THOMAS D PANKRATZ, Applicant

MERIT GEAR CORP, Employer

WAUSAU UNDERWRITERS INS CO, Insurer
c/o WAUSAU INSURANCE COMPANIES

This matter arises from a hearing application filed by the applicant in March 2005, seeking compensation for a low back condition. Administrative law judge (ALJ) Mary Lynn Endter of the Department of Workforce Development, Worker's Compensation Division, heard the matter on February 2, 2005. Prior to the hearing, the employer and its insurer (collectively, the respondent) had conceded jurisdictional facts, an average weekly wage of $646.81, and a compensable accidental injury on December 27, 2000 causing only a short period of temporary disability litigated at a prior hearing on an earlier hearing application. At issue before ALJ Endter was the applicant's claim for disability from occupational disease or exposure based on a January 15, 2001 date of disability and injury.

On February 28, 2005, ALJ Endter issued her decision dismissing the application for hearing. The applicant filed a timely petition for commission review under Wis. Stat. § 102.18(3).

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 March 2005 hearing application is the second filed by the applicant seeking disability compensation beginning on January 15, 2001, related to a low back condition. A hearing on the first application was held before ALJ Mary Jo Schiavoni in October 2001. At that time, the applicant claimed that an incident on December 27, 2000, when he was pulling a table away from a machine resulted in an injury requiring him to undergo a fusion procedure in July 2001. The applicant offered practitioner's reports from medical experts who opined that the traumatic event of December 27, 2000, aggravated his preexisting degenerative condition beyond normal progression. At the time of the first hearing, it was too early to determine permanent partial disability as the applicant was still healing from the surgery. The respondent conceded an injury on December 27, 2000, but asserted it caused only temporary disability which it had already paid.

In her decision dated November 14, 2001, ALJ Schiavoni noted that several treating doctors had at various times associated the applicant's ongoing complaints leading to his surgery with his underlying spondylolisthesis condition rather than a work injury. She specifically adopted the opinions of the respondent's medical expert, Dr. Barron, who opined the work injury caused at most a minor sprain from which the applicant completely recovered, but that the need for the surgery was due only to his underlying degenerative condition. Dr. Barron's initial report opined the applicant did not suffer from a condition caused by a material period of work place exposure, that is, by occupational disease. October 2001 hearing, exhibit 6, report of Barron, page 6. In a supplemental report, Dr. Barron further opined that a disc herniation in the applicant's spine at L4-5 was not caused by an appreciable period of work place exposure. ALJ Schiavoni dismissed the original hearing application, concluding the applicant had not proven disability from the December 27, 2000 event.

The commission affirmed ALJ Schiavoni's decision on April 30, 2002. The commission's decision was affirmed in circuit court on September 19, 2002.

The applicant has now filed a second application seeking compensation for disability to his back, but instead of claiming it arose from a traumatic accident in late December 2000 claims it arose from his entire workplace exposure. The applicant now alleges a slightly later date of disability and injury of January 15, 2001, which is based on the last day he worked for the employer. (The applicant worked in light duty following the December 27, 2000, injury until an economic layoff on January 15, 2001.)

The hearing on the second application was held before ALJ Mary Lynn Endter in February 2005. At the second hearing, the applicant offered a March 16, 2004 practitioner report (February 2005 hearing, exhibit A) from Dr. Jensen stating that the applicant had a history of performing heavy work and low back incidents before January 15, 2001, which were at least a material contributory factor in the onset or progression of his disabling disease -- described in the report as lumbar disc disease with bilateral pars fracture at L5-S1, grade I spondylolisthesis of L5-S1.

The applicant also offered a second report from Dr. Leek dated March 8, 2004 (Exhibit B), stating that in retrospect the applicant's disability from degenerative disc disease resulting in central disc degenerations was not caused by a single event precipitating, aggravating and accelerating beyond normal progression a progressively deteriorating or degenerative condition. Rather, the doctor felt a series of back injuries in concert with the applicant's work exposure to the applicant's work with large gears was a material contributory causative factor in the onset and progression of the applicant's disease. Based on a functional capacity evaluation done in February 2002 after the applicant recovered from the fusion surgery (and after the hearing on the original application), Dr. Jensen rated permanent partial disability at 25 percent.

Before ALJ Endter, the respondent argued action on the second hearing application is barred by res judicata. However, as ALJ Endter recognized, action on the second application is not barred by res judicata (claim preclusion) (1)   because the applicant is not trying to relitigate the December 27, 2000 date of injury. Rather, his two applications involve different causal theories with different dates of injury; that is, they raise different claims or "causes of action."

As ALJ Endter observed, this case more properly is viewed as raising the question of collateral estoppel (issue preclusion). Collateral estoppel or issue preclusion applies when an issue of fact or law raised in a second suit is identical to an issue of fact or law decided in the first suit, even under a different cause of action. (2)   Here, both hearings address the identical factual issue of what caused the applicant's need for the fusion surgery and his disability after the period of temporary disability conceded by the respondent. Further, following the first hearing, ALJ Schiavoni resolved the issue when she adopted Dr. Barron's opinions that the applicant's need for the fusion surgery and her ongoing disability were caused only by the applicant's underlying degenerative disease, and not by an accident on December 27, 2000 or by his work exposure to that point.

In her decision now before the commission, ALJ Endter suggested that ALJ Schiavoni's November 2001 decision -- which found that the applicant's disability and need for surgery were related to his pre-existing condition -- precludes relitigation of the cause of the applicant's need for fusion and resulting disability. Alternatively, ALJ Endter held that even if the findings in ALJ Schiavoni's decision were not binding, she would still find the applicant's current lower back complaints are not due to an appreciable period of work place exposure. She based that conclusion on Dr. Barron's opinions, including an updated report dated November 17, 2004, introduced as exhibit 1 at the February 2005 hearing before her.

Under the facts of this case, the commission agrees that the doctrine of issue preclusion requires dismissal of the application. Again, in his initial reports from the time of the first hearing in 2001, Dr. Barron said the December 27, 2000 incident caused a sprain which -- though temporarily disabling -- resolved in three months without permanency. He opined that incident did not cause the need for the surgery. Rather, Dr. Barron felt the applicant's disability, his disc herniation, and his surgery were all due to a pre-existing condition. More importantly, Dr. Barron opined the applicant's work exposure did not cause the applicant's
pre-existing back condition.

ALJ Schiavoni's decision adopted Dr. Barron's opinion, and the commission affirmed and adopted the ALJ's decision in that regard. In other words, it has already been determined that the applicant's disability is due to a pre-existing condition, and that the applicant's work exposure was not a material contributory causative factor in the onset or progression of that condition. The causal theory the applicant attempts to raise before ALJ Endter to account for his need for the fusion surgery and continuing disability has already been rejected by ALJ Schiavoni, the commission and the circuit court. (3)   The commission concludes relitigation of the issue of causation by occupational disease, or by an appreciable period of workplace exposure during the applicant's employment with the employer, is precluded by ALJ Schiavoni's November 2001 decision.

ALJ Endter set out the factual findings she would have made, if her legal analysis of the issue of collateral estoppel or issue preclusion is determined to be in error. The commission follows that course here, substantially restating her findings on that point.

After reviewing the entire record, including the medical records marked at the prior hearing, the medical records presented at the current hearing, the transcript of the prior hearing, the opinions of Dr. Barron are adopted as the most credible. Dr. Barron examined all of the medical records and explained that the applicant had a preexisting condition; that he had a series of back injuries while working for the respondent but did not suffer from an appreciable period of workplace exposure; that he did not have a permanent aggravation of his preexisting condition. Dr. Barron pointed out that Dr. Paul Jensen, one of the treating physicians, considered that the applicant had pain as a result of his preexisting lytic spondylolisthesis. Dr. Barron also noted that another physician, Dr. Mark Weissman, found that the applicant sustained more of a myofascial sprain to his back that resolved within three months.

Further, all of the applicant's work exposure, the imaging showing a herniated disc, and the fusion surgery itself had all occurred by the date of ALJ Schiavoni's first hearing. Addressing the question of occupational disease in their reports written for the first hearing at that time, the applicant's own medical experts specifically opined the applicant's disability was not due to occupational disease. October 2001 hearing, exhibits B (report of Leek) and C (report of Jensen). While Dr. Jensen changed his opinion in retrospect, he does not convincingly explain why he changed his opinion. As explained below, the applicant's assertion of a "change in circumstance" because he did not recover enough to return to work addresses the extent but not the cause of disability. In sum, separate and apart from any concerns about issue preclusion, the commission is left with legitimate about the applicant's claim.

The applicant's claim for additional disability caused by occupational disease based on a January 15, 2001 date of disability or injury is denied. The application shall be dismissed.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified are affirmed in part and reversed in part.

The application is dismissed.

Dated and mailed September 15, 2005
pankrtz . wrr : 101 : 2   ND § 8.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The applicant argued that a change in his condition justifies reopening the case. Specifically, the applicant argues that he "never recovered sufficiently from his cumulative back condition to resume work" and suggests that this was not known until August 2002. The applicant goes on to cite material from Professor Larson's treatise in support of "reopening the claim."

The commission does not agree. The statements from Professor Larson dealing with a change in condition mainly deal with the situation where a case poses only a question of the extent of disability. The treatise suggests that if a worker suffers a conceded work injury that everyone thought the applicant had recovered from, but which in fact continued to progress to the point of permanency, reopening a case might be warranted. 8 Larson, Workers' Compensation Law § 131.03[1][a] (LexisNexis 2005). Indeed, the professor goes on to say that in a

"[c]hange of reopening proceeding, the issue before the Board is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based. If the original award held that there was no connection between the work accident and claimant's permanent disability, there is nothing to reopen, and claimant cannot retry the issue of work-connection through the device of reopening a petition. ... [N]o matter who brings the reopening petition, neither party can raise original issues such as work-connection, ... occurrence of a compensable accident, and degree of disability at the time of the first award."

8 Larson, Workers' Compensation Law § 131.03[2][a].

The discussion in Professor Larson's treatise does not justify "reopening" the issues decided at the first hearing before ALJ Schiavoni based on a change in circumstance relating to the extent of the applicant's disability. When ALJ Schiavoni originally heard this case in 2001, the disc pathology had been discovered and the fusion surgery performed. The parties knew that a permanency claim -- even if only on a functional basis -- loomed on the horizon. Indeed, the applicant was still healing from the fusion surgery when ALJ Schiavoni heard the case back in 2001.

However, ALJ Schiavoni was not dealing with what the extent of permanency following the surgery was, but the more basic question of what caused the need for surgery which was certain to result in permanent disability under Wis. Admin. Code § DWD 80.32(11). She found that the applicant's need for surgery and ongoing disability was due to the normal progression of the applicant's pre-existing condition, rather than work. She adopted the medical opinion of Dr. Barron who specifically rejected work as a cause, including work as a cause under the occupational disease theory. The extent to which the fusion surgery has disabled the applicant from work does not address the question of whether work exposure caused the need for the surgery in the first place.

Technically, of course, ALJ Schiavoni did not need to find that the applicant's back condition was not caused by occupational disease in order to dispose of his initial claim based on an accidental event on December 27, 2000. In his brief, the applicant does cite material from Professor Larson's treatise indicating that res judicata does not apply if the issue at stake was not essential to the final decision in the case. 7 Larson, at § 127.07[7]. Again, however, ALJ Endter properly concluded that ALJ Schiavoni's findings raise questions of collateral estoppel (issue prelusion) rather than res judicata (claim preclusion). Nonetheless, Professor Larson's reasoning might apply to the question of collateral estoppel under Wisconsin law. (4)   On that basis, the commission substantially restated the factual findings made by ALJ Endter on the question of causation by occupational disease. (5)

cc:
Attorney William A. Wulf
Attorney Kevin M. McDonald

Appealed to Circuit Court. Affirmed August 11, 2006.

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(1)( Back ) Under res judicata, a final judgment bars retrying the same case between the same parties on the same cause of action. ManuTronics v. Effective Management Systems, 163 Wis. 2d 304, 312 (Ct. App. 1991) Generally, when an issue is resolved in a final workers compensation order, it cannot be relitigated; and when a final order is issued, it resolves all claims on a particular injury date. See Borum v. Industrial Commission, 13 Wis. 2d 570, 573 (1961), where the court stated that a worker's right to recover worker's compensation is based on Chapter 102, and that he has only one cause of action for it. When the commission decides a worker's compensation case, it is passing on all compensation payable for the injuries caused by the accident. The Borum court reasoned that the commission therefore cannot, after a final order and expiration of appeal periods, resume consideration of a case upon application for compensation of additional injuries allegedly sustained in the same accident. See also, Kwaterski v. LIRC, 158 Wis. 2d 112 (Ct. App., 1990). That, of course, is different from what the applicant is trying to do in this case; he is not bringing an additional claim based on the December 27, 2000 accident.

(2)( Back ) Wisconsin law on the doctrine of issue preclusion was recently summarized in Teriaca v. Milwaukee Employee's Retirement System, 2003 WI App 145, 265 Wis. 2d 829, 841-42 :

¶12. "Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in the prior action." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). The general rule on issue preclusion is: "When an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action . . . whether on the same or a different claim." Precision Erecting, Inc. V. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301, 592 N.W.2d 5 (Ct. App. 1998) (quoting Restatement (Second) of Judgments § 27 (1982)).

See also: Ruecker v. Ruecker, 105 Wis. 2d 425, 436 (Ct. App., 1981); ManuTronics v. Effective Management Systems, 163 Wis. 2d 304, 312 (Ct. App. 1991); Michelle T. v. Crozier, 173 Wis. 2d 681, 697 (1993).

(3)( Back ) The commission notes that this case is distinguishable from a case where an ALJ and the commission find only that a traumatic event on a particular day did not cause disability, without additionally finding that the disability was not caused by occupational disease but had a non-occupational origin.

(4)( Back ) Again, the "the general rule on issue preclusion is: 'When an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action . . . whether on the same or a different claim.'" [Emphasis supplied; citations omitted.] Teriaca, at 265 Wis. 2d 841, ¶12.

(5)( Back ) The commission reversed ALJ Endter's findings only insofar as they imply the applicant's temporary disability from December 27, 2000 to March 27, 2001 was due to occupational exposure rather the accidental event of December 27, 2000 as originally found by ALJ Schiavoni based on Dr. Barron's opinion.

uploaded 2005/09/20