DAVID SHARKOZY, Applicant

CASE CORPORATION, Employer

CASE CORPORATION, Insurer

In September 2000, the applicant filed an application for hearing seeking compensation for a back injury and a right knee medial meniscus tear. The application listed dates of injury in December 1999, February 2000, and April 2000.

A hearing was held before an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development on April 18, 2001. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage at the statutory maximum for the purpose of determining compensation rates, and a compensable injury occurring on December 1, 1999.

At issue before the ALJ was whether the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment, with respect to the February and April 2000 dates of injury. Also at issue was the nature and extent of the applicant's disability, as well as the respondent's liability for medical treatment expenses.

On July 25, 2001, the ALJ issued his order resolving the issues before him. The respondent filed a timely petition for commission review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning witness credibility and demeanor. Based on its review, the commission makes the following:

1. Injury, treatment and expert medical opinion.

The applicant was born in 1946. He is a tool and die maker, who began working for the Case Corporation in 1975. He has worked in both the tractor and the transmission plants in the employer's facility. Although there is some dispute about exactly how much lifting the applicant has to do in his job, even the employer's witness admits that lifting up to 75 pounds is not uncommon.

The applicant had no significant problems with his back before December 1, 1999. On that date, he noted a cloud of smoke in the work place, which he later discovered was from a large astray, overstuffed with cigarette butts. He went to the office to notify security.

The applicant then noticed a forklift truck, with a liquid petroleum tank, in the vicinity of the fire. He regarded the tank as a hazard in the event the fire spread. He also believed the tank was supposed to have been removed from the truck after the preceding shift. The tank weighed 57 pounds.

Acting quickly, the applicant removed the tank, hurting his back in the process. He reported the injury the next day. See exhibit C. Indeed, the applicant reported the injury at the employer's medical station, so he saw the company doctor, Thim Nanda, M.D.

Dr. Nanda's December 2, 1999 treatment note is at exhibit 2. Dr. Nanda recorded that the applicant reported an injury causing pain in the left lumbar region after lifting a liquid petroleum tank the prior day; that the applicant had localized pain and tenderness in the left lumbar paraspinal region at L4-5 upon examination on December 2, 1999; and that the applicant had no motor, reflex or sensory changes. Dr. Nanda diagnosed an acute muscular sprain of the lumbar region, and advised the applicant to take pain medication, ice to be applied, lumbar support, and muscle relaxants. He thought the applicant could work, subject to a 20 pound lifting restriction, until his next visit.

Dr. Nanda reported seeing the applicant again on December 14, 1999, when he was still in pain and making minimal progress. The doctor referred him for physical therapy, evidently for three weeks.

On January 11, 2000, the applicant told Dr. Nanda he felt 50 percent better with therapy. At this point, a three-month membership in the YMCA, for whirlpool, sauna, and gentle stretching exercises, seemed appropriate. Dr. Nanda also gave him a muscle relaxer.

The applicant testified he continued to work but really was not doing much. He eventually was transferred from the tractor plant (where he had been working when injured) to the transmission plant. On Saturday, February 5, 2000, he went to the employer's plant to move his tools, and hurt his back lifting his 100-pound toolbox. He then reported his injury on February 9, 2000. Exhibit Y.

The applicant then underwent more physical therapy. He next saw Dr. Nanda on March 9, 2000, and the doctor noted the applicant had been transferred from the tractor plant to the transmission plant. The doctor reported that the applicant regarded the job as unsuitable due to the noise, fluctuation in temperature, and heavier work. The doctor's clinical examination showed no evidence of neurological involvement. The doctor diagnosed a thoraco-lumbar strain, which seemed to have been aggravated by frequent bending and twisting activity.

The applicant still had persistent pain on March 29, 2000. Dr. Nanda nonetheless thought he should do well over time with regard to his pain. Dr. Nanda also agreed, however, that because the applicant was not happy with Nanda's medical management, he should see his own doctor. Dr. Nanda felt the applicant should not lift more than 100 pounds, and should follow up on an as needed basis, or with his family doctor.

The applicant continued to work, despite the pain in his back. In April 2000, he slipped on ice in the employer's parking lot, and fell into his truck. He reported this injury, too. Exhibit C.

On April 12, 2000, the applicant saw Dr. Tolson. He told Dr. Tolson about the December 1, 1999 injury with the liquid petroleum tank, and the April 8 slip and fall in the parking lot (though he complained of a headache from that.) The doctor diagnosed lumbar back strain, thoracic back strain, and numbness in the left lower extremity. He also ordered x-rays, which were done in-clinic that day. He also set work restrictions permitting a ten-pound lift.

According to the applicant, when the x-ray was done, he tried to roll off the x-ray table onto his feet, but apparently misjudged the narrowness of the table and fell to the concrete floor. The applicant testified he fell straight down, unaided by anyone breaking his fall. Transcript, page 45.

Dr. Tolson's notes contains the following addendum:

"The patient was noted to have fallen off the x-ray exam table when he was having his thoracic spine x-rays. The x-ray technician was able to break his fall somewhat, but he fell and bumped his right knee. He was able to ambulate and weight bearing appeared to be normal. Exam of the knee showed that he had some localized tenderness which was mild and did not note any crepitus and range of motion of the right knee appeared to be normal. I did not think that he needed to have an x-ray of the knee. The patient reported that he fell because he had a dizzy episode."

A statement from the x-ray tech offered by the employer seems to substantiate the applicant's version. She says:

"... After the x-ray, he was told he could get down and he rolled over on his back and towards the edge of the table and he rolled right towards me. He apparently moved too quick or lost his [bearing]. I tried to catch him but he landed on the floor and hit his right knee on the floor... I asked him several times if he was okay and he said he was okay."

Exhibit 5.

On April 13, 2000, the applicant returned to Dr. Nanda. He noted the applicant had done quite well until his transfer to the transmission plant. He noted x-rays showing "minimal osteophyte and minimal degenerative joint changes" and explained to the applicant that his pain was related to the arthritic changes, and that there was no clear evidence his pain was related to the work injury.

Dr. Nanda's overall impression was that the applicant had significant psychological overlay with regard to his pain component, and very little in the way of positive findings. He did recommend an MRI, however, or concurred with Tolson's recommendation one be obtained. He also spoke with Dr. Tolson about the restrictions Dr. Tolson had set a day earlier, to see if Tolson would lessen them to permit a twenty-pound lift.

Accordingly, on April 13, 2000, Dr. Tolson reissued restrictions releasing the applicant to light duty work with a twenty-pound lift. However, the employer would not accommodate the restrictions, so the applicant remained off work. This was due to the employer's belief that the need for the restrictions was not from a work injury (transcript, page 99-102) based presumably on Dr. Nanda's April 13 note.

The applicant returned to Dr. Tolson on April 20, 2000. The doctor, noting that the applicant felt about the same, ordered an MRI to rule out a disc problem that was being overlooked.

The MRI did show findings suggestive of L4 radiculopathy corresponding to numbness in the left leg. Dr. Tolson also noted an L3 abnormality that needed further evaluation. A bone scan ordered to examine the L3 problem showed no evidence of an active bony process.

The applicant then saw Thomas Foley, M.D., about his knee in mid-May 2000. He told the doctor he had had problems since falling off the exam table in x-ray. Dr. Foley saw no significant injury. It appears that Dr. Foley referred the applicant to Dr. Jayaprakash (a physiatrist) and Dr. Rafiullah (a neurologist) about his back.

The applicant saw Dr. Rafiullah on May 15, 2000. Dr. Rafiullah noted the December 1, 1999 injury lifting the gas tank, the resulting "pull" in his back, the subsequent low back and left lower extremity pain, and that the applicant's condition had since remained unchanged despite physical therapy and medication. His impression was low back pain with radiculopathy secondary to an injury at work on December 1, 1999. He noted the applicant was not interested in surgical options.

The applicant saw Dr. Jayaprakash on June 5, 2000. (Exhibit F.) Dr. Jayaprakash noted that Dr. Nanda felt the applicant had previously reached a healing plateau. Dr. Jayaprakash thought he could return to work with 20 to 25 pounds of lifting, though he arranged for physical therapy first. Dr. Jayaprakash thought the applicant probably had reached a plateau of healing.

Meanwhile, the applicant began seeing Todd Barnhardt, M.D., on June 7, 2000, concerning his knee. Dr. Barnhardt noted the injury occurred when the applicant fell off an examination table. The doctor ordered x-rays of the knee, which showed minimal tilting, but were described as normal. He ordered therapy, and released the applicant to "sit down work only" for the next six weeks. (Exhibit H.)

The applicant then saw Santosh Bahal, M.D. on June 20, 2000 (exhibit K), after obtaining a referral from Dr. Foley. His recommendation was that the applicant continue physical therapy with Dr. Jayaprakash. He believed, however, that the applicant would need permanent restrictions. He also thought the applicant's symptoms were related to the work injury of December 1, 1999.

The applicant saw Dr. Jayaprakash again on June 29, 2000. Dr. Jayaprakash noted that the applicant had not yet returned to work. He told Dr. Jayaprakash that Dr. Barnhardt, who had been seeing the applicant concerning his knee, kept him off work until July 27, 2000. Dr. Jayaprakash noted that the applicant's physical therapy records indicated he felt "quite great" and was able to perform his physical therapy well. He reiterated his opinion that the applicant had fairly well recovered from his osteoarthritis of his lumbar spine, and that while the earlier MRI showed some mild stenosis at L4 and a disc bulge at L4, it was not a "significant involvement." He released the applicant to work, with the caveat that Dr. Barnhardt was ultimately responsible for providing a work release concerning the applicant's knee.

The applicant saw Dr. Rafiullah again on July 13, 2000. The doctor reported he had no objection to the applicant returning to work with the weight lifting restriction set by Dr. Jayaprakash. He reiterated his belief that the December 1999 work injury precipitated his symptoms, noting pre-existing mild degenerative changes. He thought it unlikely the applicant's complaints would completely resolve, and that he would probably require ongoing treatment for a chronic painful condition.

When the applicant next saw Dr. Barnhardt on July 26, 2000, he told the doctor his knee had not improved. The doctor then ordered an MRI. This showed a questionable tear of the medial meniscus. The doctor discussed surgery, but thought that observation was a better course, and gave the applicant a full release to work. The applicant saw the doctor again in August 2000 reporting increased pain, but the doctor released him to return as needed and again mentioned the surgical options.

The applicant saw Dr. Jayaprakash again on September 14, 2000. He noted that the applicant had had an MRI of his knee since his June examination, and that the MRI had shown evidence of a small equivocal tear of the medial meniscus, which led Dr. Barnhardt to recommend against surgery. He noted too that Dr. Barnhardt had released the applicant to work. He reiterated his opinion that the applicant could return to full-time work.

The parties have submitted expert medical opinion regarding the applicant's claim from several sources.

Dr. Nanda, the plant doctor, opined:

"My overall impression to a reasonable degree of medical probability is that Mr. Sharkozy's lumbar strain as a result of his work injury of 12/1/99 had resolved fully with no residual deficits on 4/13/00, healing was complete with no permanent disability, continuation of chronic pain symptoms was due to his anxiety, depression, unhappiness at his new job. It was not related to his injury on 12/1/99."

Exhibit 1, April 3, 2001 report of Nanda, page 2.

Dr. Rafiullah prepared a practitioner's report on form WKC-16-B, dated August 14, 2000 (exhibit L.) He opined that the work injury of December 1, 1999 directly caused the applicant's disability, which he rated at five percent to the whole body for persistent pain. Dr. Rafiullah noted, too, that the prognosis for pain relief was poor, and expected further treatment including specifically treatment at a pain clinic.

Dr. Jayaprakash did not prepare a formal practitioner's report. While declining to give an opinion regarding causation, Dr. Jayaprakash indicated his substantial agreement with Dr. Nanda regarding an early end of healing with regard to the back. He also seems to appreciate permanent residuals from the applicant's condition, as he sets a 20- to 25-pound lifting limit upon reaching a healing plateau. He does not say, one way or another, whether he thinks this is due to the work injury or the underlying condition only.

Dr. Bahal also did not prepare a formal practitioner's report. However, he stated in his note of June 20, 2000, that he believed that the applicant would need permanent restrictions. He also thought the applicant's symptoms were related to the work injury of December 1, 1999. (Exhibit K.)

Dr. Barnhardt, who treated the applicant's knee, submitted a practitioner's report on form WKC-16-B dated September 3, 2000 (exhibit A.) Dr. Barnhardt opines that the fall from the examining table directly caused the right knee contusion, and resulted in permanent partial disability at one percent compared to amputation at the knee for pain of right patellar tendon origin. He stated the applicant could return to full duty as of August 2, 2000. Although he rated the applicant's prognosis as "good" and did not expect further treatment, Dr. Barnhardt noted exploration could be considered if the applicant's pain persisted.

2. Nature and extent of disability.

The ALJ concluded the applicant sustained compensable injuries to his back and knee. He awarded temporary disability from April 20, 2000 to September 18, 2000, permanent partial disability at five percent compared to permanent total disability for the back condition, permanent partial disability at one percent compared to loss of the knee, and medical expenses.

The respondent appeals, arguing:

(a) That Dr. Nanda was more credible regarding the effect of the work injury, noting that Dr. Jayaprakash agreed with him about the end of healing.

(b) That the knee injury was the result of a kind of idiopathic fall when the applicant became dizzy upon rising from the x-ray exam table.

(c) That in any event temporary disability should end on August 2, 2000 based on Dr. Barnhardt's WKC-16-B, and not extend into September 2000.

The commission, like the ALJ, credits Dr. Rafiullah's report concerning the nature and extent of the applicant's back injury. The commission does not read Dr. Jayaprakash's notes to mean that he thought the applicant completely healed from the back injury with no real residuals, as Dr. Nanda opined. Certainly, Dr. Jayaprakash does not state definitely that the applicant completely recovered from the work injury without permanent residuals. Indeed, Dr. Jayaprakash imposed a restriction against the heavier lifting the applicant routinely performed before the injury. Further, both Drs. Bahal and Rafiullah agreed that the applicant would have permanent residuals from the work injury.

Nor is the commission persuaded by the assertion that the applicant, a man in his fifties with no unexcused absences in a 25-plus year employment with the employer, invented or exaggerated symptoms because the work in the transmission plant where he was transferred after his injury was heavier and noisier than it was in the tractor plant where he was injured. For one thing, he is currently working in the transmission plant without complaints from his supervisor. Transcript, pages 90, 96. For another, it is not even all that clear the work in the transmission plant was heavier. His current supervisor, for example, admits work in the tractor plant could have been heavier (transcript, page 95), and the applicant testified the work at the transmission plant was much lighter than the tractor plant. Transcript, page 38.

The commission also cannot conclude that the applicant's knee injury was the result of an idiopathic fall. Comparing the applicant's testimony about the fall from the x-ray table with the statement of the technician who was also present, the commission must conclude that the applicant's testimony is more credible than Dr. Tolson's notes. The technician says she tried to catch the applicant, not that she broke his fall somewhat, and there is no mention of dizziness in her account. Further, it may persuasively be argued that arising from an examining table while treating for a work injury places a person in a "zone of special danger," taking the situation out of the realm of idiopathic injuries. (1) In short, the commission concludes that the knee injury was a consequence of treatment of a work injury, and compensable under Jenkins v. Sabourin, 104 Wis. 2d 309, 311 (1981). The commission also credits Dr. Barnhardt's uncontradicted opinion regarding the end of healing and extent of disability from the knee condition.

However, the commission does agree with the respondent's assertion that the applicant's entitlement to temporary disability ended on August 2, 2000, the date Dr. Barnhardt opined he ended healing from his knee injury. The commission reads the reports of Dr. Jayaprakash to mean that the doctor believed the applicant to have plateaued from the back injury by June 5, 2000, and concludes that Dr. Jayaprakash's September 14, 2000 treatment note meant to reiterate the earlier release date. Further, finding an earlier plateau date with respect to the back condition is consistent with Dr. Rafiullah's ability to rate permanent disability, which normally indicates an end of healing, based on an examination in July 2000. In short, the commission finds an end of healing for the back injury on June 5, 2000, based on Dr. Jayaprakash's note of that date. Because the applicant had not yet finished healing from the knee injury -- and would not do so until August 2, 2000 -- however, he remains entitled to temporary disability to that date.

Finally, the commission notes that the applicant claims multiple dates of injury in December 1999, February 2000, and April 2000. However, based on Dr. Rafiullah's practitioner's report at exhibit L, the commission concludes that the applicant's disability, including that arising from the April 2000 accident resulting in the knee injury, all relates back to the original December 1, 1999 date of injury.

In sum, the commission finds that on December 1, 1999, the applicant sustained an injury arising out his employment with the employer, while performing services growing out of and incidental to that employment. As a result, the applicant was temporarily and totally disabled from April 20 to August 2, 2000. In addition, the applicant sustained permanent partial disability related to his back injury at five percent compared to permanent total disability and related to his right knee injury at one percent compared to loss of the leg at the knee.

3. Calculation of award; medical expense; and retained jurisdiction.

The applicant is therefore entitled to compensation for temporary total disability from April 20 to August 2, 2000, a period of 14 weeks, 5 days, at the weekly rate of $538 (the statutory maximum for injuries sustained in 1999), totaling $7,980.33. The applicant was paid $5,544 in sickness and accident benefits during this period, which the applicant concedes must be repaid from the temporary disability award pursuant to Wis. Stat. § 102.30(7). See Exhibit B, and transcript, page 7, lines 11 through 15. Accordingly, the total amount due in temporary disability is $2,436.33.

The applicant is further entitled to permanent partial disability compensation for fifty weeks (for the five percent rating at the back), 4.25 weeks (for the one percent rating at the knee), and 0.85 weeks (for a multiple injury under Wis. Stat. § 102.53). This equals 55.1 weeks of compensation at the rate of $184 per week (the statutory maximum for injuries in 1999), totaling $10,138.40, all of which is accrued.

In all, the compensation awarded for temporary and permanent disability under this order equals $12,574.73. The applicant agreed to an attorney fee, set under Wis. Stat. § 102.26 at twenty percent of the disability compensation awarded, or $2,514.95. This amount, plus the attorney's costs of $368.08, shall be paid to the applicant's attorney within 30 days. The remainder, $9,691.71, shall be paid to the applicant within 30 days.

The applicant also incurred reasonable and necessary medical expense to cure and relieve the effects of the work injury documented in exhibit G as follows: $1,489 from All Saints Medical Group, of which $214.60 was adjusted from the bill, Community Health paid $746.40, Gallagher Bassett Services, Inc. (Gallagher) paid $308, and $220 remains outstanding; $436 from Rehab Physicians of Racine, of which $29.84 was adjusted from the bill, Gallagher paid $296.16, and $110 remains outstanding; $1,582 from Performance Enhancement, of which $12.24 was adjusted from the bill, and Gallagher paid the remaining $1,569.76; $516 from Neurological Clinic, of which $179.16 was adjusted from the bill and Community Health paid the remaining $336.84; $3,863.50 from St. Mary's Medical Center, of which $1,374.10 was adjusted from the bill, Community Health paid $649.40, Gallagher paid $783, and $1,057 remains outstanding; from Sports Medicine and Orthopedic, $557, of which $195 was adjusted from the bill and Community Health paid $202, and $160 remains outstanding; from Racine Radiologists Group, $843, of which Community Health paid $247, and Gallagher paid the remaining $596. In addition, the applicant incurred $74.47 in reimbursable medical mileage expense.

Based on the opinions of Drs. Barnhardt and Rafiullah regarding prognosis and further treatment, the commission cannot definitely say the applicant will not incur additional disability nor require further treatment. Accordingly, this order shall be left interlocutory to permit further orders and awards for future disability and additional medical expense.

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

The findings and order of the administrative law judge are affirmed in part and reversed in part.

Within 30 days, the employer and its insurer shall pay all of the following:

1. To the applicant, Nine thousand six hundred ninety-one dollars and seventy-one cents ($9,691.71) in disability compensation.

2. To the applicant's attorney, the sum of Two thousand five hundred fourteen dollars and ninety-five cents ($2,514.95) in fees and Three hundred sixty-eight dollars and eight cents ($368.08) in costs.

3. To All Saints Medical Group, Two hundred twenty dollars and no cents ($220.00) in medical treatment expenses.

4. To Rehab Physicians of Racine, One hundred ten dollars and no cents ($110.00) in medical treatment expense.

5. To St. Mary's Medical Center, One thousand fifty-seven dollars and no cents ($1,057.00) in medical treatment expense.

6. To Sports Medicine and Orthopedic, One hundred sixty dollars and no cents ($160.00) in medical treatment expense.

7. To Community Health, Two thousand one hundred eighty-four dollars and sixty-four cents ($2,184.64) as reimbursement of medical expense paid.

8. To the applicant, Seventy-four dollars and forty-seven cents ($74.47) in medical mileage expense.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed February 7, 2002
sharkda . wrr : 101 : 1  ND § 3.33  § 3.34

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. He found the applicant to be credible about his residual complaints, noting the applicant made a reasonable effort to continue working. He told the commission he regarded the applicant's testimony about how the knee injury occurred to be credible as well.

The commission adopts the ALJ's credibility impressions in this case. In any event, the commission's decision to reduce the temporary disability award did not depend on the credibility of any witness who testified at the hearing, but on the commission's reading of the reports of the medical exports, none of whom testified at the hearing. Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App.1998).

cc: 
Attorney James A. Pitts
Attorney Gary S. Stanislawski

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(1)( Back ) An idiopathic fall may occur when a person simply falls while walking on an unslippery, level surface at work, not due to any hazard or danger of employment, but instead due to a disease, physical disability, or condition personal to the injured worker. Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). Such an accident or fall, even though occurring while a worker is performing services for an employer, does not arise out of employment as is required under Wis. Stat. § 102.03(1)(e). In addition, an 'unexplained fall,' which is clearly attributable to neither an idiopathic fall nor evidence of a cause related to employment, is not compensable simply because it occurred while the worker is performing services. Id. On the other hand, "it has been said accidents arise out of employment if the conditions or obligations of the employment create a zone of special danger out of which the accident causing the injury arose. Stated another way an accident arises out of employment when by reason of employment the employee is present at a place where he is injured through the agency of a third person, an outside force, or the conditions of the location constituting a zone of special danger." Cutler-Hammer Inc. v. Industrial Commission, 5 Wis. 2d 247, 254 (1958). In cases of idiopathic falls and non-idiopathic but unexplained falls not resulting from a "zone of danger," then, the employer is not liable for injuries caused by the fall. However, where the fall occurs while the applicant is in a zone of special danger, it "arises out of employment" and is compensable. See, generally, Kraynick v. Industrial Comm., 34 Wis. 2d 107 (1967) and Briggs & Stratton v. ILHR Department, 43 Wis. 2d 398, 404-07 (1969). 

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