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


JEFFREY S. BOYCE , Applicant

RATZSCH RESTAURANT, Employer

MID CENTURY INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-049721


The applicant injured his back on August 16, 1997. The employer and its insurer (collectively, the respondent) conceded a compensable injury and an average weekly wage of $279.66. The respondent also conceded and paid temporary total disability from August 16, 1997 to January 8, 1998, in the amount of $3,822.02. The respondent also paid, but did not concede, permanent partial disability at one percent compared to permanent total disability in the amount of $1,740.

This matter arises from the applicant's additional claim for temporary total disability beginning on January 8, 1998, treatment expenses, and an interlocutory order. A hearing was held on these matters before ALJ Thomas Jones on February 2, 2000, and ALJ Jones issued his findings and order dismissing the applicant's claim on April 25, 2000. The applicant did not appeal ALJ Jones' decision to this commission.

On February 23, 2001, the applicant filed a petition with the commission to set aside ALJ Jones' findings and order pursuant to Wis. Stat. § 102.18(4)(c). The respondent filed a memorandum in opposition to the applicant's petition, to which the applicant replied. The basis of the applicant's petition is that findings during a surgery which the applicant underwent after the hearing constitute newly-discovered evidence that justifies setting aside ALJ Jones' order and taking further action under Wis. Stat. § 102.18(4)(c).

The commission concludes that the medical notes submitted by the applicant in support of his petition, and particularly the letter from James Lloyd, M.D. dated January 17, 2001, constitute newly-discovered evidence, and that this matter should be remanded for further hearing and decision on all issues.

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

ORDER

ALJ Jones' decision dated April 25, 2001 is set aside. Pursuant to Wis. Stat. § 102.18(4)(c), this matter is remanded to the Division of Worker's Compensation in the Department of Workforce Development, for further hearing and decision on all issues.

Dated and mailed April 5, 2001
boyceje . wpr : 101 : 8   ND § 9.3

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The applicant, who had a prior lumbar fusion surgery in 1994 following a 1990 injury, claimed additional permanent disability from an injury while working for the employer on August 16, 1997. Shortly after the 1997 injury, the applicant complained of ongoing, continuing back and right leg problems. (1)   Imaging scans done in 1997 and 1998 showed no clear evidence of a new disc injury, but they were obscured by the hardware from the 1994 fusion. (2)   Nerve testing, however, did show an ongoing denervation of the right L5 nerve distribution.

The surgeon who did the 1994 surgery (Robbins) rated an additional one percent permanent partial disability from the August 1997 injury which precipitated aggravated and accelerated the applicant's condition following the 1994 surgery beyond normal progression. Another treating doctor (Lloyd) wanted to do exploratory surgery to see whether there was disc lesion from the 1997 injury not evident on the scans that could account for the problem. The independent medical examiner (IME) retained by the respondent (Lemon) essentially concluded the applicant was malingering, associating the vast majority of his symptoms following the 1997 injury with symptom magnification. In reaching this conclusion, Dr. Lemon noted that none of the numerous tests done documented any acute injury, and concluded that surgical exploration of the applicant's back offered no chance for improvement of his symptoms.

Finding IME Lemon's report probative, the ALJ dismissed the application in this matter by order dated April 25, 2000.

Thereafter, Dr. Lloyd performed exploratory surgery on September 1, 2000. According to Dr. Lloyd's January 17, 2001 letter, (3) the surgery disclosed disc protrusion at L4-5 and foraminal encroachment at L5-S1 on the right side. Dr. Lloyd opined the L4-5 disc protrusion seen upon surgery was indeed caused by the work accident. The applicant, for his part, contends that the post-hearing surgery done by Dr. Lloyd has resolved the leg pain, improved his back pain, and improved his functional ability.

The applicant seeks reconsideration of the ALJ's dismissal order under Wis. Stat § 102.18(4)(c), contending Dr. Lloyd's surgical findings constitute newly-discovered evidence providing objective proof for his complaints. That statutory subsection provides:

102.18(4)(c) On its own motion, for reasons it deems sufficient, the commission may set aside any final order or award of the commission or examiner within one year after the date of the order or award, upon grounds of mistake or newly discovered evidence, and, after further consideration, do any of the following:

1. Affirm, reverse or modify, in whole or in part, the order or award.
2. Reinstate the previous order or award.
3. Remand the case to the department for further proceedings.

Under the traditional test by the commission used to determine whether evidence is truly newly-discovered:  the evidence must first come to the party's knowledge after the hearing, the party must not have been negligent in failing to discover it, and the evidence must be not merely cumulative. (4) The commission also usually requires that the evidence, if considered, would probably cause the commission to reach a different result. (5)

The applicant has met the newly-discovered evidence test in this case. Dr. Lloyd's observation of disc protrusion at L4-5 during the September 1, 2000, surgery clearly came to the applicant's knowledge after the February 2, 2000, hearing, and it is not merely cumulative.

The respondent contends the applicant was negligent in failing to discover the protrusion by having the surgery performed earlier, since Dr. Lloyd had been recommending the exploratory surgery since 1999. Of course, as the applicant points out, the respondent has consistently denied that the applicant had a pathology amenable to surgery and has never offered to pay for the surgery. Its own expert opined the surgery was unwarranted, offered no chance of improving the applicant's condition, and was in fact "absurd." Exhibit 1, report of Lemon, pages 5 and 6.

In this case, the commission cannot conclude that the applicant negligently failed to undergo the exploratory surgery before the hearing. Certainly the strongly- worded opinion of IME Lemon concerning the surgery would have given a reasonable person pause. Even without IME Lemon's opinion, however, the commission is not inclined to find the applicant's failure to undergo a major surgery to be a negligent discovery practice in this case, especially when the applicant was not certain how the expense of the procedure would be paid.

The last question is whether the disc protrusion noted by Dr. Lloyd in the September 2001 surgery would be likely to change the result. The ALJ, relying on the applicant's testimony that he experienced the onset of right leg pain in August or September 1998, found that it was speculative to connect the right leg symptoms arising a year after the injury to the injury itself, given the significant preexisting pathology. That is, ALJ Jones could not rule out the possibility that some subsequent, non-work event, or the normal progression of the applicant's condition following the 1994 surgery, caused the disc problem and leg symptoms. If so, proof of the disc problem would not necessarily lead to another result.

However, the medical records establish that the applicant complained of right leg pain in the very earliest treatment with Dr. Donovan two days after the August 1997 injury. Right leg pain is consistently noted in subsequent treatment notes with Drs. Donovan and Robbins in 1997. Indeed, the right leg complaints led Dr. Donovan, and later Dr. Robbins, to diagnose radiculopathy during their treatment of the applicant in 1997.

Perhaps for this reason, neither Dr. Robbins nor IME Lemon concluded that a disc injury from some other source accounted for the applicant's right leg symptoms. Dr. Robbins, in fact, recognized the applicant's complaints were discogenic and opined it was caused by aggravation from the August 1997 work injury, though he apparently relied on the imaging tests to conclude there was no new herniation. IME Lemon flatly stated in his January 2000 report that the applicant was exaggerating his symptoms, and attributed "the vast majority" of his complaints to symptom magnification. As noted above, the ALJ adopted Dr. Lemon's report.

In this case, the commission concludes that Dr. Lemon's opinion based on "symptom magnification" and "somatic complaints" may no longer be relied upon in light of Dr. Lloyd's asserted surgical findings. (6)    Stated simply, once objective evidence of an organic cause for the applicant's post-injury complaints is shown, the conclusion that the applicant must be exaggerating or inventing symptoms because there is no objective evidence of an organic cause for the symptoms must fail. It would have been an error to accept Dr. Lemon's opinion if the proof of a herniated disc compressing the nerve had been present at the time of the hearing before ALJ Jones in February 2000. Consequently, Dr. Lloyd's September 2000 surgical findings, if credited, would lead to different result.

It may well be that Dr. Lloyd's surgical findings may be persuasively countered by another IME report. But on the record as it stands now, a different result would probably be reached, and that is all the applicant needs to show under this prong of the newly-discovered evidence test upon request for reconsideration.

Finally, the respondent asserts that the applicant has not shown why the disc protrusion observed by Dr. Lloyd during surgery did not show up on a CT scan. The commission is not sure this is true, strictly speaking. As discussed above, the CT scans referred to the instrumentation from the 1994 surgery degrading or obscuring the image. As the applicant points out, Dr. Lloyd's concern that "the L4-S1 levels could not be significantly imaged due to the artifact of segmental spinal instrumentation," led him to recommend the exploratory surgery on October 20, 1998. Exhibit A. The commission does not believe the applicant must provide a technical explanation of why the instrumentation obscured the imaging, when it is so evident from the record that it did.

The commission does note that Dr. Lloyd's actual report at the time of the surgery on September 1, 2000, does not appear to refer expressly to a disc protrusion at L4-5. There is reference to soft tissue removal in a discussion of the dissection of lateral masses of the transverse process of L4. Operative/procedure report dated September 1, 2000, page 2, paragraph 3 under "Procedure," seventh sentence. However, the report also states that the L4-5 disc on the right was evaluated and probed, and there was no disc protrusion posteriorly at L4-5. Operative/procedure report, dated September 1, 2000, page 3, paragraph 2, first sentence.

Of course, operative reports are relatively technical documents, unlike reports offered to express medical opinion. The commission declines to use its lay intuition to find that Dr. Lloyd's September 1, 2000, operative/procedure report is at odds with the doctor's January 17, 2001, letter reporting that he observed a disc protrusion at L4-5 on the right during surgery. This is a matter better left to medical experts on rehearing.

On the record now before the commission, it concludes that: the ALJ dismissed the application based on IME Lemon's opinion that the applicant's complaints were largely due to "symptom magnification" in the absence of objective evidence of some organic cause for the complaints on the imaging tests; that Dr. Lloyd reported that he discovered a right-sided disc herniation at L4-5 during the applicant's post-hearing surgery on September 1, 2000; that this "newly- discovered evidence" provides an objective basis to believe the applicant's pain complaints; and that, consequently, the ALJ's reliance on IME Lemon's opinion must be reconsidered.

cc:
Attorney Thomas E. Bush
Attorney Thomas Ogorchock


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Footnotes:

(1)( Back ) Treatment notes for Daniel Donovan, M.D., on August 22 and 25 1997, document low back pain and pain down the right leg, leading Dr. Donovan to diagnose acute low back pain with lumbar radiculopathy. Exhibit D. An initial treatment note with Dr. Robbins dated September 2, 1997, refers to an injury two weeks previously, with subsequent back pain and right buttocks and thigh pain that did not extend below the knee. On October 22, 1997, Dr. Robbins again saw the applicant, and noted complaints of back and leg symptoms. On this occasion, Dr. Robbins opined that the applicant's "symptoms are reflective of discogenic low back pain." Exhibit G. In November 1997, the applicant underwent an initial vocational analysis with Cheryl Munson, CRC, who noted the applicant complained of low back pain and right lower extremity radiculopathy with an August 16, 1997 date of injury. Exhibit G.

(2)( Back ) A CT scan of the applicant's lumbar spine, done on October 20, 1997, showed no abnormalities at L3-4 or L4-5, and no disc herniation, spinal stenosis, or foraminal compromise at L5-S1. With respect to the L5-S1 level, the interpreting radiologist did note that there was "considerable computer artifact emanating from the pedicle screws which does significantly degrade the images." Exhibit G. A post-myelographic CT scan done on October 5, 1998 showed a bulge, but no herniation or neural impingement at L3-4. AT L4-5, L5-S1 and S1-2, the central canal was widely patent, and no gross abnormalities were noted, but the radiologist noted "this is somewhat limited secondary to extensive metal artifact due to fixation screw device." Exhibit F.

(3)( Back ) This is in the material submitted to the commission in his February 26, 2001, petition to the commission to set aside the ALJ's order.

(4)( Back ) Seaman Body Corporation v. Industrial Commission, 252 N.W. 718, 720 (1934).

(5)( Back ) Naden v. Johnson, 61 Wis. 2d 384 (1973). For commission cases applying these standards, see David Stanley Millen II v. Vande Heys Roofing Tile Co Inc., WC claim no. 94045641 (LIRC, August 30, 1996) and William Guden v. Buena Vista Berries, WC claim no. 1995025470 (LIRC, April 28, 2000).

(6)( Back ) In this respect, this case is similar to William Guden v. Buena Vista Berries, WC claim no. 1995025470 (LIRC, April 28, 2000). In that case, based on the lack of objective evidence of any anatomical or structural problems to account for the applicant's complaint, the commission concluded that the applicant was either malingering or so greatly exaggerating his pain as to create a legitimate doubt that there was anything wrong with him at all. When subsequent treatment disclosed an anatomical basis for the complaints, the commission set aside its prior decision and remanded for further proceedings under the one-year statute. Guden was affirmed at circuit court, and is now on appeal to the court of appeals. 


uploaded 2001/04/16