ERIC GLEISS, Applicant
HARNISCHFEGER CORPORATION, Employer
HARNISCHFEGER CORPORATION, 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 September 30, 2004
gleisse . wsd : 101 : 1 ND § 3.44
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
1. Background.
The applicant is claiming temporary disability and medical expenses associated with a right inguinal hernia he claims was caused by work. The employer and the insurer (collectively, the respondent) counter that the condition is not work related.
The applicant was born in 1948. On Monday, July 1, 2002, the employer shut down for maintenance purposes, and the applicant was assigned work assembling a machine. The job required positioning large wooden blocks used to support pieces of the machine. The blocks weighed 229 pounds each, and sat on sawhorses weighing 167 pounds each. The wood blocks were pre-positioned on the sawhorses with a forklift, but the applicant had to move the blocks a bit so the machine pieces could fit on them.
As the applicant moved one of the blocks, he felt a pull or some discomfort in his groin. It was a sharp pain, but thinking it was a muscle pull, the applicant ignored it. The injury was near the end of the day, and the applicant went home, feeling okay. Indeed, the next day, the applicant did light duty and noted no problems. However, when he awoke the following day, Wednesday, July 3, the applicant noticed a lump or bulge in his groin. Because the employer was shut down for maintenance, and its medical department closed, the applicant brought the matter to the attention of his supervisor, who wrote up the accident report. The applicant then worked through the shut down period.
The accident report dated July 3, 2002, is at exhibit 3. It refers to a "strain" in the groin with a July 1, 2002 date of injury at 10:00 a.m. It described "the pain you feel" as "discomfort." It states the injury occurred: "Moving metal saw horses, wood blocks, etc." Asked why the injury was not reported immediately, the applicant wrote: "did not feel discomfort till 7-3-02."
The applicant was first evaluated for the hernia on July 15, 2002, when he saw Ross Clay, M.D., the company doctor. Dr. Clay reports this history:
"Mr. Gleise [sic] is a 54-year-old who states that he has developed a bulge in the right groin area. He states that over the plant shutdown he was doing a lot of bull work on a large machine in by #1. They were moving a number of things, including some large blocks. On 7/1/02 in the late morning he felt some discomfort in his right groin area. It didn't bother him much that day, and he discontinued working at about 2 a.m. [sic] as that was his regular shift time. The next day he didn't have any discomfort at all. Then on Wednesday, 7/3/02, he noted trouble getting out of bed in the morning and had an obvious bulge in the right groin area."
The doctor went on to note the applicant had no history of inguinal hernias, and that there was no family history of hernias. The doctor diagnosed:
"Right inguinal hernia. This is probably an indirect hernia, and work-relatedness will need to be determined."
Dr. Clay noted the applicant was going to see his own physician, Dr. Gillis, for a referral to a surgeon.
The applicant saw Dr. Gillis on July 17, 2002. His history was that the applicant felt a strain while moving things at work. He diagnosed a right inguinal hernia, and referred the applicant to a surgeon for a possible repair.
A handwritten note from July 26, 2002, reports
"right inguinal bulge since July 1st -- dull ache. [No destructive?] symptoms. Bulge occurred at work while lifting heavy object."
The applicant went ahead with a surgical repair on August 5, 2002, performed by Karen Brasel, M.D. The operative note lists pre- and post-operative diagnoses of right inguinal hernia, and a history of "54-year old man, with a history of a right groin bulge, noted after heavy lifting at work." The applicant testified at the hearing that he was pleased with the result of the surgical repair.
Treating surgeon Brasel submitted a practitioner's report dated February 16, 2003 (Exhibit A). The report lists a July 1, 2002 "date of traumatic event" and describes the event as moving heavy wooden blocks and iron sawhorses." The report says that event directly caused the applicant's right inguinal hernia. The doctor went on to set a September 16, 2002 end of healing with no restrictions, no permanency, and no expected further treatment.
Regarding causation, Dr. Brasel's nurse practitioner, Amy Verhaalen, explains the doctor's opinion further in a letter dated September 17, 2002 (Exhibit A):
"Upon further evaluation and questioning, Mr. Gleiss reported lifting heavy wooden blocks and an iron sawhorse on July 1, 2002 when he noticed a "pop" and pain in his right groin area. Clinically, a reducible right inguinal hernia was present and as a result Mr. Gleiss was scheduled for surgery. It is the belief of Dr. Karen Brasel that this hernia was due to heavy lifting and per the patient's report of the bulge coinciding with the heavy lifting we feel that this was a work related event." (1)
Also attached to Dr. Brasel's report at exhibit A is an October 2002 letter from the applicant's family doctor, Dr. Gillis, who writes:
".Patient presented with complaints of bulging groin region. Patient reports that he felt a strain or pop while moving things at work. Physical examination was significant for the finding of a right inguinal hernia. If history is correct patient developed this right inguinal hernia while lifting at work.
For its part, the employer relies on the opinion of Gerald Zupnick, M.D., who did a file review but did not actually examine the applicant. Dr. Zupnick noted the absence, at least in the injury report, of mention of a specific traumatic lifting event, which rather mentions the activity of lifting wood blocks and saw horses. He also noted the injury report mentioned no discomfort until July 3. This was inconsistent, Dr. Zupnick noted, with Harnischfeger doctor Clay's notation of some discomfort on July 1, but again the note of Dr. Clay does not mention a specific incident or occurrence.
Dr. Zupnick goes on to contrast "indirect inguinal hernias" from "traumatic hernia." An indirect inguinal hernia occurs with the presence of a "sac" made of abdominal wall lining tissue, which is either congenital or develops gradually because of tissue weakness. Intra-abdominal contents may enter the sac making an observable bulge and the condition symptomatic, but the sac -- and hence the hernia -- are present well before the condition becomes symptomatic. In apparent contrast is a traumatic hernia which is related to specific act, effort, incident, or injury.
Dr. Zupnick concluded the applicant did not sustain a traumatic hernia. Again, he noted the injury report in which the applicant suggested he had no pain or discomfort until July 3 or two days after the alleged injury. The doctor went on to state that even if the applicant did experience some mild strain or pop on July 1, it would not have caused the hernia. According to Dr. Zupnick, an injury sufficient to cause a hernia causes considerably more pain than the applicant described, and would not be asymptomatic the next day.
2. Discussion.
The ALJ found the applicant did sustain a pull with discomfort on July 1 when moving a heavy block. He concluded that Dr. Zupnick's history -- no immediate pain on July 1 -- was not accurate, and so rejected the conclusion the hernia was not work related. Instead, the ALJ credited Dr. Brasel's opinion that the hernia was work related.
The employer appeals, asserting that the record is inconsistent about whether the applicant had any pain at all on July 1, and that even if he did, Dr. Brasel erroneously believed the bulge occurred on July 1 when the applicant testified he did not notice the bulge until July 3. Finally, the employer asserts the ALJ did not follow the so-called Meade/McCarthy standards.
It does seem that Dr. Brasel had the impression the bulge developed immediately with the pulling or popping on July 1 -- at least her notes and that of Nurse Verhaalen can be read that way. In fact, while the applicant testified he had pain on July 1, he also testified he did not notice the bulge until July 3.
On the other hand, the ALJ believed the applicant felt a pull, strain or discomfort with a lifting incident on July 1 based on the applicant's testimony. Dr. Zupnick's opinion for the employer assumes no incident happened and no pain was felt, based on his reading of the injury report. However, the injury report -- as well as the applicant's testimony -- documents a strain with lifting on July 1.
Between the competing expert medical opinions, the commission, like the ALJ, credits Dr. Brasel's opinion.
The commission reaches this conclusion after giving due weight to the so-called Meade/McCarthy (2) "special standards" or "guidelines" for cases involving inguinal hernias. The standards are summarized in Meade, at 168 Wis. 250:
"Inguinal hernias rarely result from accident. They come from inherited or acquired weakness and develop gradually. Because of this, it has been necessary for the Commission to require definite proof that the hernia was produced by accident. The applicant must prove that the accident was such as could produce a hernia; that the hernia appeared immediately after the accident; that it was followed by pain immediately disabling the applicant; and that the applicant gave immediate notice of the injury to the respondent."
Most recently, the court explained the rationale for the standards:
The basic philosophy of the guidelines is that indirect inguinal hernias are highly unlikely to occur during the course of employment, and when they do occur, the trauma and the subsequent pain are so acute that predictable types of conduct by the injured claimant almost inevitably and immediately ensue. When such conduct does not occur, the existence of work-caused inguinal hernia is highly suspect.
E.F. Brewer Co. v. DILHR, 82 Wis. 634, 640 (1978). However, in E.F. Brewer, the court also stated that it regards the guidelines as "standards only for the internal use of the commission . . . by which the credibility or the probativeness of testimony could be tested." Id., 82 Wis. 2d 642-43. It is also clear that a reviewing court will not reverse the commission -- even if the commission completely ignores the Meade/McCarthy guidelines in finding an inguinal hernia compensable -- so long as there is substantial and credible evidence to support the commission's decision. E.F. Brewer, at 82 Wis. 2d 643. See also Neal & Danas, Worker's Compensation Handbook § 3.44 (5th ed., 2003)(describing recent cases as taking a "relaxed" approach to the standards.)
Only some of the factors from the Meade/McCarthy standards are met here. On the one hand, the ALJ credited the applicant's testimony that he experienced pain with a lifting incident on July 1. Further, it can reasonably be inferred from Dr. Brasel's opinion that the incident was sufficient to cause a hernia. On the other hand, the incident was not reported until a few days later, the hernia was not immediately apparent, and applicant was not "disabled by the pain" on July 1 -- at least not for any length of time.
However, as noted above, compliance with the Meade/McCarthy standards are not a sine qua non to recovery in a hernia case. Rather, the standards are something the commission may consider in weighing the credibility of experts. Giving due consideration to the standards under the facts in this case, the commission finds Dr. Brasel's opinion most credible.
cc:
Attorney Karl A. Van Dehey
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