P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 2004-019444

Home Depot USA, Inc. and Illinois National Insurance Company (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on August 8, 2007. Briefs were submitted by the parties. At issue are whether or not the applicant sustained an injury arising out of and in the course of his employment with Home Depot on or about May 13, 2004, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:


The applicant, whose birth date is January 27, 1951, began his employment as a tool rental technician for the employer in July of 2000. On May 13, 2004, he felt and heard a "pop" in his low back while he was helping a customer lift a 10-foot-long, 150-pound brake device off the shelf. He was able to finish helping the customer load the device into a truck, but shortly thereafter reported to his supervisor with low back pain. The employer sent him to Concentra Medical Center where a low back strain was diagnosed and conservative treatment begun, including physical therapy and medications. A lumbar MRI was ordered on May 28, 2004, and read by the radiologist as showing multi-level disc bulging and degenerative facet changes, with "suggestion of subtle central protrusion" at L4-5.

The applicant was referred to Dr. David Bryce at Meriter Hospital Pain Management Center on June 21, 2004, and Dr. Bryce noted the applicant complained of severe low back pain associated with numbness and weakness in the posterior left leg. Dr. Bryce diagnosed left lumbar radiculopathy, multi-level degenerative lumbar disc disease, probable foraminal narrowing at L3 thru L5, and work-related exacerbation of preexisting degenerative disc disease. Dr. Bryce performed a series of epidural injections. A lumbar CT scan was performed on October 8, 2004, and the radiologist read it as showing degenerative disc disease with broadly bulging discs at L3-4 and L5-S1, with no evidence of a pars defect.

The applicant came under the treatment of Dr. Cynthia Bender, who diagnosed multi-level degenerative disc disease with chronic pain and prescribed OxyContin. Dr. Bender took the applicant off OxyContin in July of 2005, after the applicant's urine tested positive for cocaine, but the applicant denies that he was using cocaine. Then on September 19, 2005, the applicant saw Dr. Mark Moore, an occupational medicine specialist. Dr. Moore diagnosed multi-level lumbar disc disease and indicated he did not believe the applicant was a surgical candidate.

The applicant began treating with Dr. Richard Day on October 20, 2005. Dr. Day noted there was no point tenderness in the applicant's back, and that there was positive straight leg raising to about 45 degrees bilaterally, but that the applicant was able to sit on the examining table with his legs fully outstretched. Dr. Day diagnosed chronic pain syndrome and prescribed OxyContin subject to urine testing. Dr. Day ordered a functional capacity evaluation that was performed on March 7, 2006, and in very detailed findings, the physical therapist who administered the evaluation indicated the applicant could perform sedentary/light work for four hours per day. The therapist also indicated the applicant passed 20 of 23 validity tests indicating a good effort and valid results for the evaluation. Dr. Day allowed the applicant to return to restricted work four hours per day, three days per week, and the employer has accommodated those restrictions.

Dr. Day completed three WKC-16-B's. The first is dated March 15, 2006, and indicates direct work causation for a lumbar sprain. Permanent disability is listed as "unknown." The second WKC-16-B is dated July 7, 2006, and refers to Dr. Day's clinic notes for a diagnosis. His clinic notes diagnose "chronic pain syndrome" and "back pain." The direct work causation box is checked and 10 percent permanent partial disability is assessed. The third WKC-16-B is dated April 4, 2007, and it diagnoses persistent lumbar pain, but Dr. Day checked the "no" box for each of the three causation questions.

At respondents' request, Dr. Thomas O'Brien examined the applicant on January 20, 2007, and submitted a report dated January 31, 2007. Dr. O'Brien diagnosed age-related, multi-level degenerative disc disease unrelated to the applicant's work. He opined that the symptoms the applicant experienced beginning on May 13, 2004, constituted a manifestation of this longstanding, preexisting degenerative condition completely unrelated to the work incident, and to be expected of a middle-aged male smoker. Dr. O'Brien indicated there was no work injury and therefore no applicable healing period, but that the applicant's symptoms had remained "static" from November 13, 2004, forward. He assessed no permanent disability and no specific work restrictions, except to indicate that the applicant should reduce his level of activity when he experienced pain symptoms.

The applicant's vocational expert, Timothy Greenya, assessed a 70 to 80 percent loss of earning capacity based on the continuing, part-time employment with the employer. However, Greenya opined that without the work the employer had continued to provide the applicant a stable labor market did not exist for him, and on that basis he should be considered permanently and totally disabled.

Respondents' vocational expert, Michael Albers, opined that accepting a work injury and Dr. Day's restrictions, the applicant has sustained a 70-75 percent loss of earning capacity. Of course, Albers indicates that accepting Dr. O'Brien's opinion would result in no loss of earning capacity.

The commission finds that the applicant did injure his low back in the work-related lifting incident that occurred at Home Depot on May 13, 2004. There is no dispute that the applicant had preexisting degenerative disc disease, but neither is it disputed that he had no history of medical treatment for that preexisting condition prior to May 13, 2004. Dr. O'Brien opined that the sudden and dramatic onset of low back symptoms coincident with the work incident was unrelated to that incident, and was merely a manifestation of the applicant's preexisting degenerative disc disease. This opinion is incredible. The applicant was lifting a heavy piece of equipment when he felt and heard a "pop" in his back, and thereafter his low back symptoms worsened and persisted. Dr. Bryce's opinion that this work incident "exacerbated" the applicant's previously "completely asymptomatic" degenerative disc disease is consistent with the applicant's medical history and is credible. Dr. Bryce did not use the "magic words" in describing the effect of the work incident on the applicant's preexisting degenerative disc disease.(1) However, it is inferred from his description of the medical consequences of the work incident that he considered it to have precipitated, aggravated, and accelerated the applicant's preexisting degenerative disc disease beyond normal progression.

Dr. Day's opinion concerning causation is unusable due to the evident failure of the applicant and his attorney to adequately inform that physician of the circumstances of the work incident. However, in his WKC-16-B dated April 4, 2007, Dr. Day did credibly opine that the applicant is permanently restricted to sedentary work as a result of his low back condition. Dr. Bryce credibly attributed this low back condition to the work incident. The commission interprets Dr. Day's restriction to encompass full-time, sedentary work.

Dr. Day assessed 10 percent permanent functional disability. Dr. O'Brien assessed no permanency, and curiously indicated that the applicant will experience ongoing symptoms that will "hurt" but not cause harm or injury. The results of the functional capacity evaluation performed on March 7, 2006, together with consideration of both Dr. Day's and Dr. O'Brien's opinions regarding permanency, lead the commission to find that the applicant's work injury resulted in 3 percent permanent functional disability.

The applicant received ongoing treatment from his physicians subsequent to the work injury. On October 20, 2005, Dr. Day indicated that the applicant continued to be in distress, but that the pain clinic had nothing more to offer him, and that he was not a surgical candidate. Dr. Day agreed to a modest dose of OxyContin to see if that would be helpful, and also prescribed an antidepressant (Trazodone). Dr. Day indicated he would reassess the applicant in two weeks. The next statement from Dr. Day found in the record is a letter that he wrote to the applicant's attorney on January 13, 2006. In it Dr. Day wrote that he had spent the previous two months trying to come up with an optimal therapeutic regimen for the applicant, and he believed this had been achieved. He opined that the applicant had reached a healing plateau and was ready to be evaluated for permanency. No physician for the respondents examined or evaluated the applicant until Dr. O'Brien's examination on January 20, 2007. Accordingly, Dr. Day's assessment of the applicant's healing plateau as having occurred on January 13, 2006, is accepted. Additional compensation paid for temporary disability subsequent to January 13, 2006, was overpaid.

The administrative law judge found that the respondents had paid various periods of temporary total disability and temporary partial disability through November 29, 2005, totaling $26,775.62. However, the latest WKC-13-E in the department file indicates temporary disability was paid through July 16, 2006, in the total amount of $37,700.07. The same WKC-13-E indicates $8,143.10 in permanent partial disability was paid, and 3 percent permanent partial disability would total $6,920.00 (30 weeks at $232.00 per week).

Assuming the WKC-13-E figures are correct, respondents have to date substantially overpaid compensation, and would be entitled to a credit in the overpayment amount against any future compensation. Neither of the vocational experts assessed loss of earning capacity based on a full-time, sedentary work restriction. Therefore, the matter will be left interlocutory with respect to the issue of loss of earning capacity, subject to additional opinions from the vocational experts based on a full-time, sedentary work restriction.

There were no outstanding medical expense claims as of the date of hearing. Accordingly, no additional compensation is due from the respondents at this time, and an overpayment amount to be offset against any future compensation remains available to the respondents. Since no additional compensation is due at this point, this order is not appealable. The matter must be remanded to the department for resolution of the claim for loss of earning capacity, and resolution of the credit due for respondents' overpayment of compensation. This order will be final with respect to the issues of causation, date of healing plateau, and extent of permanent functional disability. It will remain interlocutory with respect to all other issues.



The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. The matter is remanded to the department for additional findings and new decision consistent with the above findings.

Dated and mailed April 28, 2008
killeri . wpr : 185 : 8 ND § 8.24

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The commission's partial reversal of the administrative law judge's decision was based on analysis of the medical records submitted as hearing exhibits, and on department files concerning compensation previously paid. The commission had no disagreements with the administrative law judge regarding the credibility of the hearing witnesses.


Attorney Dan D. Gartzke
Attorney Douglas M. Feldman

Appealed to Circuit Court.

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(1)( Back ) The court stated in Lewellyn v. ILHR, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968):

 "If the employee is engaged in normal exertive activity but there is no definite 'breakage' or demonstrable physical change occurring at that time but only a manifestation of a definitely preexisting condition of a progressively deteriorating nature, recovery should be denied even if the manifestation or symptomization of the condition became apparent during normal employment activity."

 The commission and the courts look to the substance of a medical report or opinion, rather than to the precise wording, when determining whether or not the physician has described work-related causation. Unruh v. Industrial Commission, 8 Wis. 2d 394, 402, 99 N.W.2d 182 (1959); Johnson Welding & Manufacturing Co. v. LIRC, et al, No. 94-CV-704 (Wis. Cir.Ct. Eau Claire County July 3, 1995); Harnischfeger v. LIRC, et al, No. 95-0212 (Unpublished Wis. Ct. App. August 8, 1995); Anderson v. LIRC and Quad Graphics, No. 95-1023-FT (Unpublished Wis. Ct. App. November 7, 1995); and George A. Nohelty v. County of Waukesha, WC Claim No. 2000-005782 (LIRC June 18, 2002).


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