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

GARY L. JOHNSON, Applicant

ANSUL INC., Employer

ILLINOIS NATIONAL INSURANCE CO., Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2000-036810


Ansul, Inc. and Illinois National Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on July 19, 2001. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense attributable to that injury.

On December 21, 2001, the commission remanded this matter to the Worker's Compensation Division to give the parties the opportunity to submit additional medical evidence. On October 8, 2002, the commission provided additional instructions concerning the submission of evidence pursuant to the remand. Additional medical opinions were submitted on behalf of the applicant by Dr. Paul N. Baek.

The commission has carefully reviewed the entire record in this matter and hereby affirms the ultimate findings of the administrative law judge. However, in light of the additional medical evidence submitted from Dr. Baek, and in order to better address the arguments made in the petition, the commission sets aside the administrative law judge's findings and substitutes therefor the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is August 26, 1948, began his employment with the employer in 1991. He worked for the first eighteen months in the employer's labor pool, but in 1993 he became a C welder. This involved welding metal wheels for large fire extinguishers. The wheels weighed from 30 to 90 pounds each, and the applicant lifted and manipulated them in the welding process. In 1995, he became a B welder, which involved welding tanks ranging in weight from 60 pounds to over a ton. He used a hoist for the heavier tanks but normally lifted the lighter ones himself. He would lift them from a pallet into a machine jig, and since they did not always fit cleanly, he would have to muscle them into place. After the machining process was finished he would lift the tanks out of the machine onto the floor and then use a hoist to load and stack them onto a cart. His typical production rate when he was performing this work was eight tanks hour.

On or about October 20, 1999, the applicant was performing the B welder job when he noted a "menthol type sensation" in his left shoulder. He further described it as a "coolness" with no initial pain. He was lifting quite a few tanks and it happened over time. Just before he went to bed that night he began to experience severe pain down his left arm, and had a poor night of sleep. He went back to work using over-the-counter pain medication. On October 25, 1999, he informed the employer of the ongoing problem, which he believed was with his left shoulder. He continued to work, but the doctor the employer wanted him to see couldn't see him for three weeks so he went to a chiropractor, Dr. Suzanne Eickert.

Dr. Eickert completed a pre-printed intake form recounting left shoulder and neck pain, and also recounting a "menthol feeling" gradually getting worse over time. There is no narrative description of work onset although the form notes the applicant is a welder. Dr. Eickert referred the applicant to Dr. Gerald Favret, a neurologist. Dr. Favret ordered a MRI on November 22, 1999, and it showed a disc bulge at C5-6 with possible nerve impingement. Dr. Favret referred the applicant to Dr. Bruce Bressler, a neurosurgeon. In the referral letter, Dr. Favret indicated that the applicant's initial concern had been that he hurt his shoulder at work lifting tanks overhead.

The applicant first saw Dr. Bressler on December 9, 2001. Dr. Bressler also noted a history of "apparently working and lifting tanks overhead" resulting in neck and left upper extremity pain. Dr. Bressler diagnosed a herniated disc at C5-6, and on January 4, 2000, he performed an anterior cervical decompression and fusion at C5-6. On April 19, 2000, Dr. Bressler completed a WC-16-B in which he checked the direct causation box and assessed five-percent permanency.

On June 28, 2000, Dr. James Gmeiner examined and evaluated the applicant at respondents' request. He also viewed videotape of the applicant's work duties, which depicts the applicant lifting the 60-pound tanks, but not the heavier tanks he also lifted. Dr. Gmeiner opined that the applicant's disc herniation was a natural manifestation of cervical disc disease unrelated to his work duties. Dr. Gmeiner described the work activity as lifting cylinders with a hoist to be placed on a jig in a horizontal position. Dr. Gmeiner's original report made no direct comment concerning the manual lifting performed by the applicant. However, in a supplementary report dated April 30, 2001, Dr. Gmeiner indicated that the fact that the applicant manually lifted tanks onto the machine jig did not change his opinion concerning causation.

The commission's remand requested that Dr. Bressler provide an additional medical opinion concerning the issue of causation after viewing the videotape of the applicant's work duties, and after being made aware of the fact that the applicant's work duties did not include overhead lifting. Respondents were invited to submit a responsive opinion from Dr. Gmeiner or from another physician of their choosing. Dr. Baek opined that the applicant's work exposure aggravated and accelerated the applicant's preexisting cervical condition beyond normal progression resulting in his surgery. However, Dr. Baek did not indicate that he had viewed the videotape or that he was aware of the fact that there was no overhead lifting. Respondents did not submit a responsive medical opinion.

The commission allowed an opportunity for Dr. Baek to clarify his opinion and he submitted a second opinion dated October 21, 2002. In it he indicated that he had still not viewed the videotape of the applicant's work duties, but that he had reviewed Dr. Bressler's treatment records, and had been made aware of the fact that the applicant's job duties involved overhead reaching but no overhead lifting. Dr. Baek indicated that he believed viewing the videotape was unnecessary, because based on his review of Dr. Bressler's records, the applicant's description of the onset of his radicular symptoms, and the fact that the applicant performed overhead reaching in his work for the employer, his opinion concerning work causation remained the same. Respondents again did not submit a responsive medical opinion.

The commission finds Dr. Baek's opinion concerning work causation to be credible. His opinion that the applicant's preexisting condition was aggravated and accelerated beyond normal progression by the "work-related injury" is inferred to describe a traumatic work injury occurring with the onset of symptoms at work on October 20, 1999. As noted by the administrative law judge, prior to the incident of October 20, 1999, the applicant was functioning normally with no cervical symptoms. The applicant's description of the symptom onset was credible. The heavy work he performed for the employer, as well as the overhead reaching, is inferred to have been the type of work that could aggravate a previously-asymptomatic cervical disc condition beyond its normal progression and result in a traumatic injury. Dr. Gmeiner's opinion that the applicant's pain onset was a "natural manifestation" of his cervical disc disease unrelated to the work activities, and that the work activities were "consistent with normal usage of the upper extremities" is rejected. His opinion fails to acknowledge the significant stress the applicant's work placed on his cervical spine, as well as the applicant's credible description of the specific onset of symptoms occurring while he performed his work on October 20, 1999, and their progressive worsening through that evening.

Pursuant to Wis. Admin. Code Ch. DWD 80.32(11), a cervical fusion results in a minimum award of ten-percent permanent partial disability. This amounts to 100 weeks of disability at the applicable rate of $ 184.00 per week, for a total of $ 18,400.00.

The applicant is also entitled to the sum of $ 1,255.69, which is the stipulated amount owing for the period of temporary disability running from January 4, 2000 through February 14, 2000. In addition, the sick leave used during this time period shall be restored.

Reasonably required medical expenses are also due as follows: to the applicant as reimbursement for out-of-pocket medical expenses the sum of $ 2,238.47; and to Blue Cross as reimbursement for compensable medical expenses the sum of $ 12,400.51.

The applicant's attorney is entitled to a 20 percent fee in the amount of $ 3,931.14, as well as costs in the amount of $ 250.29.

Although the applicant has experienced an excellent result from his cervical fusion, such a serious surgery may in the future lead to the necessity for additional medical treatment and/or disability. Accordingly, jurisdiction will be reserved on all issues.

NOW, therefore, this

INTERLOCUTORY ORDER

The administrative law judge's decision, as modified by the commission, is affirmed. Within 30 days from this date, respondents shall pay to the applicant compensation in the amount of fifteen thousand four hundred seventy-four dollars and twenty-six cents ($ 15,474.26); to the applicant's attorney, George Burnett, fees in the amount of three thousand nine hundred thirty-one dollars and fourteen cents ($ 3,931.14); and costs in the amount of two hundred fifty dollars and twenty-nine cents ($ 250.29); to Blue Cross as reimbursement for work-related medical expenses the sum of twelve thousand four hundred dollars and fifty-one cents ($ 12,400.51); and to the applicant as reimbursement for out-of-pocket medical expenses the sum of two thousand two hundred thirty-eight dollars and forty-seven cents ($ 2,238.47). Respondents shall also restore the applicant's sick leave as noted above.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed December 17, 2002
johnsga . wpr : 185 : 8   ND § 8.19  § 9.2 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

Respondents have indicated their displeasure with the fact that the commission exercised its discretion to obtain additional medical evidence in this case. Respondents argue that the commission should have dismissed the applicant's claim without further proceeding, based on the fact that Dr. Bressler's opinion was flawed because he was under the mistaken impression that the applicant lifted tanks overhead.

In every case which it reviews, the commission's ultimate goal is to discern the truth of what actually occurred, and to correctly apply the applicable law. The commission concluded that additional medical commentary was necessary in this case in order to determine what had actually occurred. Dr. Bressler's opinion was flawed because of his misunderstanding concerning causation, and the commission concluded that it needed to know what the applicant's physician would state if he knew the applicant had performed overhead reaching but no overhead lifting. While respondents disagreed with the order for additional evidence, the commission believes that it was a reasonable and proper exercise of its discretion done solely to obtain the truth of the matter.

cc: 
Attorney George R. Burnett
Attorney Douglas M. Feldman


Appealed to Circuit Court.  Affirmed July 21, 2003.  Appealed to the Court of Appeals. Affirmed May 25, 2004, unpublished per curiam decision.

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