BRIAN DOTTERWEICH, Applicant

D & D EXCAVATING INC, Employer

SELECTIVE INS CO OF THE SE, Insurer
c/o SELECTIVE INS OF AMERICA

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 8, 2005
dotterw . wsd : 101 : 2  ND § 5.31

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The applicant alleges disability from a work place injury -- specifically an appreciable period of workplace exposure to heavy work duties that were a material contributory causative factor in the progression of his condition -- with a July 26, 2003 date of injury. The employer and its insurer (collectively, the respondent) assert that the applicant's disability is due either to the normal progression of a prior injury for which the named insurer is not liable, or more likely an off-duty ATV accident that occurred only a few weeks before the alleged date of disability. The respondent also disputes that the applicant is permanently totally disabled (as the ALJ found) given his injury.

The applicant was born in 1959. He began working for the employer as a heavy equipment operator in 1994. His job involved seasonal work, ten hours a day, five days a week, from March or April to November or December. In August 2000, the applicant had a traumatic work injury when he fell from a piece of heavy equipment. He experienced neck pain and left arm pain. A C6-7 disc herniation was eventually diagnosed and treated surgically by discectomy/fusion in December 2000. The surgery was successful, and the insurer on the risk at the time conceded the injury and paid compensation for it.

After the August 2000 injury and surgery, the applicant returned to work without restriction in April 2001. The applicant, however, began experiencing symptoms of right arm pain and numbness. He also had intermittent headache and neck ache. Eventually, a restriction against working on heavy equipment was imposed and the applicant did not complete the 2001 season. While the applicant was off work, his symptoms in both his arm and neck got better.

On May 1, 2002, the applicant's doctor, Dr. Callahan, noted that all of his residual neck pain was completely resolved and he had no radicular neck pain. Indeed, Dr. Callahan felt the applicant was doing superbly. The applicant then asked the doctor to release his restriction against operating heavy equipment, and after discussion the doctor agreed as the applicant's neck pain had resolved.

After working for another employer for about a month, the applicant returned to the named employer in June 2002. He ran an excavator, mainly, ten hours a day five days a week. He testified without contradiction that this work involved a lot of side-to-side head movement to look out for trees, power lines, and other workers. He estimated he turned his head one or two thousand times a day. The applicant also testified the machine vibrated, because the machines had no suspension and were operated off-road, bouncing around in rough terrain.

During the 2002 construction season, the applicant would experience intermittent pain, nothing on a constant basis, depending on how hard he worked. He described neck stiffness and hand numbness. However, the applicant neither treated nor lost time from work for these complaints in the 2002 construction season after returning in June.

The applicant returned to work in April 2003, in what he felt was pretty good shape. Again, he worked without restriction as a heavy equipment operator from April 2003 to mid-July 2003.

In the interim, on or about Saturday, May 17, 2003, the applicant was in an accident with an all terrain vehicle (ATV), a four-wheeler. Since it was the spring, the ground was soft, and apparently gave way under the applicant, causing him to go into a ditch. The ATV overturned, and the applicant landed on the ground with the ATV handlebars on his ribs. Transcript, pages 23, 59-60. The ATV weighed about 500 pounds.

After the ATV accident, the applicant treated with a physician's assistant, David Howe. Mr. Howe reported the applicant had been running a four wheeler the prior Saturday which overturned and came down on his left chest wall. A chest x-ray did not show any fracture. Noting complaints of left chest wall pain, the doctor diagnosed a left chest wall contusion. No other complaints were noted.

The applicant continued to work. He testified that in June 2003, his intermittent neck pain and hand numbness seemed to get worse. He was having headaches more frequently, and they lasted longer. In late July 2003, the applicant began experiencing increased pain on the right side of his body, his upper chest, and down his right arm. He thought the pain was "deeper" than he experienced two months earlier when the ATV overturned, and the pain was on the right side of his chest whereas his May 2003 pain had been on the left side.

At any rate, the applicant next sought treatment at an emergency room on July 25. There is a diagram included in the emergency room notes at exhibit 4, and it indeed shows pain in the right chest. A heart attack was ruled out and the applicant was released.

The applicant then returned to Mr. Howe on follow-up on July 28. Mr. Howe noted the applicant had been seen in the ER for chest pain. Mr. Howe noted continued pain, but it appeared to be more in the thoracic back than the chest. On exam, Mr. Howe noted mid thoracic pain on the right side when he abducted or twisted. The doctor did not know the exact etiology of the pain, but wondered about a questionable history of a bony mass from 2000. He ordered an MRI and physical therapy.

The MRI showed a focal extra dural osseous abnormality posteriorly at T3-4. The therapist saw the applicant on August 5, 2003, and noted upper back pain of two weeks duration in the upper back. The pain was described as in the thoracic region with radiation to the ribs.

The applicant returned to Mr. Howe for a recheck of his "back pain" on August 7, 2003, and there was some discussion of whether an extra dural osseous abnormality at T3-4 was causing the problem. Mr. Howe referred the applicant to Dr. Brendel, who saw the applicant on August 27, 2003. At this point, the applicant was complaining of a dull, constant aching right posterior superior scapular pain as well as a right and left neck pain for two months with a three week history of headache. The medical records also note occasional radicular pain into the right posterior triceps and right lateral rib cage. The doctor noted "primarily the pain is cervical axial pain, worsened with looking down."

Dr. Brendel's assessment was:

Status post fusion C5-6 with diminished motion segment at that level, likely C6-7 posterior element or facet mediated pain is likely the cause of his current symptoms and/or cervical discogenic pain at C6-7. This is relatively classic postfusion.

Dr. Brendel ordered a cervical MRI. This showed a right-sided disc bulge which appeared to displace the contour of the spinal order and was suspected of causing nerve root impingement. In a follow-up note dated August 29, 2003, Dr. Brendel noted the MRI appeared to show a C7-T1 disc protrusion in position to irritate the C7-T1 nerve (this was later determined to be an osteophytic spur). The doctor did an injection.

The applicant then was seen again by Dr. Callahan on November 5, 2003. The applicant told Dr. Callahan that since his last visit in April 2002:

He had some intermittent neck pain and clearly had stiffness. He noted some occasional numbness in his hands after a long day's work. His initial injury was work-related. He now reports to me that while at work this summer he began to have increasing neck pain. He reported to me that he was unable to work after July 26, due to quite severe neck pain causing pain and spasm in the medial aspect of his scapular region at the right thoraco-cervical junction area, predominately in the medical right aspect of the scapula with some radiating pain into his posterior shoulder, right axillary region, and into the triceps region of his right arm.

The doctor's diagnostic assessment states:

[The applicant] ... has recurrent quite severe neck pain to the point that he has been unable to work. There are some associated symptoms into the medical aspect of the right scapula, shoulder and arm. He appears to have a herniated C7-T1 disc. He had not improved with physical therapy, pain medications, analgesics, rest or an epidural steroid injection. He is inquiring if this is a work-related injury. Clearly, he has prior cervical disc herniation and it has been increasingly problematic at work to the point where he had to give up his job. I recommended to him that if he wants to pursue a Worker's Comp issue he should discuss it with an attorney.

The doctor recommended the applicant consider a posterior right C7-T1 foraminotomy and discectomy, though he did not think it would ever be feasible for him to return to heavy equipment operation.

Then on January 8, 2004, Dr. Callahan performed surgery, a posterior cervical right C7-T1 foraminotomy on a diagnosis of right C8 radiculopathy. During the operation, the doctor observed and "took down" an osteophytic spur in the C7-T1 disc space. There was no evidence of a disc herniation.

In follow-up in February 2004, the applicant complained still of numbness in his forearm and fingers. He also complained of neck pain and headache. Dr. Callahan felt the applicant was doing reasonably well but had persistent weakness in the C8 distribution. He felt the applicant's symptoms would improve over the next couple of months, but felt it was going to be difficult for the applicant to sustain an 8-hour work day, 40 hours a week, as a heavy equipment operator given his injury and given the two cervical surgeries.

2. Expert opinion.

Regarding the question of causation and extent of disability, both parties have submitted expert medical opinion.

The applicant relies on Dr. Callahan's opinion on causation at exhibit B. After summarizing his treatment of the applicant, Dr. Callahan states:

In regard to your question as to whether or not I feel his current neck injury was related to work, I do in fact think his work injury was a substantial contributing factor. He had previously suffered a work injury at the C6-7 level, the required operative intervention and fusion, leading to added strain on the level above and below that area. Then with his return to heavy equipment operation, I do feel his most recent troubles are work related.

Exhibit B. Regarding the extent of disability, Dr. Callahan reiterated his opinion that he did not feel the applicant could work a sustained eight-hour day, and would clearly be unable to return to heavy equipment operation. In a follow-up note, the doctor estimated permanent partial disability at 15 percent compared to permanent total disability for the second surgery (5 percent per level for the foraminotomy and 5 more for ongoing symptoms).

Dr. Callahan also completed a practitioner's report indicating the applicant: could not work an eight hour day; could only lift 20 pounds maximum and 10 pounds frequently; would have to be able to shift between sitting, standing and walking at will; would have to be able to lie as needed; could occasionally twist, stoop, crouch, climb stairs, and climb ladders; and would have to avoid even moderate exposure to extreme cold and heat, wetness, humidity, noxious fumes, odors and dusts, and hazards. The doctor concluded by stating he did not believe the applicant could work an eight hour day, and indeed did not recommend a return to work. Exhibit A.

The respondent retained William Monacci, M.D, as its examiner; his report dated March 14, 2005, is at exhibit 3. He gives a detailed explanation regarding causation at pages 10 and 11. To summarize, he described the question of whether the applicant's symptoms were work related was difficult, but that there was no direct link. He noted the applicant engaged in riding an ATV after the first fusion, and he did not think a person with chronic neck and upper back pain would do that. He also noted that cervical fusions at one level created adjacent level stress, which may in turn lead to the subsequent progression of deterioration and spondylolysis, and resulting radiculopathy.

On this point, Dr. Monacci observed that the applicant's symptoms were as likely to develop outside of work as with the activities he performed. He noted cervical spondylolysis can be a progressive deteriorative condition which cuts across the spectrum of professions and levels for physical exertion. He observed again that there was no trauma at work, and the only trauma was the ATV accident. He concluded by stating he did not think the applicant's work activity met the criteria for sufficient magnitude, duration, or frequency to be a material contributory causative factor in the onset or progression of the applicant's condition. He felt the applicant's symptoms in May to July 2003, and his need for surgery thereafter, were due to a manifestation of a degenerative cervical spondylolysis.

Regarding restrictions, Dr. Monacci felt only a restriction against lifting more than 20 pounds overhead and against wearing heavy headgear was warranted. He rated five percent permanent partial disability for the January 2002 C7 to T1 foraminotomy, though he added his opinion the surgery was not made necessary by an occupational injury.

Regarding the vocational effect of the work injury, the employer relies on the opinion of Jay Smith. He opines that the applicant would have a 55 to 65 percent loss of earning capacity based on Dr. Callahan's restrictions. Mr. Smith describes the restrictions as permitting light duty work lifting no more than 20 pounds on less than a full time basis. Exhibit 11, page 10. In his general discussion, he added that the applicant could occasionally carry 20 pounds and frequently lift 10 pounds, and could sit, stand, and walk as tolerated. Exhibit 11, page 5. Significantly, he did not mention Dr. Callahan's restriction permitting reclining at work when needed, nor did he mention that the doctor expressly stated he did not recommend the applicant return to work. Based on Dr. Monacci's opinion the condition was not work related, of course, Mr. Smith found no loss of earning capacity.

The applicant's expert, Jeanne Krizan, stated the applicant's restrictions as set by Dr. Callahan rendered him permanently totally disabled. She noted the applicant could not work an eight-hour day, had to alternate between sitting, standing and walking and lying down as needed. Exhibit C.

2. Discussion.

The ALJ credited Dr. Callahan's opinion and found the applicant permanently and totally disabled. The respondent appeals.

a. Causation

Regarding causation, the respondent makes essentially four main points: (1) that the ATV accident is a more likely source of the applicant's cervical problems in 2003, as he resumed treating only after that injury; (2) that Dr. Callahan did not have an accurate description of the applicant's job duties; (3) that Dr. Callahan seems unaware of the accident and certainly does not address it in his reports; and (4) that the applicant did not associate his complaints leading to the work exposure until November 2003 when he went back to Dr. Callahan (and even then, Dr. Callahan referred him to an attorney).

However, the applicant did have the new "right" arm problems as far back as 2001 as documented by medical notes, and testified to neck stiffness and intermittent right arm pain in 2002 as well. These incidents of the right arm problems (as opposed to the left arm problems treated surgically back in 2000) predate the May 2003 ATV accident. Further, the original ATV complaints in May 2003 were in the ribs in the left side and correlated with a chest contusion because the ATV landed on the applicant's chest. It was not until July 2003 -- with the applicant continuing to work all the while -- that the right side complaints required treatment, and then these were ultimately traced back to the neck -- like the 2001 and 2002 complaints -- not the ribs injured in the ATV accident. Indeed, on July 29, 2003, Mr. Howe described the applicant's problem as more in the thoracic back than the chest (where the left side contusion following the ATV incident had led to the doctor's visit in May 2003).

Finally, given the type of work the applicant did, the commission declines to credit Dr. Monacci's dismissal of the applicant's work as a material contributory causative factor in the progression of the cervical spondylolysis. If the increased stress from the C5-6 fusion caused the deterioration in the C7 and C8 levels, it is hard to see how bouncing around on rough terrain in heavy equipment like an excavator would be benign, especially when the neck movement is added in. Work exposure does not have to cause the underlying condition but only its progression, and does not have to be the sole cause in the progression but only a material contributory causative factor. White v. LIRC, 2000 WI App 244, ¶ 19-20, 239 Wis. 2d 505, 620 N.W.2d 422;  Universal Foundry Co. v. ILHR Department, 82 Wis. 2d 479, 487-88, note 3 (1978).

The commission also concludes that Dr. Callahan had an adequate understanding of the applicant's job duties. The duties are straightforward, and the respondent brought no witnesses to contradict the applicant's testimony. Nor is there any reason to suspect that the applicant did not relay them correctly to Dr. Callahan, who has treated the applicant for years. Nor does the commission question the applicant's credibility based on the fact the applicant did not immediately suspect occupational disease. A lay person may not immediately suspect the gradual or insidious role that work exposure plays in an injury, as distinct from an accident like falling off a piece of heavy equipment.

Accordingly, the commission affirms the ALJ's findings on causation, and adopts Dr. Callahan's medical opinion on causation.

b. Restrictions; extent of disability.

The commission also adopts Dr. Callahan's restrictions. Significantly, he originally let the applicant work without restriction after the first surgery. In the commission's view, this gives his restrictions after the second cervical procedure added weight. Further, the commission cannot credit Dr. Monacci's restrictions against overhead lifting alone after significant surgeries involving three cervical levels.

The next issue is the extent of disability. On this point, the commission notes that the applicant left school in the 12th grade, but has gotten a GED. His "total math skills" seem to put him at about 9th grade, his language skills about 5th grade. He would need to remediate his skills to pursue vocational retraining. He worked as a truck driver for several years before beginning heavy equipment operation in 1994. He was 44 at the time of July 2003 date of injury. He qualified for social security as of January 2004.

The applicant's claim for permanent total disability in this case, of course, raises the "odd-lot" doctrine. Under the "odd-lot" rule, when a worker makes a prima facie case that he or she has been injured in an industrial accident and, because of his or her injury, age, education, training and capacity, is unable to secure any continuing gainful employment, the burden of showing that the worker is in fact employable and that some jobs do exist for him or her shifts to the employer. Balczewski v. ILHR Department, 76 Wis. 2d 487, 495 (1977). The employer cannot satisfy this burden by simply showing the worker is capable of light duty work, and then adding a presumption that such work is available. Id.

The supreme court has recently reiterated its adherence to the odd-lot doctrine in Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29.  In Beecher, the court explained that the commission cannot require a worker to show evidence of a job search or efforts to find work as part of the prima facie case. Id., 273 Wis. 2d at 165-66, ¶44, 168, ¶48, 172-73, ¶¶ 57, 58. In its decision, the court also analogizes the odd-lot rule to the law of presumptions in civil cases, so that if a worker makes his or her prima facie case, a presumption that the worker is permanently totally disabled arises. Id., 273 Wis. 2d at 170-71, ¶¶ 53, 54. In rebutting the presumed fact of permanent total disability, the employer bears the burden of persuading the factfinder that the worker is in fact employable and that jobs do exist for him or her. Id., 273 Wis. 2d at 171-72, ¶ 55.

Because the commission credits Dr. Callahan's restrictions -- and the fact he recommended the applicant not go back to work -- the applicant clearly has made a prima facie case for permanent total disability. The restrictions, including the restrictions allowing lying at will and working less than full time, are certainly going to affect negatively the applicant's ability to secure work. Based on these facts, and Ms. Krizan's opinion, it is reasonable to conclude that due to his work injuries, age, education, training and capacity, the applicant is unable to secure continuing gainful employment.

Mr. Smith, of course, opined the applicant was not permanently and totally disabled on an odd-lot basis under Dr. Callahan's restrictions. Presumably, Mr. Smith's opinion may be considered by the commission to be "in contradiction of the basic facts of the employee's prima facie case" in order to prevent the presumption of permanent total disability on an odd-lot basis from arising. Beecher, at 273 Wis. 2d 170, ¶ 54. However, since Mr. Smith did not persuasively address certain significant restrictions set by Dr. Callahan -- including the ability to lie or recline at work as needed -- or the doctor's recommendation the applicant not return to work -- the commission cannot conclude that Mr. Smith's opinion prevents the prima facie case from been made and the presumption of permanent total disability from arising. For the same reason, Mr. Smith's report does not rebut the prima facie case by disproving the presumed fact of permanent total disability. While Mr. Smith identifies the types of work that he believes may be performed within the applicant's restrictions (though not actual jobs available to him), the commission concludes that types of work identified by Mr. Smith do not account for the restriction permitting reclining as needed or Dr. Callahan's recommendation the applicant not return to work.

DAVID B. FALSTAD, Commissioner, (dissenting):

I cannot agree with the majority's decision in this case.

Unlike the majority, I believe the applicant's May 2003 ATV accident raises legitimate doubt in this case. The applicant's description of the ATV accident establishes that the vehicle flipped over with its weight landing on his chest. The applicant's neck and arm symptoms were comparatively minor before the ATV accident, but progressed to the point of requiring surgery after the ATV accident. Dr. Monacci credibly opined that the applicant would not likely have engaged in four wheeling activity in May 2003 had his condition at that point been significantly symptomatic. Regarding the ATV accident itself, he added:

He sustained what appeared to be a significant trauma which left him with upper thoracic pain which, in my opinion, more likely had a causal relationship than the work activity as heavy equipment operator.

Exhibit 3, report of Monacci, page 10. Of course, the ATV accident as an intervening event that affected the applicant's condition following the August 2000 work injury would be governed by Lange v. LIRC, 215 Wis. 2d 558 (Ct. App. 1997). However, I cannot conclude the applicant's work exposure after he recovered from the August 2000 work injury was a material contributory causative factor in the progression of the applicant's disabling condition under the facts of this case.

For these reasons, I respectfully dissent.

_________________________________________________
David B. Falstad, Commissioner

cc:
Attorney Thomas A. Siedow
Attorney James W. Goonan

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