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

PAMELA G. LOVE, Applicant

G HEILEMAN BREWING COMPANY INC, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 92027697

The administrative law judge issued his Findings of Fact and Interlocutory Order in this case on January 20, 1994, following a hearing on November 22, 1993. The applicant submitted a petition for commission review of the administrative law judge's Findings and Order. Thereafter, both the employer and the insurer (collectively, the respondent) and the applicant submitted briefs. Prior to the hearing, the respondent conceded jurisdictional facts, an average weekly wage of $711.13, and a March 28, 1992 compensable injury. The respondent conceded and paid temporary total disability benefits from April 10, 1992 to February 10, 1993, and medical expenses incurred before February 11, 1993. The issues include the nature and extent of disability beyond that conceded, as well as liability for additional medical expenses. Also at issue was whether the respondent overpaid compensation by mistake of fact. The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside his findings of fact and order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born on January 1, 1954, and began working for the employer on February 20, 1978. Her job was to clean glass and glue that fell to the floor along the employer's assembly line. She suffered a conceded work injury to her back which occurred on March 28, 1992 when she shoveled some glass out from underneath a conveyor belt. She testified that she experienced pain in her lower back and left leg from the injury.

After the March 28, 1992 injury, the applicant reported to the Skemp walk-in clinic on March 31, 1992. She initially treated with Theodor Habel, M.D. He noted the March 28, 1992, injury causing complaints of back pain. He also noted a past history of back pain and a previously diagnosed bulging disc. He gave her pain medication and allowed her to "try to continue working."

The applicant returned to the walk-in clinic on April 11, 1992, when she saw Jane Ollrogge, M.D. Dr. Ollrogge noted a recheck for back pain, specifically "persistent back discomfort" from a reinjury of a chronic injury on March 28 while shoveling some glass under a conveyor belt. Dr. Ollrogge described the applicant's pain as a persistent dull, aching pain over her left lower lumbar area "that is no [sic] radiating down her into her left buttock and thigh" with slight numbness in her foot. She noted a pronounced left limp, tenderness over the left lumbar area, and mild muscle spasming over the left paraspine musculature. Dr. Ollrogge also noted that her condition had worsened over the preceding days, prescribed modified bedrest and an antispasmodic, and released her to her own physician, Dr. Meythaler. Dr. Ollrogge also took the applicant off work at this time.

The applicant saw Dr. Meythaler on April 15, 1992. He noted that the applicant was sweeping and shoveling at work when she started developing increasing back pain with some radiation of pain down the right leg. He also noted her present complaints of constant low back pain with radiation down the left leg and intermittent numbness and tingling. He also noted an antelgic gait to the left side. He described her condition as a "second and recurrent back injury, this time causing more symptoms into the left lower extremity [than] to the right." He described the symptoms as radicular and kept her off work.

Dr. Meythaler continued to note radicular symptoms into the left leg in May 1992. He set her up for a steroid injection. In June, he performed EMG nerve conduction testing with results consistent with mild to moderate left lumbosacral radiculopathy at L5 or S1 root level. He ordered a CT scan which was performed on June 25, 1992. The radiologist who performed the scan noted that it showed a bulge at L5-S1 "with a moderate probability of of disc herniation."

In August 1992, Dr. Meythaler noted some exacerbation of the applicant's chronic back pain and radicular symptoms and hoped that her problems might be myofascial in nature. In September 1992, Dr. Meythaler opined that the applicant continued to be totally disabled from "the disc herniation with left lumbosacral radiculopathy." He recommended weight loss. In October 1992, he noted the June 1992 CT scan showing a bulge at L5-S1 with moderate probability of disc herniation and bulge at the L4-5 and L3-4 levels. He continued to keep her off work in November, and did a second steroid injection at this time. Finally, in December, he referred the applicant to Eugene J. Carlisle, M.D., for a second surgical opinion when the November steroid injection failed to provide much relief.

Dr. Carlisle saw the applicant on January 4, 1993. He described the work injury on March 28, 1992, as causing a sudden onset of severe low back pain extending down the left leg to the bottom of the foot. He noted the left leg limp. He noted the prior conservative treatment and CT scans which he described as inconclusive because they were sometimes read as herniations at the third, fourth, and fifth lumbar discs, and sometimes as bulging. He could only make out a possible herniated disc at L5-S1. He ordered an MRI. The medical doctor who performed the MRI on January 11, 1993, noted mild degenerative changes at L4-5 and L5-S1 with a pronounced bulge at L5- S1, but no evidence of herniation.

On January 26, 1993, Dr. Carlisle reviewed the MRI scan and opined that she had a very significant bulge at the fifth lumbar disc. He also stated that her ankle reflex test indicated very strongly that she had an L5 herniation on the left from a herniated 5th lumbar disc. He recommended a spinal fusion surgery, and the applicant agreed.

The applicant was then seen by A. Norelle, M.D., on February 10, 1993. His notes indicate he was offering a second surgical opinion at the request of an insurer. Dr. Norelle stated that the applicant developed sharp back pain at work while shoveling glass, and noted conservative treatment. He opined the MRI showed degenerative disc disease at L4-5 and L5-S1, with a small disc bulge at L5-S1. He recommended that the applicant take an MMPI and that she began a discographic exam. He stated that if these tests point more favorably toward surgery, that could be an option.

These tests were done in March 1993. The doctor who performed the CT discogram noted degenerative discs at L4-5 and L5-S1 , with a central herniation extending to the left at L5-S1. Unfortunately Dr. Carlisle's dictation discussing the tests was garbled. See note for March 22, Exhibit A. He concluded that surgery was indicated, though. His final pre-surgery note states:

" [The applicant] had a work related minor back incident 3 years prior to the incident of March 28, 1992, that was associated with low back pain with some extension towards the right leg, but none to the left side and no pain down the leg. She responded to conservative treatment under Dr. Meythaler and had a full recovery from those symptoms until her injury of March 28, 1992."

The surgery was ultimately done on April 2, 1993. It was an L5 to sacrum fusion, with laminectomy and discectomy, and included the placement of stabilizing hardware. Dr. Carlisle reported that the L5-S1 disc was indeed herniated in his surgical report.

In his last treatment note, Dr. Carlisle noted that the applicant was doing reasonably well following her surgery, including significant back pain and occasional shooting pain down the left side. He noted she should be off work for a year from the surgery date. The applicant herself testified that she is better since the surgery.

The respondent offers the opinion of its independent medical examiner James M. Huffer, M.D., who examined the applicant in October 1992. In his first report dated November 2, 1992, Dr. Huffer noted that the June 1992 CT scan showed a very small herniation at L5-S1. He opined that the applicant's work precipitated, aggravated and accelerated her preexisting degenerative disc disease beyond normal progression, causing what he opined was most likely a temporary injury. He did not believe she had yet reached a healing plateau (at this point she was more than seven months past the work injury), but opined that she would plateau in early 1993. He declined to estimate permanent disability. He recommended continued conservative treatment.

Dr. Huffer authored a supplemental report upon receipt of the January 11, 1993 MRI. He noted little change from the very small herniation previously observed. He stated that the disc excision was unnecessary since the herniation was small. He opined that there was no clear clear-cut indication for a fusion surgery, but that if it were done it should be from L4 to the sacrum. He opined that the L5 to the sacrum fusion recommended by Dr. Carlisle would not relieve the applicant's symptoms and might make her worse. Either surgery (fusion or disc excision), however, would be attributable to the pre-existing degenerative condition in his opinion.

In his final opinion dated March 30, 1993, Dr. Huffer stated that the applicant plateaued on February 10, 1993, from the temporary disability caused by her work-injury and that she had no permanent disability therefrom.

Dr. Carlisle submitted a practitioner's report dated May 4, 1993. He stated that the applicant's disability (and by incorporation of his notes, the April 1993 fusion surgery) was directly caused by the work, that she continued to be disabled, and that it was too soon to estimate permanent partial disability. He repeated those opinions in testimony at the hearing. He opined that her work caused a herniated disc which caused her disability and pain. He states that degeneration alone would not cause a disc to herniate. He stated that his history of the work injury, sudden and severe pain with radiation into a leg, indicated a herniation. He also noted that he in fact found a herniated disc during surgery, and that her symptoms improved after the surgery. He disputed Dr. Huffer's opinion that the work injury caused only a temporary disability from which she had recovered as of the date of the hearing.

Dr. Carlisle testified that he did not know for certain if the applicant's disc herniated on March 28, 1992, but reiterated that she did have a herniated disc. He was also confronted her original description of symptoms which was only dull back pain, not a burst of pain down her leg. The suggestion here is that while he found a herniated disc at L5-S1 which caused the symptoms he relieved by surgery, the herniation may have occurred at some other time and therefore the disability from the herniated disc is not work-related.

The commission realizes that the applicant's complaints do seem to increase over time. However, in this case there was continuing pain following a conceded injury, a clear herniation, and radicular pain into the left leg. Further, the commission reads Dr. Ollrogge's April 11 note to report pain radiating into the applicant's left thigh and buttock, with numbness in her foot, within two weeks of the work injury. The increase in symptoms does not seem to be inconsistent with an injury of this type. The facts do not raise a legitimate doubt in the minds of the commission on the issue of whether the work injury caused continuing disability from the herniated disc. The commission concludes that it did and that treatment of the herniated disc was necessary.

The commission therefore awards temporary total disability from February 11, 1993 through the date of the hearing. This amounts to 40 weeks and three days at the rate of $450 per week, for a total of $18,225.

The applicant also approved an attorney fee of 20 percent under sec. 102.26, Stats. The percentage fee is based on the additional temporary total disability benefits awarded beyond what was conceded. The fee is thus $3,645 (20 percent of ($18,225). The fees shall be deducted from the applicant's award and paid to her attorney within 30 days.

The commission further finds that the applicant has incurred medical treatment expenses after February 11, 1993, necessary to cure and relieve from the effects of her injury for which the respondent is liable. Specifically, the applicant incurred $801.90 in treatment expense from Eugene J. Carlisle, M.D., and a total of $24,179.48 in treatment expense from St. Francis Medical Center of La Crosse. Applicant's exhibit D indicates that some of the hospital bill has been paid by a carrier other than Employers Insurance of Wausau. The respondent shall pay Dr. Carlisle and the hospital for the unpaid treatment expenses. The respondent shall also, upon adequate proof, reimburse the unidentified carrier who has paid some of the hospital bill.

Because the medical records indicate that the applicant will probably have some level of permanent disability from this injury and may incur additional medical expenses, an interlocutory order is appropriate.

NOW THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The decision of the administrative law judge is reversed. Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Pamela G. Love, the sum of Fourteen thousand five hundred eighty dollars ($14,580) in temporary total disability.

(2) To the applicant's attorney, Thomas M. Fitzpatrick, the sum of Three thousand six hundred forty-five dollars ($3,645) as attorney fees.

(3) To Eugene Carlisle, M.D., the sum Eight hundred one dollars and nine cents ($801.09) for medical treatment expenses.

As soon as is reasonably possible, the employer and the insurer shall also pay St. Francis Hospital whatever part of the $24,179.48 incurred by the applicant for treatment by the hospital remains unpaid, and shall reimburse the applicant's health insurer or other insurer for amounts paid on that bill. Jurisdiction is retained to issue such further orders are consistent with this decision.

Dated and mailed at Madison, WI November 22, 1994
ND § 8.23

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant not to be a credible witness. He noted that each successive doctor reported additional symptoms arising from the work injury. The earliest report was simply back pain (report of Drs. Habel on March 31, 1992), becoming pain radiating down her left buttock and thigh with slight numbness in the foot (report of Dr. Ollrogge on April 11, 1992), later becoming back and left leg pain (report of Dr. Meythaler in April 1992), and described as extending to the foot (report of Dr. Carlisle in January 1993). As noted in the body of this decision, however, the increase in symptomology did not raise a legitimate doubt in the minds of the commission.

The administrative law judge also pointed out that Dr. Carlisle did not have the reports of Drs. Ollrogge and Habel prior to the hearing, and the notes of those doctors were inconsistent with Dr. Carlisle's history of a sudden onset of severe radiating pain. However, after reviewing the notes, Dr. Carlisle stated they did not change his opinion as to causation. He went on to state radiation of pain to the leg is normally expected with a herniated disc and that it was less common that someone would go two weeks after herniating a disc without leg pain. In this case, however, the commission construes Dr. Ollrogge's notes do document leg pain within two weeks of the injury. In addition, independent medical examiner Huffer admitted that the applicant had an extended period of disability from the work injury (from March 28, 1992 to February 10, 1993) which tends to underscore the seriousness of the condition.

Finally, the administrative law judge stated in his order that the applicant has the burden of proving beyond a legitimate doubt all facts necessary to establish her claim. The administrative law judge's formulation of the burden of proof is consistent with the supreme court's language in Leist v. LIRC, 183 Wis. 2d 450, 457 (1994). In Leist, the court noted that it was an elementary principle that a worker's compensation claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation, citing Erickson v. ILHR Department, 49 Wis. 2d 114, 118 (1970). The supreme court went on note in both Erickson and Leist that it is the commission's duty to deny compensation if it finds that a legitimate doubt exists regarding the facts necessary to establish a claim, but that any doubt is not automatically legitimate simply because the commission chooses to entertain it. Erickson, at 49 Wis. 2d 119; Leist, at 183 Wis. 2d 457.

The commission does not conclude that the supreme court intended to establish a new burden of proof in the Leist case. The applicant's burden of proof remains the same: If the evidence before the commission is sufficient to raise in the mind of the commission a legitimate doubt as to the existence of facts necessary and essential to establish a claim for compensation it is the duty of the commission to deny the application. The record in this case, however, does not raise in the mind of the commission a legitimate doubt, so it reverses the decision of the administrative law judge.

PAMELA I. ANDERSON, CHAIRMAN, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I believe that Dr. Carlisle's admission that he did not know when the applicant's disc herniated along with the fact that her pain increased over time leave legitimate doubt that the work injury caused the disc herniation. Early objective tests did not support a disc herniation at L5-S1. The applicant had pre-existing back problems and her description of symptoms changes over time.

For these reasons, I agree with the administrative law judge that the case should be dismissed.

Pamela I. Anderson, Chairman

cc: ATTORNEY MARK W PARMAN
STILP & WELLS

ATTORNEY THOMAS M FITZPATRICK
FITZPATRICK SMYTH DUNN & FITZPATRICK

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