on referral. Similarly, because treatment at the Mayo Clinic in Rochester, Minnesota, was beyond the second choice and without prior approval, the commission need not address the question of whether the Mayo Clinic and the Midelfort Clinic are parts of the same clinic and so considered one practitioner under Wis. Stat. § 102.42(2)(a).

(13)( Back ) Department footnotes, of course, are given great weight in construing the workers compensation statutes. Pigeon v. DILHR, 109 Wis. 2d 519, 524 (1982).

(14)( Back ) Although this amount is shown as paid by Benefit Plan on exhibit E, it apparently was Meridian that paid it.