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


WILLIAM GUDEN, Applicant

BUENA VISTA BERRIES, Employer

COMMERCIAL UNION INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995025470


At 4:38 p.m. on Friday, March 3, 2000, the applicant submitted to the commission by facsimile transmission a "petition to set aside previous decision." (1)    The petition requests reconsideration of the commission's March 5, 1999 decision in this matter. The applicant's attorney indicated that he provided a copy of his reconsideration request to the insurer, but not the attorney of record representing the employer and the insurer (collectively, the respondent.)

Despite the eleventh hour nature of the applicant's reconsideration request, the commission noted probable jurisdiction based on newly-discovered evidence and provisionally set aside its March 5, 1999 decision pending further consideration. Thereafter, upon receipt of the commission's provisional set aside order dated March 6, 2000, (2)   the attorney for the respondent submitted a letter requesting the commission to reinstate its March 5, 1999 order.

This case arises from the applicant's claim for, among other things, permanent partial disability beyond that conceded, both on a functional basis and on vocational basis for loss of earning capacity. The matter was heard by Mark T. Shore, an administrative law judge (ALJ) for the worker's compensation division of the department of workforce development, on June 16, 1998. ALJ Shore issued his findings and final order dated October 2, 1998, denied the applicant's claim for additional disability compensation, and paid only some expenses related to medical treatment. The commission's March 5, 1999 order affirmed ALJ Shore's findings and order without modification.

In support of his claim for loss of earning capacity from his work injury, the applicant had relied in part on a report of the respondent's independent medical examiner, Richard H. Kokemoor, M.D. However, the ALJ and the commission instead credited the opinion of the respondent's second independent medical examiner, Allan B. Levin, who examined the applicant in May 1998. Dr. Levin opined that the applicant did not sustain any permanent functional disability, and that the work injury did not eventuate or necessitate the imposition of work restrictions. The ALJ, whose findings were adopted in their entirety by the commission, explained that he credited Dr. Levin's report over Dr. Kokemoor's because Dr. Kokemoor's conclusion that the applicant sustained permanent disability was belied by: (1) two to three years of subsequent treatment with several physicians who were unable to find anything wrong with the applicant, and (2) inconsistencies as to the applicant's complaints and non-physiological findings throughout the entire treatment record.

The applicant's recent request for reconsideration includes medical notes and an operative report from the University of Wisconsin Hospital and Clinics (UW Hospital) documenting treatment the applicant received after the June 16, 1998 hearing and the commission's March 5, 1999 decision. The operative report indicates the applicant underwent a laminectomy and fusion surgery in November 1999 to treat a spondylolysis of the L5 vertebra. James Leonard, D.O., who practices with the treating surgeon at the UW Hospital, opined that the applicant's back pain was coming from the L5 spondylolysis. Dr. Leonard further opined that the spondylolysis was either caused or aggravated by the work injury.

The commission concludes that the UW Hospital medical notes and operative reports constitute newly-discovered evidence, and that this matter should be remanded for further hearing and decision on all issues.

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

ORDER

The commission's decision dated March 5, 1999, which affirmed the October 2, 1998 decision of ALJ Shore, remains set aside. Pursuant to Wis. Stat. 102.18 (4)(c), this matter is remanded to the Division of Worker's Compensation in the Department of Workforce Development, for further hearing and decision on all issues.

Dated and mailed April 28, 2000
gudenwi.wpr : 101 : 5   ND 9.3

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its letter in opposition to the applicant's reconsideration request, the respondent asserts that there is really nothing new in findings of the physicians at the UW Hospital. The respondent contends that the spondylolysis for which the applicant underwent treatment is simply a pre-existing congenital degenerative condition, of which many of the applicant's previous doctors were aware, which is unrelated to the work injury.

However, the commission does not read the report of Dr. Levin to be that the applicant was experiencing genuine symptoms of back pain, but they were simply the result of spondylolysis or other pre-existing degenerative condition unrelated to the work injury. Rather, Dr. Levin's opinion indicates, and the commission and the ALJ found, that there was no objective evidence of any anatomical or structural problems to account for the applicant's complaints, whether from the spondylolysis or otherwise. To be blunt, the commission concluded that the applicant was either malingering or so greatly exaggerating his pain as to create a legitimate doubt that there was anything wrong with him at all.

The commission acknowledges that the medical records from the hearing indicate that the applicant's doctors, or at least some of them, were indeed aware of the applicant's spondylolysis at L5. Indeed, the ALJ specifically noted that the applicant had treated before the hearing at UW Hospital with a Dr. Zoeller who tentatively diagnosed an L5 spondylolysis. Further, the ALJ noted that the materials before him did not address whether Dr. Zoeller's diagnosis or the ongoing complaints were related to the work injury. However, Dr. Tribus's notes submitted with the reconsideration request indicate that surgery was not recommended when the applicant treated with Dr. Zoeller because the doctors had only an MRI showing a questionable abnormality at the L5 pars. In April 1999, a CT scan was done, and it showed a pars defect on the left with scelerosis on the right. See Leonard note for May 10, 1999 and Tribus's note for June 21, 1999. In other words, the definitive diagnosis of a L5 pars defect from the spondylolysis-which led to the surgery and Dr. Leonard's opinion on causation-was not made until well after the hearing.

Under these circumstances, the evidence offered by the applicant in connection with its reconsideration request first came to the applicant's knowledge after the hearing; the applicant was not negligent in failing to discover it, and the evidence is not merely cumulative. Seaman Body Corporation v. Industrial Commission, 252 N.W. 718, 720 (1934). In addition, if unrebutted by contrary medical opinion, the notes and operative report from the UW Hospital might well lead the commission to reach a different result in this case. Naden v. Johnson, 61 Wis. 2d 384 (1973).

Of course, it also may be that after further hearing, the facts will establish that the applicant's complaints from his spondylolysis are entirely unrelated to the work injury, contrary to Dr. Leonard's opinion, or that the L5 pars defect only developed or progressed to a symptomatic state well after the work injury. Further hearing may even demonstrate that the November 1999 surgery at the UW Hospital was unnecessary. However the peculiar facts of this case (3)  justify a remand for further proceedings under Wis. Stat. 102.18(3)(c).

cc: ATTORNEY DANA W DUNCAN
SCHMIDT GRACE & DUNCAN

ATTORNEY JOSEPH BERGER
OTJEN VAN ERT STANGLE LIEB & WEIR SC


Appealed to Circuit Court. Appeal dismissed November 16, 2000. Appealed to Court of Appeals. Certified to Supreme Court October 25, 2001 . Circuit court decision affirmed by Supreme Court, June 25, 2002, sub nom. Vidal and Tork v. LIRC and Guden 2002 WI  72, __ N.W.2d __ .

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Footnotes:

(1)( Back ) The commission received a copy of the document by first class mail on Monday, March 6, 2000.

(2)( Back ) The statutory period within which an act is to be done is computed by excluding the first day and including the last, and when the last day falls on a Sunday the act may be done on the next secular day. Wis. Stat. 990.001(4)(a) and (b).

(3)( Back ) Which include: IME Kokemoor's initial opinion that the work injury did in fact cause permanent disability; the commission's conclusion that the applicant had no permanent disability because he either greatly exaggerated or invented his symptoms (and was doing so at the time of Dr. Levin's examination in 1998); a post-hearing surgery for a spondylolysis condition that could explain the symptoms; an opinion from a doctor (rendered for the first time after the hearing) to the effect that the spondylolysis was caused or aggravated by the work injury; and the absence of a medical opinion in the record to the effect that the spondylolysis accounted for the applicant's symptoms but was an unrelated, congenital condition.