STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN A HANSON, Applicant

NEKOOSA PAPERS INC, Employer

NEKOOSA PAPERS INC , Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1997022633

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.


INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 30, 2003
hansojo . wsd : 185 : 3 ND § 3.4  § 3.37 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Respondents have made several arguments in their petition. They argue that the nonindustrial weightlifting incident, which occurred somewhere between 1983 and 1985, should be considered causative. They assert that this is a particularly credible argument because the applicant appeared to be evasive concerning his recollection of that incident. However, while Dr. Lemon described the weightlifting incident as constituting the applicant's "original injury," his diagnosis was preexisting multilevel degenerative disc disease of the lumbar spine. Dr. Lemon did not describe the weightlifting injury as resulting in a permanent disability; and if he had, he would also have had to explain how the applicant was able to perform the physically stressful work which he did for the employer, without restriction, up until January 25, 2000. Consistent with Dr. Galuk's opinion, the commission inferred that the weightlifting incident was simply too far removed from the disability onset of January 2, 2000, to have been causative.

Respondents next argue that Dr. Galuk's opinion concerning causation is not credible because he described the onset of an occupational back disease in his clinic note dated January 31, 2001. However, in his WC-16-B completed on March 20, 2001, he indicated that the work incidents of March 28, 1997, and January 25, 2000, precipitated, aggravated, and accelerated the applicant's disc disease beyond normal progression. Respondents argue that these two opinions are inconsistent.

It is true that in rendering his medical opinions Dr. Galuk implicated two theories of causation. However, in rendering its legal opinion, the court did the same thing in a similar case involving a compensable back claim. See Shelby Mut. Ins. Co. v. DILHR, 109 Wis. 2d 655, 327 N.W.2d 178 (Ct. App. 1982). In Shelby, the court introduced and approved the concept of occupational back disease as a legitimate legal theory of causation in Wisconsin. Id. at 662. After doing so, it further held that the applicant in that case could also recover under the "precipitated, aggravated, and accelerated" causation theory. (1)  Id. at 662-63. In other words, in the case of a back injury which results from occupational exposure which includes cumulative traumatic injuries, both legal theories of causation are applicable. Dr. Galuk reached the same conclusion from a medical perspective in examining the applicant's medical and work histories. There is no inconsistency in his opinion; rather, it is a particularly perceptive opinion which credibly recognizes all the work-related elements which were causative of the applicant's back condition.

Respondents also argue that they were disadvantaged because Dr. Lemon did not know the applicant was going to claim an occupational back disease, and therefore addressed his opinion only to the claimed traumatic injuries of March 1997 and January 2000. However, Dr. Lemon opined that the applicant's degenerative disc disease was entirely related to nonindustrial factors, and would have occurred regardless of the applicant's occupation (Dr. Lemon's history recounted that the applicant had worked as a millwright for the employer for 27 years). This amounted to an unequivocal opinion to the effect that the applicant's work for the employer was in no way causative of his back condition. Dr. Lemon indicated that he would not have changed this opinion regardless of what the applicant's occupation had been, or even if he had been unemployed. Thus, Dr. Lemon did address the question of occupational back disease in unmistakable terms.

Finally, respondents assert that Dr. Galuk's assessment of ten percent permanent partial disability is too high for a nonsurgical back injury. The difficulty with this assertion is that Dr. Lemon assessed the same percentage of permanency. While Dr. Lemon attributed all the permanency to what he considered to be a nonindustrial condition, the commission's conclusion is that this was a compensable, work-related condition. Based on the record before it, the commission would be required to speculate to find any percentage of permanency other than ten percent.


cc: 
Attorney Robert J. Craanen
Attorney John Symonds

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Footnotes:

(1)( Back ) This is the causation theory found in Lewellyn v. DILHR, 38 Wis. 2d 43, 58-59, 155 N.W.2d 678 (1968): If the work activity precipitates, aggravates and accelerates beyond normal progression, a progressively deteriorating or degenerative condition, it is an accident causing injury or disease and the employee should recover even if there is no definite "breakage." [Citations omitted.]

 

uploaded 2003/02/10