MICHAEL ROESCHEN, Applicant

WASTE MANAGEMENT INC, Employer

PACIFIC EMPLOYERS INS CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

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

Dated and mailed December 9, 2002
roescmi . wsd : 101 : 9  ND § 3.37

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

1. Injury; expert opinion.

The applicant worked for the employer as a roll-off driver. On December 13, 2000, the applicant fell on his right arm while getting into his truck. He had soreness in his shoulder and pain in his elbow and triceps. He sought treatment on December 18, 2000, which included x-rays that were negative for fractures or dislocation. Over the next few weeks, he was treated on diagnoses of contusion and sprain in the right shoulder and elbow. When he had not improved with physical therapy, a possible tendinitis at right biceps muscle insertion or brachialis muscle insertion, or possibly a partial tear of the tendon, was diagnosed.

On January 2, 2001, before his next-scheduled visit to treat the December 13, 2000 injury, the applicant suffered a second injury. He was working light duty, but slipped on some ice on the employer's premises, and threw his arms up. This caused his right arm to fully extend, and he heard a snap. He felt a sharp pain. He was taken by ambulance to St. Michael's hospital.

Another x-ray was done. This one showed an acute closed fracture of the humerus, which appeared pathologic through a large lucency in the distal humerus. He was put in a long arm splint.

The applicant was diagnosed with multiple myeloma -- that is, bone cancer. He then treated concurrently for his broken bone and his bone cancer. In February he underwent an open reduction procedure with internal fixation. He underwent physical therapy. A neurological problem in the arm -- right-sided brachial plexopathy -- was also identified and investigated.

Meanwhile, the applicant was undergoing chemotherapy, radiation treatment, and other cancer treatment procedures. These treatments caused fatigue, and challenged his recovery from the surgery. Indeed, one of his treating doctors opined the applicant had not yet recovered from the surgery as of March 2002.

At issue here is the relationship between work, the applicant's underlying cancer condition, and his broken humerus bone. To generalize, the applicant sees this as an "as is" case, compensable because work caused the applicant's injury, even though an underlying condition pre-disposed him to injury. The respondent, conversely, sees this as a noncompensable "Lewellyn 2" (1) situation where the broken bone symptom of the underling multiple myeloma merely became manifest at work.

Both sides submit supporting medical reports.

The applicant relies on the report of Dennis J. Anderson, M.D., his treating orthopedic surgeon. He submits a practitioner's report that lists both December 13, 2000, and January 2, 2001, as dates of traumatic event, and states:

"The patient describes slipping injuries of 12/03/00 and 1/2/01. It appears he suffered a pre-disposition to developing a fracture as a consequence of those injuries and that the fracture began with the first injury being completed with the second."

Dr. Anderson goes on to refer to his attached note which sets out a diagnosis of multiple myeloma, pathologic fracture of the right humerus, and radial nerve palsy. The note explains:

"Mr. Roeschen developed a cancerous lesion in his right humerus, which weakened the bone in such a way that he sustained a fracture through the lesion. Based on the patient's description, the fracture occurred in the routine performance of his job as a truck driver. There probably was a predisposition to developing a fracture, in the sense that it probably took less stress to fracture this bone than a normal bone without such a lesion. The bond likely was partially fractured on the first date, and he completed the fracture on 01/02/2001. The radial nerve palsy developed subsequent to the fracture, likely from the angulation of the fracture putting pressure on the nerve.

"I feel that the injury caused the fracture, although the force required to create the injury was lessened by the tumor, which weakened the bone. The tumor itself was not caused by the injury and predated the trauma. The surgery was performed to address the fracture, not the tumor per se. The patient also underwent radiation treatment, which was done to treat the tumor, not the fracture. The treatment for the radial nerve palsy (neurolysis, splinting, occupational therapy) would also be a result of the fracture, not the tumor itself."

See April 22, 2001 note of Anderson, exhibit A.

Dr. Anderson went on to opine the applicant was temporarily disabled, an opinion he reiterated in his follow-up report dated March 14, 2002.

The applicant also submits the report of his treating oncologist, Richard Odders, M.D., who listed a January 2, 2001 date of injury and stated:

"The patient experienced changes in his bone tissue which was caused by the multiple myeloma. It weakened the bone, which predisposed him to fracture it with minimal stress. The humerus, once weakened by the myeloma, likely fractured with minimal stress in the course of the injuries of 12/13/00 and 1/2/02."

Dr. Odders marked the "direct cause" box on the practitioner's report form, and attached a report stating:

"...the changes in the bone were caused by the patient's multiple myeloma, and could have weakened the bone and predisposed him to fracture with minimal stress. Some patients can break bones just turning over in bed."

The employer and its insurer (collectively, the respondent) rely on the opinions of two doctors.

David G. Blake, M.D., an oncologist, did a record review. He noted the December 13, 2000 slip and fall, and the January 2, 2001 slip causing the applicant to throw up his arms to regain his balance. He stated the applicant had a "particularly aggressive form of multiple myeloma," and observed:

"Lytic skin lesions are hallmark of multiple myeloma. These consist of thin bone created by myeloma deposits in the marrow cavity, dissolving surrounding bony tissue. The result can be pain, elevation of serum calcium level and, in many cases, fracture of the effected [sic] bone. A fracture through an area of dissolved bone, a so-called 'lytic lesion,' is known as a pathological fracture. This is in contrary distinction to a traumatic fracture which is caused by a significant injury or trauma to the bone. By definition, pathologic fractures can occur spontaneously in or in conjunction with normal activities of daily living such as coughing, rising from a chair, putting on a coat or rolling over in bed. No significant injury is required for such a fracture to occur. I believe that x-rays of the right humerus prior to the fracture on January 2, 2001, would show the lytic lesion if proper views had been taken.

"It is my medical opinion to a reasonable degree of medical certainty that Mr. Roeschen's lytic lesions and multiple myeloma predated his work injury of December 3, 2000, and January 2, 2001, and that this employment did nothing to `weaken' his arm, aggravate his symptoms, accelerate the lytic lesion, or cause the pathologic fracture he later sustained. The only connection between Mr. Roeschen's employment and his pathological fracture was temporal. It was purely coincidental with the fracture that occurred while he was on the job.

"To suggest legal causation in this case would be analogous to suggesting one's employment 'caused' an episode of flu because an individual's first sneeze occurred while on the job!"

Exhibit 1, report of Blake dated November 6, 2001.

The respondent also submits the report from Richard A. Lemon, M.D. He noted the slip and fall on December 13, 2000 and the slip on January 2, 2001, causing the applicant to "jerk[ed] his right arm." Dr. Lemon, who also did a record review, writes:

"Mr. Roeschen slipped and fell on the job on December 13, 2000. Mr. Roeschen did not sustain a fracture. Mr. Roeschen had several x-rays performed, which did not show any evidence of fracture. I would be interested in reviewing these x-rays. I believe they would reveal a lytic lesion of distal humerus, which was not diagnosed. I believe that Mr. Roeschen healed uneventfully from his alleged on-the-job injury of December 13, 2000, by December 26, 2000, when he was noted to have improvement in his elbow and shoulder pain, but was having distal humeral pain. This distal humeral pain is related to his lytic lesion caused by the multiple myeloma in his distal humerus.

"Mr. Roeschen's lytic lesion ultimately progressed to the point that simply contracting his muscle on January 2, 2001 caused a pathologic fracture of the distal right humerus. This distal right humerus pathological fracture is unrelated to Mr. Roeschen's slip and fall of December 13, 2000.
". . . 
"Mr. Roeschen's pathologic fracture, which occurred on January 2, 2001, is related only to his multiple myeloma. This pathologic fracture would have occurred regardless of Mr. Roeschen's occupation. This pathologic fracture would have occurred even if the on-the-job injury of December 13, 2000, had never occurred.."

Exhibit 2, April 3, 2001 report of Lemon, page 4.

Apart from causation, Dr. Lemon opined that the applicant would have reached an end of healing from the December 13, 2000 injury as of December 26, 2000. He reiterated that the increasing distal humeral pain later in December 2000, which increased dramatically on January 2001, is related only to the applicant's multiple myeloma.

2. Discussion.

The ALJ found for the applicant. The respondent appeals, arguing that the applicant's bone fracture was not caused by an accident at work, but by the multiple myeloma. The respondent does not challenge the amounts awarded, per se.

If a work accident causes disability, even though that disability may not have been caused in the absence of a pre-existing or congenital condition, the disability remains compensable. E.F. Brewer Co. v. ILHR Department, 82 Wis. 2d 634, 638 (1978). Thus, Wisconsin applies an "as is" rule under which an employer takes its workers subject to pre-existing conditions and predisposition to injury. Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968).

As ALJ Phillips points out in his decision, this principle is perhaps stated most directly in Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 528 (1971), where the supreme court wrote:

"Furthermore, an employee's predisposition to injury does not relieve the present employer from liability for workmen's compensation. In Green Bay Warehouse Operators, Inc. v. Industrial Comm. (1963), 19 Wis. 2d 11, 119 N. W. 2d 435, this court rejected a contention that a pre-existing tendency to instability of the shoulder joint, with a tendency to dislocate, relieved the employer of the consequence of liability for medical payments. The court quoted the following from M. & M. Realty Co. v. Industrial Comm. [at 267 Wis. 63]:

'. . . . [A]n employer takes an employee `as is' and the fact that he may be susceptible to injury by reason of a pre-existing physical condition does not relieve the last employer from being held liable for workmen's compensation benefits if the employee becomes injured due to his employment, even though the injury may not have been such as to have caused disability in a normal individual.'"

Similarly, the court has stated:

"The fact that the employee had a pre-existing diseased disc which was liable to herniate from even normal work effort as a bricklayer does not relieve the employer from liability. An employer takes an employee 'as is' and if he is suffering from a disease predisposing to breakage and an exertion required by the employment causes the breakage at the moment of exertion, the employer is liable under the act."

Brown v. Industrial Commission, 9 Wis. 2d 555, 570 (1960).

Along the same lines, an injury which induces or triggers the earlier onset of a deteriorative or degenerative condition is compensable under the worker's compensation laws. Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191, 226 N.W.2d 492 (1975). Thus, the commission has held respondents liable despite medical opinions that the worker might have eventually needed the same surgery to treat the pre-existing condition even if the work injury had not occurred. See, Ken Runde v. Brodbeck Enterprises, WC Claim No. 91041473 (LIRC, June 23, 1995) and James Klemp v. United Parcel Rhinelander, WC Claim No. 940035163 (LIRC, November 7, 1996).

In this case, the commission, like ALJ Phillips, concludes that while the applicant was pre-disposed to a humeral fracture by the multiple myeloma, the work accident or accidents caused the break. This case does not pose a situation where the applicant had a coincidental break unrelated to work activity.

The commission also notes that Drs. Lemon and Blake opined that the applicant fell on his right arm in mid-December without any lasting injury, but then broke his arm three weeks later with everyday activity in early January. This seems to suggest that sometime in late December his condition progressed from the point where he could fall without lasting injury to the point where he was in a class with people who sustain fractures rolling over in bed. The commission cannot credit that conclusion.

Given the fact that the applicant was not even aware he had multiple myeloma until he had the work accidents, and that the applicant apparently has had no other fractures since -- whether turning over in bed or otherwise -- the commission declines to credit the opinions of Drs. Blake and Lemon. Rather, the commission finds more credible the opinions of Drs. Anderson and Odders:  that the applicant's weakened condition from the cancer in tandem with the force of the work injuries on December 13, 2000 or January 2, 2001, or both, caused the applicant's broken bone.

cc: 
Attorney Richard A. Fortune
Attorney Robert H. Zilske

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(1)( Back ) See Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59 (1968). 

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