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

PAUL NAWROCIK, Applicant

NAVISTAR INTERNATIONAL TRANSPORTATION CORP, Employer

TRANSPORTATION INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1999-051314


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 July 15, 2003
nawropa . wsd : 101 : 8  ND § 3.42   § 9.2 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

1. Posture and expert medical opinion.

The applicant has held a variety of jobs for the employer since 1992, including machine operation and set up. He underwent a three-level fusion/discectomy procedure to treat complaints of headache, neck pain, shoulder pain, and right arm numbness. The main issue in this case is causation, specifically, whether the applicant's disabling cervical condition is the result of an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of his condition.

The applicant's treating surgeon, Dr. Block, answers affirmatively. Specifically, he writes:

"In regards to the origin of the degenerative changes, I would say that it is 51 percent more likely than not that Mr. Nawrocik's heavy physical-type work including heavy lifting, repeated bending, and forklift operation have accelerated his disease beyond its natural progression. I cannot, however, attribute his disc and bony changes to a particular injury or episode."

Exhibit A, letter of Block to Olson dated October 11, 1999.

Following surgery, Dr. Block issued a practitioner's report on form WKC-16-B marking the causation boxes to indicate both that work activity precipitated, aggravated, and accelerated a preexisting degenerative condition beyond normal progression and that an appreciable period of workplace exposure was at least a material contributory causative factor in the onset or progression of the applicant's condition. He offered the following narrative opinion on causation:

"Patient has a long history of repetitive work activities including significant bending, twisting & lifting since 8/10/92 as itemized by patient on 2-page typewritten summary that I've reviewed. Patient on 11/09/01 also brought a 1-page typewritten summary of work activities on his return to work on 4/02/01 following his 9/28/00 cervical fusion that I reviewed. Patient's work exposure as contained in the summaries & discussions with patient from 8/10/92 to approximately 6/13/01 disclose repetitive activities that are a material contributory causative factor in the pt's cervical & lumbar spine disability."

Exhibit K, practitioner report dated January 7, 2002.

The employer and its insurer (collectively, the respondent) retained Stanley Robbins, M.D, for an independent medical examination; he evaluated the applicant on January 3, 2000. He noted the applicant's employment as a set-up machinist for about a year, but did not describe his earlier employment. Dr. Robbins noted, too, the gradual onset of mid to upper back pain without a specific injury. At the point the applicant saw Dr. Robbins, he was having success with his physical therapy and time off work.

Dr. Robbins noted the MRI showing prominent degenerative changes at C3-4, C4-5, and C5-6 with a disc protrusion and osteophyte formation. Regarding causation, he wrote:

"To a reasonable degree of medical certainty based on a review of the history, physical examination and medical records, this patient has a diagnosis of degenerative disc disease of the cervical spine. The patient's medical records cannot document a specific industrial injury while employed at Navistar producing the onset of his symptoms. The patient has been employed there for approximately one year and clearly industrial exposure would not produce his present degenerative changes. Consequently, this patient has had a pre-existing condition with the gradual onset of symptom. This is unrelated to his employment at Navistar. The patient's symptoms reflect degenerative disease changes and mild radiculitis. MRI scan has shown severe degenerative disk disease changes and lateral recess stenosis.

Exhibit 1, January 3, 2000 report of Robbins, page 2.

The doctor continued:

The patient ... is capable of continuing his ongoing employment at Navistar without restrictions at the present time. He is having on going complaints of neck pain which are reflective of his degenerative disk disease changes. The patient has not sustained any permanent partial disability to the cervical spine as a result of his claimed industrial injury. If the patient has ongoing symptoms that worsen he may require restrictions at the work place, however, these would be secondary to his pre-existing condition of degenerative disk disease at the cervical spine. The patient does not require surgical intervention at this time. If his symptoms worsen that would be a consideration....

Ibid.

Dr. Robbins reexamined the applicant following surgery. He adhered to his earlier opinions on causation noting:

"To a reasonable degree of medical certainty, ... this patient has a diagnosis of degenerative disk disease, cervical spine, involving C3-4, 4-5, and C5-6. This is a pre-existing condition that is not related to an industrial injury at Navistar. It is also no related to occupational exposure. The degenerative changes occurred as a result of the normal aging processes."

Exhibit 2, February 8, 2001 report of Robbins, page 2.

The respondent also retained David Goodman, M.D., an occupational health expert. His diagnosis was cervical spondylosis, a term commonly referring to degenerative changes affecting the vertebra and their bony structures. He noted "the condition is ... ubiquitous in the general population: `disease of the cervical spine as a result of disorders of the disc will effect 50% of the population at sometime, usually between the ages of 30 and 60.'" Exhibit 3, June 8, 2002 report of Goodman, pages 4.

He opined that it was unlikely that the applicant's work exposure was a material significant contributory fact in precipitating, aggravating, or accelerating of his pre-existing cervical spondylosis beyond its usual and normal progression. He reported that critical review of various epidemiological studies indicated no evidence of a causal relationship between work activity and precipitation, aggravation, or acceleration of pre-existing spondylosis. He reported:

"These studies suggest that certain musculoskeletal disorders such as 'tension neck syndrome' are strongly associated with static postures and static loads. Evidence for causal relations between highly repetitive work or work involving highly forceful exertion is less strong; finally, none of the exposure factors are quantified. 'Presently, evidence of work-relatedness of cervicobrachial musculoskeletal disorders (that is pain disorders affecting the neck, shoulder and upper extremity regions) due to repetitive upper extremity disorders in inconclusive....[Citations omitted.]' There is no scientific medical literature that supports either the claimant's claim or his neurosurgeon's claim that the claimant's work exposure of `heavy physical type work including heavy lifting, repeated bending, and forklift operation ...' could have accelerated his disease beyond its natural progression."

Exhibit 3, June 8, 2002 report of Goodman, pages 4-5. Dr. Goodman then explained that, as an occupational medicine specialist, he was familiar with the type of foundry work the applicant did, and that he specifically toured the employer's plant and observed the operations the applicant claims caused his condition. He concluded:

"The work activity he was required to perform is typical of these types of industrial processes, involves no exposure to extraordinary biomechanical physical demands, and no traumatic exposures. It is well known that individuals with cervical spondylosis may experience symptomology in conjunction with the performance of certain activities, leading to activity intolerance. This activity intolerance does not represent a causal relationship, but rather represents the mere symptom manifestation of cervical spondylosis according to its usual and normal progression."

Finally, the doctor noted the applicant had been in a motorcycle accident in March 2000, in which he suffered contusions to his rib cage, which he felt was much more likely to aggravate the cervical spine than his work exposure.

Dr. Goodman also testified at the hearing. He referred to a NIOSH manual published in July 1997, and indicated it

"...speaks of those types of static positions as having insufficient evidence for the development of these types of disorders.

"Rather, when medical experts now look at that, we see people who have things like cervical spondylosis, such as the patient, are simply unable to tolerate that type of activity as their disease progresses, according to its normal and natural progression."

Transcript, page 64-65. On cross-examination, the doctor admitted he did not see the actual CNC machine that the applicant had set up. Transcript, page 74.

3. Discussion

The ALJ found for the applicant, crediting Dr. Block's opinion. In explaining why, he noted that Dr. Robbins assumed the applicant had only worked for the employer for one year instead of seven; that Dr. Goodman did not see the actual machine the applicant was working on; and that while Dr. Goodman suggested the increased symptoms could be attributed to the March 2000 motorcycle accident, the applicant hurt his left side but not his neck in that accident and his problems had started well before March 2000 anyway.

On appeal, the respondent asserts the ALJ erred in not accepting the opinions of Drs. Goodman and Robbins. With respect to Dr. Robbins, the respondent asserts that since the applicant relates his pain to the set up work that he did for a year, a reasonable inference can be drawn that the prior employment does not matter from a causal standpoint. The respondent emphasizes, too, the absence of a traumatic injury. It suggests that while the history in the first report to Robbins emphasizes the set-up job particularly, it was only later when he found out about the pre-existing degenerative condition that he began implicating earlier employment.

With respect to Dr. Goodman, the respondent asserted Dr. Goodman did not really attribute the progression of the applicant's condition to the trauma motorcycle injury, but simply cited it as the type of traumatic that could have aggravated the condition in comparison to the claim of injury from occupational exposure. The employer emphasizes that while Dr. Goodman may have not actually seen the work the applicant did, he saw similar kinds of work.

The respondent also suggests that Dr. Block's opinion is not credible, noting that Dr. Block himself did not tour the employer's facility unlikeDr. Goodman. The respondent notes too, that Dr. Block stated his opinion only to being "51 percent more likely than not." The respondent points out that another treating doctor, Olson, did not attribute the applicant's condition to work, and asserts Dr. Olson instead agreed the condition was simply the natural progression of the underlying condition.

The commission, after considering the arguments raised by the respondent, concludes the ALJ reached the proper result in this case.

Dr. Block's October 11, 1999 opinion clearly refers to the applicant's entire job history, including heavy physical type work, repeated bending, and forklift operation, not just the neck straining activities of the CNC set-up job. Dr. Robbins' report is dated later, in January 2000, following an evaluation in December 1999. Clearly, then, the applicant's treating doctor, at least, associated his condition with his entire employment history before the applicant saw Dr. Robbins.

While the applicant may have emphasized his recent employment during his subsequent evaluation with Dr. Robbins, the applicant is a layman. Dr. Robbins is the medical expert and could have asked him about his entire work history, as Dr. Block evidently did, but did not. In short, Dr. Block's opinion in October 1999 that implicates the entire work history clearly is not something the applicant "came up with" after Robbins' December 1999 examination.

Moreover, while the respondent correctly points out that IME Robbins noted the absence of a traumatic event, that does not rule out causation by occupational disease, which is the applicant's theory here. Simply identifying a pre-existing condition, and then saying there is no traumatic event to aggravate it, does not rule out causation by an appreciable period of workplace exposure that is at least a material contributory causative factor in the onset or progression of the condition. (1)

IME Goodman, to be sure, goes farther and opines that the type of work the applicant did would not aggravate, accelerate, or precipitate his pre-existing degenerative condition beyond normal progression. That, of course, suggests that Dr. Goodman likewise believes the work exposure would not have been a material contributory causative factor in the onset or progression of that condition. However, the commission does not credit Dr. Goodman's opinion.

In his report and at the hearing, Dr. Goodman cites a recent NIOSH study in support of his opinion that work exposure did not cause the applicant's pre-existing musculoskeletal disorders to the neck to progress. Indeed, Dr. Goodman contended, particularly at the hearing, that the NIOSH article supports his opinion that the work activity merely causes a cervical spondylosis condition -- such as the applicant has -- to become symptomatic at work due to lost tolerance for such work from the underlying condition itself.

While Dr. Goodman did not provide a copy of the NIOSH report, the commission obtained a copy. The conclusions of the NIOSH report are that:

NIOSH, Musculoskeletal Disorders and Workplace Factors: A Critical Review of Epidemiological Evidence for Work-Related Musculoskeletal Disorders of the Neck, Upper Extremity, and Low Back, US Department of Health, July 1997, pages 2-22 to 2-23 <http://www.cdc.gov/niosh/pdfs/97-141.pdf>.

The commission does not read the NIOSH report to substantiate Dr. Goodman's theory that workers with pre-existing cervical spondylosis experience only symptom manifestation during employment activity. Rather, the NIOSH article seems to suggest the opposite, at least for those workers doing the type of duties that the NIOSH report indicates are causally connected to musculoskeletal disorders. Further, the applicant's job duties included "activities which involve forceful arm or hand movements which generate loads to the neck and shoulder area" and "high levels of static contraction, prolonged static loads, or extreme working postures involving the neck/shoulder muscles." In short, the NIOSH article, if anything, undercuts Dr. Goodman's opinion and supports Dr. Block's opinion

The commission also considered Dr. Block's "51 percent" opinion. The commission considers it quite likely the doctor was only trying to say it was more probable than not that work exposure caused the injury, which is of course the "reasonable medical probability" standard that applies in worker's compensation cases. Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959). Even if that is not the case, however, Dr. Block's opinion is sufficient to support a finding of causation.

Finally, the commission considered the respondent's contention that another treating doctor, Olson, agreed with IMEs Goodman and Robbins that work exposure did not cause the applicant's disability. The commission has read the letter and treatment notes in Exhibit L, which of course mention the applicant's underlying degenerative condition. However, the commission could not locate a note from Dr. Olson expressly stating an opinion on the role of employment exposure either way, though Exhibit L does contain Dr. Block's November 1999 letter to Dr. Olson opining that the applicant's condition is work-related. The commission declines to draw an adverse inference from Dr. Olson's failure to state an opinion, particularly since Olson is a family doctor and Block the specialist seen on Olson's referral. (2)

3. Ancillary procedural points.

Two remaining procedural points have been raised. First, in his answer to the petition for commission review, the applicant asked the commission to dismiss the petition for failing to set forth the specific reasons and factual disputes for which review was sought. However, while Wis. Stat. § 102.18(3) styles the document triggering review as a "petition," the statute only authorizes the commission to dismiss a petition for being untimely, or inferentially, for not being taken from an ALJ's order granting or denying compensation. Nothing in the statute or any rule requires the petition to state reasons for the review, or to make specific allegations of error. See Wis. Admin Code § § LIRC 1.01, 3.01.

Second, the applicant has changed attorneys, and the two have been unable to agree on how to split the fee, raising a dispute within the department's jurisdiction under Wis. Stat. § 102.26 (1)(b). Indeed, the ALJ's order refers to the claim on the fee division in his decision at page 6. Either attorney may apply to the department for appropriate action to obtain an order regarding the division and payment of the fee.

cc: 
Attorney Lynne Layber
Attorney Matthew C. Siderits
Attorney Hans A. Buehler


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Footnotes:

(1)( Back ) Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 5 (1978).

(2)( Back ) See Block's October 11, 1999 letter to Olson which concludes by thanking Olson for the privilege of seeing the applicant. 

 


uploaded 2003/07/21