JOHN F ELZINGA, Applicant
BERGHAMMER CONSTRUCTION, Employer
ST PAUL FIRE & MARINE 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 April 23, 2003
elzinga . wsd : 101 : 1 ND § 3.31 §
5.21
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
James T. Flynn, Commissioner
1. Factual background.
The applicant was born in 1945. He has been a construction laborer for the last 31 years. On February 15, 2001, while working on a guard rail as part of a "build- out" at a factory, he misstepped and fell four or five feet to a metal shelf. He reported the injury and continued to work.
Immediately after the fall, the applicant was sore, but he did not notice any significant symptoms. The next day, however, he noticed a limp coming on all of a sudden. After three days, the limp got worse, and he consulted a doctor. By March 20, 2001, the applicant's doctor noted complaints of muscle spasm and twitching, but that the applicant felt more comfortable leaning forward. The applicant subsequently began treatment with a neurologist, Raymond Rybicki, M.D., who referred the applicant to a specialist in movement disorders, Marianne Spanaki-Verelas, M.D.
The employer and its insurer (collectively, the respondent) agree that the applicant suffers from spinal myoclonus (also called truncal or segmental myoclonus), a neurological condition that is disabling. The two issues here are whether the condition arose out of his employment with the employer (so that insurer must pay the resulting disability compensation and medical expenses) and, if so, whether the applicant is permanently and totally disabled from the condition.
2. Did the fall at work cause the applicant's myoclonus condition?
a. Expert medical opinion on cause.
The record contains substantial expert medical opinion on the question of the relationship of the applicant's condition to his fall at work.
Dr. Rybicki stated in a letter dated July 13, 2001, that the applicant's truncal myoclonus was directly caused by the applicant's fall at work, and that as result he was restricted from employment except possibly for a desk job. Exhibit A.
In an August 31, 2001 letter, Dr. Rybicki stated:
"...diagnosis is propriospinal myoclonus. Spinal myoclonus is a rare entity which may be due to trauma, tumor or myelopathy. Other etiologies were ruled out. The myoclonus occurred immediately after a work-related injury. Thus, I feel the condition is directly related to the injury of February 15, 2001."
Exhibit C.
Further, in an April 9, 2002 letter, Dr. Rybicki stated:
"[The applicant] is afflicted with truncal myoclonus, also known as propriospinal myoclonus, which is a rare entity of unknown etiology which may be due to trauma. According to the patient history supplied, it is associated with a work-related injury of February 15, 2001."
Exhibit B.
The record also contains the deposition testimony of Dr. Spanaki-Verelas. She explained that she saw the applicant for abnormal movements of his trunk, which she diagnosed as myoclonus -- rapid jerking movements precipitated or exacerbated by movement. When the applicant extended his trunk, the jerking movements became worse to the point he could not keep his balance. Deposition, page 10.
Dr. Spanaki-Verelas further testified that the myoclonus was only present with certain postures, extension mainly, and the applicant could eliminate it with other postures, such as lying down. Deposition, page 11. She went on to testify that the specific condition the applicant had was variously called truncal myoclonus, segmental myoclonus, or propriospinal myoclonus. The medical literature suggested it could be due to an infection of the spinal cord, to multiple scleroses, to tumors in other parts of the body that might affect the nervous system, or to trauma.
Dr. Spanaki-Verelas testified she did a blood test that was inconclusive, but then did radiographs to rule out a primary tumor. She did other tests, and found no apparent cause. This left trauma as the only cause for the condition remaining from those stated in the medical literature.
The doctor considered whether the symptoms, which started three days after the fall, were merely coincidental. She ultimately determined she could not say. Even as of the date of the deposition, she declined to say one way or another. Deposition, page 18. Her testimony seems to suggest that if trauma were the cause, she'd have expected to have seen signs of the trauma either to the head or the spinal cord.
On examination by the applicant's attorney, Dr. Spanaki-Verelas was asked about Dr. Rybicki's willingness to opine that the applicant's myoclonus condition was caused by trauma. She stated:
"In this particular case, we excluded everything but trauma, so it does make some sense to say yes, it's due to trauma, but it has to do with each physician's -- how to say -- approach to come up with a definite diagnosis. I really cannot make this diagnosis. I cannot. But it's something personal, and I bet if you ask 100 physicians, each one will have a different opinion."
Deposition, page 39.
The applicant's attorney also asked Dr. Spanaki-Verelas about an article done by Joseph Jankovic, M.D., whom she regarded as one of the best experts on movement disorders in the country. In his article, Dr. Jankovic discussed the possibility that a peripheral injury -- as opposed to a head trauma -- might be linked to movement disorder by coincidence. To distinguish between myoclonic disorders actually caused by trauma, and those merely coincidentally starting after trauma, Dr. Jankovic set three criteria:
Dr. Spanaki-Verelas agreed these seemed reasonable, but she suggested a fourth criteria: that the trauma be something that causes some gross abnormality, some contusion, or something that appears on neuroimaging studies. Deposition, pages 44-46.
Dr. Spanaki-Verelas did admit that she had ruled out anything other than trauma as a cause of the condition (deposition, page 46), or at least all of the potential etiologies mentioned in the research articles (deposition, page 53). She agreed his condition was genuine; that he was not faking myoclonus.
One last point was brought out on cross-examination. As explained below, Dr. Novom, an independent medical examiner retained by the insurer, suggested the applicant -- who indicated that he has three beers a night -- refrain from alcohol for a trial period. Dr. Spanaki-Verelas indicated she thought that was unnecessary, though she also believed he drank socially so there were prolonged periods he did not drink anyway. She indicated, further, that the medical literature did not show alcohol as a cause of myoclonus but may in some individuals stop the condition. Deposition, pages 27 to 29.
The respondent introduced the expert medical opinion of Allan Kagen, M.D., who examined the applicant in June 2001, which would be before the referral to, and testing by, Dr. Spanaki-Verelas. Dr. Kagen did observe the myoclonic jerking, but as a neurosurgeon he deferred to medical neurologists regarding the jerking. He acknowledged the possibility they were nonorganic -- which the commission assumes means that Dr. Kagen suggested the applicant may have been inventing the jerking symptoms. Dr. Kagen wanted to wait until the further testing -- ultimately done by Dr. Spanaki-Verelas -- was completed. Dr. Kagen did, interestingly, observe that the applicant tended to be stoic regarding his discomfort. Exhibit 1, report of Kagen, pages 18-19.
The employer also relies on the opinion of Marc Novom, M.D. He agreed, too, that the applicant genuinely suffered from spinal myoclonus. He specifically ruled out symptom magnification and "psychogenic tremor," laying to rest the possibility of a "non-organic" problem hypothesized by Dr. Kagen.
Regarding the origin of spinal myoclonus, Dr. Novom discusses not only the Jankovic article concerning post-traumatic movement disorders, but also notes that "Hoehn and Cherington cite lesions including tumor, infection, trauma and degenerative processes." Exhibit 2, report of Novom, page 5. Dr. Novom summarizes the medical literature as follows:
"The concept of post-traumatic movement disorders has been advanced by Dr. Jankovic including tremor, dystonia and myoclonus based on close temporal profile or chronology of trauma followed by development of movement disorder. There is greater reported experience of myoclonic jerking following head trauma not necessarily requiring severe or prolonged loss of consciousness. Despite Jankovic espousing the role played by trauma even involving the peripheral nervous system producing movement disorders applying criteria that the injury must have been severe enough to cause local symptoms persisting for at least two weeks or requiring medical evaluation within two weeks of the peripheral injury, that the onset of the movement disorder must have occurred within a few days or months (up to one year) after the injury, and that the onset of the movement disorder must be anatomically related to the site of injury, other noted investigators challenge these extraordinarily open and vague criteria especially in matters of compensation issues."
Exhibit 2, page 6.
Dr. Novom then went on to discuss Dr. Heilman's study dealing with orthostatic tremor, where patients would have the symptoms standing, but not when walking, seated or lying down. A characteristic of this type of tremor or trembling is that it would be overcome with walking, which of course is not the case with the applicant. Another characteristic was that the individuals in Heilman's study did not show the synchronous rhythmical movements "as one finds with segmental myoclonus best characterizing Mr. Elzinga's state." Despite these dissimilarities, Dr. Novom was
"...struck by mid-late age onset of such unusual tremor without invoking traumatic etiology. Thus, merely documenting close temporal profile of trauma to onset of myoclonus or other movement disorder may represent nothing more than coincidence rather than establishing cause-effect relationship."
Exhibit 2, page 7.
Dr. Novom went on to summarize his opinion regarding causation as:
"It is my opinion, Mr. Elzinga suffers from a genuine physiologic-based disorder of spinal myoclonus to which the pathogenic mechanism or etiology is currently lacking and unbeknownst to this examiner. Despite the seeming close chronology of abnormal movement disorder following albeit relatively minor traumatic injury to the back such course of events in no way implies certain cause-effect relationship. Having said as much, I cannot entirely exclude some contributory role played by the traumatic work event in question nor is there is sufficient information to support opinion to degree of medical probability linking the slip and fall of February 2001 at work with resultant back injury to development of spinal myoclonus in the case of Mr. Elzinga."
In a follow-up report, Dr. Novom criticized Dr. Rybicki's opinion relating the applicant's condition to trauma as speculative or conjectural. Dr. Novom suggested that Dr. Rybicki jumped to the conclusion of work-relatedness, without considering the possible clue shown by "a minimally elevated CSF protein of 55 mg percent which admittedly is not particularly illuminating in isolation..." Exhibit 3, page 2. Dr. Novom also suggested Dr. Rybicki should have considered the applicant's chronic alcohol intake (again, the applicant told both Rybicki and Novom he drinks three beers a night).
b. ALJ decision regarding cause; PCR.
The ALJ credited the expert medical opinion of Dr. Rybicki and found a compensable injury. The commission agrees.
On appeal, the respondent emphasizes the refusal of Dr. Spanaki-Verelas, whom the applicant saw on referral from treating doctor Rybicki, to opine that the applicant's fall on February 15, 2001 caused his myoclonus. The respondent also asserts that there must be some radiographic evidence of trauma to establish a causal connection to myoclonus, and that the Jankovic criteria for associating trauma with myoclonus are not commonly accepted in the medical community.
c. Discussion regarding cause.
In essence, the respondent's defense on this point seems to be the absence of an x-ray or radiograph showing some kind of breakage or indication of pathological damage from the fall. However, as far as the commission can tell, the only doctor who indicated that such radiograph or x-ray would be a sine qua non of a compensable myoclonus is Dr. Spanaki-Verelas. Dr. Novom does not appear to make this specific assertion -- at least as far as the commission can tell -- nor could the commission locate it elsewhere in the literature he provided. Certainly, a radiograph or x-ray is not a requirement under the Jankovic criteria.
With respect to the Jankovic criteria generally, Dr. Novom does provide a citation in his report to support his claim that "other noted investigators challenge [Jankovic's] extraordinarily open and vague criteria especially in matters of compensation." However, Dr. Novom's cited authority appears to be to two letters to the editor reprinted at October 1995 Neurology 45, page 1950. The first, from M.L. Boczo, M.D., states that the question of the relation of trauma to the genesis of neurologic disorders "is often a difficult one to resolve in practice," and discusses the case of a patient who had an uneventful recovery after being struck by an automobile but consulted the doctor "several months later for what appeared to early Parkinson's disease." The second letter, from W.J. Wiener, M.D., and L.M. Shulman, M.D., posits the hypothetical of a man who hurts his wrist playing tennis, seeks treatment for a sprain, and develops a hand tremor 11.5 months later.
These letters, to the commission's view anyway, fall short of indicating general disapproval of Dr. Jankovic's criteria within the medical community as Dr. Novom suggests. Indeed, Dr. Jankovic responded to the letters by stating that the concept of peripherally-induced trauma is generally accepted, and that his diagnostic criteria are similar to those cited by other investigators. October 1995 Neurology 45, page 1951.
Dr. Novom, to be sure, emphasizes the statement in the letter from Drs. Wiener and Shulman criticizing Dr. Jankovic's three-factor test for a connection between trauma and myoclonus as vague and overly inclusive. Interestingly, Dr. Novom's initial opinion seems to suggest a connection between the applicant's condition and the onset of "mid to late age," citing Dr. Heilman's study of three individuals who admittedly had distinguishable tremors. In his second report, Dr. Novom focuses on Dr. Rybicki's failure to follow up on the minimally elevated CSF level which Novom admitted was not particularly illuminating in isolation. Further, while Dr. Novom suggests the applicant's beer drinking as a cause that must be ruled out, Dr. Spanaki-Verelas specifically downplayed the role of alcohol with respect to myoclonus on cross-examination by the respondent's attorney. After carefully considering Dr. Novom's reports, the commission cannot conclude that they are more credible than Dr. Rybicki's.
For her part, of course, Dr. Spanaki-Verelas was unwilling to give an opinion one way or another. This is based at least in part on her reluctance to accept the Jankovic criteria for distinguishing trauma-induced myoclonus from trauma-coincidental myoclonus, at least without amending the test to require a trauma significant enough to show up on a radiograph. However, Dr. Jankovic's criteria do require a significant enough injury to either remain symptomatic for two weeks or to necessitate treatment with a doctor.
Finally, the commission is not required to decide whether Dr. Jankovic's factors are sufficiently predictive of trauma-induced myoclonus to gain acceptance in the neurological community, or whether his three-factor test should be adjusted or supplemented to gain wider acceptance. Rather, this case is about whether the applicant's disabling myoclonus was caused by his conceded accident at work. Given the facts that Dr. Jankovic's criteria have been met; that the applicant suffered a relatively serious fall; that he undisputedly developed segmental or truncal myoclonus not weeks or months after the injury, but days after; and the general agreement among the medical experts -- including Dr. Novom -- that spinal myoclonus can be caused by trauma, the commission, like the ALJ, is persuaded that the applicant's disability arose out of his employment with the employer.
3. Extent of disability from the myoclonus.
a. Expert opinion.
Regarding the nature and extent of the applicant's disability from his myoclonus condition, Dr. Rybicki stated in his August 31, 2001 letter:
"At this time I feel Mr. Elzinga is currently temporarily totally disabled from returning to any type of gainful employment and is in a healing period. His prognosis is uncertain due to the rarity of this type of disorder. He is being tried on different medications, and I would presume that titration and trials of medications will take anywhere from six months to a year until we can effectively state that he has reached a healing plateau or has a permanent disability."
Exhibit C.
In a February 18, 2002 letter he stated that the applicant was disabled from pursuing gainful employment. Exhibit A. Further, in an April 9, 2002 letter, Dr. Rybicki stated:
"I feel he has reached a healing plateau. Permanent partial disability would be 10% taken of the body as a whole. He has failed on all pharmacotherapeutic protocols that were tried. Permanent restrictions placed upon him include no climbing ladders or heights over three feet. Prognosis at this time is guarded. In the future, he will be in need of trials of medications, anti-inflammatories and muscle relaxants as well as physical therapy."
Exhibit B. In a handwritten letter dated April 9, 2002, Dr. Rybicki indicated the applicant would be off work for the foreseeable future at least six months. Exhibit A.
Finally, on May 1, 2002, Dr. Rybicki set permanent restrictions that permitted part-time employment, 20 to 30 hours per week with no bending, twisting, or reaching forward or below the waist. The doctor stated, too, that he could only do repetitive bending, twisting or reaching for two hours a day. The doctor set a 15-pound lifting limit, and opined he should not be working at heights, or around machinery. He also thought activity such as shoveling or climbing ladders or stairs would aggravate his condition. Exhibit M.
During her deposition, Dr. Spanaki-Verelas testified that the applicant's condition was self-limiting (this was an observation she made in her July 13 report to Rybicki), which meant over time it could go away or start and end abruptly for unexplained reasons. Deposition, page 26. Asked if he could avoid symptoms by avoiding certain postures, the doctor responded yes, but that she did "not know how possible physically this might be in everyday life." Deposition, page 26. See also page 51.
Dr. Spanaki-Verelas indicated she had not treated him recently, so would defer to Dr. Rybicki regarding his capacity to work. As a general rule, though, she testified myoclonus did not necessarily make someone unemployable. Deposition, page 27.
Regarding Mr. Elzinga's ability to work, Dr. Novom stated:
"At this point Mr. Elzinga is essentially confined to sedentary routine. He would not be able to stand in place or, for that matter, walk any length. It would be too dangerous to work at unprotected heights or near moving machinery nor would he be able to ascend or descend stairs safely. Such restrictions will likely be in place indefinitely ...[pending] more effective therapeutic intervention."
Exhibit 2, report of Novom, pages 10 and 11. In his subsequent report at exhibit 3, Dr. Novom suggested the applicant should be referred to more specialized neurologists.
The record also contains reports from vocational experts concerning the nature and extent of the applicant's disability -- in terms of impairment of earning capacity -- from the spinal myoclonus condition caused by the work injury.
The applicant's vocational expert, Charles A. McReynolds, opined that under Dr. Novom's restrictions -- sedentary work with restrictions against standing in place or walking for any length -- the applicant would be limited to work as a cashier, courier, file clerk, or order clerk, or telemarketer, paying on average $9.72. Compared with an hourly wage of $20.88, or $28.32 if the fringe were factored in -- the applicant's permanent partial disability on a vocational basis for loss of earning capacity would be at 66 to 70 percent. Under Dr. Rybicki's restrictions -- part-time, 15-pound lifting limit, motion restrictions -- Mr. McReynolds concluded that the applicant would be permanently and totally disabled.
The respondent's expert, Donald Modder, declined to rate loss of earning capacity under Dr. Novom's restrictions, as Dr. Novom's opinion, particularly his second opinion, holds out hope that the applicant would improve with further treatment. Under Dr. Rybicki's restrictions, Mr. Modder identified jobs similar to those identified by McReynolds, though he came up with a higher average wage, $10.72 per hour. Given wage loss from the $21 per hour the applicant made while working for the employer and the restriction to part-time employment, Mr. Modder rated permanent partial disability for loss of earning capacity at 70 to 75 percent.
b. ALJ decision regarding extent of disability.
Regarding the extent of disability, the ALJ credited the opinions of Dr. Rybicki and Mr. McReynolds, and found the applicant permanently and totally disabled. The ALJ explained he felt the applicant was a decent man who, as IME Kagen observed as well, minimized his condition. The ALJ noted that during the hearing the applicant sat so his back was flexed forward -- the position of Rodin's The Thinker sculpture -- to prevent jerking during the hearing; when the applicant sat erect he began jerking back and forth uncontrollably. Because the applicant cannot sit erect, and cannot walk without risking losing his balance, the ALJ concluded he was permanently and totally disabled on an odd-lot basis.
c. End of healing allowing award for permanent disability?
On appeal, the respondent argues that it has not been established that the applicant has reached an end of healing, so that it is premature to rate permanent disability much less permanent total disability. On this point, the respondent notes that in April 2002 Dr. Rybicki on the one hand set permanent restrictions and on the other hand restricted the applicant from working for six months. Of course, after that, in May 2002, Dr. Rybicki set the permanent restrictions upon which Mr. McReynolds rated permanent total disability. Dr. Rybicki has also, of course, rated permanent disability on a functional basis from the injury. Additionally, Dr. Spanaki-Verelas indicated that other than trying different combinations of medications, there was not much treatment available for myoclonus. Deposition, pages 24-25, 56.
Dr. Novom, of course, opined in both of his reports that further therapeutic trials are necessary before declaring an end of healing. If the applicant could be said to be unreasonable in pursuing those alternatives, the commission could justify cutting off benefits -- temporary or permanent -- under an unreasonable refusal to treat analysis under Wis. Stat. § 102.42(6). However, the applicant has already undergone significant treatment and evaluation on referral, and been told by his primary treating neurologist that he has plateaued. Further, there appears to be no clear treatment protocol for truncal myoclonus, and his treating doctors do not hold out much hope for improvement with further treatment. Indeed, the authors of the Hoen and Cherington article that Dr. Novom cites in his first report, "find spinal myoclonus to be most resistant to treatment." Exhibit 2, report of Novom, page 5.
In short, the commission declines either to indefinitely extend the healing period or to find an unreasonable refusal to treat in this case because the applicant, or his doctors, is not being more aggressive in seeking additional specialists and additional work-up. The ALJ quite properly found an end of healing as of April 10, 2002.
d. Extent of permanency.
Finally, assuming the applicant has reached an end of healing, the respondent nonetheless disputes the ALJ's finding that the applicant is permanently totally disabled on a vocational basis. A worker makes a prima facie case of odd-lot unemployability by showing that, based on his or her work injury, age, education, and capacity, he or she is unable to secure continuing or gainful employment. Balczewski v. DILHR, 76 Wis. 2d 487 (1977). If the worker makes that showing, the burden shifts to the employer to show that the worker is in fact employable and that jobs do exist for the worker. In making this showing in rebuttal of the worker's prima facie case, an employer cannot simply point to evidence showing the worker is available for light duty work, and then round out the case with a presumption that light duty work is available. Id., 76 Wis. 2d at 495.
On this point, the respondent argues that the applicant's condition is self-limiting in the sense that the applicant can control it, citing Dr. Spanaki-Verelas's report. However, it is clear from her testimony that Dr. Spanaki-Verelas's use of the term "self-limiting" was to make the point that his condition might resolve by itself, though of course that has not happened in this case. Dr. Spanaki-Verelas did not use the term "self-limiting" to mean it was easy for the applicant to control his condition to improve his vocational opportunities, and in fact suggested the opposite. Deposition, at pages 26-28.
The respondent also points out that the applicant's problems occur when he is sitting at a 90 degree angle in a chair -- that is, sitting in a chair in a normal fashion -- and that he can eliminate the symptoms by assuming the flexed-forward position of The Thinker. However, the fact remains the applicant cannot sit in a chair normally. Considering additionally the applicant's restrictions on standing and walking, his lifelong work as a construction laborer, his high school education, his lack of vocational training, (1) and his age, and the other factors set out in Wis. Admin. Code § 80.34(1) and Balczewski, 76 Wis. 2d at 495, the applicant has made his prima facie case of odd unemployability, and the respondent has failed to rebut it. In short, the ALJ reasonably found the applicant permanently and totally disabled.
cc:
Attorney Richard A. Fortune
Attorney John S. Minix
Appealed to Circuit Court.
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(1)( Back ) Other than as a commercial pilot, which is now impractical, and vocational coursework in computer programming which he abandoned in 1971.
uploaded 2003/05/02