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


MICHAEL POLI, Applicant

FOX MIDWEST TRANSPORT, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997017248


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development 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 that it makes the following modifications:

1. Delete the last sentence of the fourth paragraph of the ALJ's Findings of Fact and substitute:

"After a review of the record and considering the applicant's surgery, treatment and residual symptoms in light of Wis. Admin. Code DWD 80.32(11), the applicant reached a healing plateau from his cervical spine injury by May 7, 1998, with permanent partial disability from that condition at ten percent compared to permanent total disability."

2. In the second sentence of the seventh paragraph of the ALJ's Findings of Fact, delete "eight" and substitute "ten".

ORDER

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

Dated and mailed May 11, 1999
polimi.wmd : 101 : 5 ND 5.24

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The applicant sought compensation for disability to his right arm, right shoulder, and neck, following an accident at work when he fell while trying to disconnect a semi-tractor from a semi-trailer. The employer concedes the accident happened, and that it caused compensable disability to the right arm and shoulder. It denies liability for the claimed neck injury (cervical disc pathology treated by cervical discectomy and fusion.) At issue before the commission at this point, then, is whether the applicant injured his neck in the accident, and the extent of disability from any such injury.

The ALJ also found the cervical disc condition and resulting cervical discectomy/ fusion surgery were work-related. In this respect, he relied on the report of treating doctor Feely. The ALJ rated permanent partial disability at only eight percent, crediting the rating of the employer's IME for the cervical condition (Steven Delheimer, M.D.) over the ten percent rating of a doctor who performed a functional capacity evaluation for the applicant (James Leonard, D.O.)

The employer and insurer (collectively, the respondent) appeal. The respondent argues that the applicant did not hurt his neck when he fell on January 20, 1997, and that the opinion of IME Delheimer is more credible than that of Dr. Leonard. The respondent asserts it is simply not credible that the fall could have caused the cervical condition for two reasons: (1) the length of time between the fall (January 20, 1997) and the first instance of medical treatment (March 10, 1997); and (2) the fact that the applicant told his treating doctors (including Dr. Feely) that the neck pain started sometime after the fall.

Dr. Leonard, who did the functional capacity evaluation for the applicant, noted the onset of immediate right shoulder pain with the work injury. Dr. Leonard reported that the pain spread into the trapezius over the next couple of days; that over the next week or two the applicant starting having headaches; and that he had neck pain associated with the injuries. Dr. Leonard also noted left hand symptoms. See exhibit A.

Dr. Leonard opined that the work injury caused an acceleration of the applicant's pre-existing degenerative condition in his cervical spine beyond a normal progression. He related the neck symptoms to the work injury, noting the absence of neck pain or headaches before the injury. However, Dr. Leonard could only say it was possible, not probable, that the left hand problem was caused by the work injury as the left hand problem did not come on until a month after injury.

In his final opinion at exhibit 1, the independent medical examiner, Dr. Delheimer, opined that the applicant's cervical pathology was not caused by the work accident. He reports:

"I continue to believe that this is degenerative in nature, and that this condition was neither caused nor aggravated by the fall that he suffered in January 1997. Again there was no treatment of this condition for many weeks after the injury. There was no injury that could cause a cervical disc, and there was no evidence of cervical disc on his MRI, only degenerative disk disease, possibly causing a myleopathy."

Exhibit 1, page 4. Dr. Delheimer also found it significant that the applicant "changed his story" when he initially told the doctor he bruised his arm when he fell in June 1997, adding the detail that his arm was behind him on re- examination May 1998.

Like the ALJ, the commission regards Dr. Delheimer's opinion is less credible than Dr. Leonard's. First, as Dr. Feely reported in his March 27, 1997 note, the MRI report mentioned disc protrusion and disc encroachment, as well as osteophytic encroachment. The commission cannot reconcile this finding of disc encroachment and protrusion (which Dr. Delheimer himself notes in exhibit 3) with Delheimer's statements in exhibit 1 that the MRI only showed degenerative changes with spurring. Perhaps Dr. Delheimer means that the disc protrusion or encroachment was short of a frank herniation (Dr. Feely himself does not mention a herniation), but the fact remains that the MRI report refers to disc protrusion and disc encroachment as Dr. Feely said.

The commission also notes Dr. Delheimer's conclusion that the fall was not a competent mechanism to "cause a cervical disc." The commission assumes Dr. Delheimer meant that the fall could not cause a disc herniation (as opposed to a protrusion.) Again, Drs. Leonard and Feely did not base their diagnoses on a frank herniation. Further, the commission does not believe it is reasonable to rule out the fall as a mechanism for causing an aggravation beyond normal progression of the existing cervical pathology, when the alternative diagnosis seems to be that the degenerative condition simply worsened coincidentally with a fall which caused significant conceded shoulder and arm injuries.

The commission acknowledges that the applicant did not seek treatment until several weeks after the injury, and that the record is not entirely consistent about exactly when the neck pain started. It is also troubling that the applicant did not mention the work injury itself in his very first visit to Dr. Bishop on March 10, 1997.

Of course, the applicant did describe the incident to Dr. Jacobs only two days later on March 12, and has described it consistently since. In addition, IME Allan found that the fall caused the rotator cuff problem, despite the gap between the injury and the treatment. Further, the neck pain began shortly after the fall, not a full month later like the unrelated left arm symptoms which the treating doctors agree are unrelated to the work injury.

The commission therefore affirms the ALJ's findings regarding causation, and nature and extent of disability, with one exception. Under the 1994 revisions to Wis. Admin. Code DWD 80.32(11), the minimum permanent disability rating for a cervical discectomy and fusion is ten percent. Terry Manka v. Bill Wittman Builders, WC case no. 940522401 (LIRC, November 25, 1997, as amended on December 11 and 23, 1997). There is also no basis for a "below- the-minimum" award. See: Michael Moser v. Dorman Foods, WC case no. 95009409 (LIRC, February 27, 1998). While the commission does not normally act unilaterally to an increase an award, it will do so to correct what is essentially an error in computation.

 

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I found Dr. Delheimer to be more credible. Dr. Bishop reported, "This patient came in with arm symptoms, shoulder symptoms and neck discomfort. Felt that he probably is aggravated by driving or at least making it difficult for him to drive his semi." Also in the report "A cervical spine x-ray is done and showed a considerable amount of cervical arthritis and disc narrowing at C5, C6, and C6, C7 whispering at this level."

Dr. Nichols did an MRI on March 27, 1997 and found "1. There is degenerative interspace narrowing at C5-6. There is disk protrusion to the left of the midline along with posterior osteophytic encroachment upon the bony spinal canal. This results in narrowing of the bilateral canals and also in slight compression of the left half of the cord. 2. The vertebral body heights are maintained. There is normal marrow signal intensity. 3. Remaining interspaces are for the most part maintained. 4. The remaining sections of the cervical cord are unremarkable. IMP: Disk and osteophytic encroachment upon the bony canal, primarily to the left of center at C5-6. This results in bilateral neural canal narrowing and also in some compression of the left half of the cord at this level."

Dr. Delheimer indicated "In regard to his cervical disk disease, I continue to believe that this is degenerative in nature, and that this condition was neither caused by nor aggravated by the fall that he suffered in January 1997. Again, there was no treatment for this condition for many weeks after the injury. There was no injury compatible that would cause a cervical disk, and there was no evidence of cervical disk on his MRI, only degenerative disk disease, possibly causing myelopathy."

Dr. Delheimer notes that the applicant did not have immediate pain in his neck after the work injury. Dr. Delheimer also noted "When observed both walking into the office and out of the examination room, there is no gait difficulty. When his gait is directly tested, there is marked discrepancy, in that, he had ataxia not so much on a regular gait but with tandem walking and also walking on both his heels and toes. It should be noted this ataxia developed not with his normal gait but only when he knows he is being specifically tested for this. When he falls, he falls randomly to the right or the left side but not consistently. He had no difficulty with turns, especially when he is not aware of being observed. His Romberg is rather bizarre, in that, he falls backwards but is able to catch himself. It should be noted that he has no ataxia with sitting, and that his finger to nose test and heel shin test are all normal. There is no Clonus of his lower extremities. His toes are downgoing, bilaterally. He had normal position sense. He had no difficulty taking off his boots and shoes. Especially when taking off his shoes, he is able to stand on one foot without difficulty. He also has fasciculations of his first dorsal interossei of his left hand but no atrophy."

Dr. Delheimer also wrote, " In regard to his neck problem, I believe that he has degenerative disk disease primarily at C5-6. I feel this is an underlying, ongoing problem unrelated to the injury of January 20, 1997. I would like to point out that his symptoms referable to his shoulder and his neck began, at least four weeks after the injury, and there are some significant discrepancies in his examination. For example, he does have difficulty with ataxia that seems to be magnified when he is aware of being observed and directly tested. This problem is not nearly as apparent during routine inspection such as when he walked into and out of the examination room and also at one point at the end of the examination when he turned to ask me a question. At that time, there was no ataxia present with this turn. I would also like to point that this, if present, would be more likely due to a cerebellar problem than to a cervical myelopathy. Specifically, because there is no change in his position sense, no Clonus of his lower extremities, and absolutely no increase of his deep tendon reflexes in either his upper or lower extremities."

Dr. Feely reported in his July 1, 1997 note "He reports from the point of view of his balance, he is now doing very well. He has no further gait disturbance." The problem with this report is that Dr. Delheimer did not believe that he had a serious gait problem so the surgery could not fix it.

Overall, I found it most credible that the osteophytic problem that the employe had was the cause of the employe's neck problems and that developed after the work incident and got worse over time. The employe did not immediately report the work incident and did not even report it as a possible cause to the first treating doctor. I recognize that the employe is not a doctor but the fact that he did not mention the work injury does indicate he did not believe it was so serious an event.

For these reasons, I would reverse that portion of the decision that deals with the neck and dismiss that claim.

___________________________________
Pamela I. Anderson, Commissioner

cc: ATTORNEY JAMES A PITTS
SCHOONE FORTUNE LEUCK KELLEY & PITTS SC

ATTORNEY KURT VAN BUSKIRK
LAW OFFICE OF JEFFREY T O'CONNOR


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