JAY WICKE, Applicant

MERRILL AREA PUBLIC SCHOOLS, Employer

WAUSAU UNDERWRITERS INS CO, 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 May 7, 2004
wickeja . wsd : 101 : 1  ND § 8.28

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The applicant was born in 1966, and has worked for the applicant since 1998. He is a custodian for the employer, and worked at the employer's high school on a 3:00 p.m. to 11:00 p.m. shift. He claims he sustained an injury about 7:00 p.m. on March 22, 2002, occurring when he was trying to move two, collapsible 8- to 10-foot cafeteria tables through a doorway to prepare for a basketball tournament.

The applicant also elicted the testimony of two coworkers, Kevin Krueger and Shannon Hannemann, who testified they saw the applicant at the beginning of the shift on March 22, 2002, and he appeared uninjured, but that they saw him later when he seemed in pain, and told them about the work injury. The two men also testified the tables, indeed, were awkward to move.

However, the notes of his initial treatment with Eric Dichsen, M.D., do not describe an injury at work. Rather, Dr. Dichsen's note of March 23, 2002 describes neck and shoulder discomfort and that "he awakened with this five days ago." Dr. Dichsen's note for the following day, March 24, mentioned struggling with severe pain in the right neck, shoulder and arm for the past week, beginning seven days earlier. Dr. Dichsen also reported that the applicant thought he simply awakened with the pain.

Dr. Dichsen's history is substantiated by what appears to be a note from a nurse upon the applicant's admission to the hospital from the emergency room. The note states:

"Male pt admitted ... from ER via cart [with] dx (R) neck and shoulder pain see ER records. Pt. states pain started several days ago has been getting worse."

Exhibit 5. The applicant also saw a physical therapist, M. Volkman, while hospitalized, whose handwritten March 25, 2002 note apparently states:

"Subjective 1 year ago -- base of neck, ↓ down (R) arm, usually goes away with NSAIDs ↑↓ tables -- works as a janitor. Occurs every 2-3 [months] -- still functional. Radicular pain (R) UE.
Hard steering snowmobile"

Exhibit 5, March 25, 2002 report of Volkman.

In treatment thereafter, however, the applicant consistently gave a history of pain starting with moving the tables at work on March 22, 2002. He ultimately underwent a cervical discectomy at C6-7, and a two level fusion at C5-6 and C6- 7.

The applicant testified at the hearing that he still has pain, even after the surgery. He also addressed the conflict between (1) Dr. Dichsen's early notes recording a seven-day history of pain without an inciting event and (2) his current history of the table-moving injury. Specifically, the applicant testified he could not remember what he told emergency room personnel, and he did not recall telling anyone about how his pain began other than the physical therapist, transcript, pages 48-49. On redirect examination, the applicant testified he was not very alert when he was in the emergency room. Transcript, page 55.

Regarding causation, the employer retained William R. Klemme, M.D., who examined the applicant in June 2002. Dr. Klemme started by describing the history of the work injury as relayed by the applicant, which of course involves the table-moving injury. Dr. Klemme went through medical history, and stated:

"In contrast to the report of injury provided to myself and to Dr. Hugus by Mr. Wicke, the available medical records document a rather different scenario, which clearly indicates that the examinee's neck and right upper extremity radiating pain are not, in any manner related to a work injury. [The doctor went on to describe the March 23, 24, and 25 treatment notes which refer to a history of neck and shoulder pain for several days and periodic occurrences of similar pain before that.]

"It is also important to note that in the evaluation by Dr. Hugus, Mr. Wicke stated that he had no `history of neck or arm pain until March 22 of this year.' In my interview and physical evaluation of June 26, 2002, the examinee told me exactly the same thing. Obviously, the reader should realize that these statements are false and inconsistent with those reports previously documented in the medical record, as I have indicated by the above examples. Certainly, this rather overt lack of honesty may also impact the examinee's ability to provide an adequate description of his current symptoms.

"Thus, for the reasons illustrated above, I conclude that the examinee's right sided cervical and upper extremity radiating pain have resulted from a pre-existing cervical degenerative process at C5-6 and C6-7. There is no evidence to suggest the examinee's symptoms and resulting subsequent surgery are in any manner related to a work incident on March 22, 2002, as alleged. In fact, a comprehensive review of the available medical records suggests that, in fact, no such work incident ever occurred."

In January 2003, treating surgeon Hugus wrote a letter in response to a letter from the applicant's attorney which addresses Dr. Klemme's opinion:

"You have asked a question regarding the incident on March 22, 2002, with Mr. Wicke. I have reviewed the history and the notes of Dr. Klemme as well as my own note. Mr. Wicke did not describe the onset of pain in his initial evaluation as being several days prior to the work injury. In review today, he does state there was onset of symptoms as portrayed in the Emergency Room note several days prior to the work-related incident of March 22. He does state, however, that the symptoms were only minor in degree during the first several days and that they were significantly provoked by the work injury. Assuming this history to be correct, I would still describe the work incident as significantly precipitating, aggravating, and accelerating the condition. Clearly the problem here is with the accurate portrayal of the history, and this indeed is in question given the discrepancy offered by Dr. Klemme in the Emergency Room evaluation and that offered in my initial evaluation."

Dr. Hugus went on to opine that, as of the date of the letter, the applicant had not yet ended healing, though he anticipated an eventual permanent disability rating of ten percent.

2. Discussion.

Confronted with Dr. Dichsen's original initial treatment notes, the ALJ declined to find a work injury occurred on March 22. Indeed, the discrepancies in the medical records seem to be the type of facts in the record that could give rise to a legitimate doubt as to the veracity of the applicant's testimony about his work injury. See Leist v. LIRC, 183 Wis. 2d 450, 457-58, 461 (1994) (holding that "there must be in the testimony some inherent inconsistency before the commission is warranted in entertaining a legitimate doubt;" and that there must be "some evidence" the commission can point to that raises a legitimate doubt as to the veracity of an injured worker's testimony.) Indeed, the supreme court has observed that 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 other words, the ALJ chose not to credit the applicant's testimony about how he was injured based on Dr. Dichsen's contradictory treatment notes. On appeal, however, the applicant argues that the early medical records which are inconsistent with the applicant's testimony about the alleged work injury are a legally insufficient basis for denying benefits. Specifically, the applicant asserts:

1. The medical records are hearsay, and of lesser weight or incompetent in the face of first hand testimony.

2. They are only prima facie evidence, and as such can be accorded no weight once rebutted.

a. Statements of applicant in medical records as hearsay.

The statements the applicant allegedly made to Dr. Dichsen during the course of treatment, as well as the medical records in which those statements are recorded, raise the question of hearsay. However, both the applicant's statements and the medical records containing them meet statutory exceptions to the evidentiary rule excluding hearsay. Consequently, the applicant's statements as documented in the medical records are competent evidence.

First, of course, as a statement of a party opponent and also as a prior inconsistent statement of the applicant, the applicant's statements to Dr. Dichsen technically are not "hearsay" at all. See Wis. Stat. § 908.01(4)(a) and (b). Aside from that, statements made for the purposes of medical diagnosis or treatment are not excluded hearsay, even if the declarant is available as a witness. Wis. Stat. § 908.03(4). Thus, the applicant's statements to Dr. Dichsen are admissible.

Second, a memorandum, report or record, in any form of acts, events, conditions, opinions, or diagnosis, made in the course of regularly conducted activity are admissible hearsay, Wis. Stat. § 908.03(5), and in the case of health care provider records, all that is necessary is that the record be certified by the custodian. Wis. Stat. § 908.03(6). Thus, their treatment records are admissible, even if the treating provider does not testify to their contents

In short, because both the applicant's statements to his doctors and the records which document those statements meet hearsay exceptions, the statements as recorded in the records are admissible. See Wis. Stat. 908.05 (hearsay included within hearsay is not excluded if each part meets a statutory exception.) In contrast, of course, the testimony of Messrs. Krueger and Hannemann regarding how the applicant was hurt in the unwitnessed accident is based on what the applicant told them rather than their personal observation, and does not appear to meet an exception. (1)

b. Medical records as only "prima facie evidence."

The applicant also argues that the medical records are only "prima facie evidence" which "disappears" when contradicted by the applicant's firsthand testimony about how the injury happened. The starting point of this argument is Wis. Stat. § 102.17(1)(d) which does state that a medical record made in the regular course of examination or treatment, if certified, "constitutes prima facie evidence in any worker's compensation proceeding as to the matter contained in it, to the extent it is otherwise competent and relevant."

The commission is not sure why the statute uses the term "prima facie evidence." As outlined above, the statements made in certified medical records are competent and admissible under the rules of evidence applicable in court, which are generally considered more rigorous than he evidentiary standards applied in administrative cases. In light of Revels, moreover, the commission cannot conclude that a prior statement made, in this case repetitively made, to a treating doctor is not legally sufficient to establish legitimate doubt where the fact finder finds that statement credible, simply because the injured worker contradicts it at hearing.

Finally, the commission believes applicant is mixing analytic apples and oranges in his argument that, as prima facie evidence, statements in the medical records "disappear" when contrary evidence is introduced. The cases holding that prima facie evidence is sufficient only until contrary evidence is introduced are not referring to the "disappearance" of the evidence, but of the disappearance of a legal presumption arising from the evidentiary facts. In other words, when a party introduces basic or underlying evidentiary facts giving rise to a presumption or a separate "presumed fact," but the other side introduces evidence that rebuts or disproves the presumed fact, the presumption has been described as "disappearing." However, this does not mean the evidentiary facts underlying the presumption or separate presumed fact disappear as well.

This is illustrated by the very case cited by the applicant, Scholz v. Industrial Commission, 267 Wis. 31 (1954). Scholz deals with the presumption that one injured while performing services for another is an "employee" of the other. The court explained that when a worker shows that he is injured while working for another, the presumption he is an employee arises. If the putative employer produces rebuttal evidence showing the worker was instead an independent contractor, the presumption or presumed fact of "employee" status disappears and the worker must actually prove his "employee" status. On the other hand, if the employer does not provide such rebuttal evidence, the applicant does not have to prove he is actually an "employee" but may rely on presumption. Id., at 267 Wis. 41b-41c. However, Scholz does not hold that the underlying evidentiary facts that the worker was hurt while performing services for another disappeared simply because the employer produces evidence the worker performed the services as an independent contractor.

Here, of course, the commission is not dealing with legal presumptions or legally presumed facts. Rather, this is a case where the applicant told his initial treating doctor one thing and his subsequent doctors something else. The analysis in Scholz does not apply to this situation.

cc: 
Attorney Bruce F. Ehlke
Attorney Kevin M. McDonald

Appealed to Circuit Court. Affirmed October 5, 2004. Appealed to the Court of Appeals. Affirmed, unpublished per curiam decision, May 17, 2005.

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(1)( Back ) Though the statements could be argued to be admissible as an "an excited utterance." See Wis. Stat. § 908.03(2).

uploaded 2004/05/12