JEFFREY OLSON, Applicant
S N E ENTERPRISES, Employer
EMPLOYER'S INSURANCE OF WAUSAU, Insurer
The applicant has submitted a petition for commission review, and the file also contains briefs from both sides. The applicant's petition alleges error in the administrative law judge's Findings and Order dated October 26, 1992. The employer and the insurer (collectively, the respondent) have conceded jurisdictional facts and average weekly earnings of $ 464.75. At issue is whether or not at the time of the alleged injury the applicant was performing services growing out of and incidental to his employment, whether the injury arose out of his employment, the nature and extent of disability, and liability for medical expenses.
The commission has carefully reviewed the entire record in this matter. After consulting with the administrative law judge concerning witness credibility and demeanor, the commission hereby sets aside the administrative law judge's Findings and Order, and substitutes the following therefor:
The applicant worked for the employer for about 14 years prior to the date of the injury on December 2, 1991. According to the applicant, he injured his back at that time attempting to move three boxes of staples (apparently stacked one on top of the other), each of which weighed 54 pounds. The employe testified that he slid the boxes about a quarter of an inch forward and then felt a pain in his back and legs. He also experienced numbness in his feet. He notified his employer of the injury and left work. He attempted to return to work one week later on December 9 and worked a half a day. However, he left work because of the pain and has not worked thereafter.
After the work injury, the applicant saw his chiropractor, who referred him to Raymond J. Szmanda, D.O., a neurologist. Dr. Szmanda opined that the applicant had degenerative disc disease at L4-5 with bilateral lower extremity radiculopathy. Dr. Szmanda also noted that the applicant had a slight degree of posterior bulging at the L4-5 disc. After noting that manipulative therapy and physical therapy had not helped the applicant, Dr. Szmanda referred him to an orthopedic surgeon, R. L. Buechel, M.D., on December 18, 1991. Dr. Buechel originally treated the applicant by giving him epidural block injections, but they did no good. Dr. Buechel then recommended surgery, and a foraminotomy and disc excision was performed on the applicant at the L4-5 level on his right and left sides on April 14, 1992. The applicant showed gradual improvement following the surgery. Indeed, he testified at the hearing that the pain in his right and left legs left him after the surgery, and that he felt pretty good. However, the pain returned on June 4, 1992, when he fell down after being attacked by a dog. At that point, he again developed recurrent symptoms which persisted. He describes the symptoms as burning pain in his back, legs and toes.
The file contains four practitioner reports. The earliest is from the applicant's chiropractor, Dr. Mark Peterson, dated March 12, 1992. Dr. Peterson opined that the work incident caused the employe's disability by precipitation, aggravation, and acceleration of a pre-existing progressively deteriorating or degenerative condition beyond the normal progression. Dr. Peterson was unable to say when the applicant would be able to return to work subject to permanent restrictions.
Dr. Szmanda provided a practitioner's report dated March 13, 1992. He too believed the work injury caused a disability by "precipitation, aggravation and acceleration of a pre-existing progressively deteriorating or degenerative condition." As of March 13, 1992, Dr. Szmanda opined that it was too early to fix an amount of permanent partial disability or a return to work date. The opinions of Dr. Peterson and Dr. Szmanda were both given before the employe had his back surgery on April 14, 1992.
The record also contains a practitioner's report prepared by Dr. Richard Buechel on June 5, 1992 (the day after the employe fell over when attacked by a dog) . Dr. Buechel also opined that the applicant's work injury caused a disability by precipitation, aggravation and acceleration of a pre-existing condition. He indicated in a letter attached to his report that it was probably too soon to determine when the employe could return to work or what his permanent disability would be, but he opined it would be somewhere in the vicinity of a 5-10 percent rating once he reached his healing plateau.
Finally, the record contains a practitioner's report prepared by the independent medical examiner, Dr. Samuel Idarraga dated September 9, 1992. Attached to the practitioner's report are two separate narrative reports. In the first narrative report dated March 23, 1992, Dr. Idarraga attributes the applicant's low back pain to degenerative arthritis, including disc degeneration at the L4-5 and L5-S1 levels. Dr. Idarraga opined that if the applicant in fact had bent down to pull or slide a heavy box of staples as he testified, "his problems would be directly related to that injury by aggravation of a pre-existing condition of degenerative arthritis." However, Dr. Idarraga testified that it was hard to believe that the applicant would have tried to move the heavy load because of prior back complaints. At any rate, Dr. Idarraga opined that the applicant should avoid lifting over 50 pounds on an occasional basis and avoid lifting 20-25 pounds on a frequent basis. He also opined that if indeed the applicant were injured at work, a 3 percent permanent partial disability rating would be reasonable. Dr. Idarraga's rating of permanent partial disability presupposes that the applicant had reached a healing plateau as of March 23, 1992, although he did not state this in his report.
Dr. Idarraga's practitioner's report also contains a narrative report dated September 9, 1992, prepared after the employe fell during the dog attack on June 4. Dr. Idarraga noted a history of reinjury on June 4, 1992, because of the dog attack, but opined that the applicant's symptoms were mainly due to his degenerative arthritis of the lumbar spine and that the surgery he had on April 14 did not benefit his condition. However, based on the laminectomy, Dr. Idarraga found a permanent partial impairment of 5 percent of the body as a whole. He also reiterated the lifting restrictions from his March 23 letter.
The applicant has established a work-related injury causing disability arising out of his employment on December 2, 1991. The commission acknowledges that the causation issue was disputed at the hearing. The employer provided two witnesses who testified that, after inspecting the dust on the floor, they determined that the boxes that the employe claimed he injured himself moving in fact had not been moved. In addition, the employe's lead worker testified there would have been no reason to move the boxes because they normally were placed in a convenient location within two or three feet from a worker (although he admitted that they may have been placed a couple of feet either way on the date of the injury). However, the presiding administrative law judge found that the injury occurred as the applicant described and the commission agrees with that credibility assessment. In addition, the commission concludes that it is likely that the applicant could have moved the boxes a fraction of an inch without causing an easily detectable disturbance in the dust. Because Dr. Idarraga's opinion is based on the premise that the applicant did not move the boxes, the commission gives little weight to his opinion that the applicant's disability was attributable solely to degenerative arthritis.
The closer question is how to treat the recurrent symptoms and disability that the applicant experienced following the incident with the dog on June 4, 1992. If the commission were to treat the dog attack as an "intervening cause" of continued disability, any additional disability attributable to the dog attack might not be compensable. The supreme court has applied the "intervening cause" doctrine to support a denial of compensation when the employe's voluntary act, entered into with knowledge, places him or her in a situation in which reinjury is foreseeable. Kill v. Industrial Commission, 160 Wis. 549, 553 (1915). See also: Neal & Danas, Worker's Compensation Handbook, section 3.37 (1992); 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). Thus, additional compensation upon reinjury may be denied in cases where the activity that triggers the reinjury is "rash" in light of the applicant's knowledge of his condition. Id., at sections 13.11 (a) and 13.22 (a). In Kill, for example, the applicant engaged in a prize fight that tore open and infected a wound from an earlier work-related injury.
On the other hand, a reinjury may be compensable if it is caused by the weakened condition of a worker, or where the work-related injury made the worker more vulnerable to reinjury, Western Lime & Cement Co. v. Industrial Commission, 194 Wis. 606, 608-09 (1929) and Burton v. ILHR Department, 43 Wis. 2d 218, 228-228a (1969). Likewise, Professor Larson states that an off-duty reinjury is compensable when "the episode is some nonemployment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative factor is the progression of the compensable injury." 1 Larson, Worker's Compensation, sections 13.11 (a) and 13.12 (a) and (b) (1993). In Wisconsin, if medical proof establishes that the residual effects of a compensable injury cause a subsequent off the job reinjury, the employer is liable for the subsequent reinjury. In such cases, courts will examine whether the work injury is a "substantial factor" in the off-duty reinjury. Neal and Danas, at section 3.37.
The record does not indicate that the applicant in this case was engaged in any negligent or intentional act that brought about the dog attack. Lacking some "rash act," the commission is reluctant to find that the dog attack was an intervening cause of the type that bars additional compensation. Instead, the commission concludes that the original December 2 injury was a substantial factor in the applicant's reinjury on June 4, 1992. Certainly, Dr. Buechel continued to regard the December 2 incident as the main cause of the applicant's disability, even after the dog attack. He specifically cited the work injury as the cause of the applicant's disability in his June 5, 1992 practitioner's report. Further, the fact that the applicant experienced recurrent or the same pain after the dog attack as was caused by the December 2 injury leads to the conclusion that the work injury was a substantial factor in the recurrent disability after the dog attack. It also leads to the conclusion that any additional aggravation or injury which might be associated with the dog attack would not have occurred had it not been for the work injury. Even Dr. Idarraga does not give the June 4 dog attack any special causative weight, but states that he believed that the applicant's symptoms were due generally to a preexisting condition. Finally, under the department's rules, the applicant would normally be entitled to at least some compensation for permanent disability based solely on the surgery that he had before the dog attack, even if the attack had not occurred. Section IND 80.32 (11), Wis. Adm. Code.
Assuming that the applicant is entitled to compensation after the June 4 dog attack, the next question is the duration of temporary disability and the extent of permanent disability. Dr. Buechel opined on June 5 that it was too soon to fix a date for the end of healing, but suggested that the applicant's permanent disability would be between five and ten percent. Although Dr. Buechel indicated that the further consultation with other doctors might be appropriate before deciding on further treatment, the record does not indicate the result of the further treatment before the date of the hearing. Dr. Idarraga, on the other hand, opined that the applicant reached a healing plateau as of September 9, 1992, and that he had a five percent permanent partial disability when compared to a disability to the body as a whole.
The commission concludes that the applicant reached a healing plateau as of September 9, 1992. This finding, based on Dr. Idarraga's opinion, is not completely inconsistent with the practitioner's report submitted by Dr. Buechel that stated only that the applicant hadn't reached a plateau as of the day after the dog attack. The commission also concludes that the applicant has permanent partial disability from the work injury in the amount of five percent when compared to a permanent disability to the body as a whole. That figure, while at the low end of the range given by Dr. Buechel, does fall within the guidelines set out in the sec. IND 80.32, Wis. Adm. Code, given the surgery that was performed.
The commission therefore finds that the applicant is entitled to temporary total disability from December 12, 1991 to September 9, 1992, or 39 weeks and 2 days. Two-thirds of his conceded average weekly earnings of $ 464.75 equals a temporary total disability rate of $ 309.83 per week. The applicant is entitled to temporary total disability in the amount of $ 12,186.65.
The commission further finds that the applicant is entitled to permanent partial disability of five percent when compared to total disability. This amounts to fifty weeks at the rate for permanent partial disability at the maximum rate of $ 137 per week, or $ 6,850.
The applicant agreed to an attorney fee at the rate of twenty percent of the total amount of additional compensation awarded ($ 19,036.65). This works out to an attorney fee of $ 3,807.33. The applicant's attorney is also entitled to costs in the amount of $ 65.30. Deducting the fees and costs leaves a net sum payable to the applicant for disability of $ 15,164.02, all of which is accrued.
As a further result of his injury the applicant incurred medical and hospital charges which were reasonable and necessary to cure and relieve him from the effects of his injury. The applicant incurred charges of $ 566 from Pat D. Bryant M.D., S.C., all of which remains unpaid. The applicant incurred charges at the Bone and Joint Clinic in the amount of $ 4,655; the Massachusetts Mutual Life Insurance Company (Massachusetts Mutual) paid $ 4,157.70, leaving an unpaid balance of $ 497.30. The applicant incurred charges at Central Wisconsin Anesthesiology in the amount of $ 4,320.38; Massachusetts Mutual paid $ 3,439.38, leaving an unpaid balance of $ 881. The applicant incurred charges for the services of Dr. Mark Peterson in the amount of $ 470; Massachusetts Mutual paid $ 450.50, leaving an unpaid balance of $ 19.50. The applicant incurred charges of $ 602.78 at Radiology Associates of Wausau; Massachusetts Mutual paid $ 253.18 and the applicant paid $ 349.60. The applicant incurred and paid charges of $ 148.27 for prescription items at Shopko. The applicant incurred charges of $ 128.90 at the Sport and Spine Clinic, all of which remains unpaid. The applicant incurred charges of $ 1,366.10 for the services of Dr. Raymond Szmanda, all of which remains unpaid. The applicant incurred charges of $ 10,631.17 at the Wausau Hospital Center; Massachusetts Mutual paid $ 8,471.32, leaving an unpaid balance of $ 2,160.38. The respondent's worker's compensation insurance carrier shall be ordered to reimburse the applicant and Massachusetts Mutual Life Insurance Company for the charges that they paid and also to pay the unpaid balances mentioned above.
As a further result of the applicant's injury, he traveled 836 miles to obtain medical treatment. At a rate of 24 cents per mile, he is entitled to $ 200.64. No attorney fee is allowed on this amount.
NOW, THEREFORE, The Labor and Industry Review Commission makes this:
That within 30 days from the date of this decision the respondent-insurer shall pay the following:
(1) DISABILITY AND FEES. To the applicant for permanent partial and temporary total disability, the sum of fifteen thousand one hundred sixty-four dollars and two cents ($ 15,164.02); and to his attorney, William A. Wulf, the sum of three thousand eight hundred seven dollars and thirty-three cents ($ 3,807.33) for fees and the sum of sixty-five dollars and thirty cents ($ 65.30) for costs.
(2) MEDICAL EXPENSES (a) Payments to Providers. To Pat D. Bryant, M.D. S.C., the sum of five hundred sixty-six dollars ($ 566); to the Bone and Joint Clinic, the sum of four hundred ninety-seven dollars and thirty cents ($ 497.30); to Central Wisconsin Anesthesiology, the sum of eight hundred eighty-one dollars ($ 881); to Dr. Mark Peterson, the sum of nineteen dollars and fifty cents ($ 19.50); to the Sport and Spine Clinic, the sum of one hundred twenty-eight dollars and ninety cents ($ 128.90); to Dr. Raymond Szmanda, the sum of one thousand three hundred sixty-six dollars and ten cents ($ 1,366.10) and to the Wausau Hospital Center, the sum of two thousand one hundred sixty dollars and sixty-eight cents ($ 2,160.68).
(3) Reimbursement to other insurer and applicant. To the Massachusetts Mutual Life Insurance Company, the sum of sixteen thousand seven hundred seventy-two dollars and eight cents ($ 16,772.08), and to the applicant the sum of four hundred ninety-seven dollars and eighty-seven cents ($ 497.87) as reimbursement for medical expenses and two hundred dollars and sixty-four cents ($ 200.64) for mileage charges incurred.
Dated and mailed January 31, 1994
CD8084 : ND § 3.39
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
The commission conferred with the presiding administrative law judge about credibility in this case. He indicated that he ended the temporary disability with the dog attack on June 4 because he felt it would be difficult to separate injury or disability caused by the dog attack from disability caused by the work injury. The commission appreciates this difficulty, but concludes all of the disability may properly be associated with work, for the reasons set out above.
cc:
Attorney Jeffrey J Klemp
Schuch & Stilp
Attorney William A Wulf
Ament Wulf & Frokjer
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