GEORGE ANDERSON, Applicant

FABRICATING ENGINEERS, Employer

LIBERTY INSURANCE CORP, Insurer

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.

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

Dated and mailed January 29, 2004
andersg . wsd : 101 : 1   ND § 5.29

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

1. Facts; posture.

The applicant was born in 1957. He is a crane operator, and began working for the employer in January 1999.

The applicant then sustained the work injury at issue here on November 12, 1999. On that day, he adjusted the five-foot forks on a forklift, to try to get them to fit under a pallet. He had to get out of the forklift to do this, and was pulling a knob up when he felt a pop in his back, and went right down to his knees. Transcript, page 42. He was taken to an emergency room, where the doctor took him off work, ordered two days of bedrest, and told him to return for reevaluation on November 15, 1999.

Thereafter, the applicant followed with his family doctor and chiropractor. In January 2000, the applicant began treating with Thomas Rieser, M.D., whom he had last seen for a back problem in 1998. Although Dr. Rieser released the applicant to work in March 2000, the applicant complained of increased back and left leg pain in September 2000. These complaints led to an MRI, which showed a disc herniation on the left with compression of the S1 nerve root. The applicant told the doctor he had been dealing with the problem for a year and desired to have something done. Accordingly, the doctor set the applicant up for surgery, a discectomy at L5-S1 on the left, which was done in early November 2000.

In a letter dated December 20, 2000, Dr. Rieser noted the applicant had a slip and fall in January 1998, at which time he had a disc herniation at L5-S1 on the left side which was not work related. However, Dr. Rieser went on to note that the applicant then was able to work for a year without problems before reinjuring himself at work in November 1999. Dr. Rieser thus thought the applicant had aggravated a pre-existing condition, though some apportionment might eventually be necessary between the work injury and the pre-existing condition.

On March 1, 2001, Dr. Rieser again noted the January 1998 slip and fall, but that the applicant had been able to return to work for a substantial period of time thereafter. The doctor estimated permanent partial disability at 15 percent.

Regarding causation of the applicant's then-current condition, the doctor opined:

"...I feel it is mulifactorial. Certainly I feel that he has some preexisting conditions. He had a non work-related injury for which he has done reasonably well with and that was 2 years ago. However, he has had a 25-year history of heavy equipment operation. I feel this plays a significant role in the current state of affairs at this time. I indicated that I feel he has a degenerative disc at multiple levels. He is status post discectomy at L5-S1 on the left. I feel that 30% of his current problems are preexisting, 70% are work-related. Of that 70%, 30% is related to the significant aggravation of the problem and recent work injury of November of 1999 and 70% related to an industrial injury occurring over the 25 years doing heavy equipment. At this point, I feel the only other option we have left since he continues to have significant pain is a 3-level fusion. I discussed this with him..."

Dr. Rieser ordered another MRI as a prelude to the fusion surgery. This did not really show a recurrent disc, but more scar tissue. The scan also showed multiple degenerative disc disease at L3-4, L4-5 and L5-S1. The doctor again recommended fusion, which the applicant felt he was ready for.

The surgery, an anterior/posterior fusion at L3-4, L4-5, and L5-S1 was done on May 24, 2001. By October 2001, Dr. Rieser noted that the applicant was doing much better than before surgery, but was nonetheless permanently disabled from heavy equipment operation.

In August 2002, the doctor noted the applicant was doing reasonably well with some generalized back pain. At this point, the doctor indicated the applicant had reached maximum medical improvement, and was permanently restricted to light duty work (no frequent bending, lifting or twisting), with a maximum ten pound lift and no lifting from the floor. He limited the applicant to four hours of work per day.

2. Expert opinion.

The parties have submitted expert medical opinion on the cause and extent of the applicant's disability. Timothy S. DeForian, D.C., the applicant's chiropractor, completed a practitioner's report on exhibit B. He opined the November 12, 1999 forklift-blade-moving injury at work directly caused disability to the applicant. His diagnoses are severe lower back lumbar/sacral sprain/strain, with disc herniation and lower extremity numbness and tingling. Regarding permanent disability, the doctor wrote: " I believe the permanent disability resulted from his injury on 11-12-99. He did have some degenerative discs per past records, but barring the injury he had 11-12-99 he should have been able to continue his normal duties until retirement." He opined the applicant was limited as far as lifting/movement due to loss of range of motion.

Dr. Rieser also prepared a practitioner's report. He restated the opinion from his March 1, 2001 note that 70 percent of the applicant's condition was work related (with the remaining 30 percent pre-existing), and that of that 70 percent only thirty percent was due to the November 1999 injury (with the remaining 70 percent associated with "industrial injury" presumably the work exposure over 25 years.) Dr. Rieser went on to rate permanent partial disability on a functional basis at thirty percent to the whole body for permanent limitations and persistent pain. He saw possible future treatment as including hardware removal.

The applicant was also examined twice by Stephen Barron, M.D., the expert retained by the employer and its insurer (collectively, the respondent.) In his first report dated February 24, 2000, the doctor stated a diagnosis of a lumbar sprain from the November 12, 1999 work injury, and that the applicant also had a history of a prior L5-S1 disc herniation on the left side. The doctor went on to state:

...the incident [of November 12, 1999] caused a lumbar sprain, which aggravated a pre-existing condition. In my opinion, because of his lack of objective findings at the present time, that aggravation was temporary. He did have a prior history, according to the medical records, of an L5-S1 disc herniation on the left. In my opinion, the work injury of November 12, 1999, temporarily aggravated this preexisting condition. As of February 17, 2000, he has no objective findings on his examination and has returned to pre-aggravation status.

The doctor further opined that the applicant reached a plateau of healing on February 17, 2000. He did not set any work restrictions.

Following re-examination on April 23, 2003, Dr. Barron diagnosed multilevel degenerative disc disease, postoperative discectomy at L5-S1 on the left and postoperative fusion from L3 to the sacrum. He rated permanent partial disability at 35 percent, but adhered to his opinion that it was not related to his injury of November 12, 1999.

The parties also submit expert vocational opinion. The applicant's expert is Kenneth E. Ogren. He opines that, given Dr. Rieser's restrictions, his limited education (including 6th grade arithmetic skills and no high school diploma or GED) and his vocational skills that are not transferable, he was permanently and totally disabled.

The respondent's vocational expert, Jay Smith, agreed that "simply applying Dr. Rieser's restrictions would totally and permanently disable the applicant from all potential work in the labor market." However, Mr. Smith went on to suggest that given Dr. Rieser's 70/30 split, the applicant would be left with a 70 percent loss of earning capacity, and that if one considered only additive effect of the applicant's restrictions over the restriction to medium duty in 1991 the applicant would have only a 40 to 50 percent loss of earning capacity. He further noted, of course, that under Dr. Barron's opinion, the applicant would have no loss of earning capacity from the work injury.

3. Discussion

The ALJ credited Dr. Rieser's restrictions and found the applicant to be permanently and totally disabled. The respondent appeals.

On appeal, the commission is confronted with two issues: (1) which doctor's opinion on causation and work restrictions to credit, and (2) the vocational effect of the applicant's work restrictions.

a. Causation/applicant's credibility

The respondent contends that the record contains three examples of the applicant's lack of credibility, which create legitimate doubt as to whether he has accurately described his injury and its effects to his doctors.

First, the respondent points to the applicant's hearing testimony that he only missed a few days from stiffness following an August 1991 injury while working for another employer. Transcript, page 38. In fact, the respondent contends, the applicant while he immediately returned to work right after the August 1991 injury, he was laid off for a substantial period, and then upon returning from layoff began an extended period of temporary disability attributed to the August 1991 injury ending only with compromise of that case. Transcript, page 55-58.

Second, the employer points out that the applicant also denied any previous back injury when he applied for work with the employer in January 1999. Exhibit 11, transcript 58 et seq. Finally, the employer points out the controversy in the record about whether the applicant was in a single motor vehicle roll over accident in 1977, or multiple events with the last occurring in 1997.

Regarding the rollovers, the ALJ credited the applicant's testimony that his happened only once in 1997. The commission agrees, noting that if the applicant's back had been affected by numerous roll over accidents, presumably there would be some record of treatment.

Regarding the applicant's testimony that he missed only a few days from stiffness after the August 1991 injury, the record indicates that immediately after the August 1991 injury, the applicant did in fact return to work for six weeks and then was laid off for economic reasons. He conceivably could have thought the questioning about the time he missed following the 1991 injury referred to immediately after the injury. But this testimony, when coupled with his failure to report the 1991 injury when he applied for work with the employer, does undercut his credibility to some degree.

Are the applicant's attempts to minimize the effects of the 1991 injury enough to justify questioning the applicant's credibility about the timing or seriousness of the applicant's symptoms, leading to a basis for questioning Dr. Rieser's medical opinion based thereon?

The commission, like the ALJ, concludes not. First, as the ALJ points out, the worker's compensation system does not impose a forfeiture of benefits for misrepresenting a prior condition to an employer. Tews Lime v. ILHR Dept., 38 Wis. 2d 665, 674 (1968). Further, there seems little doubt about the seriousness of the applicant's current condition (questions of cause aside.) His condition was bad enough that a three-level fusion surgery was required. So then the commission is left with the question of whether the applicant was minimizing his pre-November 1999 symptoms -- whether from the 1991 injury or otherwise -- and then trying to pass the symptoms and disability from that pre-existing condition onto the November 1999 injury.

The commission cannot reach that conclusion. The medical records suggest the applicant was not particularly symptomatic before the November 1999 injury, and that even immediately after the November 1999 injury his symptoms improved to the point that Dr. Rieser gave him a full release in March 2000. Thereafter, his condition worsened to the point that the surgery was necessary. This does not seem to be a case where the applicant is intentionally or incredibly magnifying the causal role of the work injury to his doctors. Significantly, Dr. Barron does not attribute the applicant's disability to the 1991 injury.

In addition, Dr. Rieser, upon whose expert opinion the applicant relies, was apparently aware of the 1991 work injury. His February 19, 1998 treatment note discusses a 1990 work injury resulting in an MRI scan, followed by years of intermittent pain, at length. Exhibit N, Rieser note of February 19, 1998, pages 1 and 3. Further, Dr. Rieser only associated a relatively small part (30 percent of the 70 percent that was work-related) of the applicant's disability to the November 1999 accidental injury anyway. The rest he attributed to the years of occupational exposure to relatively heavy work as a crane operator. So while the applicant may not have always been completely forthcoming about the occurrence of the 1991 injury, the commission declines to discredit Dr. Rieser's opinion on that basis.

Nor can the commission conclude from the applicant's lack of candor about his 1991 injury that he is exaggerating or magnifying his complaints from his current condition, leading Dr. Rieser to set more limiting restrictions than necessary, thus artificially inflating his vocational loss. Rather, the record establishes that the applicant returned to work from injuries, and then tried to work until he no longer could. In sum, the commission adopts the findings of the ALJ, who saw the applicant testify firsthand, and credits Dr. Rieser's opinion and work restrictions.

b. Employer's liability for perm total/apportionment

The next issue is the question of apportioning liability per Dr. Rieser's double 70/30 split. Putting aside the question of apportionment, the vocational experts agree the applicant is permanently and totally disabled under Dr. Rieser's restrictions.

The ALJ held the respondent liable for the full amount of the permanent total disability award. On appeal, the respondent briefly argues in its reply brief that it should be held liable for a lesser amount.

In his careful and thorough decision, the ALJ gives a number of legal and medical reasons for not apportioning or reducing the permanent total disability award. Most significant legally is his citation to Green Bay Soap v. ILHR Department, 87 Wis. 2d 561 (1979). In that case, the injured worker had prior permanent partial disability rated at 30 percent to the whole body before the occurrence of the injury leading to permanent total disability. The court held that the employer liable for a later injury that caused permanent total disability was liable for the full permanent total disability award, not just 70 percent of it.

In Green Bay Soap, the court noted "the examiner did not find that the applicant's pre-existing disability contributed to his total disability," id., at 87 Wis. 2d 565, which might distinguish that case from Dr. Rieser's opinion in this one. Dr. Rieser does seem to attribute 30 percent of the applicant's permanent total disability in this case to the applicant's pre-existing disease. However, the Green Bay Soap court went on to note that while the worker's compensation law does not make "an employer liable for pre-existing disability which can be separated from the effects of a later injury," an employer cannot shift its liability arising under the Lewellyn (1)  "as is" rule when work activity precipitates, aggravates and accelerates a pre-existing degenerative condition. Id., at 87 Wis. 2d 566.

Such a shift in liability, essentially, is what apportionment would lead to here: allowing the employer to evade liability for the part of the new, permanent total disability arising after the work injury -- at least with respect to the 30 percent of the entire disability Dr. Rieser attributes to pre-existing disease. Further, since Green Bay Soap,  Wis. Stat. § 102.175(1)  (2)  was enacted, and may be read to rule out trying to apportion out liability for new disability caused in part by a work injury and in part by a pre- existing condition. In any event, on the record before it, the commission does not read Dr. Rieser's opinion that "30% of  [the applicant's] current problems are preexisting, 70% are work-related" to mean that the insurer here is being held liable for "pre-existing disability which can be separated from the effects of a later injury" -- that is, the onset of permanent total disability.

Of the 70 percent of the applicant's disability that the applicant attributed to work rather than pre-existing disease, Dr. Rieser attributed 70 percent to 25 years of occupational disease or exposure and 30 percent to the November 12, 1999 injury with the forklift. (3)  In this case, the insurer is liable for the disability arising not only from the applicant's traumatic injury of November 12, 1999, but also from his occupational exposure or disease. The date of disability from the occupational exposure or disease occurred with the November 12, 1999 traumatic injury, as Dr. Rieser indicates at box 8 of his form practitioner's report, and the insurer was on the risk on that date. (4)

cc: 
Attorney Gerald N. Gust
Attorney Steven A. Cotton

Appealed to Circuit Court. Affirmed January 17, 2005. Appealed to the Court of Appeals. Affirmed, unpublished per curiam decision, November 22, 2005.

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(1)( Back ) Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59 (1968)

(2)( Back ) 102.175 Apportionment of liability. (1) If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury. 

The department's interpretative footnote provides: 

This permits the department to apportion disability between two or more injuries according to proof of their relative contribution. Medical evidence on the exact percentage contribution by each injury is not necessarily required.

(3)( Back ) In terms of contribution to the permanent total disability, then, Dr. Rieser's opinion indicates that pre-existing degenerative disease accounts for 30 percent, work exposure over time accounts for 49 percent (0.70 times 0.70), and the November 12, 1999 work injury 21 percent (0.70 times 0.30).

(4)( Back ) Virginia Surety v. LIRC, 2002 WI App 277, 20, 258 Wis. 2d 665, 654 N.W.2d 306 

uploaded 2004/02/09