STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARY H GEORGE, Applicant

WISCONSIN CHEESEMAN, Employer

LIBERTY MUTUAL INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 95060740

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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, except as for the following amendments:

1. Delete the material beginning with the last sentence of the third paragraph of, and ending with the sixth sentence of the seventh paragraph of, the ALJ's Findings of Fact and Conclusions of Law, and substitute:

"Because the respondent is bound by its admission that the accidental event alleged by the applicant occurred, only a brief recital of the events of October 18, 1995 is necessary. At about 3:00 p.m., on that date, the applicant was struck by a pallet jack and pallet full of bakery products which had been pushed toward her by a coworker. She was forced backwards against a table with a scale on it, and force was applied against her right shoulder, neck and head. The applicant finished out her shift which ended at 4:30 p.m. She had pain in her right shoulder blade up to the top of her head."

2. Delete the material beginning with the thirteenth sentence of the seventh paragraph of, and ending with the end of the ninth paragraph of, the ALJ's Findings of Fact and Conclusions of Law, and insert the following material:

"Specifically, Dr. Orwin performed an arthroscopic debridement and decompression procedure on the rotator cuff of the applicant's right shoulder following several months of conservative treatment. Dr. Orwin opined that the applicant's shoulder problems were related to the work injury. Exhibit H, note of Orwin dated October 23, 1996. It would of course, be reasonable to conclude that the applicant was still in a healing period from the October 1996 arthroscopic shoulder surgery as of the date of the November 1996 hearing. (1)

"Dr. Orwin's opinion on causation is supported by his observation, during arthroscopic surgery on the shoulder, of fraying, irritation, bursitis, and bursal fraying of the rotator cuff were noted. Moreover, in January 1996, well prior to the surgery and only a few months after the work accident, Dr. Orwin had noted complaints of tenderness in the `biceps impingement zone' and the acromioclavicular joint. At the same time he also noted a restricted range of motion in flexion and abduction of the right shoulder. Exhibit A.

"Also prior to her surgery, the applicant also had been treated by C. Christine Cox, M.D. (Exhibits C, D, and E). On March 5, 1996, Dr. Cox stated:

`She comes back having had an independent medical examination. Apparently the IME could not find any causal cause [sic] for her upper back symptoms and suggested to the applicant it was all related to her lower back . . .

`I really do not feel that her upper extremity pain is at all related to her chronic low back pain . . .

`I have reassured her that her most injury is all related to her lower back pain.'

"Cox note of March 5, 1996, exhibit D, page 9.

"The independent medical examiner, David S. Haskell, M.D., flatly opined that there is no evidence the applicant sustained any injury at work. He did note an incident where another worker pushed a cart of cookies which bumped the applicant, pushing her backward, and causing an onset of neck and shoulder pain. However, he also noted normal ranges of motion in the right shoulder and cervical spine, and no objective signs or tests showing problems in those areas, other than the EMG showing a mild polyneuropathy. (2)

"Dr. Haskell rendered his opinion on February 1, 1996, well before the rotator cuff surgery was performed by Dr. Orwin. Consequently, he did not address Dr. Orwin's surgical findings. The treating surgeon, Dr. Orwin, had more familiarity with the applicant's case, and specifically had the benefit of his observations of the applicant's shoulder during arthroscopic surgery. In addition, his opinion better accounts for the November 1995 EMG test showing polyneuropathy. In short, the record better supports Dr. Orwin's opinion that the applicant actually had tenderness and restricted motion in her shoulder than Dr. Haskell's contrary opinion that the applicant had no injury or disability other than a nonwork-related lower back condition. Consequently, Dr. Orwin's opinion that the work incident or accident on October 18, 1995 caused the applicant's disability leading to her right shoulder surgery is more credible than Dr. Haskell's contrary opinion."

ORDER

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed July 2, 1997
georgma.wsd : 101 : 5  ND § 8.8

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

This case poses two related questions: Did the accidental event alleged by the applicant occur and, if so, did it cause disability? Both of these questions fit under the analytic umbrella of whether the applicant has established that she was injured while performing services growing out of and incidental to her employment with the employer and that that accident or disease causing the injury arose out her employment with the employer. Wisconsin Statutes § 102.03 (1)(a), (c) and (e).

The ALJ resolved both issues in favor of the applicant. With respect to the question of whether the alleged accidental event occurred, he found that the employer admitted an accidental event at work in its answer, and failed to make a timely amendment to its answer to retract that admission. With respect to the second question, he found the admitted work accident caused an injury, and awarded temporary total disability for that injury to the date of the hearing.

a. The factual defense: (did the accidental event occur?)

The applicant alleges she was injured in an accidental event at work on October 18, 1995, when a coworker, Lehman, pushed a pallet jack with a loaded pallet into her, forcing her to fall backward on to a table with a scale on it. She contends her buttocks struck the table, while her shoulder neck and head hit the scale.

Lehman testified that when he pushed the pallet jack that blocked the aisle he did not actually move the loaded pallet. This is because the pallet jack was just lying loose under the stack; it was not a jacked-up pallet ready to roll. He specifically denied striking the applicant with a loaded pallet or pallets, or that the applicant informed him she had been so struck.

Although the ALJ allowed Lehman's testimony, he concluded that the employer was attempting to amend its answer at the hearing to withdraw its admission that the work accident had actually happened. The ALJ went on to conclude that the attempted answer was untimely under Wis. Admin. Code § 80.08. Accordingly, he held the employer to its admission that the work accident had actually occurred as alleged.

The commission agrees with the ALJ's analysis. In its April 14, 1996 answer submitted on form WKC-19, the respondent marked the boxes admitting (i) that accident or occupational exposure alleged in the application actually occurred on or about the time alleged; (ii) that at the time of the alleged injury the employe was performing services growing out of employment and (iii) that the accident or disease causing injury arose out of the alleged employment. However, at the bottom of the form answer, the respondent added the following language:

"Respondent through insurance carrier denies injury arose out of employment per report of Dr. Haskell dated February 1, 1996. Payments made by mistake of fact."

The only reasonable interpretation of the respondent's answer is that the employer meant to admit the accident happened but to dispute that it caused any disability. This is consistent with the reference to the independent medical examiner, a medical doctor who would give an opinion on whether the accident caused an injury, rather than an opinion as to whether an accident he could not have observed first-hand really happened. Indeed, Dr. Haskell himself assumed the accident happened as alleged for the purposes of his report.

Thus, the commission must conclude the respondent is bound by its answer. If respondent wished to retract the admission that the accident happened, it had to do so before the notice of hearing was sent. Wisconsin Administrative Code § 80.08. It did not. (3)   The ALJ correctly concluded that the work accident occurred as alleged and admitted.

It is true that because the ALJ allowed the respondent to put on its case on the "surprise" defense that the work accident did not occur as alleged, the commission has almost a complete record. It is also true that the applicant refused the opportunity for further hearing to present evidence to rebut the respondent's surprise defense. But by this point, the ALJ had already concluded he would find in the applicant's favor on this issue, so it is hardly surprising she did not request further hearing. Transcript, pages 91 and 106-107. Whether viewed as an act of the ALJ's discretion in controlling his calendar, or as legally required ruling, the commission concludes the ALJ's decisions not to permit the respondent to amend its answer, and not to order further hearing, were correct.

b. The "medical defense" (did the accident cause injury or disability?)

This leaves the question of which medical expert to credit on the issue of causation; that is, did the accident cause an injury or disability? For the reasons set out in the material added to the ALJ's decision by amendment, the commission agrees with the ALJ's conclusion that the work incident caused an injury, and that the applicant was entitled to temporary disability for that injury through the date of the hearing.

cc: ATTORNEY HELEN L SCHOTT
STAFFORD & NEAL SC

ATTORNEY PATRICK M COOPER
LAW OFFICE OF JEFFREY T O'CONNOR

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Footnotes:

(1)( Back ) Early in the course of treatment, Dr. Orwin had estimated an end of healing of approximately June 1, 1996 (exhibit A.) However, as notes of the applicant's subsequent treatment with Dr. Orwin establish (Exhibit F), the applicant in fact never reached prior to her surgery and indeed was still "submitting to treatment" up to the date of hearing.

(2)( Back ) This test was ordered by Dr. Graebner in November 1995, not January 1995 as IME Haskell indicates.

(3)( Back ) Filing an answer is not a pro forma act. Failure to file answer is grounds for a default order, and the commission and the department have frequently issued such orders in the past. Because the purpose of the answer is to put the department and the applicant on notice as to what issues are in dispute, it is not unreasonable to bind the insurer to responses made in its answer. Neal & Danas, Workers Compensation Handbook, sec. 8.7 (3d ed. 1990).