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

GARY KRETSCHMER, Applicant

GENERAL STAMPING CO INC, Employer

REGENT INSURANCE CO, Insurer

CONNECTICUT INDEMNITY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1997-012273 and 1999-034099

The applicant filed an application for hearing listing two dates of injury, February 6, 1997 and February 23, 1999. Following a pre-hearing conference and the issuance of a pre-hearing order, a hearing was held before administrative law judge (ALJ) Roberta Arnold of the Worker's Compensation Division of the Department of Workforce Development. The pre-hearing concessions and the issues for resolution at the hearing before ALJ Arnold on January 4, 2000 are set out in detail in ALJ Arnold's order, and need not be restated herein.

Regent Insurance Co. (Regent) was the on risk at the time of the February 6, 1997 injury. Connecticut Indemnity Co. (Connecticut Indemnity) was on the risk at the time of the February 23, 1999 injury. The primary issue on appeal is which insurer, Regent or Connecticut Indemnity, is liable for the treatment of the applicant's condition after the alleged February 23, 1999 date of injury. ALJ Arnold issued her decision in this matter on February 24, 2000, and both insurers filed timely petitions for review.

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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1956. He has a history of low back problems, including three surgeries resulting in a multilevel lumbar fusion, going back to an injury in 1985. At issue in this case, however, is a cervical spine injury.

The applicant began working for the employer in 1994. He injured his cervical spine on February 6, 1997, while lowering a forty pound basket of parts into a degreaser solution. The pain was in his shoulder, and prevented him from continuing to work that day.

The applicant saw a Dr. Bruno who referred him to a physiatrist, but the applicant chose instead to treat with Thomas J. Flatley, M.D., with whom he had previously treated for his back. Accordingly, the applicant saw Dr. Flatley on March 4, 1997, and related to him the history of the February 6, 1997 work injury. He complained of right neck and arm pain. Dr. Flatley noted that a recent MRI of the shoulder was negative. The doctor ordered an MRI of the cervical scan before making a diagnosis.

The MRI revealed slight bulging at C6-7, and Dr. Flatley diagnosed early degenerative disease at that level. When the applicant had not improved by March 25, 1997, Dr. Flatley recommended hospitalization for conservative measures, including intravenous medication, traction and physical therapy. This apparently did not relieve his pain, and the applicant was released from the hospital after three days on March 28, 1997. Dr. Flatley then referred the applicant to Stephen Robbins, M.D., for second surgical opinion.

Dr. Robbins recommended against immediate surgery. Accordingly, Dr. Flatley referred the applicant for intermittent cervical traction, ultrasound, massage and isometric exercise. He kept the applicant off work in the interim. In May 1997, the applicant noted an increase in pain in his spine with radiation into the interscapular. Noting the lack of response to conservative management, the doctor ordered epidurals at C6-7.

The epidurals did not work either. Noting this, Dr. Flatley opined that surgery was the next option. An anterior cervical decompression and fusion was scheduled and performed on July 11, 1997.

The applicant's recovery went relatively well. By November 1997, x-rays showed a solid graft. While the applicant had some neck pain, he had no arm pain. The doctor release him to return to work on November 10, 1997.

The applicant again saw Dr. Flatley in December 1997; on this occasion he had left arm symptoms. The doctor noted he would order a CT scan if the symptoms continued; meanwhile, he allowed the applicant to work overtime. The CT scan was done in January 1998; it showed minimal bulging at C4-5 and bulging at C5- 6. The C6-7 fusion looked solid.

On February 3, 1998, noting continuing problems, Dr. Flatley allowed the applicant to return to work subject to a restriction against pushing and reaching overhead. Dr. Flatley also referred the applicant to a colleague, Dr. Sullivan, for medication for headaches.

In July 1998, Dr. Flatley noted marked improvement since the last office visit of February 1998. The applicant complained of occasional pain in the cervical spine during the day, and intermediate paresthesias. Dr. Flatley also noted some evidence of non-union in the C6-7 bone graft. The doctor noted that if pain persisted, he would test further for pseudoarthrosis (i.e., a false fusion.)

When the applicant's pain continued, a CT scan was done on July 23, 1998. This showed continuing healing of the C6-7 graft; not a non-union. He was released to return to work, subject to a restriction against working overhead, and against working in a position where his neck is flexed or extended for eight hours.

On September 29, 1998, Dr. Flatley noted that the applicant had been doing reasonably well. X-rays showed a sold fusion. The doctor opined the applicant had reached a plateau of healing with permanent partial disability at ten percent compared to disability to the body as a whole. He reiterated his work restrictions against working with his neck flexed or extended for eight hours, and against overhead work.

According to the applicant, he next experienced problems that interfered with work in January 1999. He testified he was doing work requiring him to look down, such as spot welding, at the time. More specifically, in response to questioning by the ALJ, the applicant described two different job activities: (1) spot welding, where the applicant would twist to grab two small, light pieces, hold them together in the spot welder machine, and activate a foot pedal, while seated and working at belly- level; and (2) work on the "110 machine" which involved pulling a coil of steel stoc0k into a machine for fabrication-a worker would do this as part of a two- man team, and so would not be pulling all day. The applicant did the spot welding job just one day before he began to have increased complaints. However, he worked at the 110 machine for several days, at least.

On February 8, 1999, while working on the 110 machine, the applicant experienced severe neck pain. On February 11, 1999, while working on the 110 machine, the applicant's pain was so bad he told a supervisor about it. He worked on the machine, again in pain on February 15, 1999. On February 16, 1999, while operating a press, the applicant hit his head on a bolt on the machine. He mentioned that incident to a coworker, Joe Freoming.

According to the applicant's statement to the insurer's adjuster, his pain became so bad that on or about February 23, 1999, that he left work early, and contacted Dr. Flatley. Dr. Flatley told him to wear a cervical collar and stay off work until his neck improved. The doctor also prescribed medication over the phone. Statement at Exhibit CI 11, transcript, pages 16 and 28.

The first treatment note from Dr. Flatley thereafter is dated March 12, 1999. The doctor noted that, since the applicant had last been seen by Dr. Flatley, he experienced intermittent neck pain. According to the doctor's history:

"several months ago while working on a machine in which he was pulling and twisting objects, he developed increasing neck pain. Approximately one month ago he was cleaning a machine and while underneath the machine he struck his head on a bolt."

The doctor noted the pain was so severe the applicant had been unable to work for the past two weeks. Dr. Flatley's diagnosis was acute cervical strain, but he also wanted to rule out degenerative disc disease of the cervical spine. Accordingly, the doctor ordered an MRI of the cervical spine.

Thereafter, the applicant returned to Dr. Flatley on March 30, 1999. The doctor noted the recent onset of pain radiating down the posterior aspect of the right arm to the elbow. Dr. Flatley also noted that an MRI done on March 24, 1999 showed bulging at the annulus at C5-6, which, though small, decreased the epidural space slightly. Dr. Flatley recommended a trial of epidural injections, and kept him off work pending further evaluation.

The applicant again treated on May 27, 1999. Dr. Flatley noted then that the applicant complained of increasing pain in the right arm since the last epidural. While the right arm pain was intermittent, the applicant's shoulder and neck pain were constant. The applicant remained unable to work. Dr. Flatley ordered a discogram.

Dr. Flatley discussed the discogram in his noted of June 10, 1999. This revealed a slight abnormality of the C4-5 disc., and that C5-6 was definitely abnormal with contrast extending to the outer limits of the annulus in the right paracentral areas. The applicant complained of severe pain in the neck and right shoulder, radiating down the left arm. He complained he could no longer live with the pain.

Dr. Flatley, however, frankly cautioned that a three level cervical fusion (the prior one level fusion plus a fusion of the two newly-symptomatic levels) would lead to severe restriction in motion and likely to cause further degeneration of the discs above and below the fusion area. Nonetheless, in July 1999, complaining of nearly constant pain, the applicant told Dr. Flatley he wanted to proceed with the surgery. Surgery was scheduled for, and ultimately performed, on October 4, 1999.

The surgical note is at Regent's Exhibit 6. The pre-operative and post-operative diagnosis was "degenerative disc, C5-6." During the surgery, no disc herniation was observed. Rather, the doctor noted that very little disc material was noted at C5-6, and that the disc was "essentially a vacuum disc." Fortunately for the applicant, during the surgery Dr. Flatley determined only a one-level fusion was necessary.

Dr. Flatley saw the applicant post-surgery on October 14 and 28, 1999. On the latter occasion, the applicant complained of cervical muscle spasm, but had no right arm pin. The fusion graft and plate were shown by x-ray to be in satisfactory placement.

The surgery has helped the applicant's condition. The applicant no longer has arm pain, has only rare shoulder pain, and only occasional headache.

As noted above, the primary issue before the commission is which insurer-or if either or both-is liable for the expense and disability associated with the second surgery in October 4, 1999. The record contains expert medical opinion from several sources on that point.

Dr. Flatley has expressed his opinion on the subject several times.

On April 1, 1999, Dr. Flatley opined at the request of an adjuster for Regent (the insurer on the risk in 1997) that at least one of the incidents (working on a machine pulling and twisting objects or hitting his head on a bolt) mentioned in Flatley's March 12, 1999 report aggravated the applicant's pre-existing condition beyond its normal progression. Exhibit A, second to last page.

In a June 4, 1999 letter to Paul Erspamer (the attorney representing the applicant), Dr. Flatley stated the applicant's current symptoms were an aggravation of the February 6, 1997 injury. See Exhibit B.

In a follow-up response to Mr. Erspamer, Dr. Flatley stated he did not regard the applicant's problems as a mere temporary aggravation of the February 1997 injury. Dr. Flatley stated the February 1999 "incident" did not cause insubstantial or short term symptom from which the applicant quickly returned to baseline. Rather, Flatley stated the February 1999 injury substantially caused his present disability by precipitation, aggravation and acceleration of a pre-existing progressively deteriorating condition beyond normal progression. See Exhibits D and Regent 5.

Regent (who is on the risk in 1997) retained an IME Ilan Shapiro, M.D. He did a record review, and did not actually examine the applicant. His opinion was dated September 15, 1999.

Dr. Shapiro's report mentions an injury sometime in 1999 when pulling and twisting objects and again in February 1999 when the applicant struck his head on a bolt. He wondered about the possibility of a non-union from the first surgery (which Dr. Flatley seemed to have ruled out by CT scan). Regarding causation, he noted the prior fusion which predisposed the applicant to degenerative disease at other levels, his pre-existing degenerative multi-level cervical disc disease, he stated:

"This leads to a multi-factorial cause for his present discomfort. These would include: 1) his previously existing degenerative disease. 2) his previous C6-7 fusion and 3) progression of degenerative disease from both natural causes as well as continued strenuous work activities including hitting his head, twisting, bending, etc. Although, Dr. Lemon opines that he injuries at work were simply minor and by themselves could not cause progression of this problem and that the problem is entirely related to a preexisting degenerative disease and his C6-7 fusion, I do not agree. His continued activities at work could certainly cause a progression of the degenerative disease already present, especially when there is the added factor of a preexisting one level fusion.

"Finally, there is a possibility of subacute infection present causing continued discomfort as time goes on. However, I feel that much more likely there is a possibility of a residual nonunion at C6-7."

In response to specific interrogatories, Dr. Shapiro wrote:

"I believe his February 6, 1997, alleged work injury did aggravate and accelerated his underlying preexisting degenerative disease causing the complaints noted in 1997. I believe that the previous shoulder complaints had resolved following injections of the shoulder; the resolution of shoulder pain following injection indicates to me that his neck pain was a of a different nature than the shoulder discomfort that preceded it several months prior to February 6, 1997.
                                              . . .
"The notes indicate that he not only stuck his head on a bolt, but he was having difficulty with his neck with various activities and work that involved twisting, etc. I therefore believe that the February 1999 injury was occupational in nature rather than traumatic. I do not believe that a simple head strike on a bolt would be enough to cause specific rapid progression of his degenerative disease. However, I do believe that his workplace activities in early 1999 were of sufficient duration, magnitude and frequency to constitute a material contributory causative factor in progression of his disease."

See Regent Exhibit 1, page 12. Dr. Shapiro concluded that he treatment to date had been appropriate, but he was cautious about the then-proposed October 1999 additional fusion.

Connecticut General, who was on the risk in 1999, retained Richard Lemon, M.D. He noted the absence of any herniated disc during the October 1999 procedure which would substantiate an acute injury. According to Dr. Lemon, the "vacuum disc" noted by Dr. Flatley during surgery was consistent with degenerative disc disease, not an acute herniation. He also noted the October 1999 surgery showed clearly pre-existent degenerative disc disease. Noting the absence of any acute findings, he concluded the applicant's ongoing neck pain was related only to his pre-existing multilevel degenerative disc disease and his previous surgery, and was in no way related to the alleged minor work event occurring in January or February 1999. See Connecticut General Exhibits 2 and 3. In a prior report (Connecticut General Exhibit 1), Dr. Lemon did state his impression that the original 1997 work injury aggravated the applicant's previously asymptomatic degenerative disc disease. Dr. Lemon has stated consistently that he feels the applicant is a poor surgical candidate.

On this record, the commission finds Dr. Shapiro's opinion most credible. It therefore concludes that the applicant's days on the spot welder and 110 machine, and other workplace activities in early 1999, were an appreciable period of workplace exposure that constituted a material contributory factor in the progression of the applicant's degenerative disc disease. The commission notes that, while perhaps inaccurately characterizing the activities as an "incident," Dr. Flatley also assigned a causal role to "working on a machine pulling and twisting objects" in February 1999.

The commission considered the effect of a possible pseudoarthrosis, noted by Dr. Flatley in July 1998. However, Dr. Flatley ordered further testing which seemed to rule out a pseudoarthrosis. Moreover, the applicant was able to work until he experienced an increase in pain with certain job activities in early 1999. Two medical experts have opined the that activities caused the increased symptoms. Finally, Dr. Shapiro, who is most concerned about the pseudoarthrosis, opined that the applicant's work exposure contributed to the progression of his condition.

The commission acknowledges that this is not a simple case, and the applicant's cervical fusion surgery of July 1997 obviously was a factor in his condition of early 1999. However, when subsequent work exposure is a material contributory causative factor in the progression of pre-existing condition, (1) even a pre-existing degenerative condition that may be expected to worsen eventually on its own, the insurer at risk during the period of the work exposure is liable under an occupational disease theory. (2)

Accordingly, the commission concludes that the applicant sustained a disease causing injury from work exposure in early 1999, which arose out of his employment with the employer, and occurred while he was performing services growing out of an incident to that employment. The appropriate date of injury under Wis. Stat. § 102.01(2)(g)2 is the "date of disability" which is the first day of lost work time, or February 23, 1999. The commission also concludes that the insurer on the risk on that date of injury, Connecticut Indemnity, is liable for the applicant's resulting disability and medical expenses.

As noted above, there is no dispute that the applicant was temporarily and totally disabled from his work injury from February 23, 1999 to the date of hearing on January 4, 2000, a period of 44 weeks and five days. At the weekly rate of $266.67 (two-thirds of the applicant's average weekly wage of $400 at the time of his February 23, 1999 work injury), the applicant was entitled to a total of $11,955.56 for disability during this period.

Regent paid $4,048.00 towards the applicant's temporary total disability pursuant to the pre-hearing order issued under Wis. Stat. § 102.175(2). Connecticut Indemnity shall reimburse Regent in that amount.

Connecticut Indemnity paid $4,138.95 towards the applicant's temporary total disability pursuant to the pre-hearing order issued under Wis. Stat. § 102.175(2). It is entitled to a credit in that amount, and to deduct the amount it must reimburse Regent from the amounts due the applicant. The remaining amount due in temporary disability is thus $3,768.61 ($11,955.56 less ($4,138.95 plus $4,048.))

The applicant approved an attorney fee of 20 percent on the additional amounts awarded hereunder. Accordingly, the fee is $753.72. The fee, together with costs of $825.70, shall be paid the applicant's attorney within 30 days. The remainder, $2,189.18, shall be paid to the applicant within 30 days.

Because the applicant had not reached a healing plateau from the February 23, 1999 work injury and the October 4, 1999 surgery at the time of the hearing, and indeed remained in a continuous period of temporary total disability, the commission does not yet award additional permanent partial disability compensation from the February 23, 1999 work injury.

Exhibits E, F, and G document the following outstanding items of medical treatment expenses incurred after February 23, 1999, all of which was reasonable and necessary to cure and relieve the work injury of that date: from Home Care Medical, $201.00; from Aurora Pharmacy, $72.13; from Thomas J. Flatley, M.D., $636.00; from David I. Stein, M.D., $4,620.00; from Oconomowoc Memorial Hospital, $562.35; from CDI, $420.00; from Radiology Associates of Milwaukee, $32.20; from Froedtert Memorial Lutheran, $18,931.39; and from Medical College of Wisconsin, $17,684.00. In addition, Exhibits F and G list unpaid balances due St. Joseph's Hospital in the amount of $5,236.50. Although the commission could locate no itemized billing for the services at St. Joseph Hospital, neither insurer objected to them, and the commission concludes they, too, were reasonable and necessary to cure and relieve the effects of the work injury. Finally, Exhibit G documents 1071 miles of travel expense incurred for treatment, compensable at the rate of $0.29 per mile, for a total of $310.59.

Because the applicant had not yet reached a healing plateau at the time of the hearing, an interlocutory order is appropriate to reserve the right to make any additional claims from the February 23, 1999 work injury, including claims for additional temporary disability, permanent disability (including loss of earning capacity), and additional medical expense. However, the application for hearing, as it pertains to Regent, shall be dismissed.

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 for the date of this order, the employer and Connecticut Indemnity Co. shall pay all of the following:

1. To the applicant, Gary E. Kretschmer, Two thousand one hundred eighty-nine dollars and eighteen cents ($2,189.18) in disability compensation.

2. To the applicant's attorney, Paul M. Erspamer, the sum of Seven hundred fifty-three dollars and seventy-two cents ($753.72) in fees and ($825.70) in costs.

3. To Home Care Medical, Two hundred one dollars and no cents ($201.00) in medical treatment expense.

4. To Aurora Pharmacy, Seventy-two dollars and thirteen cents ($72.13) in medical treatment expense.

5. To Thomas J. Flatley, M.D., Six hundred thirty-six dollars and not cents ($636.00) in medical treatment expense.

6. To David I. Stein, M.D., Four thousand six hundred twenty dollars and no cents ($4,620.00) in medical treatment expense.

7. To Oconomowoc Memorial Hospital, Five hundred sixty-two dollars and thirty-five cents ($562.35) in medical treatment expense.

8. To CDI, Four hundred twenty dollars and no cents ($420.00) in medical treatment expense.

9. To Radiology Associates of Milwaukee, Thirty-two dollars and twenty cents ($32.20) in medical treatment expense.

10. To Froedtert Memorial Lutheran, Eighteen thousand nine hundred thirty one dollars and thirty-nine cents ($18,931.39) in medical treatment expense.

11. To Medical College of Wisconsin, Seventeen thousand six hundred eighty-four dollars and no cents ($17,684.00) in medical treatment expense.

12. To St. Joseph's Hospital, Five thousand two hundred thirty-six dollars and fifty cents ($5,236.50) in medical treatment expense.

13. To the applicant, Three hundred ten dollars and fifty-nine cents ($310.59), in medical mileage.

Appropriate adjustments and credit may be taken for any temporary disability payments made by the insurers for the period after the date of hearing. The application for hearing at issue in this case is dismissed as it pertains to Regent Insurance Co. Jurisdiction is retained with respect to the employer and Connecticut Indemnity Co. for further orders and awards as are consistent with this decision.

Dated and mailed August 30, 2000
kretsga : 101 : 1 ND § 3.43

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The ALJ adopted independent medical examiner Shapiro's report, and concluded that both the 1997 surgery and 1999 occupational disease caused the 1999 disability. Accordingly, she apportioned the liability 50-50 between the insurers.

While the commission agrees that Dr. Shapiro's report is most credible, the commission believes his opinion to be that occupational exposure in early 1999 caused the progression of the applicant's pre-existing condition from the February 1997 work injury and July 1997 surgery. Consequently, the commission concludes it would be inappropriate to apportion liability for the disability and medical expenses incurred after February 23, 1999 between the work accident of February 1997 and the work exposure resulting in an injury from occupational disease in early 1999.

Wisconsin Statute § 102.175(1) permits apportionment of liability, but only between accidental injuries. This implies that if subsequent occupational exposure is the cause of increased disability following a healing plateau from an accidental injury, the occupational exposure alone is responsible. Again, the 1997 injury and fusion may have provided the "pre-existing" condition whose progression to which the 1999 exposure materially contributed, but the insurer at risk for the 1999 work exposure alone is liable. Thus, while the Regent is liable for the medical expense and disability, including permanent disability, occurring from the February 1997 work injury and July 1997 surgery, Connecticut Indemnity is alone liable for the additional disability incurred after the February 23, 1999 date of injury from occupational disease. Because the commission's modification of the ALJ's decision was based on this legal issue, no credibility conference was held.

cc: ATTORNEY PAUL M ERSPAMER
LISKO & ERSPAMER

ATTORNEY CHARLES M SOULE
CASTAGNA EVEN CAFARO & SOULE

ATTORNEY TIMOTHY SCHUMANN
LINDNER & MARSACK

PAMELA I. ANDERSON, COMMISSIONER (partially dissenting):

I write separately because I believe that Regent Insurance, the insurer at the time of the February 6, 1997 injury, should be solely responsible. I found Dr. Lemon's opinion most credible. Dr. Lemon found "I believe that Mr. Kretschmer's condition is related only to his preexisting multilevel degenerative disc disease of the cervical spine and his previous surgery of July 11, 1997. I do not believe that Mr. Kretschmer's current condition is in any way related to any alleged minor work event, which occurred in January or February of 1999. It is well documented in the medical records that Mr. Kretschmer had continuing neck paint since the time of the initial injury of February 6, 1997, on through his surgery of July 11, 1997, and on through the present time. I do not believe that Mr. Kretschmer's work at D & H Industries in 1999 was a material contributory causative factor in the onset or the progression of his multilevel degenerative disc disease of the cervical spine."

I agree with the majority that there should be no apportionment in this case. I also agree that if the employe exceeded his physical restrictions, that would not hold the carrier harmless. I am convinced that the employe's problems arose out of the first injury on February 6, 1997 and his underlying degenerative disc disease. I certainly do not see how a vacuum disc would be caused by a traumatic event or additional work at the employer.

For these reasons, I partially dissent

_____________________________________
Pamela I. Anderson, Commissioner

Appealed to Circuit Court.  Affirmed May 2, 2001.

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Footnotes:

(1)( Back ) Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (1978).

(2)( Back ) The dissenting commissioner "does not see how a vacuum disc would be caused by a traumatic event or additional work at the employer." Dr. Lemon, of course, noted that the vacuum disc finding was inconsistent with an acutely herniated disc, but rather was indicative of a degenerative process. However, Dr. Shapiro's opinion is not based on a traumatic injury causing a disc herniation, but upon work exposure as a material contributory causative factor in the progression of the pre-existing degenerative process.

uploaded 2001/05/17