JASON SCHNEIDER, Applicant

GOLDEN COUNTY FOODS INC, Employer

ENGLE CONSTRUCTION INC, Employer

UNITED WISCONSIN, Insurer

WEST BEND MUTUAL INSURANCE COMPANY, Insurer

Golden County Foods, Inc. and United Wisconsin Insurance Company/United Heartland, Inc. submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on June 3, 2002. Briefs have been submitted by all the parties. The applicant sustained a conceded work injury to his back while working for Engle Construction Company, Inc. (West Bend Mutual Insurance Company-Insurance Carrier) on July 21, 2000. Two percent permanent partial disability was previously paid for this injury. At issue is whether the applicant sustained an additional injury arising out of and in the course of his employment with Golden County Foods on November 11, 2000, and whether apportionment of liability between the two injuries was appropriate. Medical expense, temporary disability, and permanent partial disability all remain at issue.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Order. The commission makes the following:

The applicant, whose birthdate is March 21, 1980, was employed as a millwright for Engle Construction. On July 21, 2000, he and a co-worker were together lifting heavy stainless steel beams up ladders. He was helping to lift one of these beams overhead when he experienced severe back pain which radiated all the way down his right leg into his foot. The pain also radiated down his left leg to about the level of his knee.

The next day the applicant saw his family physician who gave him a prescription and referred him to a chiropractor, Dr. Fred Raschke. Chiropractic treatments did not help and the applicant was referred to Dr. Richard Staehler, an orthopedic surgeon. Dr. Staehler's impression was low back and bilateral leg pain consistent with a herniated disc, probably at L5-S1. He continued conservative treatment, including physical therapy, which helped the applicant but did not resolve his pain. Dr. Staehler released the applicant to work with no limitations on August 17, 2000, but he continued to experience unresolved back and leg pain.

The applicant did not return to Engle Construction, but began working for Golden County Foods in late September of 2000. There his duties involved sorting and processing potatoes, including lifting trays of potatoes weighing approximately 35 pounds. On November 11, 2000, he was lifting one of these trays when he experienced sudden worsening of his back pain that radiated down both legs. He was seen by a nurse practitioner in urgent care on November 13, 2000, with symptoms of unremitting low back and bilateral leg pain, this time going all the way down the left leg and including a slight left foot drop. A lumbar MRI was ordered and it revealed large disc herniations at L4-5 and L5-S1. The applicant then came under the care of Dr. James DeWeerd, an orthopedic surgeon.

On November 14, 2000, Dr. DeWeerd took a history which included the injury at Engle Construction causing back and leg pain which ". . . got a little better but never totally better." Dr. DeWeerd's history then noted that the incident at Golden County Foods caused ". . . a significant recurrence of the identical symptoms he had before when lifting." On December 1, 2000, Dr. DeWeerd performed hemilaminectomies with disc excisions at L4-5 and L5-S1. The applicant experienced improvement after the surgery but he still experiences some back symptoms as well as a slight left foot drop. On September 27, 2001, Dr. DeWeerd assessed a 12 percent permanent partial disability. He opined that the work incident of July 21, 2000, aggravated and accelerated the applicant's preexisting degenerative disc disease beyond normal progression. He did not attribute any causation to the work incident with Golden County Foods.

At Golden County Foods' request, Dr. Stephen Weiss examined and evaluated the applicant on April 6, 2002. In his written report dated April 15, 2002, Dr. Weiss opined that the work incident at Engle Construction caused both disc herniations, but that the work incident at Golden County Foods permanently aggravated the preexisting left-sided herniation. Dr. Weiss opined that the development of the left foot drop after the second incident supported his opinion that there had been a permanent aggravation at Golden County Foods. He attributed two-thirds of the cause for the applicant's treatment and disability to the July 2002 injury, and one- third to the November 2000 injury. He assessed ten percent permanent partial disability in addition to the previously-conceded two percent.

At Engle Construction's request, Dr. Paul Cederberg examined and evaluated the applicant on February 14, 2001. In his report dated February 22, 2001, Dr. Cederberg opined that the applicant did sustain his two disc herniations in the incident at Engle Construction, but that the work activities at Golden County Foods permanently aggravated his back condition causing the surgery. Dr. Cederberg cited his understanding that the applicant was "minimally symptomatic" at the time he went to work for Golden County Foods. Dr. Cederberg did assess two percent permanency for the "non-surgically treated disc," but made no other apportionment.

The commission finds the opinion of Dr. Weiss, which attributes two-thirds of the cause for the applicant's treatment and disability to the injuries sustained at Engle Construction and one-third of the cause to the injuries sustained at Golden County Foods, to be credible. (1) The physicians all agree that the applicant sustained disc herniations in the incident at Engle Construction. Dr. Weiss credibly explained that the incident at Golden County Foods permanently aggravated the left-sided disc herniation at the L5-S1, and accelerated the need for the applicant's back surgery. He noted that after the incident at Golden County Foods, the applicant manifested a new symptom, the left foot drop. Dr. Weiss further explained that both injuries contributed to the applicant's condition, but that the injury at Engle Construction constituted two- thirds of the cause, having caused two disc herniations and ongoing symptoms.

The administrative law judge found that when there are two work injuries such as there were in this case, and a second work injury is a material factor in causing the need for the most recent treatment/surgery, the entire liability for the injured employee's condition rests with the second work injury and there can be no apportionment. However, where the credible medical evidence demonstrates that two or more work injuries each have contributed to the cause of an injured worker's medical condition, an apportionment of liability between such injuries is necessary pursuant to Wis. Stat. § 102.175(1). See also, Semons Department Store v. ILHR Department, 50 Wis. 2d 518, 524-25, 184 N.W.2d 871 (1971); Giant Grip Manufacturing Company v. Industrial Commission, 271 Wis. 583, 585, 74 N.W.2d 182 (1955). Dr. Weiss provided credible medical evidence that the two work injuries the applicant sustained in the case at hand, approximately four months apart, each contributed to the need for the applicant's surgical treatment and disability. The administrative law judge's reference to the legal principle that an employer takes workers ". . . as they find them . . . without subtraction for the effects of a previous work injury," would be applicable to the circumstance in which a preexisting injury or condition is completely separable from the effects of a later accidental injury. Semons at 524. However, pursuant to the credible opinion given by Dr. Weiss, that is not what occurred in this case.

Accordingly, liability for the applicant's medical treatment and additional disability beyond the originally-conceded two percent permanent partial disability is apportioned two-thirds to Engle Construction and its insurer West Bend Mutual Insurance Company, and one-third to Golden County Foods and its insurer United Wisconsin Insurance Company/United Heartland, Inc.

Temporary total disability is due for the period between November 14, 2000, and September 27, 2001, both dates inclusive, a period of 45 weeks and 3 days. The applicant's average weekly wage at Engle Construction was $320 which translates to a temporary total disability rate of $213.33 per week, which for two-thirds of the period in question totals $6471.01. A 20 percent attorney's fee ($1294.20) and
two-thirds of the costs ($91.51) shall be subtracted from this award. The applicant's average weekly wage at Golden County Foods was $280 which translates to a temporary total disability rate of $186.67, which for one-third of the period in question totals $2831.01. A 20 percent attorney's fee ($566.20) and one-third of the costs ($47.75) shall be subtracted from this award.

The permanent partial disability rate for both injuries is $184 per week. Based on apportionment at two-thirds and one-third, accrued permanent partial disability (through December 23, 2002) is due from Engle Construction/West Bend Mutual in the amount of $6002.49, and from Golden County Foods/United Wisconsin in the amount of $3001.25. Present value attorney fees against the permanent partial disability award are due from Engle Construction/West Bend Mutual in the amount of $2428.26, and from Golden County Foods/United Wisconsin in the amount of $1214.12. These fees take into account an interest credit of $37.61. The unaccrued permanent partial disability in the total amount of $5716.27 shall be paid in monthly installments at the rate of $531.55 from Engle Construction/West Bend Mutual, and at the rate of $265.78 from Golden County Foods/United Wisconsin.

Reasonably required medical expenses are also apportioned and due as set forth in the Interlocutory Order printed below.

Dr. DeWeerd indicated on his WC-16-B that he did not expect further medical treatment to be necessary, but in his final clinic note dated September 27, 2001, he indicated that he would see the applicant on an as-needed basis in the future. The applicant has undergone significant back surgery and continues to experience a slight left foot drop. The credible inference from these facts is that Dr. DeWeerd's clinic note accurately contemplates the possibility of future medical treatment and/or disability. Therefore, this order will be left interlocutory.

NOW, THEREFORE, this

The Findings and Order of the administrative law judge are affirmed in part and reversed in part. Within 30 days from this date, Engle Construction, Inc. and West Bend Mutual Insurance Company shall pay to the applicant as compensation for temporary total disability the sum of Five thousand eighty-five dollars and thirty cents ($5085.30); to the applicant as accrued compensation for permanent partial disability the sum of Six thousand two dollars and forty-nine cents ($6002.49); to applicant's attorney, Samuel J. Bomier, fees in the amount of Three thousand seven hundred twenty-two dollars and forty-six cents ($3722.46), and costs in the amount of Ninety-one dollars and fifty-one cents ($91.51); to St. Michael's Hospital the sum of Seven thousand three hundred forty-nine dollars and forty cents ($7349.40); to Rice Medical Center (Dr. DeWeerd) the sum of Four thousand one hundred ninety-three dollars and sixty-one cents ($4193.61); to Central Wisconsin Radiology the sum of Five hundred one dollars and thirty-three cents ($501.33); to Sevens Point Anesthesia Associates the sum of One thousand four hundred ninety-three dollars and thirty-three cents ($1493.33); to Physical Therapy Associates the sum of One thousand thirty-one dollars ($1031); to the applicant as reimbursement for prescription medical expense the sum of One hundred ten dollars and thirty-seven cents ($110.37); and to the applicant as reimbursement for medical mileage expense the sum of One hundred fifty-two dollars and seventy-three cents ($152.73).

Within 30 days from this date, Golden County Foods, Inc. and United Wisconsin C/O United Heartland, Inc. shall pay to the applicant as compensation for temporary total disability the sum of Two thousand two hundred seventeen dollars and six cents ($2217.06); to the applicant as accrued compensation for permanent partial disability the sum of Three thousand one dollar and twenty-five cents ($3001.25); to applicant's attorney, Samuel J. Bomier, fees in the amount of One thousand seven hundred eighty dollars and thirty-two cents ($1780.32), and costs in the amount of Forty-seven dollars and seventy-five cents ($47.75); to St. Michael's Hospital the sum of Three thousand six hundred seventy-four dollars and seventy cents ($3674.70); to Rice Medical Center (Dr. DeWeerd) the sum of Two thousand ninety-six dollars and eighty cents ($2096.80); to Central Wisconsin Radiology the sum of Two hundred fifty dollars and sixty-seven cents ($250.67); to Stevens Point Anesthesia Associates the sum of Seven hundred forty-six dollars and sixty-seven cents ($746.67); to Physical Therapy Associates the sum of Five hundred fifteen dollars and fifty cents ($515.50); to the applicant as reimbursement for prescription medical expense the sum of Fifty-five dollars and eighteen cents ($55.18); and to the applicant as reimbursement for medical mileage expense the sum of Seventy-six dollars and thirty-seven cents ($76.37).

Beginning on January 22, 2003, and continuing monthly thereafter, compensation for the currently unaccrued permanent partial disability shall be paid to the applicant by Engle Construction, Inc./West Bend Mutual Insurance Company in the amount of Five hundred thirty-one dollars and fifty-five cents ($531.55), and by Golden County Foods, Inc./United Wisconsin C/O United Heartland, Inc. in the amount of Two hundred sixty-five dollars and seventy-eight cents ($265.78), until the combined monthly payments have totaled Five thousand seven hundred sixteen dollars and twenty-seven cents ($5716.27).

Jurisdiction is reserved for such further findings and orders and as may be warranted.

Dated and mailed December 23, 2002
schneja . wrr : 185 : 3   ND § 3.43

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: 
Attorney Joseph Berger
Attorney Peter Nelson
Attorney Samuel J. Bomier

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(1)( Back ) Dr. Weiss applied his two-thirds apportionment to all treatment and disability except for the two percent permanent partial disability and treatment expense previously conceded and paid by Engle Construction/West Bend Mutual Insurance.

uploaded 2003/01/03