KIM WOELKE, Applicant
FERRELL GAS INC, Employer
SKELGAS INC, Employer
RELIANCE NATIONAL INDEMNITY COMPANY, Insurer
ZURICH AMERICAN INSURANCE COMPANY, Insurer
On July 16, 2001, 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 makes the following:
1. Background facts and posture.
The applicant was born in 1957. He began working for Skelgas, Inc., (Skelgas) in 1990 doing bulk delivery of propane gas. The job involved dragging hoses -- sometimes up to 125 feet -- from his truck to customers' tanks. The applicant dragged or carried the hoses over snow and ice in the winter. In the winter, particularly, he would slip and fall as he did his job. The applicant served 16 to 21 customers per day.
In addition to filling tanks, the applicant would deliver heavy cylinders of gas, dragging and pulling them to get them into place. He also lifted the cylinders up and down from his truck and in and out of the customers' premises. The applicant also dug ditches as part of his job duties.
During the winter of 1993-94, the applicant began noticing low back pain and numbness down his leg. However, he did not miss work or receive treatment until June 1994, when a physician's assistant took him off work. On July 3, 1994, Manucher Javid, M.D., did a laminectomy and discectomy surgery at L4-5 on the right. The applicant was released to work in August 1994, first to light duty then to regular duty.
A hearing was held before ALJ Mary Lynn Endter (1) on the issue of whether the applicant's heavy work activities caused the disc herniation repaired by Dr. Javid in July 1994 (as Dr. Javid opined) or whether pre-existing degenerative joint disease was to blame (as Gerol Yale, M.D., opined.) Relying primarily on the very heavy nature of the applicant's work, ALJ Endter found causation by occupational disease, with a date of disability on the applicant's first day of treatment (and last day of work) before the surgery, June 6, 1994. The commission and the circuit court affirmed ALJ Endter's decision.
Following his release to return to work in August 1994, the applicant eventually resumed his former duties. Due to symptoms of back pain, the applicant sought additional treatment for his back after returning to work in August 1994. Ferrellgas Companies, Inc., (Ferrellgas) acquired Skelgas on May 1, 1996. The applicant's duties remained the same.
Thereafter, the applicant stopped working at Ferrellgas on September 18, 1998 due to back pain. He found new work delivering packages in the UW system in March 1999. On February 29, 2000, the applicant under went a second surgery, including an L4-5 discectomy and fusion, performed by Clifford Tribus, M.D. The surgery has resulted in additional medical expense and additional disability.
In September 2000, the applicant filed a second application for hearing; this application is now before the commission. In the September 2000 application, the applicant listed September 18, 1998 date of injury, based on his last day of work as propane deliveryman for Ferrellgas.
In his September 2000 application, the applicant specifically claims compensation for various periods of temporary disability in 1999 and 2000, for permanent partial disability at ten percent compared to permanent total disability, and for various medical expenses. Skelgas and its insurer, Zurich-American Insurance Company (Zurich) conceded jurisdictional facts and an average weekly wage of $401.74 as of the June 6, 1994, date of injury found by ALJ Endter. (2) Ferrellgas and its insurer, Reliance National Indemnity Company (Reliance), conceded an average weekly wage of $456 related to the alleged September 18, 1998 date of injury.
The claim on the September 2000 application for hearing was heard by ALJ Cathy A. Lake on July 2, 2001. On July 16, 2001, she issued her decision, finding Skelgas and Zurich liable based on a June 4, 1994, date of injury. Skelgas and Zurich filed the petition for review now before the commission.
Before ALJ Lake, there was no serious dispute about whether the applicant's current claim for disability is based on an injury arising out of employment while performing services growing out of and incidental to that employment. As explained below, the various medical experts who offered opinion before ALJ Lake each conclude the applicant's disability is related to occupational exposure. Nor is there serious dispute, at least at this point, about the nature and extent of the applicant's disability from that injury.
The primary issue, before ALJ Lake and now the focus on appeal to the commission, is the date of injury associated with the current claim. The date of injury, in turn, determines which employer and insurer is liable.
2. Facts concerning date of injury.
The condition of the applicant's back upon returning to work in August 1994 is obviously relevant in determining who is liable for the additional treatment and disability compensation. The applicant testified that his back did not get better after the surgery in July 1994; that he still had pain at his belt line; that although he returned to his job after the 1994 surgery he was not able to do his job 100 percent by 1998; and that even when he testified at the 1995 hearing before ALJ Endter he had lower leg and back pain.
This testimony is borne out to some extent by medical notes included in the record of the hearing before ALJ Endter. Exhibit E from ALJ Endter's hearing contains a handwritten note dated December 19, 1994, which states that the applicant feels much better in the morning than he did before the surgery, but as the day progresses experiences low back pain, with pain into the hip, and shooting pain into the lower front of the leg. The pain was, even as of December 1994, sharp and severe. An MRI was ordered to rule out a recurrent disc herniation, and a December 21, 1994 MRI showed a recurrent right paracentral disc herniation at L4-5 (the level of the July 1994 surgery). (3) Exhibit A from ALJ Endter's hearing includes a practitioner's report on form WKC-16-B, which states on the first page that the applicant:
"had an MRI scheduled for 12-21-94 due to continued right sciatica**MRI shows recurrent disc-- recommended conservative therapy for now but may need surgery later."
The practitioner's report form also documents continued low back pain and numbness.
On the other hand, statements the applicant made to Richard K. Karr, M.D., who examined the applicant for Zurich on May 2, 2001, indicate that the applicant did have some recovery from the surgery and that his condition worsened after returning to work. Specifically, the applicant told Dr. Karr that while he never fully recovered from the July 1994 surgery, he could manage his pain with Ibuprofen, and started a course of pain management in December 1994. The applicant also told Dr. Karr that his symptoms were under control for a while but he developed progressive pain that required him to quit working at Ferrellgas in September 1998. Thereafter, Dr. Karr continued, the applicant underwent chiropractic treatment before resuming employment with UW after six months off work.
The February 9, 2000 report of Charles A. Klein, M.D., offered at exhibit 2, also provides some detail concerning the applicant's condition upon returning to work in August 1994. Dr. Klein's report mentions the December 1994 treatment and MRI; a return to Dr. Lay (who had referred the applicant to neurosurgeon Javid for the July 1994 surgery) with complaints of gradually increasing low back pain as well as right leg pain; Dr. Lay's decision to order an MRI done on June 5, 1996, which showed desiccation at L4-5 and small herniation with no evidence of dural or root impingement; a referral to UW Hospitals for conservative treatment including trigger point injections, facet joint blocks, and prolotherapy; that these treatments provided at least temporary relief; and that the applicant had undergone chiropractic treatments as well.
In his practitioner's report dated August 30, 2000, Dr. Tribus referred to his attached notes for a diagnosis and the work exposure to which the applicant attributed his condition. The attached notes include a narrative from the applicant describing his job duties as a bulk propane deliveryman for Skelgas and later Ferrellgas. From this it is reasonable to conclude that Dr. Tribus opines that it was the applicant's job duties that generally led to his disability. In other words, Dr. Tribus's report indicates the whole course of work through the September 18, 1998 last day of work, which was identified by the doctor as the date of disability, was the cause of the applicant's disability. Applicant's exhibit B.
In a follow-up report, exhibit A, Dr. Tribus rated permanent partial disability at five percent for the February 2000 surgery in addition to the five percent rated for the previous surgery in July 1994. In this second report, Dr. Tribus again marked the "occupational disease" causation box.
Dr. Karr, the independent medical examiner retained by Skelgas and Zurich, essentially agreed with Dr. Tribus about causation. His opinion, at exhibit Zurich I, states that the applicant's February 2000 surgery was made necessary by the following factors:
He continues:
"In my view, Mr. Woelke had returned to exactly the same scope of job duties subsequent to recovering from the 7/1/94 L4-5 decompression operation. If global workplace exposure prior to July 1994 could have served to aggravate pre-existing degenerative lumbar spondylosis/spondylolisthesis beyond expected progression, then it stands to reason that the same scope of job duties subsequent to 1994 (extending through September 1998) would remain injurious to the lumbar spine; would contribute to aggravation of degenerative lumbar spondylosis/lumbar instability beyond expected progression. In my view it is unfair to conclude that work duties prior to July 1994 had been injurious, but the same duties thereafter would be perfectly okay. In my opinion, work exposure at Skelgas had aggravated degenerative lumbar pathology beyond expected progression; the same work exposure at Ferrellgas continued to be injurious, aggravating degenerative lumbar spondylosis/instability beyond expected progression."
Zurich exhibit I, report of Karr dated May 3, 2001, page 5.
Dr. Karr went on to rate permanent partial disability from the February 2000 surgery at ten percent, over and above the five percent previously rated for the initial July 1994 surgery, then apportioned one-half (5%) to work exposure at Skelgas and one-half (5%) to work exposure at Ferrellgas.
The examiner retained by Ferrellgas and Reliance, Dr. Klein, opined:
"It is my understanding that Ferrellgas Companies, Inc., bought Skelgas in May of 1996. By this time, Mr. Woelke was already having increasing symptoms and it is my opinion that his occupational exposure between May of 1996 and September of 1999 did not cause any structural changes to his low back, nor do I feel that this occupational exposure represents a substantial significant contributing factor to the progression of his L4 spondylosis. His occupational exposure during this time was aggravating at most and it is my opinion that his occupational exposure between 1990 and 1996 is responsible for the current occupational component of his current problem."
Exhibit 2, report of Klein dated February 9, 2000, page 5.
To sum up, then, Dr. Tribus, and more clearly Dr. Karr, opine that the applicant's entire working career delivering propane through September 1998 was a material contributory causative factor in the onset and progression of the applicant's condition. Dr. Klein thought employment only up to May 1996, when Ferrellgas acquired Skelgas, was responsible for the applicant's current problem.
3. Applicable law.
In determining the date or dates of injury in cases of occupational disease, the starting point is Wis. Stat. § 102.01(2)(g), which 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 provides:
"Compensation benefits may be recovered for disability which occurs after the severance of the employer-employee relationship, even though there was neither wage loss, nor time loss during the time that the employee was in service."
DWD's Worker's Compensation Act of Wisconsin, with amendments to January 1, 2000, footnote 4.
The commission has consistently interpreted the "date of disability" under Wis. Stat. § 102.01(2)(g) as the point when the symptoms of the occupational disease result in lost work time. General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 179, 477 N.W.2d 332 (Ct. App. 1991). In other words, in order to establish a date of disability from occupational disease, a worker must demonstrate that his or her condition has progressed to the point of having symptoms that cause lost work time.
However, there may be more than one date of disability during the course of a given occupational disease. The supreme court has stated:
"Upon a full reconsideration of the entire matter, it is considered that it should be held that the 'time of accident' within the meaning of the statute in occupational disease cases should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto. So that if the end result, whatever it may be, is inevitably due to exposure already complete, that employer and that carrier become liable accordingly. 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. If, however, there is no subsequent exposure which contributes to the disability and the disability is a recurrence of the former occupational disease, then the employer in whose employment the employee is when the recurrence takes place is not liable and so the insurance carrier upon the risk at that time is not liable on that account."
Zurich General Accident & Liability Ins. Co. v. Ind. Comm., 203 Wis. 135, 146-47
(1930).
In discussing what constitutes "recovery," the commission has previously held:
"The commission concludes that the meaning of the term 'recovery' in occupational disease cases is intertwined with the factual circumstances to which it is applied. An individual may 'recover' in an occupational disease process by reaching a healing plateau and returning to work after sustaining one of a series of traumatic injuries, or after sustaining a period of disability due to work exposure. In Zurich, the employee recovered after the latter. In such cases, until the occupational disease process has reached completion there is no occupational disease date of injury, and the acute injuries and recoveries merely represent contributory elements in the occupational disease process. Based on the particular facts and circumstances of the applicant's case, the commission finds that his acute injuries, disabilities, and periods of recovery prior to November 6, 1991, were contributory elements in his occupational back disease process. His occupational back disease process did not reach completion until November 6, 1991.
"In other cases, an occupational disease process may reach completion and liability for compensation become fixed. However, subsequent work exposure may change the nature of the occupational disease or accelerate it. Such change or acceleration would constitute a new occupational disease, and one could call the period between the first and second occupational diseases a 'recovery' period."
Bruendl v. Simplicity Mfg. Co. Inc., WC Claim no. 91070786 (LIRC, November 25, 1996).
4. Discussion.
In this case, the commission concludes that the applicant recovered from the first surgery after returning to work in August 1994, and experienced a new onset of disability following work exposure thereafter as a bulk propane deliveryman. The appropriate date of disability regarding the applicant's disability from this new onset is his last day of work as a propane deliveryman, September 18, 1998.
In reaching this conclusion, the commission notes that two medical experts, treating doctor Tribus and independent medical examiner Karr, both opine that work throughout the applicant's employment was a material contributory causative factor in the onset and progression of the applicant's condition. The expert, Dr. Klein, also suggests that employment after the July 1994 surgery played a role, though he thinks only to 1996.
The commission is aware that the record appears to be somewhat in conflict as to the extent that the applicant experienced relief from the July 1994 surgery. The applicant testified his back did not get better after the procedure. On the other hand, Dr. Karr's report states that the applicant felt he did not fully recover from the July 1994 surgery, that he underwent pain management in December 1994, his condition was under control for a while with Ibuprofen use, and that he thereafter developed progressive spinal symptoms that required him to quit work.
Based on the applicant's ability to work as a propane deliveryman following the July 1994 surgery until September 1998, the commission concludes that Dr. Karr's history is more accurate or precise than the applicant's hearing testimony. The applicant may not have had a full recovery following the July 1994 surgery that alleviated all of his symptoms. However, the commission concludes that the applicant recovered from the June 4, 1994, injury found by ALJ Endter (and from the resulting July 1994 surgery) to the point that he could work as a propane deliveryman for a few more years, even if not at the full functional level he had before the initial injury. Further, as IME Karr pointed out, it is hard to conclude that work from 1990 to 1994 would have caused the applicant's initial disability, but that work performing substantially the same duties from 1994 to 1998 would not play a causal role in the onset of new disability leading to his inability to continue working as a bulk propane deliveryman on September 18, 1998 and the surgery in February 2000. Finally, each of the medical experts in this case assigned a causal role to the applicant's resumed employment after August 1994 (although Dr. Klein opined that work after May 1, 1996, had no effect); none of them opined that the applicant's condition was unaffected by his occupational exposure upon returning to work in August 1994.
In his opinion, Dr. Karr apportioned one-half of the applicant's additional permanent disability following the February 2000 surgery (over and above the 5 percent from the July 1994 surgery) to work exposure at Skelgas and one-half to work exposure at Ferrellgas. From a medical perspective, that apportionment may be justified, as upon returning to work in August 1994 until ending his employment in September 1998, the applicant worked about 2 years for Skelgas and about 2 years for Ferrellgas.
However,
"The Worker's Compensation Act does not provide for apportionment of liability for occupational disease as between successive employers whose employment caused the disease or between.the successive insurers of a single employer whose employment caused the disease.
"...Judicial construction of [Wis. Stat. § 102.01(2)(f), now (2)(g)] has imposed the entire liability upon the last employer whose employment caused disability resulting from the disease, without contribution for prior employers whose employment also caused the disease. The liability of each employer's insurers is determined in the same manner. If a single employer has successive insurers, liability is imposed upon the insurer whose policy was in force at the time the disability occurred." [Italics and bracket material supplied.]
Travelers Ins. Co. v. ILHR Dept., 85 Wis. 2d 776, 782 (Ct. App., 1978). (4) See also: Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 664-65 (Ct. App. 1982).
Accordingly, Ferrellgas and Reliance are liable for the entire additional compensation awarded under this order. While they remain subject of course to the reservation of jurisdiction in ALJ Endter's order dated February 2, 1996, the September 2000 hearing application is dismissed as to Skelgas and Zurich.
5. Award.
Based on a September 18, 1998 date of injury the average weekly wage of $456 applies, but there is no payment at an escalated rate for renewed temporary disability under Wis. Stat. § 102.43(7). Consequently, the applicable rate for temporary total disability is $304 (two-thirds of $456, while the rate for permanent partial disability is $179 (the statutory maximum for injuries occurring in 1998.)
Like the presiding ALJ, the commission concludes the applicant was in fact temporarily and totally disabled for the periods claimed in his application. Accordingly, the applicant is entitled to compensation for temporary total disability from September 21, 1998 to March 22, 1999, a period of 25 weeks and 5 days at the weekly rate of $304 amounting to $7,853.33 and from February 29, 2000 to May 28, 2000, a period of 12 weeks and 4 days at the weekly rate of $304 amounting to $3,850.67.
The applicant returned to work at UW part-time, four hours per day, from May 28, 2000 to June 11, 2000, a period of two weeks, before resuming full time work. Without knowing exactly what the applicant earned during this period, (5) a precise calculation of temporary partial disability is not possible. However, in determining the award under the ALJ's order, the department simply used one-half of the temporary total disability rate and none of the parties object. For the sake of expediency, the commission follows that approach in this case. The applicant's entitlement to temporary partial disability from May 28 to June 11, 2000, equals $304.
The commission also finds that the applicant sustained permanent partial disability from the new onset of disability associated with the September 18, 1998 date of injury at 10 percent compared to permanent total disability. This equals the amount rated by Dr. Karr, and in fact is the minimum amount that may be awarded for a discectomy and fusion procedure under Wis. Admin. Code DWD § 80.32(11). Accordingly, the applicant's compensation for permanent disability is $17,900 (100 weeks at the weekly rate of $179 per week), all of which has accrued.
In all, the applicant is awarded the sum of $29,908 in temporary total, temporary partial and permanent partial disability compensation under this order. The applicant agreed to payment of an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded under this order. The fee thus equals $5,981.60, and together with costs of $351 shall be paid to the applicant's attorney within 30 days.
The amount due the applicant equals $23,575.40, which is the sum of the disability compensation ($29,908), less the attorney fees ($5,981.60), and less costs ($351). That amount shall be paid to the applicant within 30 days.
The applicant also incurred the following reasonable and necessary medical expense to cure and relieve the effects of the work injury: from Madison Chiropractic, $1,686, all of which remains outstanding; from UW Health/Physician's Plus, $7,222, of which $5,941 was paid by Group Health Coop., $208.96 remains outstanding, and the remainder ($1,072.04) was apparently written off; from Healthsound, $180, all of which remains outstanding; and from UW Hospital & Clinics, $24,166.29, of which $22,986.77 was paid by Group Health Coop., and $1,179.52 remains outstanding.
Dr. Tribus expected further treatment would be necessary, an opinion that seems reasonable given the nature of the applicant's injury and prior surgical treatment. Accordingly, this order shall be left interlocutory to permit further orders and awards of disability compensation and medical expenses.
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 and reversed in part.
Within 30 days from the date of this order, Ferrellgas Companies, Inc., and Reliance National Indemnity Company shall pay all of the following:
1. To the applicant, Kim R. Woelke, Twenty-three thousand five hundred seventy-five dollars and forty cents ($23,575.40) in disability compensation.
2. To the applicant's attorney, Jim Schernecker, the sum of Five thousand, nine hundred eighty-one dollar and sixty cents ($5,981.60) in attorney fees and Three hundred fifty-one dollars ($351) in costs.
3. To Madison Chiropractic, One thousand, six hundred eighty-six dollars ($1,686) in medical treatment expense.
4. To UW Health/Physician's Plus, Two hundred eight dollars and ninety-six cents ($208.96) in medical treatment expense.
5. To Healthsound, One hundred and eighty dollars ($180) in medical treatment expense.
6. To UW Hospital & Clinics, One thousand one hundred and seventy-nine dollars and fifty-two cents ($1,179.52) in medical treatment expense.
7. To Group Health Coop., Twenty-eight thousand nine hundred twenty-seven dollars and seventy-seven cents ($28,927.77) in reimbursement of medical expense.
Jurisdiction is reserved as to Ferrellgas Companies, Inc., and Reliance National
Indemnity Company for such further orders and awards as are warranted and
consistent with this decision. The September 2000 hearing application is
dismissed as to Skelgas, Inc., and Zurich American Insurance Company.
Dated and mailed January 17, 2002
woelkek . wrr : 101 : 1 ND § 3.4 § 3.42
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
The commission conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ, who could observe the applicant's demeanor, regarded as credible the applicant's testimony that his back did not improve after the 1994 surgery. The commission acknowledges that the applicant testified to that effect, and that the applicant no doubt was telling the truth as he saw it at the hearing. However, for the reasons explained in the body of this decision, the commission declined to use this testimony as the basis for its decision.
cc:
Attorney Jim Schernecker
Attorney Robert H. Zilske
Attorney Patrick M. Cooper
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(1)( Back ) The parties agreed that administrative notice could be taken of the record before ALJ Endter in WC claim no. 1994-038872.
(2)( Back ) The ALJ's order indicates that Skelgas and Zurich conceded "an additional 5% permanent partial disability pursuant to the report of Dr. Karr." After reading the briefs of the parties, and particularly that of the applicant, the commission concludes that Skelgas and Zurich conceded the applicant has additional permanent partial disability related to work exposure, not that they are liable for the additional permanent partial disability or part of it.
(3)( Back ) This report was printed in October 1995, explaining the applicant's hearing testimony about that date.
(4)( Back ) Wis. Stat. § 102.175(1) permits apportionment between accidental injuries; this case does not involve a claim of accidental injury.
(5)( Back ) He started at UW at $8.62 per hour, and at the time of the hearing he made $10.03 per hour.
uploaded 2002/02/05