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

JANICE A GROEHLER, Applicant

HORTON MANUFACTURING CO INC, Employer

SENTRY INSURANCE CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 93031849

The administrative law judge issued his findings of fact and order in this case on August 14, 1995, following a hearing on May 15, 1995. The applicant has submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, the employer and the insurer (collectively, the respondent) and the applicant submitted briefs on the petition.

The applicant alleges disability arising from a neck injury. Prior to the hearing, the respondent conceded jurisdictional facts and an average weekly wage of $439.20. The respondent also conceded and paid disability for a wrist injury from carpal tunnel syndrome. It has paid nothing for the alleged neck injury, and asserts the injury should not be found compensable under ch. 102, Stats.

The issues are whether at the time of the alleged injury the applicant was performing services growing out of and incidental to employment and whether injury arose out of the applicant's employment. If a compensable injury is established, the issues would also include the nature and extent of disability, as well as 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 reverses his Findings of Fact and Order, and substitutes the following therefor:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Work injury and medical treatment.

The applicant was born July 15, 1945, and began working for the employer in 1985. Consistent with an "occupational disease" theory of causation, she alleges a date of injury of August 27, 1991. This is the applicant' last day of work before losing work time to seek treatment for her alleged work injury. Section 102.01 (2)(g), Stats., and General Cas. Co. of Wisconsin v. LIRC, 165 Wis. 2d 174, 180 (Ct. App., 1991).

Prior to starting work for the employer, the applicant worked part-time as a housekeeper from 1984 to 1985. Her more significant experience was farming full-time with her husband from 1966 to 1984, and part-time until the farm was sold in 1988. She describes her duties as housekeeping, cooking, washing and working with cows. The applicant's husband worked off the farm during at least some of this time, and the applicant milked, or helped to milk forty cows on their 80 acre farm. Exhibit 2.

After beginning work for the employer in 1985, the applicant worked primarily as an assembler. She assembled clutches and brakes evidently for motor vehicles. Her job duties involved lifting up to 85 pounds.

During most of her employment, the applicant worked at benches that were not adjustable for height. She used hand tools, including pistol grip air drivers and pliers of various lengths between 5 and 15 inches, as well as various other tools. During some of this time, the applicant's pistol grip air driver had a "torque clutch," a device that stops the torque from a power wrench when a part is fully-tightened. The applicant also worked with hand presses, the use of which the human resources manager admitted caused jolting.

The applicant would move component parts to her bench, assemble them, package the assembled product, and move the packaged product to a cart, and then push the cart about 150 feet to another area. The product or parts the applicant lifted into the cart weighed up to 85 pounds.

Sometime in 1991, the employer made substantial changes to the work environment. It apparently got adjustable benches and better tools with less torque kickback. It also lessened the lifting requirements. By this time, though, the applicant was on (or about to go on) light duty because of her alleged work injury.

The applicant saw a chiropractor about once a year before starting work with the employer in 1985. In addition, the notes of her treating doctor clearly indicate that the applicant had neck pain before starting work for the employer.

After starting work for the employer, the applicant started noticing increasing neck problems between 1988 and 1991. The duties that caused her particular pain were repetitive "ramming" with her hand press and lifting product. She was also bothered by holding down springs before inserting a retaining ring as part of the assembly process. She was also bothered by using pliers.

An injury lists August 9, 1991 as the date of loss, but which also refers to a claim made in 1989. Exhibit A. These dates are borne out to some degree by the notes of E.J. Lewit, M.D., whom the applicant saw in November 1989 and August 1991.

Dr. Lewit's note for November 1, 1989 reports that the applicant self-referred for evaluation of neck and right arm, that was gradually worsening for a three year period. He also recounted a history of ten years of cervical pain, getting worse over the last few years. He noted the applicant denied injuries to the neck or right arm; that she worked on assembly line assembling clutches and brakes; and that she at times lifted up to 35 pounds. He recommended physical therapy, medication, and a TENS unit. He diagnosed discomfort due to primary muscle spasm, perhaps aggravated by her work situation, and scheduled her for a cervical spine x-ray.

The applicant saw Dr. Lewit again on November 29, 1989, at which time she was doing significantly better. He reported the spine x-rays showed some degenerative changes at C5-6. The doctor noted the possibility of carpal tunnel symptoms, but reasoned that that condition would not account for all her problems.

The applicant next saw Dr. Lewit about 2 years later. His note for August 28, 1991, states the applicant self-referred for an evaluation of discomfort in the neck and right arm. He noted prior visits in 1989 for similar complaints which the doctor felt then were musculoskeletal complaints. He noted she had been treated with physical therapy and medication in 1989, showed some improvement, and returned to work full time. He also noted the 1989 x-rays showing mild degenerative changes.

Dr. Lewit went on to report that the applicant continued to work full time up to the August 28, 1991 appointment. He described her duties as involving a press requiring a constant, repetitive, forceful, back and forth motion of the right arm. He noted work with a "squeeze ring," involving 100 repetitions per day. He stated she was having increasing difficulty doing her work duties. In addition, he noted she had neck pain before working for the employer, but that it has gotten worse.

Dr. Lewit suspected myofascial pain syndrome, exacerbated by her various work activities. He recommended physical therapy, and wanted an MRI to rule out a disc herniation. He put her on light-medium work. He also prohibited repetitive pushing and pulling with her arms.

The MRI was done on August 30, 1991. It showed a right paracentral disc herniation at C5-6, small protrusions at C3-4 and C6-7 without impingement, and bulging at C4-5. Dr. Lewit suspected the "several areas of disc protrusion" could be causing her problems, but advised her to go ahead with physical therapy. In his note for October 29, 1991, Dr. Lewit suspected myofascial pain complicated by underlying disc disease. He went on to say he felt her residual symptoms were due more to the disc disease than the myofascial pain.

When Dr. Lewit saw the applicant again on January 28, 1992, he noted her cervical area was feeling better, but that spending considerable time at work standing and leaning forward aggravated her neck discomfort. He suspected her persistent musculoskeletal neck discomfort was a combination of myofascial process with referred pain secondary to underlying disc disease. He recommended Ibuprofen, home exercise for the neck, and possible epidural injections if she did not get better. He continued his restrictions.

The applicant stopped seeing Dr. Lewit, and began treating with John Cragg, M.D. She testified she switched doctors because Dr. Cragg was much closer to her residence.

The applicant started treating with Dr. Cragg on April 1, 1992. He reported the development of insidious neck pain over the last year. The applicant told Dr. Cragg about the MRI showing the bulging discs. He noted a 7-year employment history that included gripping and lifting. She denied "previous knowledge of injury to her neck or hands prior to the insidious onset of symptoms in the last 18 to 24 months." He also reports: "She worked as a farmer until 5 years ago but claims to have no neck or hand pain at that time."

Dr. Cragg went on to diagnose chronic cervical disc syndrome, with referred discogenic pain. He maintained the restrocted duty status described by Dr. Lewit.

The applicant next saw Dr. Cragg on July 20, 1992, for a re- evaluation of right lateral neck pain, headaches, shoulder pain and arm pain. He reported "because of these symptoms she eventually was forced to take a layoff from Horton Mfg on 6/26." He noted signs of mild impingement (apparently at the carpal tunnel) in addition to chronic cervical disc syndrome. He did not think she had yet reached a healing plateau, and scheduled another appointment for three months hence.

She next saw Dr. Cragg on November 3, 1992, with continuing complaints of right lateral neck pain. This time, the doctor reported she has been voluntarily off work since June 1992. He states that, if the applicant were working, her restrictions would be no repetitive neck bending, no lifting greater than chest level more than five or six times per hour, no repetitive firm gripping and no lifting greater than 10 pounds. He stated she would be re-evaluated on an as needed basis.

She visited Dr. Cragg again in February 8, 1993. This time he reported the applicant was not working because she was laid off when the employer moved its plant. He noted right lateral neck pain when the applicant twists her neck side to side. He suspected the disc herniation at C5-6 shown in the August 1991 MRI was causing her symptoms. He recommended a CT scan with myelography if she was interested in pursuing a surgical work-up. He continued the work restrictions. When the applicant saw

Dr. Cragg again in May and June 1993, he noted little change but was becoming more concerned about the applicant's shoulder problems.

2. Work after injury and separation from employment.

After she first sought treatment from Dr. Lewit in 1991, the applicant asked for work within the doctor's restrictions. She was given assembly work within the 30-pound, medium-light duty lifting limit, but it still involved pushing and pulling. Indeed, the testimony of the employer's human resources manager indicates that the employer could accommodate the lifting limit, but had more difficulty accommodating her restriction against repetitive pulling and pushing with the hands.

Nonetheless, Exhibit 6 is a letter from the employer's plant manager stating that the applicant had been observed pulling a load of parts, and reminding her not perform outside her restrictions. The applicant also admitted that after her injury, her duties got easier, and that something, apparently pushing and pulling, was less frequent. She testified the work sometimes exceeded her restrictions, but the employer's witness denied this.

The applicant continued to work for the employer doing assembly work after the onset of symptoms in August 1991. The employer moved its plant from Shell Lake to Webster (a distance of 34 miles) in July 1992, and offered her the chance to do assembly work in Webster. The applicant declined, taking what was considered a voluntary separation. She received unemployment compensation following her separation.

The applicant testified that she quit when the plant moved because she could not do the work. She testified that two doctors (Cragg and Lewit) told her not to do assembly work. Although the commission does not see that specific instruction in the record, Dr. Cragg's May 27, 1993 report does suggest that light manufacturing work would be more in line with her capabilities than the moderate to heavy work she did for the employer. On the other hand, the applicant did not mention neck pain as a reason for not moving with the employer or on a March 1992 performance review. She also testified that at least part of concern working in Webster was the commute.

3. Expert medical opinion.

Several documents were offered and accepted into evidence as expert medical opinion.

Exhibit D is a letter from Dr. Lewit to the insurer dated December 23, 1991. He opined the applicant did not have significant carpal tunnel problems. Rather, he believed the majority of the applicant's discomfort was related to myofascial syndrome and a component of underlying cervical disc disease. He reported that the August 30, 1991 MRI showed a bulging disc at C4-5, small central disc protrusions at C3-4 and C6-7, and "discal herniation at C5-6 right paracentral with impingement on the cord."

Dr. Lewit also noted that, according to the applicant, she may have had prior neck discomfort, although it was definitely exacerbated by the work. He also noted that the right arm complaints came on after working for the employer. Regarding causation, Dr. Lewit opined that "[the applicant's] employment aggravated a pre-existing condition beyond the normal progression." He was uncertain whether the applicant had yet reached a healing plateau, and he pointed out that periodic exacerbations would not be unusual for this type of injury.

The insurer then wrote to Dr. Lewit to ask how the applicant's job could have caused an aggravation of a pre- existing condition, and what job changes could be made to avoid aggravation. The doctor responded by letter dated February 24, 1992, at Exhibit E. However, he declined to answer question about how to avoid future aggravation because he was not an occupational medicine specialist.

With respect to the second question, causation, Dr. Lewit wrote that the applicant told him that various job activities exacerbated her discomfort; that these activities included constant, repetitive forceful arm motion and squeezing a ring perhaps 100 times per day; and that she had been doing these activities for seven years. He concludes: "Clearly, based on the patient's description of her situation with her complaints of exacerbation of discomfort related to the work situation, it would appear that indeed her employment aggravated a pre-existing condition beyond the normal progression."

Finally, Dr. Lewit did not rate permanent disability in this February 1992 report, which would be consistent with his December 1991 opinion she had not yet plateaued. He did refer to his earlier work restrictions form, dated August 28, 1991, and stated that those restrictions (1)   remained in effect.

The applicant also submitted the opinion of Dr. Cragg, dated May 27, 1993 (Exhibit I). He diagnosed chronic cervical disc syndrome with discogenic referred pain and carpal tunnel syndrome. He noted the MRI showing a disc herniation at C5-6 and bulge at C4-5. He gives a history of seven years of laboring jobs for the employer that involved lifting and gripping. He states she remembered no acute work injury, neither while working for the employer nor while at the farm. He goes on to state that her symptoms, which apparently began in early 1990, were the result of cumulative reaching and gripping while working for the employer.

Dr. Cragg further stated that he believed she reached a healing plateau, with a permanent partial disability at

10 percent compared to disability to the body as a whole for her neck (and at five percent compared to loss of the right hand for the carpal tunnel syndrome.) He set out work restrictions in an attached functional capacity evaluation. However, he indicated the restrictions were not permanent; that is, that some of them might be lifted in 6 to 12 months.

Specifically, Dr. Cragg limited the applicant to occasional bending/stooping, crawling, crouching, kneeling, balancing and pushing. He prohibited crawling, climbing and crouching. He allowed only occasional lifting up to 10 pounds. He prohibited firm grasping with the right hand, as well as frequent flexion or rotation of the neck. He also limited reaching above the neck to 5 or 6 times per hour.

The employer's independent medical examiner is Robert H.N. Fielden, M.D. His report is dated June 24, 1993. Dr. Fielden took a history of an onset of arm pain in 1986, with neck pain bothering the applicant enough to see Dr. Lewit in 1991-92. He apparently was unaware of the applicant's neck symptoms prior to starting work with the employer.

He also went through the medical records, including

Dr. Lewit's notes and reports. Dr. Fielden did note the herniated disc, but not the applicant's pre-employment cervical condition. He did find work-related carpal tunnel syndrome for which he rated permanent partial disability at 2 percent compared to loss of use of the wrist. With respect to the cervical complaints, he wrote:

"I would have a little more trouble stating that her cervical disc is job related. We do not have a particular injury. Herniation of discs over time and wear and tear are not necessarily traumatic, nor would this necessarily be related to the specific activities of her work. At this point, with the history that I have, I do not feel that the cervical disc is a part of her employment condition. As stated, I do think that she had a cervical disc. I think it is quiescent now and has healed."

He opined that the applicant had reached a healing plateau for both the neck and the wrist. He also set work restrictions based on the carpal tunnel condition. He set no restrictions and rated no permanent disability for the cervical condition.

4. Expert vocational opinion.

The file also contains reports from vocational experts. The applicant's expert, Frank Maslowski, based his opinion on the restrictions of Dr. Cragg. This restricted her to select work which did not require lifting more than 10 pounds. He thought her best chance of getting work was in light manufacturing or service jobs, such as a light assembly, small part fabricator, grill cook, bartender, and retail salesperson. He estimated a $5.00 per hour starting wage, and an average wage of $6.00 to $6.50, as compared to her pre-injury wage of $10.50. He assessed a 45 to 55 percent loss of earning capacity.

The respondent's vocational expert, Kenneth Ogren, opined the applicant would have no loss of earning capacity on any medical opinion except Dr. Cragg's. Given Dr. Cragg's restrictions, however, Mr. Ogren noted that the applicant could earn $15,000 per year in a "respit [sic] program," and that would be a 28 percent loss compared to her pre-injury wage.

5. Discussion.

Regarding the issue of causation, the commission finds Dr. Lewit's opinion most credible. In adopting Dr. Lewit's opinion, the commission notes that the applicant did relatively heavy work for the employer for several years, that she sustained a dramatic increase in symptoms and medical treatment in 1990-91, that treating doctor Lewit seems to have had the best medical history, and that all the practitioners agree that the applicant sustained a herniated cervical disc. The commission also notes that IME Fielden specifically opined that, in the absence of trauma, wear and tear may cause a herniated disc.

Based on Dr. Lewit's opinion, the commission concludes that the applicant's work activity caused permanent disability by aggravation, acceleration and precipitation of the applicant's underlying degenerative cervical condition beyond normal progression. The disease process may well have started before the applicant began work with the employer in 1985. However, the fact remains that this woman did comparatively heavy assembly work for 6.5 years during which her cervical symptoms dramatically worsened. In short, the applicant has met her burden of eliminating legitimate doubt as to whether the accident or disease causing her neck injury arose out of her employment with the employer while performing services growing out and incidental to that employment.

The next issue is the nature and extent of disability. Ordinarily, the commission first addresses the extent of temporary disability. In this case, however, the commission reads the applicant's briefs to forgo any claim for temporary disability, either immediately after August 1991 date of injury, or after she stopped working for the employer in July 1992.

The commission turns, then, to the extent of functional permanent partial disability attributable to the applicant's neck injury. The commission finds this to be five percent compared to disability to the body as a whole, the minimum rating for a cervical laminectomy under sec. Ind 80.34 (11), Wis. Adm. Code. Given the C5-6 disc herniation, and the symptoms, a five percent rating is reasonable. The commission's rating is also 5 percent less than the 10 percent rated by Dr. Cragg. Section 102.18 (1)(d), Stats. A reduction is appropriate because when Dr. Cragg rated permanent disability he went on to state that the applicant's work restrictions might in fact lessen with time.

The commission therefore finds that the applicant sustained permanent partial disability at five percent compared to permanent total disability. She is thus entitled to fifty weeks of permanent partial disability at the weekly rate of $137 per week (the statutory maximum for injuries occurring in 1991). This results in a total for permanent partial disability, on a functional basis, of $6,850, all of which has accrued.

The next issue is the extent of permanent partial disability on a vocational basis, calculated based on loss of earning capacity. On this issue, the employer asserts that, after the injury, it provided work within the applicant's restrictions which paid at least 85 percent of her pre-injury wage. On this basis, the respondent asserts permanent disability based on loss of earning capacity may not be awarded under sec. 102.44 (6), Stats.

It is true that under sec. 102.44 (6)(a) and (h), Stats., an injured worker is limited to the functional permanent partial disability without regard to loss of earning capacity if she returns to work paying within 85 percent of her pre-injury wage. The same rule applies under sec. 102.44 (6)(g), Stats., if an applicant is offered work within her restrictions paying within 85 percent of her pre-injury wage, but refuses it without reasonable cause. In addition, sec. 102.44 (6)(b), Stats., provides:

102.44 (6)(b) If, during the period set forth in s. 102.17 (4) [the 12-year statute of limitations] the employment relationship is terminated by the employer at the time of the injury, or by the employe because his or her physical or mental limitations prevent his or her continuing in such employment, or if during such period a wage loss of 15% or more occurs the department may reopen any award and make a redetermination taking into account loss of earning capacity.

These provisions are further explained in the department's statutory endnote 126.

The commission has construed sec. 102.44 (6), Stats., to allow loss of earning capacity awards for an injured worker who has returned to work within 85 percent of his pre-injury wage, but is later discharged without reasonable cause. On the other hand, if the applicant quits for reasons unrelated to his disability or is fired for reasonable cause, the commission usually exercises discretion not to "reopen" a claim to award benefits based on loss of earning capacity under sec. 102.44 (6)(b), Stats. (2)

In this case, of course, the applicant was first provided with work at her old wage until the Shell Lake plant closed. She later refused an offer of work at the same rate at the employer's Webster plant. On these facts, the commission finds a termination in wage loss under sec. 102.44 (6)(b), Stats., when the employer moved the plant. The applicant then refused the subsequent offer of re-employment in Webster because of the additional commuting distance, which the commission concludes established reasonable cause under sec. 102.44 (6)(g), Stats. (3) The applicant is thus not barred from receiving an award of loss of earning capacity under sec. 102.44 (6), Stats., given the facts of her separation.

However, the record is insufficient to support an award at this time. Dr. Lewit did not set permanent restrictions because when he last examined the applicant she had not yet plateaued. An award of loss of earning capacity would have to be based on Dr. Cragg's restrictions. But Dr. Cragg himself indicated his restrictions could change in 6 to 12 months after they were issued. Thus the commission leaves this order interlocutory to allow the applicant to bring a claim for loss of earning capacity should truly permanent restrictions ever be fixed. (4)

The last issue is liability for medical expenses. The applicant testified that she had recently undergone intramuscular injections at Sacred Heart Hospital and physical therapy. The commission infers from this testimony and from treatment described in the submitted bills that the treatment rendered was reasonable and necessary to cure or relieve the residual neck symptoms the applicant continues to experience. Accordingly, the respondent shall pay the following medical bills under sec. 102.42, Stats.: (a) to Pain Clinic of Northwestern Wisconsin, the sum of $276; (b) to Sacred Heart Hospital, the sum of $583.95; and (c) to the Marshfield Clinic, the sum of $74.30.

The applicant has agreed to a 20% attorney fee under sec. 102.26, Stats. No costs have been established. Consequently, the amounts payable to the applicant and her attorney within thirty days are $5,480 and $1,370, respectively.

Because Dr. Cragg opined that the applicant might potentially need a cervical discectomy in the future, this order is left interlocutory for awards of additional disability and medical treatment expenses if any arise. The order is also left interlocutory to allow the applicant to pursue her claim for loss of earning capacity, as explained above.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are reversed.

Within 30 days from the date of the decision, the employer and its insurer shall pay all of the following:

(1) To the applicant, Janice A. Groehler, the sum of Five thousand four hundred eighty dollars ($5,480) for permanent partial disability.

(2) To the applicant's attorney, David M. Erspamer, the sum of One thousand three hundred seventy dollars and no cents ($1,370) as attorney fees.

(3) To Pain Clinic of Northern Wisconsin, the sum of Two hundred seventy-six dollars and no cents ($276.00) as medical treatment expense.

(4) To Sacred Heart Hospital of Eau Claire, the sum of Five hundred eighty-three dollars and ninety-five cents ($583.95).

(5) To Marshfield Clinic, the sum of Seventy-four dollars and thirty cents ($74.30).

Jurisdiction is retained to issue such further orders as may be warranted consistent with this decision.

Dated and mailed June 5, 1996
groehja.wrr : 101 : 3  ND § 5.23 § 5.21

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission conferred about witness credibility and demeanor with the administrative law judge who presided at the hearing as required under Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The administrative law judge stated he believed the applicant's testimony about her work duties was credible. However, he reiterated his belief that the applicant failed to meet her burden of proof on causation, stating that he believed the reports of Drs. Cragg and Lewit were insufficient on this issue.

Because the commission adopts the expert opinion of Dr. Lewit on causation, the administrative law judge's reasons for rejecting Dr. Lewit's opinion are most significant. The commission first notes that neither Dr. Lewit nor the other doctors rendering expert medical opinions testified. Thus, very little of this analysis actually involves the credibility and demeanor concerns raised in Transamerica.

Both in his decision and at the hearing, the administrative law judge explained that he rejected Dr. Lewit's report as an insufficient basis for the legal conclusion that the applicant's work or workplace exposure was at least material contributory factor in the onset or progression of a pre-existing degenerative condition. He went to state that even if Dr. Lewit had used that precise phraseology in a certified form practitioner's report, he would have rejected the doctor's opinion as incredible. The administrative law judge's reservations with the credibility of Dr. Lewit's report are based on what he viewed as the doctor's failure to challenge the "new spin" the applicant put on her medical history when she withdrew an unqualified admission of pre-employment neck problems and substituted a qualified one.

The commission first notes that, as far as it can tell, the respondent has not objected to form in which Dr. Lewit's opinion was submitted. Consequently, the commission concludes the respondent stipulated to the introduction of the reports of both Drs. Cragg and Lewit without the certification required under sec. 102.17 (1)(d), Stats.

The commission also concludes that Dr. Lewit's report, if found credible, provides a sufficient basis for a finding of legal causation. As noted above, Dr. Lewit reported on December 23, 1991, that the applicant's employment aggravated a pre- existing condition beyond the progression. True, the doctor did not rotely restate one of the formulations of legal causation set out in caselaw. (5) However, neither a marked box on a WC-16B form nor the "magic words" set out in caselaw or the department's form are required from a medical expert. Harnischfeger v. LIRC and Dzenzeol, court of appeals case no. 95-0212, district I unpublished decision, slip opinion at page 7 (August 8, 1995). In this case, Dr. Lewit's opinion is a sufficient basis for finding, beyond a legitimate doubt, that the injury causing the applicant's disability arose out of her employment under the Lewellyn 3" theory of legal causation, if not the related occupational disease theory. (6)

Lastly, the commission must disagree with the administrative law judge's conclusion that Dr. Lewit's opinion was far less credible than Dr. Fielden. On this issue, the commission does not place as much emphasis on Dr. Lewit's failure "to challenge [the] new spin" on the applicant's history when she "changed" from saying unequivocally she had neck pain prior to working for the employer to saying she "may" have had neck pain prior to working for the employer. It is evident from his decision that the administrative law judge, like the commission, believed that the applicant in fact had had pre-employment neck pain. Thus, because Dr. Lewit's opinion accepts pre-employment pain as a given, it is hard to see what difference his failure to challenge the "new spin" makes. In fact, since the Dr. Fielden does not mention pre-employment cervical symptoms in his opinion, Dr. Lewit is the only doctor whose opinion on causation is based on an accurate history.

In addition, the commission does not believe the record supports the administrative law judge's conclusion that the applicant changed her history while she was treating with Dr. Lewit. No such change is reflected in his treatment notes. The only basis for finding a change is Dr. Lewit's statement in his December 1994 letter ot the insurer. After reading the letter, the commission infers the "new spin" was simply an imprecise recounting of what the applicant told the doctor as reflected in his notes, possibly employed as a forensic device. In any event, the commission is disinclined to reject the report of Dr. Lewit, who treated the applicant on a number of occasions over several months, on this basis.

PAMELA I. ANDERSON, CHAIRMAN, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Fielden most credible even though it is not clear if he knew about the applicant's history of farm work. Dr. Fielden believed that the applicant's carpel tunnel syndrome symptoms were related to her work but not her neck symptoms.

The applicant's complaints to Dr. Lewit seemed to center on work that involved repetitive forceful arm movements and squeezing a ring up to 100 times a day. The applicant did have chiropractic treatments prior to starting work for the employer. She had done heavy work on the farm for years and I am convinced that her symptoms were part of the natural progression of her degenerative cervical spine condition which was already apparent before she started work for the employer. Dr. Cragg did not have a correct history and did not know about the applicant's complaints previous to starting work for the employer.

For these reasons, I would not find that her neck problems were related her work. I do not, however, agree with the way the administrative law judge dismissed the case.

Pamela I. Anderson, Chairman

cc: ATTORNEY BRADLEY C LUNDEEN
MUDGE PORTER LUNDEEN & SEGUIN

ATTORNEY DEVID M ERSPAMER
ERSPAMER LAW OFFICE

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Footnotes:

(1)( Back ) Light medium work; 30 pound maximum lifting; and only "frequent" climbing and reaching"; no repetitive pushing and pulling with the hands.

(2)( Back ) See Terry Ann Mallette v. Hartford Finishing Inc., claim no. 93036016 (LIRC, July 31, 1995), affirmed Dodge County Circuit Court, case no. 95 CV 402 (March 22, 1996).

(3)( Back ) In this case the work offered was in Webster, which is 34 miles by highway from Shell Lake. The court of appeals has previously found that a worker had good cause for unemployment compensation purposes to refuse a transfer to a location only 25 miles away (Merrill to Tomahawk) with no increase in pay. Farmer's Mill of Athens, Inc. v. ILHR Dept., 97 Wis. 2d 576 (Ct. App., 1979). In short, the commission cannot conclude that the work offered to the applicant in Webster was "suitable work" under sec. 80.47, Wis. Adm. Code, even assuming it was within her physical restrictions.

(4)( Back ) The commission realizes that denying an LOEC award on this basis may seem inconsistent with finding awarding functional PPD on the assumption healing has ended. However, the applicant has the burden of eliminating legitimate doubt on all aspects of her claim. The commission therefore resolves the inconsistency raised by Dr. Cragg in assessing PPD on not truly permanent restrictions against the applicant on the issue of LOEC.

(5)( Back ) For those legal causation formulations, see Shelby Mutual Ins Co. v. DILHR, 109 Wis. 2d 655, 661 (Ct. App. 1982); Universal Foundry Co. v. Industrial Commission, 233 Wis. 479, 487-488 fn 5 (1978); and Lewellyn v. DILHR, 38 Wis. 2d 43 (1968).

(6)( Back ) For the relatedness of the two theories of causation, see Shelby, supra, at 109 Wis. 2d 653-63; Miller Brewing Company v. LIRC, 173 Wis. 2d 700, 708-09 (1993) and Johnson Welding & Manufacturing Company v. LIRC and Skogstad, Eau Claire County Circuit Court case no. 94CV704 (July 3, 1995).