DORANCE HALVERSON, Applicant

THOMAS & BETTS CORP, Employer

TRAVELERS INDEMNITY CO OF IL, Insurer

Hearings were held in this case on March 18, 1999, June 22, 1999 and November 29, 1999. Administrative Law Judge Clark issued an order on February 11, 2000, finding the applicant was permanently totally disabled. The respondents filed a timely petition for commission review of the ALJ's order. On August 25, 2000, the commission set aside the ALJ's order and remanded this matter for further proceedings and a new order. Further hearing was held on November 17, 2000. ALJ Clark issued an order on January 17, 2001, adopting the opinions of Drs. Zondag, Sprangers, and Nissen and finding applicant was 100% permanently totally disabled as of April 29, 1998. The respondents filed a timely petition for commission review.

Jurisdictional facts were conceded. The parties also agreed to an average weekly wage of $563.21. The respondents had earlier conceded and paid temporary total disability benefits from April 29, 1998 through October 31, 1998. There was no "overpayment" claim asserted by the respondents.

The issues are whether the applicant sustained an injury on April 29, 1998, and whether the injury arose out of employment and the nature and extent of the disability as well as liability for medical expenses. Prior dates of injury, February 14, 1990 (Travelers) and September 8, 1995 (National Union), were compromised by agreement dated July 8, 1998. (1)

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:

The applicant, Dorance Halverson, who was born on August 16, 1946, was employed by Thomas & Betts and its predecessors for a period of 30 years. During that time he was employed as a welder. Over the years he suffered as many as eight separate work-related injuries.

On October 12, 1988, the applicant was struck in the back with a large piece of metal and sustained a compression fracture at T-5. He did not lose any work time due to the injury and returned to work without any restrictions or permanent disability following that injury.

On February 14, 1990, the applicant was bending over a jig table when he felt a stabbing pain in his low back. He was unable to straighten up. The applicant treated with Dr. Nissen, D.C., following his February 14, 1990, work incident. He was off work for approximately six weeks after that incident. Dr. Nissen's initial notes, particularly those on March 8, 1990, March 21, 1990, and March 31, 1990, reveal that applicant had complaints of pain in his low back and down into his right leg, particularly in the anterior portion.

On June 6, 1990, Dr. Nissen noted that the applicant indicated his neck was bothering him. On June 13, 1990, Dr. Nissen noted that the applicant's right hand was falling asleep. Generally, Dr. Nissen's June of 1990 notes indicate applicant was feeling well except for some stiffness in the morning.

On July 16, 1990, Dr. Nissen noted that applicant had injured his back at work that day lifting an object weighing between 75 and 100 pounds. On July 19, 1990, Dr. Nissen recorded that the applicant was sore all over including his arms, neck and low back. The applicant continued to report low back and neck pain in August of 1990. Applicant saw Dr. Nissen on September 19, 1990, and on October 10, 1990, reporting that he was feeling well, and was almost pain free on the latter visit. He saw Dr. Nissen four times in January of 1991, generally reporting that he was feeling pretty well.

On February 12, 1991, the applicant reported a new incident while at work when he was sweeping and started having additional back pain. Dr. Nissen's February 12, 1991, office note indicates that he went home from work and the only comfortable position at the time was lying on the floor.

Dr. Nissen's July 19, 1991, letter to Crawford & Company (Thomas & Betts' then workers' compensation insurer) indicated that the applicant had not yet reached maximum medical improvement due to the fact that he had been reinjured on February 12, 1991. Dr. Nissen did "expect some permanent impairment" from that injury but stated that it was too early to make a determination of permanency at that time (Exhibit 14). On September 23, 1991, Dr. Nissen wrote to Crawford & Company and indicated that the applicant had an increase in his low back pain and "recently has had leg pain" although the applicant "does not recall a specific incident to cause the exacerbation just that pain is increasing." (Exhibit 14). Dr. Nissen again found that applicant had not reached maximum medical improvement. Finally, Dr. Nissen indicated that she was not qualified to give a permanency rating.

On July 28, 1992, Dr. Nissen completed a "final" WC-16 form in which she diagnosed lumbar disc syndrome, myofascitis, and radiculitis, with pain radiating from right sacroiliac to right testicle down anterior medial thigh, spondyloslisthesis, and degenerative joint disease. Dr. Nissen indicated that applicant would need treatment as long as he worked for the employer or he would regress back to the point he was when he first injured his back. The prognosis was fair to poor as "Mr. Halverson's condition is one that will not improve and is expected to worsen." Dr. Nissen referred applicant to Dr. Lifson at the Institute for Low Back Care with respect to permanent impairment ratings (Exhibit 14).

On August 6, 1992, Dr. Lifson, the assistant medical director at the Institute for Low Back Care, evaluated the applicant. Dr. Lifson reviewed a February 10, 1992, lumbar CT scan and indicated that it showed "lytic spondylolysis and grade I spondylolisthesis at L5-S1 level with gaseous degeneration of the L5-S1 disc. Lateral spinal stenosis is noted . . . . There is severe facet joint arthropathy at the L5-S1 and L4-5 levels. At the L4-5 level there is a central herniated disc with no nerve root compression. At the L3-4 level there is a broad-based bulging and slight central herniation of the disc with no nerve root compression. The remainder of the lumbar spine and the lower thoracic spine shows areas of general degeneration with no focal impingement of the nerve roots." Dr. Lifson stated:

I believe Mr. Halverson's persistent right hip and groin pain is caused by impingement of the right L5 nerve root due to lytic spondylolisthesis and the development of lateral spinal stenosis at the L5-S1 level. It does not appear that the disc herniations at the L4-5 and L3-4 levels are related to focal pain.

Even though the spondylolisthesis was a pre-existing condition, I believe Mr. Halverson's work injuries were substantial contributing factors in his disability and current pain . . . .

I agree that Mr. Halverson is not able to perform heavy-duty work, and I suggest that he continue working with his current restrictions which include no lifting, no pushing, and no pulling. I do not believe he has reached maximum medical improvement. I suggest that he have the steroid injections, begin an exercise program and try traction. At this time I am not able to rate his disability.

(Exhibit 5).

Dr. Nissen's December 2, 1992, letter to Crawford & Company states, with respect to the February 14, 1990, injury, that the applicant's "condition is one that needs to be treated symptomatically. During the time I have treated Mr. Halverson he has reached points where he is relatively pain free for months at a time. His treatment schedule was one treatment per month, however, he has always had an exacerbation before a sufficient time period has lapse (sic) for MMI to be established. I have sent him to two specialists that have both said his condition will not improve beyond a certain point and that surgery is not an option for Mr. Halverson." (Exhibit 14 ). Dr. Nissen suggested that applicant obtain a less physically demanding job to slow his degeneration and prolong the time period between exacerbations.

On April 2, 1993, Dr. Snyder examined the applicant at the request of Crawford & Company. Dr. Snyder's April 2, 1993, report references a March 1992 medical note of Dr. Richard Gregory, a neurosurgeon from St. Paul, which indicated that the applicant reported chronic back pain problems since 1968. On examination Dr. Snyder found full, pain-free range of head and neck rotation. Limitations were noted in the lumbosacral area.

Dr. Snyder reviewed the February 1992, spine scans obtained at the diagnostic center in Hudson (Exhibit 8). According to Dr. Snyder, the films "show a grade I spondylolisthesis of L5 on S1 with bilateral spondylolysis of L5. In addition, there is narrowing of the disc at L5-S1 with `vacuum disc phenomenon' indicative of disc degeneration. At L4-L5 there is a small central disc herniation or contained annular tear, and there are hypertrophic spurs at the facet joints at that level. At L3-4 there is a diffuse disc bulge. There is also some mildly early sacroiliac degenerative joint disease. Disc bulges are noted at L3-4 and L4-5 as well." (Exhibit 3, p. 2).

Dr. Snyder's impressions were that Mr. Halverson suffered from L5-S1 spondylolisthesis, grade 1 to 2; lumbro sacral degenerative disc and joint disease, mild to moderate; and chronic lumbar strain. Dr. Snyder concluded: "Mr. Halverson's low back condition appears to be the result of multiple and repeated trauma episodes at his place of work. I cannot relate any specific aspect of his condition to the injury of February 14, 1990. It does not appear to standout from the other series of injuries that he has had." (Exhibit 3, p. 4). Finally, Dr. Snyder indicated his belief that applicant had a degree of permanent partial disability related to his work injuries.

A July 29, 1993, MRI from the Center for Diagnostic Imaging concluded that applicant had "juvenile discogenic disease with thoracolumbar Scheuermann's and prominent dehydration of all of the lumbar discs. There is Grade I lytic spondylolisthesis with moderately severe bilateral lateral stenosis with moderate to moderately severe up-down compression of the exiting L5 nerve root ganglia." (Exhibit 9). The physician who completed the diagnostic report found no "evidence of a lateral disc herniation or lateral bony stenosis in the proximal lumbar spine on the right to explain the applicant's right groin and anterior thigh pain."

Between July of 1993 and September of 1993, the applicant was temporarily totally disabled from work at Thomas & Betts. Dr. Nissen returned applicant to work gradually between September and December of 1993. Dr. Nissen imposed permanent work restrictions in her August 23, 1993 letter to Thomas & Betts (Meyer Industries) of no bending, no twisting, lifting/pushing/pulling limited to 40 pounds, may lean forward and backward with support, must be allowed to sit and stand as tolerated, and must have an anti-fatigue mat at his work station. (Exhibit 14). These restrictions were based, at least in part, upon an ergonomic analysis done by The Stenstrom Company at the request of Thomas & Betts. (Exhibit 11).

Dr. Nissen continued to treat the applicant, and her March 9, 1994, office note reflects that the applicant "felt good" until he took a one-hour car ride. "When he got out of the car got a sharp pain. Pain shot down the leg. Pain has gotten steadily worse in the back, radiates to groin and top of legs. Leg pain is improved." On March 24, 1994 Dr. Nissen's note reflects that applicant's "low back gave out yesterday. As he stepped off a curve (sic) almost fell to the ground." Dr. Nissen's June 6, 1994, office note reflects that applicant "has sharp pain on right S1. Shoots down leg." (Exhibit 14).

Dr. Nissen's June 7, 1994, WC-16 report related the applicant's ongoing complaints to the injury date of February 14, 1990, with numerous exacerbations. Dr. Nissen indicated he had never fully recovered. Dr. Nissen again indicated that applicant's condition would not improve and was expected to worsen. (Exhibit 14).

Applicant treated with Dr. Nissen in late August and early September of 1994. Dr. Nissen's September 5, 1994, office note indicates that the applicant was shaving in the morning "when he got a sharp stabbing pain 10/10 in his low back. Put him to his knees." Applicant had no leg pain.

Dr. Nissen completed another WC-16 on August 25, 1994, again relating the applicant's ongoing problems to the injury of February 14, 1990. (Exhibit 14). Dr. Nissen assigned a 15% disability rating. Dr. Nissen again indicated that applicant's condition would not improve and was expected to worsen. (Exhibit 14).

Dr. Steven Jackson, D.C., examined applicant on October 24, 1994, apparently at the request of Crawford and Company. In his November 22, 1994 report, Dr. Jackson indicated that applicant reported that his symptom complaints seemed to be getting progressively worse as the years pass. Dr. Jackson stated that the CT and MRI evidence indicated a chronic lumbosacral spine condition. Dr. Jackson was of the opinion that no amount of chiropractic treatment would alter the degenerative presentation of the sacroiliac joints and discs (although it would be reasonable for managing symptoms due to any future exacerbation) (Exhibit 7).

Dr. Nissen's January 23, 1995, office note reflects that applicant's low back was sore and his "neck feels stiff." On March 13, 1995, Dr. Nissen recorded that the applicant's pain was worsening, his legs and knees ached, and his "neck is sore. Arms falling asleep." (Exhibit 14).

On March 24, 1995, Dr. Nissen recorded that Halverson's "neck is sore and bothering him" and on March 27, 1995, recorded that the applicant coughed on Friday night and experienced shooting pain down both legs to mid thigh. Applicant reported improvement in early April but by mid and late April was again reporting low back and neck complaints. (Exhibit 14).

On August 7, 1995, Dr. Nissen recorded that the applicant's low back had been hurting since Saturday night "radiating around to front abdomen and up back to shoulder blades and neck." (Exhibit 14). On August 28, 1995, Dr. Nissen documented that the applicant's back was painful "tailbone to mid back" and that he had worked Saturday and got a sharp pain when he bent over. On September 6, 1995, Dr. Nissen recorded that his low back was sore on the right side with sharp pain and the right leg "doesn't feel like it will support him." (Exhibit 14). During the week of September 8, 1995 the applicant was crawling a lot at work which caused his back to hurt. (Tr. 11/29/99, pp.13-14)

On September 21, 1995, the applicant saw Dr. Sprangers with complaints of increased back pain after assignment to weld a large order of channel iron pieces. The applicant complained of right lower extremity radicular pain posterolaterally to the knee and on the left posterolaterally to the midthigh. (Exhibit 13, p. "48").

Dr. Sprangers assigned the applicant restrictions as of September 21, 1995, to work a full shift with sitting, standing, and walking equally during the shift and changing positions as needed for comfort. The applicant was restricted to lifting and carrying 10 to 20 pounds on a frequent basis and was told he should bend, stoop, twist and reach above shoulder level only on an occasional basis. (Exhibit 13, p. "49").

On September 22, 1995, Dr. Nissen's note reflects that the applicant "rolled over last p.m. felt a snap, was up all nite w/pain." The note goes on to record that the applicant "has shooting pain into testicles and down leg." (Exhibit 14).

On October 5, 1995, the applicant returned to Dr. Sprangers indicating he was much improved over his last visit. The applicant noted he had been assigned to the hardware department where he "developed a work area where he can sit or stand to do the regular job activities required there. He is no longer lying out large pieces of angle iron." (Exhibit 13, pp. "49").
Applicant continued to complain of low back pain in November of 1995. He also complained of neck pain on November 10, 1995, and soreness between his shoulders on November 27, 1995. (Exhibit 14).

On December 6, 1995, Dr. Lifson wrote to the applicant's attorney, and on page 2 of his December 6, 1995, letter/report noted:

1) Mr. Halverson's diagnosis as related to his low back condition is Grade I lytic spondylolisthesis at the L5-S1 level with moderately severe, bilateral lateral spinal stenosis and moderately severe up/down compression of the exiting L5 nerve roots. There is also evidence of multi-level lumbar degenerative disc disease and thoracolumbar Scheuermann's disease. His MRI shows prominent dehydration of all the lumbar discs.

2) I believe Mr. Halverson's exposure to a variety of injuries in the line of his work as a welder was a significant contributory factor in his symptoms. Obviously, his injuries are not causative factors for his problem. We all know that lytic spondylolisthesis is a condition that is developed in very early childhood. Multi-level lumbar degenerative disc disease is very difficult to explain on the basis of any work-related injury. Nevertheless, Mr. Halverson's job as a welder obviously required significant physical effort. In my opinion, it contributed to the development of his symptoms and was responsible for exacerbations of his low back pain.

3) Mr. Halverson definitely continues to have effects of his condition. At this point it is impossible to apportion between the significance of his pre-existing organic condition and any additional symptoms which were produced by his additional numerous injuries."

(Exhibit 6).

On July 3, 1996, Dr. Nissen recorded that Halverson "has right hand numbness bothering on and off for 1 month." (Exhibit 14). On July 17, 1996, the applicant saw Dr. Sprangers with continuing complaints of chronic low back pain. Dr. Sprangers' July 17, 1996, office note reflects "the patient states that his back is as bad as it has ever been." (Exhibit 13).
In a September 16, 1996, letter to applicant's attorney, Dr. Nissen stated, with respect to the February 14, 1990, injury: "I believe that Mr. Halverson has reached maximum medical improvement. Despite numerous treatment approaches Mr. Halverson's condition has not improved beyond a certain point. He feels better for periods of time but he always seems to exacerbate back to the same point." Dr. Nissen placed permanent restrictions of lifting, pushing, and pulling 25 to 30 pounds on a repeated basis and 50 pounds one time, maximum. Applicant was restricted to no forward or side bending, and limited standing of 30 minutes at one time, kneeling 30 minutes at one time, sitting 15 to 30 minutes at one time, and walking 30 minutes at one time. Dr. Nissen noted that these restrictions apply to leisure activities as well as work. Finally, Dr. Nissen noted that applicant's condition had no cure and that his "symptoms appear to have worsened and become more radicular in nature." (Exhibit 14).

Dr. Nissen's February of 1997 office notes document applicant's complaints of low back pain, radiating leg pain, and a neck which was "popping and cracking on rotation. Pain associated with it. Right arm is falling asleep. Three months on and off." (Exhibit 14).

In his report dated April 30, 1997, Dr. Snyder apportions, the total "contribution" of various dates of injury and their impact, in his opinion, on the condition of Mr. Halverson's back. The April 30, 1997, report from Dr. Snyder attributed the "percentage of injury to the incidents of injury described as follows: June 1972- 10%; December 1972-15%; April 1982-20%; October 1988-15%; June 1989-15%; February 1990-15%; September 1995-10%. I have not assigned any percentages of contribution to injuries that are simply described by the applicant in the medical records and for which there is no particular detail to delineate them. Therefore, I have not assigned any percentages of disability contribution to April or December 1983 or to October 1995 incidents." (Exhibit 4).

From the end of 1995 until April 29, 1998, the applicant did not miss any time from work due to work-related incidents or injuries. Applicant did miss work time for medical appointments. (Tr. 6/22/99, p. 39). Applicant testified that his back has always been getting slowly worse. Further, since the 1995 injury his legs and feet hurt and keep getting worse. (Tr. 6/22/99, pp. 40, 59-60). Doctors at the Mayo Clinic related his leg and feet problems to a vertebrae in his low back crushing a nerve root. (Tr. 6/22/99, p.42). Later applicant testified that no specific incident triggered his leg pains, which started in 1996. (Tr. 6/22/99, p. 82). Applicant testified that since 1995 his pain has been constant. It was not constant before 1995. (Tr. 6/22/99, p. 46).

Applicant treated with Dr. Nissen from December of 1997 through mid March of 1998, for various complaints including low back pain, upper back pain, mid back/thoracic pain, pain between the shoulder blades, and numbness in his right arm and hand. (Exhibit Q).

On April 29, 1998, the applicant returned to Dr. Sprangers. Dr. Sprangers recorded that applicant had attempted to move a 60 pound spool of welding wire from the floor to about mid-chest height and had a sudden onset of severe back pain, as well as exacerbation of his chronic low back pain, and left lower extremity radicular pain. Applicant complained of discomfort in a sciatic nerve distribution down the left lower extremity posteriorly to the ankle. (Exhibit 13).

Dr. Spranger's April 29, 1998, note indicated applicant had sustained a "low and mid back strain." Dr. Sprangers assessed applicant as suffering from degenerative joint disease, degenerative disc disease in the mid thoracic spine, degenerative disc disease and degenerative joint disease with spondylolysis and spondylolisthesis of L5-S1. Applicant testified that he reported pain in his neck, mid back, low back and numbness in his right hand. (Tr. 6/22/99, p. 15) Dr. Sprangers released him to return to limited work beginning May 4, 1998, with some restrictions, and referred him to Dr. Zondag at the Midelfort Clinic in Eau Claire (Exhibit 13). The first available appointment to see Dr. Zondag was June 9, 1998.

An April 29, 1998 x-ray of the thoracic spine found "mild kyphosis in the midthoracic region with small and moderate size spurs in this midthoracic area. These are interval changes from 1991. Some of the endplates are mildly concave. The T5 body has the least height. It also had the least height in 1991." (Exhibit G.)

Dr. Sprangers April 30, 1998, letter to Thomas & Betts clarified that the applicant's thoracic back pain was not a new injury. Dr. Sprangers opined this was a recurrence of an injury that first occurred on October 13, 1988, when applicant sustained a compression fracture at T5 when struck by a large metal tube while at work, with exacerbations in 1991 and 1998. (Exhibit 13).

The physical therapy evaluation dated May 1, 1998, noted that applicant's main complaint was in the midback area and numbness into the middle fingers on the right upper extremity. The therapist noted that the numbness into the right upper extremity began on April 30, 1998. Treatment focused on applicant's upper back. (Exhibit G). Applicant testified that he did not get any relief for his low-back pain because the physical therapists would not treat his low-back pain. Therapy did help his neck and shoulder. (Tr. 6/22/99, pp. 19-20).

Applicant had a follow-up visit with Dr. Sprangers on May 4, 1998, at which applicant again reported mid and low back complaints and pain going down his left lower extremity to his toes and on the right in the low back through the buttock just to the knee. (Exhibit AA). Dr. Sprangers recommended continued therapy and pain medication. (Tr. 6/22/99, p. 18). Applicant was released to full- time work, with restrictions, beginning May 5, 1998.

Applicant again treated with Dr. Nissen beginning on May 6, 1998. He reported he had been lifting a 50 to 60 pound ball of wire when he felt sharp pain in his lower back and between his shoulder blades. Applicant also reported pain in his legs and numbness in his right hand. (Exhibit Q). At the hearing applicant claimed he also reported neck pain (Tr. 6/22/99, p. 23).

On June 9, 1998, Dr. Zondag, a physiatrist at the Midelfort Clinic, first saw the applicant. Applicant stated that he was changing a metal spool on an automatic welding machine. The spool weighted approximately 50 pounds and while lifting it from a wagon to set it on the machine "he got an acute onset of pain which he did not experience before especially in his midback and his neck and some increasing pain in his low back for which he has had some difficulty with ongoingly." (Exhibit 16, p. "1"). Applicant also noted experiencing pain between the shoulders and numbness in his right hand. Dr. Zondag conducted an examination and reviewed applicant's medical history, including radiographic studies, and assessed among other things:

1. An occupational injury, new April 29, 1998. It appears to be initially a strain of the shoulder and a strain of the neck with some radiculopathy right leg.

2. Mechanical low back with multilevel degenerative disc disease of spondylolisthesis with some nerve root outlets known on EMG. He has bilateral C-5 radiculopathy which is chronic noted and proved on EMG. He has had a history of recurrent problems with significant changes of his back.

(Exhibit 16, p. "8").

In a follow-up visit dated June 30, 1998, Dr. Zondag indicates a diagnosis of "a strain injury with neck irritation and midback irritation. This is related with the April 29, 1998 (injury)." (Exhibit 16). Dr. Zondag goes on to state: "I feel that his low back problem is previously (sic) from a (sic) previous workers' compensation problems, and although they are highly contested, I think they are ongoing residuals from recurrent problems of injuries to his back concomitant from disc herniations, from the arthritic involvement from the injuries, and question whether he has a spinal canal stenosis especially in line of the leg cramping." (Exhibit 16, p. "9"). Dr. Zondag recommended a lumbar and thoracic myelogram and postmyelogram CT scan and a consultation with Dr. Manz, a spine surgeon.

The applicant returned to work but only lasted four hours due to the pain. Applicant last worked for two hours each day on or about July 5th and July 6th.

Dr. Zondag next saw the applicant on July 9, 1998, at which time applicant noted he had returned to work doing punch press work with labels and had an onset of increasing radicular pain of his neck and right arm with numbness in his hand and reduced mobility. Applicant also noted increasing pain in the thoracic area. (Exhibit 16, p. "9"). Dr. Zondag reviewed the July 2, 1998, myelogram. Dr. Zondag assessed "re-injury of the neck with a cervical disc disease and a re-aggravation of his compression fracture of the Thoracic area." Dr. Zondag recommended additional medication and treatment at a pain center and that the center "try to do a nerve root block and/or epidurals at the areas of impingement in his neck. The major impingement area by the myelogram last time appeared to be in the C4-5 area on the right hand side. This appeared to be the area above C3-4 C4-5 which had narrowing. He had also mild changes at the C6-7 which were mostly on the opposite side. Dr. Zondag further diagnosed "spinal canal stenosis secondary to his repeated injures. It appears that he has a disk bulging at L2-3 along with the facet changes in multiple areas" and "spondylolisthesis at L5 S1." (Exhibit 16, pp. 10-11).

On July 24, 1998, Dr. James Manz saw the applicant at the Midelfort Clinic at the request of Dr. Zondag. The July 24, 1998, note indicates that the chief complaints were "low back and bilateral lower extremity discomfort." (Exhibit 16, p. "12"). In the initial paragraph Dr. Manz recorded that the applicant "describes multiple areas that bother him which include his cervical, thoracic and thoracolumbar region and his low back and legs. He states that perhaps the most problematic to him is the area just around his thoracolumbar spine and his low back below his beltline with extension diffusely into both lower extremities, but principally posterolaterally into both thighs perhaps left somewhat greater than right. He feels that his leg symptoms are perhaps more problematic to him than his back symptoms." (Exhibit 16, p. "12"). Dr. Manz concluded that the applicant suffered from mechanical low back pain secondary to multi-level degenerative disc disease. Dr. Manz stated that if they could localize a specific area of the spine that seemed to be causing difficulty something might be done to intervene. At that time, however, Dr. Manz believed injections and conservative therapy would be the appropriate approach. Dr. Manz noted that the applicant was morbidly overweight (313 lbs.) and believed it imperative that applicant work on an aggressive weight reduction program. (Exhibit 16, p. "13").

The applicant also saw Dr. Zondag on the same day, July 24, 1998. Dr. Zondag listed applicant's problems as "neck and midback pain secondary to a strain" and "mechanical low back pain." Dr. Zondag's note reflects that the applicant was 6'4" tall and at least 306 pounds. Dr. Zondag noted that the applicant would have to lose 100 pounds before any type of intervention could be attempted. Dr. Zondag observed "it has been our experience with the weight loss in a gentleman like this, that he is going to be much more improved symptomatic both from the mid-back, the neck, and the low back situation." (Exhibit 16, p. "15")

On August 18, 1998, Dr. Zondag concluded that applicant could not return to competitive employment. Dr. Zondag noted applicant weighed 314 pounds and indicated that weight reduction was the important thing. Dr. Zondag concluded by observing: "it remains my opinion that he is not ready for light duty competitive employment as an employer (sic), although, he is getting some symptomatic improvement and certainly consideration if he had weight reduction, this would improve symptoms and we may give him another re-trial of this in a short period of time. His most important part right now is his weight loss." (Exhibit 16, p. "17").

When applicant saw Dr. Zondag on October 13, 1998, he weighed 289 pounds. Dr. Zondag's treatment note states:

The workup to this point has shown the following things on the studies that we have done. The bone scan showed that there was increase activity at the L5-S1 where he has a spondylolisthesis especially on the right anteriorly at the articulation and also shows some activity in the L2-4 area of the spinous processes. The patient did undergo a myelogram at my request. The myelogram shows in the cervical disc that there is discogenic changes at the C2-3. There is facet changes at C3-4 especially on the right hand side. At C6-7 there is discogenic changes and there is a small left paracentral disc protrusion noted there. At the lumbar there is noted that there is a significant spinal canal stenosis at the L2-3 with measurement being down to 6 millimeters. There is severe crowding of the nerve roots noted. At L3-4 there is some moderate stenosis there with decrease in size. The L4-5 shows a moderate bulge. The L5-S1 there is a moderate lateral recessed stenosis with degenerative disc disease both spinal canal stenosis as well as changes that are noted with the spondylolisthesis. The patient had a follow-up CT and this again showed the most significant changes being the spondylolytic changes throughout the spine, the arthritic changes throughout the spine, the canal stenosis at L-2 and L-3, and the spondylolisthesis grade I at L-5. The patient had in addition to this plain thoracic spine films down [sic] and these showed that he has degenerative changes at the T-5-6 area with the changes seen there. The patient has undergone epidurals of the cervical area. The epidurals of the cervical has helped to reduce some of the radicular pain and motion. He has had epidurals done and a partial block done of his thoracic and this has allowed him to have improvement in the thoracic type of pain along with the architect [sic].

A: MULTILEVEL DEGENERATIVE CHANGES BOTH OF THE CERVICAL SPINE, THORACIC SPINE, AND THE LUMBAR SPINE. This gentleman best fits under an occupational back problem. The patient's last day of work will be considered April 29, 1998. I feel this gentleman cannot return to competitive employment based upon the finding we have had of his back. He is equivalent to a person with a process called ankylosing spondylitis where they have their spines begin to get very arthritic and then fuse up. This man certainly has a equivalency of this. The findings at the present time from his April injury is that he has a degenerative disc condition especially of his mid neck of the C6-7 with some changes with some mild nerve root impingement. The patient has in his back and mid back degenerative disc change which is symptomatic at the T5-6 which has been improved with some facet joint disease and in the low back he has evidence of spinal canal stenosis at the L2-3 moderately severe and moderate at L4-5 and has findings at L5-S1 of a spondylolisthesis with degenerative disc and nerve root impingement.

P: As far as work goes, I feel Dorance can lift five pounds knees through his shoulder on a seldom basis approximately 10% of the time and no more than two hours a day. He can stand and walk on cement approximately 20-30 minutes at the most over an eight hour period of time. His sitting tolerance presently is approximately 20-30 minutes at a time approximately two hours a day with needing intermittent standing and sitting. His riding tolerance is approximately 45 minutes approximately two to three times a day. Basically by my viewing, this gentleman cannot return back to the work at Thomas & Betts as he is not able to return back to a half day job and basically could not work equivalent of approximately two hours competitively. I am concerned with his previous returns that he has had recurrent episodes only to have this thing aggravated and accelerated and presently given his multilevel changes and given his recurrent episodes of difficulty and given his life and his prognosis, I feel that only to return to reaggravate and reaccelerate is not going to be benefit to him, and I have recommended medical retirement and social security application. I feel he follows in a situation of Section 1.05(C.) with stenosis with evidence of pain that has been over six months, evidence of reduced range of motion, and finding in addition to this of some radiculopathy and some changes of the muscle mass. I feel at the present time in relationship with Wisconsin Administrative Code 80.32, Dorance has an equivalency of 25% of the LS spine. This is based upon 10% at the L5-S1 based upon the fact that he be equivalently a gentleman who would have to have a fusion with a discectomy and anterior and posterior. This would not resolve with his problems. This gentleman also has an equivalency of having an additional 15% because he is going to have to have a laminectomy or equivocal laminectomy for decompression at L2-3 and L3-4 and will have some ongoing mechanical changes.

The patient has an additional 5% permanency of the thoracic spine based upon the T-6 degenerative disc and mechanical back. The patient has an additional 8% of the cervical spine. This is based upon the C6-7 degenerative disc changes with the nerve root impingement. The patient will be given an equivalency to a laminectomy and fusion with some persistent radiculopathy at this point.

It is my opinion that Mr. Dorance Halvorsen (sic) will reach his plateau of healing as of October 30, 1998. That the level of work has been delineated above.

(Exhibit 16, pp. 20-21).

On October 29, 1998, Dr. Zondag authored a WKC-16B (Exhibit 15) in which he indicated the "Date of Traumatic Event (which led to occupational disease)" as 4-29-98. In describing the accidental event or work exposure he states:

"Mr. Halverson suffered from a series of work related injuries which were acquired as the result and an incident of working in his industry over an extended period of time. After each incident and period of disability, he returned to work (sometimes in a limited fashion). The subsequent exposure continued to cause progression of his problems and ultimately the exposure that culminated in the 4-29-98 incident caused his inability to work and therefore the total disability to manifest itself on 4-29-98."

Dr. Zondag expressed causation opinions of direct cause for the neck injury with the statement "It is my understanding patient did not have significant problems with his neck (only) prior to the 4-29-98 incident so the neck injury would be directly caused by this traumatic incident. Dr. Zondag found that the April 29, 1998, incident precipitated, aggravated and accelerated applicant's degenerative mid back and low back condition beyond normal progression. Dr. Zondag found that applicant's condition was due to an appreciable period of work place exposure and that such exposure was a material contributory causative factor in the condition's onset or progression. Dr. Zondag found applicant to be 100% disabled. Finally, Dr. Zondag noted that applicant had disability assigned to his low back before April 29, 1998, and suffered exacerbations that took him off work, but that he was always able to return to work until the April 29, 1998, injury.

IME Dr. Barron's medical opinion is contained in a February 25, 1999 report, (Exhibit 1). Dr. Barron reviewed applicant's medical treatment. Dr. Barron's report contains a "PHYSICAL EXAMINATION" section which states:

On examination the examinee is 6 feet 4 inches in height and weighs 300 pounds. During this examination he exhibits features of pain magnification.

I did a range of motion of the cervical spine. He is able to touch his chin to his chest. He extends his neck 45 degrees. There is 70 degrees right and left rotation. There is 75 degrees right and left side bend. He has excellent grip strength bilaterally. Straight leg raising tests are positive in the sitting position on the left side. They are positive in the supine position at 45 degrees on the left.

Sensory examination in the upper and lower extremities is normal. All the various motor groups in the upper and lower extremities are tested, and he has excellent strength. Reflexes at the biceps, triceps, brachioradialis, knee and ankle are +2/+2 and equal bilaterally. There are no areas of acute neck tenderness. There is no evidence of spasm.

Dr. Barron's opinion addresses applicant's various complaints. Dr. Barron's diagnosis of applicant's neck was `pain magnification with subjective complaints alone. There are no objective findings on this neck examination." Dr. Barron noted that while applicant related his neck condition to work "his initial visit with Dr. Sprangers on April 29, 1998, indicates that he only injured his lumbar spine. There is no mention of cervical complaints until June 9, 1998. It is also noted that Mr. Halverson had cervical spine complaints for many years prior to his April 1998 accident. Therefore, to a reasonable degree medical probability, I do not believe that he sustained any injury to his neck as a result of the April 1998, injury." Dr. Barron further opined that applicant's neck condition resulted from the February 14, 1990, injury and has simply followed a natural progression since that time. Dr. Barron found that applicant's neck complaints represented a manifestation of a prior condition and were unrelated to the April 29, 1998, injury. Due to the lack of objective findings Dr. Barron found no permanent disability related to the neck, regardless of causation.

Dr. Barron diagnosed applicant's throracic spine as a healed T5 compression fracture. Dr. Barron found the "thoracic spine condition is the result of his work exposure at Thomas & Betts secondary to an October 13, 1988, injury. While Mr. Halverson's history indicates that he did injure his thoracic spine at the time of his April 29, 1998, injury, the medical records do not substantiate his claim that there was an injury to his thoracic spine at that time. There is no mention of any thoracic complaints until June 9, 1998, well beyond the natural expected history for the incident described." Dr. Barron agreed "with Dr. Sprangers that Mr. Halverson's thoracic spine condition is just a progression of his 1998 injury and is not a new injury." Dr. Barron also found, regardless of causation, that applicant had no permanent partial disability to his thoracic spine.

Dr. Barron's diagnosis for applicant's lower back was "multilevel degenerative disc disease as well as spondylolisthesis at L5-S1." Dr. Barron found that applicant temporarily aggravated his preexisting, degenerative low back condition as a result of the April 29, 1998, work injury. Dr. Barron stated that applicant's "low back condition resulted from the February 14, 1990, injury and has simply followed a natural progression since that time. However, I also believe that he sustained a temporary aggravation of this condition as a result of the April 29, 1998, injury which resolved." Dr. Barron stated that he agreed "with Dr. Zondag that Mr. Halverson's current low back condition stems from a previous worker's compensation problems and is not related to the injury of 4/29/98." Dr. Barron found "the alleged work incident of April 29, 1998, temporarily aggravated his underlying low back condition beyond natural progression from which he recovered by October 13, 1998." Dr. Barron opined that applicant "has a two percent permanent partial disability to his lower back, regardless of causation." Dr. Barron found applicant could work full time but should not lift over 30 pounds or do repetitive bending from the waist on a repetitive basis. Dr. Barron stated that if "the spool of wire that Mr. Halverson reported lifting on April 29, 1998, exceeded his lifting restriction, in my opinion, I would agree that his failure to obey work restrictions imposed by treating physicians aggravated its cause and continued his disability beyond what would have occurred had he obeyed such restriction. The accident may not occurred [sic] at all if he had observed his lifting restrictions. However, I believe that as a result of this injury he only temporarily aggravated his preexisting low back condition and that he recovered from this aggravation by October 13, 1998. He has no residual problem relative to the April 29, 1998, injury." (Exhibit 1). Finally, Dr. Barron stated that if applicant lost weight "it is possible that he may feel better and may need less rigid restrictions. It would be speculative to comment on this issue further at this time."

In a May 18, 1999, response to Dr. Barron's opinion, Dr. Zondag stated:

As you may recall, Mr. Halverson was a 51-year-old right-handed male who was employed as a heavy material handler, welder, and fabricator for Thomas and Betts Company of Hager City, Wisconsin. They are a company that builds and manufactures steel poles for the electric transmission industry. He reports that this job, which he did for a number of years, involved the use of his body especially for lifting, pushing, pulling, reaching, and handling of heavy metal objects. It also involved working in unusual positions including bent positions, twisted positions, and reaching positions. It involved such things as malls, pry bars, mallets, wedges, and mechanical instruments to move and pry very large objects. The patient has had many injuries but the episode that presented on April 29, 1998, revealed that he was working with an automatic welder and he had to change a metal spool which weighed about 50 pounds. He stated he brought the metal spool over in a wagon. He then lifted it up to put it into the automatic welder, reached up, and had the acute onset of pain which he experienced in his mid back, neck and low back. It is to be noted that his initial care by his treating physician had focused on one area, his low back. Indeed, in my opinion, he had injuries to all areas with aggravations of his low back in addition to aggravation of his mid back problem and a new problem of a finding of a herniated disk not previously found before at the C6-C7 with some radicular-type pain. It is my opinion that Dr. Springer's [sic] note probably listed only the most symptomatic area and this had started to improve but he also had the other areas that continued to bother him.

Based upon my care, I find that Dorance had the following diagnoses in relationship with the injury or aggravation of a pre-existing problem or injury:

1) The patient had a cervical disk injury which is called a disk herniation and some radicular pain.

2) The patient had a reaggravation of a previous area of his mid back with a compression fracture and surrounding degenerative changes and reaggravated this.

3) In addition to this, the patient had progressive degenerative changes in his low back with multi-level degenerative disk disease with findings of chronic radiculopathy based on the EMG and based on changes found on both CAT scans and MRI.

*   *   *

Mr. Halverson does have objective evidence based upon nerve conduction studies from the Mayo Clinic. These include CTs, myelograms, and MRIs from both the Mayo Clinic and Midelfort Clinic. The objective evidence showed changes in the neck, cervical spine, thoracic spine, mid back, lumbar spine, and the low back. These include the new changes related to the April 29, 1999, [sic] at the C5-C6 area which were felt to be not age-related but related to an injury which caused the disk change. In addition, there has been a previous compression fracture rated with degenerative changes of the disk above this and below this as well as arthritis. It is felt that this traumatic injury reaggravated this. The patient has had ongoing problems with his low spine with multi-level degenerative disk disease with a finding of spondylolisthesis at L5-S1 and a finding of a nerve root compression at L5. There also was a finding of some mild spinal canal stenosis. These are all diagnoses related either from the injury of April or aggravation of the mid back or progression because of the many years of his working producing the multi-level degenerative disk disease, symptomatic spondylolisthesis, and degenerative disk with nerve root impingement.

It is my professional opinion that Mr. Halverson had previously recovered from his compression fracture and had previously been living with his low back condition, however, this little additional injury helped in producing his major difficulties. It was one that he was unable to return from. This is one injury this gentleman has had difficulty adjusting to and not having the ability to work is also an important part of his life.

It is my opinion, upon the length of care Mr. Dorance Halverson has had with me, that he is a very straight-forward blue-collar worker. He prides himself in being able to work and being able to provide income for his family. Due to Mr. Halverson's nervousness on his presentation sometimes, he would have given the appearance of one that would seem to be reflecting increased levels of pain. However, due to the large nature of the injury and by the difficulty he projects, he is really reasonable and honest. I feel this reflects his symptom- minimization from multiple years of chronic pain and his ongoing permanent residuals versus symptom-magnification. It is my opinion, based upon the reading of Dr. Barron's history and physical, that he has noted to place his claim for symptom-magnification. There is no psychological test no Waddell's test, or any other test, nor is there a good review of the objective evidence that I delineated above for him to make his opinion and, therefore, I do not concur with Dr. Barron's opinion.

It is my opinion that Mr. Halverson is unable to work more than two hours on a competitive basis because of his intolerance for prolonged standing and for his tolerance of walking only very short distances. He has an intolerance for riding more than 40-45 minutes in a vehicle and he can only do this two to three times a day. He has trouble lifting more than 10 pounds, best knees to shoulder, and the ability to be able to do even occasional bending, occasional twisting, reaching, pushing, and pulling at a very noncompetitive basis.

Based upon the injuries, the following are my restrictions based upon his injury area. If one reviews only his cervical injuries, I find that the patient has the following restrictions. He has to stay away from repetitive reaching at or above his shoulder. He has to stay away from repetitive use of his neck. He has to stay away from weights more than 10 pounds on a seldom basis, best close to his body.

Because of his thoracic injuries only, the patient will have to stay away from being in a bent-forward position, staying away from twisting and rotational activities, and from reaching activities. His weight limits will be placed to less than five pounds occasionally. In relationship to his low back, this gentleman will not be able to lift anything other than from his knees to his shoulders. He will have to stay away from activities in which he squats, kneels, bends at his back, and twists his back. His weight limits should be in a situation of 5-8 pounds on an occasional basis, best knees to shoulder. He will have to stay away from prolonged walking, standing, and sitting in relationship with the residual from his low back.

As I review the IME done by Dr. Barron, I have the following comments. The IME did not take into account the length the patient worked or the type of work that Mr. Halverson did. It does not take into consideration the review of the x-rays, EMGs, or other objective findings that were done. It is, in my opinion, that Dr. Barron makes his conclusions on less than full information that I had available to me and was available to him if he had been able to review and accept the findings that I had in my record. It is also my opinion that Dr. Barron did not accept the opinions of the Mayo Clinic physicians, accept the opinion of myself, and from the spine surgeon we had there. Mr. Halverson continued to work despite being on chronic pain medicine and that this gentleman tended to be a symptom-minimizer trying to do work through his pain rather than a symptom-magnifier based upon his use of high levels of medicines such as Neurontin for him to try to return to work and continue to work. It is to be noted that he was in a modified work situation at the time he was home. It is felt, at this point, that if Mr. Halverson would return to work and have another injury, he may be bound to a lower level of life such as housebound or wheelchair-bound. I felt this is not appropriate and I felt that medical retirement was the most appropriate recommendation that we could make for Mr. Halverson at this point.

Therefore, in conclusion, it is my opinion Mr. Dorance Halverson had a work injury which produced an injury to his neck in April 1998. He had an aggravation beyond normal of his thoracic spine in which he had previously been injured and this is well-documented with the changes in his thoracic spine with no improvement. He had symptomatic disc changes and symptomatic arthritis. It is also my opinion that the occupationally-induced injuries to his low back and the multiple injuries before are well-documented from the reinjury which produced an occupational back condition which progressed to the point where he is not able to return to competitive employment. The permanency that is delineated in my records I feel are reasonable in relationship with his multi-level injuries. The patient is not a surgical candidate because of the multi-level injuries that are involved.

(Exhibit M).

A. NECK

There are opinions from Dr. Zondag and from Dr. Barron regarding whether the applicant suffered a compensable neck injury as a result of the April 29, 1998, incident. Dr. Zondag opined that there was a new injury to the neck directly caused by that incident. This opinion is expressly dependent upon his understanding that the applicant "did not have significant problems with his neck prior to 4/29/98 incident." (Exhibit 15) The record contains references to neck pain dating as far back as June 6, 1990 (Exhibit 14). In his testimony at the hearing in this matter, applicant testified that he had not suffered as severe neck pain (or mid back pain) before 4/29/98 (Tr. 6/22/99, p. 17). He would receive treatment from Dr. Nissen for his neck when treating for his back and usually she resolved it on the spot. (Tr. 6/22/99, p. 47). Thus, applicant did not deny prior neck pain, but claimed its severity increased after the April 29, 1998, incident.

Dr. Barron (Exhibit 3) expressed the opinion that applicant did not suffer a neck injury on April 29, 1998. Respondents argue this opinion is more credible considering the applicant sought treatment with Dr. Sprangers on the date of injury (4/29/98) and made no mention of neck pain. In fact, the only complaint was of chronic low back and left leg radicular pain (Exhibit 13). If the applicant reported neck and mid-back pain, as he claims in his testimony (Tr. 6/22/99, p. 15), this was not referenced in the doctor's notes. Further, by the April 24, 1998, visit with Dr. Manz, the chief complaint was "low back and bilateral lower extremity discomfort." (Exhibit 16, p. "12"), and according to IME Dr. Barron on February 25, 1999, there was no objective evidence of a neck injury (Exhibit 3). The applicant's testimony was that the neck symptoms were helped tremendously by the pain clinic (Tr. 6/22/99, p. 46), or as applicant responded to a question by his attorney the treatment had helped the neck "a little bit." (Tr. 6/22/99, p. 47). Applicant testified that he still has neck pain, but noted the injections he had helped a lot. (Tr. 6/22/99, p.101.) Applicant acknowledged he had occasional problems with his neck before 1998 but testified that it always resolved. (Tr. 6/22/99, p. 101).

Respondents argue that Dr. Zondag's opinion of a traumatic neck injury was based upon an inaccurate history and must be discredited. Pressed Steel Tank Co. v. Industrial Comm., 255 Wis. 333, 335 (1949). The commission disagrees. First, Dr. Zondag's opinion was that the applicant did not have "significant problems" prior to April 29, 1998. Second, Dr. Zondag holds to his opinion after reading Dr. Barron's report that recites prior neck complaints. Indeed, Dr. Zondag opines that the medical notes were focusing on the most symptomatic areas. Third, Dr. Barron found that there are no objective signs of a neck injury and applicant was magnifying his symptoms. Dr. Zondag's response credibly refutes both findings. Further, Dr. Barron's opinion is reached after a one time rather cursory looking physical examination of the applicant.

Dr. Zondag also found that applicant had suffered an occupational disease. The respondents argue that there is no analysis on the part of Dr. Zondag that would identify the nature of the work place exposure he believes was causative of the neck injury. The commission again disagrees. Dr. Zondag's May 18, 1999, letter clearly shows his understanding of applicant's job duties and their effect on his preexisting conditions. Indeed, it is Dr. Barron who gives no indication that he was aware of applicant's job duties and considered how those duties may have affected his preexisting condition.

B. MID-BACK

The objective finding with reference to the mid-back is a compression fracture dating to 1988. Dr. Zondag has concluded that there was a permanent aggravation of the earlier thoracic injury and an occupational disease claim for the mid-back. (Exhibit C)

Respondents rely on the fact that the applicant was asked on cross-examination to identify the changes in his symptoms that he noted following the April 29, 1998, incident. No mention was made of his mid-back complaints (Tr. 6/22/99, pp. 116-117).

Respondents state that Dr. Sprangers (Exhibit 13, April 30, 1998 correspondence) and Dr. Barron (Exhibit 3) each concluded that any thoracic complaints that the applicant might have related to the earlier 1988 injury at which time applicant sustained a compression fracture. However Dr. Sprangers actually said that the mid-back pain was due to an injury suffered in 1988 with exacerbations in 1991 and 1998. Applicant acknowledged he had occasional problems with his mid back before 1998 but testified that it always resolved. (Tr. 6/22/99, p. 101)

Once again, Dr. Zondag's recitation of applicant's work duties support his opinion that the work exposure was a cause of and/or aggravated his condition beyond its normal progression.

C. LOW BACK

In his assessment on June 30, 1998, Dr. Zondag concluded that the low back condition related back to the previous worker's compensation claims (Exhibit 16, p. "9"). Later, and in particular after viewing changes shown by a myelogram, Dr. Zondag found the applicant suffered from an occupational back disease with a last day of work of April 29, 1998 (Exhibit16, p. "20").
Respondents argue that Dr. Zondag's opinion of a permanent aggravation of the low back injury is inconsistent with the applicant's testimony that the low back complaints following the 1998 incident were unchanged from the prior condition: "The low back hasn't changed. It hurt - in '93; it still hurts." (Tr. 6/22/99, p. 119). However, the fact that the applicant was in pain before and after 1998 does not lead to the conclusion that no structural change has occurred or that the exposure following the 1995 injury was not a material causative factor in his disease and disability. Dr. Zondag indicated that the radiographic studies showed structural change. Further, what change has occurred, as noted by Dr. Zondag, is that applicant can no longer return to work.

The applicant did indicate that his leg symptoms had worsened following the 1998 incident; in that he could not stand on concrete for prolonged periods of time (Tr. 6/22/99, p. 119-120). The records, however, document radicular symptoms dating back to March 8, 1990 (Exhibit 14), and the applicant testified that his leg pain had worsened progressively from 1996: "Basically the legs, the feet were just in constant pain and nothing relieved it." (Tr. 6/22/99, p. 59). Later, the applicant distinguished between two types of leg pain. One type of leg pain affected mostly his left ankle and foot and was treated in 1995. That pain was diagnosed by Dr. Lifson as tendonitis unrelated to his back. Beginning in June or July of 1997 he started experiencing radicular-pain shooting from his hips down to his toes. In an EMG in October of 1997 a Dr. Banks at the Mayo clinic discovered that he had a pinched nerve in his low back. He continued to work as a welder during this time. Thus, the radicular pain began after the September 8, 1995, injury but before the April 29, 1998 injury. (Tr. 11/29/99 at pp. 8-12).
Dr. Barron opined that the April 29, 1998, incident resulted in nothing more than a temporary aggravation of the applicant's pre-existing low back condition (Exhibit 1). Dr. Barron's opinion relates applicant's low back problems to a chronic condition for which the applicant had treated numerous times over as many as 30 years.

Respondents' position is that as long as applicant suffered constant pain his condition has not been permanently aggravated beyond its normal progression. Of course, Dr. Zondag's notes indicate changes in his back which he attributes to applicant's employment.

While applicant treated for his back from 1990 to 1995 and thereafter, the pain was occasional not constant. (Tr. 11/29/99, pp. 21-22). From September 8, 1995, until April 29, 1998, he continued to have good days and bad days with respect to his low back. (Tr. 11/29/99, p.23). Since the April of 1998 incident there are no days that he is painfree. (Tr. 11/29/99, p. 26). Applicant's wife confirmed that since April of 1998 he has been in constant pain. (Tr. 11/29/99, pp. 38-40).

II. DISCUSSION

Respondents argue that Dr. Zondag's WKC-16B provides contradictory opinions with reference to the causation of the claimant's injuries. Dr. Zondag opined that the April 29, l998, episode was a traumatic incident which directly caused the neck injury and which caused the mid- and low-back injuries by precipitation, aggravation and acceleration of the pre-existing conditions at those levels. In the alternative, the doctor has opined that these various injuries were not the result of a traumatic incident but were, rather, caused by an appreciable period of work place exposure. However, the methods of causation are not necessarily mutually exclusive and actually make sense in this case where a distinct event causes a direct injury and aggravates a preexisting injury.

Whether a period of employment or work-related incident in combination with the employment materially contributed to a pre-existing condition resulting in disease and disability is not merely a matter of symptomology. In this case Dr. Zondag offered the medical opinion that the applicant's employment, and in particular the date of injury of April 29, 1998, resulted in applicant's inability to return to work. This is the valid distinction between applicant's condition due to pre-April 29, 1998, injuries and his condition due to the subsequent employment and the April 29, 1998, injury.

The applicant had pre-existing conditions unrelated to his employment with the employer such as multi-level degenerative disk disease and Scheurmann's. Further, clearly by the time of the September 1995 injury he had a date of injury for his occupational back condition. Neither the pre-existing conditions nor the pre-existing work condition compromised on July 8, 1998, standing alone or combined bar the applicant from further recovery. If an appreciable period of workplace exposure causes the progression of an underlying disease process, that exposure is causally-related to the additional disability under a theory of occupational disease.

The applicant compromised only two dates of injury -- September 8, 1995 and February 14, 1990, and not any future claims he might have for subsequent injury. Further, the symptoms applicant had in 1998 are not necessarily the symptoms caused by the two compromised dates of injury. Applicant had continued to work for the employer following the 1995 date of injury to the July 8, 1998, compromise date. His condition continued to deteriorate.

The commission finds Dr. Zondag's opinion that applicant sustained a new injury traumatically by virtue of the April 29, 1998 lifting incident and through his occupational exposure from 1995 to 1998 to be more credible than Dr. Barron's opinion. The commission is particularly persuaded by Dr. Zondag's May 18, 1999, response to Dr. Barron's opinion. (Exhibit M).

The respondents cite Zurich Gen. Acc. & Ins. Co. v. Industrial Comm., 203 Wis. 135, 223 N.W. 772 (1930) and Eisner v. Wis.-Pack, Inc., WC Claim No. 87-044815 (LIRC Feb. 14, 1991), for the proposition that in order for the claimant to again recover for an occupational back, there must have been a recovery together with continued exposure and renewed disability. Respondents argue there was no recovery, and in fact, there was no plateau, as applicant's low back and leg symptoms never improved, and in fact worsened during the period of 1995 to 1998. The respondents further argue that the fact that the applicant returned to work for a time following the 1990 or 1995 date of injury for the occupational disease does not mandate a finding of a later date of injury because "by definition, use of the phrase `first date of wage loss' implies that there may well be a later date of wage loss as well. This would include an ultimate inability to work at all. See General A. F. & L. Assur. Corp. v. Industrial Comm., 221 Wis. 540, 266 N.W. 266 (1936)."

It is true that both Zurich and Eisner refer to a recovery. The court in Zurich stated that:

. . . If the disability is partial and there is a recovery and a subsequent disability with subsequent exposure, then it will be necessary for the commission to determine whether the subsequent disability arose from a recurrence or is due to a new onset induced by a subsequent exposure. If it finds that the disability is due to a new onset, the employer and the carrier on the risk at the time the total disability manifests itself shall be liable accordingly.

Zurich at 147.

The court's use of the word "recovery" was to describe a situation in which the commission would be required to determine if disability with subsequent exposure was caused by the subsequent exposure or was simply a manifestation of the prior disability. Further, recovery does not necessarily mean complete relief from symptoms or reaching a permanent level from which an individual does not decline. The commission does not agree that ongoing symptoms means no "recovery" has occurred. Certainly in one case recovery might mean a complete resolution of symptoms. In another case recovery may mean the symptoms remain constant. To argue that one who has an occupational disease must somehow be "cured" or demonstrate that the disease is not progressing does not allow for the fact that some diseases by their nature progressively worsen and/or later employment may aggravate and accelerate a condition beyond its normal progression but for the subsequent exposure. A return to work can in fact be considered in determining whether recovery has occurred. See e.g. Kugel v. Riverwood International Corp., WC Claim No. 1998022165 (LIRC Jun. 21, 2000).

Both vocational experts agreed that based on the opinion of Dr. Zondag, the applicant is 100% disabled from gainful employment. The commission therefore finds that the applicant is 100% permanently totally disabled as of April 29, 1998. The insurer on the risk at that time, Traveler's Indemnity, is liable for the applicant's disability compensation and medical expenses.

III. UNREASONABLE REFUSAL TO SUBMIT TO TREATMENT

The respondents next argue that applicant is not entitled to recovery because he exceeded his 50# lifting restriction when he injured himself. The respondents liken such action to an unreasonable refusal to submit to treatment under Wis. Stat. § 102.42(6) in that applicant was negligent in lifting a 60 pound object. Mr. Clare, production superintendent, testified that he told the applicant not to lift the spools because they exceeded his restrictions. (Tr. 11/29/99, p. 50). Applicant acknowledged he was told not to lift the spools but denies being told it was because it exceeded his restrictions. (Tr. 6/22/99, p. 96). The applicant testified that he thought the spool weighed 50 pounds. (Tr. 6/22/99, p. 52). At the very least to be unreasonable the failure must be knowing. Finally, the Worker's Compensation law does not recognize employee negligence as a defense or bar to a claim.

Pursuant to Wis. Admin. Code § DWD 80.43(3) the fees of Attorney Wiebusch are limited to the first 500 weeks of compensation. The applicant is entitled to the sum of $1,301.65 per month from April 29, 1998, to December 1, 2007. Attorney Wiebusch is entitled to the sum of $375.42 per month until December 1, 2007. Commencing January 1, 2008, the applicant is entitled to the sum of $1,627.07 per month for life. There may be an entitlement to a social security offset.

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed. Accordingly, within 30 days of the date of this order the respondent and its insurer shall pay to the applicant, Dorance Halverson, the sum of forty-three thousand four hundred ninety-eight dollars and ninety-five cents ($43,498.95), to Attorney Lisa A. Wiebusch, the sum of twelve thousand sixty-five dollars and forty-two cents ($12,065.42) as attorney's fees, plus the sum of four thousand seven hundred sixty-two dollars and seventy-five cents ($4,762.75) as costs.

Beginning on June 28, 2001, and continuing on the 28th day of each month thereafter until the compensation is paid through December 1, 2007, or the date of the applicant's death (whichever occurs first), the employer and its insurer shall pay to the applicant the sum of one thousand three hundred one dollars and sixty-five cents ($1,301.65) per month, and to Attorney Wiebusch the sum of three hundred seventy-five dollars and forty-two cents ($375.42) per month. Commencing January 1, 2008, the employer and its insurer shall pay to the applicant the sum of one thousand six hundred twenty-seven dollars and seven cents ($1,627.07) per month for life. There may be an entitlement to social security reverse offset.

The following medical bills shall be paid by the insurance carrier: Ellsworth Chiropractic Clinic, the sum of two hundred sixty dollars and thirty cents ($260.30); and to the applicant the sum of one hundred forty-seven dollars and thirty cents ($147.30) in reimbursement for out-of-pocket expenses.

Credit may be taken for any amounts previously paid. Jurisdiction is reserved for such further findings, orders and awards as may be warranted.

Dated and mailed May 22, 2001
halvedo . wrr : 132 : 6 : ND § 3.4  § 5.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did discuss witness credibility and demeanor with ALJ Clarke. ALJ Clarke indicated that he found the applicant, who he noted he was able to observe on a number of occasions, to be an honest and straightforward individual. The commission agrees with ALJ Clarke's credibility assessment. The medical evidence and the applicant's character simply do not coincide with Dr. Barron's assessment of the applicant, and in particular Dr. Barron's assessment of symptom magnification. The commission does not accept Dr. Nissen's 15% disability rating as she had previously indicated she was not qualified to rate applicant's disability but later did so without explanation as to how or why she was then qualified to do so. Disability rating such as that provided by Dr. Snyder and the prior compromises do not permit apportionment of liability.

cc: 
Attorney Lisa Wiebusch
Attorney John Griner

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(1)( Back ) On June 9, 1998 the applicant signed a compromise agreement with the State Fund for an occupational back claim for injuries related to work incidents prior to December 31, 1986. 

uploaded 2001/06/21