WILLIAM E NUNN, Applicant

ECKLUND CARRIERS INC, Employer

WEST BEND MUTUAL INSURANCE CO, Insurer

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on October 26, 2004. Briefs were submitted by the parties. At issue are whether the applicant sustained an injury arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter, and after consultation with the administrative law judge regarding the credibility and demeanor of the witnesses, hereby reverses his Findings and Order. The commission makes the following:

The applicant, whose birth date is February 15, 1947, was employed as a semi truck driver for the employer on October 10, 2003. On that date, he had to pull a pin underneath the truck trailer in order to slide the tandems and reposition the load to redistribute the weight. It was a difficult pin to pull and the applicant had to exert a good deal of effort to accomplish it. That evening he started to experience neck and right shoulder pain that was worse the next morning. Five to seven days later, the pain began going down his right arm. The applicant had experienced prior neck and right shoulder pain, and had undergone surgical repair of a right shoulder rotator cuff tear on August 28, 2002. However, his neck pain after this work incident was sharper than it had been in the past. Also, the pain down his right arm had never been continuous, as it was after this work incident. Dr. Robert Hausserman had given the applicant a final evaluation for his right shoulder on August 18, 2003, noting mild residual symptoms predominately in the right anterior aspect of the shoulder.

The applicant saw Dr. Donn Fuhrmann on October 20, 2003, and Dr. Fuhrmann's clinic note records a complaint of right shoulder pain, noting:

"He continues to have trouble pulling pins and having to jerk and jar loose trailers aggravating his shoulder. He now has had significant pain in the shoulder joint and the deltoid muscle. This is a direct result of work."

Dr. Fuhrmann diagnosed a shoulder strain secondary to work and referred the applicant to Dr. Hausserman, who saw him later in the day on October 20, 2003. Dr. Hausserman diagnosed aggravation of impingement symptoms related to "pulling on a pin involved in hooking up his truck." The applicant also had a left wrist complaint diagnosed carpal tunnel syndrome. He saw Dr. Fuhrmann again on October 27, 2003, and that clinic note records work-related shoulder pain and left carpal tunnel syndrome. The applicant was referred back to Dr. Hausserman, who ordered a cervical MRI on October 30, 2003. The radiologist read this as showing spondylotic ridging at C6-7 resulting in mild narrowing of the right C6-7 neural foramen, with no significant change from an earlier cervical MRI done on May 20, 2002. On November 3, 2003, Dr. Hausserman recounted the radiologist's "no significant change" language but recommended that the applicant obtain neurosurgical evaluation for his cervical problem. On November 19, 2003, Dr. Hausserman again saw the applicant and opined that his neck and shoulder symptoms had a cervical etiology because his shoulder exam was benign.

The applicant was referred to a neurosurgeon, Dr. Thomas Lyons, on November 10, 2003. On December 10, 2003, Dr. Lyons indicated he had reviewed the October 2003 MRI and believed it clearly showed a C6-7 herniation. Dr. Lyons did not comment on the May 2002 MRI and there is no indication that he saw it. On December 30, 2003, Dr. Lyons recommended surgery for the C6-7 lesion.

On January 8, 2004, the applicant sought a second opinion from Dr. Thomas Wascher. Dr. Wascher took a history of the work incident and the applicant's ongoing symptoms. He reviewed the May 2002 MRI and opined that it showed a moderate-sized C6-7 disc herniation on the right. Dr. Wascher also reviewed the October 2003 MRI and read it as showing a persistent right C6-7 disc herniation compressing the right C7 nerve root. He recommended surgery and on January 26, 2004, performed a C6-7 discectomy and foraminotomy with fusion and insertion of screws. The applicant has had a good result from this surgery. In a March 2004 WKC-16-B, Dr. Wascher opined that the work incident aggravated and acclerated the applicant's preexisting condition beyond normal progression. He assessed 10 percent permanent partial disability for the fusion surgery. In his clinic note of November 19, 2003, Dr. Hausserman opined that based on the history of the work incident, it was a "significant factor" in the applicant's condition.

At the insurer's request, Dr. Jeffrey Hrutkay examined and evaluated the applicant on December 19, 2003. In his report dated December 31, 2003, he recorded a history of neck pain for the previous several years in the absence of any particular neck injury. He also noted that there had been a work-related right shoulder injury on May 2, 2002, leading to the right shoulder surgery in August of 2002. Dr. Hrutkay's report does not comment on the "pin pulling" incident, except to recount the applicant's description of it in the Employee's First Report of Injury, and in a statement given to the insurer on November 26, 2003. Dr. Hrutkay opined that the applicant was experiencing symptoms due to a preexisting degenerative disc disease of the cervical spine at C4 through C7, and that this was most likely responsible for nerve root irritation causing radicular symptoms into the right arm. He did not recommend surgery unless the symptoms worsened. He saw no significant difference between the results of the May 2002 and October 2003 MRI's.

In consultation with the commission, the administrative law judge indicated that he had not gleaned any significant credibility/demeanor impressions from witnessing the applicant's testimony at the hearing. Rather, his decision was based on comparison of the facts asserted by the applicant with the medical records, and on his analysis of the medical opinions. The commission reached different conclusions.

Respondents and the administrative law judge found it to be very significant that the applicant did not experience immediate neck or shoulder pain when he pulled on the trailer pin on October 10, 2003. However, in the commission's experience, it is not uncommon for there to be delays in the symptom onset of injuries resulting from aggravation and acceleration of degenerative disc disease. This may also be true of traumatic disc herniations. The particular facts and circumstances of each case must be carefully reviewed to determine whether the work-related claim is credible. In the applicant's case, there was no evidence controverting his credible description of the pin-pulling task, including the fact that he "expended a good amount of effort to pull the pin out that day." The medical records are consistent with the applicant's testimony, although not always in every detail. Time and again the commission deals with descriptions of work-related incidents drafted by busy physicians who simply do not always pay close attention to the details of what the worker was doing when he/she was injured. Again, each such instance must be carefully reviewed and the physician's description must be weighed against the other evidence to determine whether any inconsistency is significant to the outcome of the case. The commission found no significant inconsistencies in this case, except perhaps for Dr. Lyons' clinic note of November 10, 2003, describing "an abrupt onset of right-sided shoulder pain." Given the fact that this is the only reference in the medical records to an "abrupt onset," the commission infers that it was the result of Dr. Lyons' inattention to the history related by the applicant.

The administrative law judge was also troubled by what he described as the "inexactitude" of the applicant's recollection of what occurred on October 10, 2003. He found that the applicant did not describe any immediate pain occurring after any particular incident of pin pulling. However, the applicant did describe a specific incident of pulling out a trailer pin on the date in question, and again, an immediate onset of pain is not always present in disc injuries. Dr. Wascher took an accurate history of the work incident, noting in his pre-surgical report that the applicant's pain developed "within 24 hours" of the pin pulling incident. Dr. Wascher did not consider this delay in symptom onset to be significant with regard to the issue of causation.

Finally, respondents assert and the administrative law judge found that there was no particular difference in what the post-injury MRI showed on October 20, 2003, and what the pre-injury MRI showed on May 20, 2002. This was the opinion of the radiologist who read the post-injury MRI, and Dr. Hausserman recounted that opinion in his clinic note dated November 3, 2003. However, Dr. Lyons and Dr. Wascher both read the post-injury MRI as revealing a C6-7 disc herniation. The existence of this disc herniation was verified by Dr. Wascher in the surgery performed on January 26, 2004. Neither the radiologist nor Dr. Hausserman identified a disc herniation in the post-injury MRI, and thus their opinions concerning what the MRI showed are discredited.

The commission finds Dr. Wascher's opinion credible. The work incident of October 10, 2003, aggravated, accelerated, and precipitated the applicant's preexisting cervical condition beyond normal progression, resulting in the surgery of January 26, 2004. The applicant is entitled to additional temporary total disability beginning on December 8, 2003, and ending on July 3, 2004 (both dates inclusive), which is a period of exactly 30 weeks. At the applicable rate of $403.12 per week, this totals $12,093.60. Dr. Wascher credibly assessed 10 percent permanent partial disability of the whole body, resulting in 100 weeks of compensation at the applicable rate of $222 per week, for a total of $22,200.

Applicant's attorney is entitled to a 20 percent fee against the additional temporary total disability and against the permanent partial disability, as well as $55.21 in costs.

The applicant submitted three separate WC-3 forms, which are not identical to each other, and rather than guess at which charges are still claimed and are supported by the evidence, the commission will leave this order interlocutory with respect to the issue of medical expense due up to the date of hearing. The applicant should resubmit to West Bend Mutual a WC-3 listing the medical expenses claimed, together with evidentiary support for such expenses. West Bend should thereupon make immediate payment of these expenses, except for those it may have a reasonable basis to dispute. If there is a dispute on this issue, it shall be resolved through a new hearing process.

Dr. Wascher indicated that the applicant may need additional medical treatment on a "p.r.n." basis, and therefore the order will also be interlocutory with respect to future medical expense. Additionally, the applicant has sustained a permanent, unscheduled injury and jurisdiction will be reserved with respect to the possibility of loss of earning capacity, pursuant to the provisions of Wis. Stat. § 102.44(6).

Now, therefore, this:

The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant additional temporary total disability and accrued permanent partial disability in the total amount of Nineteen thousand sixty-two dollars and seven cents ($19,062.07); and to applicant's attorney, Tony Welhouse, fees in the amount of Six thousand seven hundred ninety-three dollars and twenty-two cents ($6,793.22), and costs in the amount of Fifty-five dollars and twenty-one cents ($55.21).

Beginning on August 9, 2005, respondents shall also pay to the applicant the monthly sum of Nine hundred sixty-two dollars ($962), until the currently-unaccrued permanent partial disability is paid in the total amount of Eight thousand three hundred seventeen dollars and sixty cents ($8,317.60).

Reasonably required medical expenses shall be paid in accordance with the above directions for resolution of that issue, and jurisdiction is reserved for such further findings and orders as may be necessary.

Dated and mailed June 30, 2005
nunnwil . wrr : 185 : 4 ND § 5.46

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Tony Welhouse
Attorney Thomas J. Niemiec

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