JOHN ROYSTON, Applicant
BALL PACKAGING CORP, Employer
UNITED STATES FIDELITY & GUARANTY CO, Insurer
FIDELITY & GUARANTY INSURANCE CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed.
Dated and mailed June 12, 2001
roystoj . wsd : 101 : 1 ND § 3.4
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
The applicant was born in 1952. He has worked for the employer, a company that makes cans, since 1988. The employer describes him as a very good employee.
When the applicant began working for the employer in 1988, he was a line operator. In 1996 or 1997, the applicant became a "maintainer," with duties similar to those of line operator. The applicant's description of his job duties is at exhibit C. The applicant also testified that the work involved helping the mechanic if the line goes down. Indeed, his description indicates that during his employment with the employer he worked about 6.5 hours a day on "line operator duties" and 2.5 hours a day as a mechanic. (1)
According to exhibit C, perhaps the heaviest part of the line operator job would be pushing and pulling pallets of metal sheets to a "slitter" machine which cut the sheets into various lengths as part of the can-making process. The pallets held 900 sheets, and the loaded pallet (which itself sat on a dolly or metal rollers) weighed about a ton. In order to move them, the applicant reports he had to push with 75 percent of his strength with knees bent and back bent at a 45-degree angle. He pushed seven pallets a day, or perhaps up to 12 if he worked overtime.
Once the applicant got the pallet to the slitter, he would use the machine to cut the metal sheets. On average, 6 or 7 sheets would jam in the machine. To unjam a sheet, the applicant would have to pull with 75 percent of his strength on the sheet to unjam it. This job also involved lifting 45-pound boxes of can ends 45 times an hour. Given his other duties, the commission assumes the applicant loaded can ends for only a portion of the day. The applicant summarized the line operator work as:
"In the 11 years I worked at Heeking Can-Ball Corp, I worked an average of 6« hours in an average day as a line operator-mechanic helper. This work involved bending, twisting, straining and lifting hundreds of times a day, and thousands of times a week."
The mechanic duties, which the applicant performed coincidentally with the line operator work, included climbing into and under the various machines used to make cans. The job involved constant bending at the waist, and straining to half of his strength with hand tools and wrenches. Twice a week he'd load a 300 pound barrel and move it 75 feet by cart. He did this work on average 2« hours per day.
The applicant admitted that robotics were installed at some point, and that these changed his duties with respect to loading the body-maker. Apparently, loading this machine was now done by the robots, rather than by hand. The effect, if any, of the robotics on the pallet moving, the machine unjamming, the can-end dumping, or the mechanic work is not clear.
The applicant had back problems preceding his employment with the employer. Exhibit 7 includes medical notes documenting a back injury in January 1979 from attempting to stop a pallet that was slipping off a truck onto a loading dock while working for a different employer. An acute lumbar strain was diagnosed.
In 1984, the applicant was in an accident where he fell about 20 feet down a ladder and fractured his heels. While the October 1987 chiropractic notes, particularly, seem to associate the applicant's back complaints with the fall, none of the various medical experts who have offered opinions in this case specifically associate the applicant's current disability at issue now with that fall in 1984.
In October 1987, while the applicant was working for another employer (Klinke Cleaners), Stuart Turner, M.D., saw him, for the sudden onset of pain that gradually built up over the course of an hour or two of lifting some heavy objects. At this time, he told his doctor he had "thrown his back out" several years earlier, but had not had back pain since.
In 1988, as noted above, the applicant switched jobs and began working for the employer or its predecessor in interest. Then, in February 1990, the applicant returned to his family doctor with complaints of back pain. A physician's assistant noted the same type of problem that had led to the prior hospitalization and a CT scan. A few days later, on February 23, 1990, the applicant saw his family doctor, George Benton, M.D. Dr. Benton's note describes an accident at work on February 16, 1990, when the applicant felt a snap while leaning across a pallet. Imaging scans showed a small protrusion at L4-5 and a large herniation at L5-S1.
The applicant underwent extensive treatment, following this injury, including laminectomy, a failed percutaneous discectomy, and a repeat laminectomy. The applicant was eventually able to return to work in late 1991, and restrictions were set. In addition, one of his treating surgeons, Dr. Welch, rated permanent partial disability at 14 percent.
After some treatment in 1995, the applicant resumed treatment with his family doctor in April 1997, complaining of recurrent back pain. On examination, the family doctor noted a positive straight leg raising test, and depressed reflexes on the right side. He ordered an MRI. It was done on April 25, 1997, and showed a recurrent disc at L4-5. On May 19, 1997, the applicant underwent another laminectomy-discectomy to remove a recurrent disc herniation at L4-5.
Both parties submit expert medical opinion regarding the cause of the applicant's current back problems.
Treating doctor Welch's first opinion, written in December 1991, after the injury while the applicant leaned across or lifted the pallet in February 1990, is at Exhibit A. It states that that accidental event directly caused the applicant's disability, which was treated by two laminectomy surgeries and the unsuccessful percutaneous discectomy. The doctor rated functional permanent partial disability at 14 percent for foot and leg pain, foot weakness and numbness, limited back motion, and weakness and lack of endurance in the back.
Dr. Welch's second opinion, written in July 1997, finds causation of disability by occupational disease, and explains:
"Occupational back injury, with repetitive bending, twisting, lifting and straining; patient had acute injury to his back on 2/16/90 and continued on repetitive job to date with cumulative trauma and resulting deterioration of his back for which patient has had four surgeries."
This report lists a last day of work, and first day of "most recent" disability from work as April 11, 1997. At the time of the report in July 1997, the doctor considered the applicant to remain temporarily disabled, and noted the applicant was still recovering from the May 1997 laminectomy, and that treatment was continuing.
Dr. Welch issued another practitioner's report on March 6, 1998. See Exhibit B.
Attached to this report is the first FCE that Dr. Welch wrote after the February 11,
1998, office visit, in which Dr. Welch opined the applicant could not work. In the
March 1998 practitioner's report, Dr. Welch listed causation both by acute injury
based on the February 16, 1990, pallet incident and by occupational disease with
a date of injury on the last day of work in April 1997. His description of the
occupational exposure causing disability was the same as set in his July 1997
report. He rated permanent partial disability from the injury at 20 percent to the
person, for back and leg pain, radiculopathy, and weakness in the back and leg.
He noted, however, his previous assessment of permanent partial disability at
14 percent following the surgeries in 1990 and 1991.
Then, on March 17, 1999, Dr. Welch issued yet another practitioner's report. See Exhibit C. Dr. Welch again opined causation was by occupational disease, and again gave the narrative explanation set out above. However, he listed a "most recent last day of work" as being November 16, 1998. The doctor, when asked to describe the permanent work restrictions responded:
"I really do not see patient getting back to any type of work that involves any sort of use of the back."
At this point, he opined the permanent partial disability was 23 percent, which he rated for severe back pain, limited range of motion, lack of endurance in back, and back weakness. With regard to disability, the doctor noted the prior assessment of 14 percent for the February 1990 injury, and opined the applicant now had an additional 23 percent permanent partial disability.
Dr. Welch issued a final practitioner's report on May 28, 1999; this essentially restated the opinions in the prior report of March 17, 1999.
The file also contains a report from an independent medical examiner retained by the respondent, Thomas J. O'Brien, M.D., dated February 9, 1998. Exhibit 12. Dr. O'Brien did a file review; he never actually examined the applicant. His opinion, in short, is that he does not think the applicant has any disability related to work activities with the employer. He did rate permanent partial disability at 15 percent, regardless of causation.
Dr. O'Brien's diagnostic impression was degenerative disc disease at L4-5 and L5-S1. The doctor noted symptoms going back to 1987. He states that disc herniations at L4-5 and L5-S1 were shown in the CT scans from 1988, though as pointed out by another IME, the November 1987 and March 1988 scans showed only a herniation or protrusion at L4-5 and bulging at L5-S1. Dr. O'Brien goes on to observe that thus the degenerative disc disease and herniated discs predate the February 1990 injury.
IME O'Brien goes on to report that it is very common for patients with degenerative disc disease, as well as herniated discs, to experience waxing and waning low back symptoms with little or no trauma. He further explains that degenerative disc disease occurs when both the tough outer layer (the annulus fibrosis) and the inner jelly-like part (the nucleus pulposus) dry out, causing the disc to become less effective as a cushion, generate pain, and lead to disc herniation.
Dr. O'Brien then went on to opine that the disc herniations at L4-5 and L5-S1 were responsible for the applicant's back and leg pain in 1987 and 1988. The problem, Dr. O'Brien continued, responded to non-operative treatment leading to resolution of the symptoms. Dr. O'Brien explained that what happens is that the nucleus pulposus dries out further, and shrinks, reducing the pressure on the nerve root that is causing the pain. However, the annulus is still weak where the herniation occurred, and it is common to have recurrent symptoms with little or no trauma. Thus recurrent disc herniation can be regarded as the normal course of the pathology of degenerative disc disease and the herniated disc resulting from the disease process. Accordingly, the increase in or recurrent symptoms in February 1990 and April 1997 were not the result of work activities but of the normal progression of his underlying disc disease, aggravated by three surgeries.
The respondent also offers three reports from Stephen Weiss, M.D., who actually examined the applicant. In his first report, dated October 30, 1998, he offered the following synopsis of the applicant's treatment:
"[The applicant] had an original onset of back pain in 1979, but he did well until October 1987, when he lifted a laundry bag and developed low back and leg pain. A CT scan showed an L4-5 disc on the left side and a bulge at L5-S1. A repeat myelogram in March 1988, produced the same findings. On February 23, 1990, [the applicant] lifted a pallet and herniated a disc at L5-S1. This was confirmed by a subsequent MRI, which noted a large L5-S1 herniation. [The applicant] underwent laminectomy and disc excisions at both levels in August 1990. Because of continued complaints of pain, he underwent a repeat laminectomy and disc excisions at both levels in February 1991. He continued to have episodes of pain and repeat MRI scans were performed in October 1995, without significant new findings. His symptoms increased in early 1997 without new injury. An MRI taken at that time showed a recurrent herniated disc at L4-5. On May 23, 1997, [the applicant] underwent a disc excision for L4-5 only.
"On current examination, [the applicant] exhibits moderate spasm, restriction of motion and EHL weakness on the left side (which is indicative of an L4-5 disc problem.)"
Dr. Weiss diagnosed a herniated disc at L4-5 secondary to a work incident of October 1987, a herniated disc at L5-S1 secondary to a work incident of February 1990, and status post the various surgeries outlined above.
In response to a question regarding causation, Dr. Weiss explains:
"It appears that [the applicant] does have a pre-existing degenerative condition dating back to 1979. However, it does appear that this was permanently precipitated, aggravated, and accelerated beyond normal progression by the disc herniations at L4-5 (due to the 1987 incident) and at L5-S1 (due to the 1990 work incident). I do not believe that Mr. Royston's work activities were a material contributory causative factor in the progression of his condition. Nor, do I believe that a new traumatic injury was sustained in April of 1997. I believe the symptoms he presented with in April of 1997 represented a normal progression of the L4-5 disc herniation (1987 work injury). Therefore, in my opinion, the May 1997 surgery was necessitated by the 1987 work injury."
Dr. Weiss went on to rate permanent partial disability at 29 percent compared to disability to the whole body. Regarding the 1987 work injury causing an L4-5 disc herniation, he assessed 15 percent for the various surgeries and for the EHL weakness. For the 1990 work injury causing a L5-S1 herniation, he assigned an additional 10 percent for the L5-S1. Finally, he assigned an additional 2 percent, attributable equally to both injuries, for moderate to severe spasming.
Dr. Weiss re-examined the applicant on February 9, 2000. Thereafter, he issued a report on February 16, 2000, and one on February 17, 2000.
In his February 17, 2000, report, IME Weiss noted that the applicant's condition had deteriorated since the doctor saw him in October 1998. Asked specifically about whether the applicant's condition was the result of occupational disease (that is, caused by an appreciable period of work place exposure that was either the sole cause of his condition or a material contributory causative factor.) Dr. Weiss opined it was not, explaining:
"I do not believe [the applicant's] back condition deteriorated as a result of his work activities, as he did not do the continuous repetitive heavy lifting, particularly in a bent position, which has been implicated as a cause of disc herniations and disc degeneration. In my opinion, his current condition represents a normal progression of his L4-5 disc herniation suffered in 1987."
Exhibit 1, report of Weiss, page 7.
The ALJ adopted Dr. Welch's opinion, and found a work injury from occupational disease with an April 11, 1997, date of injury. She noted that IME Weiss's contrary opinion assumed the applicant did not perform continuous repetitive heavy lifting at work. In fact, the ALJ concluded, the applicant did repetitive heavy work, in a bent position, when he worked as line operator from 1991 to 1997. She concluded, as did Dr. Welch, that that employment was at least a material contributory causative factor in the progression of the condition which may have had its genesis in the 1987 and 1990 injuries.
The respondent appeals. It argues first that the applicant's work exposure from 1991 to 1997 was not a material contributory factor in the onset or progression of the applicant's disabling condition, because:
Alternatively, the respondent argues that, in the event an occupational disease theory of causation is adopted, a 1990 date of injury should be used based on the first day of wage loss from the occupational disease.
The commission acknowledges that simply because a traumatic work injury to a back results in degenerative disease, the condition does not necessarily become an "occupational disease" for worker's compensation purposes. Rather, what is necessary is subsequent work exposure that is a material contributory causative factor in the progression of the condition. In this case, if the applicant's work after the 1990 injury was not a material contributory causative factor in the progression of his degenerative disc disease, his claim for disability based on occupational disease with a 1997 date of injury must be dismissed.
Dr. Welch, of course, opines that the applicant suffers from occupational disease, and that his work exposure was a material contributory causative factor in the progression of the applicant's condition. IME Weiss holds the contrary opinion. Like the ALJ, the commission finds Dr. Welch more credible on this point.
The respondent attempts to undercut Dr. Welch's opinion by suggesting he initially blamed the 1997 surgery on the 1990 injury alone, then later changed his mind to blame the 1991-1997 work exposure. In support of this argument the respondent cites to Exhibit A. However, the commission cannot agree with the respondent's characterization of Dr. Welch's opinions.
Exhibit A contains two practitioner's reports expressing opinions on causation from Dr. Welch. The first was written on December 2, 1991. This is about a month after Dr. Welch opined the applicant plateaued from his February 1990 injury and three subsequent surgeries in 1990 and 1991. In this first report, Dr. Welch states that the February 1990 injury directly caused the applicant's temporary disability to October 28, 1991 and permanent partial disability rated at 14 percent. This opinion was written six years before the 1997 surgery. In other words, Dr. Welch's first opinion was written in 1991, shortly after the 1990 traumatic injury and well before the subsequent 6 years of work exposure which Dr. Welch later blames for the applicant's additional disability. In all of Dr. Welch's subsequent reports he consistently blames the applicant's work exposure after the 1990 injury for the applicant's additional disability after the 1997 surgery. (2)
The decisive question, in the commission's view, is whether the applicant's work from 1991 to 1997 in fact involved repetitive heavy lifting with waist bent as he testified. The ALJ found that it did, and credited the applicant's testimony on this point. It is true, as the respondent points out in its brief, that the employer added robotics affecting some job functions at some point. However, despite the robotics, the applicant would still have to push the pallets of sheet metal weighing a ton, unjam machines by pulling out the stuck metal sheets, and periodically pour boxes of can ends weighing 45 pounds into some kind of hopper. In any event, there is no evidence he did not perform these tasks.
The respondent argues that the job the applicant describes in the document at Exhibit C would be humanly impossible. The commission acknowledges that the applicant's description at Exhibit C adds up to a nine-hour day, and could be read to mean he emptied boxes of can lids every couple of minutes all day long in addition to all of his other duties. However, the commission reads the description to mean the applicant did the can-lid-emptying job only when he was operating a particular one of several machines involved in the can-making process. While the applicant's job description could have been better written, again, it was essentially unrefuted by any first-hand witness who gave a different description.
Finally, the commission observes that treating doctor Welch apparently considered the applicant's job description as he made his expert opinion. At least, the job description is in his notes attached to his opinions at Exhibit C. IME Weiss, on the other hand, does not describe the duties in his reports, nor is there any attached document setting out the duties. Under these circumstances, the commission finds it difficult to credit Dr. Weiss's opinion that the job was not sufficiently strenuous to cause injury by occupational disease, especially in the face of the ALJ's credibility impression on this point.
It is true that the applicant's symptoms waxed and waned from 1991 to 1997, and that IME O'Brien suggested that meant the applicant's disabling condition was pre-existing and not related to any work injury or work exposure. However, Dr. O'Brien also had the inaccurate belief that both an L5-S1 and L4-5 disc herniation appeared in the earliest CT scans in 1987 and 1988. In fact, as IME Weiss points out, the L5-S1 herniation did not appear until after the February 1990 injury. Thus, while IME O'Brien does not find accidental work injuries in 1987 and 1990, IME Weiss disagrees.
The respondent's contention that Shelby Mut. Ins. Co. v. DILHR, 103 Wis. 2d 655 (Ct. App. 1982) does not apply because the 1991 to 1997 work exposure was simply heavy work, and did not involve repeated traumatic injuries, is also unavailing. The court in Shelby Mutual did not say repeated trauma was a sine qua non of an occupational back disease, but rather recognized that repeated trauma could result in occupational back disease. Moreover, the General Casualty case cited by the respondent did not involve repeated trauma, but a trauma in 1973 with continued heavy lifting and strenuous employment thereafter until 1983, with the date of injury in 1979 when the applicant first missed work because of the disease. General Casualty v. LIRC, 165 Wis. 2d 174, 177-78 (Ct. App. 1991). Further, repeated bending with heavy lifting can cause occupational back disease, at least from a medical standpoint, as IME Weiss himself states.
Finally, the commission is satisfied the ALJ appropriately set the date of injury to be April 11, 1997. True, the applicant had some disability in 1990-91, but Dr. Welch and IME Weiss associated that with the traumatic injury in that year, not with occupational disease. In other words, the applicant's condition was not yet occupational disease in 1990. (3)
cc:
Attorney Jim Schernecker
Attorney Terri L. Weber
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(1)( Back ) This adds to a nine-hour day.
(2)( Back ) Dr. Welch marked both the direct causation box and the occupational disease box in his March 6, 1998 report at Exhibit B. The commission reads this report to mean that the initial disability from the 1990 accident was traumatically caused, but that occupational disease or occupational exposure caused the subsequent disability.
(3)( Back ) By the same token, in General Casualty, the date of injury was determined to be in 1979 when the symptoms of the occupational disease first became disabling, General Casualty, at 165 Wis. 2d 177, not in 1973 when the applicant first had his traumatic work injury.
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