VICKY L VAN VONDEREN, Applicant

MILLER ELECTRIC MFG CO, Employer

MILLER ELECTRIC MFG CO, Insurer
c/o CAMBRIDGE INTEGRATED SERVICES

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 August 14, 2002
vanvovi . wsd : 101 : 8  ND § 3.4  § 3.42  ND § 5.9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The applicant was born in 1956. At issue now is the applicant's claim for disability from a back injury on November 17, 2000. At the hearing, the applicant testified that she experienced instant lower back pain about 11:00 am, as she tried to drag a piece of plywood. She had never experienced similar pain in the past, and by the end of the week, her foot was numb.

Among the notes of the applicant's chiropractor, Roberta Houk, D.C., at Exhibit D is a Worker's Compensation questionnaire which does not appear to be dated. It describes the accident as:

Carrying 4x8 sheets of plywood from pile to inside semitrailer to put between welders getting shipped out, getting off and on forklift numerous times in a day. Dragging plywood and tilt uncomfortable when getting back on forklift. Called chiro that day, went for adjustment, did not help, went back Tues and Wed then called [DR?].

The applicant reported having seen Drs. Rigstad and Sheldon, who diagnosed a herniated disc at L5, S1.

Indeed, Exhibit 2 contains a note dated November 24, 2000 from Eugene Rigstad, M.D. He noted that the applicant presented to the office for evaluation of low back pain with radiation into the posterior left leg, which had been bothering her for the past couple of weeks. She referred to a longstanding history of back pain for which she had been seeing a chiropractor. She told the doctor, however, that she had not had any significant left leg pain until recently. She mentioned she worked at Miller Electric, but did not mention any work injury. Dr. Rigstad's diagnostic assessment was left lower back pain with radiation into the posterior left leg, highly suspicious for sciatica. He instructed her to follow-up with Dr. Sheldon, her primary care physician.

Kari Sheldon, M.D., saw the applicant on November 28, 2000, and reported that the applicant presented for a recheck of back pain. She told the doctor her problem started at work about 10 days ago, and reported that she drove a forklift and lifted ply boards weighing up to 25 pounds. Dr. Sheldon diagnosed left back pain/left sided sciatica. She prescribed medication, told her to avoid aggravating activity, and scheduled a recheck. She also set job restrictions against heavy lifting.

The applicant saw Dr. Sheldon again on December 1, 2000. On this occasion, the doctor noted that the applicant's pain started at work, though she was not sure exactly how it occurred. The applicant thought she was better compared to the prior week. Dr. Sheldon's diagnosis was lower lumbar pain with left-sided sciatica, and possible L5-S1 disc herniation.

The applicant also completed an accident and short-term disability benefit claim form on December 1, 2000. Exhibit 5. In response to the question "What happened?" The applicant wrote:

"Not sure, by noon on 11/17 my back felt funny I called and made appointment with chiropractor that day, I went to chiro 3 times with no relief and she told me to go to doctor."

Dr. Sheldon, who also signed the form on December 1, 2000, diagnosed a possible disc herniation, and indicated the condition arose out of the applicant's employment. She also indicated the applicant was "continuously totally disabled and unable to work from 11/23 to the present (then, December 1, 2000.)"

The applicant was seen again by Dr. Sheldon on December 15, 2000. During this visit, Dr. Sheldon noted the applicant had apparently been off work for about a week due to her condition. Dr. Sheldon reported she had not written any restrictions (apparently forgetting the restriction against heavy lifting of November 28, 2000), and stated the applicant had simply chosen not to work because of the pain. Dr. Sheldon did not state, however, whether the applicant could return to work.

On December 18, 2000, the applicant filled out an "occupational injury/illness investigation" report for the employer. Exhibit H. She reported she felt fine before November 17, 2000, but on that day after dragging a 4x8 sheet of plywood inside a trailer as she got back on her forklift her back felt uncomfortable or "did not feel right." She indicated she called her chiropractor that day, and was seen, but it did not help.

Richard A. Staehler of the NeuroSpine Center of Wisconsin then saw the applicant on January 5, 2001. She completed a questionnaire in which she noted back pain occasionally going into the left leg, occurring instantly with dragging 4x8 sheets of plywood into a semi-trailer at work. She reported that this injury was significantly different than her prior complaints of sore back muscles. In his treatment note, Dr. Staehler reported the injury occurred when she dragged a 4x8 sheet of plywood into a semi truck for blocking

Noting the L4-5 herniated nucleus pulposus, Dr. Staehler diagnosed low back and left radicular pain, which was significantly improved with conservative measures. He wanted her to continue physical therapy, and, stating he "will get her back to work" released her to return to work in light duty, part-time at first. The applicant in fact returned half-time, for about a week, pursuant to Dr. Staehler's release. She then went to full time and has worked full time ever since.

After some continuing treatment, Dr. Staehler noted on July 25, 2001, that the applicant was still doing well, though complaining of intermittent low back pain with increased heavy lifting. He thought she would do well in the future, but might experience chronic intermittent discomfort. He stated his impression of a history of an L4-5 protrusion with radicular leg pain, and intermittent low back discomfort, which he thought would be baseline. Dr. Staehler anticipated an end of healing three weeks hence, with no permanent partial disability and no restrictions, assuming she did not have an exacerbation.

The applicant provides expert medical opinion on the cause, nature and extent of her disability from three sources. Primary care doctor Sheldon submitted a practitioner's report dated February 8, 2001 at Exhibit A. She describes the work exposure to which the applicant attributed her disability as operating a forklift and does heavy lifting (plywood, etc.) to 25 pounds. She diagnosed a possible disc herniation, and indicated the applicant's disability was caused by the work exposure. She expected a full recovery "over time," and doubted there would be any permanent disability.

Treating spine specialist Staehler prepared a report on February 8, 2001, which is at Exhibit B. He referred to his notes for the cause and diagnosis of the applicant's disability, and he indicated that disability was caused directly by an event occurring on November 17, 2000, referring to his notes which refer to pain coming on instantly while dragging the plywood sheets. Dr. Staehler did not know whether the applicant would have permanent disability, but did think her prognosis was good.

In addition, Dr. Staehler stated in a letter dated July 25, 2001:

Vicky is a patient of mine whom I have been following for her low back and left leg pain. She had left L4-L5 disc progression with left radicular leg pain. This is a work-related injury as she was sliding a 4x8 sheet of plywood into a truck. She has had intermittent in [sic] the past, but has never had radicular pain such as this. I do believe this is a work-related injury. She will reach an end of healing plateau in two weeks from today if she does not have an exacerbation of pain. She is returning to full-time work without restriction. I do not anticipate any permanent restrictions or any permanent disability. Overall, she is doing very well, but I do believe this was caused from a work-related injury.

See Exhibit 3.

Finally, the applicant submits the report of chiropractor Houk (Exhibit C) who saw the applicant on November 17 and 22, 2000, before referring her to a medical doctor. Dr. Houk's report states that the applicant attributed her injury to

"dragging 4x8 sheets of plywood from pile to inside semi-trailer to put between welders getting shipped out, getting on and off forklift numerous times in day, dragging plywood felt uncomfortable getting back on forklift."

Dr. Houk diagnosed a strain or sprain of the iliac crest, though he of course was no longer seeing her when she underwent the MRI showing nerve impingement.

The ALJ found the applicant sustained a compensable injury, and awarded compensation for temporary disability from November 23, 2000 through January 14, 2001. The ALJ noted that the applicant testified at the hearing and told
Dr. Staehler on January 5, 2001 that she had a back injury while lifting or moving a specific piece of plywood on November 17, 2000. However, the ALJ found the injury was caused by occupational disease, that is work activity generally on November 17, 2000, rather than a specific event.

In making that finding, the ALJ acknowledged that the applicant had not always attributed her onset of pain to an acute onset while moving a specific piece of plywood, but concluded this was not a deliberate lie, but rather an understandable memory lapse. He noted that Drs. Houk and Sheldon both opined that the applicant had a compensable injury on that history, and the respondent offered no medical opinion in rebuttal.

The respondent raises essentially two points on appeal. First, the respondent contends that the applicant's changing description of the relationship of the work activity to her symptoms, and her initial disinclination to associate her symptoms to the injury, creates legitimate doubt. (1) Second, the respondent argues that even if causation is found, there is no support for the five-week temporary disability award, as no doctor ever actually took the applicant off work.

Regarding causation, the commission notes that the ALJ's finding of an "occupational disease" from one day's work exposure is consistent with the commission's prior holdings recognizing that disability may be caused by work exposure that is relatively brief, but not so sudden or traumatic as to be an accident. Charles F. Meyers v. Fort James, WC Claim No. 1998002628 (LIRC, December 8, 1999). Further, the fact that the applicant may not have immediately associated her injury with work exposure does not necessarily mean the exposure did not cause her condition, as causation by occupational exposure may not provide the clear cause-and-effect of an accidental injury. (2)

However, this case has the added fact of the applicant's sudden recall two months out from the injury of a traumatic or instant onset of pain while lifting a particular piece of plywood. That is, the earlier medical notes of Dr. Houk and Dr. Sheldon and the "occupational injury/illness investigation" report only an onset of pain at work following activity in which she moved large plywood pieces and got off and on her forklift. Beginning with her treatment with Dr. Staehler in early January 2001 and thereafter through the hearing, the applicant remembered an instantaneous onset of pain with a traumatic accident.

The respondent suggests that the applicant was changing the facts to make a "better" case, creating at least legitimate doubt as to how her disability occurred. Equally problematic is that one doctor, Dr. Staehler, relies on this traumatic accident history in stating his opinion on causation.

However, the ALJ who saw the applicant testify did not believe she was inventing a better history, so much as simply not recalling the event correctly after the passage of time. The commission conferred with the presiding ALJ concerning the applicant's credibility and demeanor on this point. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ described the applicant as straightforward and honest in her presentation, satisfying him she was not changing facts to create a better case for a work injury.

In addition, of course, the applicant has been relatively consistent about reporting the onset of symptoms at work, and mentioning the activity with the plywood boards, at least after the very first treatment with Dr. Rigstad. Indeed, Dr. Sheldon did report that the activity on November 17, 2000 was a work-related cause for her disability in her certification of the applicant's claim under the non- industrial disability policy on December 1, 2000. At that time, of course, the applicant had not yet begun to recall a sudden onset of pain while moving a specific plywood board.

The next issue is whether the ALJ properly awarded temporary disability compensation for the periods set out in his order. The commission acknowledges that the applicant did not introduce a formal release from work from either Dr. Sheldon or Dr. Houk for the period of temporary total disability claimed from November 17, 2000 to January 8, 2001, and that Dr. Sheldon's December 15, 2000 note indicates that the applicant seemed to have taken herself off work without a formal release. The commission also acknowledges that it generally denies disputed periods of temporary disability unless supported by expert opinion. See, for example, John Goldsworthy v. Ruffalo Special Pizza II, WC Claim No. 96052840 (LIRC, February 10, 1998); Clausing v. Water Services of America, WC claim nos. 1994031641 and 1998000785 (LIRC, September 24, 1999).

In this case, however, while stating that the applicant had taken herself off work in her December 15 note, Dr. Sheldon did not state that the applicant could go back with restrictions. When Dr. Staehler did set restrictions in early January 2001, the applicant returned to work immediately. More to the point, however, in the non-industrial disability claim form she completed on December 1, 2000 (Exhibit 5), Dr. Sheldon stated that the applicant was continually and totally disabled from November 23, 2000 to December 1, 2000, and that she (Dr. Sheldon) was uncertain when the applicant "should be able to return to work." Dr. Sheldon guessed the applicant could possibly return on December 8, 2000, but subsequently never actually released the applicant to return to work with or without restrictions.

In short, the commission is satisfied that the record supports the temporary disability compensation that the ALJ awarded.

cc: Attorney M. Christine Cowles

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(1)( Back ) See Kowalchuk v. LIRC, 2000 WI App 85, 234 Wis. 2d 203, 25-27.

(2)( Back ) On this point, the commission has observed: "Further, the fact the applicant initially treated the condition as non-occupational is not dispositive. The applicant is neither a doctor nor a lawyer. She is a lay person who cannot be expected to understand the medical [relationship] between her occupational exposure and her back, or to be aware that such a condition is even compensable." Susan Brown v. Sams Club, WC Claim No. 1998-012372 (LIRC, August 31, 1999).

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