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

ALGIS VILIUNAS, Applicant

BOB RADTKE INC, Employer

WEST BEND MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998-019745


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.

ORDER

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

Dated and mailed May 19, 2003
vilunaa . wsd : 101 : 8  ND § 5.49

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

1. Posture.

This case involves a failed lumbar fusion done in August 1998 following a conceded work injury in April 1998. The employer and its insurer (collectively, the respondent) contend that the fusion failed because the applicant continued to smoke cigarettes in violation of his surgeon's orders. It therefore contends it should not have to pay any expense associated with the applicant's December 2001 refusion surgery under Wis. Stat. § 102.42(6), the "unreasonable refusal to treat" provision.

The ALJ, however, found that Wis. Stat. § 102.42(6) does not apply, and paid the expense and disability arising from the refusion. The respondent appeals.

2. The applicant's smoking history.

The applicant smoked a pack a day for the 20 years preceding his fusion surgery. Following his injury, the applicant consulted an orthopedic surgeon, Benjamin Begley, M.D., on July 6, 1998. Dr. Begley recommended a decompressive procedure followed by an L5-S1 fusion. While Dr. Begley noted that the applicant was a smoker in his July 6, 1998 treatment note, his note does not mention instructing the applicant to stop smoking. However, on August 24, 1998, two days before the August 26, 1998 fusion surgery, Dr. Begley noted that the applicant:

"was strongly urged to quit smoking prior to the procedure or definitely during the convalescent stage."

Exhibit L, Begley, note of August 24, 1998.

Post-surgery, Dr. Begley flatly instructed the applicant not to smoke. Exhibit L, Begley note of August 30, 1998. Indeed, the actual discharge instructions stated: "DO NOT SMOKE!!!" Exhibit 14. However, the applicant did not quit smoking before the surgery, or immediately thereafter. On October 7, 1998, Dr. Begley noted the applicant had not been able to quit smoking cigarettes. On November 18, 1998, noting the applicant still had not stopped smoking, Dr. Begley ordered the applicant to continue with bone growth stimulator for another four weeks due to the applicant's continued smoking.

On December 3, 1999, another of the applicant's surgeons, Dr. Mann, "suggested it may be appropriate to start him on Zyban for smoking cessation." (Exhibit N, December 3, 1999 letter from Mann to McDonald.) Dr. Mann sent the applicant back to Dr. Loria, his family doctor, "regarding this," but the applicant recalled that Dr. Mann himself prescribed Zyban for the burning in his leg and to help him quit smoking. Transcript, page 21.

The applicant stopped smoking after the Zyban was prescribed; at the hearing, he recalled quitting somewhere around December 1998. Transcript, page 21. Dr. Begley's December 23, 1998 follow-up note does not mention smoking at all. However, on February 8, 1999, Dr. Begley noted the applicant had quit smoking three weeks earlier. The doctor noted the applicant "was still tobacco free" as of March 22, 1999. Exhibit L. The applicant testified he remained cigarette free until February 2000. In that month he went sturgeon spearing with friends, and resumed smoking. By May 2001, the applicant was smoking a pack a day. He stopped smoking again, "cold turkey" without medication, in November 2001, and then resumed smoking on June 2002, and was smoking as of the date of the hearing in July 2002.

3. Expert medical opinion.

The record contains testimony and reports from medical experts regarding the role of the applicant's smoking in his failed fusion.

The independent medical examiner retained by the insurer is Richard K. Karr, M.D. He initially examined the applicant in September 2001 after the August 1999 fusion but before the December 2001 refusion. Dr. Karr opined that a solid fusion from the first surgery had not been demonstrated and, if further surgery was undertaken to repair the pseudoarthrosis (failed fusion), the need for the repair would be directly related to the work injury and the first fusion surgery. Exhibit 1, report of Karr, page 8. In outlining a treatment plan, Dr. Karr first stated the applicant should stop smoking, and then

"contingent on Mr. Viliunas stopping smoking, he should be offered surgical exploration of the L5-S1 motion segment.... If a pseudoarthrosis is found, repair should be undertaken..."

Exhibit 1, report of Karr, page 9.

The respondent's attorney then wrote to Dr. Karr, and evidently asked him to explain the connection between the pseudoarthrosis and the applicant's smoking. Dr. Karr reported:

"In my view, if a spinal pseudoarthrosis is documented, this complication would be directly related to Mr. Viliunas's cigarette smoking. Cigarette smoking has such an adverse impact on spinal fusion healing, that cessation of smoking should be a mandatory criteria prior to embarking on exploration/pseudoarthrosis repair surgery. [Emphasis in original.]"

Exhibit 2, Karr letter dated October 10, 2001.

Dr. Karr then re-examined the applicant after the refusion surgery, and this time directly associated the applicant smoking after the first fusion with the failure of the August 1998 fusion, stating:

"Assuming Mr. Viliunas had been smoking within the 08/26/98 through February 2000 timeframe, this had been a material contributory causative factor in the failure of fusion (pseudoarthrosis) and the need for pseudoarthrosis repair surgery on 12/19/01.
. . . 
"In my view, if Mr. Viliunas engaged in substantial cigarette smoking within the 08/26/98 through February 2000 timeframe, such behavior would have been against the advice of his treating doctors; will have been a material contributing causative factor in the ultimate development of L5-S1 pseudoarthrosis, and in the need for surgical repair of the pseudoarthrosis on 12/19/01...."

Exhibit 4, report of Karr, pages 3-4.

Dr. Karr testified at the hearing. He reiterated that cigarette smoking is a potential cause of pseudoarthrosis in a post-surgical patient. He explained that the most commonly held theory is that nicotine blocks the action of bone building cells or stimulates bone-dissolving cells. Another theory is that nicotine restricts the growth of blood vessels into a healing fusion; it is also believed that the simple reduction in the oxygen content of the blood adversely affects a fusion.

With respect to the applicant, the doctor testified that the applicant's smoking history -- including the 20-year, pack-a-day history to the end of January 1999, and then from February 2000 to November 11, 2001 -- aggravated the applicant's pseudoarthrosis. Transcript, page 74-75, 102. Further, on cross-examination, Dr. Karr testified that the applicant's smoking for the four or five month period from the time Dr. Begley's notes indicate the applicant was first told to stop (on August 24, 1998) to the time he stopped in about January 1999 was a material factor in the development of the pseudoarthrosis. Transcript, page 93-94. Dr. Karr later equated "aggravation" with being a material, contributing factor. Transcript, page 103. He added that by the time the applicant stopped smoking in January 1999, it was too late, that his smoking after that point was irrelevant. Transcript, page 104.

Dr. Karr testified, too, that he advises his patients who are smokers to stop smoking and explains that smoking increases the risk of pseudoarthrosis in one in ten for a nonsmoker and four in ten for a smoker. He testified, though, that he goes ahead and does a fusion anyway, if people have not stopped smoking by the time of the operation. Transcript, page 82. He emphasized, though, that he thought quitting smoking should be mandatory before undertaking a fusion repair or refusion. Transcript, page 85. However, he acknowledged that the applicant told Dr. Tribus he had quit four days before the refusion, and that that would suffice for proceeding with the refusion. Transcript. page 86.

Dr. Karr also acknowledged that smoking is a habit, and that nicotine is addictive. He stated that while most people can stop smoking, some cannot. Transcript, page 96. He testified it was an addiction that could be overcome, and could be overcome cold turkey. Transcript, page 105.

The applicant submits a report from Dr. Tribus, the surgeon who did the refusion. He writes:

"It is widely known that fusions [sic] hinder the ability of the patient to heal a fusion. It is also widely known that patients that do not smoke also have difficulty with pseudoarthrosis, although it is a slightly slower [sic] rate. The flip side of the argument is that patients who continue to smoke can still fuse and have a very successful outcome, while obtaining radiographic fusion. Thus the physician must decide in his or her practice whether they are going to choose to operate on patients who cannot quit smoking. I myself strongly recommend to any patient undergoing fusion to stop smoking. We also make additional steps such as stopping all anti-inflammatory medications in the preoperative period. However, I must confess in my practice only 15% to 20% of the people are able to stop smoking. I do operate on those patients who continue to smoke."

Exhibit F, June 14, 2002 letter from Tribus.

Finally, the respondent's attorney wrote to Dr. Begley, the surgeon who did the first fusion, and asked if he had merely advised the applicant to stop smoking as a general health recommendation or as a prerequisite to surgery. The doctor indicated it was a prerequisite to surgery. The doctor stated he told the applicant, in advance of the first fusion procedure, that if he did not stop smoking, his fusion might fail to heal. The doctor added:

"The reason Mr. Viliunas was advised to quit smoking was because of the risk of failure of L5/S1 fusion if he continued to smoke prior to surgery and during convalescence."

Exhibit 3, Begley handwritten responses on Sachse letter.

4. Applicable statute; related authority.

This case turns on whether the applicant's efforts to comply with the instruction to quit smoking after the first fusion justify denying compensation under Wis. Stat. § 102.42(6). That statute, which has been described as an exception to an employer's general liability for treatment, (1) provides:

102.42 (6) Treatment rejected by employee. Unless the employee shall have elected Christian Science treatment in lieu of medical, surgical, dental or hospital treatment, no compensation shall be payable for the death or disability of an employee, if the death be caused, or insofar as the disability may be aggravated, caused or continued by an unreasonable refusal or neglect to submit to or follow any competent and reasonable medical, surgical or dental treatment or, in the case of tuberculosis, by refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary. The right to compensation accruing during a period of refusal or neglect to submit to or follow hospital or medical treatment when found by the department to be necessary in the case of tuberculosis shall be barred, irrespective of whether disability was aggravated, caused or continued thereby.

The statute appears to be an outgrowth of the supreme court's holding in Lesh v. Illinois Steel Co., 163 Wis. 124 (1916). In that case, the court -- citing principles from tort law -- discussed the rationale behind the rule for denying worker's compensation benefits when a worker unreasonably refuses treatment for a work injury, stating:

"Where, as in this case, the applicant under the Workmen's Compensation Act unreasonably refuses to undergo a safe and simple surgical operation which is fairly certain to result in a removal of the disability and is not attended with serious risk or pain and is such as an ordinarily prudent and courageous person would submit to for his own benefit and comfort, no question of compensation being involved, the disability which the claimant suffers thereafter, a reasonable time being allowed for recovery, is not proximately caused by the accident, but is the direct result of such unreasonable refusal.

"No question of compelling the applicant to submit to an operation is involved. The question is: Shall society recompense a workman for a disability caused by his unreasonable refusal to adopt such means to effect a recovery as an ordinarily prudent person would use under like circumstances and which would result in the removal of the disability within the rule as stated above? It is true that the compensation awarded under the terms of the act is not damages in the technical sense, and that the rules relating thereto are not to be applied in cases arising under this act, and cases have been cited simply for the purpose of showing that damages accruing as a direct result of the claimant's unreasonable refusal to submit to reasonable medical and surgical treatment, where the results are fairly certain, were not even in tort cases held to be proximately caused by the accident.

"The proposition that an applicant, under the provisions of this humane law, may create, continue, or even increase his disability by his wilful, unreasonable, and negligent conduct, claim compensation from his employer for his disability so caused, and thereby cast the burden of his wrongful act upon society in general, is not only utterly repugnant to all principles of law, but is abhorrent to that sense of justice common to all mankind. The findings of the Commission in this case, which are abundantly supported by the evidence and affirmed by the lower court, bring the applicant in this instance clearly within the rule above stated."

Lesh, at 163 Wis. at 131-32

The parties also cite Braun v. Industrial Commission, 36 Wis. 2d 48 (1967), a case discussing Wis. Stat. § 102.42(6) itself. (2)  There, a worker underwent skin grafting on his feet on August 21, 1964. He left the hospital, walking on his feet, against medical advice on August 26, but was persuaded to return on August 29. He left again on September 1, 1964, once more against medical advice. He continued to treat on an outpatient basis until the date of hearing, December 29, 1964.

In Braun, one medical expert testified that had the worker complied with medical advice, he would have had a 60 to 70 percent chance of being completely healed. Another medical expert testified that, by leaving the hospital, the applicant "delayed his recovery period 'very significantly' " and was a "delaying and complicating event." Id., at 36 Wis. 2d 61. The commission awarded temporary disability to the date of the hearing, December 29, 1964.

On appeal, the supreme court concluded that the commission finding "does not seem to be so inherently unreasonable as not to be entitled to any weight." Id., at 36 Wis. 2d 62. However, the court went on to note that that it was clear the worker impeded his final cure by leaving the hospital against advice, and cautioned the commission to look with strict discerning scrutiny on any claim for benefits after December 29, 1964. Further, in assessing the worker's conduct, the court rejected the idea the applicant was not unreasonable in leaving the hospital in that he had already been in the hospital for eight weeks when the surgery was performed, that he was depressed and lonely, and that he in fact sought treatment thereafter, only on an outpatient basis. The court noted:

"This argument is amiss. The unreasonableness of a claimant's actions is judged by an objective standard. The employer may have to take an employee "as he is" in regard to his physical injury, but not as to his refusal or neglect to follow competent and reasonable medical treatment."

Id., 36 Wis. 2d 61. (3)

The parties have not cited any Wisconsin case, whether from a court or the commission, applying Wis. Stat. § 102.42(6) to a worker's failure to comply with an instruction to stop smoking, or similar instructions that can be characterized as involving "personal behavior" such as an instruction to lose weight or stop drinking alcohol. There is a general discussion of the issue in 1 Larson, Workers' Compensation Law § 10.10 [intro.], [4] (LEXIS NEXIS, 2002). While the treatise does not mention advice to stop smoking per se, the digested cases include Shawnee Management Corporation and Liberty Mutual Insurance Company v. Hamilton, 24 Va. App. 151, 490 S.E.2d 733 (1997). In that case, the applicant had had a fusion which failed. Her doctor recommended a refusion, but told her she had to quit smoking and lose weight first. The court upheld a denial of compensation until she complied, noting she had stopped smoking successfully before her first fusion.

Hislip v. Helena/West Schools, 74 Ark. App. 395, 48 S.W.3d 566 (2001), following remand 78 Ark. App. 109, 79 S.W.3d 404 (2003), while involving another jurisdiction's worker's compensation statute that denied compensation for a non- work related independent intervening cause following a compensable injury that caused or prolonged disability or the need for treatment, is factually similar to the case now before the commission. In Hislip, the claimant underwent a fusion surgery which was unsuccessful. She wanted to undergo a second, refusion surgery but the administering agency denied compensation for the expense, finding that the applicant's continued smoking constituted an intervening cause barring payment of compensation. The Arkansas court of appeals reversed, noting that while the medical evidence supported the finding that smoking generally caused the need for the second surgery, it did not support the more specific finding that smoking after she was advised to stop caused the need for the second surgery; that the medical expert could not distinguish between the effect of post-accident or pre-accident smoking as the major cause of the failed fusion; and that therefore the administering agency erred in finding the need for a second surgery was caused by an independent intervening cause. Id., at 48 S.W.3d 569. The court therefore did not address the question of whether the applicant's decision to continue smoking was unreasonable. Ibid. (4)

5. ALJ decision; PCR

In this case, as noted above, the ALJ ordered payment of the medical expense and attendant disability compensation for the refusion done in December 2001. He gave several reasons for his decision, including: the applicant had a serious underlying injury; the applicant was only "urged" by Dr. Begley to quit smoking before the surgery and was not told it was a mandatory precondition to treatment; the applicant did try to quit smoking, using Zyban and successfully abstaining from smoking for over a year, during which time his surgeons thought his condition had healed; the doctors could not be sure that smoking led to the need for the second surgery as fusions fail even in nonsmokers; and finally, that smoking is an addictive habit and only a small percentage of fusion candidates are actually able to quit smoking pre-surgery.

The respondent appeals, asserting that instructions to stop smoking are "medical treatment;" that Dr. Begley's notes and response to Attorney Sachse's letter establishes that the applicant was told to stop smoking because of the risk of failed fusion, but unreasonably refused or failed to comply; that the applicant's failure to stop either aggravated or caused his failed fusion; and that therefore compensation must be denied under Wis. Stat. § 102.42(6).

In response, the applicant argues that advice to stop smoking does not constitute medical treatment; that even if it is treatment the applicant did not unreasonably refuse it, given his addiction and his efforts to stop; and that Dr. Karr's opinion that the smoking aggravated his fusion was speculative. The applicant also contends that the failed fusion should be treated as an off-duty reinjury under Lange v. LIRC, 215 Wis. 2d 561 (Ct. App. 1997.)

6. Discussion.

The respondent's brief properly sets out the three elements necessary to establish an unreasonable refusal to treat under Wis. Stat. § 102.42(6):

(a) was Dr. Begley's instruction to stop smoking "competent and reasonable medical treatment"?
(b) if so, did the applicant "unreasonabl[y] refuse or neglect to submit to or follow" the instruction to stop smoking?
(c) did the failure to follow the treatment "aggravated, caused or continue" the applicant's disability?

The commission assumes for the purposes of this case that Dr. Begley's repeated instructions to the applicant to stop smoking in this case were, in fact, "medical treatment" within the meaning of Wis. Stat. § 102.42(6). However, the commission cannot find the applicant's failure to follow those instructions before January 1999 to be unreasonable. The doctors agree that smoking is addictive, making it a difficult habit to give up under the best of circumstances. The doctors also acknowledge that substantial numbers of patients do not or -- as IME Karr indicated -- cannot quit prior to surgery.

True, Dr. Begley reiterated the instruction to stop smoking, in no uncertain terms, in the discharge notes following surgery in late August. However, it was not until December 1998 that the applicant was prescribed Zyban. Shortly after the Zyban was prescribed, the applicant quit smoking for over a year; his testimony indicates that the prescription in fact helped him quit. Transcript, page 21. However, when the Zyban was prescribed in December 1998 it may have been too late under the respondent's theory of the case, as Dr. Karr described the applicant's ability to quit smoking in January 1999 as medically irrelevant. Transcript, page 104.

Of course, the applicant probably did not know his effort was irrelevant at the time he managed to stop smoking. The applicant's ability to stop smoking within five months of surgery, while perhaps too late under Dr. Karr's opinion, was not unreasonable in light of the acknowledged addictive nature of nicotine, even applying the objective standard set out in Braun. The commission notes the observation from the Larson treatise:

"When the treatment prescribed takes the form of exercise or wearing a brace, or undergoing an alcohol detoxification program, obviously there is no element of risk, an unreasonable refusal to follow medical instructions will lead to a loss of benefits for any disability attributable to this refusal. But when the prescribed treatment involves weight reduction, although in principle the cases should be assimilated to the exercises cases, courts have been less stern, perhaps because almost everyone has some personal experience of good-faith but ineffective weight-reduction efforts -- and are reluctant to stigmatize these all-too-human failures as 'wilful refusal.' Here, as in the case of surgery, the test of reasonableness applies."

1 Larson, Workers' Compensation Law § 10.10 [4] (LEXIS NEXIS, 2002).

Finally, the applicant's alleged unreasonable noncompliance did not stem from Dr. Begley simply telling the applicant to attend a smoking cessation seminar or take a smoking cessation medication. Rather, Dr. Begley's treatment in late August 1998 was an instruction to quit an addictive habit without the aid of medication; the Zyban medication apparently was not prescribed until December 1998. For these reasons and those cited in the ALJ's decision, the commission cannot find the applicant's action in not actually quitting until January 1999 to be unreasonable.

In addition, the commission is not persuaded that the applicant's failure to follow the treatment by stopping smoking between August 26, 1998 and January 1999 "aggravated, caused or continue" the applicant's disability. True, Dr. Karr did opine at one point that 4-5 months of smoking between August 24, 1998, and mid-January 1999, probably caused or aggravated the applicant's failed fusion. Transcript, pages 93-94. However, Dr. Karr initially gave his opinion on direct examination in terms of the applicant's entire 20-year history of smoking up to January 1999 and thereafter between February 2000 and November 2001, which necessarily included the many years of smoking before the applicant was advised to quit because of the fusion surgery. Transcript, page 74-75, 102. Further, in Exhibit 4, Dr. Karr referred to smoking during the "8/26/98 though February 2000 timeframe" as being a material contributory causative factor. Nonetheless, when asked at the hearing about the applicant's ability to quit smoking in January 1999 -- cutting more than a year off that "8/26/98 through February 2000 timeframe" -- Dr. Karr stated quitting by January 1999 was medically irrelevant. This leads the commission to question whether smoking during the relevant four- month period August 26, 1998 to mid-January 1999 actually caused, aggravated or continued the applicant's disability from the failed fusion, especially as Dr. Tribus noted that nonsmokers also have difficulty with pseudoarthritis at only slightly lower rates than smokers.

Even if the commission accepted Dr. Karr's opinion, however, it would be left with the question of whether the applicant acted unreasonably in not quitting smoking immediately and finally on August 24, 1998. As explained above, the commission cannot conclude the applicant acted unreasonably here. (5)

cc: 
Attorney William R. Sachse, Jr.
Attorney Roland C. Cafaro


[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) Klein v. Industrial Salvage, 80 Wis. 2d 457, 463-64 (1977)

(2)( Back ) Then numbered Wis. Stat. § 102.42(7).

(3)( Back ) The commission and ALJs have also applied Wis. Stat. § 102.42(6) on a number of occasions over the past few years. In Donald F. Colber v. Reds Wood Construction, WC Claim No. 9077596, 1993 Wrk. Comp. LEXIS 358 (LIRC, August 25, 1993), the commission affirmed a finding that by failing to attend a number of physical therapy sessions from February through November 1991, the worker delayed his recovery and justified a suspension of benefits for periods during the worker's healing period. The commission affirmed a similar finding in Sharon Dickenson v. Morningside of Superior, WC Claim No. 91-010120, 1992 Wrk Comp. LEXIS 129 (LIRC, February 21, 1992). In Paul Eide v. Trane Commercial Systems Plant 7, WC Claim No. 1998020669, 2002 Wrk. Comp. LEXIS 158 (LIRC, June 6, 2002), the commission affirmed an ALJ's finding that, by not taking a prescribed medication which could have relieved or diminished his pain, the applicant "negatively impacted his PPD claim."

(4)( Back ) On remand, the administering agency simply issued a decision finding the refusion expense compensable, and the court of appeals affirmed. Hislip, 79 S.W.3d 404.

(5)( Back ) Because the commission affirms the ALJ's findings in favor of the applicant, it need not address the parties' arguments based on Lange v. LIRC, 215 Wis. 2d 561 (Ct. App. 1997). 

 


uploaded 2003/05/30