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

RICHARD J STUCK, Applicant

COMBINATION DOOR COMPANY, Employer

TRANSPORTATION INSURANCE COMPANY, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2001014208


The applicant filed an application for hearing in July 2001 seeking compensation for a back injury that occurred while he pulled out a rail at work on November 30, 2000. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the case on July 8, 2002.

Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded that the applicant sustained an injury arising out of his employment with the employer on November 30, 2001, and that his average weekly wage at the time was $620.04.

At issue before the ALJ was the nature and extent of disability from the injury. The applicant contends the work injury eventually required back surgery; the respondent contends the injury resulted in only a thoracic strain which completely healed. The ALJ found for the applicant, and the respondent filed a timely petition for review.

The commission has considered the petition and the positions of the parties, reviewed the evidence submitted to the ALJ, and discussed witness credibility with the presiding ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on July 28, 1959. He has a history of back pain, including an injury that resulted in a fusion at L5-S1 in 1989. After that surgery, he was able to resume work, and was working for the applicant as a laborer. However, as recently as May and June 1999, he had back pain, including in May 1999 pain going into the right buttock and thigh. Exhibit 1, June 22, 1999, note of Stellmacher; May 7, 1999 note of Meress.

On November 30, 2000, the applicant was working as a "sash string door assembler." The process required the applicant to pull pine rails (2 inches by 30 inches each) from a skid. There are photographs of the set-up at exhibit 4. The applicant had to reach above his shoulder and then pull a group of rails with about 75 percent of his force. As he did, he testified, he experienced sensation like a jolt or zap starting in his lower back, then going up into his shoulder and his left arm.

According to the applicant, the pain subsided, and he reported a work injury to his foreman, Eric Anderson. He testified he told Anderson he hurt his back. He testified Anderson presented him with the "employee injury notification form" (exhibit D), that describes the injury as

"pulled muscle" in upper left back
                                          shoulder

The form contains the following supervisor's comment: "was pulling 3-0 screen rails off skid -- middle of skid."

The testimony of the applicant and supervisor Anderson conflict about the reason for the stricken reference to the back on the injury notification form. The applicant testified that he originally signed a page torn from a spiral notebook reporting a back injury, and that later on Anderson brought out a different document--the form at exhibit D. The applicant testified someone else had prepared the form, and that the word "back" was marked out and "shoulder" substituted when it was presented to him for signature. The applicant asked Anderson why "back" was marked out and "shoulder" added when he had not hurt his shoulder. Anderson told him it did not matter, as long as something was written down it would be "OK" and suggested that Anderson would get in trouble with "Mark" if a back injury were reported. Transcript, pages 20-21; 37-40.

Foreman Anderson, for his part, testified that he prepared the incident report, including the original description of the injury to say "`pulled muscle' in upper left back". However, Anderson testified that the applicant struck the word "back" and added the word "shoulder." Specifically, Anderson testified that the word "shoulder" on the form is in the applicant's handwriting. Transcript, pages 65-66. Anderson testified it would not matter to Mark if a back or shoulder injury were reported. Transcript, page 69.

The applicant did not immediately seek treatment for his injury, but continued to work for the employer in the ensuing weeks. He testified he would have good days and bad days, and apparently did lighter work. However, he testified his pain kept getting worse, and he noticed he was limping. Finally, on January 15, 2001, he sought treatment from John D. Steiner, M.D., at Aurora Health Care.

Dr. Steiner's note is exhibit 1. He gives the following history:

"Evaluation today due to concerns of left sided low back pain as well as left thigh and knee pain. Apparently, he has had a previous history of lumbar disc disease. Apparently had had surgical procedure a number of years ago but he is uncertain whether it is related to right or left sided problems. Reports for the last week he has had numbness in the anterolateral aspect of his left knee. Denies any previous history of injury. It is worse on arising or after he has been on his feet through much of the day at work... [Emphasis added.]"

On examination, the doctor noted some tenderness in the left sciatic notch region, numbness to light touch over the anterolateral aspect of the right knee, a positive straight leg raising test at approximately 45 degrees on the left with reproduction of the symptoms, and an otherwise fairly normal gait.

The doctor's assessment was low back pain, with some apparent radicular symptoms, and decreased reflexes on the left. In light of the increased symptoms, Dr. Steiner prescribed a Medrol Dosepak, and wanted follow-up in two weeks to consider an MRI.

The applicant testified that he believed he told Dr. Steiner about his work injury. Transcript, page 26, though he testified on cross-examination that he could not recall whether he denied an injury when he spoke to the doctor. Transcript,
page 52.

The applicant returned for follow up on February 2, 2001. On this occasion, he saw Haydar K. Saleh, M.D., who noted constant back pain for one month, with radiation to the left leg associated with numbness, but no trauma or fall. The doctor diagnosed lower back pain with radiculopathy with decreased reflexes in the left side. He recommended the applicant continue with his medication, and noted he already had an appointment with a neurosurgeon.

The applicant then began treating with Joseph Cusick, M.D., on February 5, 2001. Dr. Cusick provided Dr. Steiner a restatement of his office note which does not mention a specific work injury but states the applicant felt his pain process had been increasing over the last month. Exhibit 3, February 5, 2001 letter from Cusick to Steiner.

An MRI was done on February 12, 2001. This showed what appeared to be a disc herniation at L3-4 (the 1989 fusion was at L5-S1.) Dr. Cusick recommended surgery based on the MRI.

The surgery, a left L3-4 laminectomy and discectomy, was done on March 13, 2001. Dr. Cusick's pre-admission note for March 6, 2001 states:

"This is a 41-year old white male who stated that symptoms of low back pain started prior to Christmas with a strange sensation. The patient says that there was previously an injury at work, although it is uncertain as to whether this was the cause of his problems, where he was pulling out some rails. Symptoms stayed stable, with the leg problems presenting shortly thereafter...."

Exhibit 3, Cusick note of March 6, 2001. Dr. Cusick set out the same history in his discharge note following surgery.

Both sides submit expert medical opinion on the question of whether the work injury caused the need for the March 13, 2001 surgery, as well as the attendant disability and medical expense.

Dr. Cusick sets out his opinion in a letter dated July 2, 2001 at exhibit B. He writes:

"The present episode has its historical onset to a pulling and lifting incident in November of 2000. Mr. Stuck continued to have upper lumbar pain, which then became associated with a left lower extremity component. Clinic and radiographic findings demonstrated the causative basis to be a large prolapsed (extruded) disc, eccentric to the left L3-L4. The previous operative intervention had been at the L5-S1 level (2 segments below the present problem) and represented a process of disc extrusion rather than spondylotic degenerative changes. Mr. Stuck in all probability incurred disc herniation which resulted in his upper lumbar pain in November of 2000. The subsequent association with a strong radicular component is just a manifestation of a continuum of that process. His subsequent return and continued work activity resulted in the acceleration of the disc abnormality which had resulted from the lifting pulling incident in November of 2000. The character and temporal sequence of events support the natural history of such an occurrence. I again must note that there is no clinical or radiographic support for the contention that this was secondary to a chronic degenerative change."

The respondent retained Mark Aschliman, M.D., as an independent medical examiner. Following his examination of the applicant on June 8, 2001, he writes:

"In my opinion, the surgery related in no way to the November 30, 2000 occurrence. On November 30, 2000, Mr. Stuck had at most a thoracic sprain. These symptoms then resolved without formal intervention. Mr. Stuck manifested symptoms of low back pain and radiculopathy consistent with a progression of his underlying degenerative process not affected by his industrial activities. Should the event in question have caused directly or affected the condition of degenerative lumbosacral spondylosis leading to L3-4 disc herniation, one would have anticipated the acute onset of low back pain with radiculopathy. This is simply not the case.
. . .
"There is no indication that the November 30, 2000 event in any way affected the lumbosacral spondylosis. Should it have done so the acute onset or at least the more rapid onset of lumbosacral symptoms would have been expected; this is simply not the case. Additionally, Mr. Stuck has a condition of chronic intermittent low back pain with radiculopathy. The symptoms that manifested in December of 2000 present simply a progression of the underlying condition of Mr. Stuck without contribution from the thoracic strain on November 30, 2000."

Exhibit 2, report of Aschliman dated June 8, 2001, pages 6-7.

The parting salvo comes from Dr. Cusick, who wrote on September 17, 2001

"I am not quite sure [why] Dr. Aschliman continues to refer to lumbar spondylotic degenerative changes whereas Mr. Stuck's problem was that of a disc herniation. Certainly, those two disorders may occur in concert but are separate processes. In Mr. Stuck's case the problem was that of the disc herniation and radiculopathy. The temporal sequence of pain associated with a disc herniation or prolapse may be somewhat variable and certainly may be associated with some temporary improvement [with] subsequent exacerbations. There certainly does not need to be an immediate event with an unrelenting course..."

Exhibit C.

Dr. Cusick, to be sure, carefully described how the applicant's gradual onset of pain following the November 30, 2000 event could be consistent with a disc injury causing herniation of the L3-4 disc. However, the commission cannot conclude that the applicant met his burden of proving that his claimed disability was caused by the work injury. First, of course, the "Employee Injury Notification Form" has the word "back" marked out. But even if the word "back" had not been marked out, the form still would have referred to an injury to the "upper left back," not in the lower back or lumbar spine. In other words, the report of an injury to the upper back would not have been consistent with the applicant's hearing testimony regarding pain in the lower back with the November 30 event, spreading up the shoulder into the arm.

Second, the applicant's assertion that he had a lower back injury on November 30, 2000, with some residual pain eventually increasing to the point of a limp in January 2001 is not borne out by the early medical notes. In general, statements made early in the treatment -- when the memory is fresher -- are given more weight than later testimony. Revels v. Industrial Commission, 36 Wis. 2d 395, 401 (1967). In this case, none of the first three medical notes (Steiner's note of January 15, 2001; Selah's note of February 2, 2001; or Cusick's note of February 5, 2001) mention the traumatic event of November 30, 2000. Moreover, the first two notes, Dr. Steiner's note of January 15, 2001 and Dr. Selah's note of February 2, 2001, put the onset of pain in early January 2001 and affirmatively state the pain started without injury or trauma.

A worker seeking worker's compensation has the burden of proving all the facts necessary to sustain his claim beyond a legitimate doubt, (1)   and the commission may reject the opinions of medical experts based on materially inaccurate statements from the applicant. (2)   The commission is left with legitimate doubt on the question of whether the applicant actually hurt his lower back on November 30 and that he had continuing low back or upper lumbar back pain continuing thereafter -- as Dr. Cusick assumed in opining the applicant's current condition was caused by the November 30, 2000 event.

The commission therefore concludes that while the applicant may have sustained some type of injury on November 30, it caused at most a thoracic strain as Dr. Aschliman opined, not the disability and medical expense related to the lumbar spine for which the applicant now seeks compensation. The application must therefore be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed August 7, 2003
stuckri . wrr : 101 : 3   ND § 8.26

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972); Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998). He informed the commission he believed the applicant hurt himself in November, and that his symptoms died down and got worse in January. The ALJ also credited the applicant's version of events regarding the "Employee Injury Notification Form" over the supervisor's, but frankly acknowledged it was not based on any one articulable difference in demeanor. However, because the notification form -- even without the strike-out and addition -- would have reported an upper back injury, and because early medical notes do not substantiate the occurrence of any work injury to the lower back, the commission cannot accept the ALJ's credibility impression.

cc: 
Attorney Lois Kohl Marks
Attorney Charles J. Graf


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Footnotes:

(1)( Back ) Leist v. LIRC, 183 Wis. 2d 450, 457 (1994).

(2)( Back ) Bumpas v. ILHR Department, 85 Wis. 2d 805, 817 (Ct. App. 1978).


uploaded 2003/08/12