GERALD E BARTS, Applicant
GOETSCH TRANSPORTATION SERVICES, Employer
ACCIDENT FUND INS CO OF AMERICA, Insurer
In January 2004, the applicant filed an application for hearing, seeking compensation for an injury occurring on November 8, 2003. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on June 14, 2004. Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $651 on the alleged date of injury.
At issue before the ALJ was whether the applicant sustained an injury arising out of his employment with the employer, while performing services growing out of and incidental to that employment. Ancillary issues included the nature and extent of disability from such an injury, the respondent's liability for medical expenses, and whether an interlocutory or final order should issue.
The ALJ issued his decision in favor of the applicant on July 1, 2004. The respondent filed a timely petition for commission review.
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 makes the following:
The applicant was born in 1949. He is a truck driver who has worked for the employer since September or October 2001.
In 2000, while working for another employer, the applicant was injured while cranking up a semitrailer. Thereafter, in May 2001, the applicant underwent a laminectomy procedure at L3-4 and L4-5 and a fusion at L4-5 performed by Donald Gore, M.D. At a prior hearing, an ALJ found that surgery was necessary because of the 2000 work injury, holding that the cranking incident precipitated, aggravated and accelerated beyond normal progression the applicant's underlying degenerative back disease.
Following the May 2001 surgery, the applicant was released to work with a 25-pound lifting limit in August 2001. Shortly thereafter in the fall of 2001, the applicant began working as a truck driver for the named employer. In June 2002, Dr. Gore declared an end of healing from the May 2001 surgery, and rated permanent disability for the surgeries and residual symptoms. Exhibit 2, November 4, 2002 report of Karr, page 3. At the time, Dr. Gore noted the applicant could continue to drive, but that it would make him more symptomatic.
The applicant did not see Dr. Gore between June 2002 and November 2003. That month, on November 7, the applicant returned home after making a run to Texas. He had pain that evening, but thought it was just the type of pain which Dr. Gore had explained was a normal residual from his work injury. The applicant rested the next day, but then on November 9, 2003, left on a run to Florida with several intermediate stops, including one in Tennessee. Before leaving, he told his supervisor his back was bothering him and he might see a doctor when he returned.
The applicant made it to Tennessee by the morning of November 10. His pain was worse, but he continued to his second stop in North Carolina, where he arrived in the evening of November 10. He went to bed about 10:00 p.m. that evening, but then awoke in severe pain about 2:00 a.m. It took him about 45 minutes to get out of the truck cab. He could hardly move his legs.
The applicant called 911 and was taken to a hospital. Notes from the emergency responders included a history of:
PT had surgery & disc removal & plate placement 5/2001. Lifting something @ work Sat re-injured site. Pain for days, woke from sleep in pain 1-10 "10" Unable to walk & painful to bear wgt....
The applicant returned to Dr. Gore on November 19, 2003, who noted this history:
Gerald has been having trouble off and on now for the last year. He had his surgery in May 2001 and got considerably better. He is still driving a truck. Unfortunately, he has gotten back to smoking. He is up to again almost 3 packages a day. He was down in North Carolina about a week ago and he developed severe pain in his low back and his right lower extremity with radicular pain in the right lower extremity.
Dr Gore did an x-ray which showed a solid fusion at L4-L5. The doctor thought the L5-S1 level was narrowed. He ordered a myelogram and CT scan. On December 22, 2003, Dr. Gore reported that the myelogram CT did not show much abnormality though he thought the problem was coming from L5-S1. The doctor ordered a discogram to rule out additional problems.
The discogram did not disclose an alternative source for the pain, so the doctor recommended extending the fusion to the sacrum. That surgery was eventually performed on May 26, 2004.
At issue, here, is whether the second surgery and consequent disability was caused by a new work injury in November 2003, making the named employer liable.
Dr. Gore opines the applicant's disability is work-related. His WKC-16-B at exhibit D lists a November 16, 2003 date of injury, and opines that an event on that date caused the applicant's disability by precipitating, aggravating, and accelerating beyond normal progression a pre-existing degenerative condition. For an explanation, Dr. Gore refers to his notes, which state:
He was down in North Carolina about a week ago and he developed severe pain in his low back and his right lower extremity with radicular pain in the right lower extremity.
A narrative report Dr. Gore provides at exhibit C really does not provide any more detail, but simply states:
He did well up until the end of October, 2003, when he reinjured his back. He was driving a truck down to North Carolina and developed severe pain in his low back and his right lower extremity, which has continued to this time. He is currently under my treatment for this and will require fusion of L5-S1 secondary to his industrial injury.
The respondent offers the expert medical opinion of Michael C. Reineck, M.D. His diagnostic impression was (1) chronic low back and right leg pain due to multiple level disc degeneration and facet arthropathy, unrelated to the November 8, 2003 alleged work incident and without aggravation and acceleration of this pre-existing degenerative condition; and (2) symptom magnification.
Dr Reineck opined the applicant did not have a compensable work injury. He noted:
Dr. Reineck concluded that the applicant was suffering from the normal progression of his pre-existing degenerative condition, as altered by the May 2002 surgery.
The commission, after carefully considering the record, must conclude that the applicant has failed to prove that he has sustained an injury arising out of his employment with the employer. The applicant relies on the opinion of Dr. Gore, whose practitioner's report at exhibit D marks the causation box indicating that a traumatic event on November 16, 2003 (1) precipitated, aggravated, and accelerated beyond normal progression the applicant's pre-existing progressively deteriorating condition. For a description of the "event" on that date, the doctor refers to his notes. However, Dr. Gore's notes at exhibit D do not mention any "event" on November 16, 2003 or any other date. Rather, the doctor simply states -- in his November 19, 2003 note at exhibit D and his letter at exhibit C -- that the applicant was driving his truck to North Carolina and developed severe back and leg pain.
Driving to North Carolina is not a traumatic event. On the other hand, driving a truck may constitute an appreciable period of occupational exposure that is at least a material contributory causative factor in the progression of a disabling condition. In such a case, the occupational exposure to driving may be a cause of disability, so that the resulting disability may be said to arise out of employment. Further, the commission has consistently held that obtaining a doctor's opinion on causation in workers compensation is not an exercise in "saying the magic words." Rather, the commission will elevate the substance of a narrative explanation over the marked boxes on the form, and will find causation even if the doctor marked the "wrong box" on the WKC-16-B form. (2) Had it been clear from Dr. Gore's notes that he believed that the applicant's truck driving duties were an appreciable period of workplace exposure that was at least a material contributory factor in the progression of the applicant's underlying degenerative spine disease, an injury arising out of employment could have been established.
However, the commission is left with legitimate doubt on that point. See Leist v. LIRC, 183 Wis. 2d 450, 457 (1993). First, Dr. Gore's reference to driving to North Carolina seems more directed to when the pain developed rather than why. In other words, the doctor does not say in his notes following the November 2003 treatment that driving caused the applicant's condition to progress, or even that it caused the applicant's back pain, but rather that the condition became painful while he was driving. Symptoms from a pre-existing condition which simply become manifest at work do not establish a work-related injury. See Lewellyn v. LIRC, 38 Wis.2d 43, 58-59 (1968).
Second, Dr. Gore's earlier notes -- which are in the file only because the reports of the doctors retained by the respondent referred to them in their reports -- indicate that occupational driving would aggravate the applicant's symptoms following the first surgery. Simply aggravating symptoms, of course, is different than precipitating, aggravating and accelerating the underlying condition itself beyond normal progression. Jos. Schlitz Brewing Co. v. ILHR Department, 67 Wis. 2d 185, 191, 226 N.W.2d 492 (1975) (holding that "[t]he phrase 'in the nature of an aggravation' is not synonymous with the phrase 'aggravate beyond normal progression.'")
Third, in Dr. Gore's November 19, 2003 note (the first for second work injury now at issue), the doctor mentions "trouble off and on now for the last year." While the applicant could not recall at the hearing telling the doctor that (transcript, page 41), the history of a year of problems off and on takes this case even further from an event causing a second injury in November 2003, and moves the applicant's symptoms closer to being a residual problem at the end of healing following the first injury in June 2002. Confusing the matter further is the note of the ambulance personnel that refers to a lifting accident at work on Saturday -- something that otherwise is completely unsubstantiated.
Fourth, the applicant seems to argue that he had a new injury in November 2003 because his symptoms were qualitatively different after that date than before. Specifically, the applicant suggested in his testimony that he had not previously had substantial left leg radicular symptomology. June 14, 2004 transcript, pages 38 to 40. However, the fact is that Dr. Gore noted pain symptoms in both the right and left leg back in May 2001, though the right leg was worse. See exhibit 2, November 4, 2002 report of Karr, page 2. Further, Dr. Gore did not mention any left leg symptoms in the initial treatment note for the alleged second injury on November 19, 2003. Finally, Dr. Gore provides no explanation along the lines that the post-June 2002 driving was occupational exposure that worsened the applicant's condition because the left leg symptoms were new or different.
In sum, the commission cannot conclude that the applicant has met his burden of proving that he sustained disability from an injury arising out of his employment with the employer, while performing services growing out of or incidental to that employment. Rather, the commission adopts the opinion of Dr. Reineck that the applicant was merely suffering from the normal progression of his pre-existing degenerative condition. Accordingly, the application must be dismissed.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Dated and mailed January 11, 2005
bartsge . wrr : 101 : 8
ND § 3.31
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not consult with the presiding ALJ in this case. The commission reversed because it credited a different medical expert in a case where neither expert testified before the ALJ, and where it has significant reservations about the sufficiency of the opinion of the applicant's expert. See Hermax Carpet Mart v. LIRC, 220 Wis. 2d 611, 615-16 (Ct. App. 1998).
cc:
Attorney Peter G. Duffey
Attorney Mark H. Miller
Appealed to Circuit Court. Affirmed September 15, 2005.
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