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

ORVILLE LUNDERVILLE, Applicant

NELSON INDUSTRIES INC, Employer

SENTRY INSURANCE, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96013017

An administrative law judge for the Department of Workforce Development Workers Compensation Division issued her findings of fact and interlocutory order in this case on April 15, 1997, following a hearing on March 20, 1997. The employer and the insurer (collectively, the respondent) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondent conceded jurisdictional facts, and an average weekly wage of $568.13.

The first issue is whether the alleged injury arose out of the applicant's employment with the employer. If a compensable injury is established, the issues also include the nature and extent of disability, and liability for medical expenses.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby sets aside her findings of fact and interlocutory order and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was born in 1940. He is five foot seven and one-half inches tall, and weighs 130 pounds. He has worked for the employer as a press operator since 1977.

In 1957, the applicant was diagnosed with polio. He told his vocational expert and treating doctor that his right side and right leg were "weak" as a result of polio. The applicant treated at the UW Hospital, and was told surgery for his polio condition was not indicated.

The applicant also has scoliosis and a long-term history of back pain. He rated back pain at 2 or 3 on a scale to ten even before beginning work for the employer in 1977. The applicant told independent medical examiner James Huffer, M.D., that he experienced knifing back pain with activities such as running all his adult life, and slowly progressing back pain since 1991. Indeed, the notes of the applicant's treating doctor trace the pain back to the diagnosis of polio in the applicant's teenage years.

In order to do the applicant's job for the employer, a press operator must first determine which die he needs, remove the die from a rack, put the die in a cart, push the cart to the press machine, slide the die into place on the press machine, and run parts. Sometimes the dies would have to be pounded apart before setting up the machine. The job also involved bending and twisting to remove parts from the machine, and moving carts loaded with parts across the floor. During most of the applicant's employment, the plant where he worked had rough floors, making it difficult to push the carts. (1)

The applicant testified that the dies weighed anywhere from 30 pounds to 175 pounds, and that the average die weighed 75 pounds. The applicant's testimony is that he would deal with dies weighing 50 pounds or less by himself; if a die weighed more than fifty pounds he would get assistance. He estimated he asked for help about 20 percent of the time. Another press operator testified that she asked for help when a die weighed fifty pounds or more. On average, dies were changed 3 or 4 times per night.

At the hearing, the applicant testified he injured his back pulling dies off a machine in 1988. He also sustained a work injury in 1991 when he crushed his fingertips. The first time he sought treatment on his current claim of disability from occupational injury to his back was October 6, 1994.

On that date, the applicant saw Jeff Polzin, M.D., complaining of

"a many, many year history of low back pain that has gradually been getting worse. It dates back to his teenage years when he was 15. He had polio at that time. Does not remember the details. Knew his right side was weak especially the leg, to a lesser extent the arm. He does not know if his scoliosis existed before the polio or not."

Dr. Polzin went on to describe the applicant's duties as lifting and pulling dies, some of them weighing up to 200 pounds, most around 100 pounds. The applicant told Dr. Polzin the pushing and pulling made his back worse, and that his condition did not necessarily improve with time off on the weekends.

On physical examination, the doctor noted a marked scoliotic curve with convexity in the thoracic area to the right and in the lumbar area to the left. X-rays revealed a dramatic scoliotic curve present, but well preserved disc spaces in the lumbar area. The applicant experienced pain from the T10 level of the spine all the way down to L5. The doctor diagnosed chronic severe low back pain, kyposcoliosis since teenage years, and a history of polio with some atrophy of the right leg and probably contributing to the scoliosis. The doctor recommended ibuprofen, possibly an injection of a nonsteroidal anti-inflammatory, and a possible brace. The doctor also prescribed physical therapy and took the applicant off work.

The applicant saw Dr. Polzin again on October 27, 1994. Dr. Polzin ordered continued physical therapy, and kept the applicant off work. He also set up an appointment with Charles Ihle, M.D., to determine if surgery was a viable option. The applicant saw Dr. Ihle on November 17, 1994. Dr. Ihle thought it would be reasonable to refer the applicant to a spine center such as the Spine Center in Minneapolis or at the UW-Hospitals. The applicant was not interested in pursuing a referral at the time, however.

The applicant returned to work on November 21, 1994. He evidently was put on light duty painting. In January 1995, after working some overtime, his back began bothering him more, so Dr. Polzin restricted him from overtime work. On February 10, 1995, the doctor noted increasing lower thoracic and upper lumbar back strain. He also noted the applicant could recall no specific injury, but did feel that some of his heavier lifting might cause radiation of pain into the leg. The applicant told Dr. Polzin that he had help lifting the heavier dies, but estimated his share might be 75 to 80 pounds on rare occasions. The doctor continued to prescribe ibuprofen and physical therapy.

On February 27, 1995, Dr. Polzin released the applicant to work five days a week, ten hours per day, with a fifty pound lifting limit, then on an infrequent basis. The employer informed the doctor it could accommodate this.

Dr. Polzin also arranged a referral to Dr. Pinto of Twin City Spine Surgeons. Dr. Pinto saw the applicant on April 7, 1995. A colleague of Dr. Pinto noted complaints of progressively increasing back pain, and increased symptoms with lifting and bending. The doctor's impression was post-polio scoliosis and back pain. Neither Dr. Pinto nor his colleague recommended surgery, as the applicant's symptoms were "mild" or "not bad enough."

The applicant was doing fairly well at work, at least by Dr. Polzin's account, in June 1995. By September 1995, though, the pain was worse and the applicant was complaining of pain in his left hip and buttock, with pain and paresthesia or tingling in his left foot. Dr. Polzin recommended further referrals with Drs. Ihle and Pinto.

On September 28, 1995, Dr. Polzin noted perhaps some improvement in the radicular symptoms in the applicant's left foot. Dr. Ihle re-examined the applicant and also noted the improvement in the radicular symptoms. Dr. Ihle agreed that the most reasonable course appeared to be the conservative, nonsurgical course outlined by Dr. Polzin. In November 1995, Dr. Pinto agreed, opining that surgery should be reserved for more severe pain if his condition progressed. He also opined the applicant was a good candidate for social security.

Later that same month, Dr. Polzin read Dr. Pinto's note to mean that the applicant should not be doing manual labor with any regular lifting, as required in his regular job. Assessing chronic low back pain with intermittent radicular symptoms and decreased reflexes in the left leg, Dr. Polzin declared the applicant totally disabled for the next six months.

The applicant had attempted to return to work part-time in October 1995, but could not continue due to pain. He later received a favorable social security award, finding him disabled as of November 17, 1995. The applicant continues to experience pain, though it has decreased somewhat since he has stopped working. His pain is aggravated by pushing, pulling and bending, and he cannot sit for long periods of time.

The file contains two documents serving as expert medical opinion.

Dr. Polzin prepared a practitioner's report on form WC-16B (Exhibit E), on behalf of the applicant. The doctor described the work exposure to which the applicant ascribed his disability as:

"Patient has worked for past 19 years at [the employer]. He works lifting and pulling dies which he estimates on rare occasions weigh as much as 200 lbs., most around 100 lbs. or close to that. He has noted that pushing and pulling activities have worsened low back pain which had been present for many years and gradually getting worse at the time he consulted me in October 1994."

In the description of the disability or diagnosis, Dr. Polzin wrote:

"Patient ... was diagnosed with scoliosis at age 15 which was felt to be caused by or at least aggravated by his polio. Patient had chronic low back pain dating back many years in part due to his scoliosis. In 9/95 patient developed radiation of pain down his left leg with paresthesias and decreased reflex in the ankle on that side. It was felt this was due to degenerative disc disease, probably involving left L5 nerve root, aggravated by his scoliosis, aging, and years of heavy lifting."

The doctor marked the "occupational disease" causation box, noting he "[felt] patient's many years of work place lifting has contributed a more rapid progression of scoliosis deformity and degenerative disc changes than might have been expected without that workplace exposure." The doctor opined the applicant had permanent disability, half of which was caused by the normal progression of his polio and scoliosis, and half of which was caused by work. Overall, Dr. Polzin rated a five percent permanent partial disability. He thought the applicant might possibly be capable of limited sedentary work, but could not return to his old job. Exhibit E.

The applicant was also examined by James Huffer, M.D. Dr. Huffer's opinion is that the applicant did not sustain any disability caused by work, that at most work caused a manifestation of symptoms from a pre-existing condition. He specifically found that there was no traumatic injury. He acknowledged the applicant's work did require some heavy lifting, bending and twisting, but opined that the applicant's back condition was not the result of occupational disease or exposure from heavy lifting. More likely, he suggested, the applicant's decreased tolerance from the polio and scoliosis conditions caused the applicant to begin to experience pain with heavy lifting, twisting and bending as part of the body's warning system; heavy lifting in and of itself did not cause the change in the condition or the decreased tolerance. In other words, the doctor opined the applicant's complaints of pain were the manifestation of symptoms of the applicant's decreased tolerance of bending, twisting and lifting activities from the normal progression of the applicant's severe long-standing progressive spinal pathology.

Dr. Huffer stated the applicant would be subject to "restrictions that would relate to bending, twisting, and lifting activities." He opined that any restrictions would not be related to any work injury.

The first issue is causation, or whether the applicant sustained an injury from an accident or disease arising out of employment. On the one hand, read literally Dr. Polzin's practitioner's report states that the applicant's disability was caused by lifting and pushing dies at work weighing 100 pounds, and up to 200 pounds on some occasions. In this respect Dr. Polzin's description of the applicant's work duties in the practitioner's report is virtually identical to that in his October 6, 1994 treatment note. It is also materially at odds with the applicant's testimony that he requested help to lift dies weighing over 50 pounds and that the average die weighed 75 pounds.

True, Dr. Polzin's note for February 10, 1995 reports that the applicant asked for help to lift the heaviest dies, and that his share of the load was at most 75-80 pounds on rare occasions. This is not inconsistent with the hearing testimony about what the applicant's job required, if the commission assumes that the applicant and a coworker occasionally lifted a 150 or 175 pound die together.

However, the fact remains that Dr. Polizin's practitioner's report says what it says. The commission would have to speculate to conclude that Dr. Polzin's opinion was based on the more accurate account of the applicant's duties in the notes from February 10, rather than on the history given in the practitioner's report itself. Further, the doctor's conclusion that "years of heavy lifting" contributed to the applicant's condition better matches a history that the applicant regularly lifted up to one hundred pounds and occasionally even more, than the accurate history that the applicant never lifted more than fifty pounds alone and that his part of a shared lift only occasionally exceeded fifty pounds.

The underlying rationale for rejecting medical opinions based on an inaccurate history comes from the Pressed Steel line of cases. In Pressed Steel Tank Co. v. Industrial Commission, 255 Wis. 333, 335 (1948) and Theisen v. Industrial Commission, 8 Wis. 2d 144, 153 (1959), the supreme court held that opinions based on assumed facts that are not proven must be disregarded. (2) In both of those cases, the employers offered competent medical testimony to the effect that the actual facts would have led to a different conclusion; in other words, that the misapprehension of the facts was material. See, for example, Jack L. Math v. Stoughton Trailers, WC case no. 94005583 (LIRC, June 28, 1996), aff'd sub nom. Stoughton Trailers v. LIRC and Math, case no. 96CV001720 (Wis. Cir. Ct., April 30, 1997). Given that Dr. Polzin himself referred to heavy lifting, and only heavy lifting, as the occupational exposure which caused the applicant's disability, the commission must conclude that the amount of weight lifted is a material fact.

At the very least, Dr. Polzin's apparent misapprehension of the weight the applicant lifted creates a legitimate doubt about causation in the minds of the commission, and renders his opinion relatively less credible than that of Dr. Huffer. On this basis, the commission adopts the opinion of Dr. Huffer that the applicant's problems are a simple manifestation of a pre-existing condition. Consequently, a compensable injury has not been established. Lewellyn v. ILHR Department, 38 Wis. 2d 43, 59 (1968).

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.
ND § 8.24

Dated and mailed September 30, 1997

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge found the applicant to be a credible witness. The commission does not dispute this in this in any respect. Nor does the commission question the applicant's testimony or believe he misrepresented his condition to Dr. Polzin. Rather, the commission reverses the ALJ's decision because the facts assumed by Dr. Polzin in reaching his conclusion were not accurate.

cc:
ATTORNEY PETER T WALTZ
ATTORNEY RONALD M FITZPATRICK
FITZPATRICK SMYTH DUNN & FITZPATRICK

ATTORNEY DANIEL J STANGLE
OTJEN VAN ERT STANGLE LIEB & WEIR SC

Appealed to Circuit Court. Affirmed May 20, 1998.

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Footnotes:

(1)( Back ) Dr. Polzin's notes indicate the move to a new building with smooth floors occurred in November 1994.

(2)( Back ) See also Franckowiak v. Industrial Commission, 12 Wis. 2d 85 (1961).