LINDA WOS, Applicant

ONEIDA TRIBE OF INDIANS, Employer

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer

On July 16, 1999, the applicant filed an application for hearing alleging a lower back injury from lifting "hopper bags" at inconsistent levels for extended periods of time repetitively, with a December 4, 1998, date of injury. The applicant's application sought only compensation for medical expenses.

A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development in the matter on September 14, 2000. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $381.93. However, the respondent disputed that the applicant's work exposure actually occurred on or about the time alleged, that she was performing services growing out of and incidental to her employment with the employer at the time of her alleged injury, and that the accident or disease causing injury arose out of her employment. The respondent paid no benefits prior to the hearing.

On December 12, 2000, the ALJ issued a final order finding a compensable injury with a January 20, 1999, date of injury, and ordering payment of $1,251.75 in medical expense. The respondent filed a timely petition for commission review.

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

The applicant was born in 1962. She began working for the employer in May 1997 or May 1998. Her last day of work for the employer was December 16, 1999.

The applicant initially worked at the employer's main casino pushing carts loaded with change. She took the money from vaults to change banks, and also filled slot machines with money.

After a few months, she was transferred to an "outlet," which is a casino operation attached to gas station or tobacco shop. At the outlet, she worked as a change runner, a cashier, and a slot machine attendant. She worked five or six days a week, 8 to 10 hours per day. While working at the outlet, she testified, her low back pain started.

The applicant associated her back pain with reaching across a counter with a hopper bag to get the bag up to a cashier's window. Hopper bags are filled with coins or tokens, and weigh 25 to 32 pounds. The counter at the cashier's window extended 18 to 20 inches; evidently this caused the applicant to perform an arms- extended reach and to lift to get the hopper bags up to the cashier's window itself. She testified she had to perform this lift and reach 80 to 90 times per day.

The applicant associated this job with her back pain because it was the only task that was different at the outlet than her duties at the main casino. At the main casino, the cashier's window was flush with the counter, so she could just slide the bags in and not have to lift the bags up to the window from across the counter. Moreover, because there were fewer workers at the outlet than the casino, she did more work and more repetitions of the various tasks required in her job.

At any rate, the very first month of her assignment at the outlet, the applicant began to experience pain like a sharp jab to her back which made her tender in the low spine. She experienced the pain at work, and it became more severe with time. She could not recall if it lessened while she was off work. She sought treatment in November 1998 from her family doctor for low back pain. She testified she reported the pain to her employer on about December 4, 1998, when it did not go away with her menstrual cycle.

The applicant saw her family doctor, Tracy L. Gallagher, M.D., on November 18, 1998, with symptoms of a three week history of low back pain without radiating symptoms. The doctor noted tenderness along the midline and paraspinous regions of the lumbosacral spine. The straight leg-raising test, however, was negative bilaterally, and she had a fairly good range of motion.

The doctor's assessment was low back pain without radiating symptoms, for which she was prescribed ibuprofen. The doctor noted she would recheck the applicant in a week at her complete physical.

At the time of the complete physical on November 25, 1998, the applicant continued to complain of low back pain. Dr. Gallagher also noted mild low back bruising though the applicant could not recall bumping herself in the area. Noting persistent low back pain, the doctor sent her for physical therapy.

The applicant went to physical therapy, though the applicant felt it was ineffective. She called Dr. Gallagher's office on December 4, 1998, and was referred to Prevea Spine Care. On December 7, 1998, she called again, and thereafter Dr. Gallagher apparently sent work restrictions to the employer.

The applicant saw Brock L. Robinson, M.D., at Prevea Spine Care on December 11, 1998. He recorded that she reported the onset of back pain at work in November, and that she reported an injury to the employer on December 4, 1998, though there was no date of injury. He noted the applicant's symptoms developed gradually at work for two weeks prior to the date of injury.

Dr. Robinson described symptoms of sharp stabbing low back pain with forward bending. The pain caused her to become dizzy and leave work. She went back to work on light duty, but still had a persistent, pinching low back pain.

On examination, he noted a normal gait, that she could walk on her heels and toes, normal deep tendon reflexes, a negative straight leg raising test, and good hip flexibility. He noted, too, some poorly localized pain in the low back. X-rays were negative except possibly for a slight narrowing of L5, S1.

Dr. Robinson's note does not describe the applicant's job other than as a cashier and assisting with slot machines at the Oneida Casino. However, the applicant testified she told Dr. Robinson's nurse and, she believed the doctor himself, about her duties and the countertop/cashier window situation. She testified, too, that he taught her exercises and the proper body mechanics for lifting.

At any rate, Dr. Robinson's diagnostic impression was spinal pain, possibly coming from a degenerating disc. He allowed light work, and recommended spinal stabilization training.

The applicant returned to Dr. Robinson on December 17, 1998. He noted the applicant was working light duty but still had an increase in pain by the end of the shift. The doctor showed her some stretches, and discussed factors that could contribute to her pain. He did not think further diagnostic testing was warranted, but continued her work restrictions.

Following another visit on December 30, 1998, Dr. Robinson again noted the pinching sensation in her low back, with trouble sleeping. On examination on this date, she had good spinal flexibility, and her pain was "very localized" to her low back. Again, the exam of the tendon reflexes and straight leg raising was normal. He stated his impression as:

"I think Lisa has a minor pain problem at L5-S1 but she is quite concerned about it because she is afraid that it will be more significant than it is. I do not see the relationship to her job. She does not describe a specific history of injury at work. She only reports the onset of pain during the month of November. With this in mind, I do not believe that this is a work related condition, although she has made a Worker's Compensation claim. I am recommending that she return to work without restrictions at this time. She was advised that it could keep bothering her for some time yet but that the best course of treatment for her is to continue with the exercises that she has been taught. The fact that she experiences some discomfort at work does not necessarily mean that she continues to require work restrictions. [Emphasis supplied.]"

Exhibit 2.

Dr. Robinson concluded by noting his plan to see the applicant again in three weeks.

The applicant then began seeing a chiropractor, Michael Harkins, D.C., in January 1999. She testified she began treating with him because she was not getting relief from Dr. Robinson. She did not learn until later of the content of the December 30, 1998, note from Dr. Robinson dissociating her condition from a work injury.

Dr. Harkins first saw the applicant on January 19, 1999. She stated on a health history questionnaire that her work activity involved light labor, and that her condition was not due to an accident. At the hearing, she explained she regarded her job as light labor because she thought heavy labor involved lifting 50 pounds.

In his notes, Dr. Harkins listed a history of low back pain since November 1998, as a gradual onset, in which it felt like the back was getting weaker and that she had sharp stabbing pains that got worse with standing or sitting, and which she had never had previously. He noted, too, that she did a lot of lifting, bending and reaching with coins at work and that "this is probably what is causing her condition." He noted also that her pain felt like sharp jabbing on occasion, making her left leg give out.

Dr. Harkins' note for January 20, 1999, gives an assessment of "acute low back due to ongoing lifting in a poor ergonomic work station." He put her on light duty with a 10-pound lifting restriction, and instructed her to limit or eliminate bending while lifting. The doctor's note also excused the applicant from work that day due to the amount of pain she had, but stated she should return to work the following day.

Dr. Harkins saw the applicant on a daily or every-other-day basis into late February 1999. Dr. Harkins' note from January 22, 1999, gives an assessment of "lumbo-sacral strain/sprain overuse syndrome with subluxation." His notes beginning on January 25, 1999, and thereafter assess lumbar fascette syndrome, lumbar strain/sprain and subluxation.

Dr. Harkins kept the applicant on light duty restrictions into mid-February 1999. His February 12, 1999 "return to work" form allowed regular duties, though he noted restrictions might again be necessary if her condition were aggravated. By February 26, 1998, she told the doctor the quality of her pain was no longer sharp, but that she had more stiffness and that she was 70 percent better. By March 19, she was at least 80 percent improved. Dr. Harkins' April 12, 1999 note states she was overall much better, with some pain in her lower back.

Meanwhile, the applicant returned to Dr. Robinson on February 11, 1999. He noted he had last seen her on December 30, 1998, and that she had not returned in three weeks as he had planned. He noted her chiropractic treatment, which she described as somewhat helpful, but she did not describe any substantial improvement in her back. She felt better after the chiropractic treatment, but continued to have central low back pain made worse by work activity.

Dr. Robinson again posited the possibility of a degenerated disc. He thought she might do best to work on tolerating the pain and limiting the pain's extent by wise back care. He did not think treatment would provide significant relief. He noted that, although he had returned her to work with no restriction on December 30, 1998, chiropractor Harkins had re-instituted restrictions (though Harkins lifted these on February 12). Dr. Robinson concluded by noting that he had "made a specific statement regarding her Workers Compensation claim in my note of December 30th." He released her from care without follow-up.

The applicant offers a certified practitioner's report on form WKC-16-B from treating chiropractor Harkins, dated June 2, 1999. He lists a December 4, 1998 "date of traumatic event." For a description of the accidental event or work exposure that caused the applicant's condition, the doctor refers to an attached "Workers Compensation Information" sheet. Although the commission could find no such sheet attached, the doctor's notes as outlined above are attached. These include both a January 20, 1999, treatment note which states an assessment of "acute low back due to ongoing lifting in a poor ergonomic work station" as well as the initial consultation note which states:

"[the applicant] does a lot of lifting, bending and reaching of coins, etc., at work. This is probably what is causing her condition."

Returning to the WKC-16B form itself, the doctor marked the direct causation box (which refers back to an accidental event that directly caused the applicant's disability). The doctor also indicated the applicant was able to return to work subject only to permanent restriction on February 15, 1999. That was the date, of course, when Dr. Harkins released her to regular duty with no restrictions.

Dr. Harkins also completed a Medical Report on Industrial Injury on form WKC- 16, dated January 21, 1999. Exhibit B. This lists a history of

"back pain from lifting hopper fills over counter and holding it out at arms length which causes repeated strain to the low back. This occurs at the cashier's window at 54 casino."

The respondent introduced Dr. Robinson's medical records. As described above, Dr. Robinson's December 30, 1998, note states the opinion that the applicant's condition is not work-related.

The applicant has established a compensable work injury based on the practitioner's report of Dr. Harkins. In his attached treatment notes, Dr. Harkins affirmatively states that repetitive bending, lifting and reaching with the coin bags at work probably caused the applicant's injury. The applicant testified, credibly, that the way she had to lift and carry the hopper bags was different upon transferring to the outlet, in that her duties then required a reach and carry with extended arms. Certainly from a lay perspective, it is easy to see how reaching with arms extended to move 25-pound bags of coins 80 to 90 times a day could cause temporary back problems. The applicant also credibility testified that her painful condition did not begin until she was transferred to the casino outlet, and that her condition became more severe with time. Finally, Dr. Harkins's note for February 17, 1999, indicated that not doing her typical lifting at work "seemed to help" the applicant's condition. In short, the applicant has proven disability by occupational disease, (1)  that is, from an appreciable period of workplace exposure that was a material contributory causative factor in the onset or progression of her low back condition.

The commission appreciates that Dr. Robinson, a treating doctor, specifically opined in his treatment notes that the applicant's condition was not work-related. The commission also assumes that, in rendering this opinion, Dr. Robinson meant to rule out causation by occupational disease, as well as by an accidental event. Indeed, were the facts different, Dr. Robinson's opinion could provide a basis for denying compensation. (2)  However, given the applicant's credible testimony about the change in the ergonomics of her work duties, the onset of her back pain, and its increase in severity as she continued to work, Dr. Robinson's contrary opinion on causation does not cause the commission to doubt Dr. Harkins' opinion that applicant's work activity probably caused the condition giving rise to her claimed medical expenses.

The next issue is the date of disability. In her hearing application, the applicant alleged a December 4, 1998, date of injury. However, the ALJ found a January 20, 1999, date of injury. The respondent objects to this later date, characterizing it as amendment of the pleadings without the notice required under Wis. Adm. Code § DWD 80.08 or a waiver of the required notice. The respondent also asserts that the record does not contain any evidence disproving the earlier date of injury alleged by the applicant herself.

With respect to the date of injury in cases of causation by occupational disease, Wis. Stat. § 102.01(2)(g) provides:

102.01(2)(g) Except as provided in s. 102.555 with respect to occupational deafness, `time of injury', `occurrence of injury', or `date of injury' means:

1. In the case of accidental injury, the date of the accident which caused the injury.

2. In the case of disease, the date of disability or, if that date occurs after the cessation of all employment that contributed to the disability, the last day of work for the last employer whose employment caused disability.

The department's interpretative footnote to Wis. Stat. § 102.01(2) (g) provides:

4 Compensation benefits may be recovered for disability which occurs after the severance of the employer-employe relationship, even though there was neither wage loss, nor time loss during the time that the employe was in service.

DWD Worker's Compensation Act with Amendments to January 1, 2000 (WKC 1-P(R. 04/2000).

Thus, in cases of occupational disease, the date of injury is the date of disability or, if that date occurs after the cessation of all employment contributing to disability, the last day of work for the last employer whose employment caused the disability. Where there is wage loss before the end of the employment, "date of injury" means the first day of "wage loss." General Casualty Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 180 (Ct. App. 1991). The "wage loss" presumption applies even if the employer recompenses or allows the worker to make up the lost work time. Id. Of course, a date of disability may also be established even without wage loss due to the disease, though these cases usually involve situations where a worker has either stopped working because of retirement, (3)  is laid off, (4)  or has switched to employment which no longer contributes to the occupational disease. (5)

However, the simple onset of symptoms which do not cause a worker to seek treatment or lose work time does not automatically establish a "date of disability" fixing liability for occupational disease. Instead, the question is "when did the occupational disease ripen into a disabling condition?" (6)  In deciding this question, the courts look at "actual physical incapacity to work" rather than a medical or pathological disability which results in no wage loss. (7)

In this case, the ALJ found a January 20, 1999, date of injury because that is the first date of lost wages attributable to the occupational disease that is demonstrated by the record. See exhibit A, Harkins' note for January 20, 1999. Indeed, the commission carefully examined the synopsis of the testimony and the medical notes in the record, but could find no reference to any earlier wages or time lost from work due to doctor's visits, physical therapy appointments, or simply a doctor's instruction to remain off work. Nor is this a case where lost work time from medical appointments in 1998 may be conclusively presumed from testimony that the applicant works a specific shift and that she had medical appointments at times falling within the hours of that shift.

On the other hand, the respondent points out, accurately, that the applicant alleged a December 4, 1998, date of injury. It also appears that a different date of injury was not the subject of any testimony or questioning at the hearing. Although the applicant contends in her brief that she missed only a few days when her pain was intolerable and that she scheduled medical appointments on time off of work, that statement does not appear as testimony in the hearing record itself.

The commission must also observe that the applicant appeared pro se, and that the question of the date of injury in occupational disease cases may be relatively complex. Although it may be administratively cumbersome, the commission concludes that the fairest way to deal with this issue is to remand this case to the department for further proceedings, including a hearing and decision if necessary, if the parties are unable to agree on a date of injury.

However, the date of injury does not affect the question of the compensability of the medical expenses. The applicant claims reimbursement for the expense of treatment rendered by Dr Harkins. See exhibits C and 4. Specifically, the applicant contends she incurred $1,251.75 in treatment expense, all of which is outstanding. The commission concludes these expenses were reasonable and necessary to cure and relieve the effects of the work injury, and accordingly, the respondent is liable for them.

Finally, the commission, like the ALJ, believes a final order is appropriate in this case. Dr. Harkins noted on March 19, 1999, that the applicant's low back condition was 80 percent improved. He observed on June 2, 1999, that her prognosis was fair to good, but that he could not opine whether further treatment would be necessary because he had not treated her since April 1999. On this record, the applicant has not established the need for an interlocutory order, except to the limited extent necessary to permit the resolution of the date of injury issue.

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

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified are affirmed in part. Within 30 days from the date of this order, the employer and its insurer shall pay Harkins Chiropractic the sum of One thousand two hundred fifty-one dollars and seventy-five cents ($1,251.75) in medical treatment expense.

This case is remanded to the Worker's Compensation Division for further proceedings, including a hearing and decision by an administrative law judge if necessary, to determine the appropriate date of injury. Jurisdiction is reserved solely for that purpose.

Dated and mailed July 19, 2001
wosli . wrr : 101 : 3 ND � 3.4  � 8.7   

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission conferred with the presiding administrative law judge concerning witness credibility and demeanor. He stated that he regarded the applicant as a very credible witness in her testimony about both the onset of her symptoms and her job duties. The ALJ believed, too, that the applicant's testimony on those points went largely unrebutted. Indeed, the commission, after reading the synopsis of the applicant's testimony, sees no reasons to question the ALJ's credibility impressions.

cc: Attorney William R. Sachse Jr.

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

(1)( Back ) The commission acknowledges that Dr. Harkins marked the "direct causation" rather than "occupational disease" causation box on the WKC-16-B form practitioner's report submitted as exhibit A. However, the applicant does not allege, and has not established, an injury or disability from a single traumatic or accidental event. The effect of Dr. Harkins' error in marking the wrong box is compounded by the fact that for a description of the accidental event or work exposure causing the condition, Dr. Harkins referred to an "attached" document that was not actually attached. Nonetheless, based on the other notes attached to the doctor's practitioner's report, the commission is persuaded that the report supports a finding of causation by occupational disease.

(2)( Back ) The court has also held that inconsistency in the record raising legitimate doubt may come in forms other than competing certified expert opinion. Leist v. LIRC, 183 Wis. 2d 450, 457-58, 461-62 (1994).

(3)( Back ) Kohler Co. v. DILHR, 42 Wis. 2d 396 (1969).

(4)( Back ) Wisconsin Granite Co. v. Industrial Co., 208 Wis. 270 (1932).

(5)( Back ) Green Bay Drop Forge v. Industrial Commission, 265 Wis. 18 (1953).

(6)( Back ) Kohler, supra, at 42 Wis. 2d 400.

(7)( Back ) Montello Granite Co. v. Industrial Commission, 278 N.W.2d 391, 399 (1938). 8

uploaded 2001/07/23