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

PAUL CHRISTMAN, Applicant

AUTOMATIC MOTORS, Employer

FRANKENMUTH MUTUAL INSURANCE COMPANY, Insurer

UNITED SECURITY INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim Nos. 1997012947


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 June 6, 2003
chrispa . wsd : 185 : 3  ND § 3.4 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In its petition, United Security Insurance Company (United) argues that both of the applicant's disc herniations stem from one period of occupational exposure for worker's compensation purposes, and that this period of exposure ended on April 17, 2000, when Frankenmuth Mutual Insurance Company (Frankenmuth) was on the risk. United argues that the applicant had no date of injury until his surgery on April 17, 2000, because up until then he only missed work to see Dr. Zdeblick, allegedly as part of an employer-recommended medical evaluation. He was paid for his lost time. United attempts to analogize the case to Virginia Surety v. LIRC, 2002 WI App 277, 258 Wis. 2d 665, 654 N.W.2d 306.

The analogy fails. In Virginia Surety, the applicant missed work to see a physician at the employer's direction, in order to monitor the suspected development of silicosis. The applicant did not miss work due to the symptoms of his developing silicosis until a date well after the dates he had missed work for the employer-required medical evaluations. The court agreed with the commission that the date of injury was the later date, when the applicant first missed work due to his symptoms.

In the case at hand, the applicant had an occupational back injury that had "ripened" in the form of a documented C5-6 disc herniation in 1994. The applicant's symptoms caused him to report the problem to the employer, and those symptoms are what caused him to see his physician for actual treatment. While conservative treatment was given until the 2000 surgery, it was medical treatment in response to symptoms. The record is incomplete with regard to what day the applicant first missed any work to treat with a physician for his symptoms, because no copies of the clinic notes from the family physician visit or from Dr. VanSanders' early treatment in 1994 were submitted. However, the record does contain Dr. Zdeblick's first treatment note of November 15, 1994, in which he indicated a work release was given for the day, as well as a prescription for physical therapy. United argues that missing work to see Dr. Zdeblick should not count as a date of injury, because he was an employer-recommended physician. However, unlike in Virginia Surety, the applicant had reported disabling symptoms and been diagnosed as having a herniated disc by Dr. VanSanders before he ever saw the employer's physician. The applicant saw the employer's physician for treatment rather than strictly for evaluation. While the applicant may have been recompensed for his lost wages and work time, both were lost when he missed work to see Dr. Zdeblick. Accordingly, an occupational date of injury no later than November 15, 1994, clearly applies to the C5-6 disc condition.

United also argues for acceptance of Dr. Robbins' opinion that:

"The surgery at the C5-6 level is secondary to the aggravation and acceleration of his preexisting condition from an occupational exposure as well as from the injury of September 15, 1994."

United argues that this opinion implicates both the 1994-2000 work exposure and the 1987-94 work exposure in the need for surgery at C5-6. If there were no occupational date of injury prior to April 17, 2000, then Dr. Robbins' opinion about C5-6 would be moot, because without a prior date of injury Frankenmuth would be liable for all compensation. Assuming a 1994 date of injury, and assuming Dr. Robbins was correct that the 1994-2000 exposure constituted a significant new contribution to the disease process, then there would be two separate occupational claims with two separate dates of injury for the C5-6 disc condition. There would be a third occupational claim for the C6-7 disc. Dr. Robbins would have had to have parsed out the percentages of causation for the two occupational claims at C5-6, something he did not do. However, neither the commission nor the ALJ found Dr. Robbins' opinion credible. Surgery for the C5-6 disc was recommended in 1994, and in hindsight, unwisely delayed pursuant to Dr. Zdeblick's opinion. Dr. VanSanders' opinion that the condition at the C5-6 level was not aggravated by the 1994-2000 exposure is credible.

United also argues that the ALJ erred in splitting the costs for the surgery. But splitting these costs is consistent with the opinions of Dr. VanSanders and Dr. Yuska, both of whom attribute the surgery to both the 1994 and the 2000 occupational injuries. Even Dr. Robbins' opinion does not go so far as to say that the 1994 injury was not causative of the surgery.

Frankenmuth filed a late cross-petition. (1)    It agrees with the ALJ's order except for the 50/50 apportionment of liability for vocational retraining benefits. It alleges that Dr. Yuska opined that all the applicant's current permanent physical restrictions are attributable to the 1994 injury, and also argues there was no substantial change in the restrictions after the 2000 surgery.

Dr. Yuska attributed permanent restrictions of 30-lb. lifting and no overhead work to the 1994 work injury, and "the same" restrictions to the 2000 work injury. This ambiguous opinion is probably most accurately read as agreeing with Dr. VanSanders' unambiguous opinion that the applicant's restrictions are 50 percent attributable to the 1994 injury and 50 percent attributable to the 2000 injury. It is unrealistic and incredible to argue that a fusion surgery at c6-7 would not have caused any permanent restrictions. It is true that the applicant's pre-surgery restrictions were essentially the same as his post-surgery restrictions. However, based on the medical opinions, the post-surgery restrictions would have been the same even had there been no pre-surgery restrictions.

cc: 
Attorney Paul R. Riegel
Attorney Joseph Berger
Attorney Patricia Sandoz


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Footnotes:

(1)( Back ) Cross-petitions must be filed within 21 days of the department's order (See Wis. Admin. Code Ch. LIRC 1.026).

 


uploaded 2003/06/13