THOMAS N LATZL, Applicant

PERLICK CORPORATION, Employer

UNITED WISCONSIN, 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 November 24, 2004
latzlth . wsd : 175 : 1   ND § 8.8  § 8.28

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner 

The applicant asserts that the administrative law judge erred in determining that the applicant suffered a work related back injury on April 22, 2002 resulting in the need for medical expense through August 26, 2002, but did not led to the need for surgery or cause a herniated disc. The applicant asserts the administrative law judge should have credited the opinion of Dr. Karr, the applicant's treating physician, who opined that the applicant's work injury on April 22, 2000 aggravated his pre-existing degenerative disc disease beyond its expected progression resulting in two percent permanent partial disability. Dr. Karr indicated in a subsequent medical note that he was aware of the applicant's re-injury in August 2002 while pushing the lawn mower, but he still believed that the injury on April 22, 2002 aggravated his pre-existing condition beyond its normal progression, and that his current symptoms were not due to the lawn mower incident. However, the medical evidence, including Dr. Meske's treatment notes following the incident on April 22, 2002, indicate the applicant received ongoing treatment for back pain through May 2002 to June 6, 2002. The applicant was taken off of work for a few weeks following the work incident in April 2002 and was returned to light duty work on May 6, 2002. The applicant was subsequently released to full-time work on June 6, 2002 and continued to perform his normal duties until the non-work related lawn mower incident on August 26, 2002.

The evidence indicates the applicant had a long history of prior back problems and need for treatment. The applicant's objective tests as early as 1996 reveal significant degenerative disc disease with bulging at the L4-5 level. Although clearly the degenerative disc at the L4-5 subsequently herniated, the evidence was not sufficient to establish that the herniation occurred as a result of the work incident on April 22, 2002. The applicant had reported periodic radiculopathy, numbness, and tingling into his lower extremities for several years prior to April 2002. The applicant underwent regular chiropractic treatment for lower back pain and symptoms from 1998 to 2001. The applicant suffered a work related compensable back injury in 1996 while lifting at work. Following a period of treatment the applicant was given permanent restrictions of 50 pounds lifting and only occasional repetitive bending and twisting. The administrative law appropriately noted that following his release to return to work in June 2002 the applicant was given similar restrictions that he had for several years prior to the April 22, 2002 work injury.

Dr. Keane, who prepared a report on behalf of the employer dated December 23, 2002, noted that Dr. Bauer's treatment records as early as February 23, 1989 indicated the applicant had a long history of entire back problems. Dr. Keane opined the applicant sustained at most a minor muscular strain in the lumber spine as a result of the work incident on April 22, 2002, and reached a healing plateau the following day without permanent disability. In addition, Dr. Keane stated that the lawn mower incident had no relationship whatsoever to any work exposure on April 22, 2002 but was a manifestation of a pre-existing lumbar degenerative disease. Dr. Keane opined the applicant has a permanent pre-existing disability of the lumbar spine related to disc degenerative changes at the L4-5 which long predated his reported work exposure on April 22, 2002, and was not temporarily or permanently aggravated, exacerbated or accelerated beyond normal progression by the work incident in April 2002. Dr. Keane noted extensive chiropractic treatment from 1997 through 2001. Dr. Keane stated the applicant's MRI findings from 1996 through September 2002 reflected solely the natural progression of age consistent, disc degenerative changes in the lumbar spine, and did not reflect the result of work exposure or work injury.

The administrative law judge credited Dr. Keane's assessment. Based upon an independent review of the evidence in the record the commission has found nothing to warrant overturning the administrative law judge's credibility determination. The administrative law judge appropriately noted that the applicant had been under permanent lifting restrictions from his earlier injuries prior to the work incident in April 2002. The commission agrees with the administrative law judge that given the applicant's long history of ongoing chiropractic treatment for lower back problems from 1998 to 2002, and his prior injuries and evidence of a degenerative spine condition, the applicant did not establish that the work injury on April 22, 2002 lead to his herniated disc at the L4-5 level and subsequent disability.

The applicant objected at the hearing to the fact that the employer did not have an attorney sign the answer, and there was only a typed signature from a representative of the insurer. However, the commission finds that nothing in the act requires that the answer be signed. There is no indication on the answer that a signature is required. The applicant cited Wis. Stat. § 802.05 which requires all papers in a civil matter to be signed in the circuit court in the State of Wisconsin and signed by the attorneys of record. However, this Chapter does not extend to worker's compensation pleading and filings. Wisconsin Administrative Code § DWD 80.05(2) provides that the adverse party shall file an answer to the application with the department within 20 days after service and likewise serve a copy of the answer on the party making the application, but does not indicate that the answer must be signed.

In addition, the applicant objected to the fact that the employer submitted some of the applicant's prior medical records, as well as Dr. Keane's report, within a few days of the hearing and not within the 15 day statutory deadline. The employer countered that in fact that there was no surprise involved in the submission of the records since they were all contained in the applicant's previous medical history available to him. In addition, the employer stated that it had submitted Dr. Keane's report when it became available since the attorney for the employer and insurer had been hired and put on the case a very short time before the hearing. The administrative law judge decided to allow the records into evidence and gave the applicant two weeks to file a responsive medical report to Dr. Keane's report if it wished to do so. The applicant's attorney indicated at the hearing that he did not wish to file a response. The commission does not find that the administrative law judge abused his discretion in allowing the medical records into evidence given the fact that the applicant was given the opportunity to file a responsive medical report but chose not to do so.

cc:
Attorney Robert C. Menard
Attorney Timothy J. Schumann

Appealed to Circuit Court. Affirmed July 15, 2005. Appealed to the Court of Appeals.  Affirmed May 10, 2006, unpublished per curiam decision.

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