Wis.LIRC WC Decision: Sibilski, Scott - March 11, 2019 - LIRC ND6 3.32; 3.43 – 2017-010879 – Applicant worked 17 years as a mason, but in 2008 switched to laying tile. History of back trouble and opioid medication abuse. He was laid off from the current employer without having claimed a work injury, but 3 days after layoff went to a physician for back complaints. His claim for a work-related back injury is denied because he misstated his work duties to the physician who opined that it was an occupational injury, and respondents' physician credibly opined that he merely had degenerative disc disease.

State of Wisconsin

Labor and Industry Review Commission


Scott Sibilski	Worker’s Compensation Decision[1]
Applicant	Worker’s Compensation Decision[1]

Cleveland Marble Co.
Employer	Dated and Mailed:

Zurich Ins. Co.
Insurer	March 11, 2019

Claim No. 2017-010879

Order

The commission reverses the decision of the administrative law judge. Accordingly, the application for benefits is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson

	/s/
	David B. Falstad, Commissioner

Procedural Posture

In May of 2017, the applicant filed a hearing application seeking compensation for an occupational injury to his back with a date of injury of January 18, 2017. An administrative law judge for the Department of Administration, Division of Hearings and Appeals, Office of Worker’s Compensation Hearings, heard the matter on February 6, 2018, and issued a decision on April 16, 2018, allowing benefits. The employer and its insurer (collectively, the respondent) filed a timely petition for review.

Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $1,183.20. At issue is whether the applicant sustained a work-related occupational injury, and if so, the nature and extent of any disability, and the respondent’s liability for medical expenses.

The commission has considered the petition and the positions of the parties and has independently reviewed the evidence. Based on its review, the commission reverses the decision of the administrative law judge and makes the following:

Findings of Fact and Conclusions of Law

The applicant, who was born in 1974, worked as a mason for approximately 17 years doing stone masonry, marble, tile, and tile setting.[2] After an L4-5 microdiscectomy in 2008, he switched over to doing tile.[3] In 2016, he was hired through a union hall to work as a tile setter for the respondent on a job in Milwaukee. He worked on the job approximately three months before he alleges he sustained a work-related occupational back injury.

The applicant has pre-existing back problems and an extensive medical treatment history. An MRI of the applicant’s lumbar spine in 2008 indicated a normal L2-3, but a disc bulge at L3-4.[4] The applicant reported chronic low back pain over 2011 and 2012.[5] On August 3, 2012, the progress notes of Dr. Amar Ambardekar, D.O., noted that the applicant reported that his right low back hurts in the bottom and right thigh and down the legs; the applicant was still doing the tile work and he was getting progressively worse.[6] The applicant received Percocet for pain. A medical note dated April 2, 2012, identified the applicant’s lower right back as the pain location; a medical noted dated May 10, 2014, identified the applicant’s lower left back as the pain location.[7] In 2013, Dr. Ambardekar noted that the applicant had violated his pain agreement by getting Percocet and tramadol from other doctors and thought the applicant had an addiction to oxycodone.

The applicant treated for chronic severe low back pain with Dr. Ambardekar in 2014.[8] Dr. Ambardekar noted that the applicant had also been dismissed from another pain management clinic because he did not bring his pills in for a count.[9] Though Dr. Ambardekar was concerned about the applicant’s opioid use, he continued to prescribe tramadol and fentanyl patches. The applicant had chiropractic care and felt better except for continual numbness in his leg.[10] An MRI of the applicant’s lumbar spine done in 2014 showed a large left paracentral L4-5 disc herniation with recurrent free fragment. The doctor discussed a revision microdiscectomy, but the applicant decided to maximize chiropractic care and try an epidural injection.[11] The MRI also showed a "new small right paracentral disc protrusion," "new mild central canal stenosis," and "new mild right foraminal stenosis" at L2-3.[12] A medical note from December 8, 2014, notes that the applicant has a history of chronic low back pain going back to 2001.[13]

A medical note on April 14, 2015, indicated, "Since the last exam here, he has received 3 additional prescriptions from tramadol from Dr. Spencer, Dr. McFarland, and Dr. Hale. His narcotic pain contract will be terminated today and he will no longer be a candidate for narcotic medications from this clinic."[14] On April 28, 2015, Dr. Ambardekar noted that the applicant continued to misuse opiates and that he was a very high risk for abuse; he told the applicant that he would not fill a prescription for fentanyl patches and the applicant should try nonopioid methods of pain control.[15] An MRI dated June 8, 2015, also noted moderately advanced multilevel degenerative disc and facet disease throughout the applicant’s thoracic spine.[16]

The applicant was hired by the respondent in early October of 2016 as a marble setter/finisher for a job on the Northwestern Mutual tower in downtown Milwaukee.[17] The applicant admitted that he lied on his job application[18] for the respondent: he lied when he denied any prior back injuries or chronic ailments, that he had treated with a physician in the past three years, and that he had ever received worker’s compensation benefits in the past.[19] The applicant lied to get the job.[20]

The applicant worked 10 hours per day, four days per week, and his main job was preparing and installing marble wall panels.[21] The panels were 5’ x 18" and about ¾" thick.[22] The panels were in crates and the applicant "normally" and "ordinarily" lifted them out with help from a partner.[23] About 20% of the panels had to be cut, which was a "two-man process."[24] The panels were lifted onto a hydraulic scaffold called a scissor lift to lift the panels to where they needed to be attached to the wall.[25] To affix the panels on the wall required two people to align and protect the stone.[26] The applicant estimated that he did approximately 14 to 35 panels per day and that he had to get on and off the scissor lift approximately 30 to 75 times per day.[27]

The applicant prepared a job description of his work duties for his doctor that is attached to his doctor’s WKC-16-B and in which he stated that he "lifted the majority of the stone [himself] 90-95% of the time. Larger pieces were required to be lifted by two people."[28] Throughout the job description, he indicated that he did a lot of kneeling, standing, drilling, cutting, mixing plaster, cutting wire, bending, reaching, and carrying water buckets on a daily basis; in addition, he indicated that he was put in awkward positions on the scissor lift to get his body between the ceiling grid and twist his body for long periods of time.[29]

Shane Mangan (Mangan), a field superintendent for the respondent on the Northwestern Mutual Life building who supervised the applicant, confirmed the size of the marble panels, and indicated that about 95% of the panels weighed 84 pounds.[30] According to Mangan, there were two guys on a crew and both of them were supposed to lift the marble panels for safety and because the panels were fragile: "We talked about it every week. It was very clear that that’s the way it was to be done."[31] According to Mangan, some marble pieces were smaller and one person could pick those up.[32] Mangan prepared a response to the applicant’s description of his job duties because he thought the applicant’s letter falsely identified what they did on the project.[33] Significantly, he stated that there is "never one person handling a stone alone. They are always handled by two people due to their fragile state and size."[34] Mangan also indicated that the applicant had work issues such as coming in late, missing work, and being on the phone while at work.[35]

The respondent laid off the applicant on January 17, 2017, and the applicant did not return to work for the respondent.[36] The applicant never reported to anyone at the respondent that he had hurt his back or was experiencing pain there,[37] though he was taking narcotic pain medication for back pain the entire time he worked there.[38]

The applicant asserted that he had pain in his hip area, low back, and right leg that came on gradually while he was working for the respondent.[39]

The applicant first saw Dr. Sean C. Tracy, M.D., on January 20, 2017, for right low lumbar back pain. Dr. Tracy noted that "[t]his just started over the last couple of days. He works as a mason and he developed this pain in the right low back and buttocks."[40] The applicant completed a form with his contact information and reason for seeing the doctor and indicated that his injuries were not work-related.[41]

By January 27, 2017, the applicant was reporting to Dr. Tracy that the symptoms down his right leg had intensified and he was getting more pain, numbness, and tingling. The applicant had an MRI of his lumbar spine on February 1, 2017, and the impressions noted moderately advanced multilevel degenerative disc disease within the lumbar spine that had progressed since 2009, and a "[n]ew moderate-sized right paracentral L2-L3 disc extrusion with interior extension. This herniation results in right subarticular recess stenosis and impingement of the traversing right L3 nerve. Central spinal canal narrowing is greatest at this level, mild to moderate in degree (with residual thecal sac [cerebrospinal fluid])."[42] On February 3, 2017, Dr. Tracy noted that the MRI showed a large disk extrusion which was new and noted that the plan was to follow up with Dr. Frank; Dr. Tracy thought the applicant would need a microdiscectomy.

On February 1, 2017, the applicant saw Dr. Clay J. Frank, M.D., regarding back pain; Dr. Frank described the applicant’s present illness:

At this time the patient is here today for relatively atraumatic onset right lower extremity pain. Patient notes that he’s been doing some heavy lifting at work placing marble tiles, but did not have a hard onset of his symptoms. About 3 weeks ago he began to have what felt like right hip pain. He was evaluated by Dr. Tracy and it was suggested that he follow up with Dr. Frank [a]s his back seem[s] to be the problem. Then about one week ago his hip pain progressed to radiating right lower extremity pain primarily into the anterior thigh and secondarily distal to the knee in the anterior lower extremity into the dorsum of the foot. Patient notes the pain is quite severe. He notes it is aggravated by pain [and] has not improved and is severely limiting his ADLs and ability to work and function. He describes a sensation of weakness in his right lower extremity as well. …Treatment up until this point has included one visit to physical therapy, tramadol and ibuprofen.[43]

The applicant did not initially report a work injury to Dr. Frank but later asked him to change an off-work slip to reflect that it was a work injury.[44] Dr. Frank diagnosed a herniated lumbar nucleus pulposus. On February 6, 2017, Dr. Frank reviewed the MRI and confirmed that it showed a right-sided L2-3 herniated nucleus pulposus. On February 21, 2017, Dr. Frank performed a right L2 hemilaminectomy, medial facetectomy and foraminotomy for relief of lumbar spinal stenosis and a right L2-3 microdiscectomy.[45] The postoperative diagnoses were right L2 through the lateral recess stenosis and right L2-3 herniated nucleus pulposus with right L3 radiculopathy. In his follow-up care, Dr. Frank’s office determined that the applicant was obtaining tramadol from multiple providers on multiple occasions.[46]

Regarding his opiate abuse, the applicant admitted that he had a narcotic addiction and abused narcotics prior to working for the respondent.[47] He admitted that he was not honest with his medical providers about his narcotic usage and violated narcotic agreements with them.[48] The applicant admitted that after working for the respondent he also lied to Dr. Frank about his medication usage.[49]

The applicant submitted the WKC-16-B dated April 14, 2017, from Dr. Frank.[50] Dr. Frank opined that the applicant’s work as stated in the attached job duty description (prepared by the applicant) was a material contributory causative factor in the applicant’s condition’s onset or progression. To describe the diagnosis and disability, he indicated "see notes."[51] There were no medical notes attached to the WKC-16-B, just the applicant’s job duty description and a letter from the applicant’s attorney. On June 6, 2017, Dr. Frank corrected the date of injury that he had incorrectly noted on the WKC-16-B.[52]

The applicant considers the surgery to have been very successful because he feels great now and he is on no pain medication.[53] He indicated that since the surgery his right leg and hip pain were "[p]henomenal. No pain at all."[54] At the time of the hearing the applicant was back working as a tile setter for a different employer.[55]

On behalf of the respondent, Dr. Timothy J. O’Brien, M.D., reviewed the applicant’s medical records, examined the applicant, and prepared a report and a WKC-16-B dated January 16, 2018.[56] Dr. O’Brien opined that the applicant has multilevel degenerative disc disease and that his back condition would have progressed to the same extent at the same rate and to the same degree regardless of his work for the respondent. In addition, the applicant’s diminished pain threshold is a side effect from his chronic narcotic/opioid abuse "that played a role in perpetuating the treatment directed toward his low back."[57] According to Dr. O’Brien, the applicant did not sustain a back injury in the course of his job duties with the respondent. The applicant’s job duties were varied and none of them involved biomechanical forces or non-anatomic or non-physiologic positioning of the lumbar spine that would have contributed to or caused his degenerative disc disease.[58] Dr. O’Brien did not agree that the medical treatment to date had been necessary, but regardless of causation, he opined that the applicant reached an end of healing on April 20, 2017, with a 5% permanent partial disability for the applicant’s L2-3 procedure.

The commission does not credit the applicant’s description of his job duties as attached to Dr. Frank’s WKC-16-B because the applicant’s testimony contradicted the description of the lifting responsibilities the applicant actually did.

The commission does not credit Dr. Frank’s opinion because it is based on a misunderstanding of the applicant’s actual job duties.

The commission credits Dr. O’Brien that the applicant has multilevel degenerative disc disease and that his back condition would have progressed to the same extent at the same rate and to the same degree regardless of his work for the respondent. The applicant’s job duties did not involve biomechanical forces or non-anatomic or non-physiologic positioning of the lumbar spine that would have contributed to or caused the applicant’s degenerative disc disease. The applicant did not sustain a back injury in the course of his job duties with the respondent.

The applicant failed to prove beyond a legitimate doubt that he sustained an occupational injury to his back. Therefore, the application for benefits is dismissed.

Memorandum Opinion

In 2016, the respondent hired the applicant through a union hall to work as a tile setter on a job in Milwaukee. The applicant worked on the job approximately three months before he alleges he sustained a work-related occupational back injury. The respondent denies a work injury.

The issues are whether the applicant sustained a work-related occupational injury to his back, and if so, the nature and extent of any disability, and the respondent’s liability for medical expenses. The applicant has the burden of proving beyond a legitimate doubt all the facts necessary to establish a claim for compensation.[59] The commission must deny compensation if it has a legitimate doubt regarding the facts necessary to establish a claim, but not every doubt is automatically legitimate or sufficient to deny compensation.[60] Legitimate doubt must arise from contradictions and inconsistencies in the evidence, not simply from intuition.[61]

Analysis

The respondent argues that the applicant is not credible. The applicant admitted that he lied on his job application with the respondent and lied to his doctors about his narcotic usage. He lied to benefit himself by getting the job and to get narcotics. Similarly, the respondent argues that the applicant lied about his job duties that formed the basis of Dr. Frank’s medical opinion. In his statement of his job duties, the applicant stated that he lifted 90-95% of the marble himself, yet he testified that he ordinarily lifted the marble panels with a partner and putting the panels on the wall was a two-person job. Mangan rebutted the applicant’s description of the applicant’s work duties. Since Dr. Frank based his opinion on the applicant’s erroneous job description, the respondent contends that the commission must discard Dr. Frank’s causation opinion and dismiss the application.

The respondent points out various facts that support Dr. O’Brien’s opinion that the applicant has degenerative disc disease and that his back condition would have progressed to the same extent at the same rate and to the same degree regardless of his work for the respondent. The applicant had a history of chronic low back and leg pain and had undergone an L4-5 discectomy in 2008. He had residual pain after that surgery and his problems never went away; he continued taking narcotic pain medication throughout the time he worked for the respondent. The applicant did not report an injury and first sought medical attention only after the respondent laid him off; he did not initially report a work injury to Dr. Frank but asked him to change an off-work slip to reflect it as a work injury. Also, the objective evidence of the MRI from 2014 revealed the new disc protrusion at that level, and this is consistent with the applicant’s chronic back pain and continued use of narcotics right up until the time he worked for the respondent.

The applicant responds and asserts that though he had prior low back problems and pain, as well as a history of narcotic abuse, his significant job duties were a material contributory causative factor in the progression of his low back condition that required surgical intervention. The applicant argues that he was more credible regarding his description of his job duties than Mangan, his supervisor. The applicant is the one who actually did the work and the work involved installing heavy marble panels for 10 hours per day in a fast-paced effort. On many occasions the applicant lifted the panels on his own. Mangan was not credible, according to the applicant, because Mangan first testified that workers never lifted the panels alone but then indicated that he could not guarantee this and that workers did sometimes lift panels individually. As a result, the applicant argues that Mangan was not credible and Dr. Frank’s opinion relying on the applicant’s job description should be credited.

Regarding his credibility generally, the applicant argues that he admitted his past issues with narcotic abuse and "should be credited with his honesty [sic] testimony about his past behavior."[62] In addition, his false answers on his job application "are justifiable-considering his supervisor’s testimony and job reality."[63] The applicant asserts that he was repentant about these lies.

The applicant also argues that the objective medical evidence supports his claim. The applicant points out that he had no physical limitations on him when he started working for the respondent. The 2008 MRI showed the L2-3 level as normal. Though the 2014 MRI revealed some problems at the L2-3 level, it did not reveal an extruded disc. The MRI after the applicant worked for the respondent showed an L2-3 disc extrusion. The treating doctor indicated the MRI showed a "new" large disc extrusion. Dr. Frank’s medical opinion is more credible than Dr. O’Brien, according to the applicant, because Dr. O’Brien misread the MRI and did not note this disc extrusion. The applicant notes that in contrast to his pre-exposure symptoms, he had specific and intensifying right-sided symptoms after working for the respondent. Finally, the applicant argues that Dr. O’Brien is also not credible because he opined that surgery would not likely provide durable clinical benefits, when in fact the applicant’s leg and hip pain resolved and he was no longer on pain medication at the time of the hearing.

The commission does not find the applicant credible.[64] He was a practiced liar at getting narcotic pain relievers, having repeatedly lied to several medical providers. He lied to get drugs to which he was not entitled. He also lied on his job application with the respondent to get the job. It is significant that he did not report a work injury to the respondent and only sought medical care after he was laid off. He also did not initially report a work injury to Dr. Frank, and later asked him to change the records to reflect a work injury. These facts give the commission doubts that the applicant sustained an injury to his back while working for the respondent.

The objective medical evidence shows that the applicant already had degenerative disc disease and a disc protrusion at L2-3 in 2014. Severe pain from this would explain continued opioid abuse. It is true that Dr. Tracy identified the disc extrusion as "new" in 2017 but that does not mean it was caused by the applicant’s work. It was "new" since the previous MRI in 2014 and still could have been a part of the natural progression of the applicant’s degenerative disc disease, as opined by Dr. O’Brien.

Since Dr. Frank based his causation opinion on the applicant’s job duties description, some of which was contradicted by the applicant’s own testimony, Dr. Frank’s opinion was based on erroneous information and the commission cannot credit it. The commission credits Dr. O’Brien that the applicant’s back condition would have progressed to the same extent at the same rate and to the same degree regardless of his work for the respondent.

After thoroughly reviewing the evidence, the commission finds that it has legitimate doubts that the applicant sustained an occupational disease injury. Therefore, the application for benefits is dismissed.

cc:	Atty. Charles F. Domer Atty. Stanley J. Lowe

[1] Appeal Rights: See the yellow enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above). Appeal rights and answers to frequently asked questions about appealing a worker’s compensation decision to circuit court are also available on the commission’s website, http://lirc.wisconsin.gov.

[2] Transcript of Proceedings dated February 6, 2018 (Tr.), p. 10.

[3] Tr., pp. 10, 28; Exhibit (Ex.) 3.

[4] Ex. 3.

[5] Ex. 3.

[6] Ex. 3.

[7] Ex. 4.

[8] Ex. 3; Tr., p. 34.

[9] Ex. 3.

[10] Tr., p. 35.

[11] Ex. I.

[12] Ex. 3.

[13] Ex. 3.

[14] Ex. 3.

[15] Ex. 3.

[16] Ex. 4.

[17] Tr., p. 12.

[18] See Ex. 6.

[19] Tr., pp. 32-33.

[20] Tr., pp. 33, 37.

[21] Tr., p. 14.

[22] Tr., p. 15.

[23] Tr., p. 16.

[24] Tr., p. 17.

[25] Tr., p. 18.

[26] Tr., p. 20.

[27] Tr., pp. 20-21.

[28] Ex. A.

[29] Ex. A.

[30] Tr., pp. 50, 53.

[31] Tr., p. 50.

[32] Tr., p. 59.

[33] Tr., p. 52; Ex. 7.

[34] Ex. 7.

[35] Tr., p. 54.

[36] Tr., p. 24.

[37] Tr., p. 38.

[38] Tr., p. 40.

[39] Tr., pp. 23-24.

[40] Exs. F and 5.

[41] Ex. 5.

[42] Exs. F and 5.

[43] Exs. D and 2.

[44] Tr., p. 38; Ex. 2.

[45] Ex. D.

[46] Exs. D and 2.

[47] Tr., p. 29.

[48] Tr., p. 30.

[49] Tr., pp. 30-37.

[50] Ex. A.

[51] Ex. A.

[52] Ex. C.

[53] Tr., pp. 26-27.

[54] Tr., p. 27.

[55] Tr., pp. 27-28.

[56] Ex. 1.

[57] Ex. 1, p., 11.

[58] Ex. 1, p. 11.

[59] Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994); Erickson v. DILHR, 49 Wis. 2d 114, 118, 181 N.W.2d 495 (1970).

[60] Erickson, supra, at 119; Leist, supra, at 457.

[61] Erickson, supra; Richardson v. Indus. Comm’n, 1 Wis. 2d 393, 396-97, 84 N.W.2d 98 (1957).

[62] Applicant’s Brief, p. 5.

[63] Applicant’s Brief, p. 6.

[64] The administrative law judge, who is no longer employed as an administrative law judge, did not respond to the commission’s request for demeanor impressions of the witnesses after nearly three months. The commission notes that in her decision, the administrative law judge stated that she found the applicant’s testimony compelling and explained why she found the applicant’s credible. Though the administrative law judge credited the applicant and made findings consistent with his description of his job duties that he prepared for his doctor (i.e., that he lifted 90-95% of the 100-pound marble panels by himself), that was directly contradicted by the applicant’s own testimony at the hearing as well as by his supervisor. As a result, the commission cannot credit the applicant’s description of his work duties as adopted by the administrative law judge.